Crim Law

G.R. Nos.
141154-56 January 15, 2002
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FERNANDO "Ando" COSTALES and FERNANDO RAMIREZ (at-large), accused.
FERNANDO "Ando" COSTALES, accused-appellant.
BELLOSILLO, J.:
Traditionally, religious fervor nourishes love, respect and concern for one another among brethren; it was not so however in the
case of one whose adherence to his faith became the harbinger of his tragic end, sending his wife hanging by the thread of death,
and worse, the crimes were perpetrated apparently by their brethren professing to be "denizens of the temple."
Accused Fernando "Ando" Costales and Fernando Ramirez, the latter being still at large, stood charged with the murder of Miguel
Marcelo and the frustrated murder of Crispina Marcelo. As the perpetrators were found to be in unlawful possession of firearms
they were also charged with violation of PD 1866, as amended by RA 8294.
Since accused Fernando Ramirez remained at large, only accused Fernando "Ando" Costales was arraigned and tried.
For violation of Sec. 1, PD 1866, as amended (Crim. Case No. T-2054), accused Fernando "Ando" Costales was found guilty and
sentenced1 to an indeterminate penalty of six (6) months of arresto mayor as minimum to six (6) years of prision correccional as
maximum, and to pay a fine of ₱30,000.
For the murder of Miguel Marcelo (Crim. Case No. T-2057), accused Fernando "Ando" Costales was found guilty and meted the
ultimate penalty of death.
For the frustrated murder of Crispina Marcelo (Crim. Case No. T-2056) he was found guilty only of attempted murder and sentenced
to an indeterminate penalty of six (6) years of prision correccional as minimum to twelve (12) years of prision mayor as maximum.
Additionally, he was ordered "to pay the heirs of the two (2) victims ₱250,000.00 in damages to be shared by and among them in a
manner that suits them best."
Sitio Raniag, Barangay Capas, was a placid but forlorn barrio in Pangasinan where the spouses Miguel and Crispina Marcelo resided
in a small one-room shanty with concrete flooring and cogon roofing. Although their married daughters Donabel, Jessie and Erlinda
already had their own houses they would spend the night with them every once in a while. And so it was on the night of 27
November 1997.
Jessie Molina recalled that at around 11:30 o'clock in the evening of 27 November 1997, she and her sisters Donabel and Erlinda
together with their parents Miguel and Crispina had taken their own corners of their small house to prepare for the night. Miguel
laid in a folding bed beside the door while the others occupied a bamboo bed with the exception of Jessie who for want of available
space settled instead on the concrete floor. Jessie and Erlinda had just watched tv when two (2) persons suddenly barged into their
house passing through the door kept ajar by sacks of palay and strangled her father Miguel. Jessie readily recognized the two (2)
intruders because the entire room was illuminated by a nightlamp which the family kept burning overnight.
Jessie narrated that Fernando "Ando" Costales, one of the assailants, poked a gun at the head of her father and shot him once in
cold blood. Thereafter the other assailant Fernando Ramirez sprayed on their faces what she described as "something hot and
pungent," and with his firearm pumped a bullet on her mother's chest.
Erlinda Marcelo was also awakened when the two (2) accused suddenly entered their house and strangled their father after which
Fernando Costales shot him point blank in the head. According to Erlinda, when tear gas was sprayed by Ramirez, she ducked and
almost simultaneously she heard a gunshot towards the direction of her mother. When she opened her eyes, she saw her mother
Crispina clutching her breast, reeling from the blow and collapsing on the floor in a heap. In her testimony Crispina herself confirmed
that Ramirez shot her once on the right chest which caused her to bleed and lose consciousness. 1âwphi1.nêt
Both Jessie and Erlinda affirmed that they were familiar with the two (2) accused because, like the rest of the family, they were
members of the "Baro a Cristiano" also known as Lamplighter, of which Fernando "Ando" Costales and Fernando Ramirez were the
high priests in their respective areas. According to Jessie, her parents decided to quit the brotherhood because Ramirez warned
them not to sever their ties with the sect if they did not want any harm to befall them. In fact, according to her, a month earlier
Ramirez even threatened her sister Erlinda with bodily harm.
Like her sister, Erlinda stated that their family distanced themselves from the congregation when Ramirez threatened her father.
According to her, on 16 November 1997, Miguel tried to fetch her from the house of Ramirez but Miguel relented only after Ramirez
threatened her with a bolo. Her father tried to get her when he learned that Ramirez was molesting her every time his wife was
away. She however did not report this matter immediately to the authorities because she feared for her life.
Dr. Alex E. Trinidad, Rural Health Physician of Umingan, Pangasinan, after conducting an autopsy on the body of Miguel Marcelo
reported: (a) The gunshot wound penetrating the left lobe of the liver of deceased Miguel Marcelo was fatal; (b) Considering the
trajectory of the gunshot wound, the assailant was probably pointing slightly downward; (c) The cause of death of the deceased was
internal hemorrhage arising from the gunshot wound; and, (d) Considering the wound of the victim, he could have survived for a few
minutes after he was shot.
To show that he could not have been a party to the crimes charged, accused Fernando Costales gave a detailed account of his
activities by retracing his steps from late afternoon of 27 November 1997 until dawn of the following day. He narrated that at 5:00
o'clock in the afternoon of 27 November he was irrigating his land in Barangay Libeg, then proceeded to a nearby chapel to pray. At
past 7:00 o'clock in the evening, he went to see a certain Isidro who was irrigating his own land with the use of his (Fernando's)
water pump. That being done he went back home.
A couple of hours later, in the company of his wife and children, he returned to the mission house to attend another religious
service. At past 9:00 o'clock that same evening he dropped by Isidro's farmland to verify if the latter had finished irrigating. He went
back home at around 11:00 o'clock to sleep and was awakened by Isidro at about 11:45 o'clock only to inform him that he (Isidro)
was through. When Isidro left, Fernando went back to sleep only to be roused again by Gregorio Baguio who also wanted to borrow
his water pump. With his sleep disrupted, he decided around midnight to visit as he did the nearby mission house to pray. Shortly
after, he resumed his sleep but woke up again at 4:00 o'clock in the morning to see if Baguio had already finished watering his farm.
Defense witnesses Isidro Costales and Gregorio Baguio corroborated the claim of Fernando Costales that he could not have
perpetrated the crimes as he was with them all the time they were irrigating their farms. Likewise, Elvie Costales, wife of accused
Fernando Costales, presented an "attendance notebook," purportedly prepared by her, showing that her husband, who was the
chapter's religious leader, was worshipping in the Barangay Libeg chapel from 4:45 to 4:47 o'clock and from 5:30 to 5:37 o'clock at
daybreak,2 from 7:22 to 8:00 o'clock after sunset, 3 and from 12:10 to 12:15 o'clock midnight4 of 27 November 1997, although he
would periodically leave the prayer meeting to check if Isidro had already finished watering his farm so that Baguio could also use
the pump.
But the trial court viewed the alibi of the defense with askance and assigned full credit to the declarations of the prosecution
witnesses.
In disbelieving the veracity of the "attendance notebook," the court a quo opined that Exh. "2" could have been more impressive
had it borne the confirming signatures or thumbmarks of the "Baro a Cristiano" faithful, including their leader Fernando Costales, or
had Exhs. "2-B" and "2-C" been corroborated on the witness stand by a less interested member, or had the church secretary who
allegedly kept record of attendance been some member other that Mrs. Costales or the nearest of kin. 5
The court below also virtually jettisoned the testimonies of Isidro Costales and Gregorio Baguio when it said that "they had every
reason to come to the rescue of the accused Costales, their admittedly common nephew." Further, it pointed out that the accused
and his witnesses issued contradictory and irreconcilable statements when, on one hand Isidro testified that before midnight of 27
November 1997 he went to the house of his nephew Fernando Costales to inform him that the irrigation of his farm was already
through; on the other hand, Baguio claimed that at around 11:00 o'clock that night he roused the accused who thereafter went to
operate the pump and stayed put beside it until Baguio's farm was completely irrigated at 4:00 o'clock the next morning.
The above statements, the court a quo observed, did not jibe with those made by the accused that his uncle Isidro woke him up at
around 11:45 o'clock in the evening and told him that the irrigation of his farm was finished, after which he returned to bed and
when he awakened at past 4:00 o'clock the following morning, he met Baguio who told him that he too was through irrigating.
In contrast, the trial court saw no dark motives behind the respective testimonies of Crispina Marcelo and her two (2) daughters.
The Costaleses and the Marcelos used to be members of the same religious sect and accused "Ando" Costales even stood as a
sponsor at the wedding of Jessie Marcelo, and again when Crispina's brother got married. In short, the Marcelos could not have
mistaken "Ando" Costales and Fernando Ramirez for other felons.
In this automatic review, accused Fernando Costales takes exception to the findings of the trial court and thus seeks reversal of his
convictions on the ground that it erred: (a) in according credence to the testimonies of the prosecution witnesses although the same
are perforated with material inconsistencies and bias; (b) in not giving weight to the defense of alibi despite the weakness of the
prosecution evidence; (c) in convicting him of violation of Sec. 1, PD 1866, as amended, since the same was absorbed in the crime of
murder; (d) in finding that the crime was attended by conspiracy despite the fact that no aggravating circumstance was established
beyond reasonable doubt; and, (e) in not appreciating the mitigating circumstance of voluntary surrender in his favor.
The first and second assigned errors will be discussed jointly since they are interrelated.
Accused-appellant argues that the seemingly flawless and unwavering testimonies of the three (3) key prosecution witnesses on the
assault of the Marcelo household are obviously biased that they invite suspicion and disbelief.
Concededly, the prosecution witnesses gave almost uniform observations on how the malefactors carried out their detestable
crimes, i.e., the identity of the assailants, that Miguel was strangled by both intruders and almost simultaneously shot on the head,
that one of them sprayed a chemical on the other occupants of the house and after a split second fired at Crispina. Such consistency
and uniformity may be irregular at first blush, but accused-appellant failed to take into account the following factors which account
for the "near flawless" statements of the prosecution witnesses: (a) the one-room shanty was very small with no substantial
obstruction to impede the vision of the occupants; (b) the room was lighted by a kerosene lamp sufficient enough for the occupants
to recognize accused-appellant and his cohort, especially so since the assailants were prominent and venerated leaders of their
church; and, (c) at the time of the incident the Marcelo spouses and their children were lying very near each other because of the
very limited space of their shanty such that every perceived action could be seen, felt, or at least sensed, by all of them.
Accused-appellant is seeing ghosts where there is none. Contrary to his submission, it would be highly irregular indeed if the
prosecution witnesses failed to observe the events that transpired on that fateful night of 27 November 1997 and their statements
did not dovetail, at least on material points, despite very favorable conditions for a fairly accurate observation.1âwphi1.nêt
Neither should we ascribe importance, as the accused-appellant seems to suggest, to an apparent "inconsistency" by witness Jessie
Molina when she mentioned that the unwanted intrusion occurred shortly after she turned off the television set, contrary to her
earlier claim that barangay Capas was without electricity. Jessie Molina dispelled this obscurity when she clarified that the television
set was powered by Motolite battery which is in fact a common practice in unenergized "barrios," as the trial court would put
it,6 and Sitio Raniag, Barangay Capas did not still have electricity at that time.
Clearly, the straightforward and consistent narration of facts, as the trial court observed, by the three (3) prosecution witnesses,
especially Crispina Marcelo, a victim herself, immensely fortifies the conclusion that accused-appellant is guilty as charged.
Moreover, no impure motive on their part has been established by the defense to sully their truthfulness and erode their credibility.
Accused-appellant cannot insist on his alibi, especially so since he and his co-accused were positively identified by the prosecution
witnesses. More so when it is undisputed that the proximity of their place to the scene of the crimes did not preclude the possibility
that they were in fact present at the time of their commission.
On the third issue, accused-appellant decries the Decision of the court a quo in qualifying the crimes of murder and attempted
murder with illegal possession of firearm and at the same time convicting him for violation of PD 1866, as amended.
We agree. Although the prosecution duly established that the crime of illegal possession of firearm under PD 1866 was committed,
RA 8294, which took effect 7 July 1997, amended the decree and now considers the use of unlicensed firearm as a special
aggravating circumstance in murder and homicide, and not as a separate offense. 7
As it should be, possession and use of firearm without license should aggravate the crimes of murder and frustrated murder as
herein charged but, fortunately for accused-appellant, Secs. 8 and 9 of the Revised Rules on Criminal Procedure, which took effect 1
December 2000, now require the qualifying as well as aggravating circumstances to be expressly and specifically alleged in the
complaint or information, otherwise the same will not be considered by the court even if proved during the trial. Withal, in the
absence of any allegation in the Information in Crim. Case No. T-2057 that accused-appellant committed murder with the use of
unlicensed firearm, the same cannot be appreciated in imposing the proper penalty.
Moving now to the modifying circumstances raised under the fourth assigned error, accused-appellant points out that the trial court
grievously erred in appreciating unlicensed firearm, evident premeditation and nighttime which were alleged in the Informations in
Crim. Case No. T-2056 for frustrated murder and Crim. Case No. T-2057 for murder.
While we yield to the trial court's finding of treachery, we take exception to its view that evident premeditation and nighttime also
aggravated the offenses. Without doubt, treachery has been established by the prosecution evidence which showed that accused-
appellant Fernando Costales and his confederate Fernando Ramirez swiftly and unexpectedly barged into the Marcelo residence in
the middle of the night, shot Miguel Marcelo to death as well as his wife Crispina who almost lost her life, and sprayed a substance
which temporarily blinded the other occupants of the house. The suddenness of the attack gave the victims no opportunity
whatsoever to resist or parry the assault thereby ensuring the accomplishment of their dastardly deed without risk to themselves.
Since the attack on the victims was synchronal, sudden and unexpected, treachery must be properly appreciated.
We cannot however give our assent to the view that nighttime and evident premeditation accompanied the commission of the
crimes. The aggravating circumstance of nighttime is absorbed by treachery,8 while evident premeditation cannot be appreciated in
the absence of proof of the planning and preparation to kill or when the plan was conceived.9
The convergence of the wills of the two (2) executioners amply justifies the imputation that they acted in concert and in unity in
their unlawful objective when in the stillness of the night they both crashed into the Marcelo residence, strangulated the victim
Miguel, then one of them shot him in the head while the other sprayed tear gas on the other members of the family obviously to
disable them, and thereafter pumped a bullet at the horrified Crispina. This series of actions betrays a concerted design and
concurrence of sentiments to cause mayhem and murder. Accordingly, conspiracy was properly appreciated by the trial court.
Neither can we sympathize with accused-appellant's misplaced sentiment that he had been denied the mitigating circumstance of
voluntary surrender. As found by the trial court, his alleged surrender was made too late, and in a place too distant from the crime
site as well as his place of residence.10
We observe that the trial court awarded ₱250,000.00 to the heirs of the deceased on the justification that the same had been
stipulated upon by the parties. This is patently wrong. Award of damages is dictated, not by the agreement of the parties; worse, "in
a manner that suits them best,"11 but by the mandate of law and jurisprudence. Accordingly in conformity with established law and
jurisprudence, the award of ₱50,000.00 as civil indemnity and another ₱50,000.00 as moral damages should be awarded to the heirs
of the victim.
Pursuant to Art. 248 of The Revised Penal Code as amended by RA 7659, the penalty for murder is reclusion perpetua to death. There
being no modifying circumstances found in Crim. Case No. T-2057, and applying par. 2 of Art. 63 of the Code, the lesser penalty
of reclusion perpetua shall be imposed.
In Crim. Case No. T-2056, accused-appellant was charged by the trial court with frustrated murder but was convicted only for
attempted murder. In its Decision, the trial court explained that the failure of the prosecution to present a medical certificate or
competent testimonial evidence showing that Crispina would have died from her wound without medical intervention, justified the
accused's conviction for attempted murder only.
We call to mind People v. De La Cruz11a where this Court ruled that the crime committed for the shooting of the victim was
attempted murder and not frustrated murder for the reason that "his injuries, though no doubt serious, were not proved fatal such
that without timely medical intervention, they would have caused his death." In fact, as early as People v. Zaragosa,12 we enunciated
the doctrine that where there is nothing in the evidence to show that the wound would be fatal if not medically attended to, the
character of the wound is doubtful; hence, the doubt should be resolved in favor of the accused and the crime committed by him
may be declared as attempted, not frustrated murder. 1âwphi1.nêt
WHEREFORE, the assailed Decision finding accused-appellant Fernando "Ando" Costales guilty of murder and attempted murder
is AFFIRMED with the following MODIFICATION: In Crim. Case No. T-2057, the crime of murder not being considered to have been
attended by any generic mitigating or aggravating circumstances, accused-appellant Fernando "Ando" Costales is sentenced to suffer
only the penalty of reclusion perpetua. In Crim. Case No. T-2056, the crime of attempted murder not likewise considered to have
been attended by any generic mitigating or aggravating circumstances, accused-appellant Fernando "Ando" Costales is accordingly
sentenced in addition to his penalty imposed in Crim. Case No. T-2057 herein before mentioned, to suffer an indeterminate prison
term of two (2) years and four (4) months of prision correccional medium as minimum, to eight (8) years and six (6) months
of prision mayor minimum as maximum;
Accused-appellant Fernando "Ando" Costales is further ordered to pay the heirs of the victim Miguel Marcelo ₱50,000.00 as death
indemnity and another ₱50,000.00 as moral damages.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr.,
Sandoval-Gutierrez, and Carpio, JJ., concur.
G.R. No. L-12155 February 2, 1917
THE UNITED STATES, plaintiff-appellee,

vs.
PROTASIO EDUAVE, defendant-appellant.
Manuel Roxas for appellant.

Attorney-General Avanceña for appellee.
MORELAND, J.:
We believe that the accused is guilty of frustrated murder.
We are satisfied that there was an intent to kill in this case. A deadly weapon was used. The blow was directed toward a vital part of
the body. The aggressor stated his purpose to kill, thought he had killed, and threw the body into the bushes. When he gave himself
up he declared that he had killed the complainant.
There was alevosia to qualify the crime as murder if death had resulted. The accused rushed upon the girl suddenly and struck her
from behind, in part at least, with a sharp bolo, producing a frightful gash in the lumbar region and slightly to the side eight and one-
half inches long and two inches deep, severing all of the muscles and tissues of that part.
The motive of the crime was that the accused was incensed at the girl for the reason that she had theretofore charged him
criminally before the local officials with having raped her and with being the cause of her pregnancy. He was her
mother's querido and was living with her as such at the time the crime here charged was committed.
That the accused is guilty of some crime is not denied. The only question is the precise crime of which he should be convicted. It is
contended, in the first place, that, if death has resulted, the crime would not have been murder but homicide, and in the second
place, that it is attempted and not frustrated homicide.
As to the first contention, we are of the opinion that the crime committed would have been murder if the girl had been killed. It is
qualified by the circumstance of alevosia, the accused making a sudden attack upon his victim from the rear, or partly from the rear,
and dealing her a terrible blow in the back and side with his bolo. Such an attack necessitates the finding that it was made
treacherously; and that being so the crime would have been qualified as murder if death had resulted.
As to the second contention, we are of the opinion that the crime was frustrated and not attempted murder. Article 3 of the Penal
Code defines a frustrated felony as follows:
A felony is frustrated when the offender performs all the acts of execution which should produce the felony as a
consequence, but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
An attempted felony is defined thus:
There is an attempt when the offender commences the commission of the felony directly by overt acts, and does not
perform all the acts of execution which constitute the felony by reason of some cause or accident other than his own
voluntarily desistance.
The crime cannot be attempted murder. This is clear from the fact that the defendant performed all of the acts which should have
resulted in the consummated crime and voluntarily desisted from further acts. A crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from
performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender
must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has
performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has
performed all of the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it
can not be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment
when all of the acts have been performed which should result in the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is
stopped short of that point by some cause apart from his voluntary desistance.
To put it in another way, in case of an attempt the offender never passes the subjective phase of the offense. He is interrupted and
compelled to desist by the intervention of outside causes before the subjective phase is passed.
On the other hand, in case of frustrated crimes the subjective phase is completely passed. Subjectively the crime is complete.
Nothing interrupted the offender while he was passing through the subjective phase. The crime, however, is not consummated by
reason of the intervention of causes independent of the will of the offender. He did all that was necessary to commit the crime. If
the crime did not result as a consequence it was due to something beyond his control.
The subjective phase is that portion of the acts constituting the crime included between the act which begins the commission of the
crime and the last act performed by the offender which, with the prior acts, should result in the consummated crime. From that
time forward the phase is objective. It may also be said to be that period occupied by the acts of the offender over which he has
control — that period between the point where he begins and the points where he voluntarily desists. If between these two points
the offender is stopped by reason of any cause outside of his own voluntary desistance, the subjective phase has not been passed
and it is an attempt. If he is not so stopped but continues until he performs the last act, it is frustrated.
That the case before us is frustrated is clear.
The penalty should have been thirteen years of cadena temporal there being neither aggravating nor mitigating circumstance. As so
modified, the judgment is affirmed with costs. So ordered.
Torres and Araullo, JJ., concur.

Carson and Trent, JJ., concur in the result.
G.R. No. 165483 September 12, 2006
RUJJERIC Z. PALAGANAS,1 petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CHICO-NAZARIO, J.:
For what is a man, what has he got?

If not himself, then he has naught.
To say the things he truly feels;
And not the words of one who kneels.
The record shows I took the blows -
And did it my way!
The song evokes the bitterest passions. This is not the first time the song "My Way"2 has triggered violent behavior resulting in
people coming to blows. In the case at bar, the few lines of the song depicted what came to pass when the victims and the
aggressors tried to outdo each other in their rendition of the song.
In this Petition for Review on Certiorari3 under Rule 45 of the Revised Rules of Court, petitioner Rujjeric Z. Palaganas prays for the
reversal of the Decision of the Court of Appeals in CA-G.R. CR No. 22689 dated 30 September 2004,4 affirming with modification the
Decision of the Regional Trial Court (RTC), Branch 46, of Urdaneta, Pangasinan, in Criminal Cases No. U-9608, U-9609, and U-9610
and U-9634, dated 28 October 1998,5finding petitioner guilty beyond reasonable doubt of the crime of Homicide under Article 249
of the Revised Penal Code, and two (2) counts of Frustrated Homicide under Article 249 in relation to Articles 6 and 50 of the same
Code.
On 21 April 1998, petitioner and his older brother, Ferdinand Z. Palaganas (Ferdinand), were charged under four (4) separate
Informations6 for two (2) counts of Frustrated Murder, one (1) count of Murder, and one (1) count for Violation of COMELEC
Resolution No. 29587 relative to Article 22, Section 261, of the Omnibus Election Code,8allegedly committed as follows:
CRIMINAL CASE NO. U-9608
That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this
Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident
premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot SERVILLANO FERRER, JR. y
Juanatas, inflicting upon him "gunshot wound penetrating perforating abdomen, urinary bladder, rectum bullet sacral
region," the accused having thus performed all the acts of execution which would have produced the crime of Murder as a
consequence, but which nevertheless, did not produce it by reason of the causes independent of the will of the accused
and that is due to the timely medical assistance rendered to said Servillano J. Ferrer, Jr. which prevented his death, to his
damage and prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended.
premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot MICHAEL FERRER alias
"Boying Ferrer", inflicting upon him gunshot wound on the right shoulder, the accused having thus performed all the acts of
execution which would have produced the crime of murder as a consequence, but which nevertheless, did not produce it by
reason of the causes independent of the will of the accused and that is due to the medical assistance rendered to said
Michael "Boying" Ferrer which prevented his death, to his damage and prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended.
premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot MELTON FERRER alias
"TONY FERRER", inflicting upon him mortal gunshot wounds in the head and right thigh which caused the instantaneous
death of said Melton "Tony" Ferrer, to the damage and prejudice of his heirs.
CONTRARY to Art. 248 of the Revised Penal Code, as amended by R.A. 7659.
That on or about January 16, 1998 which is within the election period at Poblacion, Manaoag, Pangasinan, and within the
jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously bear
and carry one (1) caliber .38 without first securing the necessary permit/license to do the same.
CONTRARY to COMELEC RES. 2958 in relation with SEC. 261 of the OMNIBUS ELECTION CODE, as amended. 9 (Underscoring
supplied.)
When arraigned on separate dates,10 petitioner and Ferdinand entered separate pleas of "Not Guilty." Upon motion of
Ferdinand,11 the four cases were consolidated and were assigned to Branch 46 of the RTC in Urdaneta, Pangasinan. 12
The factual antecedents as viewed by the prosecution, are summarized in the Comment dated 18 April 2005 of the Office of the
Solicitor General,13 to wit:
On January 16, 1998, around 8:00 in the evening, brothers Servillano, [Melton] and Michael, all surnamed Ferrer were
having a drinking spree in their house because [Melton], who was already living in San Fernando, La Union, visited his three
brothers and mother at their house in Sitio Baloking, Poblacion, Manaoag, Pangasinan. At 9:45 in the evening, the three
brothers decided to proceed to Tidbits Videoke bar located at the corner of Malvar and Rizal Streets, Poblacion, Manaoag
to continue their drinking spree and to sing. Inside the karaoke bar, they were having a good time, singing and drinking
beer.
Thereafter, at 10:30 in the evening, Jaime Palaganas arrived together with Ferdinand Palaganas and Virgilio Bautista. At that
time, only the Ferrer brothers were the customers in the bar. The two groups occupied separate tables. Later, when Jaime
Palaganas was singing, [Melton] Ferrer sang along with him as he was familiar with the song [My Way]. Jaime however,
resented this and went near the table of the Ferrer brothers and said in Pangasinan dialect "As if you are tough guys." Jaime
further said "You are already insulting me inthat way." Then, Jaime struck Servillano Ferrer with the microphone, hitting the
back of his head. A rumble ensued between the Ferrer brothers on the one hand, and the Palaganases, on the other hand.
Virgilio Bautista did not join the fray as he left the place. During the rumble, Ferdinand went out of the bar. He was however
pursued by Michael. When Servillano saw Michael, he also went out and told the latter not to follow Ferdinand. Servillano
and Michael then went back inside the bar and continued their fight with Jaime.
Meantime, Edith Palaganas, sister of Jaime and the owner of the bar, arrived and pacified them. Servillano noticed that his
wristwatch was missing. Unable to locate the watch inside the bar, the Ferrer brothers went outside. They saw Ferdinand
about eight (8) meters away standing at Rizal Street. Ferdinand was pointing at them and said to his companion, later
identified as petitioner [Rujjeric] Palaganas, "Oraratan paltog mo lara", meaning "They are the ones, shoot them."
Petitioner then shot them hitting Servillano first at the left side of the abdomen, causing him to fall on the ground, and
followed by [Melton] who also fell to the ground. When Servillano noticed that [Melton] was no longer moving, he told
Michael "Bato, bato." Michael picked up some stones and threw them at petitioner and Ferdinand. The latter then left the
place. Afterwards, the police officers came and the Ferrer brothers were brought to the Manaoag Hospital and later to
Villaflor Hospital in Dagupan. Servillano later discovered that [Melton] was fatally hit in the head while Michael was hit in
the right shoulder.
On the other hand, the defense, in its Appellant's Brief dated 3 December 1999, 14 asserted the following set of facts:
On January 16, 1998, at around 11:00 in the evening, after a drinking session at their house, the brothers Melton (Tony),
Servillano (Junior) and Michael (Boying), all surnamed Ferrer, occupied a table inside the Tidbits Café and Videoke Bar and
started drinking and singing. About thirty minutes later, Jaime Palaganas along with his nephew Ferdinand (Apo) and friend
Virgilio Bautista arrived at the bar and occupied a table near that of the Ferrers'.
After the Ferrers' turn in singing, the microphone was handed over to Jaime Palaganas, who then started to sing. On his
third song [My Way], Jaime was joined in his singing by Tony Ferrer, who sang loudly and in an obviously mocking manner.
This infuriated Jaime, who then accosted Tony, saying, "You are already insulting us." The statement resulted in a free for all
fight between the Ferrers', on one hand, and the Palaganases on the other. Jaime was mauled and Ferdinand, was hit on
the face and was chased outside of the bar by Junior and Boying Ferrer.
Ferdinand then ran towards the house of the appellant Rujjeric Palaganas, his brother, and sought the help of the latter.
Rujjeric, stirred from his sleep by his brother's shouts, went out of his house and, noticing that the van of his uncle was in
front of the Tidbits Videoke Bar, proceeded to that place. Before reaching the bar, however, he was suddenly stoned by the
Ferrer brothers and was hit on different parts of his body, so he turned around and struggled to run towards his house. He
then met his brother, Ferdinand, going towards the bar, so he tugged him and urged him to run towards the opposite
direction as the Ferrer brothers continued pelting them with large stones. Rujjeric then noticed that Ferdinand was carrying
a gun, and, on instinct, grabbed the gun from the latter, faced the Ferrer brothers and fired one shot in the air to force the
brothers to retreat. Much to his surprise, however, the Ferrer brothers continued throwing stones and when (sic) the
appellant was again hit several times. Unable to bear the pain, he closed his eyes and pulled the trigger.
On 28 October 1998, the trial court rendered its Decision finding petitioner guilty only of the crime of Homicide and two (2) counts
of Frustrated Homicide.15 He was, however, acquitted of the charge of Violation of COMELEC Resolution No. 2958 in relation to
Section 261 of the Omnibus Election Code.16 On the other hand, Ferdinand was acquitted of all the charges against him. 17
In holding that petitioner is liable for the crimes of Homicide and Frustrated Homicide but not for Murder and Frustrated Murder,
the trial court explained that there was no conspiracy between petitioner and Ferdinand in killing Melton and wounding Servillano
and Michael.18 According to the trial court, the mere fact that Ferdinand "pointed" to where the Ferrer brothers were and uttered to
petitioner "Araratan, paltog mo lara!" (They are the ones, shoot them!), does not in itself connote common design or unity of
purpose to kill. It also took note of the fact that petitioner was never a participant in the rumble inside the Tidbits Cafe Videoke Bar
(videoke bar) on the night of 16 January 1998. He was merely called by Ferdinand to rescue their uncle, Jaime, who was being
assaulted by the Ferrer brothers. It further stated that the shooting was instantaneous and without any prior plan or agreement with
Ferdinand to execute the same. It found that petitioner is solely liable for killing Melton and for wounding Servillano and Michael,
and that Ferdinand is not criminally responsible for the act of petitioner.
Further, it declared that there was no treachery that will qualify the crimes as murder and frustrated murder since the Ferrer
brothers were given the chance to defend themselves during the shooting incident by stoning the petitioner and Ferdinand. 19 It
reasoned that the sudden and unexpected attack, without the slightest provocation on the part of the victims, was absent. In
addition, it ratiocinated that there was no evident premeditation as there was no sufficient period of time that lapsed from the point
where Ferdinand called the petitioner for help up to the point of the shooting of the Ferrer brothers. 20 Petitioner was sleeping at his
house at the time he heard Ferdinand calling him for help. Immediately, petitioner, still clad in pajama and sleeveless shirt, went out
of his room to meet Ferdinand. Thereafter, both petitioner and Ferdinand went to the videoke bar where they met the Ferrer
brothers and, shortly afterwards, the shooting ensued. In other words, according to the trial court, the sequence of the events are so
fast that it is improbable for the petitioner to have ample time and opportunity to then plan and organize the shooting.
Corollarily, it also stated that petitioner cannot successfully invoke self-defense since there was no actual or imminent danger to his
life at the time he and Ferdinand saw the Ferrer brothers outside the videoke bar. 21 It noted that when petitioner and Ferdinand saw
the Ferrer brothers outside the videoke bar, the latter were not carrying any weapon. Petitioner then was free to run or take cover
when the Ferrer brothers started pelting them with stones. Petitioner, however, opted to shoot the Ferrer brothers. It also stated
that the use by petitioner of a gun was not a reasonable means to prevent the attack of the Ferrer brothers since the latter were
only equipped with stones, and that the gun was deadlier compared to stones. Moreover, it also found that petitioner used an
unlicensed firearm in shooting the Ferrer brothers.22
As regards the Violation of COMELEC Resolution No. 2958, in relation to Section 261 of the Omnibus Election Code, the trial court
acquitted the petitioner of the offense as his use and possession of a gun was not for the purpose of disrupting election
activities.23 In conclusion, the trial court held:
WHEREFORE, JUDGMENT is hereby rendered as follows:

1. Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable doubt of the crime of
HOMICIDE (Not Murder) with the use of an unlicensed firearm. The penalty imposable is in its maximum period which is 20
years. The Court sentences [Rujjeric] Palaganas to suffer the penalty of Reclusion Temporal in its maximum period or 20
years of imprisonment; and to pay the heirs of [MELTON] Ferrer the sum of P7,791.50 as actual medical expenses of
[MELTON] Ferrer; P500,000.00 as moral damages representing unearned income of [MELTON]; P50,000.00 for the death of
[MELTON]; P50,000.00 for exemplary damages and P100,000.00 for burial and funeral expenses.
Ferdinand Palaganas is hereby ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to
prove the guilt of Ferdinand Palaganas beyond reasonable doubt.
FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of an unlicensed firearm, the Court sentences him to suffer
the penalty of Prision Mayor in its maximum period or 12 years of imprisonment and to pay Servillano Ferrer the sum
of P163,569.90 for his medical expenses and P50,000.00 for exemplary damages;
Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the
guilt of Ferdinand Palaganas beyond reasonable doubt.
FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of an unlicensed firearm, the Court sentences him to suffer
the penalty of Prision Mayor in its maximum period or 12 years of imprisonment; and to pay Michael Ferrer the sum
of P2,259.35 for his medical expenses and P50,000.00 for exemplary damages;
Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the
guilt of Ferdinand Palaganas beyond reasonable doubt.
Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena Ferrer, the mother of the Ferrer brothers, the amount
of P100,000.00 as attorney's fees in CRIM. CASES NOS. U-9608, U-9609, U-9610.
4. Under CRIM. CASE NO. U-9634, for failure of the prosecution to prove the guilt of [Rujjeric] Palaganas beyond reasonable
doubt of the crime of Violation of COMELEC Resolution No. 2958 in relation with Section 261 of the Omnibus Election Code,
the Court ACQUITS [RUJJERIC] PALAGANAS.24
Aggrieved, the petitioner appealed the foregoing Decision of the RTC dated 28 October 1998, before the Court of Appeals. In its
Decision dated 30 September 2004, the Court of Appeals affirmed with modifications the assailed RTC Decision. In modifying the
Decision of the trial court, the appellate court held that the mitigating circumstance of voluntary surrender under Article 13, No. 7,
of the Revised Penal Code should be appreciated in favor of petitioner since the latter, accompanied by his counsel, voluntarily
appeared before the trial court, even prior to its issuance of a warrant of arrest against him.25 It also stated that the Indeterminate
Sentence Law should be applied in imposing the penalty upon the petitioner.26 The dispositive portion of the Court of Appeals'
Decision reads:
WHEREFORE, the judgment of conviction is hereby AFFIRMED, subject to the MODIFICATION that the penalty to be
imposed for the crimes which the appellant committed are as follows:
(1) For Homicide (under Criminal Case No. U-9610), the appellant is ordered to suffer imprisonment of ten (10) years
of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum. Appellant is
also ordered to pay the heirs of Melton Ferrer civil indemnity in the amount of P50,000.00, moral damages in the amount
of P50,000.00 without need of proof and actual damages in the amount of P43,556.00.
(2) For Frustrated Homicide (under Criminal Case No. U-9609), the appellant is hereby ordered to suffer imprisonment of
four (4) years and two (2) months of prision correcional as minimum to ten (10) years of prision mayor as maximum.
Appellant is also ordered to pay Michael Ferrer actual damages in the amount of P2,259.35 and moral damages in the
amount of P30,000.00.
(3) For Frustrated Homicide (under Criminal Case No. U-9608), the appellant is hereby penalized with imprisonment of four
(4) years and two (2) months of prision correcional as minimum to ten (10) years of prision mayor as maximum. Appellant is
also ordered to pay Servillano Ferrer actual damages in the amount of P163,569.90 and moral damages in the amount
of P30,000.00.27
On 16 November 2004, petitioner lodged the instant Petition for Review before this Court on the basis of the following arguments:
I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF CONVICTION OF THE TRIAL COURT.
II.
THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING ACCUSED-APPELLANT ON THE GROUND OF LAWFUL SELF-
DEFENSE.28
Anent the first issue, petitioner argued that all the elements of a valid self-defense are present in the instant case and, thus, his
acquittal on all the charges is proper; that when he fired his gun on that fateful night, he was then a victim of an unlawful aggression
perpetrated by the Ferrer brothers; that he, in fact, sustained an injury in his left leg and left shoulder caused by the stones thrown
by the Ferrer brothers; that the appellate court failed to consider a material evidence described as "Exhibit O"; that "Exhibit O"
should have been given due weight since it shows that there was slug embedded on the sawali wall near the sign "Tidbits Café and
Videoke Bar"; that the height from which the slug was taken was about seven feet from the ground; that if it was true that petitioner
and Ferdinand were waiting for the Ferrer brothers outside the videoke bar in order to shoot them, then the trajectory of the bullets
would have been either straight or downward and not upward considering that the petitioner and the Ferrer brothers were about
the same height (5'6"-5'8"); that the slug found on the wall was, in fact, the "warning shot" fired by the petitioner; and, that if this
exhibit was properly appreciated by the trial court, petitioner would be acquitted of all the charges.29
Moreover, petitioner contended that the warning shot proved that that the Ferrer brothers were the unlawful aggressors since
there would have been no occasion for the petitioner to fire a warning shot if the Ferrer brothers did not stone him; that the
testimony of Michael in the trial court proved that it was the Ferrer brothers who provoked petitioner to shoot them; and that the
Ferrer brothers pelted them with stones even after the "warning shot." 30
Petitioner's contention must fail.
Article 11, paragraph (1), of the Revised Penal Code provides for the elements and/or requisites in order that a plea of self-defense
may be validly considered in absolving a person from criminal liability, viz:
ART. 11. Justifying circumstances. – The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself. x x x.
As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat thereof in an imminent and immediate
manner, which places the defendant's life in actual peril.31 It is an act positively strong showing the wrongful intent of the aggressor
and not merely a threatening or intimidating attitude. 32 It is also described as a sudden and unprovoked attack of immediate and
imminent kind to the life, safety or rights of the person attacked. 33
There is an unlawful aggression on the part of the victim when he puts in actual or imminent peril the life, limb, or right of the
person invoking self-defense. There must be actual physical force or actual use of weapon. 34 In order to constitute unlawful
aggression, the person attacked must be confronted by a real threat on his life and limb; and the peril sought to be avoided is
imminent and actual, not merely imaginary.35
In the case at bar, it is clear that there was no unlawful aggression on the part of the Ferrer brothers that justified the act of
petitioner in shooting them. There were no actual or imminent danger to the lives of petitioner and Ferdinand when they proceeded
and arrived at the videoke bar and saw thereat the Ferrer brothers. It appears that the Ferrer brothers then were merely standing
outside the videoke bar and were not carrying any weapon when the petitioner arrived with his brother Ferdinand and started firing
his gun.36
Assuming, arguendo, that the Ferrer brothers had provoked the petitioner to shoot them by pelting the latter with stones, the
shooting of the Ferrer brothers is still unjustified. When the Ferrer brothers started throwing stones, petitioner was not in a state of
actual or imminent danger considering the wide distance (4-5 meters) of the latter from the location of the former.37 Petitioner was
not cornered nor trapped in a specific area such that he had no way out, nor was his back against the wall. He was still capable of
avoiding the stones by running away or by taking cover. He could have also called or proceeded to the proper authorities for help.
Indeed, petitioner had several options in avoiding dangers to his life other than confronting the Ferrer brothers with a gun.
The fact that petitioner sustained injuries in his left leg and left shoulder, allegedly caused by the stones thrown by the Ferrer
brothers, does not signify that he was a victim of unlawful aggression or that he acted in self-defense.38There is no evidence to show
that his wounds were so serious and severe. The superficiality of the injuries sustained by the petitioner is no indication that his life
and limb were in actual peril.39
Petitioner's assertion that, despite the fact that he fired a warning shot, the Ferrer brothers continued to pelt him with stones, 40 will
not matter exonerate him from criminal liability. Firing a warning shot was not the last and only option he had in order to avoid the
stones thrown by the Ferrer brothers. As stated earlier, he could have run away, or taken cover, or proceeded to the proper
authorities for help. Petitioner, however, opted to shoot the Ferrer brothers.
It is significant to note that the shooting resulted in the death of Melton, and wounding of Servillano and Michael. With regard to
Melton, a bullet hit his right thigh, and another bullet hit his head which caused his instant death. 41 As regards Servillano, a bullet
penetrated two of his vital organs, namely, the large intestine and urinary bladder. 42 He underwent two (2) surgeries in order to
survive and fully recover.43 Michael, on the other hand, sustained a gunshot wound on the right shoulder.44 It must also be noted
that the Ferrer brothers were shot near the videoke bar, which contradict petitioner's claim he was chased by the Ferrer brothers.
Given the foregoing circumstances, it is difficult to believe that the Ferrer brothers were the unlawful aggressors. As correctly
observed by the prosecution, if the petitioner shot the Ferrer brothers just to defend himself, it defies reason why he had to shoot
the victims at the vital portions of their body, which even led to the death of Melton who was shot at his head. 45 It is an oft-repeated
rule that the nature and number of wounds inflicted by the accused are constantly and unremittingly considered
important indicia to disprove a plea of self-defense.46
Let it not be forgotten that unlawful aggression is a primordial element in self-defense.47 It is an essential and indispensable
requisite, for without unlawful aggression on the part of the victim, there can be, in a jural sense, no complete or incomplete self-
defense.48 Without unlawful aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot and will
not be appreciated, even if the other elements are present. 49 To our mind, unlawful aggression, as an element of self-defense, is
wanting in the instant case.
The second element of self-defense requires that the means employed by the person defending himself must be reasonably
necessary to prevent or repel the unlawful aggression of the victim. The reasonableness of the means employed may take into
account the weapons, the physical condition of the parties and other circumstances showing that there is a rational equivalence
between the means of attack and the defense. 50 In the case at bar, the petitioner's act of shooting the Ferrer brothers was not a
reasonable and necessary means of repelling the aggression allegedly initiated by the Ferrer brothers. As aptly stated by the trial
court, petitioner's gun was far deadlier compared to the stones thrown by the Ferrer brothers. 51
Moreover, we stated earlier that when the Ferrer brothers allegedly threw stones at the petitioner, the latter had other less harmful
options than to shoot the Ferrer brothers. Such act failed to pass the test of reasonableness of the means employed in preventing or
repelling an unlawful aggression.
With regard to the second issue, petitioner asserts that the Court of Appeals erred in not acquitting him on the ground of lawful self-
defense.
Petitioner's argument is bereft of merit.

In resolving criminal cases where the accused invokes self-defense to escape criminal liability, this Court consistently held that where
an accused admits killing the victim but invokes self-defense, it is incumbent upon the accused to prove by clear and convincing
evidence that he acted in self-defense.52 As the burden of evidence is shifted on the accused to prove all the elements of self-
defense, he must rely on the strength of his own evidence and not on the weakness of the prosecution.53
As we have already found, there was no unlawful aggression on the part of the Ferrer brothers which justified the act of petitioner in
shooting them. We also ruled that even if the Ferrer brothers provoked the petitioner to shoot them, the latter's use of a gun was
not a reasonable means of repelling the act of the Ferrer brothers in throwing stones. It must also be emphasized at this point that
both the trial court and the appellate court found that petitioner failed to established by clear and convincing evidence his plea of
self-defense. In this regard, it is settled that when the trial court's findings have been affirmed by the appellate court, said findings
are generally conclusive and binding upon this Court. 54 In the present case, we find no compelling reason to deviate from their
findings. Verily, petitioner failed to prove by clear and convincing evidence that he is entitled to an acquittal on the ground of lawful
self-defense.
On another point, while we agree with the trial court and the Court of Appeals that petitioner is guilty of the crime of Homicide for
the death of Melton in Criminal Case No. U-9610, and Frustrated Homicide for the serious injuries sustained by Servillano in Criminal
Case No. U-9608, we do not, however, concur in their ruling that petitioner is guilty of the crime of Frustrated Homicide as regards
to Michael in Criminal Case No. U-9609. We hold that petitioner therein is guilty only of the crime of Attempted Homicide.
Article 6 of the Revised Penal Code states and defines the stages of a felony in the following manner:
ART. 6. Consummated, frustrated, and attempted felonies. – Consummated felonies, as well as those which are frustrated
and attempted, are punishable.
A felony is consummated when all the elements necessary for the for its execution and accomplishment are present; and it
is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but
which, nevertheless, do not produce it by reason or causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform
all the acts of execution which should produce the felony by reason of some cause or accident other than his own
spontaneous desistance (italics supplied).
Based on the foregoing provision, the distinctions between frustrated and attempted felony are summarized as follows:
1.) In frustrated felony, the offender has performed all the acts of execution which should produce the felony as a
consequence; whereas in attempted felony, the offender merely commences the commission of a felony directly by overt
acts and does not perform all the acts of execution.
2.) In frustrated felony, the reason for the non-accomplishment of the crime is some cause independent of the will of the
perpetrator; on the other hand, in attempted felony, the reason for the non-fulfillment of the crime is a cause or accident
other than the offender's own spontaneous desistance.
In addition to these distinctions, we have ruled in several cases that when the accused intended to kill his victim, as manifested by
his use of a deadly weapon in his assault, and his victim sustained fatal or mortal wound/s but did not die because of timely medical
assistance, the crime committed is frustrated murder or frustrated homicide depending on whether or not any of the qualifying
circumstances under Article 249 of the Revised Penal Code are present. 55 However, if the wound/s sustained by the victim in such a
case were not fatal or mortal, then the crime committed is only attempted murder or attempted homicide. 56 If there was no intent
to kill on the part of the accused and the wound/s sustained by the victim were not fatal, the crime committed may be serious, less
serious or slight physical injury.57
Based on the medical certificate of Michael, as well as the testimony of the physician who diagnosed and treated Michael, the latter
was admitted and treated at the Dagupan Doctors-Villaflor Memorial Hospital for a single gunshot wound in his right shoulder
caused by the shooting of petitioner.58 It was also stated in his medical certificate that he was discharged on the same day he was
admitted and that the treatment duration for such wound would be for six to eight days only. 59 Given these set of undisputed facts,
it is clear that the gunshot wound sustained by Michael in his right shoulder was not fatal or mortal since the treatment period for
his wound was short and he was discharged from the hospital on the same day he was admitted therein. Therefore, petitioner is
liable only for the crime of attempted homicide as regards Michael in Criminal Case No. U-9609.
With regard to the appreciation of the aggravating circumstance of use of an unlicensed firearm, we agree with the trial court and
the appellate court that the same must be applied against petitioner in the instant case since the same was alleged in the
informations filed against him before the RTC and proven during the trial. However, such must be considered as a special
aggravating circumstance, and not a generic aggravating circumstance.
Generic aggravating circumstances are those that generally apply to all crimes such as those mentioned in Article 14, paragraphs No.
1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has the effect of increasing the penalty for the crime to its
maximum period, but it cannot increase the same to the next higher degree. It must always be alleged and charged in the
information, and must be proven during the trial in order to be appreciated. 60 Moreover, it can be offset by an ordinary mitigating
circumstance.
On the other hand, special aggravating circumstances are those which arise under special conditions to increase the penalty for the
offense to its maximum period, but the same cannot increase the penalty to the next higher degree. Examples are quasi-recidivism
under Article 160 and complex crimes under Article 48 of the Revised Penal Code. It does not change the character of the offense
charged.61 It must always be alleged and charged in the information, and must be proven during the trial in order to be
appreciated.62 Moreover, it cannot be offset by an ordinary mitigating circumstance.
It is clear from the foregoing that the meaning and effect of generic and special aggravating circumstances are exactly the same
except that in case of generic aggravating, the same CAN be offset by an ordinary mitigating circumstance whereas in the case of
special aggravating circumstance, it CANNOT be offset by an ordinary mitigating circumstance.
Aside from the aggravating circumstances abovementioned, there is also an aggravating circumstance provided for under
Presidential Decree No. 1866,63 as amended by Republic Act No. 8294,64 which is a special law. Its pertinent provision states:
If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance.
In interpreting the same provision, the trial court reasoned that such provision is "silent as to whether it is generic or
qualifying."65 Thus, it ruled that "when the law is silent, the same must be interpreted in favor of the accused." 66Since a generic
aggravating circumstance is more favorable to petitioner compared to a qualifying aggravating circumstance, as the latter changes
the nature of the crime and increase the penalty thereof by degrees, the trial court proceeded to declare that the use of an
unlicensed firearm by the petitioner is to be considered only as a generic aggravating circumstance. 67 This interpretation is
erroneous since we already held in several cases that with the passage of Republic Act. No. 8294 on 6 June 1997, the use of an
unlicensed firearm in murder or homicide is now considered as a SPECIAL aggravating circumstance and not a generic aggravating
circumstance.68 Republic Act No. 8294 applies to the instant case since it took effect before the commission of the crimes in 21 April
1998. Therefore, the use of an unlicensed firearm by the petitioner in the instant case should be designated and appreciated as a
SPECIAL aggravating circumstance and not merely a generic aggravating circumstance.
As was previously established, a special aggravating circumstance cannot be offset by an ordinary mitigating circumstance. Voluntary
surrender of petitioner in this case is merely an ordinary mitigating circumstance. Thus, it cannot offset the special aggravating
circumstance of use of unlicensed firearm. In accordance with Article 64, paragraph 3 of the Revised Penal Code, the penalty
imposable on petitioner should be in its maximum period.69
As regards the civil liability of petitioner, we deem it necessary to modify the award of damages given by both courts.
In Criminal Case No. U-9610 for Homicide, we agree with both courts that the proper amount of civil indemnity is P50,000.00, and
that the proper amount for moral damages is P50,000.00 pursuant to prevailing jurisprudence.70However, based on the receipts for
hospital, medicine, funeral and burial expenses on record, and upon computation of the same, the proper amount of actual
damages should be P42,374.18, instead of P43,556.00. Actual damages for loss of earning capacity cannot be awarded in this case
since there was no documentary evidence to substantiate the same. 71 Although there may be exceptions to this rule, 72 none is
availing in the present case. Nevertheless, since loss was actually established in this case, temperate damages in the amount
of P25,000.00 may be awarded to the heirs of Melton Ferrer. Under Article 2224 of the New Civil Code, temperate or moderate
damages may be recovered when the court finds that some pecuniary loss was suffered but its amount cannot be proved with
certainty. Moreover, exemplary damages should be awarded in this case since the presence of special aggravating circumstance of
use of unlicensed firearm was already established. 73 Based on prevailing jurisprudence, the award of exemplary damages for
homicide is P25,000.00.74
In Criminal Cases No. U-9608 and U-9609, we agree with both courts as to the award of actual damages and its corresponding
amount since the same is supported by documentary proof therein. The award of moral damages is also consistent with prevailing
jurisprudence. However, exemplary damages should be awarded in this case since the presence of special aggravating circumstance
of use of unlicensed firearm was already established. Based on prevailing jurisprudence, the award of exemplary damages for both
the attempted and frustrated homicide shall be P25,000.00 for each.
WHEREFORE, premises considered, the decision of the Court of Appeals dated 30 September 2004 is hereby AFFIRMED with the
following MODIFICATIONS:
(1) In Criminal Case No. U-9609, the petitioner is found guilty of the crime of attempted homicide. The penalty imposable on the
petitioner is prision correccional under Article 51 of the Revised Penal Code.75 There being a special aggravating circumstance of the
use of an unlicensed firearm and applying the Indeterminate Sentence of Law, the penalty now becomes four (4) years and two (2)
months of arresto mayor as minimum period to six (6) years of prision correccional as maximum period. As regards the civil liability
of petitioner, the latter is hereby ordered to pay Michael Ferrer exemplary damages in the amount of P25,000.00 in addition to the
actual damages and moral damages awarded by the Court of Appeals.
(2) In Criminal Case No. U-9608, the penalty imposable on the petitioner for the frustrated homicide is prision mayorunder Article 50
of the Revised Penal Code.76 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the
Indeterminate Sentence Law, the penalty now becomes six (6) years of prision correccional as minimum period to twelve (12) years
of prision mayor as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Servillano Ferrer
exemplary damages in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of
Appeals.
(3) In Criminal Case No. U-9610, the penalty imposable on petitioner for the homicide is reclusion temporal under Article 249 of the
Revised Penal Code.77 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the
Indeterminate Sentence Law, the penalty now is twelve (12) years of prision mayor as minimum period to twenty (20) years
of reclusion temporal as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Melton Ferrer
exemplary damages in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of
Appeals. The actual damages likewise awarded by the Court of Appeals is hereby reduced to P42,374.18.
SO ORDERED.
Panganiban, C.J., Chairperson, Ynares-Santiago, Austria-Martinez, Callejo, Sr., J.J., concur.

