Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-45616 May 16, 1939

FELICIANO SANCHEZ, petitioner-appellant,

vs.
FRANCISCO ZULUETA, Judge of First Instance of Cavite,
JOSEFA DIEGO and MARIANO SANCHEZ, assisted by his mother,
JOSEFA DIEGO, as guardian ad litem, respondents-appellees.

Mariano P. Duldulao for petitioner-appellant.

H.B. Arandia for respondents-appellees.

AVANCEÑA, C.J.:

In civil case No. 3199 of the Court of First Instance of Cavite, wherein Josefa Diego and Mario
Sanchez are plaintiffs and Feliciano Sanchez is defendant, the plaintiffs ask that the defendant be
sentenced to pay them a monthly allowance for support.

The complaint alleges that the plaintiffs are the wife and child, respectively, of the defendant; that the
latter, since 1932, refused and still refuses to support the plaintiffs; that the latter have no means of
subsistence, while the defendant receives from the United States Army a monthly pension of
P174.20; that the defendant abandoned the plaintiffs without any justifiable cause and now refuses
to allow them to live with him.

The defendant alleges, as special defense, that the plaintiff Josefa Diego abandoned the conjugal
home on October 27, 1930, without his knowledge or consent, because she committed adultery with
Macario Sanchez, with whom she had, as a result of the illicit relations, a child which is the other
plaintiff Mario Sanchez.

The month following the filing of the complaint, the plaintiffs asked the court to compel the defendant
to give them, by way of allowance pendente lite, the sum of P50 a month. In opposition to his
petition, the defendant alleged that Mario Sanchez is not his legitimate child but is the adulterous
child of the plaintiff with Macario Sanchez, and he asked for an oppurtunity to adduce evidence in
support of this defense. The court, without acceding to this petition of the defendant to adduce
evidence, favorably acted upon the application of the plaintiffs and ordered the defendant to pay a
monthly allowance pendente lite of P50 to the plaintiffs, from July 1, 1936. In view of these facts, the
defendant filed a petition for prohibition before the Court of Appeals against the judge of the Court of
First Instance and the plaintiffs. The Court of Appeals denied the petition, and from this resolution,
the defendant comes to this court on certiorari.

We are of the opinion that the Court of Appeals erred in not allowing the defendant to present his
evidence for the purpose of determining whether it is sufficient prima facie to overcome the
application. Adultery on the part of the wife is a valid defense against an action for support
(Quintana vs. Lerma, 24 Phil., 285). Consequently, as to the child, it is also a defense that it is the
fruit of such adulterous relations, for in that case, it would not be the child of the defendant and,
hence, would not be entitled to support as such. But as this defense should be established, and not
merely alleged, it would be unavailing if proof thereof is not permitted. It is not of course necessary
to go fully into the merits of the case, it being sufficient the court ascertain the kind and amount of
evidence which it may deem sufficient to enable it to justly resolve the application, one way or the
other, in view of the merely provisional character of the resolution to be entered.

Although mere affidavits may satisfy the court to pass upon the application, nevertheless, the failure
to accompany the opposition therewith did not justify the court in ignoring said opposition, just
because of this omission, inasmuch as an opportunity to present evidence has been asked. It may
be that the defendant could not get hold of affidavits in support of his opposition, but he may have on
hand other evidence of greater weight.

If the defendant has a valid defense which calls for proof, and he asks for an opportunity to present
evidence, it is error to deny him this opportunity.

The decision rendered by the Court Appeals is reversed, and it is ordered that the petitioner be given
an opportunity to present evidence in support of his defense against the application for
support pendente lite, to the extent which the court determine, without special pronouncement as to
the costs. So ordered.

Villa-Real, Imperial, Diaz, Laurel, and Conception, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. L-25375 and 25376 October 8, 1926

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
VICENTEDE LEON Y FLORA, defendant-appellant.

Modesto Reyes for appellant.

Attorney-General Jaranilla for appellee.

VILLAMOR, J.:

Early in the morning of December 21, 1925, Vicente de Leon y Flora entered the yard of Vicente
Magat's house on Domingo Santiago Street, Manila, and without violence or intimidation against
persons nor force upon things, took, with intent to gain, two game roosters which were in the yard,
one with colored plumage valued at P8 belonging to Diego Magat, and the other with white plumage
and black spots, valued at P10, belonging to Ignacio Nicolas.

