THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF, V.

REGINALD MCCOY, DEFENDANT

CRIMINAL COURT OF THE CITY OF NEW YORK, RICHMOND COUNTY.
APRIL 9, 1997

MICHAEL J. BRENNAN, J.
FINDINGS OF FACT
A Dunaway-Huntley hearing was conducted on March 17, 1997, regarding statements made by the defendant to a
police officer, while in custody awaiting arraignment in the Richmond Criminal Court Building at 67 Targee Street, on a
charge of violating section 120.00 (3) of the Penal Law.
The sole testimony offered by either party at the Dunaway-Huntleyhearing was that of Police Officer Wade Woods.
Officer Woods' testimony established that the defendant surrendered himself to the police at the 120th Precinct on the
morning of December 4, 1996 in response to an open police complaint for the charge of assault. Officer Woods was
working on desk assignment at that time and was assigned the processing of the defendant's arrest. Officer Woods
testified that he proceeded to perform the necessary tasks involved in processing the defendant's arrest, including the
taking of pedigree information. Officer Woods further stated, upon examination, that at no point in the arrest process
did he question the defendant about the crime he was being charged with or any other matter. Officer Woods further
testified that the defendant did not make any inculpatory or exculpatory statements during the time the arrest was
being processed at the police precinct.
Officer Woods' testimony reflects that upon completing the defendant's arrest paperwork, he and the defendant went
to the Criminal Court Building at 67 Targee Street. Officer Woods stated that he was to draw up and sign the
accusatory instrument with the staff of the Richmond County District Attorney's office. The defendant was brought to
the courthouse under arrest and was to be arraigned. Officer Woods arrived at the Criminal Court at approximately
1:00 P.M. and did not meet with an Assistant District Attorney until after the District Attorney office's lunch recess.
Officer Woods testified that he met with an Assistant District Attorney for the purposes of drafting a misdemeanor
complaint between 2:30 and 3:00 P.M. Then at approximately 3:00 P.M., Officer Woods entered the holding area for
prisoners on the lower level of the Richmond County Criminal Court. Officer Woods then testified that he sought out
the defendant, took him outside the hearing of other prisoners and administered Mirandawarnings to the defendant.
The defendant did at this time make certain statements to the officer. *581581 The interview took perhaps 15 minutes.
The People intend to introduce these statements against the defendant as part of their case-in-chief and have given
notice pursuant to CPL 710.30 (1) (a). Officer Woods further testified that he then returned to the District Attorney's
office and a misdemeanor complaint was subsequently drafted and signed with the officer as the deponent. The court
records indicate that the defendant was arraigned on that accusatory instrument on the same day. The defendant
moves to suppress these statements as obtained after the defendant's right to counsel had already attached and as
violative of the defendant's right to a prompt arraignment as provided by CPL140.20 (1). Both parties have filed
memoranda of law in support of their positions.
The People, in support of their position, contend that the defendant's statements to Officer Woods in the Richmond
County Criminal Court were voluntarily made. Officer Woods' uncontroverted testimony indicates that he advised the
defendant of his Miranda rights by reading them to the defendant. The People contend that the defendant then
knowingly waived those rights and spoke with Officer Woods. Since no testimony to the contrary has been offered or
elicited, the court accepts and adopts the foregoing. However, the mere voluntariness of the defendant's statements
to the police may not render them admissible.
The defendant was in police custody for approximately two hours for the processing of his arrest at the 120th Precinct.
The defendant was not questioned there. No attempt to question the defendant took place. No testimony was offered
to suggest any barrier to the questioning of the defendant existed at that time. After the cycle of arrest processing was
completed the defendant was transported to the Richmond County Criminal Court. The purpose of bringing the
defendant to the court was to have the defendant arraigned on the charge for which he had been arrested. Upon
arrival at the court, the defendant was lodged in the holding cells located in the lower level of the court. The Richmond
County Criminal Court building was erected in 1933, during the administration of Mayor Jimmy Walker. Since that time,
numerous modernizations have taken place in the building but it remains that there is but a single holding area for all
prisoners. There is no segregation of prisoners, as to the status of their proceedings. All prisoners are merely held in
one of several holding cells beneath the AP1 courtroom, where arraignments take place. There are no separate

interview rooms or facilities for defendants to meet with *582582 counsel. It is common practice for both appointed
and private counsel to perform initial client and other prehearing interviews at the bars of the holding cells. It is also
common practice for prisoners held in these cells to speak to attorneys as they pass through conducting interviews
with clients. It cannot be ascertained whether the defendant in this case spoke to an attorney in the holding cells, but
it is common that defendants recognize lawyers who may have represented them in the past and speak to them about
current matters. Similarly, it is common for Legal Aid Society attorneys assigned to handle arraignments to speak with
defendants they have represented in the past without yet having that defendant's paperwork. The defendant raises
these facts, in support of his position, that the defendant's right to counsel had attached when his statements were
made. ( People v Samuels, 49 N.Y.2d 218, 221.) Concomitantly, the defendant contends that he had an expectation of
counsel and a prompt arraignment, pursuant to CPL 140.20 (1), upon his arrival at the Richmond County Criminal
Court and that by being questioned by the police, while awaiting that interview and arraignment, he was prejudiced by
a deliberate and unnecessary delay in his arraignment that was used for the sole purpose to obtain statements without
the benefit of counsel. ( People v Coleman,43 N.Y.2d 222, 225; People v Cooper, 101 A.D.2d 1 [4th Dept 1984];People v
Moore, 133 Misc.2d 900, on rearg 134 Misc.2d 822 [Sup Ct, Queens County 1987].)
DISCUSSION CONCLUSIONS OF LAW
As a general rule a criminal action begins with the filing of an accusatory instrument. ( People v Blake, 35 N.Y.2d 331,
339.) The United States Supreme Court has held that upon the commencement of an adversarial criminal proceeding,
the defendant has a constitutional right to counsel. ( Kirby v Illinois, 406 U.S. 682, 688.) New York has defined this right
to counsel as an indelible right available to the defendant at any critical stage of prosecution. ( People v Settles, 46
N.Y.2d 154, 165.) The filing of an accusatory instrument also is generally held to be the point when the right to counsel
attaches. (People v Strother, 234 A.D.2d 571.)
However, there are situations when the right to counsel may attach at an earlier point than the filing of an accusatory
instrument due to sufficient judicial activity. ( People v Samuels, 49 N.Y.2d 218, 221,supra.) We believe that given the
totality *583583 of the circumstances surrounding the physical plant and the attorney-prisoner interview facilities (or
lack thereof) and procedures common in the Richmond County Criminal Court that it is impossible to determine, with
certainty, whether the defendant was interviewed by an attorney in the nearly two-hour period that he was held in the
cells at the court, before being questioned by Officer Woods. We can also not conclude with certainty if the defendant
had spoken with a lawyer, at his own initiative, while in the cells. In either event the defendant's right to counsel would
have been deemed to have attached, just as if the defendant had sought out a lawyer in that lawyer's office. It is also
impossible to determine with satisfactory certainty whether the accusatory instrument against the defendant had been
filed at the time Officer Woods interviewed the defendant, since accusatory instruments are not time-stamped by the
arraignment clerk in Richmond County. It appears doubtful that the accusatory instrument had indeed been filed since
the testimony of Officer Woods indicated that he returned to complete the misdemeanor complaint with an Assistant
District Attorney, however, there is no way to determine the exact time the defendant's right to counsel would attach
under the traditional time of filing of the accusatory instrument analysis the People urge us to adopt. ( People v
Strother, 234 A.D.2d 571, supra.) Based on the foregoing, we find that a time of filing analysis, of when the
defendant's right to counsel may have attached, is unsatisfactory in securing the defendant the benefit of counsel at a
critical stage of the proceeding. ( People v Coleman, 43 N.Y.2d 222, 225, supra.) Given the physical limitations and
practices used in the Richmond County Criminal Court, the most appropriate bright-line rule may be to grant to the
prearraignment defendant something akin to the historical concept of sanctuary from questioning by the police. This
goes against the weight of established precedent. ( See, People v Wilson, 56 N.Y.2d 692.) But because of the very real
confusion over whether this, or any, defendant had been interviewed by a defense lawyer, drawing the line at the
courthouse door may best carry out the spirit of the right to the assistance of counsel at any critical stage as set out
by the United States Supreme Court in Coleman v Alabama (399 U.S. 1, 7).
Absent granting the defendant sanctuary in the prearraignment holding cell, the defendant contends that the
appropriate analysis for when the right to counsel attached in this matter *584584 is a "critical stage" approach,
meaning that if sufficient judicial activity has taken place at a stage prior to the filing of an accusatory instrument the
right to counsel should also attach at this stage. ( People v Samuels, 49 N.Y.2d 218, 221,supra.) This activity must be of
such legal importance as to acquire the status of a formal proceeding that is sufficiently "judicial" in nature that a right
to counsel attaches at "critical stages". ( People v Coleman, 43 N.Y.2d 222, 225, supra.) Most "critical stage" findings
have resulted from court-ordered procedures, including ordered visitation of crime scenes ( People v Sugden, 35 N.Y.2d
453) and lineups ( People v Coleman, supra). However, three cases upon which the defendant relies,People v
Cooper (101 A.D.2d 1 [4th Dept 1984], supra), People v Moore,(133 Misc.2d 900, on rearg 134 Misc.2d 822 [Sup Ct,
Queens County 1987], supra), and People v St. Louis (NYLJ, Oct. 25, 1993, at 25, col 5 [Sup Ct, Queens County 1993]),
have dealt with the instant question of whether an unnecessary and deliberate delay in arraignment for the purpose of
obtaining statements in the absence of counsel constitutes sufficient judicial activity.