G.R. No. L-26298 January 20, 1927
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
JULIAN ERINIA Y VINOLLA, defendant-appellant.
Hermogenes Caluag for appellant.

Attorney-General Jaranilla for appellee.
OSTRAND, J.:
This is an appeal from a judgment of the Court of First Instance of Manila finding the defendant guilty of the crime of consummated
rape and sentencing him to suffer seventeen years, four months and one day of reclusion temporal, with the accessory penalties
provided by law and to pay the costs.
The victim of the crime was a child of 3 years and 11 months old and the evidence is conclusive that the defendant endeavored to
have carnal intercourse with her, but there may be some doubt whether he succeeded in penetrating the vagina before being
disturbed by the timely intervention of the mother and the sister of the child. The physician who examined the genital organ of the
child a few hours after the commission of the crime found a slight inflammation of the exterior parts of the organ, indicating that an
effort had been made to enter the vagina, but in testifying before the court he expressed doubts as to whether the entry had been
effected. The mother of the child testified that she found its genital organ covered with a sticky substance, but that cannot be
considered conclusive evidence of penetration.
It has been suggested that the child was of such tender age that penetration was impossible; that the crime of rape consequently
was impossible of consummation; and that, therefore, the offense committed should be treated only as abusos deshonestos. We do
not think so. It is probably true that a complete penetration was impossible, but such penetration is not essential to the commission
of the crime; it is sufficient if there is a penetration of the labia. In the case of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L.
R. A., 316) where the offended party was a child of the age of 3 years and 8 months the testimony of several physicians was to the
effect that her labia of the privates of a child of that age can be entered by a man's male organ to the hymen and the defendant was
found guilty of the consummated crime rape.
There being no conclusive evidence of penetration of the genital organ of the offended party, the defendant is entitled to the
benefit of the doubt and can only be found guilty of frustrated rape, but in view of the fact that he was living in the house of the
parents of the child as their guest, the aggravating circumstance of abuse of confidence existed and the penalty must therefore be
imposed in its maximum degree.
The judgment appealed from is modified and the defendant-appellant is hereby found guilty of the crime of frustrated rape and is
sentenced to suffer twelve years of prision mayor, with the accessory penalties prescribed by law, and with the costs in both
instances. So ordered.
Johnson, Street, Villamor, Romualdez and Villa-Real, JJ., concur.
Separate Opinions
MALCOLM, J., dissenting:
In my opinion, the accused is guilty of raping a child 3 years and 11 months of age. It is consummated rape according to the evidence
of record, the findings of the trial judge, and our decisions. (People vs. Hernandez [1925], 49 Phil., 980; People vs. Oscar [1925], 48
Phil., 527.) The instant case is on all fours with the case of Kenney vs. State (65 L. R. A., 316), cited in the majority decision. In the
Kenny case, the penalty was death, and here for this horrible crime, should be placed in the maximum degree or seventeen years,
four months, and one day imprisonment, as imposed by the trial court. Accordingly, my vote is for affirmance of the judgment.
G.R. No. 88724 April 3, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.

C. Manalo for defendant-appellant.
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-031-B before the Regional Trial
Court, Branch II, Borongan, Eastern Samar. The information filed in the said case reads as follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the offended party, accuses CEILITO
ORITA alias LITO of the crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at Victoria St., Poblacion, Borongan,
Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, above named accused with lewd designs and
by the use of a Batangas knife he conveniently provided himself for the purpose and with threats and intimidation, did,
then and there wilfully, unlawfully and feloniously lay with and succeeded in having sexual intercourse with Cristina S.
Abayan against her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the witnesses for the People testified
and the exhibits were formally offered and admitted, the prosecution rested its case. Thereafter, the defense opted not to present
any exculpatory evidence and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the
dispositive portion of which reads (pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @ LITO, of the crime of Frustrated Rape
(Art. 335, RPC), beyond reasonable doubt, with the aggravating circumstances of dwelling and nightime (sic) with no
mitigating circumstance to offset the same, and considering the provisions of the Indeterminate Sentence Law, imposes on
accused an imprisonment of TEN (10) YEARS and ONE (1) DAY,PRISION MAYOR, as minimum to TWELVE (12) YEARS PRISION
MAYOR, maximum; to indemnify CRISTINA S. ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without subsidiary
imprisonment in case of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29, 1988, the Court of Appeals rendered
its decision, the dispositive portion of which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty of the crime of rape, and
consequently, sentenced to suffer imprisonment of reclusion perpetua and to indemnify the victim in the amount of
P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988 decision and forwarded the case
to this Court, considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg. 129 in conjunction with Section 17,
paragraph 3, subparagraph 1 of the Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's College at Borongan, Eastern Samar.
Appellant was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her boarding house. Her classmates had just brought her
home from a party (p. 44, tsn, May 23, 1984). Shortly after her classmates had left, she knocked at the door of her boarding
house (p. 5, ibid). All of a sudden, somebody held her and poked a knife to her neck. She then recognized appellant who
was a frequent visitor of another boarder (pp. 8-9, ibid).
She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door which led to the first floor
was locked from the inside, appellant forced complainant to use the back door leading to the second floor (p. 77, ibid). With
his left arm wrapped around her neck and his right hand poking a "balisong" to her neck, appellant dragged complainant up
the stairs (p. 14, ibid). When they reached the second floor, he commanded her to look for a room. With the Batangas knife
still poked to her neck, they entered complainant's room.
Upon entering the room, appellant pushed complainant who hit her head on the wall. With one hand holding the knife,
appellant undressed himself. He then ordered complainant to take off her clothes. Scared, she took off her T-shirt. Then he
pulled off her bra, pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her. He made her hold his penis and insert it in her vagina. She
followed his order as he continued to poke the knife to her. At said position, however, appellant could not fully penetrate
her. Only a portion of his penis entered her as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount him. In this position, only a small part again of his penis
was inserted into her vagina. At this stage, appellant had both his hands flat on the floor. Complainant thought of escaping
(p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant pursued her and climbed the partition. When she saw him
inside the room, she ran to another room. Appellant again chased her. She fled to another room and jumped out through a
window (p. 27, ibid).
Still naked, she darted to the municipal building, which was about eighteen meters in front of the boarding house, and
knocked on the door. When there was no answer, she ran around the building and knocked on the back door. When the
policemen who were inside the building opened the door, they found complainant naked sitting on the stairs crying. Pat.
Donceras, the first policeman to see her, took off his jacket and wrapped it around her. When they discovered what
happened, Pat. Donceras and two other policemen rushed to the boarding house. They heard a sound at the second floor
and saw somebody running away. Due to darkness, they failed to apprehend appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where she was physically
examined.
Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical Certificate (Exhibit "A") which
states:
Physical Examination — Patient is fairly built, came in with loose clothing with no under-clothes; appears in state of
shock, per unambulatory.
PE Findings — Pertinent Findings only.
Neck- — Circumscribed hematoma at Ant. neck.
Breast — Well developed, conical in shape with prominent nipples; linear abrasions below (L) breast.
Back — Multiple pinpoint marks.
Extremities — Abrasions at (R) and (L) knees.

Vulva — No visible abrasions or marks at the perineal area or over the vulva, errythematous (sic) areas noted
surrounding vaginal orifice, tender, hymen intact; no laceration fresh and old noted; examining finger can barely
enter and with difficulty; vaginal canal tight; no discharges noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable and vital inconsistencies and its
incredibility amounting to fabrication and therefore casted doubt to its candor, truth and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which are not sufficient to blur or
cast doubt on the witnesses' straightforward attestations. Far from being badges of fabrication, the inconsistencies in their
testimonies may in fact be justifiably considered as manifestations of truthfulness on material points. These little deviations also
confirm that the witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but such honest
lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA 98). Rather
than discredit the testimonies of the prosecution witnesses, discrepancies on minor details must be viewed as adding credence and
veracity to such spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16, 1988, 158 SCRA
695). As a matter of fact, complete uniformity in details would be a strong indication of untruthfulness and lack of spontaneity
(People v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves a little
discussion which is, the testimony of the victim that the accused asked her to hold and guide his penis in order to have carnal
knowledge of her. According to the accused, this is strange because "this is the only case where an aggressor's advances is being
helped-out by the victim in order that there will be a consumation of the act." (p. 34, Rollo). The allegation would have been
meritorious had the testimony of the victim ended there. The victim testified further that the accused was holding a Batangas knife
during the aggression. This is a material part of the victim's testimony which the accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court on the credibility of
witnesses should be accorded the highest respect because it has the advantage of observing the demeanor of witnesses and can
discern if a witness is telling the truth (People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's
finding regarding the testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is not much to be desired as to the sincerity of the
offended party in her testimony before the court. Her answer to every question profounded (sic), under all circumstances,
are plain and straightforward. To the Court she was a picture of supplication hungry and thirsty for the immediate
vindication of the affront to her honor. It is inculcated into the mind of the Court that the accused had wronged her; had
traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape was committed provided
her testimony is clear and free from contradiction and her sincerity and candor, free from suspicion (People v Alfonso, G.R. No.
72573, August 31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R.
No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that she was raped but she testified
convincingly on how the rape was committed. The victim's testimony from the time she knocked on the door of the municipal
building up to the time she was brought to the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in
the medical certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude) declared that the
abrasions in the left and right knees, linear abrasions below the left breast, multiple pinpoint marks, circumscribed hematoma at the
anterior neck, erythematous area surrounding the vaginal orifice and tender vulva, are conclusive proof of struggle against force and
violence exerted on the victim (pp. 52-53, Rollo). The trial court even inspected the boarding house and was fully satisfied that the
narration of the scene of the incident and the conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe enough to carry the weight of both accused and
offended party without the slightest difficulty, even in the manner as narrated. The partitions of every room were of strong
materials, securedly nailed, and would not give way even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al., G.R. No. L-48731, December
21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony (opening) to the ground which was correctly estimated
to be less than eight (8) meters, will perhaps occasion no injury to a frightened individual being pursued. Common
experience will tell us that in occasion of conflagration especially occuring (sic) in high buildings, many have been saved by
jumping from some considerable heights without being injured. How much more for a frightened barrio girl, like the
offended party to whom honor appears to be more valuable than her life or limbs? Besides, the exposure of her private
parts when she sought assistance from authorities, as corroborated, is enough indication that something not ordinary
happened to her unless she is mentally deranged. Sadly, nothing was adduced to show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is her having been rendered entirely naked by appellant and that
even in her nudity, she had to run away from the latter and managed to gain sanctuary in a house owned by spouses hardly
known to her. All these acts she would not have done nor would these facts have occurred unless she was sexually
assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present other witnesses to corroborate the allegations in the complaint
and the non-presentation of the medico-legal officer who actually examined the victim. Suffice it to say that it is up to the
prosecution to determine who should be presented as witnesses on the basis of its own assessment of their necessity (Tugbang v.
Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for the non-
presentation of the medico-legal officer who actually examined the victim, the trial court stated that it was by agreement of the
parties that another physician testified inasmuch as the medico-legal officer was no longer available. The accused did not bother to
contradict this statement.
Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on its face. Some were not even
substantiated and do not, therefore, merit consideration. We are convinced that the accused is guilty of rape. However, We believe
the subject matter that really calls for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial
court was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim and thus convicted the
accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor General shares the same view.
Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:
Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman under any of the
following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious and
3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next
preceding paragraphs shall be present.
xxx xxx xxx
Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman (Black's Law Dictionary. Fifth
Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well as those which are frustrated
and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is
frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but
which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform
all the acts of execution which should produce the felony by reason of some cause or accident other than his own
spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted and consummated stages apply to the crime of
rape.1âwphi1 Our concern now is whether or not the frustrated stage applies to the crime of rape.
The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which would produce the
felony and (2) that the felony is not produced due to causes independent of the perpetrator's will. In the leading case of United
States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a distinction between attempted and frustrated felonies which is readily
understood even by law students:
. . . A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts,
is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. In
other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which
intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the
crime as a consequence, which acts it is his intention to perform. If he has performed all of the acts which should result in
the consummation of the crime and voluntarily desists from proceeding further, it can not be an attempt. The essential
element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or
extraneous cause or agency between the beginning of the commission of the crime and the moment when all of the acts
have been performed which should result in the consummated crime; while in the former there is such intervention and the
offender does not arrive at the point of performing all of the acts which should produce the crime. He is stopped short of
that point by some cause apart from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually attains his purpose and,
from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the
offender, because he has performed the last act necessary to produce the crime.Thus, the felony is consummated. In a long line of
cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA
666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of
rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or
lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily,
rape is attempted if there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694;
United States v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The offender merely commenced the
commission of a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the crime of rape
and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People v. Eriña 50 Phil. 998 [1927] where We found the
offender guilty of frustrated rape there being no conclusive evidence of penetration of the genital organ of the offended party.
However, it appears that this is a "stray" decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We
are aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic
Act No. 4111 (dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death when the rape is
attempted or frustrated and a homicide is committed by reason or on the occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead provision. The Eriña case, supra, might have prompted the law-making body to
include the crime of frustrated rape in the amendments introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the trial court relied on the
testimony of Dr. Zamora when he "categorically declared that the findings in the vulva does not give a concrete disclosure of
penetration. As a matter of fact, he tossed back to the offended party the answer as to whether or not there actually was
penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora and
the equivocal declaration of the latter of uncertainty whether there was penetration or not. It is true, and the Court is not
oblivious, that conviction for rape could proceed from the uncorroborated testimony of the offended party and that a
medical certificate is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the people
relied upon cannot be applicable to the instant case. The testimony of the offended party is at variance with the medical
certificate. As such, a very disturbing doubt has surfaced in the mind of the court. It should be stressed that in cases of rape
where there is a positive testimony and a medical certificate, both should in all respect, compliment each other, for
otherwise to rely on the testimony alone in utter disregard of the manifest variance in the medical certificate, would be
productive of mischievous results.
The alleged variance between the testimony of the victim and the medical certificate does not exist. On the contrary, it is stated in
the medical certificate that the vulva was erythematous (which means marked by abnormal redness of the skin due to capillary
congestion, as in inflammation) and tender. It bears emphasis that Dr. Zamora did not rule out penetration of the genital organ of
the victim. He merely testified that there was uncertainty whether or not there was penetration. Anent this testimony, the victim
positively testified that there was penetration, even if only partially (pp. 302, 304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx xxx xxx
Q What do you mean when you said comply, or what act do you referred (sic) to, when you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the victim's testimony if credible
(People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138
SCRA 569; People v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely
corroborative and is not an indispensable element in the prosecution of this case (People v. Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused because after a thorough
review of the records, We find the evidence sufficient to prove his guilt beyond reasonable doubt of the crime of consummated
rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is committed with the use of a deadly
weapon, the penalty shall be reclusion perpetua to death. The trial court appreciated the aggravating circumstances of dwelling and
nighttime. Thus, the proper imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution and
Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited Constitutional provision did not declare
the abolition of the death penalty but merely prohibits the imposition of the death penalty, the Court has since February 2, 1987 not
imposed the death penalty whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion
perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua, being a single indivisible penalty under
Article 335, paragraph 3, is imposed regardless of any mitigating or aggravating circumstances (in relation to Article 63, paragraph 1,
Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449,
November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito Orita is hereby found guilty beyond
reasonable doubt of the crime of rape and sentenced to reclusion perpetua as well as to indemnify the victim in the amount of
P30,000.00.
SO ORDERED.
Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

G.R. No. 84857 January 16, 1998

vs.
RODOLFO DELA ROSA Y AVILES, ANTONIO DELA ROSA Y AVILES, and RODOLFO QUIMSON Y NAVA (At large), accused-appellants.
PUNO, J.:
Rodolfo dela Rosa y Aviles appeals the decision of the Regional Trial Court, First Judicial Region, Branch 38, Lingayen, Pangasinan,
convicting him of illegal possession of firearms and explosives and imposing the penalty of reclusion perpetua.1
On January 27, 1987, an information for illegal possession of firearms and explosives was filed against RODOLFO DELA ROSA y
AVILES, ANTONIO DELA ROSA y AVILES, CRESENCIO REYES y DELA CRUZ and RODOLFO QUIMSON y NAVA, to wit:
That on or about the 9th of December 1986, in sitio (sic) Kadampat, Barangay Bolo, municipality (sic) of Labrador,
province (sic) of Pangasinan, New Republic of the Philippines and within the jurisdiction of this Honorable Court,
the abovementioned accused, conspiring, confederating and helping one another, did then and there wilfully (sic),
unlawfully and feloniously have in their possession, custody and control three (3) homemade gauge 12 shotguns
and fourteen (14) pieces of dynamite explosives, without first securing the necessary permit/license to possess the
same.
Contrary to Presidential Decree No. 1866.2
All accused pleaded not guilty when arraigned on February 3, 1987. On March 12, 1987, the four accused withdrew their plea of not
guilty and substituted it with a plea of guilt. After ascertaining that the plea of guilt was not made improvidently, the lower court
imposed upon them the corresponding penalty. 3 However, on March 19, 1987, the four (4) accused filed a motion withdrawing their
plea of guilt. 4 The lower court granted the motion in a resolution dated March 25, 1987. 5 Thereafter, trial proceeded. However,
accused Cresencio Reyes changed his mind again and pleaded guilty to a lesser offense punishable under the last paragraph of
Section 1 of Presidential Decree No. 1866. The court accepted the plea and sentenced him accordingly. He was utilized as a witness
by the prosecution. The trial proceeded against the three remaining accused.
The prosecution established that in the morning of December 9, 1986, Rodolfo dela Rosa, Antonio dela Rosa, Cresencio Reyes and
Rodolfo Quimson, surrendered to Kagawad Valeriano Rigor of Sitio Kadampat, Bolo, Labrador, Pangasinan claiming they want to lead
a new life. They informed him that Benjamin Nano, aliasKumander Tamang, a member of the New People's Army (NPA), was shot by
one of them. The four had with them a short shotgun (Exhibit A) and a bag containing several sticks of dynamite (Exhibit C to C-
7).6 Kagawad Rigor offered them breakfast and afterwards went to the police station to report the presence of four (4) surrenderees
in his house. At the police station, Patrolman Gasline Fernandez recorded the report in the police blotter. Cpl. Crispin Cancino, the
station commander, brought along several policemen and proceeded to the house of Kagawad Rigor. When the group arrived, only
Kagawad Rigor and Cpl. Cancino entered the house. The other policemen stayed outside to secure the area. Inside the house,
Kagawad Rigor introduced the surrenderees to Cpl. Cancino and showed him the short shotgun (Exhibit A) and the bag (Exhibit C to
C-7) containing several sticks of dynamite. Then, all accused, except Rodolfo Quimson, who was left behind to guide the police in
recovering the body of Kumander Tamang, were brought to the Philippine Constabulary (PC) Headquarters in Lingayen . In Lingayen,
they proceeded at the municipal building and called on Mayor Calixto Pancho. The surrenderees had their picture taken with Mayor
Pancho and Kagawad Rigor. Afterwards, they were brought to the police headquarters, where their statements were taken by Cpl.
Arsenio Paragas and Cpl. Cipriano Castillo. 7 Meanwhile, the charred body of Benjamin Nano was recovered by the police in Sitio
Tebel Patar.8
The following day, Cresencio Reyes informed the police that there were firearms left buried in Sitio Tebel Patar. Reyes pointed to the
hiding place which was covered by banana leaves. When the banana leaves were removed, the police unearthed two (2) long
barreled shotguns (Exhibits B and D).9
On the other hand, the three accused contend they were recruited by Kumander Tamang on different dates. Accused Rodolfo dela
Rosa testified that he first saw Kumander Tamang on October 28, 1986 at a relative's wake. Kumander Tamang asked him whether
he owned a piece of land. He said he did not, for he was only a sawali maker. Kumander Tamang then convinced him to join the New
People's Army (NPA). He told Kumander Tamang he would think it over. On November 1, 1986, Kumander Tamang went to his house
and reiterated his offer to him. Cresencio Reyes was with Kumander Tamang at that time. Reyes was carrying a bag (Exhibit C) while
Kumander Tamang had a shotgun (Exhibit A). On November 10, 1986, Kumander Tamang went to his house and succeeded in
persuading him to join the NPA. Kumander Tamang brought him at a hideout in the mountains of Sitio Tebel Patar, Labrador,
Pangasinan.
On the evening of November 14, 1986, Rodolfo dela Rosa, Kumander Tamang and Cresencio Reyes, descended the mountains and
proceeded to the house of Antonio dela Rosa, who was Rodolfo's cousin. At that time, Kumander Tamang was carrying a shotgun
(Exhibit A) while Reyes was carrying a bag (Exhibit C). When they arrived at said place, Kumander Tamang and Reyes entered the
house and stayed inside for ten (10) minutes. When the two came out, dela Rosa was with them. All of them headed for the
mountains afterwards. On November 20, 1986, Rodolfo dela Rosa, Kumander Tamang Cresencio Reyes and Antonio dela Rosa went
to the house of Rodolfo Quimson. Again, only Kumander Tamang and Reyes entered Quimson's house. They stayed inside for 15
minutes. When the two came out, Quimson was with them. Afterwards, they returned to their hideout in the mountains. 10
On December 8, 1986, at 10:00 o'clock in the morning, Kumander Tamang called them to a meeting. Kumander Tamang took the bag
(Exhibit C) which Reyes always carries and opened it. The bag yielded several sticks of dynamite. Kumander Tamang told them that
at five o'clock in the afternoon they would go down Sitio Kadampat and assassinate Kagawad Rigor. 11 He then instructed them on
how to use the explosives. After the meeting, they returned to their hut and rested. At two o'clock in the afternoon, they heard a
gunshot from the hut of Kumander Tamang. They rushed outside and saw Reyes holding Kumander Tamang's shotgun. He
announced that Kumander Tamang was dead. He told them it would be better to surrender themselves to the authorities. He
ordered them to gather the shotgun and the sticks of dynamite while he set on fire Kumander Tamang's hut. At five o'clock in the
afternoon, they descended the mountains and headed towards Sitio Kadampat. At 7:00 a.m., the following day, they reached the
house of Kagawad Rigor. They saw the Kagawad sitting by himself on a bench outside his house. Only Reyes approached the
Kagawad, so as not to frighten him. The three others waited by the roadside. After five (5) minutes, Reyes signalled the three to
approach the house. Kagawad Rigor let them inside the house and offered them breakfast. Reyes placed the shotgun and the bag on
top of the dining table. Kagawad Rigor then left the house and went to the police station. 12 He returned with several policemen. At
first, the policemen pointed their guns at the accused but Kagawad Rigor told them there was no need for they were surrendering
themselves to the authorities. Kagawad Rigor then showed the policemen the shotgun and the bag containing the sticks of
dynamite. The policemen took all the surrenderees to the Municipal Hall, except Rodolfo Quimson, who was left behind, to lead the
police to Kumander Tamang' s body. At the Municipal Hall, Mayor Calixto Pancho greeted and congratulated them for coming back
to the fold of law. They had their picture taken with Mayor Pancho and Kagawad Rigor. Afterwards, they were brought to the police
headquarters. When an investigator started to question them, they asked for a lawyer to assist them but the investigator said they
would not need one for they were surrenderees and would soon be freed. Hence, they gave their subscribed statements to the
police. After their statements were taken, the police took them back to the police station in Labrador, where they were detained. On
January 5, 1987, they were transferred to the provincial jail in Lingayen. They denied ever seeing the two (2) long firearms (Exhibits C
and D) which were recovered in Sitio Tebel Patar. They saw said firearms for the first time when the prosecution presented them as
exhibits during the trial. 13
When trial concluded, the lower court convicted the three (3) accused. Antonio dela Rosa did not appeal 14while Rodolfo Quimson
escaped 15 from the National Bilibid Prisons (NBP) where he was detained after the lower court convicted him. Only Rodolfo dela
Rosa appealed contending that:
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT RODOLFO DELA ROSA GUILTY BEYOND REASONABLE DOUBT OF THE
CRIME OF ILLEGAL POSSESSION OF FIREARMS AND EXPLOSIVES, DEFINED AND PENALIZED UNDER THE PROVISIONS OF PRESIDENTIAL
DECREE NO. 1866.
We find merit in the appeal.
It is undisputed that accused-appellant Rodolfo dela Rosa and his companions were the ones who surrendered the subject firearm
(Exhibit A) and explosives (Exhibit C to C-7) to Kagawad Rigor. However, Rodolfo dela Rosa denies that he was in possession of said
ammunitions in the manner punishable by law. According to him, his real intention was merely to turn over the ammunitions, which
were owned by Kumander Tamang, to the authorities. The trial court perceived otherwise. It declared that since Rodolfo dela Rosa
joined the New People's Army (NPA), there is reason to conclude that he provided himself with arms such as Exhibits A, B, C to C-7
and D. 16 And since mere possession is sufficient to convict a person for crimes which are malum prohibitum like illegal possession of
firearms, appellant dela Rosa must be convicted. It is of no moment that he surrendered the ammunitions to the authorities.
We fail to see how appellant dela Rosa could be convicted of illegal possession of firearms based on the above reasoning. Section 1
of Presidential Decree No. 1866 punishes any person who shall ". . . unlawfully manufacture, deal in, acquire, dispose or possess any
firearms, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any
firearm or ammunition." (emphasis supplied) 17
Broken down into its salient elements, illegal possession of firearms is committed when the holder thereof:
(i) possesses a firearm; and
(ii) lacks the authority or license to possess it. 18
In People v. de Gracia 19, we clarified the meaning of possession for the purpose of convicting a person under PD 1866, thus:
But, is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of
firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance
for illegal possession of firearms is a malum prohibitum, punished by a special law, in which case good faith and
absence of criminal intent are not valid defenses.
When a crime is punished by a special law, as a rule, intent to commit the crime is not necessary, it is sufficient
that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime
and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a
crime but he intended to commit an act, and that act is by the very nature of things, the crime itself. In the first
(intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is
enough that the prohibited act is done freely and consciously.
In the present case, a distinction should be made between criminal intent and intent to possess. While mere
possession without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still
be shown that there was animus possidendi or an intent to possess on the part of the accused. Such intent to
possess is, however, without regard to any other criminal or felonious intent which the accused may have
harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an
offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential
Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the
accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such
possession was made in good faith and without criminal intent.
In the early case of People v. Estoista 20 , we held that a temporary, incidental, casual, or harmless possession of firearms is not
punishable. We stated therein that:
The terms "control" and "dominion" themselves are relative terms not susceptible of exact definition, and opinions
on the degree and character of control or dominion sufficient to constitute a violation vary. The rule laid down in
the United States courts — rule which we here adopt — is that temporary, incidental, casual or harmless
possession or control of a firearm is not a violation of a statute prohibiting the possessing or carrying of this kind of
weapon. A typical example of such possession is where "a person picks up a weapon or hands it to another to
examine or hold for a moment."
Also, in People v. Remereta 21, where the question posed was whether an accused who stole a firearm could simultaneously be
prosecuted for theft and illegal possession of firearms, we held that transient possession is not sufficient to convict one under the
latter crime, thus:
While in stealing a firearm the accused must necessarily come into possession thereof, the crime of illegal
possession of firearms is not committed by mere transient possession of the weapon. . . . Thus, stealing a firearm
with intent not to use but to render the owner defenseless, may suffice for purposes of establishing a case of theft,
but would not justify a charge for illegal possession of firearm, since intent to hold and eventually use the weapon
would be lacking.
Hence, the kind of possession punishable under PD No. 1866 is one where the accused possessed a firearm either physically or
constructively with animus possidendi or intention to possess the same. 22 It is not enough that the firearm was found in the person
of the accused who held the same temporarily and casually or for the purpose of surrendering the same. Admittedly, animus
possidendi is a state of mind. As such, what goes on into the mind of an accused, as his real intent, could be determined solely based
on his prior and coetaneous acts and the surrounding circumstances explaining how the subject firearm came to his possession. 23
Thus, in People v. Leo Lian 24, we rejected the argument of the accused that the charge against him should be dismissed because
there was no animus possidendi on his part. In said case, the accused contended that he was on his way to the municipal hall to
surrender the firearm when he met some of his friends. He then forgot about the firearm, until the police officer unceremoniously
seized the same from him, affording him no chance to surrender it himself.
In rejecting accused-appellant's claim, Justice Regalado wrote that:
. . . , the Court finds it hard to believe that appellant still had to hide the firearm in his waist before setting out to
surrender it to the authorities when he could have taken the gun to the town hall in the same bag in which he
found it, in which case it would have been safer and would have avoided detection. In fine, the indispensable
elements of possession without the necessary authority or license and the corresponding attendance of animus
possidendi have both been convincingly established by the prosecution to warrant appellant's conviction . . . .
That animus possidendi is determinable from the prior and simultaneous acts of the accused is further exemplified while accused
by People v. Lubo. 25 In this case, while accused-appellant pleaded lack of animus possidendi, his conduct belied the same. Accused-
appellant Lubo was found to have secured a "temporary license" for the subject firearm. Under such circumstance, we held that
accused-appellant intended to possess the subject firearm beyond reasonable doubt.
Coming now to the case before us it is undisputed that the police officers never really arrested Rodolfo dela Rosa, for the truth of
the matter was that there was no need for such arrest. Dela Rosa and his companions had surrendered the ammunitions to Kagawad
Rigor even before the police arrived. In fact, the police learned of the surrender because Kagawad Rigor reported it to the police
station in Labrador. This is in contrast to People v. Leo Lian, where appellant Lian merely feigned intention to surrender the firearm
which the police found in his possession . In the case at bar, appellant dela Rosa's intention to surrender the ammunitions was very
clear from the beginning and he was able to execute the same.
Corollarily, the Office of the Solicitor General's contention that dela Rosa was in constructive possession of the ammunitions is
irrelevant for possession — whether physical or constructive — without animus possidendi is not punishable. Dela Rosa's possession
was harmless, temporary and only incidental for the purpose of surrendering the ammunitions to the authorities. Consequently, the
prosecution failed to establish the first element of animus possidendi.
Similarly, the records are bereft of sufficient proof that Rodolfo dela Rosa possessed the ammunitions without authority to do so.
Except for the preliminary examination of Pfc. Cipriano P. Castillo conducted by Municipal Circuit Trial Judge Benjamin N.
Abella, 26 the prosecution offered no other evidence during the trial which showed lack of license. In the preliminary examination,
the only relevant question asked by the judge was:
JUDGE ABELLA.
Q: Did you or the Stn. Commander ask or verify whether any or all of the above-named suspects
have any license to possess the above-mentioned firearms and explosives?
A: Yes, sir. But they stated that they have no license to possess any of the firearms and explosives
which were recovered from their possession, control and custody.
The Office of the Solicitor General offers the extrajudicial statement of accused Rodolfo dela Rosa 27 that Kumander Tamang
supplied him with explosives and dynamite in furtherance of subversive activities. 28According to the Solicitors, the extrajudicial
statement is sufficient to prove that the firearms were illegally possessed. The presumption is erroneous. Aside from the fact that
dela Rosa repudiated the extrajudicial statement because it was uncounselled 29 , the same did not contain any admission that he
had no license to possess the firearm. And, even if it had contained an admission that he had no license, it still would not have
sufficed.
In People v. Solayao 30, the prosecution relied only on the testimonial evidence that accused-appellant admitted before the police
officer who accosted him that he did not have any authority or license to carry the subject firearm when he was asked if he had one.
In acquitting the accused-appellant, we stressed that the prosecution has the burden of proving beyond reasonable doubt the lack
of license which is a negative averment. 31 The burden is in consonance with the evidentiary rule that "when a negative is averred in
a pleading, or a plaintiff's case depends upon the establishment of a negative, and the means of proving the fact are equally within
the control of each party, then the burden of proof is upon the party averring the negative." 32 More importantly, the burden placed
on the shoulders of the prosecution to prove beyond reasonable doubt the lack of license is premised on the constitutional
presumption of innocence of the accused. 33 Thus, in People v. Solayao, this Court suggested that the prosecution could have, at the
very least, presented a certification from the Firearms and Explosives Unit that the accused did not have the license to the gun. But,
an extrajudicial admission of the accused, solely, will not suffice.
The Office of the Solicitor General contends that for accused-appellant to join the New People's Army and stay in the mountains
without arming themselves is highly improbable. Thus, there is reason to believe that they illegally possessed the ammunitions to
further their subversive activities even prior to surrendering them to the authorities. We reiterate that mere suspicion will not prove
the prosecution's case in court. In a prosecution under Presidential Decree No. 1866, it is incumbent on the Government to prove
both elements of the crime: (1) that the accused possessed the firearm and (2) that he had not first obtained a license or permit
from the appropriate authorities.34
As always, mere speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond
reasonable doubt . The rule is the same whether the offenses are punishable under the Revised Penal Code which are mala in se or
in crimes which are malum prohibitum by virtue of special law. 35 We find that such quantum of proof was not adequately presented
in this case.
IN VIEW WHEREOF, accused-appellant Rodolfo dela Rosa is acquitted in Criminal Case No. L-3616. His immediate release from the
National Bilibid Prisons (NBP) is ordered, except if charged and detained for other offenses.
SO ORDERED.
Regalado, Mendoza and Martinez, JJ., concur.

