[G.R. No. 124036.

October 23, 2001]

FIDELINO GARCIA, petitioner, vs. THE COURT OF APPEALS, THE
PRESIDING JUDGE OF THE RTC, GUMACA, QUEZON,
BRANCH 62, and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
QUISUMBING, J.:
On appeal by certiorari is the decision of the Court of Appeals dated February 22,
1996, in CA-G.R. CR No. 13358. The decision affirmed the judgment of the Regional
Trial Court of Gumaca, Quezon, Branch 62 in Criminal Case No. 2307-G, finding
petitioner Fidelino Garcia with his co-accused Leopoldo Garcia and Wilfredo Garcia
guilty of homicide.
In an Information dated December 13, 1983, Fidelino Garcia, Leopoldo Garcia, and
Wilfredo Garcia were charged with murder allegedly committed as follows:
That on or about the 30th day of July 1983, at Barangay II, in Poblacion,
Municipality of Mulanay, Province of Quezon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, armed with a knife, a
piece of wood and a broken bottle with intent to kill, and taking advantage of
their superior strength and with treachery, did then and there willfully,
unlawfully and feloniously attack, hit with said piece of wood and stab with the
said knife and broken bottle one Paulino Rodolfo y Olgena, thereby inflicting
upon the latter the following injuries, to wit:
“Wound lacerated mid parietal area 4cm with linear fracture of underlying
skull;
Wound lacerated 3 cm mid frontal area;
Wound lacerated T shape right frontal ½ cm;
Abrasion right nasolridge;
Contusion with laceration nose;
Multiple contusion chest right #3 6cm deep non-penetrating;
Wound lacerated left temporal 1 cm;
Wound stab left arm medial aspect 1½ cm.”
which directly caused his death.
Contrary to law.[1]
Petitioner and Wilfredo Garcia are brothers, while their co-accused in Criminal Case
No. 2307-G, Leopoldo, is their first-degree cousin.[2]
Earlier, a separate charge sheet docketed as Criminal Case No. 2165-G had been
filed against petitioner Fidelino Garcia, charging him with direct assault upon an agent of
a person in authority. On March 8, 1984, he was arraigned in said case and entered a plea
of not guilty.
In 1985, the accused in Criminal Case No. 2307-G were separately arraigned. All
pleaded not guilty to the charge. As Criminal Cases Nos. 2165-G and 2307-G arose from
the same incident, a joint trial ensued.
The facts, as established by the prosecution before the trial court and affirmed by the
appellate court, are as follows:
 At around 2:30 P.M., July 30, 1983, P/Cpl. Francisco Rollera was on his way to mail
a letter. He was waiting at the crossing near the police outpost in the town proper of
Mulanay, Quezon, when he saw petitioner, Wilfredo and Leopoldo, ganging up on
Paulino Rodolfo y Olgena.[3] While Leopoldo held the victim, petitioner hit him with an
empty bottle. Wilfredo then stabbed the victim once with a stainless steel fan knife
(balisong). The knife got stuck in Paulino’s body. Paulino succeeded in wrestling free
from Leopoldo’s grasp and pulling out the knife from his body. He used the knife to stab
petitioner in the stomach.
Rollera tried to stop the fight. He pulled out his service pistol and fired three
successive warning shots, calling upon the combatants to stop their fight, but to no
avail. Still holding Wilfredo’s knife, the wounded Paulino beat a hasty retreat to the store
of one Manuel Roberto. Wilfredo pursued him. Inside the store, Paulino stabbed
Wilfredo twice in the neck and stomach. Unable to stop the affray, Rollera then asked
the other people around to summon other policemen.
Paulino went back to the street. Seeing that Wilfredo was about to hit him with a
piece of wood, Rollera stepped in and wrestled the stick away from Wilfredo. The latter,
however, managed to get hold of an empty bottle. Before Rollera could react, petitioner
approached him, holding a broken bottle. Rollera moved back and Fidelino chased him
around a parked vehicle.
At this point, two other policemen arrived and pacified the antagonists. A third
responding policeman grabbed and caught petitioner chasing Rollera around the parked
vehicle.
Paulino Rodolfo subsequently died. The medico-legal certificate issued by Dr. Mario
A. Cuento of the Bondoc Peninsula District Hospital at Catanauan, Quezon, revealed that
the cause of death was “cerebral hemorrhage.”[4]
Predictably, the defense gave a slightly different version of the incident. Wilfredo
testified that between 2:00 and 3:00 P.M. of July 30, 1983, he was on his way to the
tricycle parking space in Nanadiego St., Mulanay, Quezon, with his two co-accused
following a short distance behind him. He met P/Cpl. Rollera and Paulino, both of whom
appeared to be intoxicated. Paulino put an arm around Wilfredo’s shoulder and invited
him to have a drink. The latter removed Paulino’s arm and refused, explaining that he
had to go to the barrio. Wilfredo was about to leave, when Paulino suddenly collared him
and poked a balisong at his throat. Wilfredo stepped back, but Paulino nonetheless
succeeded in stabbing him in the neck, chest, and stomach. He did not know what
transpired next as he lost consciousness as a result of his wounds, regaining it only next
morning when he found himself at the Quezon Memorial Hospital where he was confined
for four (4) days.
Although petitioner and he were closely following Wilfredo, Leopoldo claimed that
he did not actually see how Paulino attacked Wilfredo. What he heard were the voices of
persons heatedly arguing. When he advanced to investigate, he saw Wilfredo already
wounded. Leopoldo ran towards the municipal hall to get police assistance. On his way,
he met police officers Pobeda and Roadilla and he told them what happened. They then
proceeded to the scene of the incident where Leopoldo allegedly saw Rollera chasing a
wounded Fidelino around a parked vehicle. Pobeda and Roadilla then pacified Rollera
and petitioner. Because Leopoldo and petitioner were both wounded, the peace officers
brought them to the Catanauan Hospital. Leopoldo claimed that he never saw the victim
at the scene.
On February 14, 1992, the trial court rendered its decision and disposed of the two
cases as follows:
WHEREFORE, in view of the foregoing, on ground of reasonable doubt,
accused Fidelino Garcia is hereby ACQUITTED of the crime charged under
Criminal Case No. 2165-G for Direct Assault Upon An Agent of a Person in
Authority.
In Criminal Case No. 2307-G, the judgment of conviction is hereby
entered. Accused FIDELINO, WILFREDO and LEOPOLDO, all surnamed
GARCIA are found guilty beyond reasonable doubt of the crime of
HOMICIDE, and this Court hereby sentences them, applying the Indeterminate
Sentence Law, to suffer an imprisonment of SIX (6) YEARS and ONE (1)
DAY of prision mayor as minimum to TWELVE (12) YEARS and ONE (1)
DAY of reclusion temporal as maximum.
Furthermore, all the accused are solidarily liable and are ordered to indemnify
the heirs of the late Paulino Rodolfo y Olgena, the sum of FIFTY THOUSAND
PESOS (P50,000.00) plus the sum of TEN THOUSAND PESOS
(P10,000.00) as actual damages and to pay the costs of this suit.
SO ORDERED. [5]

The accused seasonably filed their respective notices of appeal to the appellate
court.[6] The Court of Appeals, in a resolution dated May 17, 1994 ordered Wilfredo
Garcia’s appeal deemed “abandoned and ordered dismissed for failure to furnish the
Court (with) his forwarding address.”[7] On September 3, 1994, the resolution dismissing
Wilfredo’s appeal became final and executory. The Court of Appeals, in CA-G.R. CR
No. 13358, thus resolved only the appeals interposed by Leopoldo and Fidelino Garcia.
On February 22, 1996, the appellate court affirmed the lower court’s decision finding
them guilty beyond reasonable doubt of homicide, thus:
WHEREFORE, with the modification that the indeterminate sentence should be
from six (6) years and one (1) day of prision mayor as minimum to fourteen
(14) years, eight (8) months and one (1) day of reclusion temporal as
maximum, the decision appealed from is AFFIRMED in all respects.
Costs against accused-appellants.
SO ORDERED. [8]

Although the three accused were represented by one counsel before the trial court,
said counsel filed an appellant’s brief only for accused Leopoldo Garcia. Before us now
is the separate appeal of petitioner Fidelino Garcia filed by a court appointed counsel de
oficio from the Free Legal Assistance Group (FLAG).[9] In his brief, petitioner Fidelino
Garcia assigns the following as errors committed by the appellate court:
First Assigned Error
THE COURT OF APPEALS ERRED IN AFFIRMING PETITIONER’S
CONVICTION FOR CONSPIRACY WHEN IT WAS NEVER
ALLEGED IN THE INFORMATION NOR PROVEN DURING TRIAL.
 Second Assigned Error
THE COURT OF APPEALS ERRED IN AFFIRMING PETITIONER’S
CONVICTION IN THE ABSENCE OF ANY EVIDENCE REGARDING
THE FACT, MANNER AND CAUSE OF THE ALLEGED VICTIM’S
DEATH.
Third Assigned Error
THE COURT OF APPEALS ERRED IN GIVING GREATER WEIGHT
TO THE EVIDENCE OF THE PROSECUTION AND FINDING NO ILL-
MOTIVE ON THE PART OF THE PROSECUTION WITNESS.
Fourth Assigned Error
PETITIONER SHOULD BE ACQUITTED BECAUSE THE EVIDENCE
DOES NOT ESTABLISH HIS CULPABILITY AS A PRINCIPAL, CO-
CONSPIRATOR OR ACCOMPLICE. [10]

In sum, the issues for our resolution are: (1) Whether the appellate court erred in
convicting petitioner as a conspirator in the killing of Paulino Rodolfo y Olgena; and (2)
Whether or not there was sufficient evidence to establish petitioner’s guilt with moral
certainty.
On the first issue, petitioner contends that an accused cannot be convicted of any
offense not alleged in the information, as he has the right to be informed of the nature of
the offense with which he is charged before he is put on trial. He points out that the
Information in Criminal Case No. 2307-G did not allege that he conspired, confederated,
mutually helped, and/or acted in concert and with consent in committing the offense
charged. He submits that an allegation of conspiracy cannot be presumed or implied in
an information. In finding him to be a conspirator in the killing of the victim, appellant
claims that his rights to be informed of the nature and cause of the accusation against
him; to a fair trial; to due process of law; and to equal protection of law were violated by
respondent appellate court.
For the State, the Office of the Solicitor General (OSG) contends that it is not
essential that the allegation of “conspiracy” be expressly stated in the indictment. It is
enough that the narration in the Information shows that the accused acted in concert in
the commission of the crime.
On this point, we are not in agreement with the OSG.
In all criminal prosecutions, the accused shall first be informed of the nature and
cause of the accusation against him.[11] The right of the accused to be informed of the
charges against him is explicit in Sec. 1(b) Rule 115 of the Rules of Criminal
Procedure.[12] To ensure that the due process rights of an accused are observed, every
indictment must embody the essential elements of the crime charged with reasonable
particularity as to the name of the accused, the time and place of commission of the
offense, and the circumstances thereof. One such particular circumstance is conspiracy
where two or more persons are charged in an information. Conspiracy denotes an
intentional participation in a criminal transaction, with a view to the furtherance of a
common design and purpose. It imputes criminal liability to an accused for the acts of
another or others, regardless of the nature and extent of his own participation. In a
conspiracy, the act of one becomes the act of all and the particular act of an accused
becomes of secondary relevance. Thus, it is essential that an accused must know from
the information whether he is criminally accountable not only for his acts but also for the
acts of his co-accused as well.[13]An indictment for conspiracy is sufficient if: (1) it
follows the words of the statute creating the offense and reasonably informs the accused
of the character of the offense he is charged with conspiring to commit;[14] or (2) following
the statute, contains a sufficient statement of an overt act to effect the object of the
conspiracy;[15] or (3) alleges both the conspiracy and the contemplated crime in the
language of the respective statutes defining them.[16]
In the present case, the appellate court held that an allegation of conspiracy is
implied in, or may be inferred from, the statement that “the said accused, armed with a
knife, a piece of wood and a broken bottle, with intent to kill, and taking advantage of
their superior strength and with treachery, did then and there willfully, unlawfully, and
feloniously attack, hit with said piece of wood and stab with the said knife and broken
bottle one Paulino Rodolfo y Olgena.” But we agree with appellant that here the
information does not satisfy the requirement that the conspiracy must be conveyed in
“appropriate language.”[17] The words “conspired,” “confederated,” or the phrase “acting
in concert” or “in conspiracy,” or their synonyms or derivatives do not appear in the
indictment.[18] The language used by the prosecution in charging the three accused
contains no reference to conspiracy. Conspiracy must be alleged, not merely inferred, in
the information. Absence of a particular statement in the accusatory portion of the charge
sheet concerning any definitive act constituting conspiracy in Criminal Case No. 2307-G
renders the indictment insufficient to hold one accused liable for the individual acts of his
co-accused. An accused must be furnished with a description of the charge against him to
enable him to make a proper defense and, later, to avail himself properly of either a
conviction or acquittal for his protection against further prosecution for the same
cause.[19] In our view, petitioner Fidelino Garcia cannot be convicted as a conspirator in
the killing of Paulino Rodolfo, for the simple reason that the information against the
accused contained no clear and definite allegation of conspiracy.
It follows that in Criminal Case No. 2307-G, petitioner can only be held responsible
for an act as could be proved to have been committed by him personally. Stated
otherwise, his criminal accountability, if any, should be determined on an individual
rather than on a collective basis. Responsibility for acts done by his co-accused could not
be heaped on the shoulders of appellant unless it be shown that he participated directly
and personally in the commission of those acts.
Thus, anent the second issue, we find merit in petitioner’s argument that the
prosecution’s evidence is insufficient to support his conviction for homicide. There
appears no proof to show the connection between the acts he allegedly committed and the
lethal injuries sustained by the victim. Petitioner points out that the only act he allegedly
did was that of hitting the victim with an empty bottle while the latter was being held
down by Leopoldo Garcia and stabbed by Wilfredo Garcia. He submits that there is no
showing whatsoever that his blow caused any injury to the victim, much less caused his
death. He stresses that the medico-legal certificate prepared by one Dr. Mario Cuento,
marked as the prosecution’s Exhibit “B” cannot even be found in the record, nor did the
doctor take the witness stand to identify it. The medical certificate in effect has no
probative value.
The OSG counters that while Exhibit “B” cannot be found in the records,
nonetheless, the fact stands that the number and nature of the victim’s injuries are
enumerated in the Information, which the petitioner failed to rebut or object to during the
trial. Moreover, petitioner did not object when Exhibit “B” was offered in evidence by
the prosecutor before the trial court to prove the victim’s injuries causing his death.
In general, factual findings of the trial court, when affirmed by the Court of Appeals,
are binding and conclusive upon this Court.[20] The rule, however, does not apply in the
present case. For one, the judge who penned the trial court’s judgment was not the same
one who heard the prosecution witnesses testify.[21] For another, our review of the records
indicates that both the trial court and the appellate court have overlooked some material
facts and circumstances of weight which could materially affect the result of this case.
First, the Court of Appeals heavily relied on the testimony of prosecution
eyewitness, P/Cpl. Francisco Rollera. However, we find his testimony riddled with
inconsistencies, particularly the exact role played by petitioner in the affray leading to
Paulino Rodolfo’s death. On direct examination, Cpl. Rollera averred that petitioner
struck the victim with a bottle while his co-accused were ganging up on the latter, thus:
Q – Now, you stated a while ago that the accused in this case ganged up on the deceased
Rodolfo Olgena. Will you please tell before this Honorable Court how the accused
ganged up on him?
A – While Leopoldo Garcia was holding Rodolfo Olgena, Rodolfo Olgena was hit by a bottle
by Fidelino Garcia and Wilfredo Garcia stabbed him on the lower groin with a stainless
[f]an knife, sir. (Stress supplied)[22]
The cross-examination of Rollera, however, reveals a contradictory version in that
apparently, petitioner Fidelino Garcia was not the aggressor but the victim of stabbing by
the deceased Paulino Rodolfo. Thus, Cpl. Rollera testified on cross:
Q – According to you, the three were ganging up on Rodolfo Olgena until Wilfredo Garcia
stabbed him. As the three were ganging up on Rodolfo Olgena, where were Fedelino
Garcia and Leopoldo Garcia when Rodolfo Olgena was stabbed by Wilfredo?
A – Leopoldo was holding Olgena while Fedelino was approaching Olgena when Wilfredo
stabbed Olgena, sir. When Rodolfo Olgena was stabbed by Wilfredo, as regards
Fedelino, he was then also approaching Rodolfo Olgena and that was the reason why he
was also stabbed by Olgena. Because when Fedelino approached Rodolfo Olgena, the
latter had pulled the knife, so that when Olgena pulled out the knife, he was able to stab
Fedelino, sir.
ATTY. CERILLA:
Let us straighten this out. Correct me if I am wrong. This, according to you, took place.
Q – Rodolfo Olgena while being held by Leopoldo Garcia was stabbed by Wilfredo Garcia, is
that correct?
A – Yes, sir.
Q – The weapon which was used by Wilfredo Garcia got stuck in that portion of the body of
Rodolfo Olgena that was hit?
A – Yes, sir.
Q – And Rodolfo Olgena was able to pull out that knife and while Fedelino Garcia was
approaching he stabbed the latter?
A – Yes, sir.
Q – Now, are you telling us that although Rodolfo Olgena was being held by Leopoldo Garcia
he was still able to pull the knife from his thigh and then used it in stabbing Fedelino
Garcia?
A – Rodolfo Olgena was able to get loose from the hold of Leopoldo that was why when
Fedelino approached Olgena the latter who had pulled out the knife from his body was
able to stab Fedelino, sir. (Stress supplied).[23]
 That petitioner Fidelino Garcia was stabbed by Paulino Rodolfo is perfectly clear to
us. What is doubtful is whether he had an active, direct and personal role in the killing of
Paulino Rodolfo. On cross-examination, it appears petitioner was still approaching the
deceased when the latter was stabbed by co-accused Wilfredo Garcia. Cpl. Rollera stated
under direct examination that Fidelino had hit Rodolfo with a bottle. But Cpl. Rollera did
not say where and when petitioner struck the victim with a bottle, or if the blow was hard
or not. Further, the prosecution’s evidence does not establish any direct link between the
petitioner’s act with the bottle and any injury suffered by the deceased, much less the
mortal wound which caused his death. If we are to believe Cpl. Rollera’s account,
petitioner was merely approaching the victim, who was then trying to get loose from
Leopoldo’s hold and ward off Wilfredo’s attack. It appears unclear to us, however,
whether petitioner succeeded to hit the victim, Rodolfo, with a bottle. As it turned out, it
was petitioner who was stabbed by Rodolfo, using Wilfredo’s balisong, with the result
that petitioner was hospitalized.
Second, the Court of Appeals likewise heavily relied upon Exhibit “B” to establish
the injuries suffered by Paulino Rodolfo. As stated earlier, Exhibit “B” is nowhere in the
records.[24] The only mention we find of it is in the transcript of stenographic notes of
November 19, 1987.
FISCAL ENCOMIENDA:
We will now be resting our case.
COURT:
Go ahead.
FISCAL ENCOMIENDA:
But before we do so, we would like to prove the existence of the medico legal
certificate although it has been admitted by the defense counsel and likewise the fact of
death. We would like to request the same to be marked as Exhibit “B” in both cases and
the findings therein as stated as Exhibit “B-1” and the signature of Dr. Mario Cuento as
Exhibit “B-2.” We are offering, Your Honor, Exhibit “A” and “A-1” the affidavit of
Francisco Llorera [should read Rollera] as part of his testimony. And we are likewise
offering Exhibits “B”, “B-1”, and “B-2” to show the fact of death and the nature of the
wounds sustained by the victim.
COURT:
Is that all? Any objection to the annexes of the exhibits?
ATTY. CERILLA:
No objection, Your Honor, except to the affidavit of the policeman.
COURT:
The Court will admit all these exhibits in evidence.[25]
Notwithstanding its absence from the records, the Court of Appeals held that said
Exhibit “B” “sufficiently indicates the nature, number, location, and extent of the injuries
sustained by the victim. The cause of death stated therein is purportedly ‘cerebral
hemorrhage.’”[26] The appellate court likewise held that “These were deemed admitted by
the accused-appellants for their failure to make a timely objection at the time the offer
was made.”[27] We find nothing in the record, however, to support the prosecution’s
sweeping statement that the “existence of the medico-legal certificate had been admitted
by defense counsel and likewise the fact of death.” In fact, per the transcript quoted
above, Atty. Cerilla’s response has a reservation, “except to the affidavit of the
policeman,” when asked about the annexes of the exhibits. But we shall not belabor this
point, for the decision of the trial court is barren of any reference to admissions or
stipulations. On record now, the medico-legal report is missing. And we find that the
prosecution’s evidence nowhere shows that petitioner by his own act killed the victim or
contributed directly to his death.
To conclude, there is a dearth of evidence as to the specific role played by petitioner
Fidelino Garcia in the commission of the crime charged. Petitioner enjoys the
presumption of innocence, which can only be overcome by proof beyond reasonable
doubt. Mere conjectures, no matter how strong, can never substitute for this required
quantum of proof.[28] Failing to meet the needed quantum of proof, petitioner’s conviction
as principal in the killing of Paulino Rodolfo cannot be sustained.
WHEREFORE, the petition is GRANTED. The assailed decision of the Court of
Appeals, dated February 22, 1996, in CA-G.R. CR No. 13358, which had affirmed that of
the Regional Trial Court of Gumaca, Branch 62, is hereby REVERSED and SET
ASIDE on the ground of insufficiency of evidence to convict petitioner Fidelino Garcia
beyond reasonable doubt. Consequently, he is ACQUITTED and ordered RELEASED
immediately from confinement unless held for another lawful cause.
SO ORDERED.

[G.R. No. 139610. August 12, 2002]

AUREA R. MONTEVERDE, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
PANGANIBAN, J.:
Time and time again, this Court has emphasized the need to stamp out graft
and corruption in the government. Indeed, the tentacles of greed must be cut and
the offenders punished. However, this objective can be accomplished only if the
evidence presented by the prosecution passes the test of moral certainty. Where
doubt lingers, as in this case, the Court is mandated to uphold the presumption of
innocence guaranteed by our Constitution to the accused.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court,
assailing the April 29, 1999 Decision[1] and February 3, 2000 Resolution[2] of the
Sandiganbayan (Second Division) in Criminal Case No. 18768. The dispositive
portion of the assailed Decision reads as follows:
“WHEREFORE, premises considered, judgment is hereby rendered finding
accused AUREA MONTEVERDE y RASUELO guilty beyond reasonable
doubt of the crime of Falsification of Commercial Document under Article 172
of the Revised Penal Code, and in default of any mitigating or aggravating
circumstances and applying the Indeterminate Sentence Law, she is hereby
sentenced to suffer a prison term of SIX (6) MONTHS of Arresto Mayor as
minimum, to SIX (6) YEARS of Prision Correccional as maximum, to pay a
fine of Five Thousand (P5,000.00) pesos with subsidiary imprisonment in case
of insolvency, with all the accessory penalties of the law, and to pay the cost.
“She shall be credited with the full period of any preventive imprisonment
suffered, pursuant to and as mandated by Batas Pambansa Blg. 85.
“The facts from which the civil liability may arise not being indubitable, there
is no pronouncement as to the same.
“The bailbond of herein accused is hereby ordered cancelled.” [3]

The assailed resolution denied petitioner’s Motion for Reconsideration.

This case originated from the Information dated February 4, 1993, signed by
Special Prosecution Officer Gualberto J. dela Llana with the approval of then
Ombudsman Conrado M. Vasquez. Charging petitioner with estafa through
falsification of commercial documents, the accusatory portion reads thus:
“That on or about January 17, 1991, or sometime prior or subsequent thereto, in
Manila, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, a public officer, being the Chairman of Barangay 124 of
Zone 10, District 1, Malaya, Balut, Tondo, Manila with intent to defraud, and
by taking advantage of [her] official position and to liquidate the funds
donated/granted by the Philippine Games and Amusement Corporation
submitted Sales Invoice No. 21568 dated January 17, 1991 in the amount
of P13,565.00 allegedly issued by Sanford Hardware when in truth and in fact
said sales invoice is falsified and later did then and there, willfully, unlawfully
and feloniously misappropriate, misapply and convert the same to her personal
use and benefit, to the damage of the Government and which crime was
committed in relation to her office.”[4]