The appropriate analysis of whether the defendant's right to counsel has attached is a "critical stage" analysis.
( People v Cooper, supra.) This allows a court to focus on the reasonableness of the delay in arraigning the defendant
and the purpose for the delay. (People v St. Louis, supra.)In order to make a finding under a "critical stage" analysis the
trial court must make a two-pronged inquiry:
(1) Was there an unnecessary delay in filing the accusatory instrument and arraigning the defendant?
(2) Was the purpose for the delay to deprive the defendant of his right to counsel so that the police could obtain an
uncounseled confession?(People v Cooper, supra.)
The answer to both questions, in the instant matter, is a resounding yes. The People contend that there was no
unnecessary delay in arraigning the defendant. In support of this position, the People point out that the delay was part
of a normal process necessary in preparing the complaint. ( People v Wilson, 56 N.Y.2d 692, supra.) The People further
contend the total four- or five-hour delay in arraigning the defendant was not unreasonable when delays of up to 24
hours have been held to be reasonable. ( People v Borazzo, 137 A.D.2d 96 [2d Dept 1988].) We cannot agree; the
purpose of the People's delay is so clear in this matter as to make any temporal delay prejudicial to the defendant.
Conversely, if the defendant was not questioned, the four- to five-hour delay he endured awaiting
arraignment *585585 would have been completely reasonable and ordinary. The police had sufficient opportunity to
question the defendant at the 120th Precinct. The police did not take advantage of that opportunity. Reason dictates
that the police were satisfied they had established a prima facie case of assault against the defendant as evidenced by
the complaint report and the defendant's surrender. The defendant would not have been transported to the holding
cells of the Criminal Court if further enhancement of the case was needed. The attempt to question the defendant only
came after Officer Woods met with an Assistant District Attorney to draft an accusatory instrument. There was no
testimony as to any changed circumstances in the case to justify further investigation. ( People v Moore, 133 Misc.2d
900, supra.) The necessity of this questioning can only be reasonably viewed as an effort by the People to enhance the
case against the defendant by obtaining statements in the absence of counsel. (Supra.)
The cases that highlight a time of filing attachment of the right to counsel deal most often with a police questioning of
the defendant away from the courthouse. ( People v Strother, 234 A.D.2d 571, supra.) In cases where the defendant
has arrived at the courthouse to enter the plea and has been taken from the holding cells, and hence from the
arraignment line, there is usually some fresh or changed circumstance to necessitate further investigation. ( People v
Quartieri, 171 A.D.2d 889[2d Dept 1991].) The People rely, in their memorandum, on People v Wilson (56 N.Y.2d
692, supra) and People v Borazzo (137 A.D.2d 96,supra) to support the proposition that merely being at the criminal
court awaiting arraignment does not free the defendant from further questioning by the police that might reasonably
delay arraignment. However, the Courts in Wilson and Borazzo each made an inquiry, similar to the second prong of
the "critical stage" test, as to the purpose of the delay. (Supra.) In Wilson, the Court held that the police could question
the defendant, in the courthouse, contemporaneously with the drafting of the accusatory instrument by other officers.
( People v Wilson, 56 N.Y.2d 692.) In Borazzo, the Court held that the police could question a defendant awaiting
arraignment, in the Richmond County Criminal Court, on an undrafted charge, about newly obtained evidence in a
separate crime, a homicide. ( People v Borazzo, 137 A.D.2d 96, 98.) Both the Wilson and Borazzo Courts, while not
explicitly undertaking a "critical stage" analysis, examined the purpose of the prearraignment questioning to
determine if it was intended *586586 merely to elicit statements in the absence of counsel.
The Wilson and BorazzoCourts found such circumstances as to merit new or additional investigation and questioning of
a defendant. No such circumstances have been even alluded to in the case at bar. (Supra.) The People propose that a
temporal delay is not enough to cause the right to counsel to attach absent "other aggravating circumstances."
Clearly, those aggravating circumstances exist here as to make any delay, no matter how brief, in arraigning the
defendant for the purpose of questioning him while in the Criminal Court prejudicial. No testimony has been adduced
to show other than, after consulting with the District Attorney, the officer sought to enhance what was already a prima
facie case by questioning the defendant before he had counsel. This conclusion is reinforced by the fact that criminal
conduct for which the defendant was in custody had taken place on November 23, 1996, some 11 days before he
surrendered or was questioned. No changed circumstances or new investigation took place.
Therefore, we grant the defendant's Dunaway-Huntley application and suppress all statements made by the defendant
to Officer Woods at the Criminal Court.

G.R. No. 162540

July 13, 2009

GEMMA T. JACINTO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking the reversal of the
Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 23761 dated December 16, 2003, affirming petitioner's
conviction of the crime of Qualified Theft, and its Resolution 2 dated March 5, 2004 denying petitioner's motion for
reconsideration.
Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and Jacqueline Capitle, was charged
before the Regional Trial Court (RTC) of Caloocan City, Branch 131, with the crime of Qualified Theft, allegedly
committed as follows:
That on or about and sometime in the month of July 1997, in Kalookan City, Metro Manila, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring together and mutually helping one another, being then all
employees of MEGA FOAM INTERNATIONAL INC., herein represented by JOSEPH DYHENGCO Y CO, and as such had free
access inside the aforesaid establishment, with grave abuse of trust and confidence reposed upon them with intent to
gain and without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and
feloniously take, steal and deposited in their own account, Banco De Oro Check No. 0132649 dated July 14, 1997 in the
sum of P10,000.00, representing payment made by customer Baby Aquino to the Mega Foam Int'l. Inc. to the damage
and prejudice of the latter in the aforesaid stated amount of P10,000.00.
CONTRARY TO LAW.3
The prosecution's evidence, which both the RTC and the CA found to be more credible, reveals the events that
transpired to be as follows.
In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed petitioner Banco De Oro (BDO)
Check Number 0132649 postdated July 14, 1997 in the amount of P10,000.00. The check was payment for Baby
Aquino's purchases from Mega Foam Int'l., Inc., and petitioner was then the collector of Mega Foam. Somehow, the
check was deposited in the Land Bank account of Generoso Capitle, the husband of Jacqueline Capitle; the latter is the
sister of petitioner and the former pricing, merchandising and inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call sometime in the middle of July
from one of their customers, Jennifer Sanalila. The customer wanted to know if she could issue checks payable to the
account of Mega Foam, instead of issuing the checks payable to CASH. Said customer had apparently been instructed
by Jacqueline Capitle to make check payments to Mega Foam payable to CASH. Around that time, Ricablanca also
received a phone call from an employee of Land Bank, Valenzuela Branch, who was looking for Generoso Capitle. The
reason for the call was to inform Capitle that the subject BDO check deposited in his account had been dishonored.
Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, asking the latter to inform
Jacqueline Capitle about the phone call from Land Bank regarding the bounced check. Ricablanca explained that she
had to call and relay the message through Valencia, because the Capitles did not have a phone; but they could be
reached through Valencia, a neighbor and former co-employee of Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Ricablanca to ask Baby Aquino to
replace the check with cash. Valencia also told Ricablanca of a plan to take the cash and divide it equally into four: for
herself, Ricablanca, petitioner Jacinto and Jacqueline Capitle. Ricablanca, upon the advise of Mega Foam's accountant,
reported the matter to the owner of Mega Foam, Joseph Dyhengco.

Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed handed petitioner a
BDO check for P10,000.00 sometime in June 1997 as payment for her purchases from Mega Foam. 4Baby Aquino further
testified that, sometime in July 1997, petitioner also called her on the phone to tell her that the BDO check
bounced.5 Verification from company records showed that petitioner never remitted the subject check to Mega Foam.
However, Baby Aquino said that she had already paid Mega Foam P10,000.00 cash in August 1997 as replacement for
the dishonored check.6
Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO check in his bank account, but
explained that the check came into his possession when some unknown woman arrived at his house around the first
week of July 1997 to have the check rediscounted. He parted with his cash in exchange for the check without even
bothering to inquire into the identity of the woman or her address. When he was informed by the bank that the check
bounced, he merely disregarded it as he didnt know where to find the woman who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and worked out an entrapment
operation with its agents. Ten pieces of P1,000.00 bills provided by Dyhengco were marked and dusted with
fluorescent powder by the NBI. Thereafter, the bills were given to Ricablanca, who was tasked to pretend that she was
going along with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was then holding the bounced
BDO check, handed over said check to Ricablanca. They originally intended to proceed to Baby Aquino's place to have
the check replaced with cash, but the plan did not push through. However, they agreed to meet again on August 21,
2007.
On the agreed date, Ricablanca again went to petitioners house, where she met petitioner and Jacqueline Capitle.
Petitioner, her husband, and Ricablanca went to the house of Anita Valencia; Jacqueline Capitle decided not to go with
the group because she decided to go shopping. It was only petitioner, her husband, Ricablanca and Valencia who then
boarded petitioner's jeep and went on to Baby Aquino's factory. Only Ricablanca alighted from the jeep and entered
the premises of Baby Aquino, pretending that she was getting cash from Baby Aquino. However, the cash she actually
brought out from the premises was the P10,000.00 marked money previously given to her by Dyhengco. Ricablanca
divided the money and upon returning to the jeep, gave P5,000.00 each to Valencia and petitioner. Thereafter,
petitioner and Valencia were arrested by NBI agents, who had been watching the whole time.
Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found fluorescent powder on the
palmar and dorsal aspects of both of their hands. This showed that petitioner and Valencia handled the marked money.
The NBI filed a criminal case for qualified theft against the two and one Jane Doe who was later identified as Jacqueline
Capitle, the wife of Generoso Capitle.
The defense, on the other hand, denied having taken the subject check and presented the following scenario.
Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30, 1997, but claimed that she
had stopped collecting payments from Baby Aquino for quite some time before her resignation from the company. She
further testified that, on the day of the arrest, Ricablanca came to her mothers house, where she was staying at that
time, and asked that she accompany her (Ricablanca) to Baby Aquino's house. Since petitioner was going for a prenatal check-up at the Chinese General Hospital, Ricablanca decided to hitch a ride with the former and her husband in
their jeep going to Baby Aquino's place in Caloocan City. She allegedly had no idea why Ricablanca asked them to wait
in their jeep, which they parked outside the house of Baby Aquino, and was very surprised when Ricablanca placed the
money on her lap and the NBI agents arrested them.
Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on June 30, 1997. It was never
part of her job to collect payments from customers. According to her, on the morning of August 21, 1997, Ricablanca
called her up on the phone, asking if she (Valencia) could accompany her (Ricablanca) to the house of Baby Aquino.
Valencia claims that she agreed to do so, despite her admission during cross-examination that she did not know where
Baby Aquino resided, as she had never been to said house. They then met at the house of petitioner's mother, rode
the jeep of petitioner and her husband, and proceeded to Baby Aquino's place. When they arrived at said place,
Ricablanca alighted, but requested them to wait for her in the jeep. After ten minutes, Ricablanca came out and, to her
surprise, Ricablanca gave her money and so she even asked, "What is this?" Then, the NBI agents arrested them.

The trial of the three accused went its usual course and, on October 4, 1999, the RTC rendered its Decision, the
dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De Jacinto y Latosa, Anita Busog
De Valencia y Rivera and Jacqueline Capitle GUILTY beyond reasonable doubt of the crime ofQUALIFIED
THEFT and each of them is hereby sentenced to suffer imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND
ELEVEN (11) DAYS, as minimum, to SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS, as
maximum.
SO ORDERED.7
The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the dispositive portion of
which reads, thus:
IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that:
(a) the sentence against accused Gemma Jacinto stands;
(b) the sentence against accused Anita Valencia is reduced to 4 months arresto mayor medium.
(c) The accused Jacqueline Capitle is acquitted.
SO ORDERED.
A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for petitioner Gemma Tubale Jacinto,
but the same was denied per Resolution dated March 5, 2004.
Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the Decision and Resolution of
the CA. The issues raised in the petition are as follows:
1. Whether or not petitioner can be convicted of a crime not charged in the information;
2. Whether or not a worthless check can be the object of theft; and
3. Whether or not the prosecution has proved petitioner's guilt beyond reasonable doubt. 8
The petition deserves considerable thought.
The prosecution tried to establish the following pieces of evidence to constitute the elements of the crime of qualified
theft defined under Article 308, in relation to Article 310, both of the Revised Penal Code: (1) the taking of personal
property - as shown by the fact that petitioner, as collector for Mega Foam, did not remit the customer's check
payment to her employer and, instead, appropriated it for herself; (2) said property belonged to another the check
belonged to Baby Aquino, as it was her payment for purchases she made; (3) the taking was done with intent to gain
this is presumed from the act of unlawful taking and further shown by the fact that the check was deposited to the
bank account of petitioner's brother-in-law; (4) it was done without the owners consent petitioner hid the fact that
she had received the check payment from her employer's customer by not remitting the check to the company; (5) it
was accomplished without the use of violence or intimidation against persons, nor of force upon things the check was
voluntarily handed to petitioner by the customer, as she was known to be a collector for the company; and (6) it was
done with grave abuse of confidence petitioner is admittedly entrusted with the collection of payments from
customers.
However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the personal property
subject of the theft must have some value, as the intention of the accused is to gain from the thing
stolen.This is further bolstered by Article 309, where the law provides that the penalty to be imposed on the accused
is dependent on the value of the thing stolen.