G.R. No. 183619 October 13, 2009
PEOPLE OF THE PHILIPPINES, Appellee,

vs.
SALVINO SUMINGWA, Appellant.
DECISION
NACHURA, J.:
On appeal before us is the January 31, 2008 Court of Appeals (CA) Decision 1 in CA-G.R. CR No. 30045 affirming with modification the
February 14, 2006 Regional Trial Court2 (RTC) Consolidated Judgment3 against appellant Salvino Sumingwa in Criminal Case Nos.
1644 and 1645 for Acts of Lasciviousness; 1646, 1649 and 1654 for Rape; 1651 for Attempted Rape; and 1655 for Unjust Vexation.
Assailed also is the June 5, 2008 CA Resolution4 denying appellant’s motion for reconsideration.
In twelve Informations, the prosecution charged appellant with two (2) counts of Acts of Lasciviousness, 5 four (4) counts of
Rape,6 three (3) counts of Unjust Vexation,7 one (1) count of Other Light Threats,8 one (1) count of Maltreatment,9 and one (1) count
of Attempted Rape10 for acts committed against his minor11 daughter AAA from 1999-2001.
Appellant pleaded "not guilty" to all the charges. On September 24, 2004, the RTC dismissed12 Criminal Case Nos. 1647 for Rape;
1648 for Unjust Vexation; 1650 for Other Light Threats; 1652 for Unjust Vexation; and 1653 for Maltreatment, on the basis of the
Demurrer to Evidence13 filed by appellant.
Sometime in August 1999, between 8:00 and 10:00 in the morning, AAA, together with her brothers and her father, appellant
herein, was in their residence in Mountain Province, watching television. Appellant called AAA and ordered her to sit in front of him.
As she was sitting, appellant told her that it was not good for a girl to have small breasts. Suddenly, he inserted his hands into AAA’s
shirt then fondled her breast. AAA resisted by moving her hands backwards. 14
One afternoon in September 1999, AAA’s mother and brothers went to school leaving AAA and appellant in their house. While in the
master’s bedroom, appellant ordered AAA to join him inside. There, appellant removed his undergarments then forced her to grasp
and fondle his penis until he ejaculated. Appellant thereafter told her not to be malicious about it. 15
The same incident took place in August 2000. This time, appellant forced AAA to lie down on the bed, went on top of her, removed
her short pants and panty, then rubbed his penis against her vaginal orifice. AAA resisted by crossing her legs but appellant lifted her
right leg and partially inserted his penis into her vagina. As she struggled, appellant stood up then ejaculated. AAA felt numbness on
her buttocks after the bestial act committed against her.16
Appellant repeated his dastardly act against AAA on separate occasions in September and November 2000. During these times,
appellant satisfied himself by rubbing his penis against AAA’s vagina without trying to penetrate it. After reaching the top of his lust,
he used AAA’s short pants to wipe his mess. Instead of keeping her harrowing experience to herself, AAA narrated it to her best
friend.17
On November 24, 2000, appellant approached AAA and told her that he wanted to have sex with her. When she refused, appellant
forcibly removed her pants and boxed her right buttock. AAA still refused, which angered appellant. He then went to the kitchen and
returned with a bolo which he used in threatening her. Luckily, AAA’s grandmother arrived, prompting appellant to desist from his
beastly desires.18
On December 20, 2000, AAA and her best friend were doing their school work in front of the former’s house. When appellant
arrived, he embraced AAA. He, thereafter, pulled her inside the house and kissed her on the lips. 19
The last incident occurred inside the comfort room of their house on May 27, 2001. When AAA entered, appellant pulled down her
short pants and panty, unzipped his trousers, brought out his penis, then repeatedly rubbed it on her vagina while they were in a
standing position.20
AAA decided to report the sexual abuses to her grandmother who forthwith brought her to the National Bureau of Investigation
where she was examined by the medico-legal officer. It was found during the examination that there were no extragenital physical
injuries on AAA’s body but there were old, healed, and incomplete hymenal lacerations. 21
Appellant denied all the accusations against him. He claimed that in August and September 1999, he was at the house of his mistress
in Antipolo City. He also explained that in August 2000, he stayed in Baguio City and worked there as a karate instructor. He added
that he only went home in September 2000 but left again in October for Quirino, Ilocos Sur where he stayed for three weeks. When
he went back home, his wife informed him that AAA had not been coming home. Thereafter, appellant went to Baguio City to buy
medicine for his wife, then returned home again on the third week of December 2000. While there, he was confronted by his wife
about his womanizing. His wife got mad and refused to forgive him despite his repeated pleas. Consequently, he became furious and
almost choked his wife to death when she ignored and refused to talk to him. This prompted him to leave and go back to Baguio.22
Sometime in April 2001, appellant went back home to reconcile with his wife. While talking to his wife and the latter’s family, his
mother-in-law berated him and demanded his separation from his wife. Appellant got mad and threatened to kill his wife’s family.
His mother-in-law, in turn, threatened to file charges against him.23
To belie the claim of AAA that she was sexually abused in August, November and December 2000, allegedly during school hours, her
teacher testified that the former was not absent in class during those times. 24
On November 24, 2004, AAA executed an Affidavit of Recantation25 claiming that while appellant indeed committed lascivious acts
against her, she exaggerated her accusations against him. She explained that appellant did not actually rape her, as there was no
penetration. She added that she charged appellant with such crimes only upon the prodding of her mother and maternal
grandmother.
On February 14, 2006, the RTC rendered a decision convicting appellant of six (6) counts of acts of lasciviousness, 26 one (1) count of
attempted rape27 and one (1) count of unjust vexation,28 the dispositive portion of which reads:
WHEREFORE, a Consolidated Judgment is hereby rendered sentencing Salvino Sumingwa to suffer –
1. The penalty of six (6) months of [arresto mayor] as minimum to six (6) years of [prision correccional] as maximum; and
ordering him to pay the offended party ₱10,000.00 [as] indemnity [ex-delicto], ₱10,000.00 as moral damages and ₱5,000.00
as exemplary damages for each count of Acts of Lasciviousness charged in Crim. Cases 1644, 1645, 1646, 1649 and 1654;
2. The penalty of six (6) years of [prision correccional] as minimum to twelve (12) years of [prision mayor] as maximum; and
ordering said offender to pay the victim ₱15,000.00 as indemnity [ex-delicto], ₱15,000.00 as moral damages and
₱10,000.00 as exemplary damages in Crim. Case 1651 for Attempted Rape; and
3. The penalty of thirty (30) days of [arresto menor] and fine of ₱200.00 for Unjust Vexation in Crim. Case 1655.
SO ORDERED.29
The trial court gave credence to AAA’s testimonies on the alleged lascivious acts committed against her. In view of the withdrawal of
her earlier claim of the fact of penetration, the court sustained the innocence of appellant on the rape charges and concluded that
the crime committed was only Acts of Lasciviousness.
In Criminal Case No. 1651, the RTC found that appellant committed all the acts of execution of the crime of Rape, but failed to
consummate it because of the arrival of AAA’s grandmother. Hence, he was convicted of attempted rape. In embracing and kissing
AAA in full view of the latter’s best friend, appellant was convicted of Unjust Vexation.
On appeal, the CA affirmed the conviction of appellant, except that in Criminal Case No. 1646; it convicted him of Qualified Rape
instead of Acts of Lasciviousness. The pertinent portion of the assailed decision reads:
WHEREFORE, premises considered, herein appeal is hereby DISMISSED for evident lack of merit and the assailed Consolidated
Judgment dated 14 February 2006 is hereby AFFIRMED with the following MODIFICATION:
1. The Appellant SALVINO SUMINGWA is hereby convicted of the crime of QUALIFIED RAPE in Criminal Case No. 1646 and the
penalty of RECLUSION PERPETUA is hereby imposed upon him. The Appellant is likewise ordered to pay the Victim, [AAA], civil
indemnity in the amount of Php75,000.00 as well as moral damages in the amount of Php50,000.00, in conformity with prevailing
jurisprudence.
2. In Criminal Case No. 1651 for Attempted Rape, the Appellant, is hereby ordered to indemnify the victim [AAA] in the sum of
₱30,000.00 as civil indemnity, plus the sum of ₱25,000.00 as moral damages.
SO ORDERED.30
The appellate court concluded that, notwithstanding AAA’s retraction of her previous testimonies, the prosecution sufficiently
established the commission of the crime of Rape. It added that the qualifying circumstances of minority and relationship were
adequately proven.
Hence, this appeal.
First, in light of the recantation of AAA, appellant questions the credibility of the prosecution witnesses and insists that his
constitutional right to be presumed innocent be applied. 31 Second, he argues that in Criminal Case No. 1651 for Attempted Rape, he
should only be convicted of Acts of Lasciviousness, there being no overt act showing the intent to have sexual intercourse. 32 Lastly,
he insists that he could not be convicted of all the charges against him for failure of the prosecution to show that he employed force,
violence or intimidation against AAA; neither did the latter offer resistance to appellant’s advances. 33
In rape cases particularly, the conviction or acquittal of the accused most often depends almost entirely on the credibility of the
complainant’s testimony. By the very nature of this crime, it is generally unwitnessed and usually the victim is left to testify for
herself. When a rape victim’s testimony is straightforward and marked with consistency despite grueling examination, it deserves
full faith and confidence and cannot be discarded.34 If such testimony is clear, consistent and credible to establish the crime beyond
reasonable doubt, a conviction may be based on it, notwithstanding its subsequent retraction. Mere retraction by a prosecution
witness does not necessarily vitiate her original testimony. 35
A retraction is looked upon with considerable disfavor by the courts. 36 It is exceedingly unreliable for there is always the probability
that such recantation may later on be repudiated. It can easily be obtained from witnesses through intimidation or monetary
consideration.37 Like any other testimony, it is subject to the test of credibility based on the relevant circumstances and, especially,
on the demeanor of the witness on the stand.38
As correctly held by the CA, AAA’s testimony is credible notwithstanding her subsequent retraction. We quote with approval its
ratiocination in this wise:
Clearly, the retraction made by the Victim is heavily unreliable. The primordial factor that impelled the Victim to retract the rape
charges against her father was her fear and concern for the welfare of her family especially her four (4) siblings. It does not go
against reason or logic to conclude that a daughter, in hopes of bringing back the harmony in her family tormented by the trauma of
rape, would eventually cover for the dastardly acts committed by her own father. Verily, the Victim’s subsequent retraction does not
negate her previous testimonies accounting her ordeal in the hands for (sic) her rapist.39
We now proceed to discuss the specific crimes with which appellant was charged.
Criminal Case Nos. 1646, 1649 and 1654 for Rape
The CA correctly convicted appellant of Qualified Rape in Criminal Case No. 1646, and of Acts of Lasciviousness in Criminal Case Nos.
1649 and 1654.
The crime of rape is defined in Article 266-A of the Revised Penal Code (RPC), as amended by the Anti-Rape Law of 1997, as follows:
ART. 266-A. Rape, When and How Committed. - Rape is committed –
1. By a man who shall have carnal knowledge of a woman under any of the following circumstances:
a. Through force, threat or intimidation.
In her direct testimony, AAA stated that appellant removed her short pants and panty, went on top of her and rubbed his penis
against her vaginal orifice. She resisted by crossing her legs but her effort was not enough to prevent appellant from pulling her leg
and eventually inserting his penis into her vagina. Clearly, there was penetration.
It is noteworthy that appellant pulled AAA’s leg, so that he could insert his penis into her vagina. This adequately shows that
appellant employed force in order to accomplish his purpose. Moreover, in rape committed by a father against his own daughter,
the former’s moral ascendancy and influence over the latter may substitute for actual physical violence and intimidation. The moral
and physical dominion of the father is sufficient to cow the victim into submission to his beastly desires, and no further proof need
be shown to prove lack of the victim’s consent to her own defilement. 40
While appellant’s conviction was primarily based on the prosecution’s testimonial evidence, the same was corroborated by physical
evidence consisting of the medical findings of the medico-legal officer that there were hymenal lacerations. When a rape victim’s
account is straightforward and candid, and is corroborated by the medical findings of the examining physician, the same is sufficient
to support a conviction for rape.41
Aside from the fact of commission of rape, the prosecution likewise established that appellant is the biological father of AAA and
that the latter was then fifteen (15) 42 years old. Thus, the CA aptly convicted him of qualified rape, defined and penalized by Article
266-B of the RPC, viz.:
ART. 266-B. Penalties. – x x x.
xxxx
The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying
circumstances:
1) 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.
In view of the effectivity of Republic Act (R.A.) 9346, appellant was correctly meted the penalty of reclusion perpetua, without
eligibility for parole.
As to damages, appellant should pay AAA ₱75,000.00 as civil indemnity, which is awarded if the crime is qualified by circumstances
that warrant the imposition of the death penalty.43 In light of prevailing jurisprudence,44 we increase the award of moral damages
from ₱50,000.00 to ₱75,000.00. Further, the award of exemplary damages in the amount of ₱30,000.00 45 is authorized due to the
presence of the qualifying circumstances of minority and relationship. 46
In Criminal Case Nos. 1649 and 1654, although appellant was charged with qualified rape allegedly committed on the second week
of November 2000 and May 27, 2001, he should be convicted with Acts of Lasciviousness committed against a child under Section
5(b), Article III of R.A. 7610,47 which reads:
SEC. 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or female, who for money, profit, or any other
consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct,
are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
xxxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other
sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article
335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as
the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall
be reclusion temporal in its medium period; x x x. (Italics supplied.)
The elements of sexual abuse under the above provision are as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct.
2. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse.
3. The child, whether male or female, is below 18 years of age.48
AAA testified that in November 2000, while she and appellant were inside the bedroom, he went on top of her and rubbed his penis
against her vaginal orifice until he ejaculated.49 She likewise stated in open court that on May 27, 2001, while inside their comfort
room, appellant rubbed his penis against her vagina while they were in a standing position.50 In both instances, there was no
penetration, or even an attempt to insert his penis into her vagina.
The aforesaid acts of the appellant are covered by the definitions of "sexual abuse" and "lascivious conduct" under Section 2(g) and
(h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases promulgated to implement the provisions
of R.A. 7610:
(g) "Sexual abuse" includes the employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or assist
another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children;
(h) "Lascivious conduct" means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast,
inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or
opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or public area of a person.
Following the "variance doctrine" embodied in Section 4, in relation to Section 5, Rule 120 of the Rules of Criminal Procedure,
appellant can be found guilty of the lesser crime of Acts of Lasciviousness committed against a child. The pertinent provisions read:
Sec. 4. Judgment in case of variance between allegation and proof. – When there is variance between the offense charged in the
complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the
accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is
included in the offense proved.
Sec. 5. When an offense includes or is included in another. – An offense charged necessarily includes the offense proved when some
of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an
offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of
those constituting the latter.
As the crime was committed by the father of the offended party, the alternative circumstance of relationship should be appreciated.
In crimes against chastity, such as Acts of Lasciviousness, relationship is always aggravating.51
Section 5(b) of R.A. 7610 prescribes the penalty of reclusion temporal in its medium period to reclusion perpetua. Since there is an
aggravating circumstance and no mitigating circumstance, the penalty shall be applied in its maximum period --- reclusion perpetua
for each count.52
Consistent with previous rulings53 of the Court, appellant must also indemnify AAA in the amount of ₱15,000.00 as moral damages
and pay a fine in the same amount in Criminal Case Nos. 1649 and 1654.
Criminal Case Nos. 1644 and 1645 for Acts of Lasciviousness
Appellant is likewise guilty of two (2) counts of Acts of Lasciviousness under Section 5(b), Article III, R.A. 7610 committed against
AAA on the second week of August 1999 and on the first week of September 1999. AAA testified that in August, appellant, with lewd
design, inserted his hands inside her shirt then fondled her breasts; and in September, he forced her to hold his penis until he
ejaculated.
The trial and the appellate courts were correct in giving credence to the victim’s testimony, in dismissing appellant’s defense of
denial and alibi, and in disbelieving that AAA initiated the criminal cases only upon the prodding of the latter’s grandmother. Settled
jurisprudence tells us that the mere denial of one’s involvement in a crime cannot take precedence over the positive testimony of
the offended party.54
We are not unmindful of the fact that appellant was specifically charged in an Information for Acts of Lasciviousness defined and
penalized by Article 336 of the RPC. However, the failure to designate the offense by statute, or to mention the specific provision
penalizing the act, or an erroneous specification of the law violated, does not vitiate the information if the facts alleged clearly recite
the facts constituting the crime charged.55 The character of the crime is not determined by the caption or preamble of the
information nor from the specification of the provision of law alleged to have been violated, but by the recital of the ultimate facts
and circumstances in the complaint or information.56
In the present case, the body of the information contains an averment of the acts alleged to have been committed by appellant
which unmistakably refers to acts punishable under Section 5(b), Article III, R.A. 7610.
Appellant should, therefore, be meted the same penalties and be made to answer for damages as in Criminal Case Nos. 1649 and
1654.
Criminal Case No. 1651 for Attempted Rape
AAA testified that on November 24, 2000, while AAA and her brothers were sleeping inside their parents’ bedroom, appellant
entered and asked AAA to have sex with him. When AAA refused, appellant forcibly removed her clothes and boxed her right
buttock. As she still resisted, he took a bolo, which he poked at her. Appellant desisted from committing further acts because of the
timely arrival of AAA’s grandmother. With these, appellant was charged with Other Light Threats in Criminal Case No. 1650;
Attempted Rape in Criminal Case No. 1651; Unjust Vexation in Criminal Case No. 1652; and Maltreatment in Criminal Case No. 1653.
On September 24, 2004, the RTC dismissed Criminal Case Nos. 1650, 1652 and 1653 for insufficiency of evidence. Criminal Case No.
1651, among others, proceeded, however. Eventually, appellant was convicted of Attempted Rape, which the CA affirmed.
A careful review of the records reveals, though, that the evidence is insufficient to support appellant’s conviction of Attempted
Rape.
Rape is attempted when the offender commences the commission of rape directly by overt acts and does not perform all the acts of
execution by reason of some cause or accident other than his own spontaneous desistance. 57 The prosecution must, therefore,
establish the following elements of an attempted felony:
1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;
3. The offender’s act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance. 58
The attempt that the RPC punishes is that which has a logical connection to a particular, concrete offense; and that which is the
beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation. 59 In
the instant case, the primary question that comes to the fore is whether or not appellant’s act of removing AAA’s pants constituted
an overt act of Rape.
We answer in the negative.
Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a particular crime, more
than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being
frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a
concrete offense.60
The evidence on record does not show that the above elements are present. The detailed acts of execution showing an attempt to
rape are simply lacking. It would be too strained to construe appellant’s act of removing AAA’s pants as an overt act that will logically
and necessarily ripen into rape. Hence, appellant must be acquitted of Attempted Rape.
Neither can we hold appellant liable for Other Light Threats for threatening AAA with a bolo; for Unjust Vexation for undressing her
without her consent, causing disturbance, torment, distress, and vexation; nor for Maltreatment for boxing the right side of AAA’s
buttocks. Although all of the above acts were alleged in the Information for Attempted Rape in the Order dated September 24, 2004,
Criminal Case Nos. 1650, 1652 and 1653 involving the above crimes were dismissed for insufficiency of evidence based on the
demurrer to evidence filed by appellant.
The order granting appellant’s demurrer to evidence was a resolution of the case on the merits, and it amounted to an acquittal. Any
further prosecution of the accused after an acquittal would violate the proscription on double jeopardy. 61 Accordingly, appellant’s
conviction of any of the above crimes, even under Criminal Case No. 1651, would trench in his constitutional right against double
jeopardy.
Criminal Case No. 1655 for Unjust Vexation
Appellant was charged with Unjust Vexation, defined and penalized by Article 287 of the RPC, which reads:
ART. 287. Light coercions. – Any person who, by means of violence, shall seize anything belonging to his debtor for the purpose of
applying the same to the payment of the debt, shall suffer the penalty of arresto mayor in its minimum period and a fine equivalent
to the value of the thing, but in no case less than 75 pesos.
Any other coercion or unjust vexation shall be punished by arresto menor or a fine ranging from 5 to 200 pesos, or both.
The second paragraph of this provision is broad enough to include any human conduct that, although not productive of some
physical or material harm, could unjustifiably annoy or vex an innocent person. The paramount question to be considered is whether
the offender’s act caused annoyance, irritation, torment, distress, or disturbance to the mind of the person to whom it was
directed.62
Appellant’s acts of embracing, dragging and kissing AAA in front of her friend annoyed AAA. The filing of the case against appellant
proved that AAA was disturbed, if not distressed by the acts of appellant.
The penalty for coercion falling under the second paragraph of Article 287 of the RPC is arresto menor or a fine ranging from ₱5.00
to ₱200.00 or both. Accordingly, appellant is sentenced to 30 days of arresto menor and to pay a fine of ₱200.00, with the accessory
penalties thereof.
WHEREFORE, the Court AFFIRMS the January 31, 2008 Court of Appeals Decision in CA-G.R. CR No. 30045 with MODIFICATIONS. The
Court finds appellant Salvino Sumingwa:
1. GUILTY of QUALIFIED RAPE in Criminal Case No. 1646. He is sentenced to suffer the penalty of reclusion perpetua without
eligibility for parole and ordered to pay AAA ₱75,000.00 as civil indemnity, ₱75,000.00 as moral damages, and ₱30,000.00
as exemplary damages.
2. GUILTY of four (4) counts of ACTS OF LASCIVIOUSNESS under Section 5 (b) Article III of R.A. 7610 in Criminal Case Nos.
1644, 1645, 1649, and 1654. He is sentenced to suffer the penalty of reclusion perpetua and ordered to pay AAA
₱15,000.00 as moral damages and a fine of ₱15,000.00, for EACH COUNT.
3. NOT GUILTY in Criminal Case No. 1651.
4. GUILTY of UNJUST VEXATION in Criminal Case No. 1655. He is sentenced to suffer 30 days of arresto menor and to pay a
fine of ₱200.00, with the accessory penalties thereof.
SO ORDERED.
[G.R. No. 47027. February 4, 1941.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. BENITO R. PADILLA and ALFRED VON AREND, Defendants-Appellants.
Ross, Lawrence, Selph & Carrascoso, for appellant Alfred Von Arend.
E. A. Picazo, for appellant Benito R. Padilla
Solicitor-General Ozaeta, for Appellee.
SYLLABUS
1. COMMONWEALTH ACT NO. 108, IN RELATION TO COMMONWEALTH ACT NO. 138; VIOLATION. — The very title of Act No. 108
gives unmistakable notice of the legislative intent and purpose of punishing all "acts of evasion of the law of the nationalization of
certain rights, franchises or privileges," and section 1 of the same Act applies the punishment provided therein to "all cases in which
any constitutional or legal provision requires Philippine or United States citizenship as a requisite for the exercise or enjoyment of a
right, franchise or privilege." Under Act No. 108 any legal provision, whether existing at the time of the passage of said Act No. 108
or promulgated thereafter, would fall within its scope, so long as said legal provision requires Philippine or United States citizenship
as a requisite for the enjoyment of a right, franchise or privilege. One of such legal provisions is section 4 of Commonwealth Act No.
138. While "statutes prescribing punishments or penalties should not be extended further than their terms reasonably justify"
(Snowden v. Brown, 60 Fla., 212; 53 So., 648, 649), this rule of strict construction is subordinate to the rule of reasonable, sensible
construction having in view the legislative purpose and intent, and giving effect to the same. It is not to be so unreasonably applied
as to defeat the true intent and meaning of the enactment found in the language actually used. (Chapman v. Lalce, 161, So., 399,
402, 403.) Although not so expressly stated, Act No. 138 is cumulative of Act No. 108; and it is no objection that one statute creates
an offense and another Act provides for its punishment.
2. ID.; ID.; CONSTITUTIONALITY. — Commonwealth Act No. 108 is sufficiently clear, and prescribes with reasonable certainty the
elements of the offense that it punishes. It embraces only one general subject, to wit: the punishment of acts of evasion of the laws
on the nationalization of certain right, franchises or privileges, which subject is fairly suggestive of, and not foreign to, its intent and
purposes. It does not deprive A. V. A., or any person for that matter, of liberty and property without due process of law. As to
Commonwealth Act No. 138, this cannot be said to be antagonistic to Act No. 428 of the 72nd Congress of the United States.
Fundamentally, it is in harmony with the congressional enactment.
3. .ID.; ID.; ID.; CASE AT BAR — The judgment of the lower court as to A. V. A. is affirmed in all respects. As to B. R. P., the Court feels
that as a Filipino citizen he has proved himself lacking in civic conscious and responsibility as to require censure and punishment at
once prompt and severe, in order to enliven the confidence of the people in their Government and their institutions. The penalty, in
his case, i8 accordingly increased to a minimum imprisonment of four (4) years to a maximum imprisonment of six (6) years and fine
of P4,000, with subsidiary imprisonment in case of insolvency.
DECISION
LAUREL, J.:
On October 27, 1938, in criminal case No. 57235 of the Court of First Instance of Manila, Benito R. Padilla and Alfred Von Arend were
charged with a violation of Commonwealth Act No. 108, in relation to Commonwealth Act No. 138. The information filed against
them by the fiscal of Manila is of the following tenor:jgc:chanrobles.com.ph
"That on and during the period between December, 1936 to August, 1938, both dates inclusive, in the City of Manila, Philippine
Islands, Benito R. Padilla, a Filipino citizen, and Alfred Von Arend, a German citizen, voluntarily, illegally and criminally, with intent to
evade the provisions of Article 4 of Commonwealth Act No. 138, which require Philippine or United States citizenship before the
exercise or enjoyment of the privilege established in said article, acting jointly and conniving with each other, executed the following
acts, to wit: (a) the former permitting the latter and for the latter’s corporation, known as the ’Insular Drug Co.,’ an entity which is
not domestic under the provisions of said Act, because 75% of its capital stock belongs to neither Filipino or American, and of which
Alfred Von Arend is the president and general manager, to make use, as in effect made use of his name and of his mercantile
domestic firm, known as the ’Padilla Central Distributors’, in the official auctions for the supply to the government and its branches
of articles, materials and equipment for public use; and (b) the latter making use, in said official auctions, of the name of the former
and that of his commercial firm to the benefit of said corporation, both the accused having gained from the transactions which
resulted from such illegal practice, in violation of Article 1 of Commonwealth Act No. 138."cralaw virtua1aw library
Upon his request, Alfred Von Arend was granted a separate trial, although by agreement of the parties all the evidence presented by
the prosecution and the defense in the trial of Alfred Von Arend were offered and admitted in Padilla’s. The trial court, on July 25,
1939, rendered judgment finding the two accused guilty of the offense charged, and sentenced each of them to an indeterminate
penalty of from two years to four years, to pay a fine of P2,000, with subsidiary imprisonment in case of insolvency, and to pay one-
half of the costs. Both have appealed to this Court.
Counsel for Von Arend makes the following assignment of errors:jgc:chanrobles.com.ph
"I. The trial court erred in ruling that Commonwealth Act NO. 108 had any connection with Commonwealth Act NO. 138 or that it
punished any deviation from the preferences provided by that law.
"II. The trial court erred in not finding that Commonwealth Act No. 108 as interpreted by the trial court was enacted in violation of
Article VI, sec. 12(1) of the Constitution of the Philippines.
"III. The trial court erred in holding that Commonwealth Act No. 108 as applied to Alfred Von Arend in this case did not deprive him
of his liberty and property without due process of law contrary to Article III, section 1, subsections 15 and 17 of the Constitution of
the Philippines.
"IV. The trial court erred and acted contrary to Article III, sec. 1, subsections 15 and 17 of the Constitution of the Philippines in
convicting Alfred Von Arend on the basis of evidence not offered at the trial.
"V. The trial court erred in not properly complying with the provisions of section 33 of the Code of Criminal Procedure.
"VI. The trial court erred in not holding that Commonwealth Act No. 138 was unconstitutional and void as being contrary to an act of
the Congress of the United States.
"VII. The trial court erred in not dismissing the information in this case on the ground that more than one crime is charged therein.
"VIII. The trial court erred in not holding that section 4 of Commonwealth Act No. 138 was enacted contrary to the provisions of
section 1, subsection 17, of the Ordinance Appended to the Constitution of the Philippines and is consequently void and ineffective.
"IX. The trial court erred in finding that Padilla Central Distributors and Benito R. Padilla were mere figure-heads or dummies.
"X. The trial court erred in disregarding the testimony establishing the Government’s practice of awarding contracts to the lowest
bidder regardless of whether such bidder was a domestic or a foreign entity.
"XI. The trial court erred in making findings of facts contrary to the clear weight of evidence."cralaw virtua1aw library
Counsel for Padilla assigns the following errors:jgc:chanrobles.com.ph
"I. In not holding that the facts charged in the information do not constitute a public offense and that Act No. 138 is
unconstitutional.
"II. In holding that the ’Padilla Central Distributors’ was organized by the accused Benito R. Padilla as a mere nominal entity or name
in which the ’Insular Drug Co., Inc.,’ made sales to the Government to evade the provisions of Commonwealth Act No. 138.
"III. In holding that the ’Padilla Central Distributors’ was managed and administered by the ’Insular Drug Co., Inc.,
"IV. In holding that the accused Benito R. Padilla had in bad faith willfully withheld from the Pharmaceutical Board or the person in
charge of issuing permits certain pertinent information when exhibits ’12’ and ’13’ were issued.
"V. In finding the accused Benito R. Padilla guilty of the crime charged in the information."cralaw virtua1aw library
The principal question to be determined is whether or not a violation of Commonwealth Act No. 138, commonly known as the "Flag
Law", may be prosecuted under Commonwealth Act No. 108, entitled "An Act to punish acts of evasion of the laws on the
nationalization of certain rights, franchises or privileges." Other points raised in the briefs will be taken up in the course of this
opinion.
It appears that shortly after the approval of Commonwealth Act No. 138, or on December 16, 1936, Benito R. Padilla resigned from
the Insular Drug Company, where he had been employed as a selling agent for seven years, and organized the "Padilla Central
Distributors" capitalized at P1,000 (Exhibit A) for the distribution and sale of medicine, chemical products, and clinical, surgical and
laboratory equipment. At the same time, he opened with his old employer a credit account in the amount of P6,000, secured by his
own and his wife’s savings deposit, to enable him to purchase drugs and other chemicals and facilitate his business transactions. In
addition, he was allowed a small space in the offices of the Insular Drug Company, and also the use of the latter’s telephone,
warehouse and delivery cars. To assist him in the venture, he appointed Serafin Enriquez, secretary treasurer of the Insular Drug
Company, and Bartolome Salapong, cashier of the same firm, as his attorney-in-fact and bookkeeper, respectively. Serafin Enriquez,
as attorney-in-fact, prepared and submitted all the bids of the Padilla Central Distributors for pharmaceutical supplies needed by the
Government, and was successful in winning for it most of the contracts as the lowest domestic bidder. The open-account agreement
stipulated the amount of P5,000 as the limit of Padilla’s credit, but the finding of the lower court is that this limit had always been
exceeded, the lowest instance being in January, 1938, when Benito R. Padilla’s account totalled P6,692.88. As most of the
government contracts were awarded to the Padilla Central Distributors as the lowest domestic bidder under the provisions of
Commonwealth Act No. 138, and as all the requisitioned supplies were taken from the Insular Drug Company, the sales of the latter
increased in volume, and its president and general manager, defendant Alfred Von Arend, for a period comprised between January,
1937 and June, 1938, received dividends amounting to P16,186, besides P1,000 as monthly salary and P200 as monthly expenses.
Benito R. Padilla, for the same period, due to the 2-5 per cent discount granted by the Insular Drug Company, made a gross profit of
P5,003.31 and a net profit of P2,662.26. (Exhibit 25, Resume of Capitulation Statement.)
It is admitted that Commonwealth Act No. 108 does not provide for any penalty for the violation of any of its provisions. Section 1 of
Commonwealth Act No. 108, however, provides that "in all cases in which any constitutional] or legal provision requires Philippine or
United States citizenship as a requisite for the exercise of enjoyment of a right, franchise or privilege, any citizen of the Philippines or
the United States who allows his name or citizenship to be used for the purpose of evading such provision, and any alien or foreigner
profiting thereby, shall be punished by imprisonment for not less than two nor more than ten years, and a fine of not less than two
thousand nor more than ten thousand pesos." In Commonwealth Act No. 138, a domestic entity is defined as "any citizen of the
Philippines or of the United States habitually established in business and engaged in the manufacture or sale of the merchandise
covered by his bid, or any corporate body or commercial company duly organized and registered under the laws of the Philippines of
whose capital 75 per centum is owned by citizens of the Philippines or of the United States, or both." Section 4 of the same Act
emphasizes that "whenever several bidders shall participate in the bidding for supplying articles, materials and equipment for any of
the dependencies mentioned in section one of this Act for public use, public buildings, or public works, the award shall be made to
the domestic entity making the lowest bid, provided that it is not more than fifteen per centum in excess of the lowest bid made by
a bidder other than a domestic entity." We are of the opinion that any citizen of the Philippines or of the United States who
knowingly allows his name or citizenship to be used so that a person not 80 qualified may enjoy the privilege granted to domestic
entities by Commonwealth Act No. 138, as well as any alien or foreigner profiting thereby, is guilty of violation of Commonwealth
Act. No. 108.
The Insular Drug Company of which the appellant, Alfred Von Arend, is president and general manager, is a foreign entity because 75
per centum of its capital is not owned by Filipino or American citizens. On the other hand, the Padilla Central Distributors, as
organized by the appellant, Benito R. Padilla, which is a domestic entity, enjoys the privilege afforded by Commonwealth Act No.
138. The lower court found that the organization by the Padilla Central Distributors was but an ingenious scheme to evade the
requirements of Commonwealth Act No. 138 for the following reasons: (1) Benito R. Padilla did not invest a single centavo in the
Padilla Central Distributors for the reason that the Insular Drug company, through Alfred Von Arend, furnished him all the articles
ordered by the Government. Von Arend accounted for his operating capital on paper, and eventually they shared in the profits
realized with the award of government contracts to the Padilla Central Distributors. (2) The pledge agreement (Exhibit I) between
Benito R. Padilla and the Insular Drug Company was but a device to dispel the suspicion of business competitors and the authorities.
The pledge contract was not naturalized, it was never honored considering the monthly excess of Padilla’s account over the quota
therein specified. Although Benito R. Padilla and his wife had assigned their bank passbooks to Von Arend to answer for their credit,
Padilla always indorsed the government warrants to the Insular Drug Company which collected the face value of said warrants. (3)
Benito R. Padilla opened his office in the Insular Drug Company, and was allowed to use the latter’s telephone, warehouse and
delivery truck. This disproves the pretended independence of the Padilla Central Distributors from the Insular Drug Company. (4)
Padilla’s employees, Serafin Enriquez and Bartolome Salapong, are salaried men of the Insular Drug Company, and Padilla’s claim
that they were paid by him was not accepted by the lower court. (5) Benito R. Padilla had no tangible investment in the Padilla
Central Distributors, and it was Serafin Enriquez, his attorney-in-fact, and the secretary-treasurer of the Insular Drug Company, who
supervised all the business transactions, from the formal submission of the bids to the endorsement of the government warrants to
the Insular Drug Company. These are conclusions of facts which we are not inclined to disturb.
The lower court also found that the appellant, Alfred Von Arend, had profited by the scheme, for the reason that under section 4 of
the Flag Law, the Insular Drug Company being a foreign entity would have had to bid 15 per cent lower to successfully outbid a
domestic entity or a domestic bidder. With the establishment of the Padilla Central Distributors which submitted bids as a domestic
entity, the Insular Drug Company stood to lose only 2-5 per cent as a discount to Padilla. The advantage afforded by this
arrangement is proved by the fact that, as hereinabove stated, between the period comprised between September, 1937, and June,
1938 alone, Alfred Von Arend, as president, general manager, and controlling stockholder of the Insular Drug Company, received as
dividends the sum of P16,186, in addition to his monthly salary and expenses of P1,000 and P200, respectively; and Benito R. Padilla,
for the same period, realized a gross profit of P5,003.31.
It is contended, however, that notwithstanding the infringement of section 4 of Act No. 138, the defendants cannot be punished
therefor since the said Act No. 138 imposes no penal sanction whatsoever, and the penalty provided by Act No. 108 cannot be
correctly extended to and applied in this case. This argument is, in our opinion, without merit. The very title of Act No. 108 gives
unmistakable notice of the legislative intent and purpose of punishing all "acts evasion of the laws of the nationalization of certain
rights, franchises or privileges," and section 1 of the same Act applies the punishment provided therein to "all cases in which any
constitutional or legal provision requires Philippine or United States citizenship as a requisite for the exercise or enjoyment of a
right, franchise or privilege." Under Act No. 108 any legal provision, whether existing at the time of the passage of said Act No. 108
or promulgated thereafter, would fall within its scope, so long as said legal provision requires Philippine or United States citizenship
as a requisite for the enjoyment of a right, franchise or privilege. One of such legal provisions is section 4 of Commonwealth Act No.
138. While "statutes prescribing punishments or penalties should not be extended further than their terms reasonably justify"
(Snowden v. Brown, 60 Fla. 212, 53 So. 648, 649), this rule of strict construction is subordinate to the rule of reasonable, sensible
construction having in view the legislative purpose and intent, and giving effect to the same. It is not to be so unreasonably applied
as to defeat the true intent and meaning of the enactment found in the language actually used. (Chapman v. Lake, 161 So. 399, 402-
403.) Although not so expressly stated, Act No. 138 is cumulative of Act No. 108; and it is no objection that one statute creates an
offense and another Act provides for its punishment.
It is also urged that Acts Nos. 108 and 138 are unconstitutional: as to the former, because its provisions are vague and uncertain,
covered more than one subject, and deprived Alfred Von Arend of his liberty and property without due process of law; and as to the
latter, because it is contrary to Act No. 428 of the 72nd Congress of the United States. We have examined these Commonwealth Acts
and are of the opinion that they are constitutional. Commonwealth Act No. 108 is sufficiently clear, and prescribes with reasonable
certainty the elements of the offense that it punishes. It embraces only one general subject, to wit, the punishment of acts of
evasion of the laws on the nationalization of certain rights, franchises or privileges, which subject is fairly suggestive of, and not
foreign to, its intent and purpose. It does not deprive Alfred Von Arend, or any person for that matter, of liberty and property
without due process of law. As to Commonwealth Act No. 138, this cannot be said to be antagonistic to Act No. 428 of the 72nd
Congress of the United States. Fundamentally, it is in harmony with the congressional enactment.
The judgment of the lower court as to Alfred Von Arend is affirmed in all respects. As to Benito R. Padilla, the Court feels that as a
Filipino citizen he has proved himself lacking in civic consciousness and responsibility as to require censure and punishment at once
prompt and severe, in order to enliven the confidence of the people in their Government and their institutions. The penalty, in his
case, is accordingly increased to a minimum imprisonment of four (4) years to a maximum imprisonment of six (6) years and a fine of
P4,000, with subsidiary imprisonment in case of insolvency, both appellants to pay the costs. So ordered.
Avanceña, C.J., Imperial, Diaz and Horrilleno, JJ., concur.

G.R. No. 202060 December 11, 2013
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
FERDINAND BANZUELA, Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
The accused-appellant Ferdinand Banzuela (Banzuela) challenges in this appeal the August 31, 2011 Decision 1promulgated by the
Court of Appeals in CA-G.R. CR.-H.C. No. 03868, wherein he was convicted for Rape and Acts of Lasciviousness.
On July 25, 2003, Banzuela was charged with Rape and Attempted Rape under Article 335 of the Revised Penal Code in relation to
Republic Act No. 76102 before Branch 209, Regional Trial Court (RTC) of Mandaluyong City. The Information read as follows:
I. For Rape (Criminal Case No. MC03-919-FC-H)
That sometime [i]n February 2003, in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court,
the above-named accused, with lewd designs and by means of force and intimidation, did, then and there willfully, unlawfully and
feloniously have carnal knowledge with [AAA3], minor (6 years old), against her will and consent, thus debasing and/or demeaning
the intrinsic worth and dignity of the child as a human being.4
II.For Attempted Rape (Criminal Case No. MC03-918-FC-H)
That sometime in February 2003, in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court, the
above-namedaccused, did then and there willfully, unlawfully and feloniously attempt to have carnal knowledge of [BBB], a girl
seven (7)years of age, by then and there bringing her to a grassy portion of Mandaluyong Cemetery, made to lie down, undressed
her, thus directly by overt acts but failed to perform all acts of execution when a third party helped the victim to get away fromthe
accused.5
Banzuela pleaded not guilty to both charges during his arraignment on November 20, 2003. 6After the completion of the pre-trial
conference on January22, 2004,7 trial on the merits ensued.
The following narration of facts was made by theRTC and the Court of Appeals:
Version of the Prosecution
Sometime in February 2003, while six-year old AAA and seven-year old BBBwere watching TV in AAA’s house,Banzuela approached
them and asked them to go with him to the nearby cemetery. AAA and BBB refused, but Banzuela carried AAA awaypromptingBBB
to followsuit. Upon reaching the cemetery, Banzuela blindfolded BBB, who thereafter removed the blindfold and looked for AAA and
Banzuela. Meanwhile, Banzuela laid AAA on a dirty tomb, pulled up her dress, and removed her underwear. He thereafter removed
his shorts and briefs, mounted AAA, kissed her, inserted his penis in her vagina, and moved his body up and down against the crying
AAA. He threatened to kill her entire family if she ever spokeof the incident. When BBB finally found them,Banzuela hurriedly pulled
up his briefs and shorts and then ran away. BBB approached AAA and saw that there was blood on the tomb from AAA’s vagina.
They wiped the blood with a banana leaf, then proceeded to BBB’s house, where AAA washed her bloodied dress and underwear
before going back to AAA’s house.8
After the incident with AAA, Banzuela used the same method on BBB, the daughter of his mother’s half-brother. One morning in
February 2003, Banzuela asked BBB to go with him to the cemetery. When BBB refused, Banzuela carriedher out of the house and
broughther to the cemetery. BBB cried, but Banzuela proceeded to layher down on the ground,pulled her dress up, removed her
underwear, and kissed her. However, before Banzuela could doanything more, a man passed by causing Banzuela to flee the scene.
The man thereafter instructed BBB to go home. Upon reaching herhouse, Banzuela, who was already there, threatened her against
telling anyone of the incident, otherwise, he wouldkill everyone in their house. 9
AAA, with her mother, submitted herself for examination but both the Initial Medico-Legal Report10 and the Medico-Legal Report
No. M-0914-0311 stated that AAA was physically in a virgin state, and her hymen "intact."
Version of the Defense
Banzuela denied the accusations against him, claiming that he was working for at least twelve (12) hours a day at Bestflow Purified
Drinking Water Refilling Station the whole month of February 2003.To prove this, hesubmitted photocopies of his Daily Time Record
(DTR) from November 2002 to February 2003.12 Banzuela added that he did not go to the cemetery the entire February of 2003. 13
Ruling of theRTC
On February 27, 2009, the RTC convicted Banzuela of the crimes of rape of AAA and attempted rape of BBB. The dispositive portion
of the Decision14 reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:
1.In Criminal Case No. MC03-919-FC-H, finding accused FERDINAND BANZUELA guilty beyond reasonable doubt of the crime
of RAPE under Article 335 of the Revised Penal Code, as amended by R.A. 7659 and is hereby sentenced to suffer the
penalty of RECLUSION PERPETUAand to indemnify the victim, [AAA], of the sum of FIFTY THOUSAND (₱50,000.00) PESOS as
civil indemnity;[and]
2.In Criminal Case No. MC03-918-FC-H, finding accused FERDINAND BANZUELA guilty beyond reasonable doubt of the crime
of ATTEMPTED RAPE, and there being no mitigating or aggravating circumstances and pursuant to Article 51, in relation to
Article 335 of the Revised Penal Code, as amended, is hereby sentenced to suffer an indeterminate penalty of two (2) years,
four (4) months and one (1) day of pris[i]on correccionalas minimum to ten years and one (1) day of prision mayoras
maximum and to indemnify the victim, [BBB] of the sum of FIFTEEN THOUSAND (₱15,000.00) PESOS. 15 (Emphases supplied.)
In AAA’s charge of rape, the RTC deemed as insignificant the results of the medical examination thatAAA’s hymen was still intact.
The RTC, invoking established jurisprudence, said that the mere touching of the labia consummates rape, and that a broken hymen
is not an essential element of rape.The RTC added that a medical examination, in any event, was not essential in the prosecution of a
rape case, beingmerely corroborative in character. 16
The RTC also found the prosecution to have proved its charge of attempted rape against BBBas it was clear that Banzuelaintended to
have sexual congress with BBB had he not been unexpectedlydisturbed.17
Anent Banzuela’s defenseof alibi, the RTC did not give it merit for being weak. The RTC shot down the DTRs Banzuela presented for
not having been authenticated and verified, and for having been weakened by his own testimony. 18
In essence, the RTC decided in favor of the prosecutiondue to AAA’s and BBB’s testimonies, to wit:
The testimonies of AAA and BBB are worthy of credence as they were straightforward, spontaneous and "bore the hallmarks of
truth."More notable is that they wereable to withstand the rigors of cross-examination without wavering or being caught in
inconsistencies. Indeed, it defies belief that these victims, who were below 12 years old, would fabricate a sordid tale of sexual
abuse andindict their very own cousin. Theirtestimonies of the separate incidents of sexual abuse that happened to them recounted
vivid details that could not have been concocted by girls of tender age. The testimony of the complainants are consistent, clear and
free of serious contradictions.19
Ruling of the Court of Appeals
Having lost in the RTC, Banzuela appealed to the Court of Appeals, 20 which, on August 31, 2011, rendered a verdict no better than
the RTC’s,viz:
FOR THE STATED REASONS, the assailed Decision of the Regional Trial Court (Branch 209) of Mandaluyong City is AFFIRMED with the
following MODIFICATION:
1.In Criminal Case No. MC03-919-FC-H, Ferdinand Banzuela is sentenced to suffer the penalty of reclusion perpetuawithout
parole and to indemnify AAA the amounts of ₱75,000.00 as civil indemnity ex delicto, ₱75,000.00 as moral damages, and
₱25,000.00 as exemplary damages.
2.In Criminal Case No. MC03-918-FC-H, Ferdinand Banzuela is found guilty beyond reasonable doubt of acts of
lasciviousness and sentenced to an indeterminate penalty of 12 years, and 1 day of reclusion temporal, as minimum, to 16
years, reclusion temporal, as maximum and to indemnify BBB the amounts of ₱25,000.00 as moral damages and
₱10,000.00 as exemplary damages.21 (Citation omitted.)
In agreeing with the RTC’s finding of guilt, the Court of Appeals said that Banzuela failed to destroy the victims’ credibility or taint
their straightforward and categorical testimonies.22
However, the Court of Appeals did not agree with the RTC’s finding that Banzuela attempted to rape BBB. The Court of Appeals,
alluding to jurisprudence, said that "[a]ttempted rape is committed when the ‘touching’ of the vagina by the penis is coupled with
the intent to penetrate; otherwise, there can only be acts of lasciviousness."Thus, the Court of Appeals declared, that because
Banzuela’s intent to rape BBB was not clearly established, he couldonly be convicted of acts of lasciviousness.23
Issues
Undaunted, Banzuela elevated his case to this Court, 24 assigning the same errors he did before the appellate court, to wit:
ASSIGNMENT OF ERRORS
THE COURT A QUOGRAVELY ERRED IN GIVING WEIGHT TO THE MATERIALLY INCONSISTENT AND INCREDIBLE TESTIMONIES OF THE
PROSECUTION WITNESSES.
II
THE COURT A QUOGRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION’S FAILURE TO PROVE HIS
GUILT BEYOND REASONABLE DOUBT.25
Banzuela is attacking the credibility of the witnesses for being "highly inconsistent, unusual, doubtful and thus insufficient to sustain
a conviction." Banzuela claimed that AAA’s testimony was full of inconsistencies and contradictions, such as how she managed to
remove his hand from her mouth and yet she did not shout for help, how Banzuela managed to blindfold BBB while still carrying
her,and more importantly,how confused she was as to whether his penis actually penetrated heror simply touched her groin area.
Banzuela argued that the fact that AAA was still a virgin was confirmedby the medico-legal examination, and as the medico legal
officer said during his testimony, although the consensuswas that it is possible for a woman to remain a virgin physically despite
penetration, he himself has had no personal encounter of such a case. 26
Moreover, Banzuela said, even BBB's actions were highly unusual, considering the circumstances of her situation. First, Banzuela
said, BBB continued to follow him and AAA despite being blindfolded, instead of turning back and calling for help. Second,in view of
what BBB witnessed happened to AAA earlier that month, it was contrary to human nature, Banzuela averred, that she did not resist
or try to attract the attention of her neighbors when he brought her to the cemetery. 27
Finally, Banzuela reasoned, the prosecution cannot profit from the weakness of his defense in light of their failure to establish his
guilt beyond reasonable doubt. Thus, he said, he should be acquitted of the charges against him. 28
Ruling of this Court
We find no reason to reverse the conviction of Banzuela.
In essence, Banzuela’s appeal is hinged on the proposition that the victims were not credible witnesses for having made several
inconsistent statements when they testified in court.
We do not agree.
Credibility of the witnesses
The guidelines to follow, when this Court is confronted with the issue of credibility of witnesses on appeal, are established in
jurisprudence. In People v. Sanchez,29 we enumerated them as follows:
First, the Court gives the highest respect to the RTC’s evaluation of the testimony of the witnesses, considering its unique position in
directly observing the demeanor of a witness on the stand. From its vantage point, the trial court is in the best position to determine
the truthfulness of witnesses.
Second, absent any substantial reason which would justify the reversal of the RTC’s assessments and conclusions, the reviewing
court is generally bound by the lower court’s findings, particularly when no significant facts and circumstances, affecting the
outcome of the case, are shown to have been overlooked or disregarded.
And third, the rule is even more stringently applied if the CA concurred with the RTC. (Citations omitted.)
It is well-settled in this jurisdiction that the determination of the credibility of the witnesses is correctly assigned to the trial court,
which is in the best position to observe the demeanor and bodily movements of all the witnesses. 30Elucidating on the rationale for
this rule, this Court, in People v. Sapigao, Jr.,31 said:
It is well settled that the evaluation of the credibility of witnessesand their testimonies is a matter best undertaken by the trial court
because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct, and attitude under
grilling examination. These are important in determining thetruthfulness of witnesses and in unearthing the truth, especially in the
face of conflicting testimonies. For, indeed, the emphasis, gesture, and inflection of the voice are potent aids in ascertaining the
witness’ credibility, and the trial court has the opportunity and can take advantage of these aids. These cannot be incorporated in
the record so that all that the appellate court can see are the cold words of the witness contained in transcript of testimonies with
the risk that some of what the witness actually said may have been lost in the process of transcribing.As correctly stated by an
American court, "There is an inherent impossibility of determining with any degree of accuracy what credit is justly due to a witness
from merely reading the words spoken by him, even if there were no doubt as to the identity of the words. However artful a corrupt
witness may be, there is generally, under the pressure of a skillful cross-examination, something in his manner or bearing on the
stand that betrays him, and thereby destroys the force of his testimony. Many of the real tests of truth by which the artful witness is
exposed in the very nature of things cannot be transcribed upon the record, and hence they can never be considered by the
appellate court."(Citations omitted.)
In the case at bar, both the RTC and the Court of Appeals found the testimonies of the witnesses to be credible. Furthermore, this
Court’s own independent examination of the records leads us to the same conclusion. 32 As the Court of Appeals said, both AAA’s and
BBB’s testimonies were straightforward, detailed, and consistent. 33 Their credibility is further strengthened by their clear lack of
illmotive to falsify such a charge against their cousin, who shattered their youth and innocence. 34
The inconsistenciesin AAA’s testimony, as catalogued byBanzuela inhis brief,35 have no bearing in the determination of his guilt or
innocence, and are too trivial in character to damage AAA’s credibility. The material details of the rape were clearly
established,36 and BBB corroborated AAA’s testimony on every relevant point. As this Court stated in People v. Saludo37:
Rape is a painful experience which is oftentimes not remembered in detail.For such an offense is not analogous to a person’s
achievement or accomplishment as to be worth recalling or reliving; rather, it is something which causes deep psychological wounds
and casts a stigma upon the victim, scarring her psyche for life and which her conscious and subconscious mind would opt to
forget.Thus, a rape victim cannot be expected to mechanically keep and then give an accurate account of the traumatic and
horrifying experience she had undergone.(Citation omitted.)
BBB was likewise candid, straightforward, and detailed in her narration of not only how AAA was raped, but also of how she almost
suffered the same fate. Her allegedunusual actions during AAA’s ordeal, and laterhers, are not enough to discredit her. It has been
established that a victim of a heinous crime such as rape cannot be expectedto act with reason or in conformity with society’s
expectations. This acquires greater significance where the victim is a child of tender age. The workings of a human mind placed
under emotional stress cannot be predicted; and people cannot be expected to act as usual in an unfamiliar situation. Furthermore,
it is not accurate to say that there is a standard reaction or norm of behavior among rape victims, as each of them had to deal
withdifferent circumstances.38
Crime of Rape proven
beyond reasonable doubt
Sexual intercourse with a woman below 12 years of age, whether she consented to it or not, is punishable as rape under our laws. As
such, proof of force, threat, or intimidation is unnecessary in cases of statutory rape, they, not being elements of the crime. When
the complainant is below 12 years old, the absence of free consent is conclusively presumedas the law supposes that a woman
below this age does not possess discernment and is incapable of giving intelligent consent to the sexual act. 39
In order to successfully convict an accused ofstatutory rape, the prosecution must prove the following:
1.The age of the complainant;
2.The identity of the accused; and
3.The carnal knowledge between the accused and the complainant. 40
The first element was established by the prosecution upon the presentation and submission to the court of a Certification from the
Office of the Municipal Civil Registrarof Mandaluyong City dated August24, 2004 stating that AAA was born on September 10,
1996.41 Hence, she was only 6 years old when the rape was committed in February 2003.
The second elementwas clearly satisfied when AAA positively and consistently identified Banzuela as her offender. 42
As regards the third element,it is instructive to define "carnal knowledge" in the context it is used in the Revised Penal Code:
‘[C]arnal knowledge,’ unlike its ordinary connotation of sexual intercourse, does not necessarily require that the vagina be
penetrated or that the hymen be ruptured. The crime of rape is deemed consummated even when the man’s penis merely enters
the labia or lips of the female organ or, as once so said in a case, by the ‘mere touchingof the external genitalia by a penis capable of
consummating the sexual act.43 (Citations omitted.)
This element was proven when AAA detailed in open court how Banzuela forcefully inserted his sex organ into her genitalia in
February 2003 and how she felt pain during her ordeal.
Banzuela makes much of the fact that the medico-legal examination yielded negative results, i.e.,that AAA remained a virgin. This
Court, in People v. Boromeo,44 suitably refuted that argument, viz:
Proof of hymenal laceration is not an element of rape.An intact hymen does not negate a finding that the victim was raped.To
sustain a conviction for rape, full penetration of the female genital organ is not necessary.It is enough that there is proof of entry of
the male organ into thelabiaof thepudendumof the female organ. Penetration of the penis by entry into the lips of the vagina, even
without laceration of the hymen, is enough to constitute rape,and even the briefest of contact is deemed rape.As long as the
attempt to insert the penis results in contact with the lips of the vagina, even without rupture or laceration of the hymen, the rape is
consummated.x x x. (Citations omitted.)
Significantly, as this Court has held before,45 the pain that AAA suffered is, in itself, an indicator of the commission of rape.Moreover,
AAA’s ordeal was witnessed by BBB, who in fact was the one who told AAA’s mother about the incident.Thus, contrary to Banzuela’s
assertions, this Court is convinced that the prosecution was able to establish that he had carnal knowledge of AAA, making him
guilty beyond reasonable doubt of thecrime of rape.
Crime of Attempted Rape not established