Vicente de Leon y Flora was prosecuted in the municipal court for two crimes of theft, on the theft of
Magat's rooster and the other that of Nicolas'. Upon being arraigned, the accused pleaded guilty and
was sentenced by the municipal court in each to suffer the penalty of three years, six months and
one day presidio correcional, to return the stolen roosters to their respective owners and to pay the
costs in both cases. The accused appealed from this judgment to the Court of First Instance, and,
upon being arraigned upon the same informations, pleaded not guilty in both cases, which were tried
jointly by agreement of the parties approved by the court.

In view of the evidence, the trial court found the accused guilty of one crime of theft, holding that the
theft of the two roosters constituted but one crime, and taking into consideration the circumstance
that the accused is an habitual delinquent sentenced him in said two cases to the penalty of three
years, six moths and one day presidio correccional and to pay the costs in case R. G. No. 25375,
declaring the costs in case No. 25376, de oficio without the obligation to indemnify, as the roosters
were returned to their respective owners. The accused appealed to this court and his counsel
alleges that the trial court erred: (a) In holding that the guilt of the accused was proven by his own
admission; (b) in not giving him the benefit of reasonable doubt, and (c) in sentencing instead of
acquitting the accused, with the costs de oficio.

We have reviewed the evidence and find no grounds to support the contention of the appellant. We
are of the opinion, and so hold, that the guilt of the accused in the present case is proven beyond a
reasonable doubt. The case falls under the provisions of paragraph 5 of article 518 of the Penal
Code, amended by section 1 of Act No. 3244, in connection with paragraph 3 of article 520 of the
same Code. The penalty provided in the law is that of presidio correcional in its full extent, and there
having been present the aggravating circumstance of nocturnity, the penalty must be imposed upon
the accused in its maximum degree, or four years, two moths and one day presidio correcional. The
accused being an habitual delinquent, under Act No. 3062 an additional penalty must be imposed
upon him consisting of half the penalty provided or the crime committed, or 2 years and 1
month presidio correcional. (People vs. Aguinaldo, 47 Phil., 728; People vs. Espiritu, R. G. No.
24753 1).

We could stop right here, but the Attorney-General raises a question in his brief which we believe it
is necessary for us to resolve now, due to the fact that it is not only important to our jurisprudence,
but also to the due prosecution of violators of the law. The Attorney-General urges that the penalty
for two crimes of theft be imposed upon the accused for each of the stolen roosters. The question,
then, to determine is whether or not the fact that the accused, with intent to gain, on the same
occasion and in the same place, took the two roosters, one belonging to Vicente Magat and the
other to Ignacio Nicolas, constitutes two crimes of theft.

It will be remembered that article 517 of the Penal Code contains three paragraphs enumerating the
acts which constitute the crime of theft. The first defines theft in general; the second declares a
particular act to be theft which is not included in the description in the first paragraph, and the third
also considers theft a series of acts with similar characteristics to the general type, with the
exceptions therein noted.

Article 517 of the Penal Code reads as follows:

ART. 517. The following are guilty of theft: 1aw ph!l.net

1. Any person who, with intent to gain, but without the use of violence or intimidation against
any person or the use of force upon anything, shall take anything which is the personal
property of another without the latter's consent.

2. Any person who, having found anything which has been lost, shall with knowledge of its
ownership appropriate the same with of gain.

3. Any person guilty of malicious damage who shall remove or make use of the things
damaged, subject to the exceptions established by paragraphs one two, and three of article
five hundred and ninety-two paragraph one of article five hundred and ninety-three;
paragraph one of article five hundred and ninety-five, and articles five hundred and ninety-
six, five hundred and ninety-eight, and six hundred and three.

As may be seen, the act taking another's property without violence or intimidation against persons,
not force upon things, with intent to gain and without the consent of its owner, is what constitutes the
crime of theft, as described in the first paragraph of article 517.