In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same was apparently
without value, as it was subsequently dishonored. Thus, the question arises on whether the crime of qualified theft was
actually produced.
The Court must resolve the issue in the negative.
Intod v. Court of Appeals9 is highly instructive and applicable to the present case. In Intod, the accused, intending to
kill a person, peppered the latters bedroom with bullets, but since the intended victim was not home at the time, no
harm came to him. The trial court and the CA held Intod guilty of attempted murder. But upon review by this Court, he
was adjudged guilty only of an impossible crime as defined and penalized in paragraph 2, Article 4, in relation to
Article 59, both of the Revised Penal Code, because of the factual impossibility of producing the crime. Pertinent
portions of said provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:
xxxx
2. By any person performing an act which would be an offense against persons or property, were it not for
theinherent impossibility of its accomplishment or on account of the employment of inadequate to ineffectual
means. (emphasis supplied)
Article 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims
sought are impossible. - When the person intending to commit an offense has already performed the acts for the
execution of the same but nevertheless the crime was not produced by reason of the fact that the act intended was by
its nature one of impossible accomplishment or because the means employed by such person are essentially
inadequate to produce the result desired by him, the court, having in mind the social danger and the degree of
criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine ranging from 200 to
500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense against persons or
property; (2) that the act was done with evil intent; and (3) that its accomplishment was inherently impossible, or the
means employed was either inadequate or ineffectual. The aspect of the inherent impossibility of accomplishing the
intended crime under Article 4(2) of the Revised Penal Code was further explained by the Court in Intod10 in this wise:
Under this article, the act performed by the offender cannot produce an offense against persons or property because:
(1) the commission of the offense is inherently impossible of accomplishment; or (2) the means employed is either (a)
inadequate or (b) ineffectual.
That the offense cannot be produced because the commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the offender must
be by its nature one impossible of accomplishment. There must be either (1) legal impossibility, or (2) physical
impossibility of accomplishing the intended act in order to qualify the act as an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime.
xxxx
The impossibility of killing a person already dead falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his
control prevent the consummation of the intended crime. x x x 11
In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a man puts his
hand in the coat pocket of another with the intention to steal the latter's wallet, but gets nothing since the pocket is
empty.

Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In this case,
petitioner performed all the acts to consummate the crime of qualified theft, which is a crime against property.
Petitioner's evil intent cannot be denied, as the mere act of unlawfully taking the check meant for Mega Foam showed
her intent to gain or be unjustly enriched. Were it not for the fact that the check bounced, she would have received the
face value thereof, which was not rightfully hers. Therefore, it was only due to the extraneous circumstance of the
check being unfunded, a fact unknown to petitioner at the time, that prevented the crime from being produced. The
thing unlawfully taken by petitioner turned out to be absolutely worthless, because the check was eventually
dishonored, and Mega Foam had received the cash to replace the value of said dishonored check.1avvphi1
The fact that petitioner was later entrapped receiving the P5,000.00 marked money, which she thought was the cash
replacement for the dishonored check, is of no moment. The Court held in Valenzuela v. People12 that under the
definition of theft in Article 308 of the Revised Penal Code, "there is only one operative act of execution by the actor
involved in theft the taking of personal property of another." Elucidating further, the Court held, thus:
x x x 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
latters consent."
xxxx
x x x 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. x x x
xxxx
x x x 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. x x x
x x x Unlawful taking, which is the deprivation of ones personal property, is the element which produces the felony in
its consummated stage. x x x 13
From the above discussion, there can be no question that as of the time that petitioner took possession of the
check meant for Mega Foam, she had performed all the acts to consummate the crime of theft, had it not
been impossible of accomplishment in this case. The circumstance of petitioner receiving the P5,000.00 cash as
supposed replacement for the dishonored check was no longer necessary for the consummation of the crime of
qualified theft. Obviously, the plan to convince Baby Aquino to give cash as replacement for the check was hatched
only after the check had been dishonored by the drawee bank. Since the crime of theft is not a continuing offense,
petitioner's act of receiving the cash replacement should not be considered as a continuation of the theft. At most, the
fact that petitioner was caught receiving the marked money was merely corroborating evidence to strengthen proof of
her intent to gain.
Moreover, the fact that petitioner further planned to have the dishonored check replaced with cash by its issuer is a
different and separate fraudulent scheme. Unfortunately, since said scheme was not included or covered by the
allegations in the Information, the Court cannot pronounce judgment on the accused; otherwise, it would violate the
due process clause of the Constitution. If at all, that fraudulent scheme could have been another possible source of
criminal liability.
IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals, dated December 16,
2003, and its Resolution dated March 5, 2004, are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of
an IMPOSSIBLE CRIME as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code,
respectively. Petitioner is sentenced to suffer the penalty of six (6) months of arrresto mayor, and to pay the costs.
SO ORDERED.

G.R. No. 180016

April 29, 2014

LITO CORPUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of Court, dated November 5, 2007, of
petitioner Lito Corpuz (petitioner), seeking to reverse and set aside the Decision 1 dated March 22, 2007 and
Resolution2 dated September 5, 2007 of the Court of Appeals (CA), which affirmed with modification the
Decision3 dated July 30, 2004 of the Regional Trial Court (RTC), Branch 46, San Fernando City, finding the petitioner
guilty beyond reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the
Revised Penal Code.
The antecedent facts follow.
Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in Olongapo City sometime in
1990. Private complainant was then engaged in the business of lending money to casino players and, upon hearing
that the former had some pieces of jewelry for sale, petitioner approached him on May 2, 1991 at the same casino and
offered to sell the said pieces of jewelry on commission basis. Private complainant agreed, and as a consequence, he
turned over to petitioner the following items: an 18k diamond ring for men; a woman's bracelet; one (1) men's
necklace and another men's bracelet, with an aggregate value of P98,000.00, as evidenced by a receipt of even date.
They both agreed that petitioner shall remit the proceeds of the sale, and/or, if unsold, to return the same items, within
a period of 60 days. The period expired without petitioner remitting the proceeds of the sale or returning the pieces of
jewelry. When private complainant was able to meet petitioner, the latter promised the former that he will pay the
value of the said items entrusted to him, but to no avail.
Thus, an Information was filed against petitioner for the crime of estafa, which reads as follows:
That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, after having received from one Danilo Tangcoy, one (1) men's diamond
ring, 18k, worth P45,000.00; one (1) three-baht men's bracelet, 22k, worth P25,000.00; one (1) two-baht ladies'
bracelet, 22k, worth P12,000.00, or in the total amount of Ninety-Eight Thousand Pesos (P98,000.00), Philippine
currency, under expressed obligation on the part of said accused to remit the proceeds of the sale of the said items or
to return the same, if not sold, said accused, once in possession of the said items, with intent to defraud, and with
unfaithfulness and abuse of confidence, and far from complying with his aforestated obligation, did then and there
wilfully, unlawfully and feloniously misappropriate, misapply and convert to his own personal use and benefit the
aforesaid jewelries (sic) or the proceeds of the sale thereof, and despite repeated demands, the accused failed and
refused to return the said items or to remit the amount of Ninety- Eight Thousand Pesos (P98,000.00), Philippine
currency, to the damage and prejudice of said Danilo Tangcoy in the aforementioned amount.
CONTRARY TO LAW.
On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not guilty. Thereafter, trial on the
merits ensued.
The prosecution, to prove the above-stated facts, presented the lone testimony of Danilo Tangcoy. On the other hand,
the defense presented the lone testimony of petitioner, which can be summarized, as follows:
Petitioner and private complainant were collecting agents of Antonio Balajadia, who is engaged in the financing
business of extending loans to Base employees. For every collection made, they earn a commission. Petitioner denied
having transacted any business with private complainant.

However, he admitted obtaining a loan from Balajadia sometime in 1989 for which he was made to sign a blank
receipt. He claimed that the same receipt was then dated May 2, 1991 and used as evidence against him for the
supposed agreement to sell the subject pieces of jewelry, which he did not even see.
After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the Information. The
dispositive portion of the decision states:
WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the felony of Estafa under Article 315,
paragraph one (1), subparagraph (b) of the Revised Penal Code;
there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to vary the penalty imposable;
accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of liberty consisting of an
imprisonment under the Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2) MONTHS of Prision Correccional
in its medium period AS MINIMUM, to FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of Reclusion Temporal in its
minimum period AS MAXIMUM; to indemnify private complainant Danilo Tangcoy the amount ofP98,000.00 as actual
damages, and to pay the costs of suit.
SO ORDERED.
The case was elevated to the CA, however, the latter denied the appeal of petitioner and affirmed the decision of the
RTC, thus:
WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30, 2004 of the RTC of San Fernando City
(P), Branch 46, is hereby AFFIRMED with MODIFICATION on the imposable prison term, such that accused-appellant
shall suffer the indeterminate penalty of 4 years and 2 months of prision correccional, as minimum, to 8 years of
prision mayor, as maximum, plus 1 year for each additional P10,000.00, or a total of 7 years. The rest of the decision
stands.
SO ORDERED.
Petitioner, after the CA denied his motion for reconsideration, filed with this Court the present petition stating the
following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION AND APPRECIATION BY THE LOWER
COURT OF PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS, WHICH ARE MERE MACHINE COPIES, AS THIS VIOLATES
THE BEST EVIDENCE RULE;
B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT THE CRIMINAL
INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH THE SAME DID NOT CHARGE THE OFFENSE
UNDER ARTICLE 315 (1) (B) OF THE REVISED PENAL CODE IN THAT 1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT [PIECES OF] JEWELRY SHOULD BE
RETURNED, IF UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD;
2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE INFORMATION AS OF 05 JULY 1991 WAS
MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO BY THE PRIVATE COMPLAINANT WHICH WAS 02 MAY
1991;
C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT DEMAND TO
RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE PROCEEDS, IF SOLD AN ELEMENT OF THE
OFFENSE WAS PROVED;
D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT THE
PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE DOUBT ALTHOUGH 1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE INCIDENT;

2. THE VERSION OF THE PETITIONER ACCUSED IS MORE STRAIGHTFORWARD AND LOGICAL, CONSISTENT
WITH HUMAN EXPERIENCE;
3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS CASE;
4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.
In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the following counter-arguments:
The exhibits were properly admitted inasmuch as petitioner failed to object to their admissibility.
The information was not defective inasmuch as it sufficiently established the designation of the offense and the acts
complained of.
The prosecution sufficiently established all the elements of the crime charged.
This Court finds the present petition devoid of any merit.
The factual findings of the appellate court generally are conclusive, and carry even more weight when said court
affirms the findings of the trial court, absent any showing that the findings are totally devoid of support in the records,
or that they are so glaringly erroneous as to constitute grave abuse of discretion. 4 Petitioner is of the opinion that the
CA erred in affirming the factual findings of the trial court. He now comes to this Court raising both procedural and
substantive issues.
According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in evidence a receipt dated May
2, 1991 marked as Exhibit "A" and its submarkings, although the same was merely a photocopy, thus, violating the
best evidence rule. However, the records show that petitioner never objected to the admissibility of the said evidence
at the time it was identified, marked and testified upon in court by private complainant. The CA also correctly pointed
out that petitioner also failed to raise an objection in his Comment to the prosecution's formal offer of evidence and
even admitted having signed the said receipt. The established doctrine is that when a party failed to interpose a timely
objection to evidence at the time they were offered in evidence, such objection shall be considered as waived. 5
Another procedural issue raised is, as claimed by petitioner, the formally defective Information filed against him. He
contends that the Information does not contain the period when the pieces of jewelry were supposed to be returned
and that the date when the crime occurred was different from the one testified to by private complainant. This
argument is untenable. The CA did not err in finding that the Information was substantially complete and in reiterating
that objections as to the matters of form and substance in the Information cannot be made for the first time on appeal.
It is true that the gravamen of the crime of estafa under Article 315, paragraph 1, subparagraph (b) of the RPC is the
appropriation or conversion of money or property received to the prejudice of the owner 6 and that the time of
occurrence is not a material ingredient of the crime, hence, the exclusion of the period and the wrong date of the
occurrence of the crime, as reflected in the Information, do not make the latter fatally defective. The CA ruled:
x x x An information is legally viable as long as it distinctly states the statutory designation of the offense and the acts
or omissions constitutive thereof. Then Section 6, Rule 110 of the Rules of Court provides that a complaint or
information is sufficient if it states the name of the accused;
the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the
name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense
was committed. In the case at bar, a reading of the subject Information shows compliance with the foregoing rule. That
the time of the commission of the offense was stated as " on or about the fifth (5th) day of July, 1991" is not likewise
fatal to the prosecution's cause considering that Section 11 of the same Rule requires a statement of the precise time
only when the same is a material ingredient of the offense. The gravamen of the crime of estafa under Article 315,
paragraph 1 (b) of the Revised Penal Code (RPC) is the appropriation or conversion of money or property received to
the prejudice of the offender. Thus, aside from the fact that the date of the commission thereof is not an essential
element of the crime herein charged, the failure of the prosecution to specify the exact date does not render the
Information ipso facto defective. Moreover, the said date is also near the due date within which accused-appellant
should have delivered the proceeds or returned the said [pieces of jewelry] as testified upon by Tangkoy, hence, there