but crime of Acts of Lasciviousness
provenbeyond reasonable doubt
Upon appeal, the Court of Appeals found no evidence to provewith the moral certainty required by lawthat Banzuela intended to
have carnal knowledge of BBB, thus, it modified the crime the RTC convicted Banzuela of from Attempted Rape under Article266-A,
paragraph 1(d) in relation to Article51 of the Revised Penal Code, to Acts of Lasciviousness under Article 336 of the Revised Penal
Codein relation to Republic Act No. 7610.
This Court agrees with the Court of Appeals. In an attempt to commit a felony, the offender commences the commission of such
felony directly by overt acts, but does not perform all the acts of execution, which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance. 46 In other words, a crime is in its attempted stage when the offender
has already performed the acts preliminary to the consummation of the crime. However, because of some reason besides his own
spontaneous desistance, he is not able to perform all the acts necessary to consummate the crime. The elements, therefore, of an
attempted felony are as follows:
1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;
3. The offender’s act be not stopped by his own spontaneous desistance; and
4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous
desistance.47 (Citation omitted.)
In the crime of rape, penetration, however slight, is an essential act of execution that produces such felony. Thus, for Banzuela to be
convicted of the crime of attempted rape, he must have already commenced the act of inserting his sexual organ in the vagina of
BBB, but due to some cause or accident, excluding his own spontaneous desistance, he wasn’t able to even slightly penetrate BBB.48
It has not escaped this Court that rape and acts of lasciviousness are crimes of the same nature.However, the intent to lie with the
woman is the fundamental difference between the two, as it is present in rape or attempt of it,and absent in acts of
lasciviousness.49 "Attempted rape is committed when the ‘touching’ of the vagina by the penis is coupledwith the intent to
penetrate; otherwise, there can only be acts of lasciviousness."50
In this case, Banzuela’s acts oflaying BBBon the ground,undressing her,and kissing her,"do not constitute the crime of attempted
rape, absent any showing that [Banzuela] actually commenced to force his penis into [BBB’s] sexual organ." 51
The fact that Banzuelaemployed on BBB the exactsame tactics he used on AAA–from the invitation to go to the cemeteryto visit
their dead relatives, to the carrying of the child when she refused, to the laying down of the child, undressing her, and kissing her,
cannot justify the presumption that he intended to rape BBB, just like he did AAA. "Such a presumption hardly constitutes proof
beyond reasonable doubt of the crime of attempted rape. The gauge in determining whether the crime of attempted rape had been
committed is the commencement of the act of sexual intercourse,i.e., penetration of the penis into the vagina,before the
interruption."52 Here, Banzuela was not even able to commence the act of sexual intercourse as he still had his pants on. Whatthe
prosecution was able to establish in Criminal Case No. MC03-918-FC-H is that Banzuela was able to lay down BBB, undress her, and
kiss her,before the untimely arrival of a third party.Such acts, as the Court of Appeals said,53 constitute lascivious conduct.
Article 336 of the Revised Penal Codeprovides for the crime of acts of lasciviousness as follows:
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.
Its elements are:
(1) That the offender commits any act of lasciviousness or lewdness;
(2) That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise unconscious; or
c. When the offended party is under 12 years of age; and
(3) That the offended party is another person of either sex. 54 (Citation omitted.)
The foregoing elements are clearly present in BBB’s case, and were sufficiently established during trial. Although the crime charged
against Banzuela was for attempted rape, convicting him for the crime of acts of lasciviousness does not violate any of his rights as
such crime is included in the crime of rape.55
Anent BBB’s actions or inaction, suffice it to say that BBB was direct and consistent in narrating her own experience with
Banzuela.The argument that she did not struggle, asked for help, or shout from when shewas carried out of her house and brought
to the cemetery isunavailing. "[F]ailure of the offended party to make a struggle or outcry is immaterial in the rape of a child below
twelve years of age because the law presumes that the victim on account of her age does not and cannot have a will of her own." 56
Banzuela’s Defense
We agree with the lower courts that Banzuela’s defense of alibi hardly deserves credit. Such defense is one of the weakest not only
because it is inherently frail and unreliable, but also because it is easy to fabricate and difficult to check or rebut. 57 Thus, for alibi to
succeed as a defense, the following must be established by clear and convincing evidence:
1. The accused’s presenceat another place at the time of the perpetration of the offense;and
2. The physical impossibility of the accused’spresence at the scene of the crime. 58
Banzuela himself admitted the proximity of his work place and his residence to the houses of AAA and BBB and the cemetery. As
such, his alibi is negated by the fact that it was not physically impossible for him to have been at the cemetery wherethe crimes
occurred.59
The presentation of Banzuela’s DTRs is also unpersuasive for lack of corroboration. The DTRs were mere photocopies, Banzuela
himself made the entries therein, and they bore no signaturefrom any of his employers. If in fact the owner of the refilling station
was no longer in the country, his former manager or the brother of the owner, from whom Banzuela’s mother was able to procure
the photocopied DTRs could have testified to confirm the veracity of the entries therein. Banzuela’s alibi therefore cannot prevail
over the credible testimonies and positive identification that he was theperpetrator of the crimes, by AAA and BBB, who have known
him prior to the incidents, as their cousin.
Liability for Rape
Article 266-A, paragraph (1)d of the Revised Penal Code, as amended by Republic Act No. 8353, 60 which is the basis of statutory rape,
provides as follows:
Article 266-A. Rape; When and How Committed. –Rape is committed –
1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:
xxxx
d) When the offended party is under twelve (12) years of ageor is demented, even though none of the circumstances mentioned
above be present.
Undoubtedly, AAA was below 12 years old at the time she was raped. However, the law qualifies the crime of statutory rape when it
is committed on a child below seven years old, to wit:
Article 266-B. Penalties. –Rape under paragraph 1 of the next preceding article shall be punished byreclusion perpetua.
xxxx
The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying
circumstances:
xxxx
5) When the victim is a child below seven (7) years old.
For having been found guilty of the crime of qualified rape, AAA being a child below seven years of age when the crime occurred, the
death penalty should have been imposed on Banzuela. However, Republic Act No. 9346, 61which took effect on June 24, 2006,
prohibits the imposition of the death penalty. Under this Act, the lower courts correctly imposed upon Banzuela the penalty of
reclusion perpetuawithout eligibility for parole62 in lieu of the death penalty.63
Liability for Acts of Lasciviousness
The Court of Appeals convicted Banzuela of acts of lasciviousness under Article336 of the Revised Penal Codein relation to Section
5(b) of Republic Act No. 7610. For Banzuela to be convicted as such, both the requisites of acts of lasciviousness under Article336 of
the Revised Penal Codeas earlier discussed, and sexual abuse under Section5 of Republic Act No. 7610,must be met and established
by the prosecution.64 The following are the elements of sexual abuse under Section5, Article III of Republic Act No. 7610:
(1) The accused commits the act of sexual intercourse or lascivious conduct;
(2) The said act is performed witha child exploited in prostitution or subjected to other sexual abuse; and
(3) The child, whether male or female, is below 18 years of age.65
A review of the Information filed against Banzuela reveals that there was no allegation of the second element of Section 5, Article III
of Republic Act No. 7610 –that the act is performed with a child exploited in prostitution or subjected to other sexual abuse. There
was also noattempt to prove that element, as it would have been a violation of Banzuela’s constitutional right to be informed of the
nature and cause of the accusation against him. Although the Information stated that the crime being charged was in relation to
Republic Act No. 7610, it is a well-settled rule that "the character of the crime is determined neither by the caption or preamble of
the information[,]nor by the specification of the provision of law alleged to have been violated, they being conclusions of law, but by
the recital of the ultimate facts and circumstances in the information."66 Therefore, Banzuela can only be punished under Article336
of the Revised Penal Code.
The penalty for acts of lasciviousness under Article336 of the Revised Penal Codeis prision correccionalin its full range. Applying the
Indeterminate Sentence Law,67 the minimum of the indeterminate penalty shall be taken from the full range of the penalty next
lower in degree,68 i.e., arresto mayor, which ranges from 1 month and 1 dayto 6 months. 69 The maximum of the indeterminate
penalty shall come from theproper penalty70 that could be imposed under the Revised Penal Codefor Acts of Lasciviousness.71 In this
case, since there are neither aggravating nor mitigating circumstances, the imposable penalty is the medium period of prision
correccional, which ranges from 2 years, 4 months and 1 day to 4 years and 2 months. 72
Banzuela is hereby sentenced to suffer the penalty of 6 months ofarresto mayor, as minimum, to 4 years and 2 monthsofprision
correccional, as maximum.73
In line with prevailing jurisprudence, the Court increases the award of exemplary damages from₱25,000.00 to₱30,000.00to AAA
(rape);74 and awards ₱20,000.00as civil indemnity, ₱30,000.00as moral damages, and ₱10,000.00as exemplary damages to BBB (acts
of lasciviousness).75
WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 03868 is hereby AFFIRMEDwith
MODIFICATION.
1. In Criminal Case No. MC03-919-FC-H, we find accused-appellant Ferdinand BanzuelaGUILTY ofRape defined and
penalized underArticles266-A and 266-B of the Revised Penal Code, as amended.1âwphi1 Heis sentenced toreclusion
perpetuawithout the possibility of parole; and is ORDERED to pay the victim, AAA,₱75,000.00 as civil indemnity;₱75,000.00
as moral damages;and₱30,000.00 as exemplary damages, all with interest at the rate of 6% per annumfrom the date of
finality of this judgment;and
2. In Criminal Case No. MC03-918-FC-H, we find accused-appellant Ferdinand BanzuelaGUILTYof Acts of Lasciviousness,
defined and penalized under Article 336 of the Revised Penal Code, as amended. He is sentenced toan indeterminate prison
term of6 months ofarresto mayor, as minimum, to 4 years and 2 months ofprision correccional, as maximum; and
isORDEREDto pay the victim, BBB,₱20,000.00 as civil indemnity,₱30,000.00 as moral damages, and₱10,000.00 as exemplary
damages, all with interest at the rate of 6% per annumfrom the date of finality of this judgment. SO ORDERED.
G.R. No. 129433 March 30, 2000
PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita 1 finally did away with frustrated rape 2 and allowed only attempted rape and
consummated rape to remain in our statute books. The instant case lurks at the threshold of another emasculation of the stages of
execution of rape by considering almost every attempt at sexual violation of a woman as consummated rape, that is, if the contrary
view were to be adopted. The danger there is that that concept may send the wrong signal to every roaming lothario, whenever the
opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since after all any attempted fornication would be
considered consummated rape and punished as such. A mere strafing of the citadel of passion would then be considered a
deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the victim since by it he
attained his objective. All the elements of the offense were already present and nothing more was left for the offender to do, having
performed all the acts necessary to produce the crime and accomplish it. We ruled then that perfect penetration was not essential;
any penetration of the female organ by the male organ, however slight, was sufficient. The Court further held that entry of the labia
or lips of the female organ, even without rupture of the hymen or laceration of the vagina, was sufficient to warrant conviction for
consummated rape. We distinguished consummated rape from attempted rape where there was no penetration of the female organ
because not all acts of execution were performed as the offender merely commenced the commission of a felony directly by overt
acts. 3The inference that may be derived therefrom is that complete or full penetration of the vagina is not required for rape to be
consummated. Any penetration, in whatever degree, is enough to raise the crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of the female organ, even if
there be no rupture of the hymen or laceration of the vagina, to warrant a conviction for consummated rape. While the entry of the
penis into the lips of the female organ was considered synonymous with mere touching of the external genitalia, e.g., labia majora,
labia minora, etc.,4 the crucial doctrinal bottom line is that touching must be inextricably viewed in light of, in relation to, or as an
essential part of, the process of penile penetration, and not just mere touching in the ordinary sense. In other words, the touching
must be tacked to the penetration itself. The importance of the requirement of penetration, however slight, cannot be gainsaid
because where entry into the labia or the lips of the female genitalia has not been established, the crime committed amounts
merely to attempted rape.
Verily, this should be the indicium of the Court in determining whether rape has been committed either in its attempted or in its
consummated stage; otherwise, no substantial distinction would exist between the two, despite the fact that penalty-wise, this
distinction, threadbare as it may seem, irrevocably spells the difference between life and death for the accused — a reclusive life
that is not even perpetua but only temporal on one hand, and the ultimate extermination of life on the other. And, arguing on
another level, if the case at bar cannot be deemed attempted but consummated rape, what then would constitute attempted rape?
Must our field of choice be thus limited only to consummated rape and acts of lasciviousness since attempted rape would no longer
be possible in light of the view of those who disagree with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a quo to the extreme
penalty of death, 5 hence this case before us on automatic review under Art. 335 of the Revised Penal Code as amended by RA
7659. 6
As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in the afternoon, Ma. Corazon P. Pamintuan,
mother of four (4)-year old Crysthel Pamintuan, went down from the second floor of their house to prepare Milo chocolate drinks
for her two (2) children. At the ground floor she met Primo Campuhan who was then busy filling small plastic bags with water to be
frozen into ice in the freezer located at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon
was busy preparing the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!" 7 prompting Corazon to rush upstairs.
Thereupon, she saw Primo Campuhan inside her children's room kneeling before Crysthel whose pajamas or "jogging pants" and
panty were already removed, while his short pants were down to his knees.
According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified, she cursed the accused, "P - t - ng ina mo, anak ko
iyan!" and boxed him several times. He evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to block
his path. Corazon then ran out and shouted for help thus prompting her brother, a cousin and an uncle who were living within their
compound, to chase the accused. 8 Seconds later, Primo was apprehended by those who answered Corazon's call for help. They held
the accused at the back of their compound until they were advised by their neighbors to call the barangay officials instead of
detaining him for his misdeed. Physical examination of the victim yielded negative results. No evident sign of extra-genital physical
injury was noted by the medico-legal officer on Crysthel's body as her hymen was intact and its orifice was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed the charge as a mere
scheme of Crysthel's mother who allegedly harbored ill will against him for his refusal to run an errand for her. 9 He asserted that in
truth Crysthel was in a playing mood and wanted to ride on his back when she suddenly pulled him down causing both of them to
fall down on the floor. It was in this fallen position that Corazon chanced upon them and became hysterical. Corazon slapped him
and accused him of raping her child. He got mad but restrained himself from hitting back when he realized she was a woman.
Corazon called for help from her brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him and threatened to kill
him. Upon hearing the threat, Primo immediately ran towards the house of Conrado Plata but Vicente followed him there. Primo
pleaded for a chance to explain as he reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo
saw Vicente holding a piece of lead pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives
and neighbors of Vicente prevailed upon him to take Primo to the barangay hall instead, and not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of statutory rape, sentenced
him to the extreme penalty of death, and ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary
damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her narration should not be
given any weight or credence since it was punctured with implausible statements and improbabilities so inconsistent with human
nature and experience. He claims that it was truly inconceivable for him to commit the rape considering that Crysthel's younger
sister was also in the room playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence alone
as possible eyewitnesses and the fact that the episode happened within the family compound where a call for assistance could easily
be heard and responded to, would have been enough to deter him from committing the crime. Besides, the door of the room was
wide open for anybody to see what could be taking place inside. Primo insists that it was almost inconceivable that Corazon could
give such a vivid description of the alleged sexual contact when from where she stood she could not have possibly seen the alleged
touching of the sexual organs of the accused and his victim. He asserts that the absence of any external signs of physical injuries or
of penetration of Crysthel's private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo with his short pants
down to his knees kneeling before Crysthel whose pajamas and panty were supposedly "already removed" and that Primo was
"forcing his penis into Crysthel's vagina." The gravamen of the offense of statutory rape is carnal knowledge of a woman below
twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when sexually molested,
thus raising the penalty, from reclusion perpetuato death, to the single indivisible penalty of death under RA 7659, Sec. 11, the
offended party being below seven (7) years old. We have said often enough that in concluding that carnal knowledge took place, full
penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the
external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge. 10 But the act of
touching should be understood here as inherently part of the entry of the penis into the labias of the female organ and not mere
touching alone of the mons pubis or the pudendum.
In People v. De la Peña 11 we clarified that the decisions finding a case for rape even if the attacker's penis merely touched the
external portions of the female genitalia were made in the context of the presence or existence of an erect penis capable of full
penetration. Where the accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit
into the victim's vagina, the Court nonetheless held that rape was consummated on the basis of the victim's testimony that the
accused repeatedly tried, but in vain, to insert his penis into her vagina and in all likelihood reached the labia of her pudendum as
the victim felt his organ on the lips of her vulva, 12 or that the penis of the accused touched the middle part of her vagina. 13 Thus,
touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a
scrape of the penis on the external layer of the victim's vagina, or the mons pubis, as in this case. There must be sufficient and
convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface
thereof, for an accused to be convicted of consummated rape. 14 As the labias, which are required to be "touched" by the penis, are
by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some
degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the
pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis,
labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes
hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ
composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is
pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the
labia majora is the labia minora. 15 Jurisprudence dictates that the labia majora must be entered for rape to be consummated, 16 and
not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the
mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of
the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can
only be attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female organ," 17but has also
progressed into being described as "the introduction of the male organ into the labia of the pudendum," 18 or "the bombardment of
the drawbridge." 19 But, to our mild, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier
stated, a "strafing of the citadel of passion.
A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving that Primo's penis was
able to penetrate Crysthel's vagina however slight. Even if we grant arguendo that Corazon witnessed Primo in the act of sexually
molesting her daughter, we seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and
Crysthel. When asked what she saw upon entering her children's room Corazon plunged into saying that she saw Primo poking his
penis on the vagina of Crysthel without explaining her relative position to them as to enable her to see clearly and sufficiently, in
automotive lingo, the contact point. It should be recalled that when Corazon chanced upon Primo and Crysthel, the former was
allegedly in a kneeling position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of the accused is pinning down the victim, while his right hand
is holding his penis and his left hand is spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that Primo's kneeling position rendered an unbridled observation
impossible. Not even a vantage point from the side of the accused and the victim would have provided Corazon an unobstructed
view of Primo's penis supposedly reaching Crysthel's external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the
legs and arms of Primo would have hidden his movements from Corazon's sight, not to discount the fact that Primo's right hand was
allegedly holding his penis thereby blocking it from Corazon's view. It is the burden of the prosecution to establish how Corazon
could have seen the sexual contact and to shove her account into the permissive sphere of credibility. It is not enough that she
claims that she saw what was done to her daughter. It is required that her claim be properly demonstrated to inspire belief. The
prosecution failed in this respect, thus we cannot conclude without any taint of serious doubt that inter-genital contact was at all
achieved. To hold otherwise would be to resolve the doubt in favor of the prosecution but to run roughshod over the constitutional
right of the accused to be presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely appearance, thus giving her
the opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain where he is and persist in satisfying his
lust even when he knows fully well that his dastardly acts have already been discovered or witnessed by no less than the mother of
his victim. For, the normal behavior or reaction of Primo upon learning of Corazon's presence would have been to pull his pants up
to avoid being caught literally with his pants down. The interval, although relatively short, provided more than enough opportunity
for Primo not only to desist from but even to conceal his evil design.
What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the court —
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No." Thus —
Q: But did his penis penetrate your organ?
A: No, sir. 20
This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this case was
consummated. It has foreclosed the possibility of Primo's penis penetrating her vagina, however slight. Crysthel made a categorical
statement denying penetration, 27 obviously induced by a question propounded to her who could not have been aware of the finer
distinctions between touching and penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)-year old
child, whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of worldly sophistication, an adult
interpretation that because the penis of the accused touched her organ there was sexual entry. Nor can it be deduced that in trying
to penetrate the victim's organ the penis of the accused touched the middle portion of her vagina and entered the labia of her
pudendum as the prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel. 22 Corazon did not say,
nay, not even hint that Primo's penis was erect or that he responded with an erection. 23 On the contrary, Corazon even narrated
that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate his
victim.
Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied by the child's own assertion that she
resisted Primo's advances by putting her legs close together; 24 consequently, she did not feel any intense pain but just felt "not
happy" about what Primo did to her. 25 Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration
was not fully established, the Court had anchored its conclusion that rape nevertheless was consummated on the victim's testimony
that she felt pain, or the medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora was already gaping
with redness, or the hymenal tags were no longer visible. 26 None was shown in this case. Although a child's testimony must be
received with due consideration on account of her tender age, the Court endeavors at the same time to harness only what in her
story appears to be true, acutely aware of the equally guaranteed rights of the accused. Thus, we have to conclude that even on the
basis of the testimony of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to
death.1âwphi1
Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external signs of physical injuries on
complaining witness' body to conclude from a medical perspective that penetration had taken place. As Dr. Aurea P. Villena
explained, although the absence of complete penetration of the hymen does not negate the possibility of contact, she clarified that
there was no medical basis to hold that there was sexual contact between the accused and the victim. 27
In cases of rape where there is a positive testimony and a medical certificate, both should in all respects complement each other;
otherwise, to rely on the testimonial evidence alone, in utter disregard of the manifest variance in the medical certificate, would be
productive of unwarranted or even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in
reality entered the labial threshold of the female organ to accurately conclude that rape was consummated. Failing in this, the thin
line that separates attempted rape from consummated rape will significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of
rape directly by overt acts, and does not perform all the acts of execution which should produce the crime of rape by reason of some
cause or accident other than his own spontaneous desistance. All the elements of attempted rape — and only of attempted rape —
are present in the instant case, hence, the accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is
statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years
and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating
circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of reclusion
temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while
the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years
and one (1) day to twelve (12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and
sentencing him to death and to pay damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an
indeterminate prison term of eight (8) years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen
(14) years ten (10) months and twenty (20) days of reclusion temporal medium as maximum. Costs de oficio.
SO ORDERED.1âwphi1.nêt
G.R. No. 180425 July 31, 2008
FELIX RAIT, Petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES, Respondent.
RESOLUTION
NACHURA, J.:
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of the Court of
Appeals (CA) Decision1 in CA-G.R. CR No. 23276 dated January 26, 2006 and its Resolution 2 dated October 10, 2007. The Court of
Appeals upheld the Decision3 of the Regional Trial Court (RTC) of Cagayan de Oro City, Branch 20, wherein petitioner Felix Rait was
convicted of attempted rape.
On November 18, 2003, AAA4 asked permission from her parents to go to her brother’s house in Nazareth Street to get her athletic
pants. When she was there, her brother requested her to buy cigarettes from a nearby store. While in the store, petitioner Rait and
one Janiter Pitago arrived. The two ordered beer and invited AAA to join them. She initially refused. However, when Aurora Raez,
another neighbor, joined them, AAA was forced to drink beer. After drinking a glass of beer, she became drunk. When she was
feeling weak, petitioner and his co-accused brought her out to 20th and 21st Streets where the petitioner and his co-accused
brought her to the side of the street and forcibly removed her pants and underwear. Petitioner then forcibly inserted his finger into
her vagina. AAA tried to shout for help but petitioner covered her mouth while Pitago held her feet. Petitioner was on top of her and
about to insert his penis into her vagina but she was able to kick both men and run away. 5
AAA then went to her brother’s house and related the incident to him. Her brother went out to find petitioner. When AAA’s brother
did find petitioner, he tried to beat petitioner with a stick but the latter ran away. AAA and her brother then went home to their
parents’ house in Tambo, Macasandig, Cagayan de Oro City and told them what happened. At about 3:00 a.m. of November 19, AAA
was accompanied by her brother and stepmother to Operation Kahusay ug Kalinaw to report the incident. They also went to Bombo
Radyo to appeal for help in apprehending petitioner. From there, they went to the Provincial Hospital for AAA to undergo medical
examination.6 They then proceeded to the police station where the incident was recorded on the police blotter under Entry No.
8085.7
On May 26, 1994, Rait and Pitago were charged in an Information, which reads:
That on or about November 19, 1993, at 2:00 o’clock in the morning, more or less (sic) at Nazareth, Cagayan de Oro City, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually
helping one another, did then and there, wilfully (sic), unlawfully and feloniously commence the commission of the crime of Rape,
directly by overt acts, on the person of a [17-year-old] minor, [AAA], by then and there (sic), with force and against the latter’s will
while she was in a state of intoxication, touching her breasts, removing her panty, holding her feet (by Janiter Pitago) and lying on
top of her (by Felix Rait), but did not perform all the acts of execution which would produce the crime of Rape, by reason of some
cause other than his own spontaneous desistance, that in when (sic) offended party was able to kick them and the two ran away.
Contrary to and in violation of Article 335 in relation to Article 6, of the Revised Penal Code.
After trial, the RTC rendered a Decision, the dispositive portion of which reads:
WHEREFORE, premises considered, this court hereby finds the accused Felix Rait guilty beyond reasonable doubt of the crime of
Attempted Rape.
The basic penalty for Attempted Rape under Article 335 is two degrees lower than Reclusion Perpetua or Prision Mayor in its full
extent. Applying the Indeterminate Sentence Law, the accused is entitled to a penalty lower to (sic) Prision Mayor or that of Prision
Correccional in its full extent, (sic) hence, accused FELIX RAIT is sentenced to an Indeterminate Sentence of PRISION CORRECCIONAL
in its medium period as the minimum to PRISION MAYOR in its medium period as the maximum under the same law.
The accused is entitled to his credit in full (sic) in his favor the period during which he was under preventive imprisonment pending
litigation.
Accused herein is further ordered to pay the complainant the sum of ₱20,000.00 pesos (sic) as indemnity for Attempted rape to the
complainant (sic); ₱5,000.00 pesos (sic) for actual damages and expenses and to pay the costs.
SO ORDERED.8
Petitioner appealed the judgment to the CA-Cagayan de Oro. Petitioner alleged that the RTC erred in: (1) giving credence to the
prosecution witnesses despite their inconsistent, contradictory and incredible testimonies; (2) in not finding that petitioner was
implicated in the case by reason of spite and vengeance; and (3) in finding petitioner guilty beyond reasonable doubt of the crime of
attempted rape despite the failure of the prosecution to prove his guilt. 9
The CA denied the appeal and affirmed the trial court’s ruling in all respects. 10 Petitioner’s motion for reconsideration was likewise
denied.
Petitioner now comes before this Court on the following grounds:
THE HONORABLE COURT OF APPEALS IN AFFIRMING THE DECISION OF THE TRIAL COURT CONVICTING THE PETITIONER FOR
THE CRIME OF ATTEMPTED RAPE, DECIDED A QUESTION OF SUBSTANCE NOT IN ACCORD WITH THE LAW ON RAPE AND
JURISPRUDENCE ON THE MATTER.
THAT THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR IN [NOT DOWNGRADING] THE CRIME OF
ATTEMPTED RAPE TO ACTS OF LASCIVIOUSNESS IF NOT THAT OF UNJUST VEXATION. 11
Petitioner argues that he should be acquitted of the crime of attempted rape. If he is to be found guilty of any offense, he puts
forward the theory that based on this Court’s ruling in Baleros, Jr. v. People, 12 he should be convicted only of unjust vexation.
The petition is bereft of merit. We deny the Petition for Review.
First, the findings of fact of the trial court, especially when affirmed by the CA, are conclusive upon this Court. In this case, the trial
court found the acts imputed to petitioner to have been duly proven by the evidence beyond reasonable doubt. We are bound by
such finding.
On the strength of those proven facts, the next question is: what was the offense committed?
Petitioner argues that this Court’s ruling in Baleros is applicable to his case.
In Baleros, accused was convicted of attempted rape. The CA sustained the conviction. Upon review, this Court reversed the
conviction and found accused guilty of light coercion. The Court declared:
Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in People vs. Lamahang, stated
that "the attempt which the Penal Code punishes is that which has a logical connection to a particular, concrete offense; that which is
the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation."
Absent the unavoidable connection, like the logical and natural relation of the cause and its effect, as where the purpose of the
offender in performing an act is not certain, meaning the nature of the act in relation to its objective is ambiguous, then what
obtains is an attempt to commit an indeterminate offense, which is not a juridical fact from the standpoint of the Penal Code.
There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. The next question
that thus comes to the fore is whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top of
Malou, constitutes an overt act of rape.
concrete offense.
Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's act of pressing a
chemical-soaked cloth in the mouth of Malou which would induce her to sleep as an overt act that will logically and necessarily ripen
into rape. As it were, petitioner did not commence at all the performance of any act indicative of an intent or attempt to rape
Malou. It cannot be overemphasized that petitioner was fully clothed and that there was no attempt on his part to undress Malou,
let alone touch her private part. For what reason petitioner wanted the complainant unconscious, if that was really his immediate
intention, is anybody’s guess. The CA maintained that if the petitioner had no intention to rape, he would not have lain on top of the
complainant. Plodding on, the appellate court even anticipated the next step that the petitioner would have taken if the victim had
been rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual organ is not yet exposed because
his intended victim is still struggling. Where the intended victim is an educated woman already mature in age, it is very unlikely that
a rapist would be in his naked glory before even starting his attack on her. He has to make her lose her guard first, or as in this case,
her unconsciousness.
At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule on evidence in criminal cases.
For, mere speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable
doubt.
xxxx
Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of any wrongdoing whatsoever. The
information filed against petitioner contained an allegation that he forcefully covered the face of Malou with a piece of cloth soaked
in chemical. And during the trial, Malou testified about the pressing against her face of the chemical-soaked cloth and having
struggled after petitioner held her tightly and pinned her down. Verily, while the series of acts committed by the petitioner do not
determine attempted rape, as earlier discussed, they constitute unjust vexation punishable as light coercion under the second
paragraph of Article 287 of the Revised Penal Code. In the context of the constitutional provision assuring an accused of a crime the
right to be informed of the nature and cause of the accusation, it cannot be said that petitioner was kept in the dark of the
inculpatory acts for which he was proceeded against. To be sure, the information against petitioner contains sufficient details to
enable him to make his defense. As aptly observed by then Justice Ramon C. Aquino, there is no need to allege malice, restraint or
compulsion in information for unjust vexation. As it were, unjust vexation exists even without the element of restraint or compulsion
for the reason that this term is broad enough to include any human conduct which, although not productive of some physical or
material harm, would unjustly annoy or irritate an innocent person. The paramount question is whether the offender’s act causes
annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is directed. That Malou, after the
incident in question, cried while relating to her classmates what she perceived to be a sexual attack and the fact that she filed a case
for attempted rape proved beyond cavil that she was disturbed, if not distressed by the acts of petitioner. 13
We are not persuaded by petitioner’s argument. Several facts attendant to this case distinguish it from Baleros, enough to convince
us to arrive at a different conclusion.
Unlike in Baleros, the acts of petitioner clearly establish his intention to commence the act of rape. Petitioner had already
successfully removed the victim’s clothing and had inserted his finger into her vagina. It is not empty speculation to conclude that
these acts were preparatory to the act of raping her. Had it not been for the victim’s strong physical resistance, petitioner’s next step
would, logically, be having carnal knowledge of the victim. The acts are clearly "the first or some subsequent step in a direct
movement towards the commission of the offense after the preparations are made." 14
Under Article 6, in relation to Article 335, of the Revised Penal Code, rape is attempted when the offender commences the
commission of rape directly by overt acts, and does not perform all the acts of execution which should produce the crime of rape by
reason of some cause or accident other than his own spontaneous desistance. 15
This Court has held that an overt or external act -
is defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or
preparation, which if carried out to its complete termination following its natural course, without being frustrated by external
obstacles nor by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. The
raison d’etre for the law requiring a direct overt act is that, in a majority of cases, the conduct of the accused consisting merely of
acts of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of
being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of
the crime, or an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long as
the equivocal quality remains, no one can say with certainty what the intent of the accused is. It is necessary that the overt act
should have been the ultimate step towards the consummation of the design. It is sufficient if it was the "first or some subsequent
step in a direct movement towards the commission of the offense after the preparations are made." The act done need not
constitute the last proximate one for completion. It is necessary, however, that the attempt must have a causal relation to the
intended crime. In the words of Viada, the overt acts must have an immediate and necessary relation to the offense. 16
Thus, we find that petitioner was correctly convicted of attempted rape.
A final observation. We note that the trial court’s Decision sentenced petitioner to a prison term without specifying the period this
sentence covers. We will rectify this error even as we affirm petitioner’s conviction.
The penalty for attempted rape is prision mayor, or two degrees lower than reclusion perpetua, the penalty for consummated rape.
Petitioner should be sentenced to an indeterminate sentence the minimum of which is in the range of prision correccional, or within
six months and one day to six years, and the maximum of which is prision mayor medium, or within eight years and one day to ten
years. In this case, the trial court sentenced petitioner to "an Indeterminate Sentence of PRISION CORRECCIONAL in its medium
period, as the minimum, to PRISION MAYOR in its medium period, as the maximum."
WHEREFORE, the foregoing premises considered, the Court of Appeals Decision in CA-G.R. CR No. 23276 dated January 26, 2006 and
its Resolution dated October 10, 2007 affirming petitioner’s conviction for ATTEMPTED RAPE are AFFIRMED WITH MODIFICATION.
The petitioner is sentenced to an indeterminate sentence of two (2) years, four (4) months, and one (1) day of prision correccional
medium, as minimum, to ten (10) years of prision mayor medium, as its maximum. In all other respects, the trial court’s Decision is
AFFIRMED.
SO ORDERED.
G.R. No. 138033 February 22, 2006
RENATO BALEROS, JR., Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal of the January 13, 1999
decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March 31, 1999 resolution 2 denying petitioner’s
motion for reconsideration.
The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila, Branch 2, in Criminal Case No. 91-
101642 finding petitioner Renato Baleros, Jr. y David (CHITO) guilty of attempted rape. 3
The accusatory portion of the information4 dated December 17, 1991 charging petitioner with attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within the jurisdiction of this Honorable
Court, the above-named accused, by forcefully covering the face of Martina Lourdes T. Albano with a piece of cloth soaked in
chemical with dizzying effects, did then and there willfully, unlawfully and feloniously commenced the commission of rape by lying
on top of her with the intention to have carnal knowledge with her but was unable to perform all the acts of execution by reason of
some cause or accident other than his own spontaneous desistance, said acts being committed against her will and consent to her
damage and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not Guilty."5 Thereafter, trial on the merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private complainant Martina Lourdes
Albano (Malou), and her classmates, Joseph Bernard Africa, Rommel Montes, Renato Alagadan and Christian Alcala. Their
testimonies, as narrated in some detail in the decision of the CA, established the following facts:
Like most of the tenants of the Celestial Marie Building (hereafter "Building", …) along A.H. Lacson Street, Sampaloc, Manila,
MALOU, occupying Room 307 with her maid, Marvilou Bebania (Marvilou), was a medical student of the University of Sto. Tomas
[UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in front of her bedroom door, her
maid, Marvilou, slept on a folding bed.
Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of cloth pressed on her face. She
struggled but could not move. Somebody was pinning her down on the bed, holding her tightly. She wanted to scream for help but
the hands covering her mouth with cloth wet with chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU continued
fighting off her attacker by kicking him until at last her right hand got free. With this …the opportunity presented itself when she was
able to grab hold of his sex organ which she then squeezed.
The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over the intercom, MALOU told S/G
Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who it was she did not, however, know. The only thing she
had made out during their struggle was the feel of her attacker’s clothes and weight. His upper garment was of cotton material while
that at the lower portion felt smooth and satin-like (Ibid, p. 17). He … was wearing a t-shirt and shorts … Original Records, p. 355).
To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo Acosta and Rommel Montes were
staying, MALOU then proceeded to seek help. xxx.
It was then when MALOU saw her bed … topsy-turvy. Her nightdress was stained with blue … (TSN, July 5, 1993, pp. 13-14). Aside
from the window with grills which she had originally left opened, another window inside her bedroom was now open. Her attacker
had fled from her room going through the left bedroom window (Ibid, Answers to Question number 5; Id), the one without iron grills
which leads to Room 306 of the Building (TSN, July 5, 1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with CHITO, who was her classmate …, was friendly until a week prior to the attack. CHITO
confided his feelings for her, telling her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she rejected him. …. (TSN, July 5, 1993,
p. 22).
Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in the early morning of December
13, 1991, wearing a white t-shirt with “‘…a marking on the front of the T-shirt T M and a Greek letter (sic) ΣΦ’ and below the quoted
letters the word ‘1946’ ‘UST Medicine and Surgery’” (TSN, October 9, 1992, p. 9) and black shorts with the brand name “Adidas”
(TSN, October 16, 1992, p.7) and requested permission to go up to Room 306. This Unit was being leased by Ansbert Co and at that
time when CHITO was asking permission to enter, only Joseph Bernard Africa was in the room.
He asked CHITO to produce the required written authorization and when CHITO could not, S/G Ferolin initially refused [but later,
relented] …. S/G Ferolin made the following entry in the security guard’s logbook …:
"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from our tenant of Unit #-306 Ansbert,
but still I let him inter (sic) for the reason that he will be our tenant this coming summer break as he said so I let him sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph Bernard Africa (Joseph), ….
xxx xxx xxx
Joseph was already inside Room 306 at 9 o’clock in the evening of December 12, 1991. xxx by the time CHITO’s knocking on the door
woke him up, …. He was able to fix the time of CHITO’s arrival at 1:30 A.M. because he glanced at the alarm clock beside the bed
when he was awakened by the knock at the door ….
Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he let the latter in. …. It was at
around 3 o’clock in the morning of December 13, 1991 when he woke up again later to the sound of knocking at the door, this time,
by Bernard Baptista (Bernard), ….
xxx. With Bernard, Joseph then went to MALOU’s room and thereat was shown by Bernard the open window through which the
intruder supposedly passed.
xxx xxx xxx
Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to CHITO …. He mentioned to the latter
that something had happened and that they were not being allowed to get out of the building. Joseph also told CHITO to follow him
to Room 310.
CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in Room 310 so Joseph went to their
yet another classmate, Renato Alagadan at Room 401 to see if the others were there. xxx.
People from the CIS came by before 8 o’clock that same morning …. They likewise invited CHITO and Joseph to go with them to
Camp Crame where the two (2) were questioned ….
An occupant of Room 310 … Christian Alcala (Christian) recalled in Court that in the afternoon of December 13, 1991, after their 3:30
class, he and his roommates, Bernard Baptista and Lutgardo Acosta (Gary) were called to the Building and were asked by the CIS
people to look for anything not belonging to them in their Unit. While they were outside Room 310 talking with the authorities,
Rommel Montes (Loyloy), another roommate of his, went inside to search the Unit. Loyloy found (TSN, January 12, 1993, p. 6) a gray
"Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their unit which they did not know was there and surrender the same to the
investigators. When he saw the gray bag, Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he had seen the latter
usually bringing it to school inside the classroom (Ibid, p. 45).
In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt with a Taunu (sic) Sigma Phi sign
(Ibid, p. 7), a Black Adidas short pants, a handkerchief , three (3) white T-shirts, an underwear, and socks (Ibid).
Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the handkerchief (Exhibit "D-3) to be
CHITO’s because CHITO had lent the very same one to him …. The t-shirt with CHITO’s fraternity symbol, CHITO used to wear on
weekends, and the handkerchief he saw CHITO used at least once in December.
That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted mainly of Renato R. Alagadan’s
testimony.
xxx xxx xxx.
The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to be full but was closed with a
zipper when Renato saw it then (Ibid, pp. 19-20). At that time Christian, Gary, Bernard, and Renato went back to Room 310 at
around 3 to 4 o’clock that afternoon along with some CIS agents, they saw the bag at the same place inside the bedroom where
Renato had seen CHITO leave it. Not until later that night at past 9 o’clock in Camp Crame, however, did Renato know what the
contents of the bag were.
xxx xxx xxx.
The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp Crame, having acted in response
to the written request of PNP Superintendent Lucas M. Managuelod dated December 13, 1991, (Exhibit "C"; Original Records, p.
109.) conducted laboratory examination on the specimen collated and submitted…. Her Chemistry Report No. C-487-91 (Exhibit "E";
Ibid., p. 112) reads in part, thus:
"SPECIMEN SUBMITTED:
xxx xxx xxx:
1) One (1) small white plastic bag marked ‘UNIMART’ with the following:
xxx xxx xxx
Exh ‘C’ – One (1) night dress colored salmon pink.
2) One (1) small white pl astic bag marked ‘JONAS’ with the following:
Exh. ‘D’ – One (1) printed handkerchief.
Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.
Exh. ‘F’ – One (1) black short (sic) marked ‘ADIDAS’.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated specimens.
FINDINGS:
Toxicological examination conducted on the above stated specimens gave the following results:
Exhs. ‘C’ and ‘D’ – POSITIVE to the test for chloroform, a volatile poison.
Exhs. ‘A’, ‘B’, ‘E’ and ‘F’ are insufficient for further analysis.
CONCLUSION:
Exhs. ‘C’ and ‘D’ contain chloroform, a volatile poison." 6 (Words in bracket added)
For its part, the defense presented, as its main witness, the petitioner himself. He denied committing the crime imputed to him or
making at any time amorous advances on Malou. Unfolding a different version of the incident, the defense sought to establish the
following, as culled from the same decision of the appellate court:
In December of 1991, CHITO was a medical student of … (UST). With Robert Chan and Alberto Leonardo, he was likewise a member
of the Tau Sigma Phi Fraternity …. MALOU, …, was known to him being also a medical student at the UST at the time.
From Room 306 of the Celestial Marie Building …, CHITO, wearing the prescribed barong tagalog over dark pants and leather shoes,
arrived at their Fraternity house located at … Dos Castillas, Sampaloc, Manila at about 7 o’clock in the evening of December 12,
1991. He was included in the entourage of some fifty (50) fraternity members scheduled for a Christmas gathering at the house of
their senior fraternity brother, Dr. Jose Duran, at No. 3 John Street, North Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming pool …. Soon after, … the four (4) presidential nominees of the
Fraternity, CHITO included, were being dunked one by one into the pool. xxx.
xxx CHITO had anticipated his turn … and was thus wearing his t-shirt and long pants when he was dunked. Perla Duran, …, offered
each … dry clothes to change into and CHITO put on the white t-shirt with the Fraternity’s symbol and a pair of black shorts with
stripes. xxx .
Again riding on Alberto’s car and wearing "barong tagalog over a white t-shirt with the symbol TAU Sigma Phi, black short pants with
stripe, socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left the party with Robert Chan and Alberto at more or less past 1 A.M. of
December 13, 1991 and proceeded to the Building which they reached at about 1:30 A.M. (Ibid., p. 19). He had left his gray traveling
bag containing "white t-shirt, sando, underwear, socks, and toothbrush (Ibid., pp. 17-18) at room 306 in the afternoon of the
previous day ….
At the gate of the Building, CHITO knocked and …, S/G Ferolin, looking at his watch, approached. Because of this, CHITO also looked
at his own watch and saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin initially refused CHITO entry …. xxx.
S/G Ferolin called Unit 306 …. xxx. When S/G Ferolin finally let him in, already about ten (10) minutes had lapsed since CHITO first
arrived (Ibid., p. 25).
CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie window and for five (5) minutes vainly
tried to open the door until Rommel Montes, … approached him and even commented: "Okey ang suot mo ha, di mo mabuksan ang
pinto (Ibid., pp. 26-29). Rommel tried to open the door of Unit 306 … but was likewise unsuccessful. CHITO then decided to just call
out to Joseph while knocking at the door.
It took another (5) minutes of calling out and knocking before Joseph, …, at last answered the door. Telling him, "Ikaw na ang bahala
diyan" Joseph immediately turned his back on CHITO and went inside the bedroom. CHITO , …changed to a thinner shirt and went to
bed. He still had on the same short pants given by Perla Duran from the fraternity party (TSN, June 16, 1994, p. 20).
At 6 o’clock in the morning of December 13, 1991, CHITO woke up …. He was already in his school uniform when, around 6:30 A.M,
Joseph came to the room not yet dressed up. He asked the latter why this was so and, without elaborating on it, Joseph told him
that something had happened and to just go to Room 310 which CHITO did.
At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to identify, went to the room of
MALOU and tried to rape her (TSN, April 25, 1994, p. 36). xxx.
Joseph told him that the security guard was not letting anybody out of the Building …. When two (2) CIS men came to the unit asking
for Renato Baleros, CHITO presented himself. Congressman Rodolfo B. Albano, father of MALOU, then asked him for the key to
Room 306….
xxx xxx xxx
The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and the two (2) of them, CHITO and
Joseph, were brought to Camp Crame.
When they arrived at Camp Crame …, Col. Managuelod asked Joseph inside his room and talked to him for 30 minutes. xxx. No one
interviewed CHITO to ask his side.
xxx xxx xxx
Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo physical examination at the Camp
Crame Hospital ….. At the hospital, … CHITO and Joseph were physically examined by a certain Dr. de Guzman who told them to strip
….
xxx xxx xxx
CHITO had left his gray bag containing, among others, the black striped short pants lent to him by Perla Duran (Exhibit "8-A", Original
Records, p. 345), inside Room 310 at more/less 6:30 to 7 o’clock in the morning of December 13, 1991. The next time that he saw it
was between 8 to 9 P.M. when he and Joseph were brought before Fiscal Abesamis for inquest. One of the CIS agents had taken it
there and it was not opened up in his presence but the contents of the bag were already laid out on the table of Fiscal Abesamis
who, however, made no effort to ask CHITO if the items thereat were his.
The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag which he had left at Room 306 in
the early evening of December 12, 1991 before going to the fraternity house. He likewise disavowed placing said black Adidas short
pants in his gray bag when he returned to the apartment at past 1:00 o’clock in the early morning of December 13, 1991 (TSN, June
16, 1994, p. 24), nor when he dressed up at about 6 o’clock in the morning to go to school and brought his gray bag to Room 310
(Ibid. 25). In fact, at any time on December 13, 1991, he was not aware that his gray bag ever contained any black short Adidas pants
(Ibid). He only found out for the first time that the black Adidas short pants was alluded to be among the items inside his gray bag
late in the afternoon, when he was in Camp Crame.
Also taking the witness stand for the defense were petitioner’s fraternity brothers, Alberto Leonardo and Robert Chan, who both
testified being with CHITO in the December 12, 1991 party held in Dr. Duran’s place at Greenhills, riding on the same car going to
and coming from the party and dropping the petitioner off the Celestial Marie building after the party. Both were one in saying that
CHITO was wearing a barong tagalog, with t-shirt inside, with short pants and leather shoes at the time they parted after the
party.7 Rommel Montes, a tenant of Room 310 of the said building, also testified seeing CHITO between the hours of 1:30 and 2:00
A.M. of December 13, 1991 trying to open the door of Room 306 while clad in dark short pants and white barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes after the dunking party held in
her father’s house.8 Presented as defense expert witness was Carmelita Vargas, a forensic chemistry instructor whose actual
demonstration in open court showed that chloroform, being volatile, evaporates in thirty (30) seconds without tearing nor staining
the cloth on which it is applied.9
On December 14, 1994, the trial court rendered its decision 10 convicting petitioner of attempted rape and accordingly sentencing
him, thus:
WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused Renato D. Baleros, Jr., alias
"Chito", guilty beyond reasonable doubt of the crime of attempted rape as principal and as charged in the information and hereby
sentences him to suffer an imprisonment ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of Prision Correctional,
as Minimum to TEN (10) YEARS of Prision Mayor as Maximum, with all the accessory penalties provided by law, and for the accused
to pay the offended party Martina Lourdes T. Albano, the sum of P50,000.00 by way of Moral and exemplary damages, plus
reasonable Attorney’s fees of P30,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed the trial court’s judgment of
conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the decision appealed from is hereby
AFFIRMED in toto. Costs against appellant.
SO ORDERED.11
Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed resolution of March 31, 1999.12
Petitioner is now with this Court, on the contention that the CA erred -
1. In not finding that it is improbable for petitioner to have committed the attempted rape imputed to him, absent
sufficient, competent and convincing evidence to prove the offense charged.
2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence since the prosecution failed to
satisfy all the requisites for conviction based thereon.
3. In not finding that the circumstances it relied on to convict the petitioner are unreliable, inconclusive and contradictory.
4. In not finding that proof of motive is miserably wanting in his case.
5. In awarding damages in favor of the complainant despite the fact that the award was improper and unjustified absent
any evidence to prove the same.
6. In failing to appreciate in his favor the constitutional presumption of innocence and that moral certainty has not been
met, hence, he should be acquitted on the ground that the offense charged against him has not been proved beyond
reasonable doubt.
Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred in affirming the ruling of the RTC
finding petitioner guilty beyond reasonable doubt of the crime of attempted rape.
After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the Court is disposed to rule for
petitioner’s acquittal, but not necessarily because there is no direct evidence pointing to him as the intruder holding a chemical-
soaked cloth who pinned Malou down on the bed in the early morning of December 13, 1991.
Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of
commission of the crime. There are two types of positive identification. A witness may identify a suspect or accused as the offender
as an eyewitness to the very act of the commission of the crime. This constitutes direct evidence. There may, however, be instances
where, although a witness may not have actually witnessed the very act of commission of a crime, he may still be able to positively
identify a suspect or accused as the perpetrator of a crime as when, for instance, the latter is the person or one of the persons last
seen with the victim immediately before and right after the commission of the crime. This is the second type of positive
identification, which forms part of circumstantial evidence. 13 In the absence of direct evidence, the prosecution may resort to
adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret and under condition where
concealment is highly probable. If direct evidence is insisted under all circumstances, the prosecution of vicious felons who
committed heinous crimes in secret or secluded places will be hard, if not well-nigh impossible, to prove.14
Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence may be sufficient for conviction.
The provision reads:
Sec. 4. Circumstantial evidence, when sufficient – Circumstantial evidence is sufficient for conviction if –
a) There is more than one circumstance;