During her arraignment on April 5, 1993, petitioner, assisted by her

counsel de parte,[5] pleaded not guilty.[6] After trial on the merits, the
Sandiganbayan acquitted petitioner of the crime of estafa, but convicted her of
falsification of a commercial document under Article 172 of the Revised Penal
Code.
The Facts
Version of the Prosecution
The prosecution’s version of the facts is curtly summarized by the Office of
the Special Prosecutor (OSP) as follows:
“Petitioner Aurea A. Monteverde was from 1991 to 1993 the Barangay
Chairman of Barangay 124 of Zone 10, District 1, Malaya, Balut, Tondo,
Manila. In that capacity, she received the amount of P44,800.00 from the
Philippine Amusement and Gaming Corporation (PAGCOR). The amount was
spent for lighting, cleanliness and beautification programs of the Barangay. To
liquidate the amount, she submitted a financial statement (Exhibits ‘1 to 1-A-
3’) with copies of sales invoices/receipts to PAGCOR.
“Sometime in August 1991, Antonio R. Araza, Jose Salvatierra, Santos L.
Lopez, and Narciso Cruz, residents of Brgy. 124, charged Petitioner and Bella
Evangelista, then Barangay Treasurer, with Malversation of the following
funds: 1.) P82,500.00 from [the] Barangay General Fund; 2.) P44,800.00 from
the PAGCOR; and 3.) P600.00 allowance of Kagawad Lito Galinda for the
period July 16, to December 1990. The complaints were docketed as OMB-0-
91-12694 and OMB-0-92-0643 (Exhs. A, B and C).” [7]
 Version of the Defense
The foregoing account is reiterated by the Office of the Solicitor General
(OSG) in its Memorandum.[8] The petitioner did not submit her own Memorandum,
but merely adopted the position of the OSG which recommended her acquittal.
Version of the Sandiganbayan
The foregoing narration does not adequately explain the evidence. In
fairness to the Sandiganbayan (“SBN” hereafter) which is being faulted with
reversible errors by petitioner and the OSG, we deem it prudent to quote the
facts and the evidence it relied upon in its assailed Decision, as follows:
“EVIDENCE FOR THE PROSECUTION
In its bid to establish the guilt of the accused beyond reasonable doubt, the
People presented the following documentary evidence:
1. Exhibit A which is a letter complaint addressed to the Ombudsman dated
September 2, 1991 signed by Santos Lopez, Narciso Cruz, Antonio Araza
and Jose Salvatierra;
2. Exhibit B which is a Joint-Affidavit of the said four (4) complainants
subscribed and sworn to before a Notary Public on September 8, 1991;
3. Exhibit C which is a letter dated June 13, 1991 signed by complainants Jose
Salvatierra and Antonio Araza addressed to Mr. Manuel de la Fuente of the
Chief Barangay Bureau, City of Manila;
4. Exhibit D which is the cover of the Booklet of Sales invoice[s]/Receipts of
Sanford Hardware.
5. Exhibit D-1 which is the duplicate original copy of Sales Invoice No. 21568
dated July 20, 1981 listing only three (3) items;
6. Exhibit D-1-A which is a genuine machine copy of Exhibit D-1;
7. Exhibit E which is a machine copy of an official receipt with Aurea
Monteverde appearing as buyer and listing eleven items as articles
purchased;
8. Exhibit E-1 which is a certification of Luz Co, Manager of Sanford Hardware
stating that Exhibit E is not a genuine reproduction of the duplicate original;
9. Exhibit F (offered lately) is a xerox copy of Invoice No. 21568 dated January
17, 1991;
10. Exhibit G is a machine copy of an undated letter signed by Bella
Evangelista authorizing Antonio Araza to verify the authenticity of Invoice
No. 21568 dated January 17, 1991 in the sum of P13,565.00
as well as witnesses Luz Co y Tan and Antonio Araza y Reposo.
“LUZ CO y TAN declared that she is the manager of Sanford Hardware since
1976, that Exhibit D-1 which is [a] duplicate copy of Invoice No. 21568 dated
July 2, 1981 where the amount of purchase is only P157.00 is the invoice used
by her firm in the conduct of its business; that Exhibit E was not her receipt and
that she executed a certification to that effect (Exhibit E-1) when required by a
male person; that she does not know the entries appearing in Exhibit E but the
entries in Exhibit D-1 are of her business; that Sanford Hardware is owned by
[her] sister-in-law Delia Co; that there are three copies of the sales invoice her
business is issuing, and the third copy or last copy is the one left in the store,
and that the one who approached her and asked about Exhibit E is one Narciso
Cruz and when she answered that she did not issue Exhibit E she was requested
to execute an affidavit; that she does not know accused Aurea Monteverde and
that she had no delivery of hardware materials to the Barangay on January 17,
1991 (TSN May 14, 1993).
“It was the testimony of ANTONIO ARAZA that he is a resident of 2256
Malaya St., Balut, Tondo, Manila and that he secured a copy of Exhibits E and
F from the Barangay Treasurer; that he brought the same to the owner of the
Sanford Hardware for verification; that Luz Co to whom he talked x x x in said
store manifested that said Exhibits E and F are not issued by the firm; and for
which he requested Luz Co to issue a certification (Exhibit E-1); that after
realizing that the receipts used by the accused are falsified receipts, he signed
letter complaints and [a] Joint-Affidavit together with Santos Lopez, Narciso
Cruz and Jose Salvatierra, and charged the accused before the Ombudsman;
that the money involved in this case are barangay funds because it was donated
by the PAGCOR to the Barangay and he was able to secure a copy from the
PAGCOR evidencing that it was donated to the Barangay but the copy was
submitted to the Ombudsman; that the Barangay Treasurer lent to him the
receipts with the advice to verify it from the proprietor of [the] Hardware and
she even gave a letter of authorization to him (Exhibit G); that the P13,565.00
appearing in Exhibits E and F was not used to buy electrical materials or
lightings, and the bulbs in the Meralco post were donated by Councilor Rene
Jose (TSN March 18, 1994).
“EVIDENCE FOR THE ACCUSED
“The defense presented eighty-one (81) Exhibits with Exhibits 35 to 80 dealing
with certificates of commendation in favor of the accused during her stint as
Barangay Chairman from 1991 to 1993 and even prior to her being a Barangay
Chairman. Exhibits 1 with its submarkings (Exhibits 1-A to Exhibits 1-A-3) is
a letter of the accused addressed to Alice LI Reyes of the PAGCOR with
attachment she captioned Financial Statement; Exhibits 2 to 15 are Sales
Invoices/Receipts from different hardware stores and individuals while Exhibits
16 and 17 are pictures depicting a basketball court portion thereof being sub-
marked, and Exhibits 18 to 32 are fifteen (15) pictures depicting different alleys
at Barangay 124. Exhibit 33 is a turn-over certificate/record of the Barangay
properties signed by the incoming Barangay Chairman with the third page
submarked as Exhibits 33-A to 33-b-2; and Exhibit 34 is the counter-affidavit
of the accused sworn to before a Notary Public on September 5, 1991. Exhibit
81 is a Joint-Affidavit of Alfonso Cua Jr. and Joel Magbanua.
“Aside from her, the accused presented ALFONSO CUA, JR. whose testimony
is as follows: that he knows the accused to be the Chairman of Barangay 124
from 1991 up to 1992 while he was a Barangay Tanod in the said Barangay;
that one project of the accused was the installation of lights or lighting the
streets and playgrounds in the Barangay; that in January 1991 materials were
delivered to the house of the Barangay Chairman (accused) and around three
(3) days thereafter, he helped in the installation of the electrical materials
consisting of electrical wirings, electrical tapes, bulbs, lamps and lamp covers,
and it took them (he and the husband of the accused) about three Sundays in
doing so; that he executed a Joint-Affidavit together with one Joel Magbanua in
connection with the incident (Exhibit 81) (TSN April 2, 1997).
“Testifying in her behalf accused took the witness stand and declared:
‘That she was the Barangay Chairman in Brgy. 124 since 1989 to 1994; that in
January 1991 she received donation or cash money in the amount of
P44,800.00 from PAGCOR which she used in Barangay projects like lighting,
and cleanliness and beautification; that she reported the matter to PAGCOR
and submitted [a] financial statement (Exhibits 1 to 1-A, 1-A-1); that when she
purchased electrical and hardware items from Sanford Hardware she was issued
a receipt (Exhibit 9) and considering Exhibit D-1 and D-1-A, it would appear
that Sanford Hardware issued two (2) receipts; she denied the charge of Estafa
thru Falsification of Commercial Documents, and claimed that with the meager
amount involved, she is not going to sacrifice her good name and reputation;
she then identified x x x several awards she received (Exhibits 35 to 79); that
she was the one who personally purchased the items in Exhibit F, and she
actually paid the same in cash for which she was issued Exhibit 9 (Exhibit F
and 9 contain the same items); that the receipt was issued in her name and the
money was in her possession that was why it was she and not the Barangay
Treasurer who personally made the purchase; that the PAGCOR check was
issued in her name and was directly given to her and so she was the one who
encashed the check accompanied by one of the councilors but she did not turn
over the cash to the treasurer; that even after she came to know of the existence
of Exhibit E, she did not go to Sanford Hardware to inquire about the said
document; that the original of the said exhibit was given to her but she
submitted it to PAGCOR. (TSN September 3, November 5, 1996 and April 1,
1997).’“[9]

Ruling of the Sandiganbayan

The assailed Decision noted that petitioner was supposed to have been
charged with the complex crime of estafa through falsification of a commercial
document. However, there was no clear allegation in the Information that the
falsification was a necessary means to commit the estafa.[10] Nevertheless, going
along “with the supposition” that a complex crime had been charged, the SBN
held:
“Despite the ambiguity and disquietude, however, the court is constrained to go
with the supposition that what has been charged is that of a complex crime,
otherwise the logical consequence is that the accused has been indicted with
two crimes - that of Estafa and that of Falsification of Commercial Document
which is not beneficial to her.” [11]

The anti-graft court acquitted petitioner of estafa, because there was no

evidence that funds had been misappropriated or converted. [12]Neither was there
proof that petitioner had been required to account for the money
received.[13] Without these proofs, no conviction for estafa was possible.[14]
However, the court a quo convicted her for allegedly falsifying the document
she had submitted to show that the P13,565 donated by PAGCOR was used and
spent for lighting materials for her barangay. According to the SBN, the
falsification became very clear when the document was compared with another
one purporting to be a duplicate original presented by the prosecution. [15] While
the prosecution did not present any proof evidencing that it was petitioner who
had caused the falsification, the SBN relied on the presumption that in the
absence of a satisfactory explanation, a person who is found in possession of a
forged document, and who uses it, is the forger.[16]
Nevertheless, petitioner was not convicted of falsification as defined by
Article 171 of the Revised Penal Code, because there was no proof that she had
taken advantage of her position in committing the crime.[17] Instead, she was
convicted of falsification under Article 172.[18]
Hence, this Petition.[19]
Issues
The OSG’s Memorandum which recommended acquittal, and which
petitioner adopted, raised the following issues:
“Whether the Sandiganbayan erred in:
[1.] finding petitioner guilty of falsification despite its finding that no
estafa was committed[;]
[2.] holding that Exhibit 9, a sales invoice, was a commercial/public
document[; and]
[3.] applying the presumption that petitioner was the author of
falsification in the absence of any proof that she benefited from it.”[20]
This Court’s Ruling
The Petition is meritorious.
First Issue:
Nature of Complex Crimes
Appellant was purportedly charged with the complex crime of estafa through
falsification of a commercial document. However, even if the SBN itself doubted
whether the Information had properly charged a complex crime, it was, as quoted
earlier, “constrained to go along with the supposition that what has been charged
is that of a complex crime, otherwise the logical consequence is that the accused
has been indicted with two crimes -- that of Estafa and that of Falsification of
Commercial Document which is not beneficial to her.”[21]
We clarify. Under Article 48 of the Revised Penal Code,[22] a complex crime
refers to (1) the commission of at least two grave or less grave felonies that must
both (or all) be the result of a single act, or (2) one offense must be a necessary
means for committing the other (or others).[23] Negatively put, there is no complex
crime when (1) two or more crimes are committed, but not by a single act; or (2)
committing one crime is not a necessary means for committing the other (or
others) .[24]
Using the above guidelines, the acts attributed to petitioner in the present
case cannot constitute a complex crime. Specifically, her alleged actions showing
falsification of a public and/or a commercial document were not necessary to
commit estafa. Neither were the two crimes the result of a single act. The OSG
correctly observed:
“x x x. The alleged falsification happened after the money was spent and to
explain how it was expended. Thus there is no complex crime since the
falsification is not a necessary means for committing the estafa (as charged) or
malversation (as suggested by Sandiganbayan in its Order dated February 1,
2000). If at all, it was intended to conceal the estafa or malversation.”[25]

Well-known is the principle that an information “must charge only one

offense, except when the law prescribes a single punishment for various
offenses.”[26] When more than one offense is charged, the accused may move to
quash the information.[27]
In the present case, the accused should have objected to the Information on
the ground that more than one offense was charged therein. For her failure to
move to quash the indictments, she is deemed to have waived her right to be
tried for only one crime.[28]Furthermore, she did not object to the submission of
evidence that tended to prove the offenses charged in the Information -- estafa
and falsification. Verily, when two or more offenses are charged in a single
complaint or information, but the accused fail to object to the defect before trial,
the trial court may convict them of as many offenses as are charged and proven,
and impose on them the penalty for each offense, setting out separately the
findings of fact and law in each.[29]
On the basis of the foregoing, we reject the argument of petitioner that since
she was acquitted of estafa, she could no longer be convicted of falsification of a
commercial document. Having, in effect, been charged with two distinct crimes,
acquittal in one will not necessarily lead to acquittal in the other. Each crime will
be evaluated based on its own merits, and conviction will depend on the proof of
the elements of each particular offense.
Let us assume that petitioner has correctly been charged with a complex
crime, as the SBN supposed. Still, acquittal from a component offense will not
necessarily lead to an acquittal from the other (or others).
When a complex crime under Article 48 of the Revised Penal Code is
charged, it is axiomatic that the prosecution must allege in the information and
prove during the trial all the elements of all the offenses constituting the complex
crime.
We stress that the failure of the prosecution to prove one of the component
crimes and the acquittal arising therefrom will not necessarily lead to a
declaration of innocence for the other crimes. Settled is the rule that when a
complex crime is charged and the evidence fails to establish one of the
component offenses, the defendant can be convicted of the others, so long as
they are proved.[30]
Second Issue:
 Nature of Sales Invoice
The OSG agrees that the subject Sales Invoice is a public and/or a
commercial document within the meaning of “falsification” as defined under the
Revised Penal Code.
Both the OSG and the OSP agree that a private document acquires the
character of a public document when it becomes part of an official record and is
certified by a public officer duly authorized by law.[31] The OSP aptly explained this
point as follows:
“x x x, [I]f the document is intended by law to be part of the public or official
record, the preparation of which being in accordance with the rules and
regulations issued by the government, the falsification of that document,
although it was a private document at the time of its falsification, is regarded as
falsification of public or official document.
“Prosecution witness Luz Co testified that the duplicate original of Sales
Invoice No. 21568 was submitted to the Bureau of Internal Revenue (BIR).
Thus this Sales Invoice is intended to be part of the public records and the
preparation thereof is required by BIR rules and regulations. Moreover, Sales
Invoice No. 21568 formed part of the official records of PAGCOR when it was
submitted by petitioner as one of the supporting papers for the liquidation of
her accountability to PAGCOR.” [32]

Neither can it be denied that the Sales Invoice is also a commercial

document. Commercial documents or papers are those used by merchants or
businessmen to promote or facilitate trade or credit transactions.[33] This Court has
previously characterized such documents in this wise:
“x x x. In most cases, these commercial forms [receipts, order slips and
invoices] are not always fully accomplished to contain all the necessary
information describing the whole business transaction. The sales clerks merely
indicate a description and the price of each item sold without bothering to fill
up all the available spaces in the particular receipt or invoice, and without
proper regard for any legal repercussion for such neglect. Certainly, it would
not hurt if businessmen and traders would strive to make the receipts and
invoices they issue complete, as far as practicable, in material particulars. These
documents are not mere scraps of paper bereft of probative value but vital
pieces of evidence of commercial transactions. They are written memorials of
the details of the consummation of contracts.” (Italics supplied)
[34]

Third Issue:
Proof of Guilt
The gut issue in this case is whether the prosecution was able to prove
beyond reasonable doubt the guilt of petitioner with regard to the crime of
falsification. A determination of this question will necessarily require an
examination of the facts as presented before the Sandiganbayan.
As a rule, an appeal by certiorari under Rule 45 of the Rules of Court raises
only questions of law.[35] However, this Court, in exceptional cases, has taken
cognizance of questions of fact in order to resolve legal issues. This is especially
true in cases in which a palpable error or a grave misapprehension of facts was
committed by the lower court.[36] Criminal cases elevated by public officials from
the SBN deserve the same thorough treatment by this Court as criminal cases
brought up by ordinary citizens, simply because the constitutional presumption of
innocence must be overcome by proof beyond reasonable doubt in both
instances. Indeed, in a criminal case, a person’s life or liberty is at stake. [37]
Petitioner asserts that the SBN erroneously applied the presumption that the
possessor of a forged or falsified document who uses it is the author of the
forgery or falsification. The OSG concurs with her on this point. That is why it
recommended that she be acquitted.
We agree. To our mind, the prosecution’s evidence is not sufficient to
convict. As correctly observed by the OSG, the Decision of the SBN is based on
the assumption that there was only one set of sales invoices issued by Sanford
Hardware. On such a premise, petitioner’s Exhibit 9 thus becomes obviously
falsified when compared with respondent’s Exhibit D-1. But on the premise that
the two Exhibits are two different Sales Invoices, falsification becomes doubtful.
The OSG is correct in observing as follows:
“x x x. For petitioner or anybody acting on her behalf to falsify the customer’s
copy of Sales Invoice No. 21568, she/he would have to erase or cover with
correction fluid the spaces pertaining to the name of the customer, date,
quantity, unit, description of articles, unit price and amount, before the
insertions could be written. Neither the appealed decision nor the transcript of
stenographic notes (TSN) point out various tell-tale signs of falsification
despite opportunity of the prosecution to see the original of Exh. 9. The only
observation the respondent Court mentioned was with respect to the date: ‘[t]he
superimposition of January 17, 1991 is too apparent to be disregarded, and the
alteration of the date has affected both the veracity and the effects of the said
document.’ But the changing of the date was the easiest to accomplish. The
more cumbersome, as they affect wider space, would [have been] the name of
the customer and the purchases. The total absence of any hint or sign of
alteration on these areas is revealing.”[38]

The only logical explanation for the existence of both Exhibits 9 and D- 1 is
that there are two extant documents. Whether one is the original and the other is
falsified depends on the proof. This the prosecution had to prove, but
unfortunately failed to. In all criminal prosecutions, without regard to the nature of
the defense which the accused may raise, the burden of proof establishing the
guilt of the accused beyond reasonable doubt remains with the
prosecution.[39] Further, it is the duty of the prosecution to prove each and every
element of the crime charged in the information.[40] We repeat that, in this case, it
failed to discharge this duty. We quote with approval the OSG’s disquisition on
these two documents as follows:
“A comparison between Exh. D-1 and Exh. 9 shows that there are two (2) sets
of Sales Invoice No. 21568. While the form is identical in most respects, there
are three (3) telling differences: (1) the type set of the sales invoice numbers are
different, (2) the bottom left of Exh. D-1 indicates the name of the printing
press while no such information is indicated anywhere in Exh. 9, and (3) the
bottom right of Exh. D-1 states the BIR permit which does not appear in Exh.
9. Who could have printed Exh. 9 is anybody’s guess. It is possible that
petitioner or any person acting on her behalf had a printing company copy this
particular Sanford Hardware invoice so she could use it to liquidate the
PAGCOR funds she received. However, it is equally possible that Sanford
Hardware had printed two (2) sets of the same receipts, one to reflect the real
business transaction, the other one - a sanitized version - for the consumption of
the BIR people. Not one of these possibilities has been actually proven, but
neither was their improbability established.” (Italics supplied)
[41]

Indeed, the OSG points out that there are material differences between
Exhibits 9 and D-1. These include: 1) the discrepancy in the “type set” or fonts
used for the sales invoice numbers in the two Sales Invoices; 2) the presence of
the name of the printing press at the bottom left corner of Exhibit D-1 and its
absence in Exhibit 9; and 3) the presence of the BIR permit in Exhibit D-1 and its
absence in Exhibit 9. It is possible that Exhibit 9 was printed by petitioner or
anyone acting on her behalf to facilitate the liquidation of funds. But it is equally
possible, as the OSG points out, that Sanford Hardware caused the printing of
two sets of receipts to serve its own purposes. However, none of these
possibilities was either actually proven or definitely ruled out by the prosecution.
At bottom, there is no clear and convincing evidence to prove that Exhibit 9 was
falsified.
The SBN relied on the settled rule that in the absence of a satisfactory
explanation, one found in possession of -- and who used, took advantage of or
profited from -- a forged or falsified document is the author of the falsification and
is therefore guilty of falsification.
To convict petitioner of falsification would mean that the prosecution was
able to establish that Exhibit 9 was a falsified copy of an original document. But
the rule itself shows that it cannot be applied to the present case, because
Exhibit 9 (Sales Invoice No 21568) was not established beyond reasonable doubt
to have been forged or falsified. At the very least, it may be a second document
that may or may not have been printed by petitioner herself.
Respondent claims that the original document is Exhibit D-1 but, as adverted
to earlier, Exhibit 9 was not satisfactorily demonstrated to be a copy thereof. In
other words, Exhibit 9 being different from Exhibit D-1, the prosecution cannot be
deemed to have presented an original document, of which Exhibit 9 is a falsified
copy.
The question is: who made this second document marked Exhibit 9?
Petitioner consistently maintains that Exhibit 9 was issued to her by Sanford
Hardware when she purchased the items mentioned therein. On the other hand,
the manager of Sanford Hardware denies having issued such document. Indeed,
it is a time-honored principle[42] that greater probative value is accorded to a
positive than to a negative testimony. Furthermore, as correctly pointed out by
the OSG:
“x x x [Petitioner] denied the accusation and insisted that she would not
sacrifice her name and reputation for the meager amount involved. She
submitted photographs that the lighting of alleys in Barangay 124 was
completed. There was positive testimony by Alfonso Cua, one of the persons
who installed the articles listed in Sales Invoice No. 21568. The prosecution
failed to rebut these.” (Citations omitted)
[43]

One final point. The SBN held that the “accused refused to present the
original of Exhibit 9,” and that it would have been so “easy x x x to ask for a
subpoena to direct x x x the PAGCOR to produce the original copy, and yet the
accused satisfied herself in presenting Exhibit 9 -- a mere xerox copy of the
supposed document.” But, as pointed out by the OSG in its Memorandum, [44] the
original of Exhibit 9 was presented in court during the November 5, 1996 hearing
after a subpoena duces tecum had been issued to PAGCOR, and Prosecutor
Pimentel “confirmed that the x x x xerox copies are faithful reproductions of the
original.”[45]
In all criminal cases, mere speculations cannot substitute for proof in
establishing the guilt of the accused.[46] Indeed, suspicion no matter how strong
must never sway judgment. Where there is reasonable doubt, the accused must
be acquitted even though their innocence may not have been established. The
Constitution presumes a person innocent until proven guilty by proof beyond
reasonable doubt. When guilt is not proven with moral certainty, it has been our
policy of long standing that the presumption of innocence must be favored, and
exoneration granted as a matter of right.[47]
Although the evidence for the defense may be frail, criminal conviction must
come, not from its weakness, but from the strength of that for the prosecution.[48]
WHEREFORE, the Petition is GRANTED and the assailed Decision and
Resolution SET ASIDE. Petitioner is ACQUITTED on reasonable doubt. No
pronouncement as to costs.
SO ORDERED.