was sufficient compliance with the rules. Accused-appellant, therefore, cannot now be allowed to claim that he was not
properly apprised of the charges proferred against him.7
It must be remembered that petitioner was convicted of the crime of Estafa under Article 315, paragraph 1 (b) of the
RPC, which reads:
ART. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow.
1. With unfaithfulness or abuse of confidence, namely:
xxxx
(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; x x x
The elements of estafa with abuse of confidence are as follows: (a) that money, goods or other personal property is
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; (b) that there be misappropriation or conversion of such money or
property by the offender or denial on his part of such receipt; (c) that such misappropriation or conversion or denial is
to the prejudice of another; and (d) that there is a demand made by the offended party on the offender. 8
Petitioner argues that the last element, which is, that there is a demand by the offended party on the offender, was not
proved. This Court disagrees. In his testimony, private complainant narrated how he was able to locate petitioner after
almost two (2) months from the time he gave the pieces of jewelry and asked petitioner about the same items with the
latter promising to pay them. Thus:
PROS. MARTINEZ
q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been finished on 5 July 1991,
the question is what happens (sic) when the deadline came?
a I went looking for him, sir.
q For whom?
a Lito Corpuz, sir.
q Were you able to look (sic) for him?
a I looked for him for a week, sir.
q Did you know his residence?
a Yes, sir.
q Did you go there?
a Yes, sir.
q Did you find him?
a No, sir.
q Were you able to talk to him since 5 July 1991?

a I talked to him, sir.

q How many times?
a Two times, sir.
q What did you talk (sic) to him?
a About the items I gave to (sic) him, sir.
q Referring to Exhibit A-2?
a Yes, sir, and according to him he will take his obligation and I asked him where the items are and he promised me
that he will pay these amount, sir.
q Up to this time that you were here, were you able to collect from him partially or full?
a No, sir.9
No specific type of proof is required to show that there was demand. 10 Demand need not even be formal; it may be
verbal.11 The specific word "demand" need not even be used to show that it has indeed been made upon the person
charged, since even a mere query as to the whereabouts of the money [in this case, property], would be tantamount
to a demand.12 As expounded in Asejo v. People:13
With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa need not be
formal or written. The appellate court observed that the law is silent with regard to the form of demand in estafa under
Art. 315 1(b), thus:
When the law does not qualify, We should not qualify. Should a written demand be necessary, the law would have
stated so. Otherwise, the word "demand" should be interpreted in its general meaning as to include both written and
oral demand. Thus, the failure of the prosecution to present a written demand as evidence is not fatal.
In Tubb v. People, where the complainant merely verbally inquired about the money entrusted to the accused, we held
that the query was tantamount to a demand, thus:
x x x [T]he law does not require a demand as a condition precedent to the existence of the crime of embezzlement. It
so happens only that failure to account, upon demand for funds or property held in trust, is circumstantial evidence of
misappropriation. The same way, however, be established by other proof, such as that introduced in the case at bar. 14
In view of the foregoing and based on the records, the prosecution was able to prove the existence of all the elements
of the crime. Private complainant gave petitioner the pieces of jewelry in trust, or on commission basis, as shown in
the receipt dated May 2, 1991 with an obligation to sell or return the same within sixty (60) days, if unsold. There was
misappropriation when petitioner failed to remit the proceeds of those pieces of jewelry sold, or if no sale took place,
failed to return the same pieces of jewelry within or after the agreed period despite demand from the private
complainant, to the prejudice of the latter.
Anent the credibility of the prosecution's sole witness, which is questioned by petitioner, the same is unmeritorious.
Settled is the rule that in assessing the credibility of witnesses, this Court gives great respect to the evaluation of the
trial court for it had the unique opportunity to observe the demeanor of witnesses and their deportment on the witness
stand, an opportunity denied the appellate courts, which merely rely on the records of the case. 15 The assessment by
the trial court is even conclusive and binding if not tainted with arbitrariness or oversight of some fact or circumstance
of weight and influence, especially when such finding is affirmed by the CA. 16 Truth is established not by the number of
witnesses, but by the quality of their testimonies, for in determining the value and credibility of evidence, the
witnesses are to be weighed not numbered.17
As regards the penalty, while this Court's Third Division was deliberating on this case, the question of the continued
validity of imposing on persons convicted of crimes involving property came up. The legislature apparently pegged

these penalties to the value of the money and property in 1930 when it enacted the Revised Penal Code. Since the
members of the division reached no unanimity on this question and since the issues are of first impression, they
decided to refer the case to the Court en banc for consideration and resolution. Thus, several amici curiae were invited
at the behest of the Court to give their academic opinions on the matter. Among those that graciously complied were
Dean Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate President, and the
Speaker of the House of Representatives. The parties were later heard on oral arguments before the Court en banc,
with Atty. Mario L. Bautista appearing as counsel de oficio of the petitioner.
After a thorough consideration of the arguments presented on the matter, this Court finds the following:
There seems to be a perceived injustice brought about by the range of penalties that the courts continue to impose on
crimes against property committed today, based on the amount of damage measured by the value of money eighty
years ago in 1932. However, this Court cannot modify the said range of penalties because that would constitute
judicial legislation. What the legislature's perceived failure in amending the penalties provided for in the said crimes
cannot be remedied through this Court's decisions, as that would be encroaching upon the power of another branch of
the government. This, however, does not render the whole situation without any remedy. It can be appropriately
presumed that the framers of the Revised Penal Code (RPC) had anticipated this matter by including Article 5, which
reads:
ART. 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and
in cases of excessive penalties. - Whenever a court has knowledge of any act which it may deem proper to repress and
which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the
Department of Justice, the reasons which induce the court to believe that said act should be made the subject of penal
legislation.
In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as
may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions
of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of
malice and the injury caused by the offense.18
The first paragraph of the above provision clearly states that for acts bourne out of a case which is not punishable by
law and the court finds it proper to repress, the remedy is to render the proper decision and thereafter, report to the
Chief Executive, through the Department of Justice, the reasons why the same act should be the subject of penal
legislation. The premise here is that a deplorable act is present but is not the subject of any penal legislation, thus, the
court is tasked to inform the Chief Executive of the need to make that act punishable by law through legislation. The
second paragraph is similar to the first except for the situation wherein the act is already punishable by law but the
corresponding penalty is deemed by the court as excessive. The remedy therefore, as in the first paragraph is not to
suspend the execution of the sentence but to submit to the Chief Executive the reasons why the court considers the
said penalty to be non-commensurate with the act committed. Again, the court is tasked to inform the Chief Executive,
this time, of the need for a legislation to provide the proper penalty.
In his book, Commentaries on the Revised Penal Code, 19 Guillermo B. Guevara opined that in Article 5, the duty of the
court is merely to report to the Chief Executive, with a recommendation for an amendment or modification of the legal
provisions which it believes to be harsh. Thus:
This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," that is, that there can exist no
punishable act except those previously and specifically provided for by penal statute.
No matter how reprehensible an act is, if the law-making body does not deem it necessary to prohibit its perpetration
with penal sanction, the Court of justice will be entirely powerless to punish such act.
Under the provisions of this article the Court cannot suspend the execution of a sentence on the ground that the strict
enforcement of the provisions of this Code would cause excessive or harsh penalty. All that the Court could do in such
eventuality is to report the matter to the Chief Executive with a recommendation for an amendment or modification of
the legal provisions which it believes to be harsh. 20
Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon C. Aquino and retired Associate
Justice Carolina C. Grio-Aquino, in their book, The Revised Penal Code, 21 echoed the above-cited commentary, thus:

The second paragraph of Art. 5 is an application of the humanitarian principle that justice must be tempered with
mercy. Generally, the courts have nothing to do with the wisdom or justness of the penalties fixed by law. "Whether or
not the penalties prescribed by law upon conviction of violations of particular statutes are too severe or are not severe
enough, are questions as to which commentators on the law may fairly differ; but it is the duty of the courts to enforce
the will of the legislator in all cases unless it clearly appears that a given penalty falls within the prohibited class of
excessive fines or cruel and unusual punishment." A petition for clemency should be addressed to the Chief
Executive.22
There is an opinion that the penalties provided for in crimes against property be based on the current inflation rate or
at the ratio of P1.00 is equal to P100.00 . However, it would be dangerous as this would result in uncertainties, as
opposed to the definite imposition of the penalties. It must be remembered that the economy fluctuates and if the
proposed imposition of the penalties in crimes against property be adopted, the penalties will not cease to change,
thus, making the RPC, a self-amending law. Had the framers of the RPC intended that to be so, it should have provided
the same, instead, it included the earlier cited Article 5 as a remedy. It is also improper to presume why the present
legislature has not made any moves to amend the subject penalties in order to conform with the present times. For all
we know, the legislature intends to retain the same penalties in order to deter the further commission of those
punishable acts which have increased tremendously through the years. In fact, in recent moves of the legislature, it is
apparent that it aims to broaden the coverage of those who violate penal laws. In the crime of Plunder, from its original
minimum amount of P100,000,000.00 plundered, the legislature lowered it toP50,000,000.00. In the same way, the
legislature lowered the threshold amount upon which the Anti-Money Laundering Act may apply, from P1,000,000.00
to P500,000.00.
It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not seem to be excessive
compared to the proposed imposition of their corresponding penalties. In Theft, the provisions state that:
Art. 309. Penalties. Any person guilty of theft shall be punished by:
1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more
than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the thing stolen exceeds the latter
amount the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for
each additional ten thousand pesos, but the total of the 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.
2. The penalty of prision correccional in its medium and maximum periods, if the value of the thing stolen is
more than 6,000 pesos but does not exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and medium periods, if the value of the property stolen is
more than 200 pesos but does not exceed 6,000 pesos.
4. Arresto mayor in its medium period to prision correccional in its minimum period, if the value of the property
stolen is over 50 pesos but does not exceed 200 pesos.
5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the circumstances
enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed 5
pesos. If such value exceeds said amount, the provision of any of the five preceding subdivisions shall be made
applicable.
8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the thing stolen is
not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of
earning a livelihood for the support of himself or his family.