b) The facts from which the inferences are derived are proven; and
c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
In the present case, the positive identification of the petitioner forms part of circumstantial evidence, which, when taken together
with the other pieces of evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is that
petitioner was the intruder in question.
We quote with approval the CA’s finding of the circumstantial evidence that led to the identity of the petitioner as such intruder:
Chito was in the Building when the attack on MALOU took place. He had access to the room of MALOU as Room 307 where he slept
the night over had a window which allowed ingress and egress to Room 306 where MALOU stayed. Not only the Building security
guard, S/G Ferolin, but Joseph Bernard Africa as well confirmed that CHITO was wearing a black "Adidas" shorts and fraternity T-shirt
when he arrived at the Building/Unit 307 at 1:30 in the morning of December 13, 1991. Though it was dark during their struggle,
MALOU had made out the feel of her intruder’s apparel to be something made of cotton material on top and shorts that felt satin-
smooth on the bottom.
From CHITO’s bag which was found inside Room 310 at the very spot where witness Renato Alagadan saw CHITO leave it, were
discovered the most incriminating evidence: the handkerchief stained with blue and wet with some kind of chemicals; a black
"Adidas" satin short pants; and a white fraternity T-shirt, also stained with blue. A different witness, this time, Christian Alcala,
identified these garments as belonging to CHITO. As it turned out, laboratory examination on these items and on the beddings and
clothes worn by MALOU during the incident revealed that the handkerchief and MALOU’s night dress both contained chloroform, a
volatile poison which causes first degree burn exactly like what MALOU sustained on that part of her face where the chemical-
soaked cloth had been pressed.
This brings the Court to the issue on whether the evidence adduced by the prosecution has established beyond reasonable doubt
the guilt of the petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner, by pressing on Malou’s face the piece of cloth soaked in chemical while holding her
body tightly under the weight of his own, had commenced the performance of an act indicative of an intent or attempt to rape the
victim. It is argued that petitioner’s actuation thus described is an overt act contemplated under the law, for there can not be any
other logical conclusion other than that the petitioner intended to ravish Malou after he attempted to put her to an induced sleep.
The Solicitor General, echoing what the CA said, adds that if petitioner’s intention was otherwise, he would not have lain on top of
the victim.15
Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal knowledge or intercourse with 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. Under Article 6, in relation to the
aforementioned article of the same code, rape is attempted when the offender commences the commission of rape directly by overt
acts and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident
other than his own spontaneous desistance. 16
Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in People vs. Lamahang,17 stated
that "the attempt which the Penal Code punishes is that which has a logical connection to a particular, concrete offense; that which
is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and
consummation." Absent the unavoidable connection, like the logical and natural relation of the cause and its effect, as where the
purpose of the offender in performing an act is not certain, meaning the nature of the act in relation to its objective is ambiguous,
then what obtains is an attempt to commit an indeterminate offense, which is not a juridical fact from the standpoint of the Penal
Code.18
There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. The next question
that thus comes to the fore is whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top of
Malou, constitutes an overt act of rape.1avvphil.net
concrete offense.19
Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's act of pressing a
chemical-soaked cloth in the mouth of Malou which would induce her to sleep as an overt act that will logically and necessarily ripen
into rape. As it were, petitioner did not commence at all the performance of any act indicative of an intent or attempt to rape
Malou. It cannot be overemphasized that petitioner was fully clothed and that there was no attempt on his part to undress Malou,
let alone touch her private part. For what reason petitioner wanted the complainant unconscious, if that was really his immediate
intention, is anybody’s guess. The CA maintained that if the petitioner had no intention to rape, he would not have lain on top of the
complainant. Plodding on, the appellate court even anticipated the next step that the petitioner would have taken if the victim had
been rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual organ is not yet exposed because
his intended victim is still struggling. Where the intended victim is an educated woman already mature in age, it is very unlikely that
a rapist would be in his naked glory before even starting his attack on her. He has to make her lose her guard first, or as in this case,
her unconsciousness.20
At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule on evidence in criminal cases.
For, mere speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable
doubt.21
In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an attempted rape,
the accused must have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or
accident other than his own spontaneous desistance, the penetration, however, slight, is not completed.
xxx xxx xxx
Petitioner’s act of lying on top of the complainant, embracing and kissing her, mashing her breasts, inserting his hand inside her
panty and touching her sexual organ, while admittedly obscene and detestable acts, do not constitute attempted rape absent any
showing that petitioner actually commenced to force his penis into the complainant’s sexual organ. xxx.
Likewise in People vs. Pancho,23 the Court held:
xxx, appellant was merely holding complainant’s feet when his Tito Onio arrived at the alleged locus criminis. Thus, it would be
stretching to the extreme our credulity if we were to conclude that mere holding of the feet is attempted rape.
Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of any wrongdoing whatsoever. The
information filed against petitioner contained an allegation that he forcefully covered the face of Malou with a piece of cloth soaked
in chemical. And during the trial, Malou testified about the pressing against her face of the chemical-soaked cloth and having
struggled after petitioner held her tightly and pinned her down. Verily, while the series of acts committed by the petitioner do not
determine attempted rape, as earlier discussed, they constitute unjust vexation punishable as light coercion under the second
paragraph of Article 287 of the Revised Penal Code. In the context of the constitutional provision assuring an accused of a crime the
right to be informed of the nature and cause of the accusation, 24 it cannot be said that petitioner was kept in the dark of the
inculpatory acts for which he was proceeded against. To be sure, the information against petitioner contains sufficient details to
enable him to make his defense. As aptly observed by then Justice Ramon C. Aquino, there is no need to allege malice, restraint or
compulsion in an information for unjust vexation. As it were, unjust vexation exists even without the element of restraint or
compulsion for the reason that this term is broad enough to include any human conduct which, although not productive of some
physical or material harm, would unjustly annoy or irritate an innocent person. 25 The paramount question is whether the offender’s
act causes annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is directed. 26 That Malou,
after the incident in question, cried while relating to her classmates what she perceived to be a sexual attack and the fact that she
filed a case for attempted rape proved beyond cavil that she was disturbed, if not distressed by the acts of petitioner.
The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal Code is arresto menor or a fine
ranging from ₱5.00 to ₱200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial Court of Manila, is hereby REVERSED
and SET ASIDE and a new one entered ACQUITTING petitioner Renato D. Baleros, Jr. of the charge for attempted rape. Petitioner,
however, is adjudged GUILTY of light coercion and is accordingly sentenced to 30 days of arresto menor and to pay a fine of ₱200.00,
with the accessory penalties thereof and to pay the costs.
SO ORDERED.
G. R. No. 160188 June 21, 2007
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS NACHURA, respondents.
DECISION
TINGA, J.:
This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively concedes having performed
the felonious acts imputed against him, but instead insists that as a result, he should be adjudged guilty of frustrated theft only, not
the felony in its consummated stage of which he was convicted. The proposition rests on a common theory expounded in two well-
known decisions1 rendered decades ago by the Court of Appeals, upholding the existence of frustrated theft of which the accused in
both cases were found guilty. However, the rationale behind the rulings has never been affirmed by this Court.
As far as can be told,2 the last time this Court extensively considered whether an accused was guilty of frustrated or consummated
theft was in 1918, in People v. Adiao.3 A more cursory
treatment of the question was followed in 1929, in People v. Sobrevilla,4 and in 1984, in Empelis v. IAC.5 This petition now gives
occasion for us to finally and fully measure if or how frustrated theft is susceptible to commission under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an Information 6 charging petitioner Aristotel Valenzuela
(petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner and Calderon
were sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago
(Lago), a security guard who was then manning his post at the open parking area of the supermarket. Lago saw petitioner, who was
wearing an identification card with the mark "Receiving Dispatching Unit (RDU)," hauling a push cart with cases of detergent of the
well-known "Tide" brand. Petitioner unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then
returned inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide Ultramatic and again unloaded
these boxes to the same area in the open parking space.7
Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the parking space where
Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts were
eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a receipt of
the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow security guards
of the incident. Petitioner and Calderon were apprehended at the scene, and the stolen merchandise recovered. 8 The filched items
seized from the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of
detergent, the goods with an aggregate value of ₱12,090.00.9
Petitioner and Calderon were first brought to the SM security office before they were transferred on the same day to the Baler
Station II of the Philippine National Police, Quezon City, for investigation. It appears from the police investigation records that apart
from petitioner and Calderon, four (4) other persons were apprehended by the security guards at the scene and delivered to police
custody at the Baler PNP Station in connection with the incident. However, after the matter was referred to the Office of the Quezon
City Prosecutor, only petitioner and Calderon were charged with theft by the Assistant City Prosecutor, in Informations prepared on
20 May 1994, the day after the incident.10
After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent bystanders within
the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by Lago and his fellow security guards
after a commotion and brought to the Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super
Sale Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada.11 As the queue for the ATM was long,
Calderon and Rosulada decided to buy snacks inside the supermarket. It was while they were eating that they heard the gunshot
fired by Lago, leading them to head out of the building to check what was
transpiring. As they were outside, they were suddenly "grabbed" by a security guard, thus commencing their
detention.12 Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio Valenzuela, 13 had been at the parking lot,
walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a
shot. The gunshot caused him and the other people at the scene to start running, at which point he was apprehended by Lago and
brought to the security office. Petitioner claimed he was detained at the security office until around 9:00 p.m., at which time he and
the others were brought to the Baler Police Station. At the station, petitioner denied having stolen the cartons of detergent, but he
was detained overnight, and eventually brought to the prosecutor’s office where he was charged with theft. 14 During petitioner’s
cross-examination, he admitted that he had been employed as a "bundler" of GMS Marketing, "assigned at the supermarket" though
not at SM.15
In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90, convicted both petitioner
and Calderon of the crime of consummated theft. They were sentenced to an indeterminate prison term of two (2) years of prision
correccional as minimum to seven (7) years of prision mayor as maximum. 17 The RTC found credible the testimonies of the
prosecution witnesses and established the convictions on the positive identification of the accused as perpetrators of the crime.
Both accused filed their respective Notices of Appeal,18 but only petitioner filed a brief19 with the Court of Appeals, causing the
appellate court to deem Calderon’s appeal as abandoned and consequently dismissed. Before the Court of Appeals, petitioner
argued that he should only be convicted of frustrated theft since at the time he was apprehended, he was never placed in a position
to freely dispose of the articles stolen. 20 However, in its Decision dated 19 June 2003,21 the Court of Appeals rejected this contention
and affirmed petitioner’s conviction.22 Hence the present Petition for Review,23 which expressly seeks that petitioner’s conviction
"be modified to only of Frustrated Theft."24
Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual participation
in the theft of several cases of detergent with a total value of ₱12,090.00 of which he was charged. 25 As such, there is no cause for
the Court to consider a factual scenario other than that presented by the prosecution, as affirmed by the RTC and the Court of
Appeals. The only question to consider is whether under the given facts, the theft should be deemed as consummated or merely
frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner cites 26 two decisions rendered many years ago by the
Court of Appeals: People v. Diño27 and People v. Flores.28 Both decisions elicit the interest of this Court, as they modified trial court
convictions from consummated to frustrated theft and involve a factual milieu that bears similarity to the present case. Petitioner
invoked the same rulings in his appeal to the Court of Appeals, yet the appellate court did not expressly consider the import of the
rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to the Diño and Flores rulings since they have not yet been
expressly adopted as precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the silence on our part,
Diño and Flores have attained a level of renown reached by very few other appellate court rulings. They are comprehensively
discussed in the most popular of our criminal law annotations, 29 and studied in criminal law classes as textbook examples of
frustrated crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law exams more than
they actually occur in real life. Indeed, if we finally say that Diño and Flores are doctrinal, such conclusion could profoundly influence
a multitude of routine theft prosecutions, including commonplace shoplifting. Any scenario that involves the thief having to exit with
the stolen property through a supervised egress, such as a supermarket checkout counter or a parking area pay booth, may easily
call for the application of Diño and Flores. The fact that lower courts have not hesitated to lay down convictions for frustrated theft
further validates that Diño and Flores and the theories offered therein on frustrated theft have borne some weight in our
jurisprudential system. The time is thus ripe for us to examine whether those theories are correct and should continue to influence
prosecutors and judges in the future.
III.
To delve into any extended analysis of Diño and Flores, as well as the specific issues relative to "frustrated theft," it is necessary to
first refer to the basic rules on the three stages of crimes under our Revised Penal Code. 30
Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is consummated "when
all the elements necessary for its execution and accomplishment are present." It is frustrated "when the offender performs all the
acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator." Finally, it is attempted "when the offender commences the commission of a felony
directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or
accident other than his own spontaneous desistance."
Each felony under the Revised Penal Code has a "subjective phase," or that portion of the acts constituting the crime included
between the act which begins the commission of the crime and the last act performed by the offender which, with prior acts, should
result in the consummated crime.31 After that point has been breached, the subjective phase ends and the objective phase
begins.32 It has been held that if the offender never passes the subjective phase of the offense, the crime is merely attempted.33 On
the other hand, the subjective phase is completely passed in case of frustrated crimes, for in such instances, "[s]ubjectively the crime
is complete."34
Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies on the other. So
long as the offender fails to complete all the acts of execution despite commencing the commission of a felony, the crime is
undoubtedly in the attempted stage. Since the specific acts of execution that define each crime under the Revised Penal Code are
generally enumerated in the code itself, the task of ascertaining whether a crime is attempted only would need to compare the acts
actually performed by the accused as against the acts that constitute the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that all of the acts
of execution have been performed by the offender. The critical distinction instead is whether the felony itself was actually produced
by the acts of execution. The determination of whether the felony was "produced" after all the acts of execution had been
performed hinges on the particular statutory definition of the felony. It is the statutory definition that generally furnishes the
elements of each crime under the Revised Penal Code, while the elements in turn unravel the particular requisite acts of execution
and accompanying criminal intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an important characteristic of a crime, that
"ordinarily, evil intent must unite with an unlawful act for there to be a crime," and accordingly, there can be no crime when the
criminal mind is wanting.35 Accepted in this jurisdiction as material in crimes mala in se,36mens rea has been defined before as "a
guilty mind, a guilty or wrongful purpose or criminal intent,"37 and "essential for criminal liability."38 It follows that the statutory
definition of our mala in se crimes must be able to supply what the mens rea of the crime is, and indeed the U.S. Supreme Court has
comfortably held that "a criminal law that contains no mens rea requirement infringes on constitutionally protected rights."39 The
criminal statute must also provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not enough
that mens rea be shown; there must also be an actus reus. 40
It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is produced. As a postulate
in the craftsmanship of constitutionally sound laws, it is extremely preferable that the language of the law expressly provide when
the felony is produced. Without such provision, disputes would inevitably ensue on the elemental question whether or not a crime
was committed, thereby presaging the undesirable and legally dubious set-up under which the judiciary is assigned the legislative
role of defining crimes. Fortunately, our Revised Penal Code does not suffer from such infirmity. From the statutory definition of any
felony, a decisive passage or term is embedded which attests when the felony is produced by the acts of execution. For example, the
statutory definition of murder or homicide expressly uses the phrase "shall kill another," thus making it clear that the felony is
produced by the death of the victim, and conversely, it is not produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are spelled out as
follows:
Art. 308. Who are liable for theft.— Theft is committed by any person who, with intent to gain but without violence against or
intimidation of persons nor force upon things, shall take personal property of another without the latter’s consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the
damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and without the
consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which theft may be
committed.41 In the present discussion, we need to concern ourselves only with the general definition since it was under it that the
prosecution of the accused was undertaken and sustained. On the face of the definition, there is only one operative act of execution
by the actor involved in theft ─ the taking of personal property of another. It is also clear from the provision that in order that such
taking may be qualified as theft, there must further be present the descriptive circumstances that the taking was with intent to gain;
without force upon things or violence against or intimidation of persons; and it was without the consent of the owner of the
property.
Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal Code, namely: (1)
that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain;
(4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence
against or intimidation of persons or force upon things. 42
In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law as defined by Gaius,
was so broad enough as to encompass "any kind of physical handling of property belonging to another against the will of the
owner,"43 a definition similar to that by Paulus that a thief "handles (touches, moves) the property of another." 44 However, with the
Institutes of Justinian, the idea had taken hold that more than mere physical handling, there must further be an intent of acquiring
gain from the object, thus: "[f]urtum est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus
possessinisve."45 This requirement of animo lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws,
even as it has since been abandoned in Great Britain.46
In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to characterize theft. Justice Regalado
notes that the concept of apoderamiento once had a controversial interpretation and application. Spanish law had already
discounted the belief that mere physical taking was constitutive of apoderamiento, finding that it had to be coupled with "the intent
to appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the lawful owner of the
thing."47 However, a conflicting line of cases decided by the Court of Appeals ruled, alternatively, that there must be permanency in
the taking48 or an intent to permanently deprive the owner of the stolen property; 49 or that there was no need for permanency in
the taking or in its intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of the owner
already constituted apoderamiento.50 Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there was no
need of an intent to permanently deprive the owner of his property to constitute an unlawful taking. 51
So long as the "descriptive" circumstances that qualify the taking are present, including animo lucrandi and apoderamiento, the
completion of the operative act that is the taking of personal property of another establishes, at least, that the transgression went
beyond the attempted stage. As applied to the present case, the moment petitioner obtained physical possession of the cases of
detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed without need to inflict violence or
intimidation against persons nor force upon things, and accomplished without the consent of the SM Super Sales Club, petitioner
forfeited the extenuating benefit a conviction for only attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the Revised Penal
Code to ascertain the answer. Following that provision, the theft would have been frustrated only, once the acts committed by
petitioner, if ordinarily sufficient to produce theft as a consequence, "do not produce [such theft] by reason of causes independent
of the will of the perpetrator." There are clearly two determinative factors to consider: that the felony is not "produced," and that
such failure is due to causes independent of the will of the perpetrator. The second factor ultimately depends on the evidence at
hand in each particular case. The first, however, relies primarily on a doctrinal definition attaching to the individual felonies in the
Revised Penal Code52 as to when a particular felony is "not produced," despite the commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly is the felony of
theft "produced." Parsing through the statutory definition of theft under Article 308, there is one apparent answer provided in the
language of the law — that theft is already "produced" upon the "tak[ing of] personal property of another without the latter’s
consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was charged with theft after he abstracted a leather
belt from the baggage of a foreign national and secreted the item in his desk at the Custom House. At no time was the accused able
to "get the merchandise out of the Custom House," and it appears that he "was under observation during the entire
transaction."54 Based apparently on those two circumstances, the trial court had found him guilty, instead, of frustrated theft. The
Court reversed, saying that neither circumstance was decisive, and holding instead that the accused was guilty of consummated
theft, finding that "all the elements of the completed crime of theft are present."55 In support of its conclusion that the theft was
consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the fruit[,] he was
seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but sometime later. The court said:
"[x x x] The trial court did not err [x x x ] in considering the crime as that of consummated theft instead of frustrated theft inasmuch
as nothing appears in the record showing that the policemen who saw the accused take the fruit from the adjoining land arrested
him in the act and thus prevented him from taking full possession of the thing stolen and even its utilization by him for an interval of
time." (Decision of the Supreme Court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account of the
solemnity of the act, although noticing the theft, did not do anything to prevent it. Subsequently, however, while the defendant was
still inside the church, the offended party got back the money from the defendant. The court said that the defendant had performed
all the acts of execution and considered the theft as consummated. (Decision of the Supreme Court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the case took a small
box, which was also opened with a key, from which in turn he took a purse containing 461 reales and 20 centimos, and then he
placed the money over the cover of the case; just at this moment he was caught by two guards who were stationed in another room
near-by. The court considered this as consummated robbery, and said: "[x x x] The accused [x x x] having materially taken possession
of the money from the moment he took it from the place where it had been, and having taken it with his hands with intent to
appropriate the same, he executed all the acts necessary to constitute the crime which was thereby produced; only the act of
making use of the thing having been frustrated, which, however, does not go to make the elements of the consummated crime."
(Decision of the Supreme Court of Spain, June 13, 1882.) 56
It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in all these cases
had been able to obtain full possession of the personal property prior to their apprehension. The interval between the commission
of the acts of theft and the apprehension of the thieves did vary, from "sometime later" in the 1898 decision; to the very moment
the thief had just extracted the money in a purse which had been stored as it was in the 1882 decision; and before the thief had
been able to spirit the item stolen from the building where the theft took place, as had happened in Adiao and the 1897 decision.
Still, such intervals proved of no consequence in those cases, as it was ruled that the thefts in each of those cases was consummated
by the actual possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than consummated theft. The
case is People v. Sobrevilla,57 where the accused, while in the midst of a crowd in a public market, was already able to abstract a
pocketbook from the trousers of the victim when the latter, perceiving the theft, "caught hold of the [accused]’s shirt-front, at the
same time shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the defendant, who was afterwards
caught by a policeman."58 In rejecting the contention that only frustrated theft was established, the Court simply said, without
further comment or elaboration:
We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that determines the crime
of theft. If the pocket-book was afterwards recovered, such recovery does not affect the [accused’s] criminal liability, which arose
from the [accused] having succeeded in taking the pocket-book.59
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the fact that the
offender was able to succeed in obtaining physical possession of the stolen item, no matter how momentary, was able to
consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this case. Yet to
simply affirm without further comment would be disingenuous, as there is another school of thought on when theft is
consummated, as reflected in the Diño and Flores decisions.
Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The accused therein, a
driver employed by the United States Army, had driven his truck into the port area of the South Harbor, to unload a truckload of
materials to waiting U.S. Army personnel. After he had finished unloading, accused drove away his truck from the Port, but as he was
approaching a checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck and found therein three boxes
of army rifles. The accused later contended that he had been stopped by four men who had loaded the boxes with the agreement
that they were to meet him and retrieve the rifles after he had passed the checkpoint. The trial court convicted accused of
consummated theft, but the Court of Appeals modified the conviction, holding instead that only frustrated theft had been
committed.
In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles "pass through the
checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it would be allowed to pass
through the check point without further investigation or checking." 60 This point was deemed material and indicative that the theft
had not been fully produced, for the Court of Appeals pronounced that "the fact determinative of consummation is the ability of the
thief to dispose freely of the articles stolen, even if it were more or less momentary."61 Support for this proposition was drawn from
a decision of the Supreme Court of Spain dated 24 January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del delito de hurto es preciso
que so haga en circunstancias tales que permitan al sustractor la libre disposicion de aquella, siquiera sea mas o menos
momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya producido
en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena. 62
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the booty subject to the control and disposal of the culprits, the
articles stolen must first be passed through the M.P. check point, but since the offense was opportunely discovered and the articles
seized after all the acts of execution had been performed, but before the loot came under the final control and disposal of the
looters, the offense can not be said to have been fully consummated, as it was frustrated by the timely intervention of the guard.
The offense committed, therefore, is that of frustrated theft. 63
Diño thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of apprehension is
determinative as to whether the theft is consummated or frustrated. This theory was applied again by the Court of Appeals some 15
years later, in Flores, a case which according to the division of the court that decided it, bore "no substantial variance between the
circumstances [herein] and in [Diño]."64 Such conclusion is borne out by the facts in Flores. The accused therein, a checker employed
by the Luzon Stevedoring Company, issued a delivery receipt for one empty sea van to the truck driver who had loaded the
purportedly empty sea van onto his truck at the terminal of the stevedoring company. The truck driver proceeded to show the
delivery receipt to the guard on duty at the gate of the terminal. However, the guards insisted on inspecting the van, and discovered
that the "empty" sea van had actually contained other merchandise as well. 65 The accused was prosecuted for theft qualified by
abuse of confidence, and found himself convicted of the consummated crime. Before the Court of Appeals, accused argued in the
alternative that he was guilty only of attempted theft, but the appellate court pointed out that there was no intervening act of
spontaneous desistance on the part of the accused that "literally frustrated the theft." However, the Court of Appeals, explicitly
relying on Diño, did find that the accused was guilty only of frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found "no substantial variance" between Diño and Flores then before it. The
prosecution in Flores had sought to distinguish that case from Diño, citing a "traditional ruling" which unfortunately was not
identified in the decision itself. However, the Court of Appeals pointed out that the said "traditional ruling" was qualified by the
words "is placed in a situation where [the actor] could dispose of its contents at once." 66 Pouncing on this qualification, the appellate
court noted that "[o]bviously, while the truck and the van were still within the compound, the petitioner could not have disposed of
the goods ‘at once’." At the same time, the Court of Appeals conceded that "[t]his is entirely different from the case where a much
less bulk and more common thing as money was the object of the crime, where freedom to dispose of or make use of it is palpably
less restricted,"67 though no further qualification was offered what the effect would have been had that alternative circumstance
been present instead.
Synthesis of the Diño and Flores rulings is in order. The determinative characteristic as to whether the crime of theft was produced is
the ability of the actor "to freely dispose of the articles stolen, even if it were only momentary." Such conclusion was drawn from an
1888 decision of the Supreme Court of Spain which had pronounced that in determining whether theft had been consummated, "es
preciso que so haga en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas o menos momentaneamente."
The qualifier "siquiera sea mas o menos momentaneamente" proves another important consideration, as it implies that if the actor
was in a capacity to freely dispose of the stolen items before apprehension, then the theft could be deemed consummated. Such
circumstance was not present in either Diño or Flores, as the stolen items in both cases were retrieved from the actor before they
could be physically extracted from the guarded compounds from which the items were filched. However, as implied in Flores, the
character of the item stolen could lead to a different conclusion as to whether there could have been "free disposition," as in the
case where the chattel involved was of "much less bulk and more common x x x, [such] as money x x x." 68
In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Diño ruling:
There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely dispose of the stolen articles even
if it were more or less momentary. Or as stated in another case[69 ], theft is consummated upon the voluntary and malicious taking
of property belonging to another which is realized by the material occupation of the thing whereby the thief places it under his
control and in such a situation that he could dispose of it at once. This ruling seems to have been based on Viada’s opinion that in
order the theft may be consummated, "es preciso que se haga en circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states that "[i]n theft or robbery the
crime is consummated after the accused had material possession of the thing with intent to appropriate the same, although his act
of making use of the thing was frustrated."72
There are at least two other Court of Appeals rulings that are at seeming variance with the Diño and Flores rulings. People v.
Batoon73 involved an accused who filled a container with gasoline from a petrol pump within view of a police detective, who
followed the accused onto a passenger truck where the arrest was made. While the trial court found the accused guilty of frustrated
qualified theft, the Court of Appeals held that the accused was guilty of consummated qualified theft, finding that "[t]he facts of the
cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking with intent to gain is enough to consummate the
crime of theft."74
In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a supply depot and loaded them onto a truck.
However, as the truck passed through the checkpoint, the stolen items were discovered by the Military Police running the
checkpoint. Even though those facts clearly admit to similarity with those in Diño, the Court of Appeals held that the accused were
guilty of consummated theft, as the accused "were able to take or get hold of the hospital linen and that the only thing that was
frustrated, which does not constitute any element of theft, is the use or benefit that the thieves expected from the commission of
the offense."76
In pointing out the distinction between Diño and Espiritu, Reyes wryly observes that "[w]hen the meaning of an element of a felony
is controversial, there is bound to arise different rulings as to the stage of execution of that felony."77 Indeed, we can discern from
this survey of jurisprudence that the state of the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed
foundational basis of the concept of frustrated theft itself, the question can even be asked whether there is really such a crime in the
first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As we undertake this
inquiry, we have to reckon with the import of this Court’s 1984 decision in Empelis v. IAC. 78
As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his plantation, in the act of
gathering and tying some coconuts. The accused were surprised by the owner within the plantation as they were carrying with them
the coconuts they had gathered. The accused fled the scene, dropping the coconuts they had seized, and were subsequently
arrested after the owner reported the incident to the police. After trial, the accused were convicted of qualified theft, and the issue
they raised on appeal was that they were guilty only of simple theft. The Court affirmed that the theft was qualified, following Article
310 of the Revised Penal Code,79 but further held that the accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was raised by any
of the parties. What does appear, though, is that the disposition of that issue was contained in only two sentences, which we
reproduce in full:
However, the crime committed is only frustrated qualified theft because petitioners were not able to perform all the acts of
execution which should have produced the felony as a consequence. They were not able to carry the coconuts away from the
plantation due to the timely arrival of the owner.80
No legal reference or citation was offered for this averment, whether Diño, Flores or the Spanish authorities who may have
bolstered the conclusion. There are indeed evident problems with this formulation in Empelis.
Empelis held that the crime was only frustrated because the actors "were not able to perform all the acts of execution which should
have produced the felon as a consequence."81 However, per Article 6 of the Revised Penal Code, the crime is frustrated "when the
offender performs all the acts of execution," though not producing the felony as a result. If the offender was not able to perform all
the acts of execution, the crime is attempted, provided that the non-performance was by reason of some cause or accident other
than spontaneous desistance. Empelis concludes that the crime was
frustrated because not all of the acts of execution were performed due to the timely arrival of the owner. However, following Article
6 of the Revised Penal Code, these facts should elicit the conclusion that the crime was only attempted, especially given that the acts
were not performed because of the timely arrival of the owner, and not because of spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two sentences we had
cited actually aligned with the definitions provided in Article 6 of the Revised Penal Code, such passage bears no reflection that it is
the product of the considered evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were
sourced from an indubitable legal premise so settled it required no further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we cannot see how Empelis
can contribute to our present debate, except for the bare fact that it proves that the Court had once deliberately found an accused
guilty of frustrated theft. Even if Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely
compromised by the erroneous legal premises that inform it, and also by the fact that it has not been entrenched by subsequent
reliance.
Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this jurisdiction. Considering the
flawed reasoning behind its conclusion of frustrated theft, it cannot present any efficacious argument to persuade us in this case.
Insofar as Empelis may imply that convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to
reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de España was then in place. The definition of the
crime of theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas ni fuerza en las cosas, toman las cosas muebles ajenas
sin la voluntad de su dueño.
2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la apropriaren co intención de lucro.
3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado, salvo los casos previstos en los artίculos 606,
núm. 1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo párrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were handed down. However,
the said code would be revised again in 1932, and several times thereafter. In fact, under the Codigo Penal Español de 1995, the
crime of theft is now simply defined as "[e]l que, con ánimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado"82
Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre disposicion" of the property is not an
element or a statutory characteristic of the crime. It does appear that the principle originated and perhaps was fostered in the realm
of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo Penal de España.
Therein, he raised at least three questions for the reader whether the crime of frustrated or consummated theft had occurred. The
passage cited in Diño was actually utilized by Viada to answer the question whether frustrated or consummated theft was
committed "[e]l que en el momento mismo de apoderarse de la cosa ajena, viéndose sorprendido, la arroja al suelo." 83 Even as the
answer was as stated in Diño, and was indeed derived from the 1888 decision of the Supreme Court of Spain, that decision’s factual
predicate occasioning the statement was apparently very different from Diño, for it appears that the 1888 decision involved an
accused who was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a mannequin, and who
then proceeded to throw away the garment as he fled.84
Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the Supreme Court of Spain that
have held to that effect.85 A few decades later, the esteemed Eugenio Cuello Calón pointed out the inconsistent application by the
Spanish Supreme Court with respect to frustrated theft.
Hay frustración cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino del carro que los conducia
a otro que tenían preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la intervención de la policia situada en el local
donde se realizó la sustracción que impidió pudieran los reos disponer de lo sustraído, 30 de octubre 1950. Hay "por lo menos"
frustración, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay frustración "muy próxima"
cuando el culpable es detenido por el perjudicado acto seguido de cometer la sustracción, 28 febrero 1931. Algunos fallos han
considerado la existencia de frustración cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados,
los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, éstos, conforme a lo antes expuesto,
son hurtos consumados.86
Ultimately, Cuello Calón attacked the very idea that frustrated theft is actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de hecho a la disposición del
agente. Con este criterio coincide la doctrina sentada últimamente porla jurisprudencia española que generalmente considera
consumado el hurto cuando el culpable coge o aprehende la cosa y ésta quede por tiempo más o menos duradero bajo su poder. El
hecho de que éste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carácter de consumado aunque la
cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe la frustración, pues es muy dificil que el que hace
cuanto es necesario para la consumación del hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy
vacilante, declara hurtos frustrados son verdaderos delitos consumados. 87 (Emphasis supplied)
Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish Supreme Court
decisions on the matter, Cuello Calón actually set forth his own thought that questioned whether theft could truly be frustrated,
since "pues es muy dificil que el que hace cuanto es necesario para la consumación del hurto no lo consume efectivamente."
Otherwise put, it would be difficult to foresee how the execution of all the acts necessary for the completion of the crime would not
produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges us to accept
frustrated theft, as proposed in Diño and Flores. A final ruling by the Court that there is no crime of frustrated theft in this
jurisdiction will not lead to scholastic pariah, for such a submission is hardly heretical in light of Cuello Calón’s position.
Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh perspective, as we are not
bound by the opinions of the respected Spanish commentators, conflicting as they are, to accept that theft is capable of commission
in its frustrated stage. Further, if we ask the question whether there is a mandate of statute or precedent that must compel us to
adopt the Diño and Flores doctrines, the answer has to be in the negative. If we did so, it would arise not out of obeisance to an
inexorably higher command, but from the exercise of the function of statutory interpretation that comes as part and parcel of
judicial review, and a function that allows breathing room for a variety of theorems in competition until one is ultimately adopted by
this Court.
V.
The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature, through statute, to
define what constitutes a particular crime in this jurisdiction. It is the legislature, as representatives of the sovereign people, which
determines which acts or combination of acts are criminal in nature. Judicial interpretation of penal laws should be aligned with
what was the evident legislative intent, as expressed primarily in the language of the law as it defines the crime. It is Congress, not
the courts, which is to define a crime, and ordain its punishment. 88 The courts cannot arrogate the power to introduce a new
element of a crime which was unintended by the legislature, or redefine a crime in a manner that does not hew to the statutory
language. Due respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain from a broad
interpretation of penal laws where a "narrow interpretation" is appropriate. "The Court must take heed of language, legislative
history and purpose, in order to strictly determine the wrath and breath of the conduct the law forbids."89
With that in mind, a problem clearly emerges with the Diño/Flores dictum. The ability of the offender to freely dispose of the
property stolen is not a constitutive element of the crime of theft. It finds no support or extension in Article 308, whether as a
descriptive or operative element of theft or as the mens rea or actus reus of the felony. To restate what this Court has repeatedly
held: the elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be taking of
personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be
done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation
of persons or force upon things.90
Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal property of
another without the latter’s consent. While the Diño/Flores dictum is considerate to the mindset of the offender, the statutory
definition of theft considers only the perspective of intent to gain on the part of the offender, compounded by the deprivation of
property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is again, when is the
crime of theft produced? There would be all but certain unanimity in the position that theft is produced when there is deprivation of
personal property due to its taking by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the
felony that the offender, once having committed all the acts of execution for theft, is able or unable to freely dispose of the property
stolen since the deprivation from the owner alone has already ensued from such acts of execution. This conclusion is reflected in
Chief Justice Aquino’s commentaries, as earlier cited, that "[i]n theft or robbery the crime is consummated after the accused had
material possession of the thing with intent to appropriate the same, although his act of making use of the thing was frustrated."91
It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of "taking" itself,
in that there could be no true taking until the actor obtains such degree of control over the stolen item. But even if this were correct,
the effect would be to downgrade the crime to its attempted, and not frustrated stage, for it would mean that not all the acts of
execution have not been completed, the "taking not having been accomplished." Perhaps this point could serve as fertile ground for
future discussion, but our concern now is whether there is indeed a crime of frustrated theft, and such consideration proves
ultimately immaterial to that question. Moreover, such issue will not apply to the facts of this particular case. We are satisfied
beyond reasonable doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired physical
possession of the stolen cases of detergent for a considerable period of time that he was able to drop these off at a spot in the
parking lot, and long enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains
possession of the thing, even if he has no opportunity to dispose of the same. 92 And long ago, we asserted in People v. Avila:93
x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into the physical power of the
thief, which idea is qualified by other conditions, such as that the taking must be effected animo lucrandi and without the consent of
the owner; and it will be here noted that the definition does not require that the taking should be effected against the will of the
owner but merely that it should be without his consent, a distinction of no slight importance. 94
Insofar as we consider the present question, "unlawful taking" is most material in this respect. Unlawful taking, which is the
deprivation of one’s personal property, is the element which produces the felony in its consummated stage. At the same time,
without unlawful taking as an act of execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot have a frustrated
stage. Theft can only be attempted or consummated.
Neither Diño nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained possession over
the stolen items, the effect of the felony has been produced as there has been deprivation of property. The presumed inability of
the offenders to freely dispose of the stolen property does not negate the fact that the owners have already been deprived of their
right to possession upon the completion of the taking.
Moreover, as is evident in this case, the adoption of the rule —that the inability of the offender to freely dispose of the stolen
property frustrates the theft — would introduce a convenient defense for the accused which does not reflect any legislated
intent,95 since the Court would have carved a viable means for offenders to seek a mitigated penalty under applied circumstances
that do not admit of easy classification. It is difficult to formulate definite standards as to when a stolen item is susceptible to free
disposal by the thief. Would this depend on the psychological belief of the offender at the time of the commission of the crime, as
implied in Diño?
Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the property, the location
of the property, the number and identity of people present at the scene of the crime, the number and identity of people whom the
offender is expected to encounter upon fleeing with the stolen property, the manner in which the stolen item had been housed or
stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would come into account, relevant as
that would be on whether such property is capable of free disposal at any stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed deprived of
property by one who intended to produce such deprivation for reasons of gain. For such will remain the presumed fact if frustrated
theft were recognized, for therein, all of the acts of execution, including the taking, have been completed. If the facts establish the
non-completion of the taking due to these peculiar circumstances, the effect could be to downgrade the crime to the attempted
stage, as not all of the acts of execution have been performed. But once all these acts have been executed, the taking has been
completed, causing the unlawful deprivation of property, and ultimately the consummation of the theft.
Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the legislated framework
of the crime of theft. The Revised Penal Code provisions on theft have not been designed in such fashion as to accommodate said
rulings. Again, there is no language in Article 308 that expressly or impliedly allows that the "free disposition of the items stolen" is
in any way determinative of whether the crime of theft has been produced. Diño itself did not rely on Philippine laws or
jurisprudence to bolster its conclusion, and the later Flores was ultimately content in relying on Diño alone for legal support. These
cases do not enjoy the weight of stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them
susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not since found favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched the success of
his appeal on our acceptance of the Diño and Flores rulings, his petition must be denied, for we decline to adopt said rulings in our
jurisdiction. That it has taken all these years for us to recognize that there can be no frustrated theft under the Revised Penal Code
does not detract from the correctness of this conclusion. It will take considerable amendments to our Revised Penal Code in order
that frustrated theft may be recognized. Our deference to Viada yields to the higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
G.R. No. 206442 July 1, 2015
JOVITO CANCERAN, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari seeking to reverse and set aside the August 10, 2012 Decision 1 and the March 7, 2013
Resolution2 of the Court of Appeals (CA), in CA-G.R. CR No. 00559, which affirmed and modified the September 20, 2007
Judgment3 of the Regional Trial Court, Branch 39, Misamis Oriental, Cagayan de Oro City (RTC), in Criminal Case No. 2003-141,
convicting petitioner Jovito Canceran (Canceran) for consummated Theft.
The records disclose that Canceran, together with Frederick Vequizo and Marcial Diaz, Jr., was charged with "Frustrated Theft." The
Information reads:
That on or about October 6, 2002, at more or less 12:00 noon, at Ororama Mega Center Grocery Department, Lapasan, Cagayan de
Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Jovito Canceran, conspiring,
confederating together and mutually helping one another with his co-accused Frederick Vequizo, URC Merchandiser, and Marcial
Diaz, Jr., a Unilever Philippines merchandiser both of Ororama Mega Center, with intent to gain and without the knowledge and
consent of the owner thereof, did then and there wilfully, unlawfully and feloniously take, steal and carry away 14 cartons of Ponds
White Beauty Cream valued at ₱28,627,20, belonging to Ororama Mega Center, represented by William Michael N. Arcenio, thus,
performing all the acts of execution which would produce the crime of theft as a consequence but, nevertheless, did not produce it
by reason of some cause independent of accused’s will, that is, they were discovered by the employees of Ororama Mega Center
who prevented them from further carrying away said 14 cartons of Ponds White Beauty Cream, to the damage and prejudice of the
Ororama Mega Center.
Article 308 in relation to Article 309, and 6 of the Revised Penal Code. 4
Version of the Prosecution
To prove the guilt of the accused, the prosecution presented Damalito Ompoc (Ompoc),a security guard; and William Michael N.
Arcenio (Arcenio), the Customer Relation Officer of Ororama Mega Center (Ororama),as its witnesses. Through their testimonies, the
prosecution established that on or about October 6, 2002, Ompoc saw Canceran approach one of the counters in Ororama; that
Canceran was pushing a cart which contained two boxes of Magic Flakes for which he paid ₱1,423.00; that Ompoc went to the
packer and asked if the boxes had been checked; that upon inspection by Ompoc and the packer, they found out that the contents
of the two boxes were not Magic Flakes biscuits, but 14 smaller boxes of Ponds White Beauty Cream worth ₱28,627.20; that
Canceran hurriedly left and a chase ensued; that upon reaching the Don Mariano gate, Canceran stumbled as he attempted to ride a
jeepney; that after being questioned, he tried to settle with the guards and even offered his personal effects to pay for the items he
tried to take; that Arcenio refused to settle; and that his personal belongings were deposited in the office of Arcenio. 5
Version of the Defense
Canceran vehemently denied the charges against him. He claimed that he was a promo merchandiser of La Tondeña, Inc. and that
on October 6, 2002, he was in Ororama to buy medicinefor his wife. On his way out, after buying medicine and mineral water, a
male person ofaround 20 years of age requested him to pay for the items in his cart at the cashier; that he did not know the name of
this man who gavehim ₱1,440.00 for payment of two boxes labelled Magic Flakes; that he obliged with the request of the unnamed
person because he was struck by his conscience; that he denied knowing the contents of the said two boxes; that after paying at the
cashier, he went out of Ororama towards Limketkai to take a jeepney; that three persons ran after him, and he was caught; that he
was brought to the 4th floor of Ororama, where he was mauled and kicked by one of those who chased him; that they took his Nokia
5110 cellular phone and cash amounting to ₱2,500.00; and that Ompoc took his Seiko watch and ring, while a certain Amion took his
necklace.6
Canceran further claimed that an earlier Information for theft was already filed on October 9,2002 which was eventually dismissed.
In January 2003, a second Information was filed for the same offense over the same incident and became the subject of the present
case.7
The Ruling of the Regional Trial Court
In its Judgment, dated September 20, 2007, the RTC found Canceran guilty beyond reasonable doubt of consummated Theft in line
with the ruling of the Court in Valenzuela v. People8 that under Article 308 of the Revised Penal Code (RPC),there is no crime of
"Frustrated Theft." Canceran was sentenced to suffer the indeterminate penalty of imprisonment from ten (10) years and one (1)
day to ten (10) years, eight (8) months of prision mayor, as minimum, to fourteen (14) years, eight (8) months of reclusion temporal,
as maximum.9
The RTC wrote that Canceran’s denial deserved scant consideration because it was not supported by sufficient and convincing
evidence and no disinterested witness was presented to corroborate his claims. As such, his denial was considered self-serving and
deserved no weight. The trial court was also of the view that his defense, that the complaint for theft filed against him before the
sala of Judge Maximo Paderanga was already dismissed, was not persuasive. The dismissal was merely a release order signed by the
Clerk of Court because he had posted bail.10
The Ruling of the Court of Appeals
Aggrieved, Canceran filed an appeal where he raised the issue of double jeopardy for the first time. The CA held that there could be
no double jeopardy because he never entered a valid plea and so the first jeopardy never attached. 11
The CA also debunked Canceran’s contention that there was no taking because he merely pushed the cart loaded with goods to the
cashier’s booth for payment and stopped there. The appellate court held that unlawful taking was deemed complete from the
moment the offender gained possession of the thing, even if he had no opportunity to dispose of the same. 12
The CA affirmed with modification the September 20, 2007 judgment of the RTC, reducing the penalty ranging from two (2) years,
four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years, eight (8) months and one (1) day of prision
mayor, as maximum. Canceran moved for the reconsideration of the said decision, but his motion was denied by the CA in its March
7, 2013 resolution.
Hence, this petition.
As can be synthesized from the petition and other pleadings, the following are the issues: 1] whether Canceran should be acquitted
in the crime of theft as it was not charged in the information; and 2] whether there was double jeopardy.
Canceran argues that the CA erred in affirming his conviction. He insists that there was already double jeopardy as the first criminal
case for theft was already dismissed and yet he was convicted in the second case. Canceran also contends that there was no taking
of the Ponds cream considering that "the information in Criminal Case No. 2003-141 admits the act of the petitioner did not produce
the crime of theft."13 Thus, absent the element of taking, the felony of theft was never proved.
In its Comment,14 the Office of the Solicitor General (OSG)contended that there was no double jeopardy as the first jeopardy never
attached. The trial court dismissed the case even before Canceran could enter a plea during the scheduled arraignment for the first
case. Further, the prosecution proved that all the elements of theft were present in this case.
In his Reply,15 Canceran averred that when the arraignment of the first case was scheduled, he was already bonded and ready to
enter a plea. It was the RTC who decided that the evidence was insufficient or the evidence lacked the element to constitute the
crime of theft. He also stressed that there was no unlawful taking as the items were assessed and paid for.
The Court's Ruling
The Court finds the petition partially meritorious.
Constitutional Right of the

Accused to be Informed of
the Nature and Cause of
Accusation against Him.
No less than the Constitution guarantees the right of every person accused in a criminal prosecution to be informed of the nature
and cause of accusation against him.16 It is fundamental that every element of which the offense is composed must be alleged in the
complaint or information. The main purpose of requiring the various elements of a crime to be set out in the information is to
enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute
the offense.17
Under Article 308 of the RPC, the essential elements of theft are (1) the taking of personal property; (2) the property belongs to
another; (3) the taking away was done with intent of gain; (4) the taking away was done without the consent of the owner; and (5)
the taking away is accomplished without violence or intimidation against person or force upon things. "Unlawful taking, which is the
deprivation of one’s personal property, is the element which produces the felony in its consummated stage. At the same time,
without unlawful taking as an act of execution, the offense could only be attempted theft, if at all." 18
"It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of ‘taking’ itself,
in that there could be no true taking until the actor obtains such degree of control over the stolen item. But even if this were correct,
the effect would be to downgrade the crime to its attempted, and not frustrated stage, for it would mean that not all the acts of
execution have not been completed, the "taking not having been accomplished." 19
A careful reading of the allegations in the Information would show that Canceran was charged with "Frustrated Theft" only.
Pertinent parts of the Information read:
x x x did then and there wilfully, unlawfully and feloniously take, steal and carry away 14 cartons of Ponds White Beauty Cream
valued at ₱28,627,20, belonging to Ororama Mega Center, represented by William Michael N. Arcenio, thus performing all the acts
of execution which would produce the crime of theft as a consequence, but nevertheless, did not produce it by reason of some
cause independent of accused’s will x x x.
[Emphasis and Underscoring Supplied]
As stated earlier, there is no crime of Frustrated Theft. The Information can never be read to charge Canceran of consummated
Theft because the indictment itself stated that the crime was never produced. Instead, the Information should be construed to mean
that Canceran was being charged with theft in its attempted stage only. Necessarily, Canceran may only be convicted of the lesser
crime of Attempted Theft.
"[A]n accused cannot be convicted of a higher offense than that with which he was charged in the complaint or information and on
which he was tried. It matters not how conclusive and convincing the evidence of guilt may be, an accused cannot be convicted in
the courts of any offense, unless it is charged in the complaint or information on which he is tried, or necessarily included therein.
He has a right to be informed as to the nature of the offense with which he is charged before he is put on trial, and to convict him of
an offense higher than that charged in the complaint or information on which he is tried would be an unauthorized denial of that
right."20 Indeed, an accused cannot be convicted of a crime, even if duly proven, unless it is alleged or necessarily included in the
information filed against him.21 An offense charged necessarily includes the offense proved when some of the essential elements or
ingredients of the former, as alleged in the complaint or information, constitute the latter. 22
The crime of theft in its consummated stage undoubtedly includes the crime in its attempted stage. In this case, although the
evidence presented during the trial prove the crime of consummated Theft, he could be convicted of Attempted Theft only.
Regardless of the overwhelming evidence to convict him for consummated Theft, because the Information did not charge him with
consummated Theft, the Court cannot do so as the same would violate his right to be informed of the nature and cause of the
allegations against him, as he so protests.
The Court is not unmindful of the rule that "the real nature of the criminal charge is determined, not from the caption or preamble
of the information nor from the specification of the law alleged to have been violated – these being conclusions of law – but by the
actual recital of facts in the complaint or information."23 In the case of Domingo v. Rayala,24 it was written:
What is controlling is not the title of the complaint, nor the designation of the offense charged or the particular law or part thereof
allegedly violated, these being mere conclusions of law made by the prosecutor, but the description of the crime charged and the
particular facts therein recited. The acts or omissions complained of must be alleged in such form as is sufficient to enable a person
of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. No
information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. Every element
of the offense must be stated in the information. What facts and circumstances are necessary to be included therein must be
determined by reference to the definitions and essentials of the specified crimes. The requirement of alleging the elements of a
crime in the information is to inform the accused of the nature of the accusation against him so as to enable him to suitably prepare
his defense.25
In the subject information, the designation of the prosecutor of the offense, which was "Frustrated Theft," may be just his
conclusion. Nevertheless, the fact remains that the charge was qualified by the additional allegation, "but, nevertheless, did not
produce it by reason of some cause independent of accused’s will, that is, they were discovered by the employees of Ororama Mega
Center who prevented them from further carrying away said 14 cartons of Ponds White Beauty Cream, x x x. 26 This averment, which
could also be deemed by some as a mere conclusion, rendered the charge nebulous. There being an uncertainty, the Court resolves
the doubt in favor of the accused, Canceran, and holds that he was not properly informed that the charge against him was
consummated theft.
No double jeopardy when

the first jeopardy never
attached
Anent the issue of double jeopardy, the Court finds no reason to deviate from the ruling of the CA.
No person shall be twice put in jeopardy for punishment for the same offense. The rule of double jeopardy has a settled meaning in
this jurisdiction. It means that when a person is charged with an offense and the case is terminated either by acquittal or conviction
or in any other manner without the consent of the accused, the latter cannot again be charged with the same or identical offense.
This principle is founded upon the law of reason, justice and conscience. 27
Canceran argues that double jeopardy exists as the first case was scheduled for arraignment and he, already bonded, was ready to
enter a plea. It was the RTC who decided that there was insufficient evidence to constitute the crime of theft.
To raise the defense of double jeopardy, three requisites must be present: (1) a first jeopardy must have attached prior to the
second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the same offense as that
in the first. Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid
plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused. 28
Here, the CA correctly observed that Canceran never raised the issue of double jeopardy before the RTC.1âwphi1 Even assuming
that he was able to raise the issue of double jeopardy earlier, the same must still fail because legal jeopardy did not attach. First, he
never entered a valid plea. He himself admitted that he was just about to enter a plea, but the first case was dismissed even before
he was able to do so. Second, there was no unconditional dismissal of the complaint. The case was not terminated by reason of
acquittal nor conviction but simply because he posted bail. Absent these two elements, there can be no double jeopardy.
Penalty of Attempted Theft
The penalty for consummated theft is prision mayor in its minimum and medium periods. 29 The penalty lower by two degrees than
that prescribed by law for the consummated felony shall be imposed upon principals in an attempt to commit a felony. 30 The basis
for reduction of penalty by two degrees is the penalty prescribed by law for the consummated crime. Also, when the offenses
defined in the RPC are punished with a penalty composed of two periods, like in the crime of theft, the penalty lower by one degree
is formed by two periods to be taken from the same penalty prescribed. 31
Here, the products stolen were worth ₱28,627.20. Following Article 309 par. 1 of the RPC, the penalty shall be the maximum period
of the penalty prescribed in. the same paragraph, because the value of the things stolen exceeded ₱22,000.00. In other words, a
special aggravating circumstance shall affect the imposable penalty.
Applying the Indeterminate Sentence Law, the minimum penalty should be within the range of Arresto Mayor Minimum to Arresto
Mayor Medium. In view of the special aggravating circumstance under Article 309 (1), the maximum penalty should be Arresto
Mayor Maximum to Prision Correccional Minimum in its maximum period.
WHEREFORE, the petition is PARTIALLY GRANTED. The August 10, 2012 Decision and the March 7, 2013 Resolution of the Court of
Appeals in CA-G.R. CR No. 00559 are hereby MODIFIED, in that, the Court finds accused Jovito Canceran guilty beyond reasonable
doubt of the crime of Attempted Theft.
Accordingly, the Court sentences the accused to suffer the indeterminate prison term ranging from Four (4) Months of Arresto
Mayor, as minimum, to Two (2) Years, Four (4) Months of Prision Correccional, as maximum.
SO ORDERED.
G.R. No. L-5877 September 28, 1954
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ARTURO MENDOZA, defendant-appellant.
Nestor A. Andrada for appellant.