G.R. No. 165483 September 12, 2006

RUJJERIC Z. PALAGANAS,1 petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CHICO-NAZARIO, J.:
For what is a man, what has he got?
If not himself, then he has naught.
To say the things he truly feels;
And not the words of one who kneels.
The record shows I took the blows -
And did it my way!
The song evokes the bitterest passions. This is not the first time the
song "My Way"2 has triggered violent behavior resulting in people
coming to blows. In the case at bar, the few lines of the song depicted
what came to pass when the victims and the aggressors tried to
outdo each other in their rendition of the song.
In this Petition for Review on Certiorari3 under Rule 45 of the Revised
Rules of Court, petitioner Rujjeric Z. Palaganas prays for the reversal
of the Decision of the Court of Appeals in CA-G.R. CR No. 22689
dated 30 September 2004,4 affirming with modification the Decision of
the Regional Trial Court (RTC), Branch 46, of Urdaneta, Pangasinan,
in Criminal Cases No. U-9608, U-9609, and U-9610 and U-9634,
dated 28 October 1998,5 finding petitioner guilty beyond reasonable
doubt of the crime of Homicide under Article 249 of the Revised
Penal Code, and two (2) counts of Frustrated Homicide under Article
249 in relation to Articles 6 and 50 of the same Code.
On 21 April 1998, petitioner and his older brother, Ferdinand Z.
Palaganas (Ferdinand), were charged under four (4) separate
Informations6 for two (2) counts of Frustrated Murder, one (1) count of
Murder, and one (1) count for Violation of COMELEC Resolution No.
29587 relative to Article 22, Section 261, of the Omnibus Election
Code,8allegedly committed as follows:
CRIMINAL CASE NO. U-9608
That on or about January 16, 1998, in the evening at Poblacion,
Manaoag, Pangasinan and within the jurisdiction of this
Honorable Court, the above-named accused armed with an
unlicensed firearm, with intent to kill, treachery and evident
premeditation, conspiring together, did then and there willfully,
unlawfully and feloniously shoot SERVILLANO FERRER, JR. y
Juanatas, inflicting upon him "gunshot wound penetrating
perforating abdomen, urinary bladder, rectum bullet sacral
region," the accused having thus performed all the acts of
execution which would have produced the crime of Murder as a
consequence, but which nevertheless, did not produce it by
reason of the causes independent of the will of the accused and
that is due to the timely medical assistance rendered to said
Servillano J. Ferrer, Jr. which prevented his death, to his
damage and prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the
Revised Penal Code, as amended.
CRIMINAL CASE NO. U-9609
That on or about January 16, 1998, in the evening at Poblacion,
Manaoag, Pangasinan and within the jurisdiction of this
Honorable Court, the above-named accused armed with an
unlicensed firearm, with intent to kill, treachery and evident
premeditation, conspiring together, did then and there willfully,
unlawfully and feloniously shoot MICHAEL FERRER alias
"Boying Ferrer", inflicting upon him gunshot wound on the right
shoulder, the accused having thus performed all the acts of
execution which would have produced the crime of murder as a
consequence, but which nevertheless, did not produce it by
reason of the causes independent of the will of the accused and
that is due to the medical assistance rendered to said Michael
"Boying" Ferrer which prevented his death, to his damage and
prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the
Revised Penal Code, as amended.
CRIMINAL CASE NO. U-9610
That on or about January 16, 1998, in the evening at Poblacion,
Manaoag, Pangasinan and within the jurisdiction of this
Honorable Court, the above-named accused armed with an
unlicensed firearm, with intent to kill, treachery and evident
premeditation, conspiring together, did then and there willfully,
unlawfully and feloniously shoot MELTON FERRER alias
"TONY FERRER", inflicting upon him mortal gunshot wounds in
the head and right thigh which caused the instantaneous
death of said Melton "Tony" Ferrer, to the damage and
prejudice of his heirs.
CONTRARY to Art. 248 of the Revised Penal Code, as
amended by R.A. 7659.
CRIMINAL CASE NO. U-9634
That on or about January 16, 1998 which is within the election
period at Poblacion, Manaoag, Pangasinan, and within the
jurisdiction of this Honorable Court, the above-named accused
did then and there willfully, unlawfully and feloniously bear and
carry one (1) caliber .38 without first securing the necessary
permit/license to do the same.
CONTRARY to COMELEC RES. 2958 in relation with SEC.
261 of the OMNIBUS ELECTION CODE, as
amended.9 (Underscoring supplied.)
When arraigned on separate dates,10 petitioner and Ferdinand
entered separate pleas of "Not Guilty." Upon motion of
Ferdinand,11 the four cases were consolidated and were assigned to
Branch 46 of the RTC in Urdaneta, Pangasinan.12
The factual antecedents as viewed by the prosecution, are
summarized in the Comment dated 18 April 2005 of the Office of the
Solicitor General,13 to wit:
On January 16, 1998, around 8:00 in the evening, brothers
Servillano, [Melton] and Michael, all surnamed Ferrer were
having a drinking spree in their house because [Melton], who
was already living in San Fernando, La Union, visited his three
brothers and mother at their house in Sitio Baloking, Poblacion,
Manaoag, Pangasinan. At 9:45 in the evening, the three
brothers decided to proceed to Tidbits Videoke bar located at
the corner of Malvar and Rizal Streets, Poblacion, Manaoag to
continue their drinking spree and to sing. Inside the karaoke
bar, they were having a good time, singing and drinking beer.
Thereafter, at 10:30 in the evening, Jaime Palaganas arrived
together with Ferdinand Palaganas and Virgilio Bautista. At that
time, only the Ferrer brothers were the customers in the bar.
The two groups occupied separate tables. Later, when Jaime
Palaganas was singing, [Melton] Ferrer sang along with him as
he was familiar with the song [My Way]. Jaime however,
resented this and went near the table of the Ferrer brothers and
said in Pangasinan dialect "As if you are tough guys." Jaime
further said "You are already insulting me in that way." Then,
Jaime struck Servillano Ferrer with the microphone, hitting the
back of his head. A rumble ensued between the Ferrer brothers
on the one hand, and the Palaganases, on the other hand.
Virgilio Bautista did not join the fray as he left the place. During
the rumble, Ferdinand went out of the bar. He was however
pursued by Michael. When Servillano saw Michael, he also
went out and told the latter not to follow Ferdinand. Servillano
and Michael then went back inside the bar and continued their
fight with Jaime.
Meantime, Edith Palaganas, sister of Jaime and the owner of
the bar, arrived and pacified them. Servillano noticed that his
wristwatch was missing. Unable to locate the watch inside the
bar, the Ferrer brothers went outside. They saw Ferdinand
about eight (8) meters away standing at Rizal Street. Ferdinand
 was pointing at them and said to his companion, later identified
as petitioner [Rujjeric] Palaganas, "Oraratan paltog mo lara",
meaning "They are the ones, shoot them." Petitioner then shot
them hitting Servillano first at the left side of the abdomen,
causing him to fall on the ground, and followed by [Melton] who
also fell to the ground. When Servillano noticed that [Melton]
was no longer moving, he told Michael "Bato, bato." Michael
picked up some stones and threw them at petitioner and
Ferdinand. The latter then left the place. Afterwards, the police
officers came and the Ferrer brothers were brought to the
Manaoag Hospital and later to Villaflor Hospital in Dagupan.
Servillano later discovered that [Melton] was fatally hit in the
head while Michael was hit in the right shoulder.
On the other hand, the defense, in its Appellant's Brief dated 3
December 1999,14 asserted the following set of facts:
On January 16, 1998, at around 11:00 in the evening, after a
drinking session at their house, the brothers Melton (Tony),
Servillano (Junior) and Michael (Boying), all surnamed Ferrer,
occupied a table inside the Tidbits Café and Videoke Bar and
started drinking and singing. About thirty minutes later, Jaime
Palaganas along with his nephew Ferdinand (Apo) and friend
Virgilio Bautista arrived at the bar and occupied a table near
that of the Ferrers'.
After the Ferrers' turn in singing, the microphone was handed
over to Jaime Palaganas, who then started to sing. On his third
song [My Way], Jaime was joined in his singing by Tony Ferrer,
who sang loudly and in an obviously mocking manner. This
infuriated Jaime, who then accosted Tony, saying, "You are
already insulting us." The statement resulted in a free for all
fight between the Ferrers', on one hand, and the Palaganases
on the other. Jaime was mauled and Ferdinand, was hit on the
face and was chased outside of the bar by Junior and Boying
Ferrer.
Ferdinand then ran towards the house of the appellant Rujjeric
Palaganas, his brother, and sought the help of the latter.
Rujjeric, stirred from his sleep by his brother's shouts, went out
of his house and, noticing that the van of his uncle was in front
of the Tidbits Videoke Bar, proceeded to that place. Before
reaching the bar, however, he was suddenly stoned by the
Ferrer brothers and was hit on different parts of his body, so he
 turned around and struggled to run towards his house. He then
met his brother, Ferdinand, going towards the bar, so he tugged
him and urged him to run towards the opposite direction as the
Ferrer brothers continued pelting them with large stones.
Rujjeric then noticed that Ferdinand was carrying a gun, and,
on instinct, grabbed the gun from the latter, faced the Ferrer
brothers and fired one shot in the air to force the brothers to
retreat. Much to his surprise, however, the Ferrer brothers
continued throwing stones and when (sic) the appellant was
again hit several times. Unable to bear the pain, he closed his
eyes and pulled the trigger.
On 28 October 1998, the trial court rendered its Decision finding
petitioner guilty only of the crime of Homicide and two (2) counts of
Frustrated Homicide.15 He was, however, acquitted of the charge of
Violation of COMELEC Resolution No. 2958 in relation to Section 261
of the Omnibus Election Code.16 On the other hand, Ferdinand was
acquitted of all the charges against him.17
In holding that petitioner is liable for the crimes of Homicide and
Frustrated Homicide but not for Murder and Frustrated Murder, the
trial court explained that there was no conspiracy between petitioner
and Ferdinand in killing Melton and wounding Servillano and
Michael.18 According to the trial court, the mere fact that Ferdinand
"pointed" to where the Ferrer brothers were and uttered to petitioner
"Araratan, paltog mo lara!" (They are the ones, shoot them!), does
not in itself connote common design or unity of purpose to kill. It also
took note of the fact that petitioner was never a participant in the
rumble inside the Tidbits Cafe Videoke Bar (videoke bar) on the night
of 16 January 1998. He was merely called by Ferdinand to rescue
their uncle, Jaime, who was being assaulted by the Ferrer brothers. It
further stated that the shooting was instantaneous and without any
prior plan or agreement with Ferdinand to execute the same. It found
that petitioner is solely liable for killing Melton and for wounding
Servillano and Michael, and that Ferdinand is not criminally
responsible for the act of petitioner.
Further, it declared that there was no treachery that will qualify the
crimes as murder and frustrated murder since the Ferrer brothers
were given the chance to defend themselves during the shooting
incident by stoning the petitioner and Ferdinand.19 It reasoned that
the sudden and unexpected attack, without the slightest provocation
on the part of the victims, was absent. In addition, it ratiocinated that
there was no evident premeditation as there was no sufficient period
of time that lapsed from the point where Ferdinand called the
petitioner for help up to the point of the shooting of the Ferrer
brothers.20 Petitioner was sleeping at his house at the time he heard
Ferdinand calling him for help. Immediately, petitioner, still clad in
pajama and sleeveless shirt, went out of his room to meet Ferdinand.
Thereafter, both petitioner and Ferdinand went to the videoke bar
where they met the Ferrer brothers and, shortly afterwards, the
shooting ensued. In other words, according to the trial court, the
sequence of the events are so fast that it is improbable for the
petitioner to have ample time and opportunity to then plan and
organize the shooting.
Corollarily, it also stated that petitioner cannot successfully invoke
self-defense since there was no actual or imminent danger to his life
at the time he and Ferdinand saw the Ferrer brothers outside the
videoke bar.21 It noted that when petitioner and Ferdinand saw the
Ferrer brothers outside the videoke bar, the latter were not carrying
any weapon. Petitioner then was free to run or take cover when the
Ferrer brothers started pelting them with stones. Petitioner, however,
opted to shoot the Ferrer brothers. It also stated that the use by
petitioner of a gun was not a reasonable means to prevent the attack
of the Ferrer brothers since the latter were only equipped with stones,
and that the gun was deadlier compared to stones. Moreover, it also
found that petitioner used an unlicensed firearm in shooting the
Ferrer brothers.22
As regards the Violation of COMELEC Resolution No. 2958, in
relation to Section 261 of the Omnibus Election Code, the trial court
acquitted the petitioner of the offense as his use and possession of a
gun was not for the purpose of disrupting election activities.23 In
conclusion, the trial court held:
WHEREFORE, JUDGMENT is hereby rendered as follows:
1. Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is
hereby CONVICTED beyond reasonable doubt of the crime of
HOMICIDE (Not Murder) with the use of an unlicensed firearm.
The penalty imposable is in its maximum period which is 20
years. The Court sentences [Rujjeric] Palaganas to suffer the
penalty of Reclusion Temporal in its maximum period or 20
years of imprisonment; and to pay the heirs of [MELTON]
Ferrer the sum of P7,791.50 as actual medical expenses of
[MELTON] Ferrer; P500,000.00 as moral damages
representing unearned income of [MELTON]; P50,000.00 for
the death of [MELTON];P50,000.00 for exemplary damages
and P100,000.00 for burial and funeral expenses.
Ferdinand Palaganas is hereby ACQUITTED for failure of the
prosecution to prove conspiracy and likewise, for failure to
prove the guilt of Ferdinand Palaganas beyond reasonable
doubt.
2. Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is
hereby CONVICTED beyond reasonable doubt of the crime of
FRUSTRATED HOMICIDE (Not Frustrated Murder), with the
use of an unlicensed firearm, the Court sentences him to suffer
the penalty of Prision Mayor in its maximum period or 12 years
of imprisonment and to pay Servillano Ferrer the sum
of P163,569.90 for his medical expenses andP50,000.00 for
exemplary damages;
Ferdinand Palaganas is ACQUITTED for failure of the
prosecution to prove conspiracy and likewise, for failure to
prove the guilt of Ferdinand Palaganas beyond reasonable
doubt.
3. Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is
hereby CONVICTED beyond reasonable doubt of the crime of
FRUSTRATED HOMICIDE (Not Frustrated Murder), with the
use of an unlicensed firearm, the Court sentences him to suffer
the penalty of Prision Mayor in its maximum period or 12 years
of imprisonment; and to pay Michael Ferrer the sum
of P2,259.35 for his medical expenses and P50,000.00 for
exemplary damages;
Ferdinand Palaganas is ACQUITTED for failure of the
prosecution to prove conspiracy and likewise, for failure to
prove the guilt of Ferdinand Palaganas beyond reasonable
doubt.
Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena
Ferrer, the mother of the Ferrer brothers, the amount
of P100,000.00 as attorney's fees in CRIM. CASES NOS. U-
9608, U-9609, U-9610.
4. Under CRIM. CASE NO. U-9634, for failure of the
prosecution to prove the guilt of [Rujjeric] Palaganas beyond
reasonable doubt of the crime of Violation of COMELEC
Resolution No. 2958 in relation with Section 261 of the
 Omnibus Election Code, the Court ACQUITS [RUJJERIC]
PALAGANAS.24
Aggrieved, the petitioner appealed the foregoing Decision of the RTC
dated 28 October 1998, before the Court of Appeals. In its Decision
dated 30 September 2004, the Court of Appeals affirmed with
modifications the assailed RTC Decision. In modifying the Decision of
the trial court, the appellate court held that the mitigating
circumstance of voluntary surrender under Article 13, No. 7, of the
Revised Penal Code should be appreciated in favor of petitioner
since the latter, accompanied by his counsel, voluntarily appeared
before the trial court, even prior to its issuance of a warrant of arrest
against him.25 It also stated that the Indeterminate Sentence Law
should be applied in imposing the penalty upon the petitioner.26 The
dispositive portion of the Court of Appeals' Decision reads:
WHEREFORE, the judgment of conviction is hereby
AFFIRMED, subject to the MODIFICATION that the penalty to
be imposed for the crimes which the appellant committed are
as follows:
(1) For Homicide (under Criminal Case No. U-9610), the
appellant is ordered to suffer imprisonment of ten (10) years
of prision mayor as minimum to seventeen (17) years and four
(4) months of reclusion temporalas maximum. Appellant is also
ordered to pay the heirs of Melton Ferrer civil indemnity in the
amount ofP50,000.00, moral damages in the amount
of P50,000.00 without need of proof and actual damages in the
amount of P43,556.00.
(2) For Frustrated Homicide (under Criminal Case No. U-9609),
the appellant is hereby ordered to suffer imprisonment of four
(4) years and two (2) months of prision correcional as minimum
to ten (10) years ofprision mayor as maximum. Appellant is also
ordered to pay Michael Ferrer actual damages in the amount
of P2,259.35 and moral damages in the amount of P30,000.00.
(3) For Frustrated Homicide (under Criminal Case No. U-9608),
the appellant is hereby penalized with imprisonment of four (4)
years and two (2) months of prision correcional as minimum to
ten (10) years ofprision mayor as maximum. Appellant is also
ordered to pay Servillano Ferrer actual damages in the amount
of P163,569.90 and moral damages in the amount
of P30,000.00.27
On 16 November 2004, petitioner lodged the instant Petition for
Review before this Court on the basis of the following arguments:
I.
THE HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE JUDGMENT OF CONVICTION OF THE
TRIAL COURT.
II.
THE HONORABLE COURT OF APPEALS ERRED IN NOT
ACQUITTING ACCUSED-APPELLANT ON THE GROUND OF
LAWFUL SELF-DEFENSE.28
Anent the first issue, petitioner argued that all the elements of a valid
self-defense are present in the instant case and, thus, his acquittal on
all the charges is proper; that when he fired his gun on that fateful
night, he was then a victim of an unlawful aggression perpetrated by
the Ferrer brothers; that he, in fact, sustained an injury in his left leg
and left shoulder caused by the stones thrown by the Ferrer brothers;
that the appellate court failed to consider a material evidence
described as "Exhibit O"; that "Exhibit O" should have been given due
weight since it shows that there was slug embedded on
the sawali wall near the sign "Tidbits Café and Videoke Bar"; that the
height from which the slug was taken was about seven feet from the
ground; that if it was true that petitioner and Ferdinand were waiting
for the Ferrer brothers outside the videoke bar in order to shoot them,
then the trajectory of the bullets would have been either straight or
downward and not upward considering that the petitioner and the
Ferrer brothers were about the same height (5'6"-5'8"); that the slug
found on the wall was, in fact, the "warning shot" fired by the
petitioner; and, that if this exhibit was properly appreciated by the trial
court, petitioner would be acquitted of all the charges.29
Moreover, petitioner contended that the warning shot proved that that
the Ferrer brothers were the unlawful aggressors since there would
have been no occasion for the petitioner to fire a warning shot if the
Ferrer brothers did not stone him; that the testimony of Michael in the
trial court proved that it was the Ferrer brothers who provoked
petitioner to shoot them; and that the Ferrer brothers pelted them with
stones even after the "warning shot."30
Petitioner's contention must fail.
Article 11, paragraph (1), of the Revised Penal Code provides for the
elements and/or requisites in order that a plea of self-defense may be
validly considered in absolving a person from criminal liability, viz:
 ART. 11. Justifying circumstances. – The following do not incur
any criminal liability:
1. Anyone who acts in defense of his person or rights, provided
that the following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself. x x x.
As an element of self-defense, unlawful aggression refers to an
assault or attack, or a threat thereof in an imminent and immediate
manner, which places the defendant's life in actual peril.31 It is an act
positively strong showing the wrongful intent of the aggressor and not
merely a threatening or intimidating attitude.32 It is also described as a
sudden and unprovoked attack of immediate and imminent kind to the
life, safety or rights of the person attacked.33
There is an unlawful aggression on the part of the victim when he
puts in actual or imminent peril the life, limb, or right of the person
invoking self-defense. There must be actual physical force or actual
use of weapon.34 In order to constitute unlawful aggression, the
person attacked must be confronted by a real threat on his life and
limb; and the peril sought to be avoided is imminent and actual, not
merely imaginary.35
In the case at bar, it is clear that there was no unlawful aggression on
the part of the Ferrer brothers that justified the act of petitioner in
shooting them. There were no actual or imminent danger to the lives
of petitioner and Ferdinand when they proceeded and arrived at the
videoke bar and saw thereat the Ferrer brothers. It appears that the
Ferrer brothers then were merely standing outside the videoke bar
and were not carrying any weapon when the petitioner arrived with
his brother Ferdinand and started firing his gun.36
Assuming, arguendo, that the Ferrer brothers had provoked the
petitioner to shoot them by pelting the latter with stones, the shooting
of the Ferrer brothers is still unjustified. When the Ferrer brothers
started throwing stones, petitioner was not in a state of actual or
imminent danger considering the wide distance (4-5 meters) of the
latter from the location of the former.37 Petitioner was not cornered
nor trapped in a specific area such that he had no way out, nor was
his back against the wall. He was still capable of avoiding the stones
by running away or by taking cover. He could have also called or
proceeded to the proper authorities for help. Indeed, petitioner had
several options in avoiding dangers to his life other than confronting
the Ferrer brothers with a gun.
The fact that petitioner sustained injuries in his left leg and left
shoulder, allegedly caused by the stones thrown by the Ferrer
brothers, does not signify that he was a victim of unlawful aggression
or that he acted in self-defense.38 There is no evidence to show that
his wounds were so serious and severe. The superficiality of the
injuries sustained by the petitioner is no indication that his life and
limb were in actual peril.39
Petitioner's assertion that, despite the fact that he fired a warning
shot, the Ferrer brothers continued to pelt him with stones,40 will not
matter exonerate him from criminal liability. Firing a warning shot was
not the last and only option he had in order to avoid the stones
thrown by the Ferrer brothers. As stated earlier, he could have run
away, or taken cover, or proceeded to the proper authorities for help.
Petitioner, however, opted to shoot the Ferrer brothers.
It is significant to note that the shooting resulted in the death of
Melton, and wounding of Servillano and Michael. With regard to
Melton, a bullet hit his right thigh, and another bullet hit his head
which caused his instant death.41As regards Servillano, a bullet
penetrated two of his vital organs, namely, the large intestine and
urinary bladder.42 He underwent two (2) surgeries in order to survive
and fully recover.43 Michael, on the other hand, sustained a gunshot
wound on the right shoulder.44 It must also be noted that the Ferrer
brothers were shot near the videoke bar, which contradict petitioner's
claim he was chased by the Ferrer brothers. Given the foregoing
circumstances, it is difficult to believe that the Ferrer brothers were
the unlawful aggressors. As correctly observed by the prosecution, if
the petitioner shot the Ferrer brothers just to defend himself, it defies
reason why he had to shoot the victims at the vital portions of their
body, which even led to the death of Melton who was shot at his
head.45 It is an oft-repeated rule that the nature and number of
wounds inflicted by the accused are constantly and unremittingly
considered important indicia to disprove a plea of self-defense.46
Let it not be forgotten that unlawful aggression is a primordial element
in self-defense.47 It is an essential and indispensable requisite, for
without unlawful aggression on the part of the victim, there can be, in
a jural sense, no complete or incomplete self-defense.48 Without
unlawful aggression, self-defense will not have a leg to stand on and
this justifying circumstance cannot and will not be appreciated, even if
the other elements are present.49 To our mind, unlawful aggression,
as an element of self-defense, is wanting in the instant case.
The second element of self-defense requires that the means
employed by the person defending himself must be reasonably
necessary to prevent or repel the unlawful aggression of the victim.
The reasonableness of the means employed may take into account
the weapons, the physical condition of the parties and other
circumstances showing that there is a rational equivalence between
the means of attack and the defense.50 In the case at bar, the
petitioner's act of shooting the Ferrer brothers was not a reasonable
and necessary means of repelling the aggression allegedly initiated
by the Ferrer brothers. As aptly stated by the trial court, petitioner's
gun was far deadlier compared to the stones thrown by the Ferrer
brothers.51
Moreover, we stated earlier that when the Ferrer brothers allegedly
threw stones at the petitioner, the latter had other less harmful
options than to shoot the Ferrer brothers. Such act failed to pass the
test of reasonableness of the means employed in preventing or
repelling an unlawful aggression.
With regard to the second issue, petitioner asserts that the Court of
Appeals erred in not acquitting him on the ground of lawful self-
defense.
Petitioner's argument is bereft of merit.
In resolving criminal cases where the accused invokes self-defense
to escape criminal liability, this Court consistently held that where an
accused admits killing the victim but invokes self-defense, it is
incumbent upon the accused to prove by clear and convincing
evidence that he acted in self-defense.52 As the burden of evidence is
shifted on the accused to prove all the elements of self-defense, he
must rely on the strength of his own evidence and not on the
weakness of the prosecution.53
As we have already found, there was no unlawful aggression on the
part of the Ferrer brothers which justified the act of petitioner in
shooting them. We also ruled that even if the Ferrer brothers
provoked the petitioner to shoot them, the latter's use of a gun was
not a reasonable means of repelling the act of the Ferrer brothers in
throwing stones. It must also be emphasized at this point that both
the trial court and the appellate court found that petitioner failed to
established by clear and convincing evidence his plea of self-
defense. In this regard, it is settled that when the trial court's findings
have been affirmed by the appellate court, said findings are generally
conclusive and binding upon this Court.54 In the present case, we find
no compelling reason to deviate from their findings. Verily, petitioner
failed to prove by clear and convincing evidence that he is entitled to
an acquittal on the ground of lawful self-defense.
On another point, while we agree with the trial court and the Court of
Appeals that petitioner is guilty of the crime of Homicide for the death
of Melton in Criminal Case No. U-9610, and Frustrated Homicide for
the serious injuries sustained by Servillano in Criminal Case No. U-
9608, we do not, however, concur in their ruling that petitioner is
guilty of the crime of Frustrated Homicide as regards to Michael in
Criminal Case No. U-9609. We hold that petitioner therein is guilty
only of the crime of Attempted Homicide.
Article 6 of the Revised Penal Code states and defines the stages of
a felony in the following manner:
ART. 6. Consummated, frustrated, and attempted felonies. –
Consummated felonies, as well as those which are frustrated
and attempted, are punishable.
A felony is consummated when all the elements necessary for
the for its execution and accomplishment are present; and it
is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence
but which, nevertheless, do not produce it by reason or causes
independent of the will of the perpetrator.
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his own
spontaneous desistance (italics supplied).
Based on the foregoing provision, the distinctions between frustrated
and attempted felony are summarized as follows:
1.) In frustrated felony, the offender has performed all the acts
of execution which should produce the felony as a
consequence; whereas in attempted felony, the offender merely
commences the commission of a felony directly by overt acts
and does not perform all the acts of execution.
2.) In frustrated felony, the reason for the non-accomplishment
of the crime is some cause independent of the will of the
perpetrator; on the other hand, in attempted felony, the reason
 for the non-fulfillment of the crime is a cause or accident other
than the offender's own spontaneous desistance.
In addition to these distinctions, we have ruled in several cases that
when the accused intended to kill his victim, as manifested by his use
of a deadly weapon in his assault, and his victim sustained fatal or
mortal wound/s but did not die because of timely medical assistance,
the crime committed is frustrated murder or frustrated homicide
depending on whether or not any of the qualifying circumstances
under Article 249 of the Revised Penal Code are present.55 However,
if the wound/s sustained by the victim in such a case were not fatal or
mortal, then the crime committed is only attempted murder or
attempted homicide.56 If there was no intent to kill on the part of the
accused and the wound/s sustained by the victim were not fatal, the
crime committed may be serious, less serious or slight physical
injury.57
Based on the medical certificate of Michael, as well as the testimony
of the physician who diagnosed and treated Michael, the latter was
admitted and treated at the Dagupan Doctors-Villaflor Memorial
Hospital for a single gunshot wound in his right shoulder caused by
the shooting of petitioner.58 It was also stated in his medical certificate
that he was discharged on the same day he was admitted and that
the treatment duration for such wound would be for six to eight days
only.59 Given these set of undisputed facts, it is clear that the gunshot
wound sustained by Michael in his right shoulder was not fatal or
mortal since the treatment period for his wound was short and he was
discharged from the hospital on the same day he was admitted
therein. Therefore, petitioner is liable only for the crime of attempted
homicide as regards Michael in Criminal Case No. U-9609.
With regard to the appreciation of the aggravating circumstance of
use of an unlicensed firearm, we agree with the trial court and the
appellate court that the same must be applied against petitioner in the
instant case since the same was alleged in the informations filed
against him before the RTC and proven during the trial. However,
such must be considered as a special aggravating circumstance, and
not a generic aggravating circumstance.
Generic aggravating circumstances are those that generally apply to
all crimes such as those mentioned in Article 14, paragraphs No. 1, 2,
3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has
the effect of increasing the penalty for the crime to its maximum
period, but it cannot increase the same to the next higher degree. It
must always be alleged and charged in the information, and must be
proven during the trial in order to be appreciated.60 Moreover, it can
be offset by an ordinary mitigating circumstance.
On the other hand, special aggravating circumstances are those
which arise under special conditions to increase the penalty for the
offense to its maximum period, but the same cannot increase the
penalty to the next higher degree. Examples are quasi-recidivism
under Article 160 and complex crimes under Article 48 of the Revised
Penal Code. It does not change the character of the offense
charged.61 It must always be alleged and charged in the information,
and must be proven during the trial in order to be
appreciated.62 Moreover, it cannot be offset by an ordinary mitigating
circumstance.
It is clear from the foregoing that the meaning and effect of generic
and special aggravating circumstances are exactly the same except
that in case of generic aggravating, the same CAN be offset by an
ordinary mitigating circumstance whereas in the case of special
aggravating circumstance, it CANNOT be offset by an ordinary
mitigating circumstance.
Aside from the aggravating circumstances abovementioned, there is
also an aggravating circumstance provided for under Presidential
Decree No. 1866,63 as amended by Republic Act No. 8294,64 which is
a special law. Its pertinent provision states:
If homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance.
In interpreting the same provision, the trial court reasoned that such
provision is "silent as to whether it is generic or qualifying."65 Thus, it
ruled that "when the law is silent, the same must be interpreted in
favor of the accused."66 Since a generic aggravating circumstance is
more favorable to petitioner compared to a qualifying aggravating
circumstance, as the latter changes the nature of the crime and
increase the penalty thereof by degrees, the trial court proceeded to
declare that the use of an unlicensed firearm by the petitioner is to be
considered only as a generic aggravating circumstance.67 This
interpretation is erroneous since we already held in several cases
that with the passage of Republic Act. No. 8294 on 6 June 1997, the
use of an unlicensed firearm in murder or homicide is now considered
as a SPECIAL aggravating circumstance and not a generic
aggravating circumstance.68 Republic Act No. 8294 applies to the
instant case since it took effect before the commission of the crimes
in 21 April 1998. Therefore, the use of an unlicensed firearm by the
petitioner in the instant case should be designated and appreciated
as a SPECIAL aggravating circumstance and not merely a generic
aggravating circumstance.
As was previously established, a special aggravating circumstance
cannot be offset by an ordinary mitigating circumstance. Voluntary
surrender of petitioner in this case is merely an ordinary mitigating
circumstance. Thus, it cannot offset the special aggravating
circumstance of use of unlicensed firearm. In accordance with Article
64, paragraph 3 of the Revised Penal Code, the penalty imposable
on petitioner should be in its maximum period.69
As regards the civil liability of petitioner, we deem it necessary to
modify the award of damages given by both courts.
In Criminal Case No. U-9610 for Homicide, we agree with both courts
that the proper amount of civil indemnity isP50,000.00, and that the
proper amount for moral damages is P50,000.00 pursuant to
prevailing jurisprudence.70However, based on the receipts for
hospital, medicine, funeral and burial expenses on record, and upon
computation of the same, the proper amount of actual damages
should be P42,374.18, instead of P43,556.00. Actual damages for
loss of earning capacity cannot be awarded in this case since there
was no documentary evidence to substantiate the same.71 Although
there may be exceptions to this rule,72 none is availing in the present
case. Nevertheless, since loss was actually established in this case,
temperate damages in the amount ofP25,000.00 may be awarded to
the heirs of Melton Ferrer. Under Article 2224 of the New Civil Code,
temperate or moderate damages may be recovered when the court
finds that some pecuniary loss was suffered but its amount cannot be
proved with certainty. Moreover, exemplary damages should be
awarded in this case since the presence of special aggravating
circumstance of use of unlicensed firearm was already
established.73 Based on prevailing jurisprudence, the award of
exemplary damages for homicide is P25,000.00.74
In Criminal Cases No. U-9608 and U-9609, we agree with both courts
as to the award of actual damages and its corresponding amount
since the same is supported by documentary proof therein. The
award of moral damages is also consistent with prevailing
jurisprudence. However, exemplary damages should be awarded in
this case since the presence of special aggravating circumstance of
use of unlicensed firearm was already established. Based on
prevailing jurisprudence, the award of exemplary damages for both
the attempted and frustrated homicide shall be P25,000.00 for each.
WHEREFORE, premises considered, the decision of the Court of
Appeals dated 30 September 2004 is herebyAFFIRMED with the
following MODIFICATIONS:
(1) In Criminal Case No. U-9609, the petitioner is found guilty of the
crime of attempted homicide. The penalty imposable on the petitioner
is prision correccional under Article 51 of the Revised Penal
Code.75 There being a special aggravating circumstance of the use of
an unlicensed firearm and applying the Indeterminate Sentence of
Law, the penalty now becomes four (4) years and two (2) months
of arresto mayor as minimum period to six (6) years of prision
correccional as maximum period. As regards the civil liability of
petitioner, the latter is hereby ordered to pay Michael Ferrer
exemplary damages in the amount of P25,000.00 in addition to the
actual damages and moral damages awarded by the Court of
Appeals.
(2) In Criminal Case No. U-9608, the penalty imposable on the
petitioner for the frustrated homicide is prision mayor under Article 50
of the Revised Penal Code.76 There being a special aggravating
circumstance of the use of an unlicensed firearm and applying the
Indeterminate Sentence Law, the penalty now becomes six (6) years
ofprision correccional as minimum period to twelve (12) years
of prision mayor as maximum period. As regards the civil liability of
petitioner, the latter is hereby ordered to pay Servillano Ferrer
exemplary damages in the amount of P25,000.00 in addition to the
actual damages and moral damages awarded by the Court of
Appeals.
(3) In Criminal Case No. U-9610, the penalty imposable on petitioner
for the homicide is reclusion temporal under Article 249 of the
Revised Penal Code.77 There being a special aggravating
circumstance of the use of an unlicensed firearm and applying the
Indeterminate Sentence Law, the penalty now is twelve (12) years
of prision mayor as minimum period to twenty (20) years of reclusion
temporal as maximum period. As regards the civil liability of
petitioner, the latter is hereby ordered to pay Melton Ferrer exemplary
damages in the amount ofP25,000.00 in addition to the actual
damages and moral damages awarded by the Court of Appeals. The
actual damages likewise awarded by the Court of Appeals is hereby
reduced to P42,374.18.
SO ORDERED.