In a case wherein the value of the thing stolen is P6,000.00, the above-provision states that the penalty is prision
correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months). Applying the
proposal, if the value of the thing stolen is P6,000.00, the penalty is imprisonment of arresto mayor in its medium
period to prision correccional minimum period (2 months and 1 day to 2 years and 4 months). It would seem that
under the present law, the penalty imposed is almost the same as the penalty proposed. In fact, after the application
of the Indeterminate Sentence Law under the existing law, the minimum penalty is still lowered by one degree; hence,
the minimum penalty is arresto mayor in its medium period to maximum period (2 months and 1 day to 6 months),
making the offender qualified for pardon or parole after serving the said minimum period and may even apply for
probation. Moreover, under the proposal, the minimum penalty after applying the Indeterminate Sentence Law is
arresto menor in its maximum period to arresto mayor in its minimum period (21 days to 2 months) is not too far from
the minimum period under the existing law. Thus, it would seem that the present penalty imposed under the law is not
at all excessive. The same is also true in the crime of Estafa. 23
Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in the crime of Theft and the
damage caused in the crime of Estafa, the gap between the minimum and the maximum amounts, which is the basis
of determining the proper penalty to be imposed, would be too wide and the penalty imposable would no longer be
commensurate to the act committed and the value of the thing stolen or the damage caused:
I. Article 309, or the penalties for the crime of Theft, the value would be modified but the penalties are not changed:
1. P12,000.00 to P22,000.00 will become P1,200,000.00 to P2,200,000.00, punished by prision mayor
minimum to prision mayor medium (6 years and 1 day to 10 years).
2. P6,000.00 to P12,000.00 will become P600,000.00 to P1,200,000.00, punished by prision correccional
medium and to prision correccional maximum (2 years, 4 months and 1 day to 6 years). 24
3. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, punishable by prision correccional minimum
to prision correccional medium (6 months and 1 day to 4 years and 2 months).
4. P50.00 to P200.00 will become P5,000.00 to P20,000.00, punishable by arresto mayor medium to prision
correccional minimum (2 months and 1 day to 2 years and 4 months).
5. P5.00 to P50.00 will become P500.00 to P5,000.00, punishable by arresto mayor (1 month and 1 day to 6
months).
6. P5.00 will become P500.00, punishable by arresto mayor minimum to arresto mayor medium.
x x x x.
II. Article 315, or the penalties for the crime of Estafa, the value would also be modified but the penalties are not
changed, as follows:
1st. P12,000.00 to P22,000.00, will become P1,200,000.00 to P2,200,000.00, punishable by prision
correccional maximum to prision mayor minimum (4 years, 2 months and 1 day to 8 years). 25
2nd. P6,000.00 to P12,000.00 will become P600,000.00 to P1,200,000.00, punishable by prision correccional
minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months). 26
3rd. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, punishable by arresto mayor maximum to
prision correccional minimum (4 months and 1 day to 2 years and 4 months).
4th. P200.00 will become P20,000.00, punishable by arresto mayor maximum (4 months and 1 day to 6
months).
An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is that the incremental penalty
provided under Article 315 of the RPC violates the Equal Protection Clause.

The equal protection clause requires equality among equals, which is determined according to a valid classification.
The test developed by jurisprudence here and yonder is that of reasonableness, 27 which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class. 28
According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on substantial distinctions asP10,000.00
may have been substantial in the past, but it is not so today, which violates the first requisite; the IPR was devised so
that those who commit estafa involving higher amounts would receive heavier penalties; however, this is no longer
achieved, because a person who steals P142,000.00 would receive the same penalty as someone who steals hundreds
of millions, which violates the second requisite; and, the IPR violates requisite no. 3, considering that the IPR is limited
to existing conditions at the time the law was promulgated, conditions that no longer exist today.
Assuming that the Court submits to the argument of Dean Diokno and declares the incremental penalty in Article 315
unconstitutional for violating the equal protection clause, what then is the penalty that should be applied in case the
amount of the thing subject matter of the crime exceeds P22,000.00? It seems that the proposition poses more
questions than answers, which leads us even more to conclude that the appropriate remedy is to refer these matters
to Congress for them to exercise their inherent power to legislate laws.
Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional, the remedy is to go to
Congress. Thus:
xxxx
JUSTICE PERALTA:
Now, your position is to declare that the incremental penalty should be struck down as unconstitutional because it is
absurd.
DEAN DIOKNO:
Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.
JUSTICE PERALTA:
Then what will be the penalty that we are going to impose if the amount is more than Twenty-Two Thousand
(P22,000.00) Pesos.
DEAN DIOKNO:
Well, that would be for Congress to ... if this Court will declare the incremental penalty rule unconstitutional, then that
would ... the void should be filled by Congress.
JUSTICE PERALTA:
But in your presentation, you were fixing the amount at One Hundred Thousand (P100,000.00) Pesos ...
DEAN DIOKNO:
Well, my presen ... (interrupted)

JUSTICE PERALTA:
For every One Hundred Thousand (P100,000.00) Pesos in excess of Twenty-Two Thousand (P22,000.00) Pesos you were
suggesting an additional penalty of one (1) year, did I get you right?
DEAN DIOKNO:
Yes, Your Honor, that is, if the court will take the route of statutory interpretation.
JUSTICE PERALTA:
Ah ...
DEAN DIOKNO:
If the Court will say that they can go beyond the literal wording of the law...
JUSTICE PERALTA:
But if we de ... (interrupted)
DEAN DIOKNO:
....then....
JUSTICE PERALTA:
Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court cannot fix the amount ...
DEAN DIOKNO:
No, Your Honor.
JUSTICE PERALTA:
... as the equivalent of one, as an incremental penalty in excess of Twenty-Two Thousand (P22,000.00) Pesos.
DEAN DIOKNO:
No, Your Honor.
JUSTICE PERALTA:
The Court cannot do that.
DEAN DIOKNO:
Could not be.
JUSTICE PERALTA:
The only remedy is to go to Congress...
DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:
... and determine the value or the amount.
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-Two Thousand (P22,000.00)
Pesos.
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
The amount in excess of Twenty-Two Thousand (P22,000.00) Pesos.
Thank you, Dean.
DEAN DIOKNO:
Thank you.
x x x x29
Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and unusual punishment.
Citing Solem v. Helm,30 Dean Diokno avers that the United States Federal Supreme Court has expanded the application
of a similar Constitutional provision prohibiting cruel and unusual punishment, to the duration of the penalty, and not
just its form. The court therein ruled that three things must be done to decide whether a sentence is proportional to a
specific crime, viz.; (1) Compare the nature and gravity of the offense, and the harshness of the penalty; (2) Compare
the sentences imposed on other criminals in the same jurisdiction, i.e., whether more serious crimes are subject to the
same penalty or to less serious penalties; and (3) Compare the sentences imposed for commission of the same crime
in other jurisdictions.
However, the case of Solem v. Helm cannot be applied in the present case, because in Solem what respondent therein
deemed cruel was the penalty imposed by the state court of South Dakota after it took into account the latters
recidivist statute and not the original penalty for uttering a "no account" check. Normally, the maximum punishment
for the crime would have been five years imprisonment and a $5,000.00 fine. Nonetheless, respondent was sentenced
to life imprisonment without the possibility of parole under South Dakotas recidivist statute because of his six prior
felony convictions. Surely, the factual antecedents of Solem are different from the present controversy.
With respect to the crime of Qualified Theft, however, it is true that the imposable penalty for the offense is high.
Nevertheless, the rationale for the imposition of a higher penalty against a domestic servant is the fact that in the
commission of the crime, the helper will essentially gravely abuse the trust and confidence reposed upon her by her
employer. After accepting and allowing the helper to be a member of the household, thus entrusting upon such person
the protection and safekeeping of the employers loved ones and properties, a subsequent betrayal of that trust is so
repulsive as to warrant the necessity of imposing a higher penalty to deter the commission of such wrongful acts.

There are other crimes where the penalty of fine and/or imprisonment are dependent on the subject matter of the
crime and which, by adopting the proposal, may create serious implications. For example, in the crime of Malversation,
the penalty imposed depends on the amount of the money malversed by the public official, thus:
Art. 217. Malversation of public funds or property; Presumption of malversation. Any public officer who, by reason of
the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or
misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such
public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of
such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two
hundred pesos but does not exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the
amount involved is more than six thousand pesos but is less than twelve thousand pesos.
4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount involved is more than
twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the
penalty shall be reclusion temporal in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine
equal to the amount of the funds malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon
demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to
personal use.
The above-provisions contemplate a situation wherein the Government loses money due to the unlawful acts of the
offender. Thus, following the proposal, if the amount malversed is P200.00 (under the existing law), the amount now
becomes P20,000.00 and the penalty is prision correccional in its medium and maximum periods (2 years 4 months
and 1 day to 6 years). The penalty may not be commensurate to the act of embezzlement of P20,000.00 compared to
the acts committed by public officials punishable by a special law, i.e., Republic Act No. 3019 or the Anti-Graft and
Corrupt Practices Act, specifically Section 3,31 wherein the injury caused to the government is not generally defined by
any monetary amount, the penalty (6 years and 1 month to 15 years) 32 under the Anti-Graft Law will now become
higher. This should not be the case, because in the crime of malversation, the public official takes advantage of his
public position to embezzle the fund or property of the government entrusted to him.
The said inequity is also apparent in the crime of Robbery with force upon things (inhabited or uninhabited) where the
value of the thing unlawfully taken and the act of unlawful entry are the bases of the penalty imposable, and also, in
Malicious Mischief, where the penalty of imprisonment or fine is dependent on the cost of the damage caused.
In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the thing unlawfully taken, as
proposed in the ponencia, the sole basis of the penalty will now be the value of the thing unlawfully taken and no
longer the element of force employed in entering the premises. It may likewise cause an inequity between the crime of
Qualified Trespass to Dwelling under Article 280, and this kind of robbery because the former is punishable by prision
correccional in its medium and maximum periods (2 years, 4 months and 1 day to 6 years) and a fine not
exceeding P1,000.00 (P100,000.00 now if the ratio is 1:100) where entrance to the premises is with violence or
intimidation, which is the main justification of the penalty. Whereas in the crime of Robbery with force upon things, it is
punished with a penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is unarmed without the penalty
of Fine despite the fact that it is not merely the illegal entry that is the basis of the penalty but likewise the unlawful
taking.
Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can be imposed is arresto
mayor in its medium and maximum periods (2 months and 1 day to 6 months) if the value of the damage caused
exceeds P1,000.00, but under the proposal, the value of the damage will now become P100,000.00 (1:100), and still

punishable by arresto mayor (1 month and 1 day to 6 months). And, if the value of the damaged property does not
exceed P200.00, the penalty is arresto menor or a fine of not less than the value of the damage caused and not more
than P200.00, if the amount involved does not exceed P200.00 or cannot be estimated. Under the proposal, P200.00
will now become P20,000.00, which simply means that the fine of P200.00 under the existing law will now
become P20,000.00. The amount of Fine under this situation will now become excessive and afflictive in nature despite
the fact that the offense is categorized as a light felony penalized with a light penalty under Article 26 of the
RPC.33 Unless we also amend Article 26 of the RPC, there will be grave implications on the penalty of Fine, but
changing the same through Court decision, either expressly or impliedly, may not be legally and constitutionally
feasible.
There are other crimes against property and swindling in the RPC that may also be affected by the proposal, such as
those that impose imprisonment and/or Fine as a penalty based on the value of the damage caused, to wit: Article 311
(Theft of the property of the National Library and National Museum), Article 312 (Occupation of real property or
usurpation of real rights in property), Article 313 (Altering boundaries or landmarks), Article 316 (Other forms of
swindling), Article 317 (Swindling a minor), Article 318 (Other deceits), Article 328 (Special cases of malicious mischief)
and Article 331 (Destroying or damaging statues, public monuments or paintings). Other crimes that impose Fine as a
penalty will also be affected, such as: Article 213 (Frauds against the public treasury and similar offenses), Article 215
(Prohibited Transactions),
Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure of accountable officer to render
accounts), Article 219 (Failure of a responsible public officer to render accounts before leaving the country).
In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes which are punishable by
special penal laws, such as Illegal Logging or Violation of Section 68 of Presidential Decree No. 705, as amended. 34 The
law treats cutting, gathering, collecting and possessing timber or other forest products without license as an offense as
grave as and equivalent to the felony of qualified theft. 35 Under the law, the offender shall be punished with the
penalties imposed under Articles 309 and 310 36 of the Revised Penal Code, which means that the penalty imposable for
the offense is, again, based on the value of the timber or forest products involved in the offense. Now, if we accept the
said proposal in the crime of Theft, will this particular crime of Illegal Logging be amended also in so far as the penalty
is concerned because the penalty is dependent on Articles 309 and 310 of the RPC? The answer is in the negative
because the soundness of this particular law is not in question.
With the numerous crimes defined and penalized under the Revised Penal Code and Special Laws, and other related
provisions of these laws affected by the proposal, a thorough study is needed to determine its effectivity and necessity.
There may be some provisions of the law that should be amended; nevertheless, this Court is in no position to
conclude as to the intentions of the framers of the Revised Penal Code by merely making a study of the applicability of
the penalties imposable in the present times. Such is not within the competence of the Court but of the Legislature
which is empowered to conduct public hearings on the matter, consult legal luminaries and who, after due
proceedings, can decide whether or not to amend or to revise the questioned law or other laws, or even create a new
legislation which will adopt to the times.
Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code. During the oral
arguments, counsel for the Senate informed the Court that at present, fifty-six (56) bills are now pending in the Senate
seeking to amend the Revised Penal Code,37 each one proposing much needed change and updates to archaic laws
that were promulgated decades ago when the political, socio-economic, and cultural settings were far different from
todays conditions.
Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp legislative
powers by judicial legislation and that in the course of such application or construction, it should not make or supervise
legislation, or under the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite the law, or give the
law a construction which is repugnant to its terms. 38 The Court should apply the law in a manner that would give effect
to their letter and spirit, especially when the law is clear as to its intent and purpose. Succinctly put, the Court should
shy away from encroaching upon the primary function of a co-equal branch of the Government; otherwise, this would
lead to an inexcusable breach of the doctrine of separation of powers by means of judicial legislation.
Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it can be increased by the
Court when appropriate. Article 2206 of the Civil Code provides:

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos,
even though there may have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall
be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court,
unless the deceased on account of permanent physical disability not caused by the defendant, had no earning
capacity at the time of his death;
(2) If the deceased was obliged to give support according to the provisions of Article 291, the recipient who is
not an heir called to the decedent's inheritance by the law of testate or intestate succession, may demand
support from the person causing the death, for a period not exceeding five years, the exact duration to be
fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral
damages for mental anguish by reason of the death of the deceased.
In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or compensation
to the victim for the damage or infraction that was done to the latter by the accused, which in a sense only covers the
civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a person dies, in addition to the penalty of
imprisonment imposed to the offender, the accused is also ordered to pay the victim a sum of money as restitution.
Clearly, this award of civil indemnity due to the death of the victim could not be contemplated as akin to the value of a
thing that is unlawfully taken which is the basis in the imposition of the proper penalty in certain crimes. Thus, the
reasoning in increasing the value of civil indemnity awarded in some offense cannot be the same reasoning that would
sustain the adoption of the suggested ratio. Also, it is apparent from Article 2206 that the law only imposes a minimum
amount for awards of civil indemnity, which is P3,000.00. The law did not provide for a ceiling. Thus, although the
minimum amount for the award cannot be changed, increasing the amount awarded as civil indemnity can be validly
modified and increased when the present circumstance warrants it. Corollarily, moral damages under Article 2220 39 of
the Civil Code also does not fix the amount of damages that can be awarded. It is discretionary upon the court,
depending on the mental anguish or the suffering of the private offended party. The amount of moral damages can, in
relation to civil indemnity, be adjusted so long as it does not exceed the award of civil indemnity.
In addition, some may view the penalty provided by law for the offense committed as tantamount to cruel punishment.
However, all penalties are generally harsh, being punitive in nature. Whether or not they are excessive or amount to
cruel punishment is a matter that should be left to lawmakers. It is the prerogative of the courts to apply the law,
especially when they are clear and not subject to any other interpretation than that which is plainly written.
Similar to the argument of Dean Diokno, one of Justice Antonio Carpios opinions is that the incremental penalty
provision should be declared unconstitutional and that the courts should only impose the penalty corresponding to the
amount of P22,000.00, regardless if the actual amount involved exceeds P22,000.00. As suggested, however, from
now until the law is properly amended by Congress, all crimes of Estafa will no longer be punished by the appropriate
penalty. A conundrum in the regular course of criminal justice would occur when every accused convicted of the crime
of estafa will be meted penalties different from the proper penalty that should be imposed. Such drastic twist in the
application of the law has no legal basis and directly runs counter to what the law provides.
It should be noted that the death penalty was reintroduced in the dispensation of criminal justice by the Ramos
Administration by virtue of Republic Act No. 765940 in December 1993. The said law has been questioned before this
Court. There is, arguably, no punishment more cruel than that of death. Yet still, from the time the death penalty was
re-imposed until its lifting in June 2006 by Republic Act No. 9346, 41 the Court did not impede the imposition of the
death penalty on the ground that it is a "cruel punishment" within the purview of Section 19 (1), 42Article III of the
Constitution. Ultimately, it was through an act of Congress suspending the imposition of the death penalty that led to
its non-imposition and not via the intervention of the Court.
Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the provision of the law from
which the proper penalty emanates unconstitutional in the present action. Not only is it violative of due process,
considering that the State and the concerned parties were not given the opportunity to comment on the subject
matter, it is settled that the constitutionality of a statute cannot be attacked collaterally because constitutionality
issues must be pleaded directly and not collaterally, 43 more so in the present controversy wherein the issues never
touched upon the constitutionality of any of the provisions of the Revised Penal Code.

Besides, it has long been held that the prohibition of cruel and unusual punishments is generally aimed at the form or
character of the punishment rather than its severity in respect of duration or amount, and applies to punishments
which public sentiment has regarded as cruel or obsolete, for instance, those inflicted at the whipping post, or in the
pillory, burning at the stake, breaking on the wheel, disemboweling, and the like. Fine and imprisonment would not
thus be within the prohibition.44
It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the
Constitution. The fact that the punishment authorized by the statute is severe does not make it cruel and unusual.
Expressed in other terms, it has been held that to come under the ban, the punishment must be "flagrantly and plainly
oppressive," "wholly disproportionate to the nature of the offense as to shock the moral sense of the community." 45
Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to our modern time.
The solution to the present controversy could not be solved by merely adjusting the questioned monetary values to
the present value of money based only on the current inflation rate. There are other factors and variables that need to
be taken into consideration, researched, and deliberated upon before the said values could be accurately and properly
adjusted. The effects on the society, the injured party, the accused, its socio-economic impact, and the likes must be
painstakingly evaluated and weighed upon in order to arrive at a wholistic change that all of us believe should be
made to our existing law. Dejectedly, the Court is ill-equipped, has no resources, and lacks sufficient personnel to
conduct public hearings and sponsor studies and surveys to validly effect these changes in our Revised Penal Code.
This function clearly and appropriately belongs to Congress. Even Professor Tadiar concedes to this conclusion, to wit:
xxxx
JUSTICE PERALTA:
Yeah, Just one question. You are suggesting that in order to determine the value of Peso you have to take into
consideration several factors.
PROFESSOR TADIAR:
Yes.
JUSTICE PERALTA:
Per capita income.
PROFESSOR TADIAR:
Per capita income.
JUSTICE PERALTA:
Consumer price index.
PROFESSOR TADIAR:
Yeah.
JUSTICE PERALTA:
Inflation ...
PROFESSOR TADIAR:
Yes.

JUSTICE PERALTA:
... and so on. Is the Supreme Court equipped to determine those factors?
PROFESSOR TADIAR:
There are many ways by which the value of the Philippine Peso can be determined utilizing all of those economic
terms.
JUSTICE PERALTA:
Yeah, but ...
PROFESSOR TADIAR:
And I dont think it is within the power of the Supreme Court to pass upon and peg the value to One Hundred (P100.00)
Pesos to ...
JUSTICE PERALTA:
Yeah.
PROFESSOR TADIAR:
... One (P1.00.00) Peso in 1930.
JUSTICE PERALTA:
That is legislative in nature.
PROFESSOR TADIAR:
That is my position that the Supreme Court ...
JUSTICE PERALTA:
Yeah, okay.
PROFESSOR TADIAR:
... has no power to utilize the power of judicial review to in order to adjust, to make the adjustment that is a power that
belongs to the legislature.
JUSTICE PERALTA:
Thank you, Professor.
PROFESSOR TADIAR:
Thank you.46
Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view that the role of the Court is
not merely to dispense justice, but also the active duty to prevent injustice. Thus, in order to prevent injustice in the
present controversy, the Court should not impose an obsolete penalty pegged eighty three years ago, but consider the

proposed ratio of 1:100 as simply compensating for inflation. Furthermore, the Court has in the past taken into
consideration "changed conditions" or "significant changes in circumstances" in its decisions.
Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the substance of a statute. The
issue is no different from the Courts adjustment of indemnity in crimes against persons, which the Court had
previously adjusted in light of current times, like in the case of People v. Pantoja. 47 Besides, Article 10 of the Civil Code
mandates a presumption that the lawmaking body intended right and justice to prevail.
With due respect to the opinions and proposals advanced by the Chief Justice and my Colleagues, all the proposals
ultimately lead to prohibited judicial legislation. Short of being repetitious and as extensively discussed above, it is
truly beyond the powers of the Court to legislate laws, such immense power belongs to Congress and the Court should
refrain from crossing this clear-cut divide. With regard to civil indemnity, as elucidated before, this refers to civil
liability which is awarded to the offended party as a kind of monetary restitution. It is truly based on the value of
money. The same cannot be said on penalties because, as earlier stated, penalties are not only based on the value of
money, but on several other factors. Further, since the law is silent as to the maximum amount that can be awarded
and only pegged the minimum sum, increasing the amount granted as civil indemnity is not proscribed. Thus, it can be
adjusted in light of current conditions.
Now, with regard to the penalty imposed in the present case, the CA modified the ruling of the RTC. The RTC imposed
the indeterminate penalty of four (4) years and two (2) months of prision correccional in its medium period, as
minimum, to fourteen (14) years and eight (8) months of reclusion temporal in its minimum period, as maximum.
However, the CA imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional, as
minimum, to eight (8) years of prision mayor, as maximum, plus one (1) year for each additionalP10,000.00, or a total
of seven (7) years.
In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v. People 48 is highly instructive, thus:
With respect to the imposable penalty, Article 315 of the Revised Penal Code provides:
ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the means mentioned hereinbelow 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 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 case, 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.
The penalty prescribed by Article 315 is composed of only two, not three, periods, in which case, Article 65 of the same
Code requires the division of the time included in the penalty into three equal portions of time included in the penalty
prescribed, forming one period of each of the three portions. Applying the latter provisions, the maximum, medium
and minimum periods of the penalty prescribed are:
Maximum - 6 years, 8 months, 21 days to 8 years
Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days
Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days 49
To compute the maximum period of the prescribed penalty, prisin correccional maximum to prisin mayor minimum
should be divided into three equal portions of time each of which portion shall be deemed to form one period in
accordance with Article 6550 of the RPC.51 In the present case, the amount involved is P98,000.00, which
exceeds P22,000.00, thus, the maximum penalty imposable should be within the maximum period of 6 years, 8
months and 21 days to 8 years of prision mayor. Article 315 also states that a period of one year shall be added to the
penalty for every additional P10,000.00 defrauded in excess of P22,000.00, but in no case shall the total penalty which
may be imposed exceed 20 years.