Office of the Solicitor General Pompeyo Diaz and Solicitor Felicisimo R. Rosete for appellee.
PARAS, C.J.:
The defendant, Arturo Mendoza, has appealed from a judgment of the Court of First Instance of Laguna, finding him guilty of the
crime of bigamy and sentencing him to imprisonment for an indeterminate term of from 6 months and 1 day to 6 years, with costs.
The following facts are undisputed: On August 5, 1936, the appellant and Jovita de Asis were married in Marikina, Rizal. On May 14,
1941, during the subsistence of the first marriage, the appellant was married to Olga Lema in the City of Manila. On February 2,
1943, Jovita de Asis died. On August 19, 1949, the appellant contracted another marriage with Carmencita Panlilio in Calamba,
Laguna. This last marriage gave rise to his prosecution for and conviction of the crime of bigamy.
The appellant contends that his marriage with Olga Lema on May 14, 1941 is null and void and, therefore, non-existent, having been
contracted while his first marriage with Jovita de Asis August 5, 1936 was still in effect, and that his third marriage to Carmencita
Panlilio on August 19, 1949 cannot be the basis of a charge for bigamy because it took place after the death of Jovita de Asis. The
Solicitor General, however, argues that, even assuming that appellant's second marriage to Olga Lema is void, he is not exempt from
criminal liability, in the absence of a previous judicial annulment of said bigamous marriage; and the case of People vs. Cotas, 40 Off.
Gaz., 3134, is cited.
The decision invoked by the Solicitor General, rendered by the Court of Appeals, is not controlling. Said case is essentially different,
because the defendant therein, Jose Cotas, impeached the validity of his first marriage for lack of necessary formalities, and the
Court of Appeals found his factual contention to be without merit.
In the case at bar, it is admitted that appellant's second marriage with Olga Lema was contracted during the existence of his first
marriage with Jovita de Asis. Section 29 of the marriage law (act 3613), in force at the time the appellant contracted his second
marriage in 1941, provides as follows:1âwphïl.nêt
Illegal marriages. — Any marriage subsequently contracted by any person during the lifetime of the first spouse of such
person with any person other than such first spouse shall be illegal and void from its performance, unless:
(a) The first marriage was annulled or dissolved;
(b) The first spouse had been absent for seven consecutive years at the time of the second marriage without the
spouse present having news of the absentee being alive, or the absentee being generally considered as dead and
believed to be so by the spouse present at the time of contracting such subsequent marriage, the marriage so
contracted being valid in either case until declared null and void by a competent court.
This statutory provision plainly makes a subsequent marriage contracted by any person during the lifetime of his first spouse illegal
and void from its performance, and no judicial decree is necessary to establish its invalidity, as distinguished from mere annulable
marriages. There is here no pretence that appellant's second marriage with Olga Lema was contracted in the belief that the first
spouse, Jovita de Asis, has been absent for seven consecutive years or generally considered as dead, so as to render said marriage
valid until declared null and void by a competent court.1âwphïl.nêt
Wherefore, the appealed judgment is reversed and the defendant-appellant acquitted, with costs de officio so ordered.
Pablo, Bengzon, Jugo, Bautista Angelo, Labrador, Concepcion, and Reyes, J.B.L., JJ., concur.
Separate Opinions
REYES, J., dissenting:
I dissent.
Article 349 of the Revised Penal Code punishes with prision mayor "any person who shall contract a second or subsequent marriage
before the former marriage has been legally dissolved".
Though the logical may say that where the former marriage was void there would be nothing to dissolve still it is not for the spouses
to judge whether that marriage was void or not. That judgment is reserved to the courts. As Viada says "La santidad e importancia
del matrinonio no permite que los casados juzguen por si mismos de su nulidad; esta ha de someterse precisamente al judicio del
Tribunal competente, y cuando este declare la nulidad del matrimonio, y solo entonces, se tendra por nulo; mientras no exista esta
declaracion, la presuncion esta siempre a favor de la validez del matrimonio, y de consiguente, el que contrae otro segundo antes de
dicha declaracion de nulidad, no puede menos de incurrir la pena de este articulo."(3 Viada, Codigo penal p. 275.)
"This is a sound opinion," says Mr. Justice Tuason in the case of People vs. Jose Cotas, (CA), 40 Off. Gaz., 3145, "and is in line with the
well-known rule established in cases of adultery, that "until by competent authority in a final judgment the marriage contract is set
aside, the offense to the vows taken and the attack on the family exist."
Padilla and Montemayor, JJ., concur.

G.R. No. L-7094 March 29, 1912
THE UNITED STATES, plaintiff-appellee,

vs.
HILARIO DE LA CRUZ, defendant-appellant.
F.C. Fisher for appellant.

Acting Attorney-General Harvey for appellee.
CARSON, J.:
The guilt of the defendant and appellant of the crime of homicide of which he was convicted in the court below is conclusively
established by the evidenced of record.
The trial court was of opinion that its commission was not marked by either aggravating or extenuating circumstances, and
sentenced the convict to fourteen years eight months and one day of reclusion temporal, the medium degree of the penalty
prescribed by the code. Burt we are of opinion that the extenuating circumstance set out in subsection 7 of article 9 should have
been taken into consideration, and that the prescribed penalty should have been imposed in its minimum degree. Subsection 7 of
article 9 is as follows:
The following are extenuating circumstances:
xxx xxx xxx
That of having acted upon an impulse so powerful as naturally to have produced passion and obfuscation.
The evidence clearly discloses that the convict, in the heat of passion, killed the deceased, who had theretofore been
his querida (concubine or lover) upon discovering her in flagrante in carnal communication with a mutual acquaintance. We think
that under the circumstances the convict was entitled to have this fact taken into consideration in extenuation of his offense under
the provisions of the above-cited article.
This was the view taken by the Court of Spain upon a similar state of facts as set forth in its sentence of July 4, 1892, which is
summarized by Viada (p. 69, in question 19, art. 9 of vol. 6) as follows:
Shall he who kills a woman with whom he is living in concubinage for having caught her in her underclothes with another
party and afterwards shoots himself, inflicting a serious wound, be responsible for that crime with the extenuating
circumstance of having acted with violent passion and obfuscation? The Audiencia of Santiago de Cuba did not so hold and
its judgment was reversed by the supreme court for the improper disregard of article 9, number 8, of the Penal Code for
Cuba and Puerto Rico: "The facts held to be true by the trial court, and which were the immediate cause of the crime by
producing in the accused strong emotion which impelled him to the criminal act and even to attempt his own life, were a
sufficient impulse in the natural and ordinary course to produce the violent passion and obfuscation which the law regards
as a special reason for extenuation, and as the judgment did not take into consideration the 8th circumstance of article 9 of
the code, the Audiencia rendering it seems to have violated this legal provision."
It is true that in the case of U.S. vs. Hicks (14 Phil. Rep.., 217), we held that the "causes which mitigate the criminal responsibility for
the loss of self-control are such as originate from legitimate feelings, not those which arise from vicious, unworthy, and immoral
passions," and declined to give the benefit of the provisions of this article to the convict in that case on the ground that the alleged
causes for his loss of self-control did not "originate from legitimate feelings." But in that case we found as facts that:
All the foregoing circumstances conclusively prove that the accused, deliberately and after due reflection had resolved to
kill the woman who had left him for another man, and in order to accomplish his perverse intention with safety,
notwithstanding the fact that he was already provided with a clean and well-prepared weapon and carried other loaded
cartridges besides those already in his revolver, he entered the house, greeting everyone courteously and conversed with
his victim, in what appeared to be in a proper manner, disguising his intention and calming her by his apparent repose and
tranquility, doubtless in order to successfully accomplish his criminal design, behaving himself properly as he had planned
to do beforehand.
In the former case the cause alleged "passion and obfuscation" of the aggressor was the convict's vexation, disappointment and
deliberate anger engendered by the refusal of the woman to continue to live in illicit relations with him, which she had a perfect
right to do; his reason for killing her being merely that he had elected to leave him and with his full knowledge to go and live with
another man. In the present case however, the impulse upon which defendant acted and which naturally "produced passion and
obfuscation" was not that the woman declined to have illicit relations with him, but the sudden revelation that she was untrue to
him, and his discovery of her in flagrante in the arms of another. As said by the supreme court of Spain in the above-cited decision,
this was a "sufficient impulse" in the ordinary and natural course of things to produce the passion and obfuscation which the law
declares to be one of the extenuating circumstances to be taken into consideration by the court.
Modified by a finding that the commission of the crime was marked with the extenuating circumstance set out in subsection 7 of
article 9, and by the reduction of the penalty of fourteen years eight months and one day of reclusion temporal to twelve years and
one day of reclusion temporal, the judgment of conviction and the sentence imposed by the trial court should be and are hereby
affirmed, with the costs of this instance against the appellant.
Arellano, C.J., Torres, Johnson and Trent, JJ., concur.
Separate Opinions
MORELAND, J., concurring:
I agree except as to the application of the extenuating circumstance presented by paragraph 7, article 9, Penal Code. In my judgment
it is not warranted by the facts or the law.
G.R. No. 210434, December 05, 2016
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CHRISTOPHER ELIZALDE Y SUMAGDON AND ALLAN PLACENTE Y BUSIO, Accused-
Appellants.
DECISION
PERALTA, J.:
Before the Court is an appeal from the Decision 1 dated May 31, 2013 of the Court Appeals (CA) in CA-G.R. CR-HC No. 05100, which
affirmed the Decision2 dated March 4, 2011 of the Regional Trial Court (RTC), Branch 195, Parañaque City, in Criminal Case No. 05-
0669 for kidnapping for ransom with homicide.
The antecedent facts are as follows:
On June 3, 2005, an Information3 was filed against accused-appellants Christopher Elizalde y Sumagdon and Allan Placente y Busio,
together with their co-accused Arcel Lucban y Lindero, Allan Dela Peña, Alden Diaz, and alias Erwin, charging them with the special
complex crime of kidnapping for ransom with homicide as defined and penalized under Article 267 of the Revised Penal Code (RPC)
for detaining and depriving, with the use of firearms and threats, Letty Tan y Co of her liberty and against her will, for the purpose of
extorting a P20,000,000.00 ransom as a condition for her release, by shoving her inside a red Toyota Lite Ace van, then later
transferring her to a jeepney where she was eventually found dead with gunshot wounds after an armed encounter with police
operatives. The accusatory portion of said Information reads:
That on or about 6:30 in the evening of June 17, 2003 on Dr. A. Santos St., Sucat Road, Paranaque City and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring, confederating, and mutually aiding and abetting one another, with the
use of firearms, employing force, threat, and intimidation did then and there, wilfully, unlawfully, and feloniously take, carry away,
kidnap and deprive Letty Tan y Co of her liberty against her will by shoving her inside a red Toyota Lite Ace van with plate number
ULK 341 at gunpoint and thereafter transferred her to a Mazda XLT jitney bearing plate number CRV-299 where said victim was later
found with gunshot wounds which caused her death engaging in armed encounter with police operatives in Tarlac City. The
abduction of Letty Tan y Co was for the purpose of extorting ransom from her family as in fact a demand for ransom was made as a
condition for her release amounting to Twenty Million Pesos (P20,000,000.00) to the damage and prejudice of the heirs of said Letty
Tan y Co in whatever amount may be awarded them under the provisions of the New Civil Code.
Contrary to law.4
Only appellants Elizalde and Placente as well as Dela Pena were arrested while the rest remain at-large. Upon arraignment, they all
pleaded not guilty to the offense charged. 5Thereafter, during trial, the prosecution presented the testimonies of the victim's
husband, Antonio Tan, an eyewitness, Mario Ramos, and several police officers, namely, PO3 Nestor Acebuche, Police Inspector
Joselito Nelmida, Dr. Ronaldo B. Mendez, Kagawad Honorio Ramos Lundang, and SPO2 Miguel Acosta. 6
Antonio testified that at around 6:30 p.m. on June 17, 2003, while he was closing their concrete products store, Nysan Concrete
Products, along Dr. A. Santos Avenue, Sucat, Parañaque City, Letty went inside their vehicle that was parked at the right side of the
road facing their store. Suddenly, a red Toyota Lite Ace van with plate number ULK 341 arrived. He then saw about seven (7) armed
men alight therefrom, three (3) of which pointed their guns at him and told him not to move, while two (2) of the other four (4)
dragged Letty into their van. Thereafter, they sped away. Antonio immediately called his children and his brother, Nick. In a series of
telephone calls to the store's phone, the kidnappers told them not to report the matter to the authorities and to be ready with
P20M the following day. Nevertheless, they called the Police Anti-Crime and Emergency Response (PACER) unit of the PNP who met
them at the Mandarin Oriental Hotel at around 9:00 p.m. that same day. Through Antonio's cellular phone, they would bargain with
the kidnappers, telling them that they did not have the amount, to which the kidnappers replied that they will not see Letty again
without it. At noon of the next day, the PACER team informed Antonio and his family about a shootout in Tarlac where three (3)
persons were killed. They proceeded to the Tarlac Provincial Hall where they saw Letty's lifeless body with a gunshot below her chin.
Antonio identified the other bodies as those who kidnapped his wife and later learned that the others, appellants included, were
able to escape.7
Sometime in April 2004, however, Antonio saw a news report on TV which showed a picture of a wounded person involved in a
shooting incident in Navotas. He instantly recognized said person as appellant Elizalde and called a PACER agent to inform him
thereof. Consequently, together with the PACER team, he went to V. Luna Hospital where Elizalde was confined and identified him
as one of the men who dragged his wife into the red van. 8
A few years after, when appellant Placente was arrested in 2007, Antonio identified him as one of the armed persons who poked a
gun at him while the others dragged his wife. This was through the cartographic sketches that the PACER team drew at the time of
the incident. Antonio also identified Placente, who was apparently also involved in the April 2004 kidnapping, when he was shown
several photos of suspects from PACER's gallery. According to Antonio, he easily recognized appellants for they were all not wearing
masks at the time of the incident.9
Prosecution witness P/Insp. Nelmilda, who had been stationed at the Intelligence Unit of the Police Non-Commissioned Office
(PNCO) Tarlac City for sixteen (16) years, likewise testified that in the morning of June 18, 2003, he received information that a
stolen red Toyota Light Ace van would be passing their area. Two (2) police cars were dispatched. Aboard one (1) of the two (2) cars,
Nelmida and his team tailed the red van after seeing it pass through their control point. Upon seeing both police cars, the
passengers of the red van alighted and fired at Nelmida and the other police officers. A shootout ensued during which a colorless
jeepney passed by and likewise fired at the police. Nelmida recalled being shot at the buttocks by appellant Elizalde, who was riding
the jeepney. He further recalled that after the shootout, the jeepney passengers eventually dumped said vehicle near a bridge along
Sitio Barbon, Tarlac, wherein he saw Letty's lifeless body.10
P/Insp. Nelmida's testimony was corroborated by Mario Ramos who narrated that at around noon on June 18, 2003, while he was
walking towards Sitio Barbon with his friend to go fishing, he saw a colorless jeepney crisscrossing along the road. After passing
through fifteen (15) meters from where they were standing, the jeepney stopped. He then heard three (3) gunshots from inside it.
Thereafter, he saw four (4) armed persons alight therefrom to head towards the irrigation area. He recalled appellant Elizalde being
the last person to alight the jeepney. When the door of the vehicle opened, he saw the dead body of a fat, fair-skinned Chinese
woman with a bullet hole in her head, her clothes ripped apart. When the police officers arrived at the scene, Ramos and his friend
left.11
The defense countered by presenting the testimonies of appellants, Technical Sergeant Ortillano, who prepared appellant Elizalde's
clinical records, and a certain Nilo Avelina.12
Appellant Elizalde denied the charges against him, claiming that he did not know Antonio, Letty or any of his co-accused.13 According
to him, he went to Manila for the first time on April 15, 2003 from Samar, where he was working in a bakery, to look for his mother.
He lived with his cousin in Sta. Cruz, Manila. On the day of the alleged kidnapping on June 17, 2003, Elizalde testified that he was in
Blumentritt, Manila, selling boiled peanuts in a pushcart from 7:00a.m. to 3:00p.m. Afterwards, he went straight home for fear of
getting lost being in Manila for the first time.14
Almost a year thereafter, on April 1, 2004, Elizalde narrated that another one of his cousins visited him at home and promised that
he would help him find a job. They then boarded a small red vehicle with three (3) other persons he did not know. Elizalde asked his
cousin who said persons were and where they were going but his cousin would not tell him. After an hour, he was surprised to hear
gunshots. He was hit at the right portion of his chest below the naval and thereafter lost consciousness. When he woke up, he was
already at the V. Luna Hospital and learned that he was the only one who had survived. He recounted that after a week thereat,
several police officers came with a man in handcuffs he later came to know as Nilo Avelina. According to Elizalde, the police officers
forced Avelina to point at him as one of the perpetrators in a kidnapping case in Quezon City, even if Avelina did not know who he
was. A week after, a different set of police officers came and forced him to admit to being involved in said case, which he succumbed
to even if he had no knowledge thereon for fear of what said officers might do to him. The Quezon City RTC eventually convicted
Elizalde and Avelina for kidnapping. Meanwhile, several police officers came to inform him that he was going to be brought to Tarlac
to face Frustrated Murder and Carnapping charges against him. He was convicted by the Tarlac RTC of Frustrated Murder, but was
subsequently acquitted on appeal. Thereafter, he was again informed of another case, this time, on the instant Kidnapping for
Ransom with Homicide accusation.15
During trial, the defense also presented Avelina to corroborate appellant Elizalde's testimony as to the latter's claim that the former
pointed to him as co-kidnapper in the Q.C. case even if Avelina did not know who he was and merely because he was told that he
would be freed if he did as he was told.16
In addition, appellant Placente next testified and also denied knowing any of his co-accused as well as the accusations against him.
According to Placente, he came to Manila in 1982 from Samar. On the alleged day and time of the kidnapping, he was merely
working, driving a tricycle owned by his neighbor on his way to the market in Pasig City. His job normally ends at 8:00 p.m., and on
that day, he claimed that he did not go anywhere other than his daily route. Thereafter, he parked the tricycle in front of his
neighbor's house and returned the key, as he normally did. In August 2003, he began driving a taxi. In 2005, however, he went back
to Samar with his pregnant wife and his son so that his wife can give birth there. He worked as a laborer and a farmer until he was
arrested on May 9, 2007.17
On March 4, 2011, the RTC found appellants guilty beyond reasonable doubt of the special complex crime of kidnapping for ransom
with homicide and rendered its Decision, the dispositive portion of which reads:
WHEREFORE, this Court finds both accused CHRISTOPHER ELIZALDE Y SUMAGDON AND ALLAN BUSIO PLACENTE, GUILTY BEYOND
REASONABLE DOUBT of the special complex crime of KIDNAPPING FOR RANSOM WITH HOMICIDE and hereby sentences them to
suffer the penalty of Reclusion Perpetua without eligibility for parole.
Accused Elizalde and Placente are likewise ordered to pay the heirs of Letty Tan y Co the following: P75,000.00 as civil indemnity;
P500,000.00 as moral damages; P25,000.00 as temperate damages; and P100,000.00 as exemplary damages.
As regards accused ALLAN DELA PEÑA, for failure of the prosecution to prove his guilt beyond reasonable doubt, he is hereby
ordered ACQUITTED. The City Jail Warden of Parañaque City is hereby ordered to release said accused from his custody unless he is
being held for some other legal cause/s.
With respect to accused Arcel Lucban y Lindero @ Nonoy, Alden Diaz and one Alias Erwin, the instant case is hereby ordered
ARCHIVED. Let Alias Warrants of Arrest be issued against them.
SO ORDERED.18
The RTC gave credence not only to the fact that the prosecution witnesses testified in a positive, categorical, unequivocal and
straightforward manner, but also to the inherent weakness of appellants' defenses of denial and alibi. According to the trial court,
the prosecution duly established all the following elements of the crime of kidnapping for ransom: (a) intent on the part of the
accused to deprive the victim of his liberty; (b) actual deprivation of the victim of his liberty; and (c) motive of the accused, which is
extorting ransom for the release of the victim.19 Antonio, in positively identifying the appellants, convincingly testified on the events
that transpired on the day of the alleged incident. Said testimony was even strengthened by the testimonies of the other
prosecution witnesses, especially in light of the fact that there exists no showing that said witnesses were impelled with improper
and ill motive.20
Aside from this, the trial court further noted that the appellants' defense of denial was not even corroborated by any credible
witness. Elizalde's testimony that he was just selling peanuts, as well as Placente's testimony that he was merely driving his
neighbor's tricycle, are self-serving statements unsupported by any substantiating evidence. Elizalde's cousin or Placente's neighbor
could have been presented to corroborate their claims. The defense, however, failed to do so. Moreover, Avelina's testimony that
he was forced by policemen to point at appellant Elizalde as one of his cohorts in the kidnapping case in Quezon City, even if true,
has no bearing in this case simply because it was an entirely different case. 21 Thus, in view of the clarity of the prosecution's version
of events, the trial court found the presence of conspiracy shown by Placente's act of poking a gun at Antonio, while Elizalde and
their cohorts dragged Letty into the van.22
On appeal, the CA affirmed the RTC Decision, but reduced the moral damages to P100,000.00. The CA ruled that when the decision
hinges on the credibility of witnesses and their respective testimonies, the trial court's observations and conclusions deserve great
weight and respect. On the one hand, the prosecution witnesses unerringly established the crime in a clear and candid manner,
positively identifying appellants as Letty's abductors. The argument that Antonio's testimony contains inconsistencies is
inconsequential for they merely refer to minor details which actually serves to strengthen rather than weaken his credibility as they
erase suspicion of being rehearsed.23 On the other hand, the appellate court ruled that appellants' defense cannot prosper having
failed to prove that they were at some other place at the time when the crime was committed and that it was physically impossible
for them to be at the locus criminis at the time.24 Appellants merely alleged their bare alibis of selling peanuts and driving a tricycle
without even attempting to present any credible witness that could corroborate the same. 25
In this regard, the CA agreed with the RTC as to the existence of conspiracy among appellants and their cohorts. Their community of
criminal design could be inferred from their arrival at Antonio's store already armed with weapons, Placente and companions
pointing their guns at Antonio, while Elizalde and companions dragged Letty into their van. Moreover, they demanded P20M for
Letty's freedom which never materialized as she was killed during captivity by the kidnappers before evading arrest. Thus, having
been proven that they each took part in the accomplishment of their common criminal design, appellants are equally liable for the
complex crime of kidnapping for ransom with homicide.26
Consequently, appellant filed a Notice of Appeal27 on June 25, 2013. Thereafter, in a Resolution28 dated February 26, 2014, the Court
notified the parties that they may file their respective supplemental briefs, if they so desire, within thirty (30) days from notice. Both
parties, however, manifested that they are adopting their respective briefs filed before the CA as their supplemental briefs, their
issues and arguments having been thoroughly discussed therein. Thus, the case was deemed submitted for decision.
In their Brief, appellants essentially assigned the following error:
I.
THE COURT OF APPEALS ERRED IN FINDING ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED
BY GIVING FULL WEIGHT AND CREDENCE TO THE PROSECUTION'S EVIDENCE.29
Appellants argue that the positive identification made by the prosecution witnesses should not be given any weight and credence.
This is because Antonio only recognized appellant Elizalde on television in April 2004, or ten (10) months after the incident. In fact, a
day after the incident, no cartographic sketch was made of Elizalde. Thus, if Antonio could not describe Elizalde's physical
appearance a day after the incident, it would be highly incredible that he would be able to identify his wife's abductors ten (10)
months after. This lapse of time would definitely affect his memory. In addition, Antonio's identification of Elizalde at the hospital
was marked by suggestiveness for he was already informed beforehand that Elizalde was involved in the instant kidnapping. Thus,
Antonio was inclined to point to just anybody. Appellants also raise inconsistencies in Antonio's testimonies as to the time his family
left Mandarin Hotel, the number of PACER people who met them there, the exact number of his wife's abductors, and such other
factual circumstances that cast doubt on his credibility. Thus, while it is true that alibi is a weak defense, the prosecution cannot
profit therefrom, but on the strength of its own evidence. Finally, appellants assert that there is no showing that they were informed
of their constitutional rights at the time of their arrest. Consequently, the entire proceedings are a nullity.
We affirm appellants' conviction, with modification as to the award of damages.
Time and again, the Court has held that the question of credibility of witnesses is primarily for the trial court to determine. 30 Its
assessment of the credibility of a witness is conclusive, binding, and entitled to great weight, unless shown to be tainted with
arbitrariness or unless, through oversight, some fact or circumstance of weight and influence has not been considered. 31 Absent any
showing that the trial judge acted arbitrarily, or overlooked, misunderstood, or misapplied some facts or circumstances of weight
which would affect the result of the case, his assessment of the credibility of witnesses deserves high respect by the appellate
court.32
After a careful review of the records, the Court finds no cogent reason to overturn the trial court's ruling, as affirmed by the
appellate court, finding the prosecution witnesses' testimonies credible. According to the lower courts, the prosecution witnesses
testified in a categorical and straightforward manner, positively identifying appellants as part of the group who kidnapped the
victim. Particularly, Antonio unmistakably and convincingly narrated, in detail, the series of events that transpired on the day of the
incident from the moment he saw appellants alight from their red van, who thereafter split up into two (2) groups, one, pointing
guns at him, and the other, dragging his wife to their van, up until the time when they successfully boarded said vehicle before
speeding away. In fact, he easily recognized appellants from the photographs in the PACER gallery for all throughout the incident,
their faces remained visible, uncovered by any sort of mask. We quote the pertinent portions of his testimony, thus:
Q: Did you recognize any of the persons or the pictures in the photo gallery of PACER?
A: Yes, sir.
Q: Do you know the names of these persons whom you recognized there in the photo gallery of PACER?
A: The face I can recall but the name I can no longer remember, sir.
Q: And would you be able to tell if it's the same person just by looking on the cartographic sketch?
A: Yes, sir.
Q: I'm showing you the prosecution's EXHIBITS "D". "E" and "F", Mr. Witness, can you tell us if the persons depicted therein are
the same ones you are referring to?
A: Yes sir, these are the pictures of the persons I identified when I was brought to the photo gallery of PACER.
QUESTIONS FROM THE COURT:

Q: What is the relation of these pictures to those persons who kidnapped your wife (EXHIBITS "D", "E", and "F")?
A: The people in these pictures, your Honor, were the ones who pointed at me.
Q: Pointed what?
A: They were the ones who poked a gun on me.
Q: Those three persons?

A: Yes, your Honor.
xxxx
Q: Mr. Witness, after you were shown scanned photographs of the other suspects and these are EXHIBITS "D" for the picture
of Arcel Lucban; EXHIBIT "E" for the picture of Allan Dela Pena and EXHIBIT "E" for the picture of Allan Placente, you
mentioned that they were the ones who came up to you and pointed their guns at you. Now, Mr. Witness, how about
accused Christopher Elizalde, what did he do during the abduction of your wife?
A: He was one of the two persons who pulled out my wife from the vehicle, sir.
COURT:
Q: From which vehicle?

A: Our car, your Honor.33
In addition, such testimony was duly corroborated and further strengthened by other prosecution witnesses, such as P/Insp.
Nelmida, who was personally engaged in the shootout and whose buttocks were even shot by appellant Elizalde, as well as Mario
Ramos, who personally saw appellants alight from the jeepney where he eventually saw the lifeless body of the victim. The Court
cannot, therefore, turn a blind eye to the probative value of the testimonies of the prosecution witnesses, consistent with each
other, given in the absence of any showing of ill motive.
This is especially so when, as noted by the trial court, the appellants' defenses of alibi and denial were not even corroborated by any
credible witness. Well settled is the rule that alibi and denial are inherently weak defenses and must be brushed aside when the
prosecution has sufficiently and positively ascertained the identity of the accused. It is only axiomatic that positive testimony
prevails over negative testimony.34 In the instant case, it seems as if appellants urge Us to accept - hook, line, and sinker - their self-
serving statements that Elizalde was merely selling peanuts while Placente was simply driving his neighbor's tricycle without even
attempting to corroborate the same with any supporting evidence. As aptly pointed out by the RTC, Elizalde's cousin or Placente's
neighbor could have been presented to substantiate their stories. Regrettably, appellants failed to convince.
Neither is the Court persuaded by appellants' assertions in their appeal in view of the CA's refutations thereof. Contrary to
appellants' argument that Antonio's positive identification of Elizalde should not be given credence due to the fact that Antonio only
recognized Elizalde on television in April 2004 and that the day after the incident, no cartographic sketch was made, the CA held that
Antonio actually identified Elizalde as his wife's abductor twice prior to confirming his identity in the hospital.35 The day after the
incident, Antonio recognized Elizalde from four (4) cartographic sketches based on the descriptions given by Antonio. Thus,
appellants' claim that there was no cartographic sketch of Elizalde made after the crime has no basis. Thereafter, Antonio again
recognized Elizalde on television prompting him to immediately call the PACER agents. Verily, the Court cannot give credence to
appellants' assertion that Elizalde's identification at the hospital was marked by suggestiveness for as clearly narrated, it was
Antonio who first recognized Elizalde on television and who instantly contacted the PACER agents, not the other way around.
Antonio categorically testified, viz.:
Q: Mr. Witness, after this incident on June 17, 2003, what, if any, incident took place which is related to the abduction of your
wife?
A: While I was watching TV sir in April 2004, I saw a news item regarding a shooting incident I saw in Navotas.
Q: And what about that footage you saw?

A: When a picture of a wounded person from the shooting incident in Navotas was flashed on the screen, I recall that that
person was one of the persons who kidnapped my wife, sir.
Q: And what, if any, did you do about it, Mr. Witness?

A: I immediately called up PACER, sir.
Q: And what did the PACER do, if any?
COURT: No. Why did you call the PACER?
A: I told the agent of the PACER that the person I saw on TV was one of the persons who kidnapped my wife, your honor.
Q: Was that person whom you saw on TV one of those who were shot during that encounter in Navotas?
A: Yes, your honor.
COURT: Proceed.
PROS. MARAYA:
Q: What, if any, did PACER do after you informed them that you recognized one of the persons who were shot in that
encounter in Navotas?
A: We decided to go personally to the person I identified on TV to personally identify, sir.
QUESTIONS FROM THE COURT:
Q: So you went to Navotas?

A: No, your honor.
Q: Where did you go after calling the PACER?

A: We went to the hospital, your Honor.
Q: What hospital?
A: V. Mapa hospital, your Honor.
Q: Did you see the person whom you said you have identified as one of the kidnappers of your wife [in] that hospital?
A: Yes, your Honor.36
With respect to the contention that Antonio's testimony contains inconsistencies, the Court agrees with the appellate court when it
ruled that the so-called inconsistencies are inconsequential for they merely refer to minor details which actually serve to strengthen
rather than weaken his credibility as they erase suspicion of being rehearsed. This is so because what really prevails is the
consistency of the testimonies of the witnesses in relating the principal occurrence and positive identification of the appellants. 37 As
for the alleged nullity of the proceedings due to the absence of any showing that the police officers informed appellants of their
constitutional rights, the Court sustains the CA's ruling that even assuming said failure to inform, the same is immaterial considering
that no admission or confession was elicited from them. 38 As previously discussed, their guilt was established by the strength of the
prosecution witnesses' testimonies.
In view of the foregoing, the Court sustains the findings of the trial court, as positively affirmed by the appellate court, insofar as the
existence of conspiracy is concerned. Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it.39 When conspiracy is established, the responsibility of the conspirators is collective,
not individual, rendering all of them equally liable regardless of the extent of their respective participations.40 Accordingly, direct
proof is not essential to establish conspiracy, as it can be presumed from and proven by the acts of the accused pointing to a joint
purpose, design, concerted action, and community of interests.41 As aptly held by the CA, the community of criminal design by the
appellants and their cohorts is evident as they each played a role in the commission of the crime. While appellant Placente and
companions pointed their guns at Antonio, Elizalde and companions simultaneously dragged Letty into their van. Thereafter, they
demanded ransom money as a condition for her release, which, however, never materialized due to a shootout that sadly led to her
death. Consequently, therefore, appellants are equally liable for the crime charged herein.
In this respect, Article 267 of the Revised Penal Code as amended by Republic Act (RA) No. 7659, provides:
Kidnapping and serious illegal detention. - Any private individual who shall kidnap or detain another, or in any other manner deprive
him of his liberty, shall suffer the penalty ofreclusion perpetua to death:
1. If the kidnapping or detention shall have lasted more than three days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have
been made.
4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer;
The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the
victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts,
the maximum penalty shall be imposed.42
Accordingly, in People v. Mercado,43 the Court explained that when the person kidnapped is killed in the course of the detention, the
same shall be punished as a special complex crime, to wit:
In People v. Ramos, the accused was found guilty of two separate heinous crimes of kidnapping for ransom and murder committed
on July 13, 1994 and sentenced to death. On appeal, this Court modified the ruling and found the accused guilty of the "special
complex crime" of kidnapping for ransom with murder under the last paragraph of Article 267, as amended by Republic Act No.
7659. This Court said:
x x x This amendment introduced in our criminal statutes the concept of 'special complex crime' of kidnapping with murder or
homicide. It effectively eliminated the distinction drawn by the courts between those cases where the killing of the kidnapped victim
was purposely sought by the accused, and those where the killing of the victim was not deliberately resorted to but was merely an
afterthought. Consequently, the rule now is: Where the person kidnapped is killed in the course of the detention, regardless of
whether the killing was purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no longer
be complexed under Art. 48, nor be treated as separate crimes, but shall be punished as a special complex crime under the last
paragraph of Art. 267, as amended by RA No. 7659.44
On this score, the Court finds no reason to disturb the rulings of the lower courts for they aptly convicted appellants with the special
complex crime of kidnapping for ransom with homicide. As clearly proved by the prosecution, appellants succeeded in executing
their common criminal design in abducting the victim herein, demanding for the payment of money for her release, and thereafter,
killing her as a result of the encounter with the police officers. Accordingly, the Court affirms the lower court's imposition of the
penalty of reclusion perpetua, without eligibility for parole, which should have been death, had it not been for the passage of
Republic Act No. 9346, entitled "An Act Prohibiting the Imposition of the Death Penalty in the Philippines" prohibiting the imposition
thereof.
There is, however, a need to modify the amounts of damages awarded. Verily, pursuant to prevailing jurisprudence, 45 the amount of
damages are increased to P100,000.00 as civil indemnity, and P50,000.00 as temperate damages, and that an interest be imposed
on all damages awarded at the rate of six percent (6%) per annum from the date of finality of this Decision until fully paid. 46
WHEREFORE, premises considered, the Court AFFIRMS the Decision dated May 31, 2013 of the Court of Appeals in CA-G.R. CR-HC
No. 05100 finding appellants Christopher Elizalde y Sumagdon and Allan Placente y Busio guilty beyond reasonable doubt of the
crime of kidnapping for ransom with homicide, as defined and penalized under Article 267 of the Revised Penal Code, sentencing
them to suffer the penalty of reclusion perpetua, without eligibility for parole, in accordance with the mandate under Republic Act
No. 9346, prohibiting the imposition of death penalty, and to pay Letty Tan y Co's heirs the amounts of P100,000.00 as moral
damages and P100,000.00 as exemplary damages, with MODIFICATIONS in view of prevailing jurisprudence,47 that the amount of
damages be increased to P100,000.00 as civil indemnity and P50,000.00 as temperate damages, and that an interest be imposed on
all damages awarded at the legal rate of 6% per annum from the date of finality of this Decision until fully paid.
SO ORDERED.
Velasco, Jr., (Chairperson), Del Castillo,* Perez and Reyes, JJ., concur.
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
JERRY PEPINO y RUERAS and PRECIOSA GOMEZ y CAMPOS, Accused-Appellants.
DECISION
BRION, J.:
This is an appeal filed by Jerry Pepino (Pepino) and Preciosa Gomez (Gomez) assailing the June 16, 2006 decision1 of the Court of
Appeals (CA) in CA-G.R. CR-HC No. 02026.
ANTECEDENTS
The prosecution evidence showed that at 1:00 p.m., on June 28, 1997, two men and a woman entered the office of Edward Tan at
Kilton Motors Corporation in Sucat, Parafiaque City, and pretended to be customers. When Edward was about to receive them, one
of the men, eventually identified as Pepino pulled out a gun. Thinking that it was a holdup, Edward told Pepino that the money was
inside the cashier's box. Pepino and the other man looted the "'cashier's box, handcuffed Edward, and forced him to go with
them.2 From the hallway, Jocelyn Tan (mentioned as "Joselyn" in some parts of the record), Edward's wife, saw Pepino take her
husband. She went to the adjoining room upon Edward's instructions.3
Pepino brought Edward to a metallic green Toyota Corolla where three other men were waiting inside. The woman (later identified
as Gomez) sat on the front passenger seat.4 The abductors then placed surgical tape over Edward's eyes and made him wear
sunglasses. After travelling for two and a half hours, they arrived at an apartment in Quezon City. The abductors removed the tape
from Edward's eyes, placed him in a room, and then chained his legs. Pepino approached Edward and asked for the phone number
of his father so that he could ask for ransom for his (Edward's) liberty. Edward told Pepino to negotiate with his wife, but the latter
insisted on talking to his father.5
At around 5:00 p.m. of the same day, the kidnappers called Edward's father and demanded a P40 million ransom for his release.
Edward's father told the kidnappers that he did not have that amount. The abductors negotiated with Jocelyn who eventually agreed
to a P700,000.00 ransom. The kidnappers told Jocelyn to pack the money into two packages and to drop these at a convenience
store in front of McDonald's at Mindanao Avenue. They further demanded that Edward's vehicle be used to bring the money. 6
After four days, or on July 1, 1997, Antonio Gepiga (the family driver) brought the agreed amount to the 7-Eleven convenience store
at Mindanao A venue as instructed.7 That evening, three men and Gomez blindfolded Edward, made him board a car, and drove
around for 30 minutes. Upon stopping, they told Edward that he could remove his blindfold after five minutes. When Edward
removed his blindfold, he found himself inside his own car parked at the UP Diliman Campus. He drove home and reported his
kidnapping to Teresita Ang See, a known anti-crime crusader.8
After five months, the National Bureau of Investigation (NBI!) informed Edward that they had apprehended some suspects, and
invited him to identify them from a lineup consisting of seven persons: five males and two females. Edward positively identified
Pepino, Gomez, and one Mario Galgo.9 Jocelyn likewise identified Pepino.10
Pepino and Gomez did not testify for their defense. The defense instead presented Zeny Pepino, Reynaldo Pepino, NBI Special
Investigator Marcelo Jadloc and P/Sr. Insp. Narciso Quano (mentioned as "Qano" in some parts of the record).
Zeny testified that she and her husband, Jerry Pepino, were inside their house in Cebu City on December 7, 1997, when about 20
heavily armed men entered their house looking for Jerry. When Jerry asked them if they had a warrant of arrest, one of the men
pointed a gun at him and handcuffed him; the armed men then hit him with the butt of an armalite and punched him. The men also
took Pepino' s wristwatch and wallet, as well as Zeny's bag and watch. Some of the armed men searched the second floor of the
house, and found a .45 caliber gun. The armed men brought Zeny and Pepino outside their house where Zeny saw Renato Pepino
and Larex Pepino already handcuffed. The armed men brought them to the Cebu City Police Headquarters before bringing them to
the NBI Headquarters in Manila. The following day, Jerry, Renato, and Larex were brought to the Department of Justice (DO.I). Zeny,
on the other hand, was released after being detained at the NBI for three (3) days. 11
Reynaldo's testimony was summarized by the CA as follows:
x x x On December 6, 1997, he accompanied accused-appellant Gomez to his brother's sister-in-law who happens to work in a
recruitment agency. While they were inside the latter's house at Lot 2, Block 15, Marikina Heights, Marikina City, they heard a noise
at the gate. When he peeped through the window, he saw two (2) motorcycles and two (2) Vannette vans. Shortly thereafter,
someone kicked the back door and several armed men emerged therefrom and announced their arrest. When he asked them if they
had any warrant, they replied: "Walang warrant, warrant. Walang search, search." They were then hogtied and made to lie face
down. Five (5) of them then went upstairs and seized his personal belongings together with his briefcase which contained
P45,000.00, documents of accused-appellant Gomez, and his .45 caliber pistol as well as his license and permit to carry the same. No
receipts were issued for their personal effects which were confiscated. They were subsequently brought to Camp Crame and
subjected to torture. The following day, they were brought to the Department of Justice and a case for kidnapping was filed against
him. Upon reinvestigation, however, he was discharged from the Information and the court dismissed the case against him. 12
SI Jadloc and Police Senior Inspector Quano, Jr. were presented as hostile witnesses.
Jadloc declared on the witness stand that NBI Assistant Director Edmundo Arugay dispatched a team to Cebu City to investigate a
kidnap-for-ransom case. The team immediately conducted surveillance operations when they arrived at Calle Rojo, Lahug, Cebu City.
One of the team members saw Renato and Larex Pepino with guns tucked in their waists. When the team approached them, the two
men ran inside their house. The team went after them and on entering the house, they saw Jerry in possession of a .45 caliber gun.
The team arrested Jerry, Renato and Larex, and then brought them to the NBI Headquarters in Manila. 13
Quano testified that he was designated as the leader of a team tasked to arrest members of a kidnap-for-ransom group at their safe
house in Lot 2, Block 50, Marikina Heights, Marikina City. When they arrived there, they introduced themselves as police officers.
The police forcibly opened the door after the occupants of the house refused to open the ground floor door. During their search at
the second floor, the operatives found an armalite and a .45 caliber gun. The members of the team handcuffed Gomez and
Reynaldo, and then brought them to Camp Crame. 14
The prosecution charged Preciosa Gomez, Jerry Pepino, Reynaldo Pepino, Jessie Pepino, George Curvera, Boy Lanyujan, Luisito
"Tata" Adulfo, Henriso Batijon (a.k.a. Dodoy Batijon), Nerio Alameda, and an alias Wilan Tan with kidnapping for ransom and serious
illegal detention before the Regional Trial Court (RTC), Branch 259, Paranaque City.15 Reynaldo was subsequently discharged after
reinvestigation. Only Pepino, Gomez, and Batijon were arraigned; their other co-accused remained at large.
In its May 15, 2000 decision, the RTC convicted Pepino and Gomez of kidnapping and serious illegal detention under Article 267 of
the Revised Penal Code (as amended) and sentenced them to suffer the death penalty. The RTC also ordered them to pay Edward
P700,000.00 representing the amount extorted from him; P50,000.00 as moral damages; and P50,000 as exemplary damages. The
trial court acquitted Batijon for insufficiency of evidence.
The R TC held that Edward positively identified Pepino and Gomez as two of the persons who forcibly abducted him at gunpoint
inside Kilton Motors, and who consequently detained him somewhere in Quezon City for four (4) days until he was released inside
the UP Diliman Campus after the payment of ransom. The RTC added that Jocelyn corroborated Edward's testimony on material
points. It also pointed out that Edward identified both Pepino and Gomez at the lineup conducted inside the NBI compound,
although Jocelyn only recognized Gomez.
The R TC further ruled that the accused were already estopped from questioning the validity of their arrest after they entered their
respective pleas.
The case was automatically elevated to this Court in view of the death penalty that the R TC imposed. We referred the case to the
CA for intermediate review pursuant to our ruling in People v. Mateo.16
In its decision dated June 16, 2006, the Court of Appeals affirmed the RTC decision with the modification that the amounts of moral
and exemplary damages were increased from P300,000.00 and Pl00,000.00, respectively.
The CA held that Pepino and Gomez were deemed to have waived any objection to the illegality of their arrests when they did not
move to quash the information before entering their plea, and when they participated at the trial.
The CA further ruled that Pepino and Gomez conspired with each other to attain a common objective, i.e., to kidnap Edward in
exchange for ransom.
While the case was under review by the Supreme Court, Pepino filed an urgent motion to withdraw his appeal, which the Court
granted.17 Only Gomez's appeal is now pending before us.
In her brief18 and supplemental brief,19 Gomez maintained that it was impossible for Edward to have seen her in the front seat of the
getaway car because he (Edward) was blindfolded. She also alleged that the prosecution failed to prove that she had conspired with
the other accused.
Gomez further claimed that Edward's identification of her during trial "may have been preconditioned x x x by suggestive
identification"20 made at the police lineup. She further argued that the death penalty imposed on her is no longer proper due to the
enactment of Republic Act No. 9346.
THE COURT'S ·RULING
We affirm Gomez's conviction, but we modify the penalty imposed and the awarded indemnities.
Illegality of the Arrest
We point out at the outset that Gomez did not question before arraignment the legality of her warrantless arrest or the acquisition
of RTC's jurisdiction over her person. Thus, Gomez is deemed to have waived any objection to her warrantless arrest.
It is settled that [a]ny objection to the procedure followed in the matter of the acquisition by a court of jurisdiction over the person
of the accused must be opportunely raised before he enters his plea; otherwise, the objection is deemed waived. 21 As we held
in People v. Samson:22
[A ]ppellant is now estopped from questioning any defect in the manner of his arrest as he failed to move for the quashing of the
information before the trial court. Consequently, any irregularity attendant to his arrest was cured when he voluntarily submitted
himself to the jurisdiction of the trial court by entering a plea of "not guilty" and by participating in the trial.23
At any rate, the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient
complaint after a trial free from error. Simply put, the illegality of the warrantless arrest cannot deprive the State of its right to
prosecute the guilty when all other facts on record point to their culpability. It is much too late in the day to complain about the
warrantless arrest after a valid information had been filed, the accused had been arraigned, the trial had commenced and had been
completed, and a judgment of conviction had been rendered against her. 24
Sufficiency of the Prosecution Evidence
a. Elements of kidnapping proved
The elements of kidnapping and serious illegal detention under Article 267 of the Revised Penal Code, as amended, are: (1) the
offender is a private individual; (2) he kidnaps or detains another or in any other manner deprives the latter of his liberty; (3) the act
of detention or kidnapping must be illegal; and (4) in the commission of the offense, any of the following circumstances is present:
(a) the kidnapping or detention lasts for more than three (3) days; or (b) it is committed by simulating public authority; or (c) serious
physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) the person kidnapped or
detained is a minor, female, or a public officer. If the victim of kidnapping and serious illegal detention is a minor, the duration of his
detention is immaterial. Likewise, if the victim is kidnapped and illegally detained for the purpose of extorting ransom, the duration
of his detention is also of no moment and the crime is qualified and becomes punishable by death even if none of the circumstances
mentioned in paragraphs 1 to 4 of Article 267 is present. 25
All these elements have been established by the prosecution. Edward positively identified Gomez and Pepino - both private
individuals - as among the three persons who entered his office and pretended to be Kilton Motors'customers. He further declared
that Pepino pointed a gun at him, and forcibly took him against his will. To directly quote from the records:
ATTY. WILLIAM CHUA:
Q: Can you tell us if anything unusual happened to you on June 28, 1997?
EDWARD TAN:
A: I was kidnapped.
xxxx
Q: Can you tell this Court how the kidnapping was initiated?
A: At around 1:00 o'clock in the afternoon, there were three persons who entered the office of Kilton Motors and pretended to be
customers.
Q: What was the gender of these three persons that you are referring to?
A: Two men and a woman.
Q: After they pretended to be customers, tell us what happened?
A: · They told me they were going to pay but instead of pulling out money, they pulled out a gun.
Q: How many people pulled out guns as you said?
A: Only one, sir.
Q: Will you look around this courtroom now and tell us if the person who pulled out a gun is in court?
A: (WITNESS POINTED TO A PERSON AT THE RIGHT SECTION, SECOND ROW WHO, WHEN ASKED HIS NAME, ANSWERED JERRY
PEPINO)
Q: Now, you said that there were two men and a woman who went up the Kilton Motors Office and you pointed to one of the men
as Jerry Pepino, can you look around the courtroom and tell us if any of the two others are in court?
A: (WITNESS POINTED TO A WOMAN INSIDE THE COURTROOM WHO, WHEN ASKED HER NAME, ANSWERED AS PRECIOSA
GOMEZ)
xxxx
Q: You said Mr. Pepino pulled out his gun, what happened after he pulled out his gun?
A: He told me just to be quiet and go with him.
Q: What was your reaction when he pointed a gun to you and he stated those words?
A: I thought it was only a holdup and so I told him there was money with the cashier and told him to get it.
Q: What happened after you told him the money was in the cashier's box?
A: His companion took the money and told me to still go with them.
Q: When they told you to go with them, what happened next? A: I told them why should I still go with them and then, I was
handcuffed and was forced to go down.
xxxx
Q: As they were bringing you down, what happened next, Mr. Witness?
A: When we went down nearing his car, I was boarded on [in] his car.
xxxx
Q: When they boarded you inside that car, what did they do to you, Mr. Witness?
A: They put surgical tape on my eyes and also sunglasses.
xxxx
Q: Who was at the passenger's front seat of the car?
A: It was Preciosa Gomez.26
xxxx
Edward further declared on the witness stand that Pepino, Gomez, and their other co-accused brought him to a safe house in
Quezon City; detained him there for four (4) days; and demanded ransom from his (Edward's) family.
It is settled that the crime of serious illegal detention consists not only of placing a person in an enclosure, but also in detaining him
or depriving him of his liberty in any manner. For there to be kidnapping, it is enough that the victim is restrained from going home.
Its essence is the actual deprivation of the victim's liberty, coupled with indubitable proof of the intent of the accused to effect such
deprivation.27
Notably, Jocelyn corroborated Edward's testimony on the following points: Pepino poked a handgun at Edward while they were on
the second floor of Kilton; Pepino and his companion brought him downstairs and out of the building, and made him board a car;
and the kidnappers demanded ransom in exchange for Edward's release.
Both the RTC and the CA found the respective testimonies of Edward and Jocelyn credible and convincing. We affirm the credibility
accorded by the trial court (and affirmed by the CA) to these prosecution witnesses, in the absence of any showing that this factual
finding had been arbitrarily arrived at. There is nothing in the records that would put the testimonies of Edward and Jocelyn under
suspicion. We recall that Edward had close contacts with Pepino at Kilton Motors and at the safe house. He also saw Gomez (a)
seated at the front seat of the getaway Toyota Corolla vehicle; (b) at the safe house in Quezon City; and (c) inside the car before the
kidnappers released him.
Jocelyn, for her part, stated that she was very near Pepino while he was taking away her husband.
In People v. Pavillare,28 the Court found the testimonies of the private complainant Sukhjinder Singh and his cousin, Lakhvir Singh, to
be credible and convincing, and reasoned out as follows:
Both witnesses had ample opportunity to observe the kidnappers and to remember their faces. The complainant had close contact
with the kidnappers when he was abducted and beaten up, and later when the kidnappers haggled on the amount of the ransom
money. His cousin met Pavillare face to face and actually dealt with him when he paid the ransom money. The two-hour period that
the complainant was in close contact with his abductors was sufficient for him to have a recollection of their physical appearance.
Complainant admitted in court that he would recognize his abductors if he sees them again and upon seeing Pavillare he
immediately recognized him as one of the malefactors as he remembers him as the one who blocked his way, beat him up, haggled
with the complainant's cousin and received the ransom money. x x x It bears repeating that the finding of the trial court as to the
credibility of witnesses is given utmost respect and as a rule will not be disturbed on appeal because it had the opportunity to
closely observe the demeanor of the witness in court.29
b. Admissibility of Identification
We find no merit in Gomez's claim that Edward's identification of her during trial might have been preconditioned by the "suggestive
identification" made during the police lineup.
In People v. Teehankee, Jr.,30 the Court explained the procedure for out-of-court identification and the test to determine the
admissibility of such identifications in this manner:
Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought
face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the
suspect. It is also done thru lineups where a witness identifies the suspect from a group of persons lined up for the purpose x x x In
resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of
circumstances test where they consider the following factors, viz: (1) the witness' opportunity to view the criminal at the time of the
crime; (2) the witness' degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of
certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6)
the suggestiveness of the identification procedure.31
Applying the totality-of-circumstances test, we find Edward's out-of-court identification to be reliable and thus admissible. To recall,
when the three individuals entered Edward's office, they initially pretended to be customers,32and even asked about the products
that were for sale.33 The three had told Edward that they were going to pay, but Pepino "pulled out a gun" instead. 34 After Pepino' s
companion had taken the money from the cashier's box, the malefactors handcuffed Edward and forced him to go down to the
parked car. From this sequence of events, there was thus ample opportunity for Edward - before and after the gun had been pointed
at him - to view the faces of the three persons who entered his office. In addition, Edward stated that Pepino had talked to him "[a]t
least once a day"35 during the four days that he was detained.
Edward also saw Gomez seated at the front seat of the getaway metallic green Toyota Corolla vehicle. In addition, the abductors
removed the tape from Edward's eyes when they arrived at the apartment, and among those whom he saw there was Gomez.
According to Edward, he was able to take a good look at the occupants of the car when he was about to be released.
On the part of Jocelyn, she was firm and unyielding in her identification of Pepino as the person who pointed a gun at her husband
while going down the stairs, and who brought him outside the premises of Kilton Motors. She maintained that she was very near
when Pepino was taking away her husband; and that she could not forget Pepino's face. For accuracy, we quote from the records:
ATTY. CORONEL:
Q: You stated that you were able to see one of the persons who kidnapped your husband, if you see this person again, would you be
able to identify him?
JOCELYN SY TAN:
A: Yes, sir.
Q: Can you look around the courtroom and see if the person you are referring to is here today?
A: Yes, sir.
Q: Can you point to him?
A: (WITNESS POINTED TO A MALE PERSON INSIDE THE COURTROOM WHO WHEN ASKED HIS NAME ANSWERED AS JERRY PEPINO).
Q: Ms. Witness, what role did this person whom you identified and gave his name as Jerry Pepino, what role did he play in the
kidnapping of your husband?
A: Siya po bale 'yang nakayakap sa husband ko tapos nakatutok ng baril.
xxxx
A TTY. ESTRUCO:
Q: When Jerry Pepino was at Kilton Motors, he embraced your husband?
JOCELYN SY TAN:
A: Yes, sir. And pointed a gun at my husband.
Q: And he was not blindfolded at that time?
A: No, he was not blindfolded, he was only wearing a cap.
Q: You are very sure that he is Jerry Pepino?
A: Yes, I am very, very sure. I could not forget his face.
Q: You are very sure?
A: Yes, sir. Kahit sa nightmare ko, kasama siya.
xx x x36
We add that no competing event took place to draw Edward's and Jocelyn's attention from the incident. Nothing in the records
shows the presence of any distraction that could have disrupted the witnesses' attention at the time of the incident. 37
Jurisprudence holds that the natural reaction of victims of criminal violence is to strive to see the appearance of their assailants and
observe the manner the crime was committed. As the Court held in People v. Esoy:38
It is known that the most natural reaction of a witness to a crime is to strive to look at the appearance of the perpetrator and to
observe the manner in which the offense is perpetrated. Most often the face of the assailant and body movements thereof, create a
lasting impression which cannot be easily erased from a witness's memory. Experience dictates that precisely because of the unusual
acts of violence committed right before their eyes, eyewitnesses can remember with a high degree of reliability the identity of
criminals at any given time.39
While this pronouncement should be applied with great caution, there is no compelling circumstance in this case that would warrant
its non-application.
Contrary to what Gomez claimed, the police lineup conducted at the NBI was not suggestive. We note that there were seven people
in the lineup; Edward was not compelled to focus his attention on any specific person or persons. While it might have been ideal if
there had been more women included in the lineup instead of only two, or if there had been a separate lineup for Pepino and for
Gomez, the fact alone that there were five males and two females in the lineup did not render the procedure irregular. There was no
evidence that the police had supplied or even suggested to Edward that the appellants were the suspected perpetrators.
The following exchanges at the trial during Edward's cross-examination prove this point:
ATTY. ESTURCO:
Q: When they were lined up at the NBI, where were they placed, in a certain room?
EDWARD TAN:
A: Yes, sir.
Q: With a glass window? One way?