G.R. No. 170136 January 18, 2008

PEOPLE OF THE PHILIPPINES, appellee,
vs.
ROBERT BRODETT y PAJARO, appellant.
RESOLUTION
CARPIO, J.:
Before this Court for review is the 2 August 2005 Decision1 of the
Court of Appeals in CA-G.R. CR No. 00776. The Court of Appeals
affirmed the decision of the Regional Trial Court, Branch 46,
Urdaneta City, Pangasinan, finding appellant Robert Brodett y Pajaro
(appellant) guilty of murder, with the modification that only the generic
aggravating circumstance of scoffing at the corpse is appreciated.
Appellant, together with Ronald Dulay (Dulay) and Reynald de
Guzman were charged with murdering Dr. April Duque (April). They
pleaded not guilty upon arraignment and trial ensued thereafter.
The prosecution established during the trial that on 29 December
2000, the Philippine National Police (PNP) Station at Alcala,
Pangasinan received a report at around 2:00 a.m. regarding a
burning corpse on the spillway of Laoac, Alcala, along the national
highway. Chief of Police Ludovico Bravo and his men proceeded to
the site and saw the corpse still burning. They poured water over the
burning corpse until the fire was extinguished. They noted that the
burned corpse was that of a woman who was about five feet tall and
with fair complexion. They brought the corpse to a funeral parlor
where an autopsy was performed by Dr. Alfredo Laguardia (Dr.
Laguardia). A ring and a wristwatch taken from the left arm of the
corpse were turned over to the head investigator of the police station.
On 15 January 2001, the corpse was buried at the public cemetery
after it remained unclaimed for several days.
On 1 February 2001, April’s mother and some agents of the National
Bureau of Investigation (NBI) from Dagupan City inquired at the PNP
Alcala Station about a missing person named April. The NBI agents
wanted to verify whether the corpse found on the spillway was that of
April. When shown a picture of the burned corpse, April’s mother
exclaimed that it was her daughter. April’s mother and the NBI agents
went to the cemetery and had the corpse exhumed. Upon seeing the
corpse, April’s mother cried and exclaimed that the facial features
were those of her daughter and that she knew it was her daughter.
She also identified the ring and wristwatch taken from the corpse as
belonging to her daughter.
Prior to her death, April had been the live-in partner of appellant for
nine years. April and appellant have a then 5-year-old son named
Giobert, who was one of the prosecution witnesses. According to
Giobert, his mommy was already in heaven because his daddy killed
her. Giobert testified that he saw his daddy hit his mommy’s head
with a hammer and that his daddy also stabbed his mommy.
Another prosecution witness was Shirley Duzon (Shirley), the
assistant of April, who was a dermatologist, in her clinic. Shirley
testified that on 28 December 2000, she was at the clinic together
with April’s son, Giobert. According to Shirley, April was scheduled to
leave for Hong Kong at 11:00 p.m. that day together with her alleged
new boyfriend Dulay and her son Giobert. When April failed to return
to the clinic, Shirley decided to close the clinic at around 9:00 p.m.
and brought Giobert to April’s residence. Shirley identified the ring
and wristwatch taken from the corpse as belonging to April.
The defense presented appellant as the lone witness. Appellant
admitted that he was the live-in partner of April for nine years.
Appellant, April, and their son Giobert lived together in a townhouse
in Urdaneta Villas. Appellant’s testimony delved mainly on April’s
alleged hatred of her mother because of the latter’s extra-marital
relations. When asked about the ring and wristwatch taken from the
corpse, appellant denied that these items belonged to April.
On 5 June 2002, the trial court rendered a decision, the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds the
accused ROBERT BRODETT y Pajaro, GUILTY beyond
reasonable doubt of the crime of MURDER defined and
penalized under Republic Act No. 7659 otherwise known as the
Heinous Crime[s] Law, the offense having been committed with
the attendant aggravating circumstances of superior strength,
dwelling, with insult or in disregard of the respect due the
offended party on account of her sex, cruelty and outraging or
scoffing at her person or corpse, hereby sentences him the
ultimum suplicum of DEATH to be executed pursuant to
Republic Act No. 8177 known as the Lethal Injection Law, to
 pay the heirs of the victim DRA. APRIL SANTOS-DUQUE in the
amount ofP50,000.00 as indemnity and P1,000,000.00 as
moral damages, and to pay the costs.
It is said: "Dura Lex, sed lex," translated as "The law is harsh,
but that is the law!"
With respect to the accused RONALD DULAY and REYNALD
DE GUZMAN, for insufficiency of evidence against them, the
Court declares their ACQUITTAL. The warden of the Bureau of
Jail Management and Penology (BJMP) of Urdaneta City,
Pangasinan, where the accused are presently detained, is
ordered to release immediately the persons of the said accused
Dulay and de Guzman, unless they are detained for any legal
or lawful cause or causes.
SO ORDERED.2
On appeal, appellant alleged that the prosecution failed to prove his
guilt beyond reasonable doubt.
In its 2 August 2005 Decision, the Court of Appeals affirmed the trial
court’s decision with the modification that, aside from the qualifying
circumstance of treachery, only the generic aggravating circumstance
of scoffing at the corpse is appreciated. The Court of Appeals held
that the murder of April was qualified by treachery. The injuries
suffered by April clearly showed that she did not have any chance to
defend herself. As regards the aggravating circumstance of abuse of
superior strength, the Court of Appeals held that it was already
absorbed in treachery. Since appellant and April resided in the same
house, the appellate court ruled that the aggravating circumstance of
dwelling could not be considered. The Court of Appeals likewise did
not appreciate the aggravating circumstance of disrespect on account
of sex since appellant did not deliberately intend to insult or
disrespect April’s womanhood. However, the appellate court agreed
with the trial court in appreciating the aggravating circumstance of
outraging or scoffing at the victim’s corpse which was burned and left
on the spillway in order to conceal the crime.
We agree with the Court of Appeals that the evidence of the
prosecution clearly established that appellant murdered April. The
most incriminatory evidence against appellant came from appellant’s
5-year-old son Giobert who saw his father kill his mother April.
Giobert even demonstrated in court how appellant killed his mother.
Giobert’s testimony of how April was killed was corroborated by the
medico-legal report of Dr. Laguardia3 and the autopsy report of Dr.
Ronald Bandonill.4
In this case, appellant killed April by hitting her head with a hammer
and stabbing her neck using a bladed weapon. The medical and
autopsy reports revealed that April sustained contusion, lacerated
wounds and hematoma on the scalp and forehead, and a neck stab
wound.5 Clearly, the killing of April was attended by treachery and
abuse of superior strength. There is treachery when the mode of the
attack tends to insure the accomplishment of the criminal purpose
without risk to the attacker arising from any defense the victim might
offer.6 Furthermore, an attack by a man with a deadly weapon upon
an unarmed and defenseless woman constitutes abuse of superior
strength.7 However, abuse of superior strength as an aggravating
circumstance is already absorbed in treachery.8
The trial court and the appellate court imposed upon appellant the
death penalty. However, in view of the effectivity of Republic Act No.
9346,9 the imposition of the death penalty has been prohibited and in
lieu thereof, the penalty of reclusion perpetua should be imposed,
without eligibility for parole. We also reduce the award of moral
damages from P1,000,000 to P50,000 and increase the civil
indemnity from P50,000 to P75,000 in accordance with prevailing
jurisprudence.10 Furthermore, since the offense is attended by
aggravating circumstances, exemplary damages in the amount
of P25,000 should also be imposed.11
WHEREFORE, we AFFIRM with MODIFICATION the 2 August 2005
Decision of the Court of Appeals in CA-G.R. CR No. 00776. We find
appellant Robert Brodett y Pajaro guilty beyond reasonable doubt of
the crime of murder, qualified by treachery and with the attendant
aggravating circumstance of outraging or scoffing at the victim’s
corpse. Pursuant to Republic Act No. 9346, prohibiting the imposition
of the death penalty, appellant is sentenced to suffer the penalty
of reclusion perpetua without eligibility for parole. Appellant is further
ordered to pay the victim’s heirs P75,000 as civil indemnity, P50,000
as moral damages, and P25,000 as exemplary damages.
Costs against appellant.
SO ORDERED.

G.R. No. L-39051 June 29, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FAUSTINO DEL MUNDO, alias Commander Sumulong, accused-
appellant.

PER CURIAM:
This is a case of kidnapping with murder involving the Huks,
members of the Hukbong Mapagpalaya ng Bayan, the military arm of
the Communist Party of the Philippines.
Counsel for Faustino del Mundo, alias Commander Sumulong, admits
that the said accused ordered the killing of the victim, Marciano T.
Miranda, 41, the barrio captain of Barrio Balitucan, Magalang,
Pampanga, who was an alleged army informer and who was opposed
to the candidacy of Rogelio Tiglao, a provincial board member. (p. 11,
Brief; p. 140, Rollo).
Del Mundo contends that he should be convicted only of homicide
and sentenced to reclusion temporal medium and that the trial court
erred in convicting him of the said complex crime and in sentencing
him to reclusion perpetua (p. 12, Brief).
For his part, the Solicitor General submits that Del Mundo is guilty of
that complex crime and should be sentenced to death.
The evidence shows that between five and six o'clock in the
afternoon of October 13, 1969 Felixberto Macalino (alias Commander
Berting), Numeriano Cabrera, Bartolome Lacson, Fernando
Macasaquit and four other persons, all armed with firearms, were in
Barrio Balitucan, looking for Miranda. Not finding him in his house,
the armed group, accompanied by Ponciano Salvador, cruised
around the barrio in a jeepney driven by Policarpio Avenir.
Near a brook around two hundred meters from Miranda's house, the
group saw a truck driven by Miranda. Cabrera talked with Miranda
who shortly thereafter instructed Avenir to drive the truck to his
(Miranda's) house. The group brought Miranda, whose hands were
handcuffed (No. 19, Exh. D), to Barrio Sta. Lucia, Magalang and
delivered him to Commander Joe Bombay, Commander Mike and
two persons.
The following day, October 14, Faustino del Mundo and Ricardo
Pangilinan brought Miranda in a jeepney to Sitio Cauayan, Barrio
Pampang, Angeles City. After the jeepney was parked near a
bamboo grove, Del Mundo interrogated Miranda in the presence of
Maximo Licup, Tomas Licup, Dionisio Angeles, Domingo Ocampo
and Bernardo Pineda (son-in-law of Del Mundo, Exh. B-1) who had
followed the jeepney upon Del Mundo's instruction. Del Mundo asked
Miranda why he was fighting Tiglao. After Miranda denied that
imputation, Del Mundo boxed him. Del Mundo threatened to kill him if
he did not tell the truth.
Meanwhile, Angeles, Ocampo, Tomas Licup and Maximo Licup
started digging a grave. As Miranda persisted in his denials, Del
Mundo directed Pangilinan to bind Miranda and bring him near the
grave. Pangilinan complied. Del Mundo told Miranda to say his
prayers.
While Miranda was praying, Maximo Licup, acting on a signal given
by Del Mundo, struck Miranda with a pipe. Miranda fell into the grave.
Del Mundo told him that he (Miranda) would rot in the grave for not
telling the truth. Angeles, Ocampo and the two Licups covered the
grave. Then, Del Mundo and his companion left the place.
The kidnapping and killing were politically motivated. Miranda refused
to support Tiglao, the candidate for Congressman of the Huks. He
supported Rafael Lazatin, the Nacionalista candidate (No. 15, Exh. 1-
Cabrera).
More than six months later, or on May 8, 1970, a team of
Constabulary soldiers, acting on the information furnished by Pineda,
ordered some detainees to exhume the body of Miranda in Barrio
Cauayan. Two corpses in an advanced state of decomposition but
with the clothes partly preserved were exhumed in the spot where
Miranda was buried. The city health officer issued an exhumation
report wherein he noted that one of the skulls showed the absence of
six upper teeth and a linear fracture in the upper jaw and that the
nasal bones were fractured (Exh. A).
Miranda's skeletonized remains were Identified by his wife, Eufracia
Quiambao, and by his brother, Domingo. Eufracia recognized the
cadaver as that of her husband because of his clothes and the fact
that his molars were missing. Domingo confirmed the absence of the
six molars which, according to him, were removed by the dentist
when Miranda was still single. Domingo also Identified the body by
means of the hair which was reddish. On the basis of that
Identification, a death certificate was issued and the Government
Service Insurance System paid Miranda's wife P5,000 as the
insurance compensation due to the heirs of a barrio captain who was
killed.
Even before that exhumation, or on January 24, 1970, a
Constabulary investigator filed, in connection with the killing of
Miranda, in the municipal court of Magalang a complaint for
kidnapping and serious illegal detention against Cabrera, Macasaquit,
Lacson, Commander Berting and four other persons. The complaint
was based on the statements of Salvador and Avenir (Exh. 1-Cabrera
and Exh. 1-Macalino).
On November 4, 1970, another Constabulary investigator filed an
amended complaint for kidnapping with murder. Del Mundo and
others were included in the amended complaint. Del Mundo (Tanda)
was supposed to be the second highest officer of the Huks (No. 9,
Exh. C). The case was elevated to the Court of First Instance at
Angeles City. On June 18, 1971, the fiscal filed with the Circuit
Criminal Court at San Fernando, Pampanga an information for
kidnapping with murder against Del Mundo, Pangilinan, Macasaquit,
Cabrera, Macalino, Angeles, Lacson, Ernesto Meneses, Leonardo
Salas, Domingo Ocampo, Maximo Licup, Tomas Licup and others not
Identified.
Del Mundo did not testify in his defense. As already stated, the trial
court convicted him of kidnapping with murder together with
Pangilinan, Macasaquit and Cabrera, sentenced him to reclusion
perpetua and ordered him to pay an indemnity of P17,000 to
Miranda's heirs. Macalino and Meneses were acquitted. Salas died
during the pendency of the case. Only Del Mundo appealed.
His counsel de oficio contends that there was no intention to deprive
Miranda of his liberty and no premeditated plan to kill him (p. 9, Brief).
That contention is not well-taken. The fact is that Miranda was forcibly
removed from his barrio and deprived of his liberty for several hours
and was then brought to another place where he was killed. While
under interrogation, his grave was already being prepared. The fatal
blow, which was inflicted upon him, caused him to fall into his grave.
We find that there was a conspiracy to liquidate Miranda and that the
kidnapping was utilized as a means to attain that objective. From the
surrounding circumstances, it maybe inferred that Del Mundo
masterminded the kidnapping or induced it and that, as observed by
the Solicitor General, the killing was intended to terrorize the
supporters of Lazatin.
Miranda was a public officer. His kidnapping is covered by article
267(4) of the Revised Penal Code which imposes the penalty
of reclusion perpetua to death for that offense.
The killing of Miranda was murder because his hands were bound
when he was mortally assaulted (U.S. vs. Elicanal, 35 Phil. 209 and
other cases).
Even without taking into account evident premeditation, the death
penalty has to be imposed because article 48 of the Revised Penal
Code requires that the graver penalty for kidnapping, which is more
serious than murder, has to be meted out to Del Mundo
(Parulan vs. Rodas, 78 Phil. 855; People vs. Parulan, 88 Phil. 615,
624).
This case has some parallelism with People vs. Umali and De la
Cruz, 100 Phil. 1095, where the accused, who with 47 companions,
kidnapped three persons on the night of September 20, 1948 in
Barlis, Cabanatuan City and took them to Barrio Buliran of the same
city where they were killed, was found guilty of three separate and
distinct complex crimes of kidnapping with murder.
However, inasmuch as Del Mundo is now seventy-eight (78) years
old, the death penalty cannot be imposed upon him (Art. 83, Revised
Penal Code).
WHEREFORE, the trial court's judgment is modified in the sense that
the death penalty imposable on Del Mundo is commuted to reclusion
perpetua with the accessory penalties provided in article 40. In all
other respects, the trial court's judgment is affirmed. Costs de oficio.
SO ORDERED.

[G.R. No. 123917. December 10, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. ARTEMIO
ELLORABA, ARTURO MANAOG and ZOSIMO
MIRANDA, accused.
ZOSIMO MIRANDA, appellant.
DECISION
CALLEJO, SR., J.:
On December 11, 1987, at about 7:00 a.m., Antonio Ladan was
walking along Barangay Liwayway, MacArthur, Leyte, on his way back
home from the house of his cousin Juanito Tisten. Antonio had just
spoken with Juanito regarding the sale of his property located in
Barangay San Roque. Leticia Galvez, the wife of Barangay Captain
Dominador Galvez, was hanging laundry near the house of her brother-
in-law, and was chatting with Epifania (Panyang) Advincula. Pelagio
Mediona’s residence was located near the houses of Dominador and
Antonio. As Antonio passed by, he saw Dominador in front of Pelagio’s
house. Antonio was shocked when, from behind and on Dominador’s
left, he saw Artemio Elloraba point his shotgun at Dominador and shoot
the latter once on the back. Dominador fell to the ground face down.
When she heard the gunshot, Leticia looked towards the direction of the
gunfire and saw her husband fall. She saw Artemio swing his shotgun
from left to right, and vice-versa. Arturo Manaog, who was armed with a
small bolo (pisao), turned Dominador’s body face up, and stabbed him
more than once with the bolo. Zosimo Miranda followed suit and
stabbed Dominador once with his bolo. The three then fled from the
scene, towards the direction of Baliri river.
At the time of the shooting, Marcelino Ngoho, Dominador’s brother-
in-law, was travelling along the road of Barangay Liwayway on his
motocycle. As he neared Pelagio’s house, he saw Dominador in the
yard. He then saw Artemio Elloraba shoot Dominador from behind once
with a shotgun. He also saw Arturo Manaog turn the body of the fallen
Dominador face up, and stab the latter with his pisao. Marcelino then
turned his motorcycle around and sped away towards Barangay
Abuyog.
The assailants were all known to the Spouses Dominador and
Leticia Galvez. Zosimo Miranda was a neighbor of the Spouses Galvez
and was Dominador’s nephew. Miranda even used to borrow kettle
from the couple. Manaog had been Leticia’s student, while Artemio was
a drinking buddy of Dominador.
On December 11, 1984, Dr. Lorenzo Tiongson performed an
autopsy on the cadaver of Dominador and prepared his Report thereon,
which contained his post-mortem findings, to wit:
FINDINGS:
1. Lacerated wound at the left side of the forehead extending vertically
measuring 2 ½ inches in length.
2. Stab wound at the left side of the face, ½ inch lateral to the outer corner
of the left eye measuring ½ inch in length.
3. Stab wound at the left anterior portion of the thorax, at the same level of
the left nipple and ½ inch lateral to the mid-sternal line, measuring 1 inch in
length. The wound has a slightly upward direction and the heart beneath was
also wounded.
4. Stab wound at the right anterior portion of the thorax, ½ inch below the
level of wound No. 3 and 1/3 inch lateral to the mid-sternal line measuring ¾ of
an inch in length. The wound is non-penetrating.
5. Stab wound at the right anterior portion of the thorax, 1/3 of an inch
below the level of wound No. 4 and along the mid-clavicular line (right)
measuring ¾ inch in length. The wound is penetrating and the lung beneath was
also wounded.
6. Stab wound at the anterior portion of the thorax, just below the zyphoid
process of the sternum measuring 1/3 inch in length. The wound is penetrating
and the diaphram beneath was also wounded.
7. Stab wound at the left side of the anterior portion of the thorax same
level with wound no. 6 and 1/3 inch lateral to it, measuring ¾ inch in length.
The wound is also penetrating.
8. Circular wound at the left lateral portion of the neck, 4 inches below the
level of the left ear, measuring 1/3 in diameter. The wound is surrounded by a
blackish coloration (contusion collar).
9. Lacerated wound at the right posterior portion of the thorax, 1 inch
lateral to the mid-scapular line and ¾ inches in length. The edge of the wound
has a blackish coloration.
10. Lacerated wound at the right posterior portion of the thorax, ¼ inch
lateral to wound no. 9 measuring 1 inch in length.
11. Circular wound at the left posterior portion of the thorax, 2 inches lateral
to the left mid-scapular line and 1 inch above the level of the left axial
measuring ¼ inch in diameter.
CAUSE OF DEATH: Profuse hemorrhage due to shot-gun wounds, cut and
multiple stab wounds. [1]

On December 11, 1987, Leticia Galvez gave a sworn statement to

the police investigators. It turned out that Elloraba had a pending
warrant in connection with another criminal case. On December 24,
1987, a composite team of police operatives from MacArthur and
Abuyog, Leyte, led by P/Lt. Paulino Matol and Sgt. Jose Genobatin,
secured a copy of the said warrant and proceeded to the house of a
certain Beyong Fernandez in Barangay Danao where Elloraba was
staying. After about thirty minutes of negotiations, Elloraba decided to
surrender to P/Lt. Paulino Matol. He also surrendered the shotgun he
used in shooting Dominador.
Elloraba, Manaog and Miranda were charged with murder in the
Regional Trial Court of Abuyog, Leyte, Branch 10, in an Information the
accusatory portion of which reads:
That on or about the 11th day of December 1987, in the Municipality of
MacArthur, Province of Leyte, Philippines, and within the jurisdiction of this
Honorable Court, the said accused conspiring and confederating together and
mutually helping each other, and with the use of superior strength, did then and
there willfully and lawfully and feloniously and with treachery and evident
premeditation, attack, assault and use personal violence upon one
DOMINADOR GALVEZ, by then and there shooting the latter on the different
parts of the body with the use of a home-made shot gun, thereby inflicting upon
the latter mortal wounds which were the direct and immediate cause of his
death shortly thereafter.
CONTRARY TO LAW. [2]

Upon their arraignment, all the accused, assisted by counsel,

pleaded not guilty to the charge.
The Case for the Accused
Zosimo denied inflicting any injuries on the victim. He testified that
aside from being the Barangay Captain of Barangay Liwayway,
Dominador was an Informer of the Philippine Constabulary against the
New People’s Army. He alleged that Dominador had a grudge against
him. There was a donation of 35 pieces of galvanized sheets for the
repair of the barangay chapel, but Dominador used only 20 pieces for
the chapel and used the rest for the roofing of his house. Zosimo
reported the matter to Doroteo Galvez, the father of Dominador, and
Leonilo Pelagio, Jr.
Dominador was summoned to a barangay meeting regarding the
matter, but failed to attend. At one time, Dominador was drunk and
blocked Zosimo’s way. Dominador told him, “Boboy, I am angry at you.
Why did you do something to me?” Zosimo replied, “I do not know why
you are accosting me.”
On December 11, 1987, at 6:00 a.m., he went to the house of his
aunt, Zosimo’s mother, Susana Candelaria, about ½ kilometer away
from his house in Barangay Liwayway. At 8:00 a.m., the spouses
brought him to their farm to harvest rice. The spouses left him there and
went back home. At about 10:00 a.m., Fernando Arado arrived and
informed him that his brother, Leonardo Miranda, was being hunted
down by Dominador and that Leonardo’s life was in peril. Zosimo
returned home after asking permission from the Spouses
Candelaria. When he arrived home, he was informed by Dingding that
Philippine Constabulary soldiers were on the lookout for him. Zosimo
then rushed to the house of Barangay Captain Diosdado Mentis where
he stayed and tarried for a while. A policeman later arrived and placed
him under arrest for the killing of Dominador.
Susana Candelaria corroborated the testimony of Zosimo.
Arturo Manaog also denied any involvement in the killing of
Dominador. He testified that on December 8, 1987, Dominador poked
an armalite at him. He told his older brother, Cristito Manaog, and their
parents about the incident. On December 11, 1987, at 7:00 a.m., Arturo
was in the house of his brother Cristito, about 200 meters away from the
house of Pelagio Mediona. He was ill with flu at the time and stayed in
bed. A policeman later arrived and brought him to the police station for
the killing of Dominador. Maria Manaog, Cristito’s wife, corroborated
the testimony of Arturo Manaog.
Castor Mones testified that he and Artemio Elloraba went to work for
Benyong Fernandez in the latter’s coconut farm in Sitio Limon,
Barangay Danao, MacArthur, Leyte. Benyong was already old and his
children were all women. During the period of December 5 toDecember
11, 1987, he and Artemio were in the farm of Benyong, harvesting
coconuts. On December 9, 1987, he was able to gather 5,000
coconuts. By December 10, 1987, he had finished splitting the
coconuts. At 5:00 a.m. of December 11, 1987, Artemio smoked the
coconuts, while Castor gathered the coconut husks for the fire. At 10:00
a.m., Leonila Elloraba, Artemio’s wife, brought their
breakfast. According to the witness, it would take more than one hour
for one to negotiate the distance between Sitio Limon to Barangay
Liwayway, on foot.
Leonila corroborated the testimony of Castor in part. She testified
that when she delivered breakfast for Artemio and Castor onDecember
11, 1987, she told them that Dominador had been killed. When Artemio
asked who the culprit was, she replied that the word was that he was
killed by NPAs.
After trial, the court rendered judgment convicting all the accused for
murder, the decretal portion of the decision reads:
WHEREFORE, the prosecution having proven the guilt of these three (3)
accused beyond reasonable doubt, the Court finds the accused ARTEMIO
ELLORABA, ARTURO MANAOG and ZOSIMO MIRANDA, GUILTY
beyond reasonable doubt of the crime of MURDER as charged and each is
sentenced to suffer the penalty of RECLUSION PERPETUA, to indemnify the
heirs of DOMINADOR GALVEZ the sum of FIFTY THOUSAND
(P50,000.00) PESOS and to pay the costs.[3]

Only Zosimo Miranda appealed from the decision of the trial court,
contending that:
ASSIGNMENT OF ERRORS
(D.1)
THE COURT A QUO GRIEVOUSLY ERRED WHEN IT COMPLETELY
ACCEPTED AS GOSPEL TRUTH THE VERSION OF THE PROSECUTION
ABOUT THE TRAGIC SHOOTING AND STABBING INCIDENT
NOTWITHSTANDING THE IRRECONCILIABLE CONFLICTING
TESTIMONIES OF THE ALLEGED THREE PROSECUTION
EYEWITNESSES, WITH PROSECUTION EYEWITNESS, MARCELINO
NGOHO, BROTHER-IN-LAW OF DOMINADOR GALVEZ,
EXCULPATING HEREIN ACCUSED-APPELLANT, AND CASTING
DOUBT ON THE PRESENCE OF ANTONIO LADAN AND LETICIA
GALVEZ AT THE SCENE OF THE CRIME.
(D.2)
THE COURT A QUO GRIEVOUSLY ERRED WHEN IT CONVICTED
HEREIN ACCUSED-APPELLANT NOTWITHSTANDING THE FACT
THAT THE PROSECUTION’S EVIDENCE FAILED TO ESTABLISH THE
GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT AND
OVERCOME THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE
OF APPELLANT HEREIN.
(D.3)
THE COURT A QUO GRIEVOUSLY ERRED WHEN IT APPRECIATED
THE QUALIFYING CIRCUMSTANCES OF CONSPIRACY AND ABUSE
OF SUPERIOR STRENGTH WHEN THE SAME WERE NEVER PROVEN
BY THE PROSECUTION INSOFAR AS HEREIN ACCUSED-APPELLANT
IS CONCERNED.
(D.4)
THE COURT A QUO GRIEVOUSLY ERRED WHEN IT ADJUDGED,
ORDERED AND DIRECTED HEREIN ACCUSED-APPELLANT CIVILLY
LIABLE TO THE PRIVATE OFFENDED PARTY NOTWITHSTANDING
HIS NON-PARTICIPATION IN THE OFFENSE CHARGED. [4]

We do not agree with the appellant.