Considering that the amount of P98,000.00 is P76,000.00 more than the P22,000.00 ceiling set by law, then, adding
one year for each additional P10,000.00, the maximum period of 6 years, 8 months and 21 days to 8 years of prision
mayor minimum would be increased by 7 years. Taking the maximum of the prescribed penalty, which is 8 years, plus
an additional 7 years, the maximum of the indeterminate penalty is 15 years.
Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa charge against petitioner
is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional
in its minimum and medium periods.
Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months and 1 day to 4 years and 2
months.
One final note, the Court should give Congress a chance to perform its primordial duty of lawmaking. The Court should
not pre-empt Congress and usurp its inherent powers of making and enacting laws. While it may be the most
expeditious approach, a short cut by judicial fiat is a dangerous proposition, lest the Court dare trespass on prohibited
judicial legislation.
WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito Corpuz is hereby DENIED.
Consequently, the Decision dated March 22, 2007 and Resolution dated September 5, 2007 of the Court of Appeals,
which affirmed with modification the Decision dated July 30, 2004 of the Regional Trial Court, Branch 46, San Fernando
City, finding petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315, paragraph (1), subparagraph (b) of the Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the penalty imposed is the
indeterminate penalty of imprisonment ranging from THREE (3) YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision
correccional, as minimum, to FIFTEEN (15) YEARS of reclusion temporal as maximum.
Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished the President of the Republic of
the Philippines, through the Department of Justice.
Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the House of
Representatives.
SO ORDERED.

G.R. Nos. 119987-88 October 12, 1995

THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. LORENZO B. VENERACION, Presiding Judge of the Regional Trial Court, National Capital Judicial
Region, Branch 47, Manila, HENRY LAGARTO y PETILLA and ERNESTO CORDERO, respondents.

KAPUNAN, J.:
The sole issue in the case at bench involves a question of law. After finding that an accused individual in a criminal
case has, on the occasion of Rape, committed Homicide, is the judge allowed any discretion in imposing either the
penalty of Reclusion Perpetua or Death?
The facts antecedent to the case before this Court, as narrated by petitioner, 1 involve the perpetration of acts so
bizarre and devoid of humanity as to horrify and numb the senses of all civilized men:
On August 2, 1994, the cadaver of a young girl, later identified as Angel Alquiza wrapped in a sack and
yellow table cloth tied with a nylon cord with both feet and left hand protruding from it was seen
floating along Del Pan St. near the corner of Lavesares St., Binondo, Manila.
When untied and removed from its cover, the lifeless body of the victim was seen clad only in a light
colored duster without her panties, with gaping wounds on the left side of the face, the left chin, left
ear, lacerations on her genitalia, and with her head bashed in.
On the basis of sworn statements of witnesses, booking sheets, arrest reports and the necropsy report of the victim,
Abundio Lagunday, a.k.a. Jr. Jeofrey of no fixed address, and Henry Lagarto y Petilla, of 288 Area H. Parola Compound,
Tondo, Manila were later charged with the crime of Rape with Homicide in an Information dated August 8, 1994 filed
with the Regional Trial Court of Manila, National Capital Judicial Region. Said Information, docketed as Criminal Case
No. 94-138071, reads:
That on or about August 2, 1994, in the City of Manila, Philippines, the said accused, conspiring and
confederating together with one alias "LANDO" and other persons whose true names, identifies and
present whereabouts are still unknown and helping one another, with treachery, taking advantage of
their superior strength and nocturnity, and ignominy, and with the use of force and violence, that is, by
taking ANGEL ALQUIZA y LAGMAN into a warehouse, covering her mouth, slashing her vagina, hitting
her head with a thick piece of wood and stabbing her neck did then and there wilfully, unlawfully and
feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y LAGMAN, a minor, seven (7)
years of age, against the latter's will and consent and on said occasion the said ABUNDIO LAGUNDAY,
a.k.a. "LANDO" and others, caused her fatal injuries which were the direct cause of her death
immediately thereafter.
CONTRARY TO LAW.
Subsequently thereafter, Ernesto Cordero y Maristela, a.k.a. "Booster," of 1198 Sunflower St., Tondo,
Manila, Rolando Manlangit y Mamerta, a.k.a. "Lando," of 1274 Kagitingan St., Tondo, Manila, Richard
Baltazar y Alino, a.k.a. "Curimao," also of 1274 Kagitingan St., Tondo, Manila, and Catalino Yaon y
Aberin, a.k.a. "Joel," of 1282 Lualhati St., Tondo, Manila were accused of the same crime of Rape with
Homicide in an Information dated August 11, 1994, docketed as Criminal Case No. 94-138138,
allegedly committed as follows:
That on or about the 2nd day of August, 1994, in the City of Manila, Philippines, the
said accused conspiring and confederating with ABUNDIO LAGUNDAY Alias "JR,"
JEOFREY and HENRY LAGARTO y PETILLA who have already been charged in the
Regional Trial Court of Manila of the same offense under Criminal Case No. 94-138071,
and helping one another, with treachery, taking advantage of their superior strength

and nocturnity and ignominy, and with the use of force and violence, that is, by taking
ANGEL ALQUIZA y LAGMAN into a pedicab, and once helpless, forcibly bringing her to a
nearby warehouse, covering her mouth, slashing her vagina, hitting her head with a
thick piece of wood and stabbing her neck, did then and there wilfully, unlawfully and
feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y LAGMAN, a
minor, seven (7) years of age, against the latter's will and consent and on said
occasion the said accused together with their confederates ABUNDIO LAGARTO y
PETILLA caused her fatal injuries which were the direct cause of her death immediately
thereafter.
CONTRARY TO LAW.
The two criminal cases were consolidated to Branch 47 of the Regional Trial Court of Manila, presided
over by respondent Judge.
Duly arraigned, all the accused, except Abundio Lagunday who was already dead, (allegedly shot by
police escorts after attempting to fire a gun he was able to grab from SPO1 D. Vidad on August 12,
1994), pleaded "Not Guilty." Abundio Lagunday was dropped from the Information.
After trial and presentation of the evidence of the prosecution and the defense, the trial court rendered a decision 2on
January 31, 1995 finding the defendants Henry Lagarto y Petilla and Ernesto Cordero y Maristela guilty beyond
reasonable doubt of the crime of Rape with Homicide and sentenced both accused with the "penalty of reclusion
perpetuawith all the accessories provided for by law." 3 Disagreeing with the sentence imposed, the City Prosecutor of
Manila on February 8, 1995, filed a Motion for Reconsideration, praying that the Decision be "modified in that the
penalty of death be imposed" against respondents Lagarto and Cordero, in place of the original penalty (reclusion
perpetua). Refusing to act on the merits of the said Motion for Reconsideration, respondent Judge, on February 10,
1995, issued an Order denying the same for lack of jurisdiction. The pertinent portion reads:
The Court believes that in the above-entitled cases, the accused Lagarto and Cordero have complied
with the legal requirements for the perfection of an appeal. Consequently, for lack of jurisdiction, this
Court cannot take cognizance of the Motion for Reconsideration of the Public Prosecutor of Manila.
WHEREFORE, the order earlier issued by this Court regarding the Notices of Appeal filed by both herein
accused is hereby reiterated.
The Clerk of this Court is hereby directed to transmit the complete records of these cases, together
with the notices of appeal, to the Honorable Supreme Court, in accordance with Sec. 8, Rule 122 of the
Revised Rules of Criminal Procedure.
SO ORDERED.
Hence, the instant petition.
The trial court's finding of guilt is not at issue in the case at bench. The basis of the trial court's determination of guilt
and its conclusions will only be subject to our scrutiny at an appropriate time on appeal. We have thus clinically limited
our narration of events to those cold facts antecedent to the instant case relevant to the determination of the legal
question at hand, i.e., whether or not the respondent judge acted with grave abuse of discretion and in excess of
jurisdiction when he failed and/or refused to impose the mandatory penalty of death under Republic Act No. 7659,
after finding the accused guilty of the crime of Rape with Homicide.
We find for petitioner.
Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of religious or
political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise
the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of
broad discretionary powers by those acting under its authority. Under this system, judges are guided by the Rule of

Law, and ought "to protect and enforce it without fear or favor," 4 resist encroachments by governments, political
parties, 5 or even the interference of their own personal beliefs.
In the case at bench, respondent judge, after weighing the evidence of the prosecution and the defendant at trial
found the accused guilty beyond reasonable doubt of the crime of Rape with Homicide. Since the law in force at the
time of the commission of the crime for which respondent judge found the accused guilty was Republic Act No. 7659,
he was bound by its provisions.
Section 11 of R.A. No. 7659 provides:
Sec. 11. Article 335 of the same Code is hereby amended to read as follows:
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 or is demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be
death.
When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion
thereof, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. . .
.6
Clearly, under the law, the penalty imposable for the crime of Rape with Homicide is not Reclusion Perpetua but Death.
While Republic Act 7659 punishes cases of ordinary rape with the penalty of Reclusion Perpetua, it allows judges the
discretion depending on the existence of circumstances modifying the offense committed to impose the penalty
of either Reclusion Perpetua only in the three instances mentioned therein. Rape with homicide is not one of these
three instances. The law plainly and unequivocably provides that "[w]hen by reason or on the occasion of rape, a
homicide is committed, the penalty shall be death." The provision leaves no room for the exercise of discretion on the
part of the trial judge to impose a penalty under the circumstances described, other than a sentence of death.
We are aware of the trial judge's misgivings in imposing the death sentence because of his religious convictions. While
this Court sympathizes with his predicament, it is its bounden duty to emphasize that a court of law is no place for a
protracted debate on the morality or propriety of the sentence, where the law itself provides for the sentence of death
as a penalty in specific and well-defined instances. The discomfort faced by those forced by law to impose the death
penalty is an ancient one, but it is a matter upon which judges have no choice. Courts are not concerned with the
wisdom, efficacy or morality of laws. In People vs. Limaco 7 we held that:
[W]hen . . . private opinions not only form part of their decision but constitute a decisive factor in
arriving at a conclusion and determination of a case or the penalty imposed, resulting in an illegality
and reversible error, then we are constrained to state our opinion, not only to correct the error but for
the guidance of the courts. We have no quarrel with the trial judge or with anyone else, layman or
jurist as to the wisdom or folly of the death penalty. Today there are quite a number of people who
honestly believe that the supreme penalty is either morally wrong or unwise or ineffective. However,as
long as that penalty remains in the statute books, and as long as our criminal law provides for its

imposition in certain cases, it is the duty of judicial officers to respect and apply the law regardless of
their private opinions. It is a well settled rule that the courts are not concerned with the wisdom,
efficacy or morality of laws. That question falls exclusively within the province of the Legislature which
enacts them and the Chief Executive who approves or vetoes them. The only function of the judiciary
is to interpret the laws and, if not in disharmony with the Constitution, to apply them. And for the
guidance of the members of the judiciary we feel it incumbent upon us to state that while they as
citizens or as judges may regard a certain law as harsh, unwise or morally wrong, and may recommend
to the authority or department concerned, its amendment, modification, or repeal, still, as long as said
law is in force, they must apply it and give it effect as decreed by the law-making body. 8
Finally, the Rules of Court mandates that after an adjudication of guilt, the judge should impose "the proper penalty
and civil liability provided for by the law on the accused." 9 This is not a case of a magistrate ignorant of the law. This is
a case in which a judge, fully aware of the appropriate provisions of the law, refuses to impose a penalty to which he
disagrees. In so doing, respondent judge acted without or in excess of his jurisdiction or with grave abuse of discretion
amounting to a lack of jurisdiction in imposing the penalty of Reclusion Perpetua where the law clearly imposes the
penalty of Death.
WHEREFORE, PREMISES CONSIDERED, the instant petition is GRANTED. The case is hereby REMANDED to the Regional
Trial Court for the imposition of the penalty of death upon private respondents in consonance with respondent judge's
finding that the private respondents in the instant case had committed the crime of Rape with Homicide under Article
335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659, subject to automatic review by
this Court of the decision imposing the death penalty.
SO ORDERED.