A: No, sir.
Q: You mean to say you were face to face with the alleged kidnappers?
A: Yes, sir.
Q: And before you were asked to pinpoint the persons who allegedly kidnapped you, you conferred with the NBI agents?
A: The NBI agents told me not to be afraid.
Q: No, my question is, you conferred with the NBI agents?
A: Yes, sir.
Q: What is the name of the NBI agent?
A: I cannot remember, sir.
Q: And how many were lined up?
A: Seven, sir.
Q: And the NBI agent gave the names of each of the seven?
A: No, sir.40
We also note that Jocelyn's and Edward's out-of-court identifications were made on the same day. While Jocelyn only identified
Pepino, the circumstances surrounding this out-of-court identification showed that the whole identification process at the NBI was
not suggestive. To directly quote from the records:
ATTY. ESTURCO:
Q: How about the alleged kidnappers, where were they placed during that time?
JOCELYN TAN:
A: They were in front of us.
Q: Without any cover?
A: None, sir.
Q: Without any glass cover?
A: See-through glass window.
Q: One-way mirror?
A: Not one way, see-through.
Q: And before you were asked to pinpoint the alleged kidnappers, you were already instructed by the NBI what to do and was
told who are the persons to be lined up?
A: No, sir.
xxxx
Q: And between the alleged length of time, you were still very positive that it was Gerry (sic) Pepino inside the NBI cell?
A: At first, I did not know that he was Jerry Pepino but we know his face.
Q: At first, you did not know that it was Jerry Pepino?
A: Yes, sir.
xxxx
Q: It was the NBI officer who told you that the person is Jerry Pepino, am I correct?
A: They identified that the person we identified was Jerry Pepino. We first pinpointed na heto ang mukha at saka sinabi na 'yan si
Jerry Pepino.
xx x x41
These exchanges show that the lineup had not been attended by any suggestiveness on the part of the police or the NBI agents;
there was no evidence that they had supplied or even suggested to either Edward or Jocelyn that the appellants were the
kidnappers.
We are not unaware that the Court, in several instances, has acquitted an accused when the out-of-court identification is fatally
flawed. In these cases, however, it had been clearly shown that the identification procedure was suggestive.
In People v. Pineda,42 the Court acquitted Rolando Pineda because the police suggested the identity of the accused by showing only
the photographs of Pineda and his co-accused Celso Sison to witnesses Canilo Ferrer and Jimmy Ramos. According to the Court,
"there was impermissible suggestion because the photographs were only of appellant and Sison, focusing attention on the two
accused."43
Similarly, the Court in People v. Rodrigo44 acquitted appellant Lee Rodrigo since only a lone photograph was shown to the witness at
the police station. We thus held that the appellant's in-court identification proceeded from, and was influenced by, impermissible
suggestions in the earlier photographic identification.
The lack of a prior description of the kidnappers in the present case should not lead to a conclusion that witnesses' identification was
erroneous. The lack of a prior description of the kidnappers was due to the fact that Jocelyn (together with other members of
Edward's family), for reasons not made known in the records, opted to negotiate with the kidnappers, instead of immediately
seeking police assistance. If members of Edward's family had refused to cooperate with the police, their refusal could have been due
to their desire not to compromise Edward's safety.45 In the same manner, Edward, after he was freed, chose to report the matter to
Teresita Ang See, and not to the police.
Given these circumstances, the lack of prior description of the malefactors in this case should not in any way taint the identification
that Edward and Jocelyn made.
c. The Right to Counsel
The right to counsel is a fundamental right and is intended to preclude the slightest coercion that would lead the accused to admit
something false. The right to counsel attaches upon the start of the investigation, i.e., when the investigating officer starts to ask
questions to elicit information and/or confessions or admissions from the accused. 46
Custodial investigation commences when a person is taken into custody and is singled out as a suspect in the commission of the
crime under investigation.47 As a rule, a police lineup is not part of the custodial investigation; hence, the right to counsel
guaranteed by the Constitution cannot yet be invoked at this stage. The right to be assisted by counsel attaches only during custodial
investigation and cannot be claimed by the accused during identification in a police lineup.
Our ruling on this point in People v. Lara48 is instructive:
x x x The guarantees of Sec. 12(1 ), Art. III of the 1987 Constitution, or the so-called Miranda rights, may be invoked only by a person
while he is under custodial investigation. Custodial investigation starts when the police investigation is no longer a general inquiry
into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who starts the inte1Togation
and propounds questions to the person to elicit incriminating statements. Police line-up is not part of the custodial investigation;
hence, the right to counsel guaranteed by the Constitution cannot yet be invoked at this stage. 49
Defense witness Reynaldo, however, maintained that Pepino and Gomez were among those already presented to the media as
kidnapping suspects by the DOJ a day before the police lineup was made. In this sense, the appellants were already the focus of the
police and were thus deemed to be already under custodial investigation when the out-of-court identification was conducted.
Nonetheless, the defense did not object to the in-court identification for having been tainted by an irregular out-of-court
identification in a police lineup. They focused, instead, on the legality of the appellants' arrests.
Whether Edward and Jocelyn could have seen Pepino and Gomez in various media fora that reported the presentation of the
kidnapping suspects to the media is not for the Court to speculate on. The records merely show that when defense counsel, Atty.
Caesar Esturco, asked Jocelyn during cross-examination whether she was aware that there were several kidnap-for-ransom incidents
in Metro Manila, the latter answered that she "can read in the newspapers." 50 At no time did Jocelyn or Edward ever mention that
they saw the appellants from the news reports in print or on television.
At any rate, the appellants' respective convictions in this case were based on an independent in-court identification made by
Edward and Jocelyn, and not on the out-of-court identification during the police lineup. We reiterate that the RTC and the CA
found the court testimonies of these witnesses to be positive and credible, and that there was no showing that their factual findings
had been arrived at .arbitrarily. The in-court identification thus cured whatever irregularity might have attended the police lineup.
As the Court ruled in People v. Algarme:51
Even assuming arguendo the appellants' out-of-court identification was defective, their subsequent identification in court cured any
flaw that may have initially attended it. We emphasize that the "inadmissibility of a police lineup identification x x x should not
necessarily foreclose the admissibility of an independent in-court identification." We also stress that all the accused-appellants were
positively identified by the prosecution eyewitnesses during the trial.
It is also significant to note that despite the overwhelming evidence adduced by the prosecution, Pepino and Gomez did not even
testify for their respective defenses.1âwphi1
d. The Presence of Conspiracy
Conspiracy exists when two or more persons come to an agreement concerning the commission of a crime and decide to commit it.
It may be proved by direct or circumstantial evidence consisting of acts, words, or conduct of the alleged conspirators before, during
and after the commission of the felony to achieve a common design or purpose.
Proof of the agreement does not need to rest on direct evidence, as the agreement may be inferred from the conduct of the parties
indicating a common understanding among them with respect to the commission of the offense. Corollarily, it is not necessary to
show that two or more persons met together and entered into an explicit agreement setting out the details of an unlawful scheme
or the details by which an illegal objective is to be carried out.52
In the present case, the records establish the following facts: Pepino, Gomez, and another man entered Edward's office, and initially
pretended to be customers; the three told Edward that they were going to pay, but Pepino pulled out a gun. After Pepino' s
companion took the money from the cashier's box, the malefactors handcuffed him and forced him to go down to the parked car;
Gomez sat at the front passenger seat of the car which brought Edward to a safe house in Quezon City; the abductors removed the
tape from Edward's eyes, placed him in a room, and then chained his legs upon arrival at the safe house; the abductors negotiated
with Edward's family who eventually agreed to a P700,000.00 ransom to be delivered by the family driver using Edward's own car;
and after four days, three men and Gomez blindfolded Edward, made him board a car, drove around for 30 minutes, and left him
inside his own car at the UP Diliman campus.
The collective, concerted, and synchronized acts of the accused before, during, and after the kidnapping constitute undoubted proof
that Gomez and her co-accused conspired with each other to attain a common objective, i.e., to kidnap Edward and detain him
illegally in order to demand ransom for his release.
The Proper Penalty:
Article 267 of the Revised Penal Code, as amended, mandates the imposition of the death penalty when the kidnapping or detention
is committed for the purpose of extorting ransom from the victim or any other person. Ransom, as employed in the Jaw, is so used in
its common or ordinary sense; meaning, a sum of money or other thing of value, price, or consideration paid or demanded for
redemption of a kidnapped or detained person, a payment that releases one from captivity. 53
In the present case, the malefactors not only demanded but received ransom for Edward's release. The CA thus correctly affirmed
the RTC's imposition of the death penalty on Pepino and Gomez.
With the passage of Republic Act No. 9346, entitled ''An Act Prohibiting the Imposition of Death Penalty in the Philippines" (signed
into law on June 24, 2006), the death penalty may no longer be imposed. We thus sentence Gomez to the penalty of reclusion
perpetua without eligibility for parole pursuant to A.M. No. 15-08-02-SC.54
The reduced penalty shall likewise apply to the non-appealing party, Pepino, since it is more favorable to him.
The Awarded Indemnities:
In the case of People v. Gambao55 (also for kidnapping for ransom), the Court set the minimum indemnity and damages where facts
warranted the imposition of the death penalty if not for prohibition thereof by R.A. No. 9346, as follows: (1) Pl00,000.00 as civil
indemnity; (2) Pl00,000.00 as moral damages which the victim is assumed to have suffered and thus needs no proof; and (3)
Pl00,000.00 as exemplary damages to set an example for the public good. These amounts shall earn interest at the rate of six
percent (6%) per annum from the date of the finality of the Court's Resolution until fully paid.
We thus reduce the moral damages imposed by the CA from P300,000.00 to Pl00,000.00 to conform to prevailing jurisprudence on
kidnapping cases. This reduced penalty shall apply to Pepino for being more favorable to him. However, the additional monetary
award (i.e., P100,000.00 civil indemnity) imposed on Gomez shall not be applied to Pepino. 56
We affirm the P700,000.00 imposed by the courts below as restitution of the amount of ransom demanded and received by the
kidnappers. We also affirm the CA's award of Pl00,000.00 as exemplary damages based on Gambao.
WHEREFORE, in the light of all the foregoing, we AFFIRM the challenged June 16, 2006 decision of the Court of Appeals in CA-G.R.
CR-HC No. 02026 with the following MODIFICATIONS:
(1) the penalty imposed on Gomez and Pepino shall be reduced from death to reclusion perpetua without eligibility for parole;
(2) they are jointly and severally ordered to pay the reduced amount of PI00,000.00 as moral damages;
(3) Gomez is further ordered to pay the victim Pl00,000.00 as civil indemnity; and
(4) the awarded amounts shall earn interest at the rate of six percent (6%) per annum from the date of the finality of the
Court's Decision until fully paid.
SO ORDERED.
G.R. No. 204644, February 11, 2015
ANGELITA CRUZ BENITO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
LEONEN, J.:
Conspiracy must be proven with evidence that can convince a trial court of its existence beyond reasonable doubt. Moreover, there
can be no conspiracy to commit a crime that has already been consummated.
This is a Petition for Review on Certiorari1 of the Court of Appeals' Decision,2 affirming in toto the November 17, 20093 Decision of
the Regional Trial Court, Branch 80, Quezon City. The trial court convicted Angelita Cmz Benito of estafa, finding that she conspired
with Rebecca Agbulos in misappropriating the pieces of jewelry the latter received in trust from Dorie Cruz-Abadilla.4
In the Information dated October 28, 1994, Rebecca Agbulos (Agbulos) and Angelita Cruz Benito 5(Benito) were charged with estafa
punished under Article 315, paragraph l(b) of the Revised Penal Code. The accusatory portion of the Information reads:
That in or about the period comprised from June 8, 1994 up to August 3, 1994, in Quezon City, Philippines, the said accused,
conspiring together, confederating with and mutually helping with each other, did then and there willfully, unlawfully and
feloniously defraud DORIE CRUZ-ABADILLA in the following manner, to wit:
Assorted pieces of jewelry in the amount of P2,070,300.00, Philippine Currency, for the purpose of selling the same on commission
basis, under the express obligation on the part of said accused of turning over the proceeds of the sale to said DORIS CRUZ-
ABADILLA if sold, or of returning the same if unsold to said complainant, but the said accused, once in possession of the said items,
far from complying with their obligation as aforesaid, with intent to defraud, unfaithfulness and grave abuse of confidence, failed
and refused and still fails and refuses to fulfill their aforesaid obligation despite repeated demands made upon them to do so and
instead misapplied, misappropriated and converted the same or the value thereof, to their own personal use and benefit, to the
damage and prejudice of said DORIE CRUZ-ABADILLA in the aforesaid amount of P2,070,300.00, Philippine Currency. 6
Agbulos and Benito were arraigned on July 10, 1995, pleading not guilty to the charge. Trial ensued. 7
The prosecution presented as witnesses complainant, Dorie Cruz-Abadilla (Abadilla); her friend, Concepcion Quinonez Pamintuan
(Pamintuan);8 and Estela Diloria (Diloria),9 a pawnshop appraiser of E. Ochoa Pawnshop.
The prosecution's version of the facts
Abadilla knew Agbulos and Benito through Abadilla's friend, Pamintuan. Pamintuan introduced Agbulos to Abadilla as a jeweler.10
Abadilla and Agbulos entered into several transactions for the sale of jewelry, with Agbulos going to Abadilla's residence at 174
Maginhawa Street, Sikatuna Village, Quezon City. In all these transactions, Benito accompanied Agbulos. 11
On June 9, 1994, Agbulos received pieces of jewelry from Abadilla. They agreed that Agbulos would return the pieces of jewelry in
the afternoon should Agbulos fail to sell them. Agbulos then issued Abadilla a check for the value of the jewelry received. 12
Agbulos received another batch of jewelry from Abadilla on June 14, 1994. She again issued Abadilla a check, this time for
P828,000.00. They likewise agreed that Agbulos would return the jewelry in the afternoon should she fail to sell them. 13
On June 16, 1994, Agbulos received the last batch of jewelry from Abadilla, issuing a check in the amount of P453,000.00. 14
On June 21, 1994, Abadilla called Agbulos on the phone, asking for security for the pieces of jewelry she gave Agbulos. Agbulos then
gave as security the owner's copy of Transfer Certificate of Title No. 438259. 15
However, upon verification with the Land Registration Authority, the certificate of title turned out to be spurious. 16
Abadilla deposited the checks Agbulos issued to her, and all were dishonored by reason of "closed account." Abadilla then tried to
locate Agbulos, but Agbulos could no longer be found.17
After several months, Abadilla learned from Agbulos' sister-in-law that the latter received pawn tickets from a friend. Abadilla,
through her friend Pamintuan, obtained from Agbulos' sister-in-law pawn tickets numbered 45227 and 45306 issued by E. Ochoa
Pawnshop. Appearing on the pawn tickets was the name "Linda Chua." 18
Abadilla went to E. Ochoa Pawnshop to verify the items described in the pawn tickets. She learned that the items pawned were
among the pieces of jewelry she turned over to Agbulos, specifically, a men's diamond ring and a set of diamond ring and earrings.
She also learned from Diloria, the pawnshop appraiser, that the "Linda Chua" who pawned her jewelry was Benito.19
The defense's version of the facts
For the defense, Agbulos and Benito testified. Benito denied that she was the "Linda Chua" who pawned Abadilla's jewelry.
According to her, on June 8, 1994, she was at the house of Agbulos' mother, working as a cook and taking care of Agbulos' children.
She denied being with Agbulos when the latter transacted with Abadilla and that she only knew of Abadilla when the latter looked
for Agbulos.20
Agbulos supported the testimony of her co-accused Benito, stating that the latter "had no participation [in her transactions with
Abadilla]."21 Agbulos likewise denied that Benito accompanied her to Abadilla's residence whenever she received jewelry from
Abadilla.22
The Regional Trial Court's findings
The Regional Trial Court found that the prosecution proved beyond reasonable doubt that Agbulos and Benito conspired to commit
estafa. According to the trial court, Agbulos and Benito received the pieces of jewelry in trust for Abadilla. They undertook to sell the
jewelry for Abadilla or return them in the afternoon should they fail to sell them. However, in violation of that trust, they failed to
return the unsold jewelry. Worse, they had the jewelry pawned under a different name.23
Thus, in the Decision24 dated November 17, 2009, the trial court sentenced Agbulos and Benito to suffer the indeterminate penalty
of four (4) years and two (2) months of prision correccional as minimum to twenty (20) years of reclusion temporal as maximum. It
also ordered Agbulos and Benito to pay Abadilla P2,070,300.00 by way of civil indemnity plus 12% interest from the filing of the
Information until full payment.25
Disposition of the Court of Appeals
Benito appealed before the Court of Appeals, maintaining that she had nothing to do with Agbulos' transaction with Abadilla. 26
Nevertheless, the Court of Appeals sustained the finding that Benito was the "Linda Chua" who pawned Abadilla's jewelry as
testified to by the pawnshop appraiser, Diloria. Thus, even assuming that Agbulos alone transacted with Abadilla, "it was the action
of [Benito] that paved the way [to the misappropriation or conversion of the jewelry, to the prejudice of Abadilla]." 27 The Court of
Appeals upheld the finding that Agbulos and Benito conspired to commit estafa.
Affirming in toto the trial court's Decision, the Court of Appeals denied Benito's appeal in the Decision 28dated June 30, 2011.
Benito filed a Motion for Reconsideration, which the Court of Appeals denied in the Resolution29 dated November 13, 2012.
Proceedings in this court
Benito filed a Petition for Review on Certiorari before this court. On behalf of the People of the Philippines, the Office of the Solicitor
General commented on Benito's Petition,30 after which, Benito replied to the Comment.31
In her Petition for Review on Certiorari and Reply, Benito insists that the prosecution failed to prove her alleged conspiracy with
Agbulos to commit estafa. She maintains that Agbulos alone transacted with Abadilla, denying that she received any of the pieces of
jewelry. That she allegedly accompanied Agbulos to Abadilla's residence does not prove that she likewise received some of the
pieces of jewelry. Thus, the element of estafa consisting of the receipt in trust of personal property does not apply to her. 32
Moreover, Benito vehemently denies that she was the "Linda Chua" who pawned Abadilla's jewelry. She points out that prosecution
witness Diloria did not personally transact with "Linda Chua." Diloria allegedly testified that her co-worker entertained "Linda Chua"
and appraised the jewelry being pawned. With "no extraordinary reason why [the Linda Chua transaction] stuck to [Diloria's]
mind,"33 Benito argues that Diloria was incompetent to testify as to the identity of "Linda Chua."34
Maintaining that the prosecution failed to prove her guilt beyond reasonable doubt, Benito prays for her acquittal.
In the Comment, the People of the Philippines argues that Benito raises questions of fact that is not allowed in a Petition for Review
on Certiorari. In addition, the Regional Trial Court and the Court of Appeals agreed in their findings of fact. Thus, the findings that
Benito received jewelry from Abadilla and that she was the "Linda Chua" who pawned some of the jewelry are entitled to great
respect, if not finality, by this court.35
Considering that the arguments of Benito are a mere rehash of those she raised in her appeal before the Court of Appeals, the
People of the Philippines prays that this court deny Benito's Petition for Review on Certiorari.
The issue for this court's resolution is whether Angelita Cruz Benito conspired with Rebecca Agbulos in committing estafa punished
under Article 315, paragraph l(b) of the Revised Penal Code.
We grant this Petition.
The judgments of the Regional Trial

Court and the Court of Appeals are
based on a misapprehension of facts
Under Rule 45, Section 1 of the Rules of Court, only questions of law may be raised in a Petition for Review on Certiorari:
Section 1. Filing of petition with Supreme Court. - A party desiring to appeal by certiorari from a judgment, final order or resolution
of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts, whenever authorized
by law, may file with the Supreme Court a verified petition for review on certiorari. The petition may include an application for a writ
of preliminary injunction or other provisional remedies and shall raise only questions of law, which must be distinctly set forth. The
petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its
pendency. (Emphasis supplied)
As an exception to the rule, questions of fact may be raised in a Rule 45 Petition if any of the following is present:
(1) when there is grave abuse of discretion; (2) when the findings are grounded on speculations; (3) when the inference made is
manifestly mistaken; (4) when the judgment of the Court of Appeals is based on a misapprehension of facts; (5) when the factual
findings are conflicting; (6) when the Court of Appeals went beyond the issues of the case and its findings are contrary to the
admissions of the parties; (7) when the Court of Appeals overlooked undisputed facts which, if properly considered, would justify a
different conclusion; (8) when the findings of the Court of Appeals are contrary to those of the trial court; (9) when the facts set
forth by the petitioner are not disputed by the respondent; and (10) when the findings of the Court of Appeals are premised on the
absence of evidence and are contradicted by the evidence on record. 36
A question of fact exists "when the doubt or difference arises as to the truth or the falsehood of alleged facts."37 On the other hand,
a question of law exists "when the doubt or difference arises as to what the law is on a certain state of facts." 38
Benito raises questions of fact in her Petition for Review on Certiorari. Specifically, she prays that this court examine the truth of the
following findings: that she received jewelry from Abadilla and that she posed as "Linda Chua" and pawned the jewelry she received
from Abadilla.
Despite Benito raising questions of fact in her Petition for Review on Certiorari, we nevertheless take cognizance of her Petition. The
trial court and Court of Appeals misapprehended the facts of this case.
II
The prosecution failed to prove beyond

reasonable doubt Benito's conspiracy with
Agbulos to commit estafa
Under Article 8 of the Revised Penal Code, "a conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it." Proof of conspiracy may be direct or circumstantial. 39 So long as the evidence
presented show a "common design or purpose"40 to commit the crime, all of the accused shall be held equally liable as co-principals
even if one or more of them did not participate in all the details of the execution of the crime. 41
For this reason, the fact of conspiracy "must be proven on the same quantum of evidence as the felony subject of the agreement of
the parties,"42 that is, proof beyond reasonable doubt.43
Article 315, paragraph l(b) of the Revised Penal Code punishes estafa through misappropriation:
Art. 315. Swindling (estafa). - Any person who shall defraud another by any of the means mentioned herein below shall be punished
by:
1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is
over 12,000 pesos but does not exceed 22,000 pesos; and if such amount exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which
may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed
and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case
may be.
1. With unfaithfulness or abuse of confidence, namely:
....
(b) By misappropriating or converting, to the prejudice of another, money, goods or any other personal property received by the
offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to
return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such
money, goods, or other property.
To prove estafa through misappropriation, the prosecution must establish the following elements:
(1) the offender's receipt of money, goods, or other personal property in trust, or on commission, or for administration, or under
any other obligation involving the duty to deliver, or to return, the same;
(2) misappropriation or conversion by the offender of the money or property received, or denial of receipt of the money or
property;
(3) the misappropriation, conversion or denial is to the prejudice of another; and
(4) demand by the offended party that the offender return the money or property received. 44(Citation omitted)
We find that the prosecution failed to prove beyond reasonable doubt the conspiracy between Benito and Agbulos.
As testified to by Abadilla, only Agbulos received the pieces of jewelry from her, and Benito was merely "present during the
negotiation":
Q[:] Do you have an agreement regarding the business of jewelry?

A[:] Our agreement is that they will get the items on the same day and if they could not sell [the] items, they will return it in
the afternoon of the same day.
Q[:] Who took the pieces of jewelry you mentioned awhile ago?
A[:] Rebecca Agbulos.
Q[:] Where was accused Angelita C. Benito?
A[:] She was present during the negotiation.45 (Emphasis supplied)
Even assuming that Benito accompanied Agbulos in going to Abadilla's residence, this does not prove that Benito received any
jewelry from Abadilla. As the helper of Agbulos' brother,46 Benito may have accompanied Agbulos on her employer's order. "Mere
presence [at the scene of the crime] is not by itself indicative of conspiracy between [the accused]." 47
Interestingly, Agbulos testified that the transaction was only between her and Abadilla. She alone issued security for the jewelry,
namely, the dishonored checks and the spurious certificate of title. 48 Agbulos even declared in open court that "[Benito] ha[d] no
participation in the case at bench":49
Q: Can you tell us the participation of your co-accused Angelita Benito in this case?
A: Angelita Benito is just a maid of my brother and assigned to fetch my kids in school.
Q: The prosecution witness testified that you were with your co-accused at that time you went to the place of the
complainant to receive the pieces of jewelry?
A: That is not true, sir.
Q: You said you were the only one who went to the house of the complainant?
A: Yes, sir.50 (Emphasis supplied)
Agbulos' statement was an admission against her interest. 51 The statement negated the alleged "common design or purpose"
between her and Benito and would lead to her being solely liable for the crime. 52 It also means that she admitted that her
companion's acts can never be attributed to her. The Regional Trial Court and the Court of Appeals should have considered this
statement in assessing the guilt of Benito.53
In Gomez v. IAC,54 Dolores Gomez (Dolores), together with her husband Rodrigo Gomez (Rodrigo), was charged with estafa for
allegedly conspiring with Rodrigo in misappropriating pieces of jewelry they received from Rodrigo's sister. The trial court convicted
her and Rodrigo of the crime charged.55
On appeal, this court acquitted Dolores. It considered a letter Rodrigo wrote his sister, stating that he alone misappropriated the
pieces of jewelry. According to the court, this letter was a declaration against Rodrigo's interest that the trial court should have given
weight.56
In Ong v. Court of Appeals,57 Santiago Ong (Ong), together with a Tony Chua (Chua), was charged with estafa for allegedly conspiring
with Chua in misappropriating pieces of jewelry they received from a Florentina Buyco (Buyco). The trial court convicted them of the
crime charged.
On appeal, this court acquitted Ong. It considered an affidavit Chua executed, "absolving [Ong] from any participation in his jewelry
transaction with [Buyco and her sister]."58 According to this court, Chua's statement in his affidavit was a declaration against his
interest that should have been given weight by the trial court. 59
The strongest evidence against Benito is the testimony of Diloria, the pawnshop appraiser who positively identified Benito as the
"Linda Chua" who pawned Abadilla's jewelry. According to the Court of Appeals, Benito's posing as "Linda Chua" and pawning the
jewelry "paved the way for the presence of the second and third elements of [estafa]," 60 i.e., the misappropriation of the property to
the prejudice of another.
However, the identification of Benito as the "Linda Chua" who pawned the jewelry is "open to serious doubt."61 As testified to by
Diloria, she saw Benito in E. Ochoa Pawnshop only on two occasions: on June 6 and 17, 1994. 62 Moreover, there is evidence that
Diloria was not the pawnshop appraiser who entertained "Linda Chua" 63 but a co-worker named Mary Ann:
Q[:] Who prepared the pawn ticket?

A[:] Anybody who is available.
Q[:] Anybody who is available?
A[:] Yes, sir.
Q[:] In this case, you appraised [pawn tickets numbered 45227 and 45306]?
A[:] One of our appraisers.
Q[:] Who filled up this pawnshop ticket?
A[:] Mary Ann.
Q[:] Your co-employee?
A[:] Yes[,] sir.64
Therefore, as Benito argues, "[t]here is ... no special reason why the [Linda Chua transaction] stuck to D[e]loria's mind, such that she
was able to remember the face of a complete stranger and positively identify her more than three (3) months after the alleged
transaction."65
Further, based on Diloria's testimony, "Linda Chua" first went to E. Ochoa Pawnshop on June 6, 1994. 66This date was prior to the first
time Agbulos received pieces of jewelry from Abadilla on June 9, 1994. There is thus some reasonable doubt as to whether the
jewelry "Linda Chua" pawned on June 6, 1994 belonged to Abadilla.
With respect to the second time "Linda Chua" went to the pawnshop on June 17, 1994, Benito cannot be held liable for it as well.
Generally, demand for the return of the thing delivered in trust is necessary before an accused is convicted of estafa. However, if
there is an agreed period for the accused to return the thing received in trust and the accused fails to return it within the agreed
period, demand is unnecessary. Failure to return the thing within the agreed period consummates the crime of estafa, i.e, the
misappropriation of the thing received in trust. 67
In United States v. Sotelo,68 Manuel Araneta (Araneta) delivered to Vicente Sotelo (Sotelo) pieces of jewelry for the latter to sell for a
price not less than P180.00 or to return the jewelry within one hour from delivery if unsold. Sotelo failed to return the pieces of
jewelry within one hour from their delivery. Without demanding for the return of the jewelry, Araneta filed against Sotelo a
complaint for estafa within the hour after Sotelo failed to return the jewelry.
The court convicted Sotelo of estafa because "[he] did not return [the pieces of jewelry] within the [agreed period] nor at any other
time."69
When Agbulos failed to return in the afternoon the jewelry she received on June 9, 14, and 16, 1994, she was already presumed to
have misappropriated the jewelry. There would be no more need to present any act to prove the misappropriation.
Consequently, the estafa had already been consummated when "Linda Chua" allegedly pawned the jewelry on June 17, 1994.
Benito, who was allegedly "Linda Chua," cannot be held criminally liable with Agbulos. "There can be no ex post facto conspiracy to
do that which has already been done and consummated."70
In Preferred Home Specialties, Inc. v. Court of Appeals, 71 Preferred Home Specialties, Inc., through its president, Edwin Yu (Yu),
entered into an agreement with Specialty Oils, Inc. for the toll manufacturing of high-quality margarine. Yu, however, had second
thoughts in continuing the agreement with Specialty Oils, Inc. 72
Through the intervention of Harley Sy (Sy), Yu continued the agreement with Specialty Oils, Inc.73However, the margarine delivered
by Specialty Oils, Inc. discolored and "turned white."74 Yu also learned that Specialty Oils, Inc. claimed in an affidavit filed before the
Securities and Exchange Commission that it was already non-operational when it entered into the agreement with Preferred Home
Specialties, Inc.75
Claiming that Specialty Oils, Inc. defrauded it, Preferred Home Specialties, Inc. filed a complaint for estafa against the officers of
Specialty Oils, Inc. It impleaded Sy as respondent for allegedly conspiring with the officers of Specialty Oils, Inc. in defrauding
Preferred Home Specialties, Inc. In a certiorari proceeding against the Department of Justice's Resolution, the Court of Appeals
ordered the criminal Complaint against Sy dismissed.76
This court affirmed the Court of Appeals' decision, ruling that the crime of estafa had already been consummated by the time Sy
intervened between Preferred Home Specialties, Inc. and Specialty Oils, Inc. According to this court, Sy intervened after Specialty
Oils, Inc. had delivered the substandard margarine. Therefore, Sy could not be held criminally liable with the officers of Specialty
Oils, Inc.77
In People v. Furugganan,78 Anacleto Furugganan (Furugganan), together with other co-accused, was charged with murder for
allegedly shooting to death several men and wounding a Joseph Ferrer (Ferrer). According to Ferrer, he, together with other
fishermen, was sleeping in a nipa hut when he heard gunshots. He was shot on the leg but pretended to be dead.79
After the shooting had stopped, Ferrer saw Furugganan and other men climbing up the hut. One of the men hit Ferrer's head to
confirm that he was dead. After the men had left, Ferrer went home to have his wound treated and report the incident.80
In his defense, Furugganan denied that he shot Ferrer's companions and alleged that he was merely threatened by one of the
shooters to go up the hut or he himself would be shot. Furugganan emphasized that he was unarmed when he went up the hut.
Ferrer would eventually testify that Furugganan was indeed unarmed. 81
This court found Furugganan credible and acquitted him on the ground of reasonable doubt. According to this court, Furugganan's
act of going up the hut "cannot. . . be said to have lent in any way even a whit of material or moral aid in the actual commission of
the [crime] charged as, by then, [the crime] had already been consummated." 82
All told, the prosecution failed to prove beyond reasonable doubt that Benito conspired with Agbulos in misappropriating the
jewelry belonging to Abadilla. Benito, therefore, cannot be convicted of estafa.
There is no proof of Benito's direct participation in the commission of the crime charged. Neither is there proof beyond reasonable
doubt of her conspiracy with Agbulos.
The presumption of innocence holds in favor of Benito. 83 She should be acquitted on the ground that her guilt has not been proven
beyond reasonable doubt.
WHEREFORE, the Petition for Review on Certiorari is GRANTED. The Decision of the Regional Trial Court, Branch 80, Quezon City in
Criminal Case No. Q-94-59259 is REVERSED and SET ASIDE with respect to Angelita Cruz Benito. Petitioner Angelita Cruz Benito
is ACQUITTED on the ground of reasonable doubt.
SO ORDERED.
G.R. No. 195196 July 13, 2015
PEOPLE OF THE PHILIPINES, Plaintiff-Appellee,

vs.
ESTANLY OCTA y BAS, Accused-Appellant.
DECISION
SERENO, CJ:
Before us is a Notice of Appeal1 dated 30 July 2010 from the Court of Appeals (CA) Decision 2 dated 19 July 2010 in CA-G.R. CR-H.C.
No. 03490, affirming the Decision3 dated 15 May 2008 in Criminal Case No. 04-224073 issued by the Regional Trial Court (RTC)
Branch 48, Manila, convicting accused-appellant Estanly Octa y Bas, guilty beyond reasonable doubt of the crime of kidnapping for
ransom.
As culled from the records, the prosecution's version is herein quoted:
In the morning of September 25, 2003, around 6:40 A.M., Johnny Corpuz (Johnny) and Mike Adrian Batuigas (Mike Adrian) were on
board a Honda Civic Car colored silver with Plate No. UPT 697 travelling on Buenos Aires St., Sampaloc, Manila when their way was
blocked by a Mitsubishi box type Lancer car colored red-orange. The four (4) armed occupants of the Lancer car alighted. Johnny did
not open the door of the Honda Civic car but one of the armed men fired his pistol at the left window of the civic car, thus
compelling Johnny to open the locked door of the car. The armed men went inside the car and Johnny was ordered to transfer at the
back seat at that time. Inside the car, Johnny was handcuffed, blindfolded and was even boxed. The armed men asked for the names
and telephone numbers of his mother-in-law. The armed men called his mother-in-law giving the information that Johnny was in
their custody and they would just meet each other at a certain place. They travelled for a while and then they stopped and Johnny
was brought to a safehouse.
After Johnny and Mike were kidnapped, the kidnappers communicated with Johnny’s wife Ana Marie Corpuz (Ana Marie) giving the
information that they have intheir custody her husband Johnny and her brother Mike Adrian. Ana Marie tried to confirm the
kidnapping incident by talking to her husband, who confirmed to his wife that he and Mike Adrian were indeed kidnapped and they
were in the custody of their abductors. Ana Marie sought the assistance of the PACER [Police AntiCrime and Emergency Response]
and stayed in a PACER safehouse located at P. Tuazon, Cubao, Quezon City. During her stay, she had several communications with
her husband’s kidnappers. The latter started demanding the amount of ₱20 million for the release of her husband and her brother
but the amount was considerably reduced up to the time that Ana Marie was able to raise the amount of ₱538,000.00 which was
accepted by the kidnappers.
Finally, on September 30, 2003 at 10PM, the kidnappers set up the manner on how the ransom money would be delivered. Ana
Marie travelled to Quiapo Church, then to Quezon City circle up to SM Fairview and to Robinsons Fairview. She was made to stop at
Red Lips Beer House and go to the nearby Caltex Auto Supply where she would see a man wearing a red cap and who would ask her
"saan yong padala ni boss". She was instructed to deliver the wrapped bundled ransom money to the man wearing red cap. When
she saw the man with red cap, she was asked for the money. At first, she did not give the money because she wanted to be sure that
she was giving the money to the right man. Using her own cellphone, she called up the man who had been instructing her all along
and asked him to confirm if the man in front of her is the right man to give the ransom money to, saying "kausapin mo muna ito
kung siya ba." The man in the phone and the man in the red cap talked for a while in another dialect which Ana Marie did not
understand. When she asked the man to give back her cellphone to her, he refused and, instead instructed her to give the money to
him. She described the man wearing red cap to be goodlooking, lightly built, in his early 20s, around 5’4" in height and with dimples,
which she later identified in court as accused Estanly Octa.
On October 1, 2003, Johnny was released by his captors after the payment of ransom money. He was detained for the duration of six
(6) days. After his release, he removed his blindfold and handcuffs but he could hardly regain his sight and see things. He flagged
down a private pick-up and learned that he was in Camarin, Caloocan City. He asked a favor that he be driven to Meycauayan,
Bulacan where he took a jeepney to Monumento, and from there, he took a taxi bound home. When he was released, his brother-in-
law Mike Adrian was also released.4
The defense recounted a different set of facts, to wit:
x x x [O]n September 25, 2003, he was still in Daet, Camarines Norte working as a welder in the welding shop of his uncle Edwin
delos Reyes. He went to Daet on the second week of August 2003 and returned to Manila when he was called by his father
sometime in November 2003. In addition to his defense of denial and alibi, he clings to the theory that he himself was a victim of
abduction. He testified that, on December 1, 2003, while crossing the street, his way was blocked by a van and thereafter, two (2)
persons alighted and a gun was poked at him then he was boarded inside the van. His hands were tied and eyes covered. The
incident happened at Susano Road, Camarin, Caloocan City. He was eventually brought to the PACER Office, Camp Crame, Quezon
City. He claims that he was tortured to admit the charge filed against him. At the PACER’s office, he was presented to a State
Prosecutor of the DOJ but he claimed he was not assisted by counsel. He said that he did not submit himself for medical
examination. He categorically stated that, when he was inquested by a State Prosecutor, he did not tell of the alleged torture that he
suffered because he was afraid.5
On 4 December 2003, accused-appellant was arrested by the operatives of the Police Anti-Crime and Emergency Response (PACER)
on S[u]sano Road, Camarin, Caloocan City, in connection with another kidnap for ransom incident. He was identified by prosecution
witness Ana Marie Corpuz from a police line-up as the person who had received the ransom money from her. 6 Consequently, on 26
February 2004, an Information7 was filed against accused-appellant charging him with the crime of kidnapping for ransom as follows:
That on or about 6:40 a.m. of September 25, 2003, in the City of Manila, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating, and mutually helping one another, did then and there wilfully,
unlawfully, and feloniously kidnap and deprive JOHNNY L.CORPUZ and MIKE ADRIAN BATUIGAS, a minor, of their liberty and against
their will by means of threats and intimation with the use of firearms, and then bring them through the use of a motor vehicle to a
house, wherein they were detained for a period of six (6) days, and that the abduction of the said victims was for the purpose of
extorting Php538,000.00 was actually delivered to the above-mentioned accused in exchange for the release of the victims.
CONTRARY TO LAW.8
When arraigned on 5 July 2004,accused-appellant, assisted by counsel, pleaded not guilty to the charge. Trial on the merits then
ensued.9
On 15 May 2008, the RTC rendered a Decision,10 the dispositive portion of which is herein quoted:
WHEREFORE, the Court finds accused Estanly Octa y Bas guilty beyond reasonable doubt for the felony charge [sic] and pursuant to
law, he is hereby sentenced to suffer maximum prison term of reclusion perpetua and to pay the private aggrieved party of the
following:
1. The amount of 538,000.00 as actual and compensatory damages;
2. The amount of 100,000.00 as moral damages; and
3. The amount of 50,000.00 as exemplary damages and cost.
In view of the conviction of the accused, the Manila City Jail is ordered to commit his person to the National Penitentiary
immediately without necessary [sic] delay.
SO ORDERED.11
In so ruling, the RTC ruled that prosecution witness Ana Marie Corpuz, wife of victim Johnny Corpuz, steadfastly testified that she
gave the ransom money in the amount of 538,000 to accused-appellant. She did not waiver in identifying and describing him as
good-looking, wearing red cap, light in built, in his early 20’s, 5’4" and with dimples. The assertion of Ana Marie Corpuz that accused-
appellant was sporting dimples was squarely corroborated by the court’s observation when he took the witness stand. 12
The trial court also viewed the act of receiving ransom money as sufficient evidence to establish accused-appellant’s conspiratorial
act in the kidnapping for ransom of the victims in this case. 13
With respect to the defense of denial and alibi, the RTC found them to be inherently weak as opposed to the straightforward
testimony of Corpuz. The claim of accused-appellant that he was abducted did not convince the court either, inasmuch as it was not
supported by evidence, nor was it the subject of an investigation. 14
Upon intermediate appellate review, the CA rendered a Decision15 promulgated on 19 July 2010, to wit:
WHEREFORE, in view of the foregoing premises, the appeal in this case is DENIED and the assailed decision of the Regional Trial
Court, Branch 48, in Manila in Criminal Case No. 04-224073 finding Estanly Octa y Bas guilty of the crime of kidnapping for ransom
and imposing the penalty of reclusion perpetua and ordered him to pay 538,000.00 as actual and compensatory damages,
100,000.00 as moral damages and 50,000.00 as exemplary damages and cost, is hereby AFFIRMED in toto.
SO ORDERED.16
The CA found the positive identification of accused-appellant by prosecution witness Ana Marie Corpuz to be unwavering and
steadfast. It stressed that his positive identification, when categorical, consistent, straightforward, and without any showing of ill
motive on the part of the eyewitness testifying on the matter, would prevail over mere alibi and denial. 17 Such positive identification
constituted direct evidence, and not merely circumstantial evidence.18
Moreover, the CA ruled that accused-appellant had been rightly found to be a co-conspirator in this case. At the time he received
the ransom money, the crime of kidnapping was still continuing, since both victims were still illegally detained by the kidnappers.
Accused-appellant’s act of taking the ransom money was an overt act made in pursuance or furtherance of the complicity. 19
Hence, the instant appeal.20
ISSUES
In seeking a reversal of the decisions of the CA and the RTC, accused-appellant Octa argues that:
1. The trial court gravely erred in convicting him despite the prosecutions’ failure to positively identify him as the ransom
taker;21
2. The trial court gravely erred in finding him to be a conspirator to the crime charged; 22 and
3. The trial court gravely erred in convicting him of the crime charged based on circumstantial evidence. 23
THE COURT’S RULING
We deny accused-appellant’s appeal.
When the credibility of a witness is at