There is no discordance between the testimony of Ngoho on one
hand, and those of Ladan and Leticia on the other. In point of fact, the
testimonies of Ngoho, Ladan and Leticia Galvez complement each
other. What differentiates the testimony of Ngoho and those of Ladan
and Leticia is that Ladan and Leticia Galvez saw the entire episode of
Dominador’s killing; whereas Ngoho witnessed the killing of Dominador
by Elloraba and Manaog, and left the situs criminis without seeing the
stabbing of Dominador by the appellant. According to his testimony,
Ngoho left the scene after seeing Elloraba shoot Dominador and while
Manaog was stabbing the victim. Ngoho returned to the scene of the
crime only after the culprits had already fled.
We are in full accord with the disquisitions of the Office of the
Solicitor General:
Appellant Zosimo Miranda contends that court a quo erred in its appreciation
of the evidence presented before it. He points to a certain alleged
inconsistencies between the testimony of prosecution witness Marcelino
Ngoho, on the one hand, and Leticia Galvez and Antonio Ladan on the other.
The inconsistencies, appellant avers, are enough to create reasonable doubt as
to his guilt of the crime charged. (Appellant’s Brief, p. 6)
In particular, appellant points to the testimony of Marcelino Ngoho that he only
saw Artemio Elloraba and Arturo Manaog attack the victim. This testimony,
appellant claims, is at odds with that of the testimonies of Antonio Ladan and
Leticia Galvez pointing to him as the third attacker. He concludes that the said
conflicting testimonies cast doubt as to his presence and participation in the
crime (id., pp. 9-13).
A perusal of the testimonies adverted to show no conflict or inconsistency.
Marcelino Ngoho testified that he fled the scene right after he saw the shooting
by Artemio Elloraba and the hacking by Arturo Manaog.
Q. When you saw Artemio Elloraba at that time, what happened next?
A. He was carrying a firearm.
Q. What did he do with that weapon?
A. He fired and when he fired it, Dominador Galvez fell. He fired it from
behind.
...
Q. After Artemio Elloraba fired his firearm, what next did you observe?
A. After he fired, he moved backwards and Arturo Manaog approached the
fallen Dominador Galvez and turned the victim face up and stabbed.
(TSN, Feb. 16, 1989, pp. 6 and 9)
...
Q. After Arturo Manaog had delivered stabbing blow on Dominador Galvez,
after he was turned face upwards, what next transpired?
A. Artemio Elloraba was swinging his gun side to side and when he turned it
towards me, I made a “u-turn” of my motorcyle and left proceeding to my
house.
Q. After that, what else transpired?
A. When I noticed that the criminals were not there anymore, I returned and
loaded the victim on my motorcycle, going to Abuyog.
(TSN, Feb. 16, 1989, p. 11)
Ngoho could not have witnessed appellant’s attack on the victim because he
was no longer at the scene, having fled when he felt his life threatened when
Elloraba pointed the gun at him. He returned only after the assailants left.
His testimony thus covered only a stage or portion of the event. Appellant’s
participation in the crime was established through the testimonies of Antonio
Ladan and Leticia Galvez who were present throughout the attack on the
victim. Both their eyewitnesses’ testimonies were consistent that appellant
delivered a single hacking blow to the head of the victim after the latter was
shot by Elloraba and stabbed and hacked by Manaog (TSN, Feb. 9, 1989, pp. 6-
9, 15 Sept. 27, 1989, pp. 6-7). This is consistent with the physical evidence
(Exh. “A”; Cf. People v. Tuson, 261 SCRA 711 [1996].
Appellant failed to adduce evidence to show why Ladan and Galvez would
implicate him in the commission of the crime. As earlier pointed out, appellant
is a nephew of the victim. He also related to Antonio Ladan who is a cousin of
his father (TSN, Sept. 8, 1989, p. 9). It is thus inconceivable for the victim’s
widow and appellant’s own uncle to point to him as one of the attackers if it
were not the truth. When there is no evidence to show any dubious reason or
improper motive why a prosecution witness should testify falsely against the
accused or falsely implicate him in a heinous crime, the said testimony is
worthy of full faith and credit (People v. Cristobal, 252 SCRA 507 [1997]).
Appellant attempts to cast doubt on the presence of Ladan at the scene. He
claims that no one noticed nor testified as to his presence while the crime was
being committed. But even assuming, arguendo, that Ladan was not present and
did not witness the crime, his testimony is merely corroborative since there was
another eyewitness in the person of the victim’s widow.
In an attempt to further discredit the testimony of Ladan, appellant wonders
why the former failed to note the presence of Ngoho at the scene. He points out
the same “omission” in the testimony of Leticia Galvez. The testimonies of
Ladan and Galvez dwelt only on the attack on the victim. Both Ladan and
Galvez cannot be expected to recall or name all the persons who were at or near
the scene who had nothing to do with the killing.
[5]

Contrary to the perception of the appellant, conspiracy is not a

qualifying circumstance. Conspiracy may be a felony by itself when the
law defines it as a crime with an imposable penalty therefor or is merely
a mode of increasing criminal liability. Examples of conspiracy to
commit a crime per se include conspiracy to sell illicit drugs under
Section 21 of Republic Act No. 6485, conspiracy to bribe voters under
Section 261 (b) of the Omnibus Election Code and conspiracy to commit
any violation under Article 115 of the Revised Penal Code.
In this case, the conspiracy was alleged in the Information as a
mode of increasing criminal liability. There is conspiracy when two or
more persons agree to commit a crime and desire to commit it. Direct [6]

evidence is not required to prove conspiracy. It may be proved by

circumstantial evidence. It is not even required that they have an
agreement for an appreciable period to commence it. [7]

What is important is that all participants performed specific acts with

such cooperation and coordination bringing about the death of the
victim. When conspiracy is present, the act of one is the act of all. In
[8] [9]

this case, Elloraba, Manaog and the appellant acted in concert to

achieve a common purpose, i.e., to kill the victim. Elloraba shot the
victim at close range. Manaog followed suit and stabbed the victim with
a pisao. The appellant later stabbed the victim with his own bolo. The
three fled from the scene together, carrying their weapons with them.
Indubitably, the three acted in concert; hence, all are guilty for the killing
of Dominador.
The crime is qualified by treachery. The victim was
unarmed. Elloraba shot the victim from behind. Manaog turned the
body of the victim, face upward, and stabbed him. The appellant
followed suit, stabbing the victim while the latter was lying on the
ground, defenseless. Abuse of superior strength is absorbed by
[10]

treachery.
The trial court failed to award moral and exemplary damages. The
decision of the trial court has to be modified. The heirs of the victim,
Dominador Galvez, are entitled to P50,000.00 as moral damages
and P25,000.00 as exemplary damages.
IN LIGHT OF ALL THE FOREGOING, the appealed Decision is
AFFIRMED WITH MODIFICATION. The appellant is ordered to pay to
the heirs of the victim, Dominador Galvez, the amount of P50,000.00 as
moral damages, and P25,000.00 as exemplary damages. Costs
against the appellant.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, G.R. No. 176060

Appellee,
Present:

QUISUMBING, J.,
Chairperson,
CARPIO,
- versus - CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.

ARNULFO FERNANDEZ, Promulgated:

Appellant. October 5, 2007

x-------------------------------------------------- x

RESOLUTION
CARPIO, J.:

This is an appeal from the 22 September 2006 Decision[1] of the Court

of Appeals in CA-G.R. CEB-CR-HC No. 00296, affirming the trial court’s
decision finding appellant Arnulfo Fernandez guilty beyond reasonable
doubt of rape.

Appellant was charged with raping AAA, his first degree cousin, who
was then alleged to be 14 years old. During the trial, the trial court found
that AAA was only 13 years old while appellant was 20 years old at the time
of the incident. It was established that on the night of 7 July 1997, appellant
and AAA’s father were drinking wine. Appellant gave money to AAA’s
father to buy more wine. When AAA’s father left, appellant went upstairs
where AAA and her younger siblings were sleeping. Appellant covered
AAA’s mouth and then raped her. When AAA woke up, she noticed
appellant lying on top of her and she felt pain in her vagina. She could not
overpower appellant who was heavier and stronger than her. Appellant
thereafter went down and had another drinking bout with AAA’s father.
When appellant left, AAA’s father went upstairs and noticed that AAA’s
panty was on her knees and that there were bloodstains on her blanket.
When asked what happened, AAA told him that appellant raped her. The
following morning, AAA’s father reported the incident to
the Barangay Captain and the police. AAA’s blanket with some bloodstains
and male discharge was submitted to the police as evidence.
The Barangay Captain summoned appellant but he could not be located.
Appellant surrendered to a certain Kagawad Putian one week later.
 Appellant alleged that AAA was his girlfriend. He admitted during
cross-examination that AAA is mentally slow and shy. He alleged that they
had sexual intercourse from 1995 until 1997, although it was only in 1997
that AAA became his girlfriend. He accused AAA of initiating their sexual
intercourse and claimed that AAA is a sex maniac. He admitted that on the
night of 7 July 1997, he had a drinking spree with AAA’s father. When
AAA’s father left to buy more wine, he went upstairs and saw that AAA’s
siblings were asleep. Appellant claimed that AAA enticed him to have
sexual intercourse and AAA then removed her panty down to her knees.
Appellant admitted that he had sexual intercourse with AAA that night. The
following day, appellant went to Banban to work at a hollow block factory.
It was only when appellant went back to their house a few days later that his
mother informed him that he was accused of raping AAA. Appellant then
surrendered to Kagawad Putian.

The trial court did not believe appellant’s “sweetheart theory.” The
trial court likewise found incredible appellant’s claim that AAA is a sex
maniac who initiated all their sexual encounters.

On 12 October 2000, the trial court rendered a decision,

the dispositive portion of which reads:

PREMISES CONSIDERED, the Court finds

accused Arnulfo Fernandez GUILTY beyond reasonable doubt of
the crime of rape which is punished under Art. 335, paragraph 2 of
the Revised Penal Code as amended by R.A. 7659 otherwise
known as the “Heinous Crimes Law.” This specific provision
refers to the situation wherein the woman is deprived of reason or
 otherwise unconscious, as in this case wherein the offended party
was sleeping and therefore deprived of her free will.

Although it has been held that in crimes against chastity

such as rape, relationship is aggravating (People v. Matrimonio,
215 SCRA 613), the said circumstance is offset by the voluntary
(albeit one week late) surrender of the accused. Accordingly, the
court hereby sentences the accused to the penalty of RECLUSION
PERPETUA. Based on latest jurisprudence, the accused is further
ordered to indemnify the victim, who is a minor, the amount
of P50,000 as moral damages.

SO ORDERED.[2]

On appeal, appellant contended that the prosecution failed to prove his

guilt beyond reasonable doubt.

In its 22 September 2006 Decision, the Court of Appeals affirmed the

trial court’s decision with the modification that an additional P50,000 as
civil indemnity be awarded to the victim. The Court of Appeals held that
factual findings of the trial court are accorded the highest respect unless
some important facts have been clearly overlooked which if considered
would affect the result of the case. The Court of Appeals ruled that the trial
court was correct in relying on AAA’s positive and straightforward
testimony rather than on appellant’s bare denial of the charge.

Hence, this appeal.

We find the appeal without merit. The Court of Appeals was correct in
affirming the ruling of the trial court that rape was clearly established by the
witnesses and the evidence of the prosecution. The trial court, having the
opportunity to observe the witnesses and their demeanor during the trial, can
best assess the credibility of the witnesses and their testimonies. [3] Thus, the
trial court’s findings are accorded great respect unless the trial court has
overlooked or misconstrued some substantial facts, which if considered
might affect the result of the case.[4]

In this case, appellant admits that he had sexual intercourse with AAA
on the night of 7 July 1997 but alleges that it was consensual and that AAA
initiated the sexual act. We agree with the trial court and the appellate court
that appellant’s version of the incident is unbelievable. Appellant himself
testified that he went upstairs where he knew AAA was sleeping with her
siblings. AAA could not have initiated their sexual intercourse considering
that she was already asleep when appellant went upstairs. Under Article
335(2) of the Revised Penal Code, rape is committed by having carnal
knowledge of a woman who is deprived of reason or otherwise unconscious.
Thus, there is rape where the woman was unconscious as when she was
asleep when the carnal act was accomplished.[5]

Appellant’s allegations that AAA was his girlfriend and that they had
sexual relation since 1995 are likewise hard to believe. Appellant would
have us believe that AAA, who was then only 11 years old in 1995, was
already engaging in sexual intercourse with appellant. Besides, the
doctor[6] who examined AAA testified that there was fresh laceration of
AAA’s hymen which could mean that the incident on 7 July 1997 was
probably AAA’s first sexual experience.
 The Court notes that the trial court mistakenly considered as an
aggravating circumstance the relationship of appellant to AAA. Under
Article 15 of the Revised Penal Code, the alternative circumstance of
relationship shall be taken into consideration when the offended party is the
spouse, ascendant, descendant, legitimate, natural, or adopted brother or
sister, or relative by affinity in the same degree of the offender. The
relationship between appellant and AAA as first cousins is not covered by
any of the relationships mentioned.

Nevertheless, even if the aggravating circumstance of relationship is

deleted, the penalty of reclusion perpetua, which is a single indivisible
penalty, still applies. Under Article 63 of the Revised Penal Code, in cases
where the law prescribes a single indivisible penalty, it shall be applied by
the courts regardless of any mitigating or aggravating circumstance.

WHEREFORE, we AFFIRM the 22 September 2006 Decision of

the Court of Appeals in CA-G.R. CEB-CR-HC No. 00296 finding
appellant Arnulfo Fernandez guilty beyond reasonable doubt of rape with
the MODIFICATION that the aggravating circumstance of relationship is
deleted.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, G.R. No. 179943

Appellee,
Present:
 YNARES-SANTIAGO, J.,
Chairperson,
-versus- CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

MARLON ALBERT Promulgated:

DE LEONy HOMO,
Appellant. June 26, 2009

x-----------------------------------------------------------------------------------------x

DECISION

PERALTA, J.:

This is an appeal from the Decision[1] of the Court of Appeals (CA),

affirming with modification the Decision[2] of the Regional Trial Court
(RTC), Branch 76, San Mateo, Rizal, finding appellant Marlon Lambert De
Leon y Homo guilty beyond reasonable doubt of the crime of robbery with
homicide.

The factual and procedural antecedents are as follows:

According to the prosecution, in the early morning, around 2 o'clock

of January 7, 2000, Eduardo Zulueta and Fortunato Lacambra III, both
gasoline boys; Julieta Amistoso, cashier; and Edralin Macahis, security
guard; all employees of Energex Gasoline Station, located
at Barangay Guinayan, San Mateo, Rizal, were on duty when a mint green-
colored Tamaraw FX arrived for service at the said gasoline station.[3]

Eduardo Zulueta was the one who attended to the said vehicle. He
went to the driver’s side in order to take the key of the vehicle from the
driver so that he could open the gas tank. He saw through the lowered
window shield that there were about six to seven persons aboard the
vehicle. He proceeded to fill up P50.00 worth of diesel in the gas
tank. After doing this, he returned the key to the driver. While returning the
key, the driver told him that the engine of the vehicle would not
start.[4] Eduardo Zulueta offered to give the vehicle a push. While Eduardo
Zulueta and fellow gasoline boy Fortunato Lacambra III were positioned at
the back of the vehicle, ready to push the same, the six male passengers of
the same vehicle, except the driver, alighted and announced a hold-up. They
were armed with a shotgun and .38 caliber pistol.[5]

Fortunato Lacambra III was ordered to lie down,[6] while Eduardo

Zulueta was directed to go near the Car Wash Section.[7] At that instance,
guns were poked at them.[8]

Appellant, who guarded Eduardo Zulueta, poked a gun at the latter

and took the latter's wallet containing a pawnshop ticket and P50.00, while
the companion of the former, hit the latter on his nape with a gun.[9]

Meanwhile, four members of the group went to the cashier's office

and took the money worth P3,000.00.[10] Those four robbers were also the
ones who shot Edralin Macahis in the stomach. [11] Thereafter, the same
robbers took Edralin Macahis' service firearm.[12]

After he heard successive gunshots, Eduardo Zulueta saw appellant

and his companions immediately leave the place.[13] The robbers boarded the
same vehicle and proceeded toward San Mateo, Rizal.[14] When the robbers
left, Eduardo Zulueta stood up and found Julieta Amistoso, who told him
that the robbers took her bag and jewelry. He also saw that Edralin Macahis
had a gunshot wound in the stomach. He immediately hailed a vehicle
which transported the injured Edralin Macahis to the hospital.[15] Later on,
Edralin Macahis died at the hospital due to the gunshot wound.[16]

The following day, Eduardo Zulueta identified appellant as one of the

robbers who poked a gun at him.[17]

However, according to appellant, from January 4 to 6, 2000, he stayed

at the house of his Tita Emma at Pantok, Binangonan, Rizal, helping the
latter in her canteen. On the evening of January 6, at approximately 9
o'clock, appellant asked permission from his Tita Emma to go to
Antipolo. Catherine Homo, appellant's cousin and the latter's younger
brother, accompanied appellant to the terminal. While waiting for a ride,
the vehicle, a Tamaraw FX, of a certain Christian Gersalia, a relative of
appellant and Catherine Homo, passed by. Catherine Homo asked Christian
Gersalia if he would allow appellant to hitch a ride on his vehicle. Christian
Gersalia agreed. Aside from Christian Gersalia, there were other passengers
in the said vehicle.[18]
 When the vehicle reached Masinag, where appellant was supposed to
alight, he was not allowed to do so; instead, he was asked by the other
passengers to join them in their destination. While on the road, appellant fell
asleep. When he woke up, they were in a gasoline station. He then saw
Christian Gersalia and the other passengers conducting a hold-up. He never
left the vehicle and was not able to do anything because he was
overwhelmed with fear. After he heard the gunshots, Christian Gersalia and
the other passengers went to the vehicle and proceeded
towards Marikina. On their way, they were followed by policemen who
fired at them. The other passengers fired back at the policemen. It was then
that the vehicle hit a wall prompting the other passengers to scamper in
different directions leaving him behind. When the policemen arrived, he
was immediately arrested.[19]

As a result of the above incident, four Informations for Robbery with

Homicide were filed against appellant, Rudy Gersalia, Christian Gersalia,
Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, an alias “Rey,”
an alias “Jonard,” an alias “Precie,” and an alias “Renato,” which read as:

Criminal Case No. 4747

That on or about the 7th day of January 2000, in the

Municipality of San Mateo, Province of Rizal, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together with Rudy
Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
Brenvuela, Pantoy Servantes, Alias “Rey,” Alias “Jonard,” Alias “
Precie” and Alias “Renato” whose true names, identities and
present whereabouts are still unknown and still at-large, and
conspiring and mutually helping and assisting one another, while
armed with unlicensed firearms and acting as a band, with intent
of gain with aggravating circumstances of treachery, abuse of
superior strength and using disguise, fraud or craft and taking
advantage of nighttime, and by means of motor vehicle and by
means of force, violence and intimidation, employed upon
ENERGEX GASOLINE STATION, owned by Regino C.
Natividad, and represented by Macario C. Natividad, did then and
there willfully, unlawfully and feloniously rob, steal and carry
away its cash earnings worthP3,000.00, to the damage and
prejudice of said Energex Gasoline Station in the aforesaid
amount of P3,000.00 and on the occasion of the said robbery, the
above-named accused, while armed with unlicensed firearms with
intent to kill, conspiring and confederating together with Rudy
Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
Brenvuela, Pantoy Servantes, Alias “Rey,” Alias “Jonard,” Alias
“Precie” and Alias “Renato,” whose true names, identities and
present whereabouts are still unknown and still at-large, did then
and there willfully, unlawfully and feloniously attack, assault and
shoot one EDRALIN MACAHIS, a Security Guard of Energex
Gasoline Station, thereby inflicting upon him gunshot wound on
his trunk which directly caused his death.

Contrary to law.

Criminal Case No. 4748

That on or about the 7th day of January 2000 in the

Municipality of San Mateo, Province of Rizal, Philippines and
within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating , together with Rudy
Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
Brenvuela, Pantoy Servantes, Alias “Rey,” Alias “Jonard,” Alias “
Precie” and Alias “Renato,” whose true names, identities and
present whereabouts are still unknown and still at-large and
conspiring and mutually helping and assisting one another, while
armed with unlicensed firearms and acting as a band, with intent
of gain, with aggravating circumstances of treachery, abuse of
superior strength and using disguise, fraud or craft and taking
advantage of nighttime, and by means of a motor vehicle and by
means of force, violence and intimidation, employed upon the
person of JULIETA A. AMISTOSO, the Cashier of Energex
Gasoline Station, did then and there willfully, unlawfully and
feloniously rob, steal and carry away the following, to wit:

a) One (1) ladies ring with sapphire stone valued

at P1,500.00
b) One (1) Omac ladies wristwatch valued at P2,000.00
c) Guess black bag valued at P500.00
d) Leather wallet valued at P150.00
e) White T-Shirt valued at P175.00

to her damage and prejudice in the total amount of P4,325.00 and

on the occasion of the said robbery, the above-named accused
while armed with unlicensed firearms with intent to kill,
conspiring and confederating together with Rudy Gersalia,
Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela,
Pantoy Servantes, Alias “Rey,” Alias “Jonard,” Alias “Precie” and
Alias “Renato,” whose true names, identities and present
whereabouts are still unknown and still at-large, did then and
there willfully, unlawfully and feloniously attack, assault and
shoot one EDRALIN MACAHIS, a Security Guard of Energex
Gasoline Station, thereby inflicting upon him gunshot wound on
his trunk which directly caused his death.

Contrary to law.

Criminal Case No. 4749

That on or about the 7th day of January 2000, in the

Municipality of San Mateo, Province of Rizal, Philippines and
within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together with Rudy
Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
Brenvuela, Pantoy Servantes, Alias “Rey,” Alias “Jonard,” Alias
“Precie” and Alias “Renato,” whose true names, identities and
present whereabouts are still unknown and still at-large, and
conspiring and mutually helping and assisting one another, while
armed with unlicensed firearms and acting as a band, with intent
of gain, with aggravating circumstances of treachery, abuse of
superior strength and using disguise, fraud or craft and taking
advantage of nighttime, and by means of a motor vehicle and by
means of force, violence and intimidation, employed upon
EDRALIN MACAHIS, a Security Guard of Energex Gasoline
Station, did then and there willfully, unlawfully and feloniously
rob, steal, and carry away his service firearm .12 gauge shotgun
with serial number 13265 valued at P12,000.00 owned by Alert
and Quick (A-Q) Security Services Incorporated represented by
its General Manager Alberto T. Quintos to the damage and
prejudice of said Alert and Quick (A-Q) Security Services
Incorporated in the aforesaid amount of P12,000.00 and on the
occasion of the said robbery the above-named accused, while
armed with unlicensed firearms, with intent to kill conspiring and
confederating together with Rudy Gersalia, Christian Gersalia,
Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias
“Rey”, Alias “Jonard”, Alias “ Precie” and Alias “Renato”, whose
true names, identities and present whereabouts are still unknown
and still at-large, did then and there willfully, unlawfully and
feloniously attack, assault and shoot one EDRALIN MACAHIS,
thereby inflicting upon him gunshot wound on his trunk which
directly caused his death.

Contrary to law.

Criminal Case No. 4750

That on or about the 7th day of January 2000, in the

Municipality of San Mateo, Province of Rizal, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together with Rudy
Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
Brenvuela, Pantoy Servantes, Alias “Rey,” Alias “Jonard,” Alias
“Precie” and Alias “Renato,” whose true names, identities and
present whereabouts are still unknown and still at-large and
conspiring and mutually helping and assisting one another, while
armed with unlicensed firearms and acting as a band, with intent
of gain, with aggravating circumstances of treachery, abuse of
superior strength and using disguise, fraud or craft and taking
advantage of nighttime, and by means of a motor vehicle and by
means of force, violence and intimidation, employed upon the
person of EDUARDO ZULUETA, a gasoline boy of Energex
 Gasoline Station, did then and there willfully, unlawfully and
feloniously rob, steal and carry away the following to wit:

a) Pawnshop Ticket from M. Lhuiller

Pawnshop for one (1) black Citizen men's watch
(automatic) valued atP2,000.00

b) Cash money worth P50.00

to his damage and prejudice in the total amount of P2,050.00 and

on the occasion of the said robbery, the above-named accused,
while armed with unlicensed firearms with intent to kill,
conspiring and confederating together with Rudy Gersalia,
Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela,
Pantoy Servantes, Alias “Rey,” Alias “Jonard,” Alias “Precie” and
Alias “Renato,” whose true names, identities and present
whereabouts are still unknown and still at-large, did then and
there willfully, unlawfully and feloniously attack, assault and
shoot one EDRALIN MACAHIS, a Security Guard of Energex
Gasoline Station, thereby inflicting upon him gunshot wound on
his trunk which directly caused his death.

Contrary to law.

Upon arraignment on March 23, 2000, appellant, with the assistance

of counsel de parte, entered a plea of not guilty on all the
charges. Thereafter, trial on the merits ensued.

The prosecution presented five witnesses, namely: Macario C.

Natividad,[20] then officer-in-charge of Energex Gasoline Station where the
incident took place; Edito Macahis,[21] a cousin of the deceased security
guard Edralin Macahis; Fortunato Lacambra III,[22] a gasoline boy of the
same gas station; Eduardo Zulueta,[23] also a gasoline boy of the same gas
station, and Alberto Quintos,[24] general manager of Alert and Quick
Security Services, Inc., where the deceased security guard was employed.

The defense, on the other hand, presented two witnesses, namely:

Catherine Homo,[25] a cousin of appellant and the appellant[26] himself.

On December 20, 2001, the RTC rendered its Decision[27] convicting

appellant beyond reasonable doubt of all the charges against him, the
dispositive portion of which reads:

1. In Criminal Case No. 4747, finding accused Marlon

Albert de Leon y Homo guilty beyond reasonable doubt of the
crime of Robbery with Homicide, as defined and penalized under
No. 1 of Art. 294 of the Revised Penal Code, as amended by Sec.
9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further
amended by Sec. 1 of R.A. 8294, having acted in conspiracy with
other malefactors who have, to date, remained at-large, and
sentencing the said Marlon Albert de Leon y Homo to the penalty
of Death, taking into consideration the use of an unlicensed
firearm in the commission of the crime as an aggravating
circumstance; to pay Energex Gasoline Station owned by Regino
Natividad and represented by Macario C. Natividad the amount
of P3,000.00 as compensatory damages and to pay the costs;

2. In Crim. Case No. 4748, finding accused Marlon Albert

de Leon y Homo guilty beyond reasonable doubt of the crime of
Robbery with Homicide, as defined and penalized under No. 1 of
Art. 294 of the Revised Penal Code, as amended by Sec. 9 of R.A.
7659, in relation to Sec. 1 of P.D. 1866, as further amended by
Sec. 1 of R.A. 8294, having acted in conspiracy with other
malefactors who have, to date, remained at-large, and sentencing
the said Marlon Albert de Leon y Homo to the penalty of Death,
taking into consideration the use of an unlicensed firearm in the
commission of the crime as an aggravating circumstance, and to
pay the costs;
 3. In Crim. Case No. 4749, finding accused Marlon Albert
de Leon y Homo guilty beyond reasonable ground of the crime of
Robbery with Homicide, as defined and penalized under No. 1 of
Art. 294 of the Revised Penal Code, as amended by Sec. 9 of R.A.
7659, in relation to Sec. 1 of P.D. 1866, as further amended by
Sec. 1 of R.A. 8294, having acted in conspiracy with other
malefactors who have, to date, remained at-large, and sentencing
the said Marlon Albert de Leon y Homo to the penalty of Death,
taking into consideration the use of an unlicensed firearm in the
commission of the crime as an aggravating circumstance; to
indemnify the heirs of Edralin Macahis in the amount
of P50,000.00 as death indemnity; to pay P12,000.00 as
compensatory damages for the stolen service firearm if restitution
is no longer possible and P50,000.00 as moral damages, and to
pay the costs;
4. In Crim. Case No. 4750, finding accused Marlon Albert
de Leon y Homo guilty beyond reasonable doubt of the crime of
Robbery with Homicide, as defined and penalized under No. 1 of
Art. 294 of the Revised Penal Code, as amended by Sec. 9 of R.A
7659, in relation to Sec. 1 of P.D. 1866, as further amended by
Sec. 1 of R.A. 8294, having acted in conspiracy with other
malefactors who have, to date, remained at-large, and sentencing
the said Marlon Albert de Leon y Homo to the penalty of Death,
taking into consideration the use of an unlicensed firearm in the
commission of the crime as an aggravating circumstance and to
pay Eduardo Zulueta, victim of the robbery, in the amount
of P2,050.00 as compensatory damages for the stolen properties if
restitution is no longer possible and to pay the costs.

As against accused Rudy Gersalia and Christian Gersalia,

who have, to date, remained at-large, let a warrant of arrest be
issued against them and let these cases be, in the meantime, sent
to the archives without prejudice to their reinstatement upon
apprehension of the said accused.

As against accused Dondon Brenvuela, Jonathan

Brenvuela, Pantoy Servantes, Alias “Rey,” Alias “Jonard,” Alias
“Precie and Alias “Renato,” whose true names, identities and
present whereabouts are still unknown and are still at-large, let
these cases be, in the meantime, sent to the archives without
 prejudice to their reinstatement upon the identification and
apprehension of the said accused.

SO ORDERED.

The cases were appealed to this Court, however, on September, 21,

2004,[28] in conformity with the Decision dated July 7, 2004 in G.R. Nos.
147678-87 entitled The People of the Philippines v. Efren Mateo y Garcia,
modifying the pertinent provisions of the Revised Rules of Criminal
Procedure, more particularly Sections 3 and 10 of Rule 125 and any other
rule insofar as they provide for direct appeals from the RTCs to this Court in
cases where the penalty imposed is death, reclusion perpetua or life
imprisonment, as well as the Resolution of this Court, en banc dated
September 19, 1995, in “Internal Rules of the Supreme Court” in cases
similarly involving the death penalty, pursuant to the Court's power to
promulgate rules of procedure in all courts under Article VII, Section 5 of
the Constitution, and allowing an intermediate review by the CA before such
cases are elevated to this Court. This Court transferred the cases to the CA
for appropriate action and disposition.
The CA, on June 29, 2007,[29] affirmed with modification, the
Decision of the RTC, with the dispositive portion reading:

WHEREFORE, the appealed decision is AFFIRMED with

MODIFICATION. Accused Marlon Albert de Leon y Homo is
hereby found guilty beyond reasonable doubt of the crime of
Robbery with Homicide of only one count.