G.R. No. 95322 March 1, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PABLITO DOMASIAN AND DR. SAMSON TAN, accused-appellant.
The Solicitor General for plaintiff-appellee.
Silvestre L. Tagarao for appellant Pablito Domasian.
Lino M. Patajo for appellant Dr. Samson Tan.
CRUZ, J.:
The boy was detained for only about three hours and was released even before his parents received the ransom note.
But it spawned a protracted trial spanning all of 8 years and led to the conviction of the two accused. 1
The victim was Enrico Paulo Agra, who was 8 years old at the time of the incident in question. The accused were
Pablito Domasian and Samson Tan, the latter then a resident physician in the hospital owned by Enrico's parents. They
were represented by separate lawyers at the trial and filed separate briefs in this appeal.
The evidence of the prosecution showed that in the morning of March 11, 1982, while Enrico was walking with a
classmate along Roque street in the poblacion of Lopez, Quezon, he was approached by a man who requested his
assistance in getting his father's signature on a medical certificate. Enrico agreed to help and rode with the man in a
tricycle to Calantipayan, where he waited outside while the man went into a building to get the certificate. Enrico
became apprehensive and started to cry when, instead of taking him to the hospital, the man flagged a minibus and
forced him inside, holding him firmly all the while. The man told him to stop crying or he would not be returned to his
father. When they alighted at Gumaca, they took another tricycle, this time bound for the municipal building from
where they walked to the market. Here the man talked to a jeepney driver and handed him an envelope addressed to
Dr. Enrique Agra, the boy's father. The two then boarded a tricycle headed for San Vicente, with the man still firmly
holding Enrico, who continued crying. This aroused the suspicion of the driver, Alexander Grate, who asked the man
about his relationship with the boy. The man said he and the boy were brothers, making Grate doubly suspicious
because of the physical differences between the two and the wide gap between their ages. Grate immediately
reported the matter to two barangay tanods when his passengers alighted from the tricycle. Grate and
the tanods went after the two and saw the man dragging the boy. Noticing that they were being pursued, the man told
Enrico to run fast as their pursuers might behead them. Somehow, the man managed to escape, leaving Enrico
behind. Enrico was on his way home in a passenger jeep when he met his parents, who were riding in the hospital
ambulance and already looking for him. 2
At about 1:45 in the afternoon of the same day, after Enrico's return, Agra received an envelope containing a ransom
note. The note demanded P1 million for the release of Enrico and warned that otherwise the boy would be killed. Agra
thought the handwriting in the note was familiar. After comparing it with some records in the hospital, he gave the
note to the police, which referred it to the NBI for examination. 3
The test showed that it bad been written by Dr. Samson Tan. 4 On the other hand, Enrico was shown a folder of pictures
in the police station so be could identify the man who had detained him, and he pointed to the picture of Pablito
Domasian. 5 Domasian and Tan were subsequently charged with the crime of kidnapping with serious illegal detention
in the Regional Trial Court of Quezon. 6
The defense of both accused was denial and alibi. Domasian claimed that at the time of the incident he was watching
a mahjong game in a friend's house and later went to an optical clinic with his wife for the refraction of his
eyeglasses. 7 Dr. Tan for his part said he was in Manila. 8
After trial Judge Enrico A. Lanzanas found both accused guilty as charged and sentenced them to suffer the penalty
of reclusion perpetua and all accessory penalties. They were also required to pay P200,000.00 to Dr. and Mrs. Enrique
Agra as actual and moral damages and attorney's fees.

In the present appeal, the accused-appellants reiterate their denial of any participation in the incident in question.
They belittle the credibility of the prosecution witnesses and submit that their own witnesses are more believable. Tan
specifically challenges the findings of the NBI and offers anew the opposite findings of the PC/INP showing that he was
not the writer of the ransom note. He maintains that in any case, the crime alleged is not kidnapping with serious
illegal detention as no detention in an enclosure was involved. If at all, it should be denominated and punished only as
grave coercion. Finally, both Domasian and Tan insist that there is no basis for the finding of a conspiracy between
them to make them criminally liable in equal degree.
First, on the credibility of the witnesses. This is assessed in the first instance by the trial judge, whose finding in this
regard is received with much respect by the appellate court because of his opportunity to directly observe the
demeanor of the witnesses on the stand.
In the case at bar, Judge Lanzanas relied heavily on the testimony of the victim himself, who positively identified
Domasian as the person who detained him for three hours. The trial court observed that the boy was "straight-forward,
natural and consistent" in the narration of his detention. The boy's naivete made him even more believable. Tirso
Ferreras, Enrico's classmate and also his age, pointed to Domasian with equal certainty, as the man who approached
Enrico when they were walking together that morning of March 11, 1982. Grate, the tricycle driver who suspected
Enrico's companion and later chased him, was also positive in identifying Domasian. All these three witnesses did not
know Domasian until that same morning and could have no ill motive in testifying against him. By contrast, Eugenia
Agtay, who testified for the defense, can hardly be considered a disinterested witness because she admitted she had
known Domasian for 3 years.
The defense asks why Domasian openly took Enrico to several public places if the intention was to kidnap and detain
him. That is for Domasian himself to answer. We do no have to probe the reasons for the irrational conduct of an
accused. The more important question, as we see it, is why Domasian detained Enrico in the first place after
pretending he needed the boy's help. That is also for Domasian to explain. As for Enrico's alleged willingness to go
with Domasian, this was manifested only at the beginning, when he believed the man sincerely needed his assistance.
But he was soon disabused. His initial confidence gave way to fear when Domasian, after taking him so far away from
the hospital where he was going, restrained and threatened him if he did not stop crying.
Domasian's alibi cannot stand against his positive identification by Enrico, Grate and Ferreras, let alone the
contradictions made by his corroborating witness, Dr. Irene Argosino, regarding the time he was in the optical clinic
and the manner of his payment for the refraction. 9 Tan's alibi is not convincing either. The circumstance that he may
have been in Manila at the time of the incident does not prove that he could not have written the ransom note except
at that time.
Concerning the note, Rule 132, Section 22, of the Rules of Court provides as follows:
The handwriting of a person may be proved by any witness who believes it to be the handwriting of
such person and has seen the person write, or has seen writing purporting to be his upon which the
witness has acted or been charged and has thus acquired knowledge of the handwriting of such
person. Evidence respecting the handwriting may also be given by a comparison, made by the witness
or the court with writings admitted or treated as genuine by the party against whom the evidence is
offered or proved to be genuine to the satisfaction of the judge.
Two expert witnesses were presented in the case at bar, one from the NBI, 10 who opined that the ransom note and the
standard documents were written by one and the same person, and another from the PC/INP 11 who expressed a
contrary conclusion. The trial court chose to believe the NBI expert because his examination and analysis "was more
comprehensive than the one conducted by the PC/INP handwriting expert, who virtually limited his reliance on the
perceived similarities and dissimilarities in the pattern and style of the writing, thereby disregarding the basic principle
in handwriting identification that it is not the form alone nor anyone feature but rather a combination of all the
qualities that identify."
We have held that the value of the opinion of a handwriting expert depends not upon his mere statements of whether
a writing is genuine or false, but upon the assistance he may afford in pointing out distinguishing marks,
characteristics and discrepancies in and between genuine and false specimens of writing which would ordinarily
escape notice or detection from an unpracticed observer. 12 The test of genuineness ought to be the resemblance, not
the formation of letters in some other specimens but to the general character of writing, which is impressed on it as

the involuntary and unconscious result

of constitution, habit or other permanent course, and is, therefore itself permanent.

13

Presented with the conflicting opinions of the witnesses in the case at bar, the Court feels that the scales should tilt in
favor of the prosecution. Significantly, the NBI opinion was bolstered by the testimony of Agra, who believed that the
ransom note was written by Tan, with whose handwriting he was familiar because they had been working in the
hospital for four years and he had seen that handwriting every day in Tan's prescriptions and daily reports. 14
Cesar v. Sandiganbayan 15 is not applicable because that case involved a forgery or the deliberate imitation of another
person's signature. In the case before us, there was in fact an effort to disguise the ransom note writer's penmanship
to prevent his discovery.
As for the nature of the crime committed, Article 267 of the Revised Penal Code provides as follows:
Art. 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or detain
another, or in any manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to
death:
1. If the kidnapping or detention shall have lasted more than five 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; of if
threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, 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 abovementioned were present in the commission of the offense.
Contrary to Tan's submission, this crime may consist not only in placing a person in an enclosure but also in detaining
him or depriving him in any manner of his liberty. 16 In the case at bar, it is noted that although the victim was not
confined in an enclosure, he was deprived of his liberty when Domasian restrained him from going home and dragged
him first into the minibus that took them to the municipal building in Gumaca, thence to the market and then into the
tricycle bound for San Vicente. The detention was committed by Domasian, who was a private individual, and Enrico
was a minor at that time. The crime clearly comes under Par. 4 of the above-quoted article.
Tan claims that the lower court erred in not finding that the sending of the ransom note was an impossible crime which
he says is not punishable. His reason is that the second paragraph of Article 4 of the Revised Penal Code provides that
criminal liability shall be incurred "by any person performing an act which would be an offense against persons or
property, were it not for the inherent impossibility of its accomplishment or on account of the employment of
inadequate or ineffectual means." As the crime alleged is not against persons or property but against liberty, he
argues that it is not covered by the said provision.
Tan conveniently forgets the first paragraphs of the same article, which clearly applies to him, thus:
Art. 4. Criminal liability. Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act done be different from that
which he intended.
xxx xxx xxx
Even before the ransom note was received, the crime of kidnapping with serious illegal detention had already been
committed. The act cannot be considered an impossible crime because there was no inherent improbability of its
accomplishment or the employment of inadequate or ineffective means. The delivery of the ransom note after the

rescue of the victim did not extinguish the offense, which had already been consummated when Domasian deprived
Enrico of his liberty. The sending of the ransom note would have had the effect only of increasing the penalty to death
under the last paragraph of Article 267 although this too would not have been possible under the new Constitution.
On the issue of conspiracy, we note first that it exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it, whether they act through physical volition of one or all, proceeding
severally or collectively. 17
It is settled that conspiracy can be inferred from and proven by the acts of the accused themselves when said acts
point to a joint purpose and design, concerted action and community of interests. 18 In the instant case, the trial court
correctly held that conspiracy was proved by the act of Domasian in detaining Enrico; the writing of the ransom note
by Tan; and its delivery by Domasian to Agra. These acts were complementary to each other and geared toward the
attainment of the common ultimate objective, viz., to extort the ransom of P1 million in exchange for Enrico's life.
The motive for the offense is not difficult to discover. According to Agra, Tan approached him six days before the
incident happened and requested a loan of at least P15,000.00. Agra said he had no funds at that moment and Tan did
not believe him, angrily saying that Agra could even raise a million pesos if he really wanted to help. 19 The refusal
obviously triggered the plan to kidnap Enrico and demand P1 million for his release.
The constitutional issues raised by Domasian do not affect the decision in this case. His claim that he was arrested
without warrant and then tortured and held incommunicado to extort a confession from him does not vitiate his
conviction. He never gave any confession. As for the allegation that the seizure of the documents used for comparison
with the ransom note was made without a search warrant, it suffices to say that such documents were taken by Agra
himself and not by the NBI agents or other police authorities. We held in the case of People vs. Andre Marti, 20 that the
Bill of Rights cannot be invoked against acts of private individuals, being directed only against the government and its
law-enforcement agencies and limitation on official action.
We are satisfied that Tan and Domasian, in conspiracy with each other, committed the crime of kidnapping as defined
and penalized under Article 267 of the Revised Penal Code and so deserve the penalty imposed upon them by the trial
court.
WHEREFORE, the appealed decision is AFFIRMED, with costs against the accused-appellants.
Let a copy of this decision be sent to the Commission on Human Rights for investigation of the alleged violation of the
constitutional rights of Pablito Domasian.
SO ORDERED.