issue, the findings of fact of the trial
court are accorded high respect if
not conclusive effect, more so if
those findings have been affirmed by
the appellate court.
In his Brief, accused-appellant contends that the prosecution failed to prove beyond reasonable doubt that he was the one who
received the ransom money. He primarily argues that prosecution witness Ana Marie Corpuz could not have positively ascertained
the identity of the ransom taker, because the area where the transaction took place was dark, and the man was wearing a cap.
Neither did Corpuz declare in her Sinumpaang Salaysay that the person who received the ransom money was sporting a dimple, a
fact that she mentioned on direct examination.24 Accused-appellant further insinuates that the police might have influenced his out-
of-court identification in the line-up when they informed Corpuz that they had apprehended some people who were suspects in
other kidnap for ransom cases, and that information might have conditioned her mind that the ransom taker had already been
apprehended.25
We disagree.
In People v. Basao,26 the Court held that:
[T]the matter of assigning values to declarations on the witness stand is best and most competently performed by the trial judge,
who had the unmatched opportunity to observe the witnesses and to assess their credibility by the various indicia available but not
reflected on the record. The demeanor of the person on the stand can draw the line between fact and fancy. The forthright answer
or the hesitant pause, the quivering voice or the angry tone, the flustered look or the sincere gaze, the modest blush or the guilty
blanch – these can reveal if the witness is telling the truth or lying through his teeth. 27
xxxx
[Thus], when the credibility of a witness is in issue, the findings of fact of the trial court, its calibration of the testimonies of the
witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded high
respect if not conclusive effect. This is more true if such findings were affirmed by the appellate court, since it is settled that when
the trial court’s findings have been affirmed by the appellate court, said findings are generally binding upon this Court. Without any
clear showing that the trial court and the appellate court overlooked, misunderstood or misapplied some facts or circumstances of
weight and substance, the rule should not be disturbed."28
In this case, both the RTC and the CA found Corpuz to be a credible witness who had categorically testified that she saw the face of
the ransom taker, and that he was actually the accused-appellant.
The fact that Corpuz failed to declare in her Sinumpaang Salaysay that the ransom taker was sporting a dimple was not fatal to her
testimony because she was able to positively and categorically identify accused-appellant during the police line-up and in open
court.
Even accused-appellant’s insinuation that Corpuz could have been influenced by the police during the line-up cannot be given
weight in the face of his positive identification as the ransom taker. On this point, we agree with the observation of the CA that
"assuming arguendo that the accused-appellant’s out of court identification was defective, her subsequent identification in court
cured any flaw that may have initially attended it. We emphasize that the ‘inadmissibility of a police line-up identification x x x
should not necessarily foreclose the admissibility of an independent in-court identification.’"29
To hold an accused guilty as a co-

principal by reason of conspiracy, he
must be shown to have performed an
overt act in pursuance or
furtherance of the complicity.
Accused-appellant also claims that he cannot be considered as a conspirator to the kidnapping in the absence of concrete proof that
he actually participated in the execution of the essential elements of the crime by overt acts indispensable to its accomplishment.
His receipt of the ransom money transpired only after the kidnapping had been consummated and was not an essential element of
the crime.30
We disagree.
On point is our dissertation in People v. Bautista,31 to wit:
Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit
it.1awp++i1 Where all the accused acted in concert at the time of the commission of the offense, and it is shown by such acts that
they had the same purpose or common design and were united in its execution, conspiracy is sufficiently established. It must be
shown that all participants performed specific acts with such closeness and coordination as to indicate a common purpose or design
to commit the felony.
xxxx
Evidently, to hold an accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed an overt act in
pursuance or furtherance of the complicity. There must be intentional participation in the transaction with a view to the furtherance
of the common design and purpose. x x x.
xxxx
Taking these facts in conjunction with the testimony of Dexter, who testified that accused-appellant was the one who received the
ransom money x x x then the commonality of purpose of the acts of accused-appellant together with the other accused can no
longer be denied. Such acts have the common design or purpose to commit the felony of kidnapping for ransom.
Thus, accused-appellants’ argument that he is a mere accomplice must fail. He is liable as a principal for being a co-conspirator in the
crime of Kidnapping for Ransom under Art. 267 of the RPC, as amended by R.A. 7659 x x x. 32(Emphasis ours)
Moreover, the CA is correct in its observation that at the time accused-appellant received the ransom money, the crime of
kidnapping was still continuing, since both victims were still being illegally detained by the kidnappers. 33While his receipt of the
ransom money was not a material element of the crime, it was nevertheless part of the grand plan and was in fact the main reason
for kidnapping the victims.34 Ransom is money, price or consideration paid or demanded for the redemption of a captured person or
persons; or payment that releases from captivity.35 Without ransom money, the freedom of the detained victims cannot be
achieved. The positive identification of accused-appellant constitutes direct, and not merely circumstantial, evidence.
Accused-appellant's contention that he was convicted based only on circumstantial evidence deserves scant consideration. We
agree with the conclusion of the CA that "[Corpuz] testified that she gave the ransom money to accused-appellant, and as the trial
court declared, his act of receiving the ransom money is sufficient conspiratorial act in the commission of the kidnapping for ransom.
The positive identification of the accused-appellant then constitutes direct evidence, and not merely circumstantial evidence." 36
With respect to the penalty imposed, we agree with the imposition by the RTC and the CA on accused-appellant of the penalty of
reclusion perpetua, considering the prohibition on the death penalty.37 To conform to recent jurisprudence,38 we hereby modify the
exemplary damages awarded by increasing the amount from ₱50,000 to ₱100,000.
WHEREFORE, the appeal is hereby DISMISSED. The assailed Decision of the Court of Appeals in CA-G.R. CR.-HC No. 03490 is
AFFIRMED WITH MODIFICATION. Accused-appellant is hereby sentenced to suffer the penalty of reclusion perpetua and ordered to
pay ₱538,000 as actual damages, ₱100,000 as moral damages, and ₱100,000 as exemplary damages.
SO ORDERED.
G.R. No. 99258 September 13, 1991

vs.
FRANCISCO ARROYO and RITO MINA, accused-appellants.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellants.
REGALADO, J.:p
With the imposition of the penalty of reclusion perpetua by the Court of Appeals on one of the herein accused-appellants in their
appeal thereto, this case has been certified and the entire record thereof elevated to us in accordance with Section 13, Rule 124 of
the 1985 Rules on Criminal Procedure.
Accused-appellants Francisco Arroyo, alias 'Diotay,' and Rito Mina, alias "Tano," were indicted for murder in an information 1 filed on
August 30,1988 alleging:
That on or about July 10, 1988 in the morning thereof, at Tumalonton, Barangay Guinbanwahan, Municipality of Balud,
Province of Masbate, Philippines, and within the jurisdiction of this Court, the said accused, with intent to kill, evident
premeditation, treachery, conspiring together and helping one another, did then and there wilfully, unlawfully and
feloniously attack, assault and stab with a deadly weapon one Nonito Villarosa, hitting the latter on the different parts of
the body, thereby inflicting wounds which directly caused instantaneous death.2
After the trial, the court a quo rendered the following judgment:
WHEREFORE, it having been established beyond reasonable doubt that accused Francisco Arroyo alias 'Diotay and Rito
Mina alias 'Tano' committed the offense charged, employing superior strength qualified by treachery in the process, which
aggravating circumstance is offset by one mitigating circumstance of voluntary surrender in the case of Francisco Arroyo,
who is pen under Article 248 of the Revised Penal Code and is hereby sentenced to suffer an indeterminate imprisonment
of from FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of prision correccional in its maximum period as the minimum
of the indeterminate penalty to TEN (10) YEARS of prision mayor in its maximum of the indeterminate penalty, while Rito
Mina is hereby sentenced under the same article to suffer an indeterminate imprisonment of from TEN (1) YEARS and ONE
(1) DAY of prision mayor in its maximum period as the minimum of the indeterminate penalty to FOURTEEN (14) YEARS and
FOUR (4) MONTHS of reclusion temporal as maximum of the indeterminate penalty; and that both Francisco Arroyo and
Rito Mina are further sentenced each to indemnify the heirs of the victim in the sum of P30,000.00 without subsidiary
imprisonment in case of insolvency; to suffer the accessory penalties provided for by law; and to pay the costs. 3
In their appeal to the Court of Appeals, docketed as CA-G.R. No. C.R. 08618, appellants argued that the court a quoerred (1) in giving
weight to the partial and biased testimonies of the prosecution witnessed and in disregarding the evidence for the defense; (2) in
relying on the weakness of the defense rather than on the strength of the prosecution's evidence; and (3) in convicting accused-
appellants of the crime charged despite the failure of the prosecution to prove their guilt beyond reasonable doubt. 4
According to the decision of the Court of Appeals,5 the evidence shows that on July 9, 1988, there was a dance party in Barangay
Guinbanwahan, Balud, Masbate. Among those who attended the party were appellants Arroyo and Mina, who are first cousins, the
victim Nonito Villarosa, and one Giddy Diaz. All four were acquaintances.
After the dance party at around 2:00 A.M. of July 10, 1989, the four proceeded to walk home to Barangay Dao. Along the way,
appellant Mina had a heated altercation with Villarosa regarding the former's indebtedness to the latter. They continued walking but
upon reaching sitio Tumalonton, Diaz heard Villarosa shout that he had been stabbed by appellant Mina. Diaz and appellant Arroyo
were then following the duo by a few meters. Diaz ran towards Villarosa to render assistance but he failed to do so since Arroyo
pushed him away. Appellant Arroyo then stabbed Villarosa twice at the latter's back while Villarosa's left arm was being held by
appellant Mina.
Diaz ran to Barangay Dao and reported the incident to Villarosa's parents. It being around 4:00 A.M., Villarosa's father waited for
daybreak and then informed the police authorities of Balud about the incident. At around 6:30 A.M., appellant Arroyo surrendered
at the Balud Police Station and gave to the policemen the knife used in the stabbing of Villarosa. Patrolmen Leo Arguelles and
Salvador Ado proceeded to the scene of the crime and, together with the victim's parents and some other persons, they searched
for the body of the victim. After three (3) hours, they found the body under burl palms some two hundred (200) meters away from
the crime scene.6
As established by the findings in the post-mortem report of Dr. Oscar Acuesta, the victim sustained these injuries:
1. Wound, Stabbed at the third Intercostal space left parasternal line 1.8 cm. length; 0.6 cm. width; 8.7 cm. depth
2. Wound, Stabbed, neck left anterior triangle about 0.7 cm. length, 0.4 cm. width, 5.2 cm. depth
3. Lacerated wound left supraclavicular area about 5 cm. in length, 1 cm. width, 0.3 cm. depth
4. Stabbed wound back at the level of the thoracic vertebra about 0.7 cm. width, 1.6 cm. length, 10.6 cm. depth
5. Stabbed wound about 1.5 cm. in length, 0.6 cm. width, 11.3 cm. depth at left posterior axillary fold at the level of sixth
Intercostal space probably penetrating the thoracic cavity
and the cause of death was stated as: "Hemorrhage, severe, secondary to stabbed WD, at the 3rd intercostal space left parasternal
line 1.8 cm. length, 0.6 cm. width, 8.7 cm. depth."7 Appellant Mina denies any participation in the crime, alleging that at around 3:00
A.M. on July 10, 1988, he was sleeping in their house in Barangay Dao, Balud, which is around five (5) kilometers from
Guinbanwahan, Balud, Masbate, the scene of the killing. 8 Such denial and disclaimer necessarily constitute the defense of alibi.
Appellant Arroyo's story, on the other hand, is that on July 10, 1988, he met Nonito Villarosa at the dancing hall in Guinbanwahan at
about 12:00 o'clock midnight and that the latter was drinking. He was then asked by Villarosa to go to the latter's home. They
dropped by at Villarosa's brother- in-law where Villarosa got a chicken and they then proceeded to Dao, Balud, Masbate. On the
way, Arroyo told the victim that they should kill the chicken for "pulutan." Villarosa struck Arroyo with the chicken and this led to an
altercation where the victim allegedly unsheathed his knife. They thereupon grappled and Arroyo was able to wrest the knife from
Villarosa, after which this was what allegedly transpired:
Q What did you do with the knife?
A Because I was nabigla'1 stabbed him.
Q And was he hit when you stabbed. him? A Yes, sir.
Q How many times?
A When he was about to grab the knife I stabbed him twice.
Q Before you were able to grab the knife from him, was he already wounded during the process of grappline.
A Yes, sir.
Q What part of his body?
A (Witness pointed to his left chest ... left part of his body.)
Q Now after he was hit, as you said, what else took place?
A He ran.9
Contrary to the defense posture, we find the testimony of witness Diaz credible. It was he who was with the victim immediately
before the latter was killed. The general rule has always been that the trial court's findings on the witnesses' credibility should be
given the highest respect because it has the advantage of observing the demeanor of the witnesses and can discern if such witnesses
are telling the truth.10 While there may be settled exceptions to said rule, we do not discern that any of them obtain in this case.
Furthermore, findings of fact of trial courts are accorded great weight by an appellate tribunal for the latter can only read in cold
print the testimony of the witnesses which commonly is translated from the local dialect into English. In the process of converting
into written form the statements of living human beings, not only fine nuances but a world of meaning apparent to the judge
present, watching and listening, may escape the reader of the written translated words. 11
Appellants expectedly seek to discredit the testimony of the star prosecution witness, Giddy Diaz, on the ground that Diaz did not
see Nina pull a knife from his body, neither did he see Mina stab the victim. It was only when the victim was stabbed for the second
time that Diaz ran towards the victim and, when asked why he did not run to the victim when the deceased first shouted, Diaz
answered by saying, "What will I do there when he was stabbed?12
Appellants seize upon this statement as a supposed irregular behavior of Diaz in not rescuing a friend when the latter was being
attacked or in such a predicament that may cause him life or limb. Per contra, we have repeatedly held, and this is a matter of
common observation and knowledge, that the reaction or behavior of persons when confronted with a shocking incident
varies.13 Thus, we heretofore explained under similar circumstances in People vs. Bolima14 that:
As to the alleged failure of witness Nipolo to come to the aid of Lelis, the Court observes that this is not unnatural. He must
have been caught by surprise by the turn of events and the better part of discretion prevented him to come to his aid as it
may jeopardize his own life thereby.
Also, even inconsistencies such as in the sequence of the events narrated by the prosecution witnesses have been held to be trivial
and need not impair their credibility, especially when such testimonies are corroborated on material points in establishing that a
crime was committed,15 and much more so when we consider the rapidity of the acts of the participants during the incident. We
have thoroughly scrutinized the testimony of Diaz and we do not see any of the purported serious inconsistencies imputed by
defense counsel.
Appellants also make capital of the supposed inconsistencies in the testimonies of the other prosecution witnesses, a stance again
adopted to cast doubt on the finding of appellants' guilt. To repeat, this is untenable for, as invariably stressed by this Court, minor
inconsistencies are not sufficient to blur or cast doubt on straightforward attestations. Far from being badges of fraud and
fabrications of the truthfulness on material points of the prosecution witnesses, these little deviations also confirm that the
witnesses had not been rehearsed. The most candid witness oftentimes makes mistakes but such honest lapses do not necessarily
impair his intrinsic credibility.16
The defense belabors the fact that the initial report of the incident only implicated appellant Arroyo who admitted having stabbed
the victim, but said report failed to include appellant Mina therein. Only the police blotter, they insist, mentions the name of Rito
Mina. It will be noted however, that the said initial report was based only on the facts gathered by the police during their
investigation at the scene of the crime. It should also be made clear, on this point, that the conviction of both appellants was not
based solely on the testimony of the police. The unimpeached testimony of Diaz categorically established the criminal participation
of both appellants. Said positive testimony, as corroborated by the medicolegal examination of the victim's corpse was correctly
relied upon by the appellate court.
Appellant Arroyo invokes self-defense, thereby admitting the fact that he did stab the deceased on that fatal day. Correspondingly, if
an accused invokes self-defense, it is incumbent upon him to prove by clear and convincing evidence that he acted in self-defense.
He must rely on the strength of his own evidence and not on the weakness of that of the prosecution for, even if the prosecution
evidence is weak, it could not be disbelieved after the accused himself admitted the killing.17
Accordingly, on the incontrovertible facts of record, the Court cannot but agree with the Solicitor General who found the strained
and uncorroborated self-defense version of Arroyo unworthy of credence on these considerations:
In the first place, it is hard to believe that appellant Arroyo was able to wrest the fatal knife from the victim with only a little
scratch he allegedly sustained on his finger. For that matter, his version that the victim sustained the fatal wounds on his
chest while grappling for possession of the knife cannot inspire belief, considering the locations and seriousness of said
wounds. In fact, by his own version, appellant Arroyo stabbed the victim three (3) more times after he had already wrested
the knife from the victim who turned his back to run (tsn, pp. 159-161, Records).
Upon the other hand, the testimony of eyewitness Giddy Diaz is categorical and positive that appellant Arroyo stabbed the
victim at the back while the latter was being held by appellant Rito Mina, who himself had stabbed the victim ahead. This
was corroborated by the extent and number of stab wounds (5 in all) sustained by the victim indicating that they were
inflicted not by one defending himself but by an aggressor.
Indeed, if the victim were the aggressor, appellant Arroyo would have divulged this at the first opportunity when he
surrendered voluntarily to Pat. Leo Arguelles of the Balud Police Station immediately after the incident. Instead, he
surrendered the weapon he allegedly used in stabbing the victim with nary a statement that he wrested the same from the
victim, much less claim that he acted in self-defense.
Since the appellant Arroyo failed to establish aggression on the part of the victim, his plea of self- defense must perforce
fail, as there was nothing to repel or prevent to speak of. Hence, there is no necessity of discussing the other elements
thereof.18
Verily, the number of stab wounds, five (5) of them, which appellants were proved to have inflicted on the victim, their location on
the chest and back, and their depth and penetration constitute ample physical evidence belying self-defense.19 In fact, even
indulging appellant Arroyo his claim that he wrested the knife from Villarosa, he likewise agreed that his life was consequently
thereby no longer in danger, but he still stabbed the victim twice at the back. 20
Turning now to appellant Mina, as earlier stated he interposed the defense of alibi. Eyewitness Giddy Diaz, however, positively
identified Mina and the latter's participation in the crime, in this wise:
Q And you said, you were going home to Dao, what happened on the way?
A While we were walking to Dao, this Rito Mina and Nonito Villarosa has (sic) a hated arguments (sic).
Q What was their argument?
A Regarding the indebtedness of Tano Mina to Nonito Villarosa.
Q And what happened when they exchanging (sic) words?
A When we reached Tumalonton, this Nonito Villarosa shouted, why did you stab me Tano?
Q And what did you do when this Nonito Villarosa Id Nano kay sinaksak mo ako Tano?'
A I ran towards them but when I arrived there Arroyo pushed me and stabbed Nonito Villarosa.
xxx xxx xxx
Q At that time that Francisco Arroyo stabbed Nonito Villarosa, what was Rito Mina doing?
A He was holding him.
Q You mean Rito Mina was holding Nonito?
A Yes, sir.
xxx xxx xxx

Q You also said, Rito Nina help(ed) in holding Nonito Villarosa, aside from that, what did Rito Mina do?
A He stabbed him with a long knife.
Q Nonito Villarosa was stab(bed) also by Rito Mina?
A Yes, sir.
Q For how many times?
A Twice.
Q And where was Nonito Villarosa stabbed?
A Witness pointed to his right side of his stomach and left side on his breast.
Q And when Rito Mina stabbed Nonito Villarosa, what was his position in relation to Nonito Vinarosa?
A (Witness demonstrating that both of them were walking on the trail and witness demonstrating by thrusting his hands).
Q And did you see the weapon used by Rito to (sic) Nonito?
A Yes, sir.
Q Can you descibed that weapon?
A (Witness demonstrating at about 8 inches)
Q After you saw Francisco Arroyo and Rito Mina stabbed Nonito Villarosa, what else happen(ed)?
A Nothing, I left them there.21
Alibi is undeniably a weak defense. In the face of the dear and positive testimony of the prosecution witness, regarding the
participation of the accused in the crime, the accused's alibi dwindles into nothingness. 22 For the positive identification of the
accused by the witness as the perpetrator of the crime cannot be overcome by the mere denial of the accused himself and the
defense witnesses. Positive Identification of the accused by the witnesses that he killed the victim establishes the guilt of the
accused to moral certainty.23 Parenthetically, as observed by the trial court, appellant Mina himself conceded that Diaz has no ill
reason to testify against him.24
Furthermore, the place of the incident is merely five (5) kilometers away from Mina's residence in Barangay Dao. Said appellant
utterly failed to prove that it was physically impossible for him to be in Tumalonton. The trial court held that the distance could be
negotiated easily by hiking or motorbiking. This Court has time and again held that if there is no physical impossibility for the
accused to be at the scene of the crime, alibi will not prosper as a defense.25
Accordingly, with the guilt of both appellants having been established beyond per-adventure of a doubt, the only issue left for
determination is the extent of their respective participations and the corresponding penalties therefor. The trial court convicted
both appellants as co-conspirators in the commission of the offense charged. From the testimony of Giddy Diaz, both appellants
aided each other in stabbing the victim to death. There is conspiracy since the evidence presented by the prosecution clearly
indicates that the acts and behavior of both appellants reveal their common purpose to assault and inflict harm upon the deceased
and that there was a concerted execution of that common purpose, 26 apparently triggered by the preceding altercation between
Mina and the victim.
A conspiracy in the statutory language exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. The objective then on the part of the conspirators is to perform an act or omission punishable by
law. What is required is assent to the perpetration of such misdeed. That must be their intent. There is a need for concurrence of
wills or unity of action or purpose, or common and joint purpose and design. At times, reference is made to previous concert of the
criminal design. Its manifestation could be shown by united and concerted action. Thus, a conspiracy need not be proved by direct
evidence. It may be deduced from the mode and manner in which the offense was perpetrated. The conditions attending its
commission and the acts executed may be indicative of the common design to accomplish a criminal purpose and objective. If there
is a chain of circumstances to that effect, then conspiracy has been established. If such be the case then, the act of one is the act of
all the others involved and each is to be held to the same degree of liability as the others. 27
Herein appellants are undoubtedly guilty of murder as they took advantage of superior strength when the killing was committed or,
as the information states, "conspiring together and helping one another," with both of them being armed and the victim being
unarmed. However, there is some doubt as to whether treachery can be appreciated, which doubt we resolve in their favor, since
treachery depends on the suddenness of the attack by which the victim is rendered hors de combat, as in an ambuscade, or any
manner in which the victim is deprived of an defense, and in which the malefactors face no risk to themselves. 28 Such a manner of
attack must have been chosen by them.
The fact that Mina held the victim while the latter was being stabbed by Arroyo does not necessarily demonstrate treachery as there
is no showing that it was a mode of commission deliberately adopted by them. Defenitely however, what it proves is the qualifying
circumstance of abuse of superiority, since both appellants acted in unison to overpower the victim by deliberately pooling their
combined strength and weapons, and taking advantage of such superior strength to consummate their nefarious intent with
impunity.
Hence, in view of the foregoing, the Court of Appeals acted correctly in finding appellants guilty of murder beyond reasonable doubt
and, modifying the judgment of the court below, in imposing the proper penalty therefor, to wit:
The penalty imposed by the trial court is erroneous. Accused-appellant Arroyo has in his favor the mitigating circumstance
of voluntary surrender and should be sentenced to an indeterminate penalty of imprisonment, the minimum of which
should be within the range of prision mayor in its maximum period to reclusion temporal in its medium period and the
maximum of which should be within the range of reclusion temporal, in its maximum period. On the other hand, accused-
appellant Mina should be meted out the medium period prescribed by Article 248 of the Revised Penal Code or reclusion
perpetua, there being no mitigating circumstance in his favor. The indemnity awarded to the heirs of the victim should be
increased from P30,000.00 to P50,000.00 in accordance with the ruling of the Honorable Supreme Court in People vs. Sison,
G.R. No. 86455, September 14, 1990.
IN VIEW WHEREOF, We affirm the finding of guilt of accuse-appellants Francisco Arroyo and Rito Mina in Crim. Case No.
5520 for Murder. Accused-appellant Arroyo is sentenced to suffer imprisonment the minimum of which is 10 years and 1
day of prision mayor maximum and the maximum of which is 17 years, 4 months and 1 day of reclusion temporal in its
maximum period. Accused-appellant Mina on the other hand, is sentenced to suffer an imprisonment of reclusion
perpetua. Both accused-appellants are directed to indemnify the heirs of the victim in the sum of P50,000.00 without
subsidiary imprisonment in case of insolvency and to suffer the accessory penalties provided by law as well as the cost of
the suit.29
WHEREFORE, the judgment of the Court of Appeals is hereby AFFIRMED in toto.
SO ORDERED.
G.R. No. 174064 June 8, 2007
PEOPLE OF THE PHILIPPINES, Plaintiff,

vs.
HENRY TOGAHAN, EMELDO LAURO, DANILO BALINDO (at large) and MARCO TURGA (at large), Appellants.
DECISION
TINGA, J.:
Appellants Henry Togahan (Togahan) and Emeldo Lauro (Lauro) assail the Decision 1 of the Court of Appeals dated 5 May 2006,
affirming with modification the Decision2 of the Regional Trial Court (RTC), Branch 28,3 Lianga, Surigao del Sur, dated 24 September
2003. The RTC had found appellants guilty beyond reasonable doubt for the murder of Ananias Villar, Sr. (Villar), and his son-in-law
David Gene Richardson (Richardson).
On 13 September 2000, appellants, together with their co-accused Danilo Balindo (Balindo) and Marco Turga (Turga), were charged
with two (2) counts of murder, in separate Informations4 filed by Prosecutor Zacharias P. Joven, the texts of which read:
Criminal Case No. L-1674
That on the 12th day of May 2000, at about 6:30 o’clock in the evening more or less, in Purok 1, Spring, [B]arangay Amaga,
[M]unicipality of Barobo, [P]rovince of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, armed with .38 caliber pistol, conspiring, confederating and mutually helping each other, with evident
premeditation, treachery and intent to kill, did then and there willfully, unlawfully and felon[i]ously shot one Ananias Villar, Sr. with
the use of said deadly weapon, as a result thereof the latter was hit and sustained the following wounds or injuries:
Gunshot wound[,] suprasternal area
Gunshot wound[,] left flank at the level of umbilicus
Gunshot wound[,] right upper quadrant parasternal
Lacerated wound[,] on left post auricular area
which wounds or injuries caused his instantaneous death to the damage and prejudice of his heirs in the following amount:
₱50,000.00 as life indemnity of the victim
₱15,000.00 as moral damages
CONTRARY TO LAW. (In violation of Article 248 of the Revised Penal Code).
Criminal Case No. L-1675

That on the 12th day of May 2000, at about 6:30 o’clock in the evening more or less, in Purok 1, Spring, [B]arangay Amaga,
[M]unicipality of Barobo, [P]rovince of Surigao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, armed with .38 caliber pistol, conspiring, confederating and mutually helping each other, with evident
prem[e]ditation, treachery and intent to kill, did then and there willfully, unlawfully and felon[i]ously shot one David Gene
Richardson, an [A]merican national, with the use of said weapon, as a result thereof the latter was hit and sustained the following
wounds or injuries:
Gunshot wound[,] right lower quadrant
Hematoma[,] right leg lateral aspect
Abrasion, [l]inear right shoulder
Abrasion, linear lumbar area
which wounds or injuries caused his instantaneous death to the damage and prejudice of his heirs in the following amount:
₱100,000.00 as life indemnity of the victim
₱15,000.00 as moral damages
CONTRARY TO LAW. (In violation of Article 248 of the Revised Penal Code).
Custody only of appellants Togahan and Lauro was acquired. Their co-accused Balindo and Turga remained at large then and to this
day. Upon being arraigned separately, both appellants pleaded not guilty. 5 Trial on the merits ensued with the prosecution
espousing the following narration of facts:
On 12 May 2000, at around 6:30 p.m., Magdalena Villar (Mrs. Villar), her daughter Vilma Villar-Richardson (Mrs. Richardson), son-in-
law Richardson, grandchildren Kenneth, Kevin, Junelyn, Jovelyn and Michelle, and brother Pedro Castillo were all watching television
in the living room of their residence in Spring, Amaga, Barobo, Surigao del Sur. Without warning, two armed men wearing bonnets
suddenly arrived. At that time, the victim Villar, husband of Mrs. Villar, was in his room. When Villar heard the commotion, he went
to the door and tried to prevent the armed men from entering, but he was shot twice, pulled towards the balcony and clubbed to
death.6
One of the armed men, later identified as Togahan, pointed a gun at Mrs. Richardson and pulled the trigger thrice. The gun did not
fire however. The other man, later identified as Lauro, approached Richardson and likewise pointed a gun at him. When Mrs.
Richardson heard gunfire, she asked the men: "Who are you, what do you want?" To this, Lauro replied: "We are here for
war."7 Mrs. Richardson told her husband to run away but the latter, in an attempt to protect his wife, struggled and tried to wrestle
the gun away from Togahan instead. In the course thereof, Lauro shot Richardson then ran out of the house with Richardson’s 3-
year old son.8 Richardson, in spite of his wound, chased Lauro but was later found sitting on the mud, unable to talk and dying. The
rest of the family had fled during the commotion and sought refuge. Villar and Richardson were brought to DO Plaza Memorial
Hospital in Patin-ay, Prosperidad, Surigao del Sur but were dead upon arrival. 9
In her testimony, Mrs. Richardson narrated that during the struggle between her husband and Togahan for the gun, the mask of the
latter was removed by Richardson; thus, she was able to recognize Togahan as the assailant who poked and tried to fire the gun at
her. Mrs. Richardson was able to identify Lauro through his voice and physical appearance as the one who remarked "We are here
for war."10 Lauro was alleged to be responsible for shooting her father, Villar, twice and also for shooting her husband, Richardson.
Eyewitness Lowelito Villar (Lowelito), grandson of victim Villar, testified that on the evening of the incident, he was in his home
about fifteen (15) meters away from his grandparents’ house when he heard a gun burst. He immediately ran towards the house of
his grandparents and hid behind a coconut tree, also about fifteen (15) meters from victim Villar’s house. He claims to have seen
three (3) armed and masked men he identified as Togahan, Lauro and Balindo enter the victims’ house. According to the witness,
Lauro shot Richardson in the house whereas Lauro and Balindo shot and clubbed his grandfather in the balcony. After the attack, all
the accused ran out of the house, removing their masks in the process. Witness Lowelito maintained that he had been friends with
the accused for five (5) years and recognized them because of their physical features and movements and that he could see the
events that transpired as there were fluorescent lamps lit inside and outside the house. 11
The prosecution likewise presented witnesses to fortify the charges of participation against appellants. Witness Rosemarie Enriquez,
a former sweetheart of Togahan, testified that the pair of slippers recovered from the scene of the crime belonged to the latter.12 It
was witness Federico Sayson, Barangay Kagawad of Purok 1, Spring, Amaga, Barobo, Surigao del Sur, who discovered the pair of
slippers and a dirty white jacket about thirty (30) meters from the house of Villar. 13
SPO2 Santo Ocate, the firearm examiner of the Philippine National Police, Caraga Region who conducted the physical examination of
two bullets recovered from the crime scene, testified that the bullets were discharged from a .38 caliber revolver. 14
Upon request of Mrs. Richardson, Dr. Edgar Savella, Medico-Legal Officer of the National Bureau of Investigation–Caraga Region,
conducted an autopsy of the bodies of the victims. Dr. Savella testified that the gunshot wound sustained by Richardson on his
abdomen was fatal and caused his death, the bullet having hit the sciatic artery on his right leg, as well as his vertebrae in the lumbar
area.15 Villar, on the other hand, died of multiple gunshot wounds to his chest and abdomen. 16 Dr. Savella found no indication of
self-defense or struggle-related injuries on both Villar and Richardson.17
Dr. Tomas Centino testified that he conducted the examination of the bodies of the victims who were both clinically dead upon
arrival at the DO Plaza Memorial Hospital.18 He likewise opined that the respective gunshot wounds sustained by Villar and
Richardson were fatal and the immediate cause of their death. 19
To counter the prosecution, Togahan presented the defense of alibi. He testified that on 12 May 2000, at 6:30 p.m., he was in the
home of his parents-in-law in Barangay Bahi, Barobo, Surigao del Sur, with whom he and his family lived. He averred that he was
playing with his children at that time. Thereafter, he had supper with the entire family, retired with the household to the balcony
from 7:00 to 9:00 p.m., and then went to sleep at 9:00 p.m.20 The following day, appellant maintains that he and his father-in-law
repaired the gutter of their house.21 On 14 May 2000, appellant was allegedly fetched by his brother at 9:00 a.m. to visit their father
who was seriously ill in Barangay Tagongon, Barobo, Surigao del Sur.22
To corroborate Togahan’s alibi, his father-in-law, Segundo Andalan, testified that on 12 May 2000, appellant helped him in repairing
their house. Beginning around 6:30 p.m., the whole family had dinner, took their rest and then went to bed. He asserted that
appellant did not leave their house that night. Their repair work on the house allegedly continued the next day. According to the
witness, appellant’s sister fetched him on 14 May 2000, at around 1:00 p.m. as their father was ill.23
Similarly, Lauro denied the charges made against him. Appellant maintains that on 12 May 2000, he was in the home of his brother
in Purok 4, Barobo, Surigao del Sur, helping the latter arrange stones on which their billiard table was to be placed. At around 6:30
p.m., appellant allegedly rested in the balcony of his brother’s house with the latter’s wife and neighbor while his brother prepared
supper.24
On rebuttal, the prosecution presented two witnesses, the first of whom negated the claims of Lauro that he had never set foot in
Barangay Amaga, Barobo, Surigao del Sur. According to witness Restituto Basada, for about four (4) to five (5) years commencing in
1980, Lauro and his family lived on his property in the said barangay. However, Lauro later fled as Basada filed a case against the
former for stoning him.25
The second rebuttal witness of the prosecution, Luzviminda Villar Sabaysabay, was the daughter of victim Villar. She testified that in
March and June 2001, they received letters from Togahan, requesting them to visit him in the provincial jail where he was then
incarcerated. In Togahan’s second letter, she claimed, he requested a visit to reveal to them that Lauro was one of his companions in
killing Villar.26
The RTC found appellants guilty of murder on both charges and sentenced each of them to suffer in each case the penalty of death
and to indemnify the respective heirs of the victims in each case in the amounts of ₱50,000.00 as civil indemnity, ₱15,000.00 as
moral damages, ₱15,000.00 as exemplary damages and costs.27
With the death penalty imposed on appellants, the case was elevated to this Court on automatic review. However, pursuant to this
Court’s ruling in People v. Mateo,28 the case was transferred to the Court of Appeals.
On 5 May 2006, the appellate court rendered its decision affirming with modification appellants’ conviction. In downgrading the
penalty from death to reclusion perpetua, the Court of Appeals held that the RTC erred in appreciating the generic aggravating
circumstances of dwelling and nighttime, both of which were not alleged in the Informations. 29 Thus, there being no mitigating or
aggravating circumstance attending the commission of the crimes, the appellate court imposed the penalty of reclusion
perpetua upon appellants for each count of murder. The dispositive portion of the said decision states:
"WHEREFORE, in view of the above disquisitions, the decision under review is hereby AFFIRMED with MODIFICATION that the
penalty is reduced to reclusion perpetua for each of the accused-appellants, and in line with recent jurisprudence the following
amounts are awarded to the heirs of the victims in each case, to wit: ₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages,
and ₱25,000.00 as exemplary damages.
Conformably to the ruling in People vs. Mateo, We refrain from entering judgment therein. The Division Clerk of Court is directed to
elevate the records of this case to the Honorable Supreme Court for final disposition.
SO ORDERED."30
In their brief,31 appellants challenge their conviction for murder, stressing that there is a great doubt as to the identities of the
persons who perpetrated the crime.
The issue of whether or not appellants were in fact identified by the prosecution witnesses is a question of credibility. It is well-
settled that factual findings of the trial court on credibility of witnesses and their testimonies are entitled to the highest respect and
will not be disturbed on appeal in the absence of clear showing that the trial court overlooked, misunderstood or misapplied some
facts or circumstances of weight and substance that would have affected the result of the case. Having seen and heard the witnesses
themselves and observed their behavior and manner of testifying, the trial court was in a better position to decide the question of
credibility.32
After an exhaustive review of the records, we find no reason to deviate from the trial court’s assessment of the credibility of the
witnesses. The trial court did not err in giving credence to the testimony of the prosecution witnesses that they were able to identify
appellants and their co-accused as perpetrators of the crime.
Mrs. Richardson, in recounting her horrifying experience in the hands of the appellants, categorically identified appellants as the
perpetrators of the vicious crimes, viz:
xxxx
Court:
Few clarificatory question (sic) from the Court.
Q In Exh. "A-1", which is the question and answer of your sworn statement, you said that you could not identify the culprit in this
case?
A Yes, sir.
Q But in the direct examination now, you were able to identify the suspects as Emeldo Lauro and Henry Togahan?
A Yes, sir.
Q Why is it now that your testimony is now in conflict with that of your sworn statement?
A Because they asked me a lot of questions. I was then depressed. I don’t (sic) know what to do. I lost my husband and when I was
told to go to Barobo, I was in a hurry to call my family in Pennsylvania, sir.
Q The height of your husband is 6’2 inches?
A Yes, sir.
Q And he tried to grab the bonnet from the assailants?

A Yes, sir.
Q Was he able to grab the bonnets (sic)?
A One of them, sir.
Q Which one of them that (sic) your husband able to grab the bonnets (sic)?
A That guy. (Witness pointing to accused Henry Togahan)
Q Was the bonnet Togahan was wearing held by your husband out of his face?
A Not all the way, sir.
Q Until what part of the face of Henry Togahan?
A Up to the eyebrow, sir.
Q Before the incident, you had not met Henry Togahan?
A No, sir.
Q The other accused Emeldo Lauro, was he wearing also a bonnet at that time?
A Yes, sir.
Q Your husband was not able to pull the bonnet out from his face?
A No, sir.
Q How could you identify Emeldo Lauro as the very person who was responsible in killing your husband and your father?
A Because when I came here, when I saw his appearance and everything, I remembered I heard his voice. You’re the one who said
we’re here for war. Don’t you. You can’t deny it.
Q You can identify him?
A Yes, sir, by his voice and his appearance.
Q As you said, it was Henry Togahan who pointed a gun to your head?
A Yes, sir.
Q Is he the same person who shot to death also (sic) your husband?
A No, sir.
Q Who was the person who shot your husband?
A That guy there. The one in the middle. (Witness pointing to accused Emeldo Lauro)
Q That guy?
A Yes, sir.
Q Who shot your father also (also)?
A Same guy, sir.
x x x33
Two other prosecution witnesses, Mrs. Villar and Lowelito, similarly identified appellants as the malefactors. 34
Appellants failed to show that the prosecution witnesses were prompted by any ill motive to falsely testify or accused them of so
grave a crime as murder. The Court adheres to the established rule that, in the absence of any evidence showing reason or motive
for the witness to perjure, their testimony and identification of the assailant should be given full faith and credit. 35
We cannot see ill-motive on the part of the prosecution witnesses, particularly Mrs. Villar and Mrs. Richardson. As widows of the
victims, they have more reason to desire punishment for the real perpetrators of the crime. It is unnatural for a victim’s relative
interested in vindicating the crime to accuse somebody other than the real culprit. 36Human nature tells us that the aggrieved
relatives would want the real killer punished for their loss, and not accept a mere scapegoat to take the rap for the real malefactor. 37
Concomitantly, witnesses need not know the names of the malefactors so long as they recognize their faces. What is imperative is
that the witnesses are positive as to the perpetrators’ physical identification from the witnesses’ own personal knowledge, as is
obtaining in this case.38 It is the natural reaction of victims of criminal violence to strive to see the appearance of their assailants and
to observe the manner in which the crime was committed. Most often, the face and body movements of the assailant create an
impression which cannot easily be erased from their memory.39
Insofar as the alleged inconsistencies between the testimony of Mrs. Richardson and her sworn testimony on identifying the
appellants are concerned, suffice it to say that the affidavits are generally not prepared by the affiants themselves but by others, and
affiants are only made to sign them. Certain discrepancies between declarations made in the affidavit and those made at the witness
stand seldom discredit the declarant.40 Moreover, Mrs. Richardson was able to satisfactorily explain such inconsistency during her
testimony.
Appellants likewise attack the seeming inconsistencies between the testimonies of Mrs. Villar, Mrs. Richardson and Lowelito. They
point to two alleged conflicts in those testimonies which, to their mind, are fatal and discredit the reliability of the witnesses: the
number of assailants and the identification of whom among the culprits shot the victims. These inconsistencies, in our view, are not
sufficiently substantial to impair the veracity of the prosecution’s evidence.
While witnesses may differ in their recollections of an incident, it does not necessarily follow from their disagreement that all of
them should be disbelieved as liars and their testimonies completely discarded as worthless.41 As long as the mass of testimony jibes
on material points, the slight clashing statements neither dilute the witnesses’ credibility nor the veracity of their testimony,42 for
indeed, such inconsistencies are but natural and even enhance credibility as these discrepancies indicate that the responses are
honest and unrehearsed.43
Witnesses cannot be expected to remember all the details of the harrowing event which unfolded before their eyes. Minor
discrepancies might be found in their testimony, but they do not damage the essential integrity of the evidence in its material whole,
nor should they reflect adversely on the witness’ credibility as they erase suspicion that the same was perjured.44
The trial court is correct in disregarding appellants’ defense of alibi and denial. For the defense of alibi to prosper, the accused must
prove not only that he was at some other place at the time of the commission of the crime but also that it was physically impossible
for him to be at the locus delicti or within its immediate vicinity. 45 Apart from testifying with respect to the distance of their houses
from that of the victims’, appellants were unable to explain and show that it was physically impossible for them to be at the scene of
the crime.
Between the categorical statements of the prosecution witnesses, on one hand, and the bare denial of appellants, on the other, the
former must perforce prevail.46 An affirmative testimony is far stronger than a negative testimony especially when it comes from the
mouth of a credible witness. Alibi and denial, if not substantiated by clear and convincing evidence, are negative and self-serving
evidence undeserving of weight in law. They are considered with suspicion and always received with caution, not only because they
are inherently weak and unreliable but also because they are easily fabricated and concocted. 47
The culpability of appellants and their co-accused is undeniable. Lauro was consistently identified by the witnesses as the person
responsible for shooting both victims. At the same time, the existence of conspiracy among the assailants is patent. Conspiracy has
been deduced by the Court in a case where three malefactors jointly lifted, carried and dumped their victim in a deep well filled with
water head first and threw rocks inside the well to cover him;48 by the successive acts of three appellants in shooting, clubbing and
piercing the eye of the victim;49 where one appellant put his arms around the body of the victim while his co-appellant held the
thighs of the victim and while they held him down, one poked and fired the gun at the back of the head of the victim; 50 when two
accused chased their victim into his house, kicked open the door to enter and then shot him; 51 and when one malefactor hacked the
victim and two others chased after the latter to finish up the aggression they had started. 52
In the instant case, by the concurrent acts of barging into the residence of the victims, holding them at gunpoint and shooting and
attacking the victims, Lauro, Togahan and their co-accused are deemed to have agreed to commit the crime of murder. Each of their
contributory acts without semblance of desistance reflected their resolution to commit the crime. 53 From a legal standpoint, there is
conspiracy if, at the time of the commission of the offense, the appellants had the same purpose and were united in its
execution.54 Direct proof of previous agreement to commit a crime is not necessary. Conspiracy may be deduced from the mode and
manner in which the offense was perpetrated, or inferred from the acts of the appellants themselves when such acts point to a joint
purpose and design, concerted action, and community of intent.55 Where conspiracy is established, the act of one is the act of all. 56
We agree with the trial court that treachery qualified the killing of the victims. The essence of treachery is the sudden and
unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself, thereby
ensuring its commission without risk to the aggressor, without the slightest provocation on the part of the victim. 57 In the case at
bar, four armed men entered the home of the innocent victims and together used this advantage to facilitate their crime.
Aggravating this was the fact that Villar was a 68-year old man who could not have been reasonably able to put up a defense against
the much younger and armed men.
Thus, we reach the inescapable conclusion that the trial court and the Court of Appeals were correct in finding appellants guilty of
two counts of murder and affirm the imposition of reclusion perpetua upon them for each of the murders committed. Likewise, in
line with recent jurisprudence,58 we affirm the award of damages in favor of the heirs of the victims.
WHEREFORE, the 5 May 2006 Decision of the Court of Appeals in CA-G.R. CR-HC No. 00156-MIN finding Henry Togahan and Emeldo
Lauro guilty beyond reasonable doubt of two counts of murder each, is AFFIRMED. They are sentenced to suffer the penalty of
reclusion perpetua for each count of murder and to pay jointly and severally the legal heirs of each victim ₱50,000.00 as civil
indemnity, ₱50,000.00 as moral damages and ₱25,000.00 as exemplary damages.
SO ORDERED.

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G.R. Nos.

141154-56 January 15, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

THE UNITED STATES, plaintiff-appellee,

Manuel Roxas for appellant.

We believe that the accused is guilty of frustrated murder.

An attempted felony is defined thus:

That the case before us is frustrated is clear.

Torres and Araullo, JJ., concur.

RUJJERIC Z. PALAGANAS,1 petitioner,

For what is a man, what has he got?

CRIMINAL CASE NO. U-9608

CRIMINAL CASE NO. U-9609

CRIMINAL CASE NO. U-9634

WHEREFORE, JUDGMENT is hereby rendered as follows:

Petitioner's contention must fail.

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Petitioner's argument is bereft of merit.

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

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

Hermogenes Caluag for appellant.

Johnson, Street, Villamor, Romualdez and Villa-Real, JJ., concur.

MALCOLM, J., dissenting:

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

The Office of the Solicitor General for plaintiff-appellee.

PE Findings — Pertinent Findings only.

Neck- — Circumscribed hematoma at Ant. neck.

Back — Multiple pinpoint marks.

Extremities — Abrasions at (R) and (L) knees.

As aforementioned, the trial court convicted the accused of frustrated rape.

In this appeal, the accused assigns the following errors:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious and

xxx xxx xxx

On the other hand, Article 6 of the same Code provides:

Q Was the penis inserted on your vagina?

A It entered but only a portion of it.

xxx xxx xxx

A I inserted his penis into my vagina.

Q And was it inserted?

A Yes only a little.

Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

Contrary to Presidential Decree No. 1866.2

We find merit in the appeal.

(i) possesses a firearm; and

(ii) lacks the authority or license to possess it. 18

In rejecting accused-appellant's claim, Justice Regalado wrote that:

Regalado, Mendoza and Martinez, JJ., concur.

PEOPLE OF THE PHILIPPINES, Appellee,

WHEREFORE, a Consolidated Judgment is hereby rendered sentencing Salvino Sumingwa to suffer –

Hence, this appeal.

Criminal Case Nos. 1646, 1649 and 1654 for Rape

ART. 266-A. Rape, When and How Committed. - Rape is committed –

ART. 266-B. Penalties. – x x x.

1. The accused commits the act of sexual intercourse or lascivious conduct.

3. The child, whether male or female, is below 18 years of age.48

Criminal Case Nos. 1644 and 1645 for Acts of Lasciviousness

Criminal Case No. 1651 for Attempted Rape

3. The offender’s act be not stopped by his own spontaneous desistance;

We answer in the negative.

Criminal Case No. 1655 for Unjust Vexation