Given the passage of Republic Act 9346 which took effect

on 24 June 2006, the penalty imposed upon Marlon de Leon y
Homo is hereby reduced or commuted to reclusion perpetua.
 SO ORDERED.

On December 10, 2007, this Court accepted the appeal,[30] the penalty
imposed being reclusion perpetua.

The Office of the Solicitor General (OSG), on February 8, 2008, filed

its Manifestation and Motion In Lieu of the Supplemental
Brief[31] dated February 4, 2008 stating that it will no longer file a
supplemental brief, considering that appellant has not raised any new issue
that would require the filing of a supplemental brief.

Appellant filed a Manifestation[32] on February 22, 2008 stating that

he re-pleads and adopts his Appellant's Brief and Reply Brief as
Supplemental Brief.

Appellant, in his Brief,[33] assigned the following errors:

I
THE TRIAL COURT GRAVELY ERRED IN FINDING
ACCUSED-APPELLANT A CO-CONSPIRATOR IN THE
COMMISSION OF THE CRIME CHARGED DESPITE THE
FAILURE OF THE PROSECUTION TO PROVE THE SAME
AND GUILT BEYOND REASONABLE DOUBT.

II

ON THE ASSUMPTION THAT ACCUSED-APPELLANT IS

GUILTY OF ROBBERY WITH HOMICIDE, THE TRIAL
COURT GRAVELY ERRED IN IMPOSING FOUR (4) DEATH
 PENALTIES DESPITE THAT THE CRIME CHARGED WAS
PRODUCED BY ONE SINGLE ACT WHICH SHOULD BE
METED WITH A SINGLE PENALTY.

The OSG, in its Appellee's Brief,[34] insisted that all the elements of
the crime and the appellant's participation in the crime had been established.

Appellant, in his Reply Brief,[35] argued that the penalty should not be
death, but only reclusion perpetua, because the aggravating circumstance of
use of unlicensed firearm, although alleged in the Information, was not
alleged with specificity.

Article 294, paragraph 1 of the Revised Penal Code provides:

Art. 294. Robbery with violence against or intimidation of

persons – Penalties. - Any person guilty of robbery with the use of
violence against or any person shall suffer:

1. The penalty of reclusion perpetua to death, when by

reason or on occasion of the robbery, the crime of homicide shall
have been committed, or when the robbery shall have been
accompanied by rape or intentional mutilation or arson.

In People v. De Jesus,[36] this Court had exhaustively discussed the

crime of robbery with homicide, thus:

For the accused to be convicted of the said crime, the

prosecution is burdened to prove the confluence of the following
elements:

(1) the taking of personal property is committed with

violence or intimidation against persons;
(2) the property taken belongs to another;
 (3) the taking is animo lucrandi; and
(4) by reason of the robbery or on the occasion thereof,
homicide is committed.[37]
http://sc.judiciary.gov.ph/jurisprudence/2009/june2009/179943.htm -

_ftn101
In robbery with homicide, the original criminal design of
the malefactor is to commit robbery, with homicide perpetrated on
the occasion or by reason of the robbery.[38] The intent to commit
robbery must precede the taking of human life.[39] The homicide
may take place before, during or after the robbery. It is only the
result obtained, without reference or distinction as to the
circumstances, causes or modes or persons intervening in the
commission of the crime that has to be taken into
consideration.[40] There is no such felony of robbery with
homicide through reckless imprudence or simple negligence. The
constitutive elements of the crime, namely, robbery with
homicide, must be consummated.

It is immaterial that the death would supervene by mere

accident; or that the victim of homicide is other than the victim of
robbery, or that two or more persons are killed, or that aside from
the homicide, rape, intentional mutilation, or usurpation of
authority, is committed by reason or on the occasion of the crime.
Likewise immaterial is the fact that the victim of homicide is one
of the robbers; the felony would still be robbery with homicide.
Once a homicide is committed by or on the occasion of the
robbery, the felony committed is robbery with homicide. All the
felonies committed by reason of or on the occasion of the robbery
are integrated into one and indivisible felony of robbery with
homicide. The word “homicide” is used in its generic sense.
Homicide, thus, includes murder, parricide, and infanticide.

Intent to rob is an internal act, but may be inferred from

proof of violent unlawful taking of personal property. When the
fact of asportation has been established beyond reasonable doubt,
conviction of the accused is justified even if the property subject
of the robbery is not presented in court. After all, the property
stolen may have been abandoned or thrown away and destroyed
by the robber or recovered by the owner.[41] The prosecution is not
burdened to prove the actual value of the property stolen or
 amount stolen from the victim. Whether the robber knew the
actual amount in the possession of the victim is of no moment,
because the motive for robbery can exist regardless of the exact
amount or value involved.[42]

When homicide is committed by reason or on the occasion

of robbery, all those who took part as principals in the robbery
would also be held liable as principals of the single and indivisible
felony of robbery with homicide, although they did not actually
take part in the killing, unless it clearly appears that they
endeavored to prevent the same.[43]

If a robber tries to prevent the commission of homicide

after the commission of the robbery, he is guilty only of robbery
and not ofrobbery with homicide. All those who conspire to
commit robbery with homicide are guilty as principals of such
crime, although not all profited and gained from the robbery. One
who joins a criminal conspiracy adopts the criminal designs of his
co-conspirators and can no longer repudiate the conspiracy once it
has materialized.[44]

Homicide is said to have been committed by reason or on

the occasion of robbery if, for instance, it was committed (a) to
facilitate the robbery or the escape of the culprit; (b) to preserve
the possession by the culprit of the loot; (c) to prevent discovery
of the commission of the robbery; or, (d) to eliminate witnesses in
the commission of the crime. As long as there is a nexus between
the robbery and the homicide, the latter crime may be committed
in a place other than the situs of the robbery.

From the above disquisition, the testimonies of the witnesses, and

pieces of evidence presented by the prosecution, the crime of robbery with
homicide was indeed committed. There was no mistaking from the actions
of all the accused that their main intention was to rob the gasoline station
and that on occasion of such robbery, a homicide was committed. The
question now is whether there was conspiracy in the commission of the
crime. According to appellant, the prosecution failed to prove that he was a
co-conspirator. However, this Court finds no merit to appellant's argument.

If it is proved that two or more persons aimed by their acts towards

the accomplishment of the same unlawful object, each doing a part so that
their combined acts, though apparently independent, were in fact connected
and cooperative, indicating a closeness of personal association and a
concurrence of sentiment, a conspiracy may be inferred though no actual
meeting among them to concert means is proved. That would be termed
an implied conspiracy.[45] The prosecution was able to prove the presence of
an implied conspiracy. The witnesses were able to narrate in a convincing
manner, the circumstances surrounding the commission of the robbery and
positively identified appellant as one of the robbers. Witness Eduardo
Zulueta testified that appellant was one of the robbers who poked a gun at
him, thus:

Q. Were you able to identify those two armed male persons who
poked their guns at you?

A: Yes, sir.

Q: Kindly look around inside this courtroom and inform the Hon.
Court whether those two (2) persons who poked their guns at you
were (sic) present now?

A: Only one, sir, and there he is.

(At this juncture, witness pointing to a certain person who

answered by the name of MARLON ALBERT DE LEON when
asked.)

Q: This Marlon De Leon was he the one who guarded you in the
carwash or not?
A: Yes, sir.

Q: Now, what happened to you at the carwash where this Marlon

De Leon was guarding you?

A: His gun was poked at me, sir.

Q: What else transpired, Mr. Witness, or what else happened to

you aside from that?

A: He hit me with his gun on my nape, sir.

Q: What else, Mr. Witness?

A: He got my wallet from my pocket, sir.

Q: Who hit you with a gun?

A: His other companion, sir.[46]

Appellant was also identified by witness Fortunato Lacambra III, thus:

Q: What about that person who ordered Zulueta to go to the

carwash section and hit him, was he also armed?

A: Yes, sir.

Q: What kind of firearm was he carrying then?

A: Also .38 caliber, sir.

Q: Were you able to identify or recognize that person who

approached and ordered Zulueta to go to the carwash section?

A: Yes, sir.
 Q: If that person is inside the courtroom, will you be able to
identify him?

A: Yes, sir.

Q: Kindly point to him?

A: That man, sir. (Witness pointed to a person who answered by

the name of Marlon Albert de Leon).[47]

Therefore, it can be inferred from the role appellant played in the

commission of the robbery, that a conspiracy existed and he was part of it.
To be a conspirator, one need not participate in every detail of the execution;
he need not even take part in every act or need not even know the exact part
to be performed by the others in the execution of the conspiracy. Each
conspirator may be assigned separate and different tasks which may appear
unrelated to one another but, in fact, constitute a whole collective effort to
achieve their common criminal objective.[48] Once conspiracy is shown, the
act of one is the act of all the conspirators. The precise extent or modality of
participation of each of them becomes secondary,[49] since all the
conspirators are principals.

As to the credibility of the witnesses, the RTC's findings must not be

disturbed. The well-settled rule in this jurisdiction is that the trial court’s
findings on the credibility of witnesses are entitled to the highest degree of
respect and will not be disturbed on appeal without any clear showing that it
overlooked, misunderstood or misapplied some facts or circumstances of
weight or substance which could affect the result of the case.[50]
 For his defense, appellant merely denied participating in the
robbery. However, his presence during the commission of the crime was
well-established as appellant himself testified as to the matter. Granting that
he was merely present during the robbery, his inaction does not exculpate
him. To exempt himself from criminal liability, a conspirator must have
performed an overt act to dissociate or detach himself from the conspiracy to
commit the felony and prevent the commission thereof.[51] Appellant offered
no evidence that he performed an overt act neither to escape from the
company of the robbers nor to prevent the robbery from taking place. His
denial, therefore, is of no value. Courts generally view the defenses of
denial and alibi with disfavor on account of the facility with which an
accused can concoct them to suit his defense. As both evidence are negative
and self-serving, they cannot attain more credibility than the testimonies of
prosecution witnesses who testify clearly, providing thereby positive
evidence on the various aspects of the crime committed.[52]

Consequently, the CA was correct in ruling that appellant was guilty

only of one count of robbery with homicide. In the crime of robbery with
homicide, there are series of acts, borne from one criminal resolution, which
is to rob. As decided[53] by the Court of Appeals:

A continued (continuous or continuing) crime is defined as

a single crime, consisting of a series of acts but all arising from
one criminal resolution.[54] Although there is a series of acts, there
is only one crime committed; hence, only one penalty shall be
imposed.[55]

In the case before Us, [appellant] and his companions

intended only to rob one place; and that is the Energex gasoline
station. That they did; and in the process, also took away by force
 the money and valuables of the employees working in said
gasoline station. Clearly inferred from these circumstances are the
series of acts which were borne from one criminal resolution. A
continuing offense is a continuous, unlawful act or series of acts
set on foot by a single impulse and operated by an unintermittent
force, however long a time it may occupy.[56] This can be said of
the case at hand.

Akin to the extant case is that of People v. De la

Cruz,[57] wherein the robbery that took place in several houses
belonging to different persons, when not absolutely unconnected,
was held not to be taken as separate and distinct offenses. They
formed instead, component parts of the general plan to despoil all
those within the vicinity. In this case, the Solicitor General argued
that the [appellant] had committed eight different robberies,
because the evidence shows distinct and different acts of
spoilation in different houses, with several victimized
persons.[58] The Highest Tribunal, however, ruled that the
perpetrated acts were not entirely distinct and unconnected from
one another.[59] Thus, the single offense or crime.

Now, this Court comes to the penalty imposed by the CA. The
decision[60] merely states that, in view of the enactment of R.A. 9346, the
sentence of Death Penalty, imposed upon appellant, is automatically
commuted to reclusion perpetua, but is silent as to how it had arrived into
such a conclusion.

Under Article 294 of the Revised Penal Code, as amended by R.A.

No. 7659, robbery with homicide is punishable byreclusion perpetua to
death, which are both indivisible penalties. Article 63 of the same Code
provides that, in all cases in which the law prescribes a penalty composed of
two indivisible penalties, the greater penalty shall be applied when the
commission of the deed is attended by one aggravating circumstance. [61] It
must be remembered that the Informations filed with the RTC alleged the
aggravating circumstance of the use of unlicensed firearm. Pursuant to the
third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No.
8294, such use of an unlicensed firearm is a special and not a generic
aggravating circumstance in the homicide or murder committed. As
explained by this Court in Palaganas v. People:[62]

Generic aggravating circumstances are those that generally

apply to all crimes such as those mentioned in Article 14,
paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the
Revised Penal Code. It has the effect of increasing the penalty for
the crime to its maximum period, but it cannot increase the same
to the next higher degree. It must always be alleged and charged
in the information, and must be proven during the trial in order to
be appreciated.[63] Moreover, it can be offset by an ordinary
mitigating circumstance.

On the other hand, special aggravating circumstances are

those which arise under special conditions to increase the penalty
for the offense to its maximum period, but the same cannot
increase the penalty to the next higher degree. Examples are
quasi-recidivism under Article 160 and complex crimes under
Article 48 of the Revised Penal Code. It does not change the
character of the offense charged.[64] It must always be alleged and
charged in the information, and must be proven during the trial in
order to be appreciated.[65] Moreover, it cannot be offset by an
ordinary mitigating circumstance.

It is clear from the foregoing that the meaning and effect of

generic and special aggravating circumstances are exactly the
same except that in case of generic aggravating, the same CAN be
offset by an ordinary mitigating circumstance whereas in the case
of special aggravating circumstance, it CANNOT be offset by an
ordinary mitigating circumstance.

Aside from the aggravating circumstances abovementioned,

there is also an aggravating circumstance provided for
 underPresidential Decree No. 1866,[66] as amended by Republic
Act No. 8294,[67] which is a special law. Its pertinent provision
states:

If homicide or murder is committed with the use of

an unlicensed firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance.

In interpreting the same provision, the trial court reasoned

that such provision is “silent as to whether it is generic or
qualifying.”[68]Thus, it ruled that “when the law is silent, the same
must be interpreted in favor of the accused.”[69] Since a generic
aggravating circumstance is more favorable to petitioner
compared to a qualifying aggravating circumstance, as the latter
changes the nature of the crime and increase the penalty thereof
by degrees, the trial court proceeded to declare that the use of an
unlicensed firearm by the petitioner is to be considered only as a
generic aggravating circumstance.[70] This interpretation is
erroneous, since we already held in several cases that with the
passage of Republic Act No. 8294 on 6 June 1997, the use of an
unlicensed firearm in murder or homicide is now considered as a
SPECIAL aggravating circumstance and not a generic aggravating
circumstance.[71] Republic Act No. 8294 applies to the instant case
since it took effect before the commission of the crimes in 21
April 1998. Therefore, the use of an unlicensed firearm by the
petitioner in the instant case should be designated and appreciated
as a SPECIAL aggravating circumstance and not merely a generic
aggravating circumstance.

In another case,[72] this Court ruled that, the existence of the firearm
can be established by testimony, even without the presentation of the
firearm.[73] In the said case, it was established that Elmer and
Marcelina Hidalgo died of, and Pedro Hidalgo sustained, gunshot wounds.
The ballistic examination of the slugs recovered from the place of the
incident showed that they were fired from a .30 carbine rifle and a .38
caliber firearm. The prosecution witnesses positively identified appellant
therein as one of those who were holding a long firearm. It was also
established that the same appellant was not a licensed firearm holder. Hence,
this Court ruled that the trial court and the CA correctly appreciated the use
of unlicensed firearm as an aggravating circumstance.
After a careful study of the records of the present case, this Court
found that the use of unlicensed firearm was not duly proven by the
prosecution. Although jurisprudence dictates that the existence of the
firearm can be established by mere testimony, the fact that appellant was not
a licensed firearm holder must still be established. The prosecution failed to
present written or testimonial evidence to prove that appellant did not have a
license to carry or own a firearm, hence, the use of unlicensed firearm as an
aggravating circumstance cannot be appreciated.
Finally, it is worth noting that the RTC ordered appellant to indemnify
the heirs of Edralin Macahis the amount ofP50,000.00 as death
indemnity, P12,000.00 as compensatory damages for the stolen service
firearm if restitution is no longer possible and P50,000.00 as moral damages.
Actual damages were never proven during the trial. Hence, this Court's
rulings[74]on temperate damages apply, thus:

In People vs. Abrazaldo,[75] we laid down the doctrine that

where the amount of actual damages for funeral expenses cannot
be determined because of the absence of receipts to prove them,
temperate damages may be awarded in the amount
of P25,000[76] This doctrine specifically refers to a situation where
no evidence at all of funeral expenses was presented in the trial
court. However, in instances where actual expenses amounting to
less than P25,000 are proved during the trial, as in the case at bar,
we apply the ruling in the more recent case of People vs.
Villanueva[77] which modified the Abrazaldo doctrine.
In Villanueva, we held that “when actual damages proven by
receipts during the trial amount to less than P25,000, the award of
 temperate damages for P25,000 is justified in lieu of the actual
damages of a lesser amount.” To rule otherwise would be
anomalous and unfair because the victim’s heirs who tried but
succeeded in proving actual damages of an amount less
than P25,000 would be in a worse situation than those who might
have presented no receipts at all but would now be entitled
to P25,000 temperate damages.[78]

WHEREFORE, the Decision dated June 29, 2007 of the Court of

Appeals is hereby AFFIRMED withMODIFICATION. Appellant Marlon
Albert de Leon y Homo is hereby found guilty beyond reasonable doubt of
the crime of Robbery with Homicide, the penalty of which, is reclusion
perpetua in view of the absence of any mitigating or aggravating
circumstance. Appellant is also liable to pay the heirs of the
victim, P25,000.00 as temperate damages, in addition to the other civil
indemnities and damages adjudged by the Regional Trial Court, Branch 76,
San Mateo, Rizal.
SO ORDERED.

G.R. No. L-48796 June 11, 1981

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DIEGO OPERO Y COSIPAG et al., accused; DIEGO OPERA Y
COSIPAG, defendant-appellant.

PER CURIAM:
Automatic review of the death sentence imposed on Diego Opero for
robbery with homicide with which he was charged in the Circuit
Criminal Court of Manila, together with Reynaldo Lacsinto and
Milagros Villegas, who, however, did not appeal their conviction with
much lesser penalty, the last-named, as a mere accessory after the
fact. Another accused, Asteria Avila was acquitted.
In his brief, appellant raised only the question of the propriety of the
imposition of the death penalty on him, with the following
assignments of error:
1. THE LOWER COURT ERRED IN NOT CONSIDERING
ARTICLE 4, PARAGRAPH 1 OF THE REVISED PENAL
CODE IN DETERMINING THE CRIMINAL LIABILITY OF
THE ACCUSED.
2. THE TRIAL COURT ERRED IN NOT CONSIDERING
ARTICLE 49, PARAGRAPH 1 OF THE REVISED PENAL
CODE IN IMPOSING THE PENALTY ON THE
ACCUSED
For the facts of the case, the narration of which in both the People's
brief and that of appellant does not vary as to the essential ones, We
could very well quote from the Appellee's brief, being the more
comprehensive and complete, the following:
At about 4:00 o'clock in the morning of April 27, 1978,
Salvador Oliver, a GSIS security guard assigned to the
House International Hotel at Ongpin Street, Binondo,
Manila, was informed by Demetrio Barcing another
security guard, that the latter picked up a little girl about
three years old loitering at the second floor of the building.
Rafael Ordona a janitor of the House International Hotel,
told Oliver that the little girl is residing at Room 314 of the
hotel. Oliver called up Room 314 by telephone and when
nobody answered, he and Barcing brought the little girl to
said Room 314 (pp- 6, 7, & 8, t.s.n., June 15, 1978). Upon
reaching Room 314, Oliver knocked at the door, and
when nobody answered, he pushed the door open but he
smelled foul odor emanating from the room. Oliver
covered his nose with a handkerchief and together with
Barcing and the little girl, they entered the room where
they saw prostrate on a bed a dead person with the face
down and both feet tied. Oliver called up the homicide
division of the Manila Police. Patrolman Fajardo who was
assigned to investigate the report of Oliver, together with
some funeral parlor men arrived at the scene, and they
saw a small baby crying and trying to get out of a crib
near the bed of the dead person. (pp. 9, 10 & 11,
t.s.n., Id).
The dead body at Room 314 of the House International
Hotel was that of Liew Soon Ping, Room 314 had been
ransacked and personal belongings thrown all around.
The hands and feet of the dead person were tied and the
body was bloated. A towel was tied around the mouth of
the victim. Photographs of the dead person and the
condition of the room were taken under Patrolman
Fajardos supervision (pp. 19, 20, 21, 22, 23 & 24, t.s.n.,
June 15, 1978).
Patrolman Fajardo came to know that the occupants of
Room 314 were Dr. Hong, his wife Liew Soon Ping who is
the victim in this case, their three children and two maids,
namely, Mila and Ester (pp. 26 & 27, t.s.n., Id). After
conducting a preliminary inquiry around the vicinity of the
incident, Patrolman Fajardo made an advance report
(Exh. "O"; pp. 32, 33 & 34, rec.) naming therein three
suspects, namely, Diego Opero, Milagros Villegas,
Asteria Avila and a fourth unidentified suspect. The
names of these suspects were furnished by neighbors of
the victim to Patrolman Fajardo (pp- 28 & 29, t.s.n.,Id.).
After establishing the Identity of the suspects, a follow up
team of Manila Policemen composed of Patrolmen Luis
Lim and Servande Malabute was formed to further
investigate the case. A separate police team composed of
Sgt. Yanguiling and several policemen were sent to Leyte
and Samar to track down the suspects (pp. 30 & 31,
t.s.n., Id.). "Dr. Hong, the victim's husband who was in
Cebu when the incident in his residence was committed
was contacted by the police and informed about the death
of his wife.
Dr. Hong came back immediately from Cebu and reported
to the police. He (Dr. Hong) made an inventory of the
personal effects found missing in his residence. valued at
P30,221.00 (pp. 31, 32 & 33, t.s.n Id; Exhs. 'R' and 'R-l').
While the case was under investigation, the homicide
division of the Manila Police, received a radio message
(Exh. "T-l", p. 40, rec.) relayed thru Col. Narciso Cabrera,
Chief of the Detective Bureau of the Manila Police, that
Reynaldo Lacsinto one of the suspects could be found in
a school house in Moriones, Tondo, Manila. Another radio
message (Exh. "T", p. 41, rec.) was received by the police
that two other suspects in the case, namely, Diego Opero
and Asteria Avila were picked up by the Samar P.C. and
some of the missing articles, namely, one (1) camera,
flashlight, bill fold, and other personal belongings were
recovered from them (pp. 35 & 36, t.s.n., Id).
Reynaldo Lacsinto was taken to police headquarters and
after appraising him of his rights under the constitution,
his statement was taken in the presence of his father (pp.
37, 38 & 39, t.s.n., Id; Exhs. "U" & "U-l", pp. 42, 43, 44,
45, 46, 47 & 48, rec,). In his said statement to the police,
Lasinto admitted his participation and narrated in detail
the commission of the robbery in Room 314 of the House
International Hotel.
The Samar P.C. turned over three other suspects, namely
Diego Opero, Milagros Villegas and Asteria Avila to Sgt.
Yanguiling who brought said suspects to Manila and
turned them over to the homicide division of the Manila
Police, together with some of the stolen articles (pp. 31 &
32, t.s.n., June 16, 1978). Statements of these three
suspects (Exhibits "B", "C", and "D", respectively) taken
by the Samar P.C. were also turned over by Sgt.
Yanguiling to the homicide division (pp. 34 & 35, t.s.n.Id).
Opero was investigated further at the Manila Police
Headquarters and he gave a supplemental statement
(Exh. "FF", pp. 70-74, rec.; p. 36, t. s.n. Id) admitting that
he had robbed the victim and Identified some of the
missing articles recovered from his possession (pp. 41 &
42, t.s.n. Id). He described in detail how he planned the
robbery and named the rest of his coaccused as willing
participants. He also narrated in his said supplemental
statement that he and his co-accused Lacsinto subdued
the victim by assaulting her, tying up her hands and feet
stabbing her and stuffing her mouth with a piece of
pandesal (pp. 70- 74, rec.).
In her statement to the Manila police (Exh. 'GG', pp. 74 &
75, rec.) Milagros Villegas Identified the stolen clothes
which were given to her by Opero. (pp. 44, 45 & 46, t. s.
n. Id)
The third suspect, Asteria Avila told the Manila police that
she was not a party to the crime and upon advice of her
lawyer she did not give any further statement. (p. 47, t. S.
n. Id)
A reenactment of the crime at the crime scene was held
under the direction of Opero portraying - his role, with
Lacsinto depicting his part, and pictures of the
reenactment were taken (pp. 51, 52, 53, 54, 55, 56, 57,
58, 59 & 60, t. s.n. Id; pp. 79-99, incl., rec.).
The body of the victim Liew Soon Ping was autopsied by
Dr. Angelo Singian, then Chief of the Medico Legal
Division of the Western Police District. The body was
Identified by the victim's husband. Dr. Singian examined
the body of the victim and issued a death certificate (Exh.
"AA"), and the necropsy report (Exh. 'BB'), with the
following findings: 1) a pale yellowish band across the
eyes of the victim caused by the application of a towel, or
broad piece of cloth across the eyes; 2) a pale yellowish
band across the mouth caused by a similar material as
the one applied across the victim's eyes, which was tied
across the mouth; 3) contusion and hematoma on the
upper and lower lips caused by a blunt instrument; 4)
abrasions on the right side of the chin; 5) broad linear
mark of clothing material on the neck; 6) cord or ligature
marks on the left and right arm, indicating that both arms
were tied; 7) abdomen distended with gas, due to
decomposition; 8) epiglotis, hematoma and contusion on
the right side of the tongue; 9) contusions and hematoma
on the right cheek; 10) superficial stab wound measuring
0.8 c.m. on the right side of the chin caused by a sharp
bladed instrument; 1 1) superficial stab wound on the mid-
axilliary line caused by a sharp bladed instrument: 12)
stab wound on the left forearm: 13) cord markings on both
feet.
Internal findings reveal an impacted bolus of white bread
measuring 3 x 2.5 cm in the oropharynx. The tongue has
contusion on the right lateral side and an abrasion across
the middle portion. The larynx and trachea are markedly
congested. The cause of death was due to asphyxiation
by suffocation with an impacted bolus into the oropharynx
 and compression of the neck with a broad clothing around
the neck (pp. 6-18, incl., t. s. n. June 16,1978; Exh. "BB"
pp. 62 & 63, rec.).
In his first assignment of error, appellant advances the theory that he
never intended to kill the deceased, his intention being merely to rob
her, for if indeed he had the intention to kill her, he could have easily
done so with the knife, and therefore, his liability should be only for
robbery.
Appellant's theory finds no basis in the law or in jurisprudence. It was
been repeatedly held that when direct and intimate connection exists
between the robbery and the killing, regardless of which of the two
precedes the other, or whether they are committed at the same time,
the crime committed is the special complex crime of robbery with
homicide. 1 If the circumstances would indicate no intention to kill, as
in the instant case were evidently, the intention is to prevent the
deceased from making an outcry, and so a "pandesal" was stuffed
into her mouth, the mitigating circumstance of not having intended to
commit so grave a wrong may be appreciated. 2 The stuffing of the
"pandesal" in the mouth would not have produced asphyxiation had it
not slid into the neckline, "caused by the victim's own movements, "
according to Dr. Singian. The movements of the victim that caused
the "pandesal" to slide into the neckline were, however, attributable to
what appellant and his co-accused did to the victim, for if they did not
hogtie her, she could have easily removed the "pandesal" from her
mouth and avoided death by asphyxiation.
It may not avail appellant to contend that the death was by mere
accident for even if it were so, which is not even beyond doubt for the
sliding of the pandesal into the neckline to produce asphyxiation
could reasonably have been anticipated, it is a settled doctrine that
when death supervenes by reason or on the occasion of the robbery,
it is immaterial that the occurrence of death was by mere
accident. 3 What is important and decisive is that death results by
reason or on the occasion of the robbery. 4 These Spanish doctrines
were cited by this Court in People vs. Mangulabnan, et al., 99 Phil.
992.
Appellant would also have Article 49, paragraph I of the Revised
Penal Code apply to him, and faults the court a quo for having failed
to do so. The provision cited reads:
Art. 49. Penalty to be imposed upon the principals when
the crime committed is different from that intended — In
 cases in which the felony committed is different from that
which the offender intended to commit, the following rules
shall be observed:
1. If the penalty prescribed for the felony committed be
higher than that corresponding to the offense which the
accused intended to commit, the penalty corresponding to
the latter shall be imposed in its maximum period.
xxx xxx xxx.
The foregoing provision has been applied only to cases when the
crime committed befalls a different person from the one intended to
be the victim. This was the explicit ruling in the case of People vs.
Albuquerque, 59 Phil. 150-153, citing decisions of he Supreme Court
of Spain." 5
In the instant case, the intended victim, not any other person, was the
one killed, as a result of an intention to rob, as in fact appellant and
his co-accused, did rob the deceased. As stated earlier, what may be
appreciated in appellant's favor is only the mitigating circumstance of
not having intended to commit so grave a wrong as that committed,
under paragraph 3 of Article 13 of the Revised Penal Code, an
entirely different situation from that contemplated under paragraph 1,
Article 49 of the same Code, where as already explained, the
different felony from that intended, befalls someone different from the
intended victim, as when the person intended to be killed is a
stranger to the offender, but the person actually killed is the
offender's father, thereby making the intended felony which is
homicide different from the crime actually committed which is
parricide.
Notwithstanding the presence of the mitigating circumstance of not
having intended to commit so grave a wrong as that comitted, there
still remains one aggravating circumstance to consider, after either
one of the two aggravating circumstances present, that of superior
strength and dwelling, is offset by the mitigating circumstance
aforesaid. The higher of the imposable penalty for the crime
committed, which is reclusion perpetua to death, should therefore be
the proper penalty to be imposed on appellant. 'This is the penalty of
death as imposed by the lower court.
WHEREFORE, the judgment appealed from being in accordance with
law and the evidence, except as to the nonappreciation of the
mitigating circumstance of having no intention to commit so grave a
wrong as that committed, which nevertheless does not call for the
modification of the penalty of death as imposed by the lower court, is
hereby affirmed. Cost de oficio.
SO ORDERED.

G.R. No. 131835 February 3, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ARNULFO QUILATON alias "ARNOLD," PATRICIO QUIYO,
DIDING MAMALINGPING, AVELINO AHAO y LATIMBANG, HILDO
BUACON y EMPONG, accused; ARNULFO
QUILATON alias "ARNOLD," appellant.
PANGANIBAN, J.:
The burden of proof rests upon the prosecution. Unless it succeeds in
proving the guilt of the accused beyond reasonable doubt, the
constitutional presumption of innocence remains. Mere passive
presence at the crime scene does not prove participation in the
conspiracy.
Statement of the Case
Arnulfo Quilaton appeals before us the February 5, 1996
"Judgment"2 of the Regional Trial Court of Kidapawan, Cotabato
(Branch 17), in Criminal Case No. 1560 which disposed as follows:3
WHEREFORE, prescinding from all the foregoing
considerations, the Court hereby pronounces the accused
Avelino Ahao, Hildo Buacon and Arnulfo Quilaton guilty of the
crime charged beyond reasonable doubt and accordingly
hereby sentences each to undergo [the] prison term
of [r]eclusion [p]erpetua for the death of Pio de Juan and Arturo
Laos,4 to indemnify the heirs of Arturo Laos and Pio de Juan
and for [the] frustrated murder of Jerry de Juan, Arnel Laos and
Carlito Taping, the Court hereby sentences each to suffer an
indeterminate penalty ranging from eight years of prision
mayor, as minimum, to seventeen years and four (4) months
of Reclusion Temporal as maximum and to pay medical
expenses incurred by the victim.1âwphi 1.nêt

The criminal liability of Patricio Quiyo and Diding Mamalingping

is extinguished pursuant to Art. 89 of the Revised Penal Code.
On September 23, 1982, acting Second Assistant Provincial Fiscal
Camilo O. Fulvadora filed an Information deed September 17, 1982,
charging herein appellant and the other accused as follows:5
 That on or about August 9, 1980, at Barangay Kauswagan,
Municipality of Magpet, Province of North Cotabato, Philippines,
and within the jurisdiction of this Honorable Court, the above-
named accused, armed with a 20 gauge pistol, ax, claw bar,
and a hoe, with intent to kill, conspiring, confederating together
and mutually helping one another, with treachery and evident
premeditation, did then and there willfully, unlawfully and
feloniously attack, assault, ax and wound Arturo Laus and Pio
de Juan, thereby hitting and inflicting upon the latter mortal
wounds on the vital parts of their bodies which caused their
instantaneous death, and on the same occasion, the same
accused with intent to kill, and in treacherous manner, did then
and there willfully, unlawfully and feloniously beat Jerry de
Juan, strike Arnel Laus, hack and shoot Carlito Taping, hitting
and inflicting on the vital parts of their bodies, thus performing
all the acts of execution which would have produced the crime
of Triple Murder, as a consequence, but nevertheless, did not
produce it by reason of causes independent of the will of the
perpetrators, that is, by the timely and able medical assistance
rendered to Jerry de Juan, Arnel Laus and Carlito Taping which
prevented their death.
Accused Diding Mamalimping and Patricio Quiyo died during the
pendency of the proceedings in the trial court.6On June 16, 1983, the
three other accused, with the assistance of Attys. Gregory Yarra and
Jorge Zerrudo, entered a plea of not guilty.7 A rather lengthy trial
ensued. On March 20, 1996,8 the trial court promulgated its
"Judgment" dated February 5, 1996. In an Order dated June 17,
1996, the court a quo denied Quilaton's Motion for Reconsideration.9
Hence, this appeal filed by Quilaton only.10
The Facts
Version of the Prosecution
In its Brief, the prosecution summarized the facts of this case as
11

follows:12
[O]n the evening of August 9, 1980, Erlinda Taping, her
husband Carlito Taping, and their children were sleeping at the
sala of the second floor of her father's house in Kauswagan;
Magpet, North Cotabato (p. 13, TSN, March 14, 1985).
Downstairs, Arturo Laus (Erlinda's father), Hildo Buacon,
appellant Arnulfo Quilaton, Diding Manalingping, Avelino Ahao,
Arnel Laus, Gerry de Juan, and Pio de Juan were sleeping (p.
11, TSN, March 4, 1985). Buacon, Quilaton, Ahao, Pio de Juan
and Mamalingping were laborers in Arturo Laos' rubber
plantation (pp. 3-4, TSN, March 14, 1985).
Between 10:00 p.m. and 11:00 p.m. of the same night, Erlinda
was sleeping when she was struck by an ax (p. 14, TSN, March
14, 1985). She shouted at her husband, Carlito, and woke him
up (p. 14, TSN, August 20, 1984).
Carlito Taping stood up. Erlinda, on the other hand, got a
flashlight and, with it, saw her husband push Hildo Buacon and
Diding Mamalingping (p. 15, TSN, August 20, 1984).
Carlito Taping was hacked by Hildo Buacon on the head (p. 16,
TSN, August 20, 1984). Carlito then pushed Buacon and
Mam[a]lingping down. The two men fell to the elevated floor
portion of the stairs before reaching the ground floor (pp. 18-19,
TSN, August 21, 1984).
Thereafter, Patricio Quiyo who was downstairs handed a gauge
20 firearm to Buacon (p. 21, TSN, March 14, 1985) who then
went upstairs and shot Carlito Taping. The latter was hit [i]n the
stomach (p. 20, TSN, August 21, 1984). Erlinda Taping was
almost 1 1/2 meters from her husband, and 3 to 4 meters from
Buacon at the time of the shooting (p. 21, TSN, August 21,
1984).
After the shooting, Buacon gave the gun to Patricio Quiyo (p.
21, TSN, August 21, 1984). Thereafter, these two men with
Diding Mamalingping ran out of the house (p. 22, TSN, August
21, 1984).
When Erlinda, with Carlito and their children, went downstairs,
she saw her father (Arturo Laus) already dead, with a wound on
the face just above the nose. Pio de Juan was lying face down
on the cemented floor, also dead. Erlinda also saw Arnel Laus
wounded on the head, but still alive, as well as Gerry de Juan
who was likewise wounded (pp. 22-25, TSN, August 21, 1984).
Carlito saw appellant Quilaton come out from under the bed (p.
8, TSN, January 4, 1984).
Erlinda brought Arnel Laus and Carlito Taping to the
Brokenshine Hospital. She did not bring Gerry de Juan along
since she thought he was already dead (p. 26, TSN, August 21,
1984).
 De Juan was brought to the Madonna Hospital. It was appellant
who paid for his hospitalization (pp. 26-28, TSN, August 21,
1984).
Version of the Defense
In his Brief, appellant submits the following statement of facts:13
On August 9, 1980 at Barangay Kauswagan, Magpet, North
Cotabato, a group of malefactors attacked/assaulted the
occupants of a house and committed the following crimes:
double murder and triple frustrated murder.
It was established that these persons were also occupants of
the house that night and were sleeping there being
workers/laborers, and in the case of Arnulfo Quilaton, a
houseboy, 16 years of age.
The victims of the crimes were ARTURO LAUS and PIO DE
JUAN who were killed[;] JERRY DE JUAN, ARNEL LAUS and
CARLITO TAPING, Arturo Laus' son-in-law were seriously
injured.
Accused of the crimes were: PATRICIO QUIYO, DIDING
MAMALINGPING, AVELINO AHAO, HILDO BUACON and
ARNULFO QUILATON alias ARNOLD.
It was also established that in the afternoon of that day there
was a drinking some in the rubber plantation attended by the
accused. But while Buacon declared that Arnulfo Quilaton was
with the group, this was denied by Avelino Ahao, who omitted
Arnulfo's name in his testimony, but Carlito Taping, principal
witness and offended party declared that Quilaton was not a
participant in the spree, confirmed by Quilaton himself when he
testified in his behalf. There is therefore serious doubt as to the
participation of ARNULFO QUILATON in the conspiracy, thus
he can not legally be responsible for the acts of his co-accused,
especially [since] it is a basic rule of evidence that conspiracy
must be proved like the crime itself beyond reasonable doubt.
Carlito Taping who was seriously injured during the incident
was first treated at Sto. Niño Hospital in Makilala town but was
transferred to the Brokenshire Hospital in Davao City.
The prosecution's Offer of Evidence/Exhibits will show that no
doctor was presented, but the medical certificates of the
wounded were identified by Carlito Taping and/or Erlinda Laus
Taping.
 From the evidence adduced, it appears that the MOTIVE for the
crimes committed were (1) tenancy disputes and (2) [the
allegation that] Carlito Taping . . . boxed Patricio Quiyo in the
presence of the Barangay Captain; Jesus Kionisala.14
The trial court summarized appellant's testimony in this wise:15
ARNULFO QUILATON testifying in his behalf declared that he
is 29 years old, married, farmer, a resident of Kauswagan,
Magpet, Cotabato. That on 9 August 1980, he was in the house
of his employer Arturo Laos. He denied having planned and
participated in the killing of Laos and Pio de Juan. He admitted
having struck Jerry de Juan believing that he was a bad man.
The house of Arturo Laos is a two (2) storey [structure;] the
upper portion is occupied by the Taping family, while the lower
portion is occupied by Arturo Laos, Pio de Juan, Jerry de Juan
and Arnel Laos. He denied having knowledge of the plan to kill
Laos and de Juan as he was at the time in his employer's
house.
Ruling of the Trial Court
In convicting the accused, the trial court explained:16
From the mass of evidence, the prosecution has established
the identity of the accused Hildo Buacon, Avelino Ahao and
Arnulfo Quilaton as the perpetrators of the crime. Accused's
pretended innocence . . . is overturned by the prosecution's
evidence, particularly the testimonies of Carlito Taping and
Erlinda Taping who positively identified all of the accused on
that fatal evening. Conspiracy has been established in the
instant case . . . .
Accused failed to present an iota of evidence to at least
corroborate their testimonies. No motive was established by the
defense as to why they [were] being indicted for such a heinous
crime.
Assignment of Errors
Appellant submits that the trial court committed the following errors:
(1) . . . FINDING ARNULFO QUILATON GUILTY BEYOND
REASONABLE DOUBT OF THE CRIMES CHARGED BASED
UPON THE EVIDENCE PRESENTED DURING THE TRIALS;
(2) . . . SENTENCING ARNULFO QUILATON TO THE
MAXIMUM PENALTY OF RECLUSION PERPETUADESPITE
CONCLUSIVE PROOF WHICH IS OF JUDICIAL NOTICE
THAT SAID ACCUSED, ARNULFO QUILATON was a minor of
 16 years at the time of the incident, AS THE RECORDS SHOW
THAT HE WAS IN THE CUSTODY OF HIS PARENTS;
(3) . . . FINDING ARNULFO QUILATON IN CONSPIRACY
WITH HIS CO-ACCUSED;
(4) . . . NOT CONSIDERING THE DESISTANCE OF THE DE
JUAN RELATIVES AND THE RETRACTION OF CARLITO
TAPING, OFFENDED PARTY AND EYE-WITNESS.
In resolving this appeal, the Court will determine whether the
prosecution has proven appellant's guilt beyond reasonable doubt.
This Court's Ruling
The appeal is meritorious.
Main Issue:
Sufficiency of Prosecution Evidence
The burden of proof rests upon the prosecution. Unless the guilt of
the accused is proven beyond reasonable doubt, the constitutional
presumption of innocence applies.17
In the present case, the prosecution presented two alleged
eyewitnesses, Carlito and Erlinda Taping. Relying on their
testimonies, the trial court ruled that appellant conspired with the
other accused in attacking the victims on the night of August 9, 1980.
While these two witnesses categorically established the criminal
participation of the other accused, their very testimonies show,
however, that appellant had no part in the conspiracy. There was no
showing at all that he had confabulated with or assisted any of the
other accused in committing the crime, or that he was even aware of
their criminal design.
Erlinda Taping testified as follows:18
Q At about between 19:00 o'clock to 11:00 o'clock that
evening of August 9, 1980, was there any unusual incident that
happened inside your house?
A Yes, sir, there was.
Q What happened?
A First, I noticed that I was struck by an ax.
Q When you were hit what did you [do] if you did
anything?
A I shouted at my husband that there was a man.
xxx xxx xxx
Q When your husband stood up, what did you do?
A I got a flashlight.
Q And what did you do with the flashlight?
A I flash[ed] the flashlight [on] them.
Q And did you see anybody when you flash[ed] the
flashlight?
A Yes, sir.
Q What [did] you [see]?
A I saw that he was push[ed] down by my husband.
Q Who was pushed by your husband?
A Hildo Buazon and Diding Mamalimping.
xxx xxx xxx
Q When your husband stood up, what happened, if any?
A He was hacked by Hildo Buacon.
xxx xxx xxx
Q After he was hit on the head by Hildo Buacon, what
happened next?
A When he was hacked on the head, he pushed the two
men down.
xxx xxx xxx
Q Now when these two, Hildo Buacon and Diding
Mamalimping fell on the elevated portion of the stair, what did
your husband do, if any?
A He just watched them.
xxx xxx xxx
Q While your husband was watching . . . that portion, of
the house, what happened next, if any?
A Patricio Quiyo told Buacon to shoot.
Q Where was Patricio Quiyo at that time?
A He was down stairs.
xxx xxx xxx
Q And what did Hildo Buacon do, if any?
A He went upstairs and then [fired a shot].
Q Who was shot?
A My husband, sir.
xxx xxx xxx
Q Now, what did your husband do after he was shot[?]
A He just sat down.
Q What about these 3 persons, Hildo Buacon, Diding
Mamalimping and Patricio Quiyo, what did they do if they did
anything?
A They ran away.
Q You mean they went out of your house?
 A Yes, sir.
Q [Did] you [see] Arnulfo Quilaton that time?
A Yes, Sir, when we went downstairs already.
Q Where was Arnulfo Quilaton when you went
downstairs?
A He was in the bodega.
Erlinda's direct testimony dearly shows that she saw appellant only
after the incident. In fact, her averments during cross-examination
established that she saw him only when he came our of hiding.19
A When we went down we saw Arnulfo Quilaton and
Hildo Buacon [on] the cement. Hildo Buacon went out [from]
under the bed. Arnulfo Quilaton [sought] cover at the corn mill.
Q So, when you went down and when you saw these
persons, Hildo Buacon and Arnulfo Quilaton, you saw them
hiding?
A Yes, sir
Q And what did you do when you saw them?
A We just proceeded to the car and Buacon and Quilaton
went with us.
xxx xxx xxx
Q You mean to tell us that Arnulfo Quilaton and Hildo
Buacon helped in bringing the victim Arnel Laos and load[ing]
him in the car?
A Yes, sir.
Carlito Taping narrated the incident in this wise:20
Q At about 10:00 o'clock in the evening of August 9,
1980, was there any unusual incident that took place in your
house?
A There was, sir.
xxx xxx xxx
Q Tell us, what [was] that incident?
A At around 10:00 o'clock . . . that evening of August 9,
1980, while I was sleeping all of a sudden I woke up when my
wife told me that there was a person so I woke up and after I
woke up, I stood and then a person hacked me.
xxx xxx xxx
Q What followed next after you were hacked?
A When I was hacked by that person, I took hold of him
and I pushed him down to the ladder.
xxx xxx xxx
Q Who hacked you, if you know?
A Hildo Buacon.
Q If this Hildo Buacon is inside the courtroom now, could
you point to him?
A Yes, sir.
Q Please do so[.]
A (Witness points to a person inside the room who when
asked his name answered Hildo Buacon, one of the accused
herein).
xxx xxx xxx
Q On what part of your house were you when you were
hacked?
A I was hacked at the sala of [the] upper floor of our
house.
xxx xxx xxx
Q After wiping your forehead because of blood oozing,
what happened next?
A My wife tied my head with a piece of cloth.
Q What about Hildo Buacon, where was he when your
wife was tying your forehead with a piece of cloth?
A They fell down . . . the stairs.
xxx xxx xxx
Q You used the word "they", who were they?
A Diding Mamalimping.
Q Before Diding Mamalingping fell together with Hildo
Buacon, what did Diding Mamalimping do?
A He was able to come up the stairs.
Q Why did these Hildo Buacon and Diding Mamalimping
f[a]ll [down] the stairs?
A Because I took hold of Hildo Buacon and pushed him
[down] the stairs and at the same time kick[ed] him, that [was]
why they fell.
xxx xxx xxx
Q After pushing down Buacon and Mamalimping and
they fell [down] the stairs, what did you do?
A I got my "lagarao" which was place[d] about my pillow.
Q At that time, what was your wife doing, i[f] any?
A She took our flashlight.
Q What did she do with that flashlight?
A After I took hold of my "lagarao" I wanted to follow them
but when my wife flashed the flashlight, they were no longer
there; they were already down the house.
Q After that?
A I ran upstairs because I heard Quiyo saying: "pusila"
meaning, "[shoot] him[.]"
Q Did you see Quiyo when he uttered "shoot him"?
A Yes, sir.
Q Where was Quiyo that time?
A He was also there at the base of the stairs . . . .
Q How were you able to recognize him?
A Because my wife [trained the] flashlight [on] him.
xxx xxx xxx
Q After you were shot, what did you do next?
A I ran to my room and hid.
Q How about your children, what did they do?
A They cried for help.
Q Your wife?
A She shouted for help.
Q And was there anybody who came to help you?
A None, sir.
Q Since nobody came to [your] succor . . ., what did you
do?
A I told my wife that we will go down altogether so that I
can be brought to the hospital.
Q How did you go down?
A I was not able to go down yet because there were
people downstairs.
Q What did you do when you observed that there were
persons below your house?
A I just sat inside my room.
Q And, finally, were you able to go down?
A Yes, we were able to go downstairs because I told . . .
all of them that we will altogether go down the house.
Q When you were able to go downstairs, who were those
people you saw downstairs?
A Hildo Buacon and Arnulfo Qulaton were there
downstairs.
Q By the way, why was Arnulfo Quilaton there that time?
A Because he slept in our house.
 Q Why, is Arnulfo Quilaton your employee?
A Yes, sir.
Q Employed with whom?
A With my father-in-law.
Q What was Arnulfo Quilaton doing that time [when you
saw] him downstairs?
A They came out from under the bed.
Nothing in the foregoing testimony imputes any criminal act to
appellant. Moreover, Carlito subsequently declared that, to his
knowledge, appellant did not participate in the crime. In an affidavit
dated May 23, 1994, he averred:21
That I very well know Arnulfo Quilaton alias Arnold, he having
grown up in our family and that I very well know and am
convinced that he had nothing to do and was totally innocent of
the gory and tragic incident that happened to our family on
August 9, 1990 at nighttime;
That I and my witnesses did not see or notice any participation
or involvement of Arnulfo Quilaton relative to the crime, and as
a matter of fact he assisted and accompanied me in going to
the hospital, first [to] Sto. Niño, Makilala, Cotabato and later to
the Brokenshire Hospital in Davao City; that I know him to be
trustworthy and of good moral character.
Proof of Conspiracy
Citing the testimonies of Erlinda and Carlito, the trial court
nonetheless convicted appellant on the basis of his alleged
conspiracy with the other accused.
We disagree. The well-settled rule is that conspiracy must be proven
as clearly as the commission of the offense itself.22 True, direct proof
is not essential, because conspiracy may be inferred from the
conduct of the accused before, during and after the commission of
the crime, showing that they had acted with a common purpose and
design.23
Clearly, however, the prosecution failed to prove the elements of
conspiracy. There was no evidence that appellant aided the other
accused or that he participated in their criminal design. Conspiracy
was not implied by his mere presence at the crime scene,24 which
could be explained by the fact that as an employee of the deceased,
he had been told to sleep there. In fact, the two eyewitnesses saw
him only after the incident.
The testimonies given to implicate appellant indicated only that he
was seen coming out of hiding after the other accused had fled.
There was nothing abnormal or sinister about his conduct. That he
hid while the killing was being committed was not a crime. Some may
damn him for cowardice but, just the same, the act of hiding did not
prove participation or conspiracy in the crime.
Furthermore, appellant himself assisted Carlito Taping in bringing the
wounded to the hospital that night. While this act did not necessarily
prove that he was innocent, it nonetheless strengthened his
contention that he had no part in the criminal design.
Testimonies of the Other Accused
Failed to Implicate Appellant
Noteworthy is the fact that not one of the other accused, after having
admitted their participation in the crime, implicated herein appellant.
Accused Hildo Buacon stated that he participated in the attack,
because he had been threatened by Diding Mamalingping and
Patricio Quiyo. He testified thus:
Q After you ha[d] been already sleeping, what
happened?
A This Diding Mamalimping awakened me.
Q What did he tell you?
A He told me, "pag-mata na, naa na si Patricio Quiyo",
meaning, wake up because Patricio Quiyo is already here.
Q After you woke up, what did you do?
A When I woke up, this Patricio Quiyo pointed a gun
towards me.
Q What did Patricio Quiyo tell you after point[ing] a gun to
you?
A He said, "patyon nato si Arturo Laos ug Carlito Taping",
meaning, let us kill Arturo Laos and Carlito Taping.
Q What did you tell him when you heard that?
A I answered, "dili ko ana Nong kay wala siyang atraso
nako", meaning, I will not, he has no differences with me.
Q What happened after that?
A If you will not accede, I will kill you.
Q What happened next?
A Because of fear, I acceded.
Q Now, what happened next when you acceded?
A He also called on Avelino Ahao to wake up.
Q Why? where was Avelino Ahao sleeping that time?
A In the other room [in] that same house.
Q After Avelino Ahao . . . already woke up, what
happened next?
A He was threatened in the manner [in] which I was
threatened.
Q Then what happened next?
A They killed Arturo Laos and Pio De Juan.
Q Who killed Pio De Juan and Arturo Laos?
A Patricio Quiyo and Diding Mamalimping killed Arturo
Laos.
Q How about [Pio] De Juan? Who killed him?
A Avelino Ahao struck him with an iron bar on the portion
below his left arm and then he was hacked by Patricio Quiyo.
xxx xxx xxx
Q What were you doing that time?
A I just look[ed].
Q Then, after the two were already killed, what happened
next?
A I was brought upstairs to the place where Carlito
Taping was.
Q And you went with them upstairs?
A Yes, I went with them.
Q Who were with you when you went upstairs?
A Patricio Quiyo and Diding Mamalimping.
Q What happened when you went up?
A This Carlito Taping woke up and I hacked him.
Q Where was he hit?
A He was hit on his temple but because he resisted, he
pushed me.
Q Where were you pushed?
A Towards the stairs.
Q Then what happened when you were pu[sh]ed
downstairs?
A Immediately, this Patricio Quiyo handed me a gun and
told me to shoot Carlito Taping.
Q Was Carlito Taping hit when you [shot] him?
A Yes, [i]n his stomach.
Q Then what happened next after that?
A He fell then we, all of us, went down.
Q Then what happened next?
 A Mrs. Taping [trained her flashlight on] us and I hid
under the bed.
Q Then how about the others, Diding Mamalimping and
Patricio Quiyo and Avelino Ahao, what did they do?
A I do not know anymore where they were.
Accused Ahao, on the other hand, also stated that he took part in the
commission of the crime, together with Buacon, Quiyo and
Mamalingping. Like Buacon, he made no mention that appellant was
part of their group.
Testimony of Appellant
Even the solicitor general admitted that the two prosecution
witnesses' testimonies, by themselves, "appear insufficient to
establish appellant's guilt beyond reasonable doubt"; and that they
"do not constitute adequate proof that appellant participated in the
crimes committed [against] the victims."25 The solicitor general
maintains, however, that what linked appellant to the crime was this
portion of the latter's testimony:
Q And while there was a rumble, you were just sleeping?
A I was surprised regarding that commotion.
Q Isn't it that you were given an iron bar to hit one of the
victims in the person of Jerry de Juan?
A Incidentally, I took hold of the "sadol" hoe and upon
seeing that the person I met [was] a bad person . . . I hit him
and I discovered later that it was Jerry de Juan.26
The solicitor general argues that these statements constituted
sufficient proof of appellant's participation in the conspiracy.
We disagree. That alleged admission, by itself, did not show beyond-
reasonable doubt that appellant was part of the conspiracy. He
himself explained that he thought he was hitting one of the "bad-
men." His explanation must be viewed in the light of the chaos that
characterized the night. As testified to by the other accused, there
were four attackers. It was dark and forbidding. It was not surprising
that someone who was not a part of the conspiracy was confused
and unable to think rationally. That appellant immediately concluded
that the person he had hit was one of the attackers was not
farfetched. To repeat, no other act was imputed to him. Verily, the
circumstance cited by the solicitor general fails to produce moral
certainty that appellant was part of the conspiracy.
In the present case, we are convinced that the prosecution evidence
failed to overcome the constitutional presumption of innocence. The
appellant deserves an acquittal and must forthwith be given back his
liberty.27
WHEREFORE, the appeal is hereby GRANTED; and the Decision of
the Regional Trial Court of Kidapawan, Cotabato, insofar as it
convicted Appellant Arnulfo Quilaton, is, hereby REVERSED and
SET ASIDE. On reasonable doubt, appellant is hereby ACQUITTED.
The director of the Bureau of Corrections and the head of the Davao
Prison and Penal Farm are hereby directed to release appellant
immediately, unless he is being lawfully held for another cause; and
to inform the Court of the date of his release, or the reasons for his
continued confinement, within ten days from notice. No costs.
SO ORDERED. 1âwphi 1

PO3 BENITO SOMBILON, JR., G.R. No. 175528

Petitioner, Present:

PUNO, C.J., Chairperson,

CARPIO,
CORONA,
- versus - LEONARDO-DE CASTRO, and
BERSAMIN, JJ.

Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. September 30, 2009
x------------------------------------------------------------------------------------------x

DECISION

LEONARDO-DE CASTRO, J.:

This resolves the petition for review which seeks to annul and set
aside the following rulings of the Court of Appeals (CA) in C.A. C.R. No.
27729: a) the Decision[1] dated July 28, 2005 which affirmed with
modification the decision[2] dated May 13, 2003 of the Regional Trial Court
of Davao City (RTC), convicting petitioner of acts of lasciviousness; and b)
the Resolution[3] dated September 22, 2006 denying petitioner’s Motion for
Reconsideration of the aforesaid Decision.

The facts found during trial, as succinctly stated by the CA, are as
follows:

The facts found during the trial reveal that on or about

August 15, 1998, AAA, a fifteen (15)-year old minor, was
investigated by Appellant at the Calinan Police Station, Davao
City in connection with a complaint for Theft filed by a certain
Aileen Dagoc.

AAA alleged that Appellant, in conducting the

investigation, took her inside a room and locked it. She testified
that the room had no window but had a cot, a table, and a
clothesline where some clothes were hanged. She claimed that
Appellant pointed a gun at her, with the end of the barrel touching
her forehead and pushed her with it, causing her head to violently
bang against the wall, and asked her: “Did you steal the
necklace?” She answered that she did not. Appellant then took
an electric wire from a drawer and inserted its male plug to a
socket. She was ordered to place her two hands on top of the
table where her fingers were electrocuted with the end of the
wire. She was again asked the same question, which she kept
answering in the negative. Subsequently, she was asked: “Dalaga
ka na ba?’ (Are you a woman now?), and was told: “I am single
too.” Simultaneously, she was touched all over her body
including her breasts, her belly, and her private parts. She was
also kissed on her cheek. She struggled to resist the sexual
advances but Appellant prevailed. She claimed that they were
inside the room for more than one (1) hour.
 Thereafter, they went out of the room where Appellant
announced to P03 Danilo Mendez and Aileen Dagoc that she had
already admitted having stolen the necklace. Pale, AAA was
trembling and crying; her hair disheveled, her dress wet. She also
had bruises on her forehead.

The police officers allowed AAA and her mother to go home on the
condition that they would pay the value of the necklace. Because of AAA’s
condition, AAA’s mother brought her daughter to the Medical Clinic of St.
Luke where AAA was examined by Dr. Manuel Garcia, Sr.[4] Dr. Garcia
gave AAA a tranquilizer to calm down the latter who was trembling and
incoherent.[5] At first, AAA could not answer the doctor when she was
asked what happened to her. Later, upon regaining her composure, she
revealed that she was electrocuted and sexually molested by
petitioner.[6] The Medical Certificate[7] issued by Dr. Garcia disclosed the
following injuries:

1. Slight contusion over occiput region.

2. Slight contusion over center area of forehead.
3. Multiple slight contusions of fingers of bilateral hands.
4. Multiple slight contusions of bilateral breast areas.
5. Slight body tremors.
Diagnosis: Slight Physical Injuries

In an Information[8] dated August 23, 1999, petitioner was charged

with the crime of Acts of Lasciviousness committed as follows:

The undersigned accuses the above-named accused of the

crime of Acts of Lasciviousness, under Art. 336, in relation to
Art. 344 of the Revised Penal Code, upon the instance of the
complainant AAA, who is 15 years old, whose affidavit is hereto
 attached to form part of this Information. The crime is committed
as follows:

That on or about August 14, 1998, in the City of Davao,

Philippines, and within the jurisdiction of this Honorable Court,
the above-mentioned accused, motivated by lewd design,
willfully, unlawfully, and feloniously upon the person of AAA,
by then and there embracing, mashing the breast, and touching the
private part, against her will.

CONTRARY TO LAW.

Upon arraignment, petitioner pleaded “not guilty.” Trial ensued

thereafter.

On May 13, 2003, after trial on the merits, the RTC rendered a
decision finding petitioner guilty of acts of lasciviousness with the
aggravating circumstance of petitioner’s taking advantage of his public
position and sentenced him to six (6) months ofarresto mayor, as minimum,
to five (5) years, four (4) months and twenty-one (21) days of prision
correccional, as maximum. The dispositive portion of the Decision reads:

For the foregoing judgment is hereby rendered, finding

accused P03 Benito Sombilon, GUILTY beyond reasonable doubt
of the crime of Acts of Lasciviousness, under Article 366 of the
Revised Penal Code, and is hereby sentenced to suffer
imprisonment under the Indeterminate Sentence Law from Six (6)
months of Arresto Mayor, as minimum to Five (5) years, Four (4)
months and Twenty-one (21) days of Prision Correccional, as
maximum and directed to pay private complainant AAA the
following:

a.) by way of moral Damages, the amount of Ten

Thousand Pesos (PhP10,000.00); and
 b.) by way of Exemplary Damages, the amount of ten
Thousand Pesos (Php10,000.00).[9]

From the above decision, petitioner interposed an appeal to the CA,

which was docketed as CA-G.R. CV No. 40419.

On July 28, 2005, the CA rendered the herein challenged Decision

affirming with modification the RTC’s judgment of conviction.
Appreciating the aggravating circumstance of taking advantage of public
position which was adequately established during the trial, the CA increased
the maximum penalty imposed against petitioner to its maximum period of
six years ofprision correccional. The dispositive portion of the Decision
reads:

WHEREFORE, the Decision of the Regional Trial Court,

Br. 8, Davao City in Criminal Case No. 43, 810-99 is
herebyAFFIRMED with MODIFICATION. Appellant P03
Benito Sombilon, as found guilty beyond reasonable doubt of the
crime of acts of lasciviousness, defined and penalized under
article 336 of the Revised Penal Code, is hereby sentenced to
suffer the indeterminate penalty of 6 months of arresto mayor as
minimum, to 6 years of prision correccional, as
maximum. Appellant is likewise ordered to pay the victim, AAA,
the amount of Php10,000.00 as moral damages and another
Php10,000.00 as exemplary damages.
With costs.

SO ORDERED.[10]

Thus, petitioner filed the instant petition, with the following

allegations:
I
 THE HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE TRIAL COURT THAT THE ACCUSED IS
GUILTY OF THE CRIME CHARGED BEYOND REASONABLE
DOUBT;

II
ASSUMING BUT NOT ADMITTING, THE HONORABLE
COURT OF APPEALS ERRED IN AFFIRMING THE
APPRECIATION OF THE AGGRAVATING
CIRCUMSTANCE OF TAKING ADVANTAGE OF HIS PUBLIC
POSITION FOR FAILURE TO ALLEGE IN THE
INFORMATION;

III
THE HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE AWARD OF DAMAGES.[11]

Petitioner contends that the CA erred in affirming his conviction for

acts of lasciviousness. Even as he admits havingmerely touched the victim,
petitioner argues that the act of touching did not constitute lewdness. At
most, he could only be convicted of unjust vexation. Petitioner likewise
asserts that while the victim was being touched, the latter tried to cover her
body with her arms. Lastly petitioner posits that the police station does not
favor the perpetration of the crime of acts of lasciviousness.

Petitioner’s contention deserves scant consideration.

The crime of acts of lasciviousness as punished under Article 336 of

the Revised Penal Code provides:

ART. 336. Acts of lasciviousness.- Any person who shall

commit any act of lasciviousness upon other persons of either sex,
under any of the circumstances mentioned in the preceding article,
shall be punished by prision correccional.
 For an accused to be convicted of acts of lasciviousness under the
foregoing provision, the prosecution is burdened to prove the confluence of
the following essential elements: (1) that the offender commits any act of
lasciviousness or lewdness; and (2) that it is done under any of the following
circumstances: (a) by using force or intimidation; (b) when the offended
woman is deprived of reason or otherwise unconscious; or (c) when the
offended party is under twelve (12) years of age.[12]

In the case of Amployo v. People,[13] the Court expounded on the

definition of the term lewd, thus:

The term “lewd” is commonly defined as something

indecent or obscene; it is characterized by or intended to excite
crude sexual desire. That an accused is entertaining a lewd or
unchaste design is necessarily a mental process the existence of
which can be inferred by overt acts carrying out such intention,
i.e., by conduct that can only be interpreted as lewd or
lascivious. The presence or absence of lewd designs is inferred
from the nature of the acts themselves and the environmental
circumstances. What is or what is not lewd conduct, by its very
nature, cannot be pigeonholed into a precise definition. As early
as U.S. v. Gomez we had already lamented that –

It would be somewhat difficult to lay down

any rule specifically establishing just what conduct
makes one amenable to the provisions of article 439
of the Penal Code. What constitutes lewd or
lascivious conduct must be determined from the
circumstances of each case. It may be quite easy to
determine in a particular case that certain acts are
lewd and lascivious, and it may be extremely
difficult in another case to say just where the line of
 demarcation lies between such conduct and the
amorous advances of an ardent lover.

Undoubtedly, petitioner committed acts which fall within the above

described lascivious conduct. It cannot be viewed as mere unjust vexation
as petitioner would have the Court do. The intention of petitioner was
intended neither to merely annoy or irritate the victim nor to force her to
confess the theft. He could have easily achieved that when he electrocuted
the latter. Petitioner intended to gratify his sexual desires.

As found by the RTC and affirmed by the CA, petitioner’s acts of

kissing the victim, fondling her breasts and touching her private parts
constitute lascivious conduct intended to quench his salacious desire.
Petitioner’s lewd intent was betrayed when he asked AAA, “Dalaga ka na
ba?” as a prelude to his lustful advances on the victim, and thereafter
conveyed to her that “I am single too.” We quote with approval the CA’s
ratiocination:

Undeniably, appellant committed lewd acts against

AAA. “Lewd” is defined as obscene, lustful, indecent, and
lecherous. It signifies that form of immorality which has relation
to moral impurity; or that which is carried on a wanton
manner. The evidence shows that appellant committed lewd acts
against AAA when he touched her “all over her body” which
includes mashing her breasts, touching her private parts, and
kissing her on the cheek. These acts were clearly done with lewd
designs as appellant even previously asked AAA, as if it was a
prelude for things to come, “Dalaga ka na ba?” and thereafter
conveyed to her that “he is single too.”[14]
 The fact that the victim tried to cover her body with her arms does not
negate petitioner’s lascivious conduct. Petitioner succeeded in fondling the
victim’s breasts intense enough to cause multiple slight contusions of
bilateral breast areas.

As aptly observed by the CA, petitioner employed force and

intimidation against AAA:

Moreover, appellant employed force and intimidation when

he committed these acts on AAA. In fact, as found by the trial
court, appellant pointed a gun at the forehead of AAA as
evidenced by the bruises on her forehead. Further, the medical
Certificate shows that AAA suffered slight physical injuries
which include “multiple slight contusion of bilateral breast areas”
which supports AAA’s claim.[15]

In People v. Victor,[16] the Court held that in cases of acts of

lasciviousness, it is not necessary that intimidation beirresistible. It being
sufficient that some compulsion equivalent to intimidation annuls or
subdues the free exercise of the will of the offended party. Here, the victim
was locked inside a windowless room together with her aggressor who
poked a gun at her forehead. Even a grown man would be paralyzed with
fear if threatened at gunpoint, what more the hapless victim who was only
15 years old when she was subjected to such atrocity.

Petitioner’s assertion that the locus criminis i.e., the police station
makes it unlikely for him to commit the crime of acts of lasciviousness is
specious. The presence of other policemen on duty and of the victim’s
mother outside the room where the incident took place does not render
commission of the offense impossible. It has been shown that there was a
room in the precinct which, except for two doors which could be locked,
was totally enclosed.[17] During the commission of the acts of
lasciviousness, petitioner and AAA were the only persons inside the
room. Lust, as we have often held, is no respecter of either place or time.[18]

As to the appreciation of the aggravating circumstance of taking

advantage of public position, petitioner points out that said circumstance
was not alleged in the information. The Solicitor General shares the same
view.

Sections 8 and 9 of Rule 110 of the Revised Rules of Criminal

Procedure, which took effect on December 1, 2000, provide:

Sec. 8. Designation of the offense. — The complaint or

information shall state the designation of the offense given by the
statute, aver the acts or omissions constituting the offense, and
specify its qualifying and aggravating circumstances. If there is
no designation of the offense, reference shall be made to the
section or subsection of the statute punishing it.

Sec. 9. Cause of the accusations. — The acts or omissions

complained of as constituting the offense and the qualifying and
aggravating circumstances must be stated in ordinary and concise
language and not necessarily in the language used in the statute
but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as
its qualifying and aggravating circumstances and for the court to
pronounce judgment.
 Clearly, it is now a requirement that the aggravating as well as the
qualifying circumstances be expressly and specifically alleged in the
complaint or information. Otherwise, they cannot be considered by the trial
court in its judgment, even, if they are subsequently proved during
trial.[19] A reading of the Information shows that there was no allegation of
any aggravating circumstance.

In People v. Buayaban,[20] the crime was committed and the

Information was filed in 1990. Still, the Court gave the 2000 Rules of
Criminal Procedure retroactive application since it benefited the accused
and disregarded the generic aggravating circumstance of band because it
was not alleged in the Information. The Court explained, viz:

Section 8 simply provides that the information or complaint

must state the designation of the offense given by the statute and
specify its qualifying and generic aggravating
circumstances. With regard to Section 9, we held in People vs.
Nerio Suela that the use of the word “must” in said Section 9
indicates that the requirement is mandatory and therefore, the
failure to comply with sec. 9, Rule 110, means that generic
aggravating circumstances, although proven at the trial, cannot be
appreciated against the accused if such circumstances are not
stated in the information.

In this case, we cannot properly appreciate the ordinary

aggravating circumstance of band in the commission of the crime
since there was no allegation in the information that “more than
three armed malefactors acted together in the commission of the
crime.

Here, the crime was committed in 1998, the generic aggravating

circumstance of taking advantage of public position was not alleged in the
information. As such, it cannot be appreciated as an aggravating
circumstance. Consequently, the penalty imposed must be modified.

Section 1 of the Indeterminate Sentence Law[21] (ISL) states that (i)n

imposing a prison sentence for an offense punished by the Revised Penal
Code, or its amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be that which, in
view of the attending circumstances, could be properly imposed under the
rules of the said Code, and the minimum which shall be within the range of
the penalty next lower to that prescribed by the Code for the offense. Under
Article 366 of the Revised Penal Code, the penalty for acts of lasciviousness
is prision correccional. Since no aggravating or mitigating circumstance
attended the commission of the offense in this case, the penalty should be
applied in its medium period, the duration of which is two (2) years, four (4)
months and one (1) day to four (4) years and two months, as
maximum. The minimum shall be within the range of the penalty next
lower in degree which is arresto mayor, with the duration of one (1) month
and one (1) day to six (6) months.

Applying the ISL, the proper penalty would be imprisonment of six

(6) months of arresto mayor as minimum to four (4) years and two (2)
months of prision correccional as maximum.[22]

As to the damages awarded, Article 2230 of the Civil Code provides

that in criminal offenses, exemplary damages as part of the civil liability
may be imposed when the crime was committed with one or more
aggravating circumstances. Since the generic aggravating circumstance of
taking advantage of public position was not alleged in the Information
against petitioner it cannot be appreciated in the imposition of the penalty.
But as regards the award of exemplary damages, in the case of People v.
Catubig,[23] the Court declined retroactive application of the 2000 Rules of
Criminal Procedure, to wit:

The retroactive application of procedural rules,

nevertheless, cannot adversely affect the rights of the private
offended party that have become vested prior to the effectivity of
said rules. Thus, in the case at bar, although relationship has not
been alleged in the information, the offense having been
committed, however, prior to the effectivity of the new rules, the
civil liability already incurred by appellant remains unaffected
thereby.

Thus, in accordance with the foregoing pronouncement, the Court

affirms the CA’s award of exemplary damages to the victim in the amount
of P10,000.00.

With regard to the awarded moral damages in the amount

of P10,000.00, the same should be increased to P30,000.00. In People v.
Solmoro[24] we declared that upon a finding of guilt of the accused for acts
of lasciviousness, the amount ofP30,000.00 as moral damages may be
further awarded to the victim in the same way that moral damages are
awarded to victims of rape even without need of proof because it is assumed
that they suffered moral injury. Considering the immeasurable pain and
anguish that the victim had to suffer in the hands of the petitioner; the
trauma that she had to endure even after the incident; and the sexual
perversity of petitioner, who is a police officer, the award of moral damages
in the amount of P30,000.00 is proper.

WHEREFORE, the petition is hereby denied and the Decision dated

July 28, 2005 of the Court of Appeals finding petitioner P03 Benito
Sombilon GUILTY of the crime of acts of lasciviousness under Article 336
of the Revised Penal Code isAFFIRMED with Modification that he is
sentenced to suffer an indeterminate penalty of imprisonment of six (6)
months ofarresto mayor as minimum to four (4) years and two (2) months
of prision correccional as maximum, and to pay the victim the amount
of P30,000 as moral damages and P10,000.00 as exemplary damages.
.
SO ORDERED.

G.R. No. L-47941 April 30, 1985

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JAIME TOMOTORGO y ALARCON, defendant-appellant.

ALAMPAY, J.:
Jaime Tomotorgo y Alarcon, the accused-appellant in this case,
appeals from the decision rendered on December 22, 1977, by the
Court of First Instance of Camarines Sur, Branch IV, in Criminal Case
No. 403 of said court finding him guilty of the crime of parricide for
having killed his wife Magdalena de los Santos. The dispositive
portion of said judgment reads, as follows:
WHEREFORE, in view of the foregoing considerations,
the accused Jaime Tomotorgo y Alarcon is hereby
condemned to suffer the penalty of reclusion
perpetua and to indemnify the heirs of the deceased
Magdalena delos Santos in the sum of P12,000.00
without subsidiary imprisonment, plus costs. And
considering the circumstances under which the offense
 was committed, the court hereby recommends executive
clemency for him, after serving the minimum of the
medium penalty of prision mayor.
Let copy of this decision be furnished, his Excellency, the
President of the Philippines, and the Chairman of the
Board of Pardons and Parole.
SO ORDERED.
Given at Naga City, this 22nd day of December, 1977.
SGD. ALFREDO S. REBUENA
Judge (Rollo, pg. 10)

The facts of this case as recited in the decision of the trial court and
in the appellee's brief stand uncontroverted and undisputed. From the
evidence submitted it is disclosed that the victim, Magdalena de los
Santos, was the wife of the herein accused. Several months prior to
the occurrence of the fatal incident on June 23, 1977, Magdalena de
los Santos had been persistently asking her husband to sell the
conjugal home which was then located at Sitio Dinalungan, Barangay
Cabugao, Municipality of Siruma, Camarines Sur. She wanted their
family to transfer to the house of her husband's in-laws which is in the
town of Tinambac, Camarines Sur. (TSN, pp. 6-10, December 13,
1977). Accused Tomotorgo would not accede to his wife's request.
He did not like to abandon the house wherein he and his wife were
then living. Furthermore, he had no inclination to leave because he
has many plants and improvements on the land which he was then
farming in said municipality of Siruma, Camarines Sur, a town very
far from the place of his in-laws where his wife desired their family to
transfer to.
On June 23, 1977, at about seven o'clock in the morning, the
accused left his home to work on his farm Upon his return at about
nine o'clock that same morning. He found his wife and his three-
month old baby already gone. He proceeded to look for both of them
and sometime later on, on a trail about two hundred (200) meters
from their home, he finally saw his wife carrying his infant son and
bringing a bundle of clothes. He asked and pleaded with his wife that
she should return home with their child but she adamantly refused to
do so. When appellant sought to take the child from his wife, the latter
threw the baby on the grassy portion of the trail hereby causing the
latter to cry. This conduct of his wife aroused the ire of the herein
accused. Incensed with wrath and his anger beyond control,
appellant picked lip a piece of wood nearby and started hitting his
wife with it until she fell to the ground complaining of severe pains on
her chest. Realizing what he had done, the accused picked his wife in
his arms and brought her to their home. He then returned to the place
where the child was thrown and he likewise took this infant home.
Soon thereafter, Magdalena de los Santos died despite the efforts of
her husband to alleviate her pains.
After the accused changed the dress of his wife, he reported the
tragic incident to the Barangay Captain of their place who brought
him to Policeman Arellosa to whom the accused surrendered. He
also brought with him the piece of wood he used in beating his wife.
Charged with the crime of parricide, the accused at his arraignment
on November 24, 1977, with assistance from his counsel de-oficio,
pleaded not guilty to the said offense. However, when his case was
called for trial on December 13, 1977, his counsel manifested to the
court that after his conference with the accused, the latter expressed
a desire to change his previous plea of not guilty to that of guilty.
Accordingly, and upon motion by the counsel of the accused and
without objection on the part of the prosecution, the trial court allowed
the accused to withdraw his original plea. Upon being re-arraigned,
the accused entered a plea of guilty. He confirmed the manifestations
made by his counsel to the court regarding his desire to change his
initial plea. He expressed his realization of the gravity of the offense
charged against him and the consequences of his plea. His counsel
was then permitted by the court to establish the mitigating
circumstances which were then invoked in favor of the accused.
After the accused had testified and upon his plea given in open court,
the court below found him guilty of the crime of parricide, but with
three mitigating circumstances in his favor, namely: voluntary
surrender, plea of guilty, and that he acted upon an impulse so
powerful as naturally to have produced passion and obfuscation.
With the imposition by the court below of the penalty of reclusion
perpetua on the herein accused and the subsequent denial of his
motion for reconsideration of the judgment rendered against him, the
accused through his counsel filed a notice of appeal to this Court.
In his appeal, accused argues and contends that the lower court
erred:
1. In disregarding its own findings of fact which showed
manifest lack of intent to kill;
 2. In disregarding the provisions of Article 49 of the
Revised Penal Code which prescribes the proper
applicable penalty where the crime committed is different
from that intended;
3. In not following the mandatory sequence of procedures
for determining the correct applicable penalty;
4. In denying the appellant the benefits of the
Indeterminate Sentence Law. (Appellant's Brief, pg. 1,
pars. 1-4)
We find no merit in the appeal of the accused herein which assails
only the correctness of the penalty imposed by the trial court on him.
Appellant submits that the penalty for the felony committed by him
which is parricide being higher than that for the offense which he
intended to commit, and which he avers to be that of physical injuries
only, the provisions of Article 49 of the Revised Penal Code which
relate to the application of penalties should have been observed and
followed by the trial court. The said provision of law which accused
invokes provides that:
ART. 49. Penalty to be imposed upon the principals when
the crime committed is different from that intended in
cases in which the felony committed is different from that
which the offender intended to commit, the following rules
shag be observed;
1. If the penalty prescribed for the felony committed be
higher than that corresponding to the offense which the
accused intended to commit, the penalty corresponding to
the latter shall be imposed in its maximum period.
xxx xxx xxx
Continuing, appellant argues in his appeal brief submitted to this
Court, that:
xxx xxx xxx
The felony actually committed, parricide. has a higher
penalty (reclusion perpetua to death) than the felony
intended, qualified physical injuries (reclusion temporal
medium and maximum). Hence, since the penalty
corresponding to the felony intended shall be imposed in
its maximum period, the prescribed penalty is
therefore reclusion temporal maximum. This is a divisible
penalty.
Under Article 64, sub-par. 5, of the Penal Code,
 When there are two or more mitigating circumstances and
no aggravating circumstances are present, the court shall
impose the penalty next lower to that prescribed by law, in
the period that it may deem applicable, according to the
number and nature of such circumstances.
The trial court itself found "that the accused is entitled to
three (3) mitigating circumstances with no aggravating
circumstances, namely: voluntary surrender, plea of
guilty, and obfuscation. We submit that the plea of guilty,
which, as we had shown earlier, was improvidently made,
should no longer be considered. This leaves only two
mitigating with no aggravating. Sufficient compliance with
the law. Hence, an automatic lowering of the penalty by
one degree, or to reclusion temporal medium This being a
case where a period constitutes the entire range of the
penalty prescribed, and therefore, also a degree.
(Appellant's Brief, pp. 8-9)
Appellant maintains the belief that he should be punished only for the
offense he intended to commit which he avers to be serious physical
injuries, qualified by the fact that the offended party is his spouse.
Pursuant to the sub-paragraph of paragraph 4 of Art. 263 of the
Revised Penal Code and as his wife is among the persons mentioned
in Art. 246 of the same code, appellant contends that the penalty
imposable should then be reclusion temporal in its medium and
maximum periods. On this mistaken premise, appellant therefore
claims that the penalty prescribed by law for his offense is divisible
and he should thus be entitled to the benefits of the Indeterminate
Sentence Law.
These contentions of the accused are manifestly untenable and
incorrect. Article 4 of the Revised Penal Code expressly states that
criminal liability shall be incurred by any person committing a felony
(delito) although the wrongful act be different from that which he
intended and that the accused is liable for all the consequences of his
felonious acts.
The reference made by the accused to Article 263 of the Revised
Penal Code which prescribes graduated penalties for the
corresponding physical injuries committed is entirely misplaced and
irrelevant considering that in this case the victim died very soon after
she was assaulted. It will be, therefore, illogical to consider
appellant's acts as falling within the scope of Article 263 of the
Revised Penal Code. The crime committed is parricide no less.
We are in complete accord with and we sustain the ruling made by
the courts below that the accused is not entitled to the benefits of the
Indeterminate Sentence Law. The court sustains the submissions of
the appellee that —
... Article 49 of the Revised Penal Code does not apply to
cases where more serious consequences not intended by
the offender result from his felonious act because, under
Article 4, par. I of the same Code, he is liable for all the
direct and natural consequences of his unlawful act. His
lack of intention to commit so grave a wrong is, at best
mitigating (Article 13, par. 3).
Article 49 applies only to cases where the crime
committed is different from that intended and where the
felony committed befalls a different person (People vs.
Albuquerque, 59 Phil. 150).
Article 246 of the Revised Penal Code punished parricade
with the penalty of reclusion perpetua to death, which are
two indivisible penalties. As the commission of the act
was attended by mitigitating circumstances with no
aggravating circumstances, the lesser penalty, which is
reclusion perpetua, should be imposed (People vs.
Laureano, et al., 71 Phil. 530; People vs. Francisco, 78
Phil. 697; People vs. Belarmino, 91 Phil. 118) Appellee's
Brief, pp. 6-7). (Emphasis supplied)
We hold that the fact that the appellant intended to maltreat the victim
only or inflict physical imjuries does not exempt him from liability for
the resulting and more serious crime committed. In the case of
People vs. Climaco Demiar, 108 Phil. 651, where the accused therein
had choked his mother in a fit of anger because the latter did not
prepare any food for him, it was ruled that hte crime committed by
Demiar is parricide (Article 246, Revised Penal Code), the deceased
victim of his criminal act being his legitimate mother. Said crime was
declared as punishable with reclusion perpetua to death. As the
mitigating circumstance of alck of intent to commit so grave a wrong.
(Article 13 (3 Id.) The penalty imposed on the herein accused is
therefore correct in the light of the relevant provisions of law and
jurisprudence.
The trial court in its consideration of this case had added a
recommendation that "executive clemency be extended to the
accused-appellant after his service of the minimum of the medium
penalty of prison mayor." The Solicitor General likewise concludes
and prays in the People's Brief that in view of the circumstances
which attended the commission of the offense, a recommendation for
the commutation of the penalty would be appropriate. (Appellee's
Brief, pg. 7). This Court is constrained to take note that the accused-
appellant is said to have been in detention since June 23, 1977 or for
more than seven years already. This Court can do no less than
express its hope that hte accused-appellant can be now extended an
absolute or conditional pardon by the President of the Republic of the
Philippines or that there be a commutation of his sentence so that he
may qualify and be eligible for parole.
WHEREFORE, the appealed judgment is hereby affirmed without any
pronouncement as to costs.
Considering the circumstances which attended the commission of the
offense, the manifest repentant attitude of the accused and his
remorse for his act which even the trial court made particular mention
of in its decision and the recommendation made by the Office of the
Solicitor General as well as number of years that the accused-
appellant had been imprisoned, this Court can do no less than
recommend that executive clemency be extended to the accused-
appellant, Jaime Tomotorgo y Alarcon, or that his sentence be
commuted so that he can now qualify and be considered eligible for
parole. This recommendation of the Court should be promptly brought
to the attention of the President of the Republic of the Philippines by
the proper authorities in whose custody the herein accused has been
placed.
Aside from this, let copy of this decision be furnished the Office of the
President of the Republic of the Philippines and the Chairman of the
Board of Pardons and Parole.
SO ORDERED.