The crime of theft is an offense against personal property and what is punished is the alarm caused
in the community by the perpetration of the act which is violative of the individual rights guaranteed
by the law, as well as the damage that said act may occasion to the members of the community.
Under sound principles, the act of taking the two roosters, in response to the unity of thought in the
criminal purpose on one occasion, is not susceptible of being modified by the accidental
circumstance that the article unlawfully belonged to two distinct persons. There is no series of acts
here for the accomplishment of different purposes, but only one of which was consummated, and
which determines the existence of only one crime. The act of taking the roosters in the same place
and on the same occasion cannot give rise to two crimes having an independent existence of their
own, because there are not two distinct appropriations nor two intentions that characterize two
separate crimes.
The Supreme Court of Spain, in its decision of July 13, 1894, said:

The act of unlawfully taking two colts, two cows and two calves on one night, belonging to
four owners, which livestock was found in various adjacent and open meadows, constitutes
only one crime of theft, because the fact that the persons injured by the taking of the cattle
by the accused were several, said accused knowing that the meadows in which this livestock
was found were open and adjacent, it being easy to pass from one to the other, does not
authorize the legal conception that the said accused committed four thefts on said night, but
only one as found by the lower court, which did not commit an error of law by holding that the
acts were committed on a single occasion.

It is not an element of the crime of theft that the culprit know the owner of the thing stolen, the crime
being consummated provided that being stolen belongs to another and the same is taken with intent
to gain. (Decision of the supreme Court of Spain of November 22, 1898.) Neither is it necessary for
the existence of the crime of theft that it should appear in a specific manner who the owner is of the
thing stolen, because the law does not require it nor does it affect the criminal liability, but only the
restitution or indemnification of damages, which are merely of a civil nature. (Decision of the
Supreme Court of Spain, October 4, 1905.) What constitutes the crime of theft is the taking of
another's property with intent to gain, without the consent of the owner, so that after the unlawful act
of taking another's property is proven, it is evident that all the elements mentioned in the first
paragraph of article 517 of the Penal Code exist. Therefore, we are of the opinion that the unity of
the intention to take a thing belonging to another on one occasion and in the same place, constitutes
the commission of only one crime of theft; and fact that the things taken belong to different persons
does not produce a multiplicity of crimes, which must be punished separately.

In arriving at this conclusion, we have not lost sight of the doctrine laid down in United States vs.
Balaba (37 Phil., 260), according to which, where the accused made no objection to the information
on the ground that it charged more than one offense, the prosecution properly submitted evidence
as to the commission of each and all of the offenses charged; and the trial court also properly
entered judgment of conviction of each and all of these offenses which were established by the
introduction of competent evidence at the trial and should, therefore, have imposed the prescribed
penalties for each and all of the offenses of which the accused was convicted in accordance with the
provisions of article 87 of the Penal Code. This doctrine, however, is not applicable to the present
case as two separate complaints have been filed herein against the accused, but the trial court
convicted the accused in the two cases, considering the facts alleged in the said complaints as
constituting but one crime.

In American cases the same doctrine is maintained as in Spanish decisions in regard to the question
which is here debated:

In Corpus Juris, vol. 36, page 799, it is said in regard to the taking of articles belonging to two
different owners at the same time and place: "In a few jurisdictions the rule obtains that if two or
more articles belonging to different are stolen at the same time and place, the theft of the property of
each owner is a separate crime and may be prosecuted as such." (U. S. vs. Beerman, 24 Fed. Cas.
No. 14,560; 5 Cranch C. C., 412; State vs. Thurston 27 S. C. L., 382; Morton vs. State, 1 Lea
[Tenn.], 498.) In other jurisdiction it is held that such a theft may be prosecuted, at the pleasure of
the State, either as one offense or as several distinct offenses. (Bushman vs. Com., 138 Mass., 507;
Com. vs. Sullivan, 104 Mass., 552; State vs. Douglas, 26 Nev., 196; 65 Pac., 802; 99 Am. St., 688;
State vs. Lambert, 9 Nev., 321.) But the prevailing rule is that if several articles, stored in the same
place, are taken by a single larcenous act, the mere fact that some of them belonged to one person
and some to another does not dissolve the act into separate crimes. (Ala.-Clemm vs. State, 154 Ala.,
12; 45 So., 212; Am. St., 17; D. C.-Chanock vs. U. S., 50 App., 54; 267 Fed., 612; Holies vs. U. S.,
10 D. C., 370; 36 Am. Rep., 106; Ga.-Lowe vs. State, 57 Ga., 171; Dean vs. State, 9 Ga. A., 571; 71
South East, 932; III.-Peo. vs. Israel, 269 III., 284; 109 North East, 969; Ind.-Furnace vs. State, 153
Ind.-93; 54 North East, 441; Bell vs. State 42 Ins., 335; Iowa-State vs. Sampson, 157 Iowa, 257; 138
North West, 473; 42 Law. Rep. An. [N. S.], 967; State vs. Congrove, 109 Iowa., 66; 80 North West,
227; State vs. Larson, 85 Iowa, 659; 52 North West, 539; Ky.-Nichols vs. Com., 78 Ky., 180; Md.-
State vs. Warren, 77 Md., 121; 26 Atl. Rep., 500; 39 Am. St., 401; Mich.-Peo. vs. Johnson, 81 Mich.,
573; 45 North West, 1119; Miss.-State vs. Quintini, 51 So., 276; Dalton vs. State, 91 Miss., 162; 44
So., 802; 124 Am. St., 637; Ward vs. State, 90 Miss., 249; 43 So., 466; Mo.-State vs. Morphin, 37
Mo., 373; Lorton vs. State, 7 Mo., 55; 37 Am. Dec., 179; Mont.-State vs. Mjelde, 29 Mont., 490; 75
Pac., 87; N. H.-State vs. Merril, 44 N. H., 624; N. M.-State vs. Klasner, 19 N. M., 474; 145 Pac., 679;
Ann. Cas. 1917-D, 824; N. C.-State vs. Simons, 70 N. C., 336; Oh-State vs. Hennessey, 23 Oh. St.,
339, 13 Am. Rep., 253; State vs. Smith, 10 Oh. Dec. (Reprint), 682; 23 Cinc- LBul., 85; Or.-
State vs. Clark, 46 Or., 140; 80 Pac., 101; Pa.-Fulmer vs. Com., 97 Pa., 503; Com. vs. Lent, 15 Pa.
Dist., 884; S. D.-State vs. Kieffer, 17 S. D., 67; 95 North West, 289; Tex.-Wilson vs. State, 45 Tex.,
76; 23 Am. Rep., 602; Hudson vs. State, 9 Tex. A., 151, 35 Am. Rep., 732; Addison vs. State, 3 Tex.
A., Utah-State vs. Mickel, 23 Utah, 507; 65 Pac., 484; Vt.-State vs. Blay, 77 Vt., 56; 58 Atl. Rep.,
794; State vs. Emery, 68 Vt., 109; 34 Atl. Rep., 432; 54 Am. St., 878; State vs. Newton, 42 Vt., 537;
Va.-Alexander vs. Com., 90 Va., 809; 20 South East, 782; Wash.-State vs. Laws, 61 Wash., 533;
112 Pac., 488; State vs. Butts, 42 Wash., 455; 85 Pac., 33; Terr. vs. Heywood, 2 Wash., 180; 2
Pac., 189; Wyo.-Ackerman vs. State, 7 Wyo., 504; 54 Pac., 228; Eng.-Reg. vs. Bleasdale, 2 C. & K.,
765; 61 Eng. C. L., 765.)

For the foregoing, the judgment appealed from must be, as is hereby, modified and the accused
Vicente de Leon y Flora is sentenced to suffer the penalty of six years and three months presidio
mayor, with the accessories of the law, and to pay the costs. So ordered.

Avanceña, C. J., Johnson, Street, Ostrand, Romualdez and Villa-Real., JJ., concur.
Johns, J., concurs in the result.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-32914 August 30, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LAUREANO SANGALANG, accused-appellant.

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Octavio R. Ramirez and
Solicitor Ma. Rosario Quetulio Losa for plaintiff-appellee.

Narciso V. Cruz, Jr. for accused-appellant.

AQUINO, J.:p

This is a murder case. The testimonies of the two prosecution eyewitnesses disclose that at around six o'clock in the morning of June 9,
1968 Ricardo Cortez left his nipa hut located at Sitio Adlas, Barrio Biluso, Silang, Cavite to gather tuba from a coconut tree nearby. Flora
Sarno, his wife, was left inside the hut. While he was on top of the tree gathering tuba, he was struck by a volley of shots. He fell to the
ground at the base of the coconut tree.

His wife Flora heard three successive shot coming south of the hut. She went outside the hut. From
a distance of about twenty-five meters, she saw five men, each armed with a long firearm, firing at
her husband. He was already wounded and was lying on the ground at the foot of the coconut tree.
His assailants were about five meters away from him.

She recognized Laureano Sangalang as one of the five armed men who were firing at her husband.
She and her brother Ricardo had known Sangalang since their childhood. She also recognized
Conrado Gonzales, Irineo Canuel, Perino Canuel and Eleuterio Cuyom as the other malefactors.

Flora ran towards the place where her husband had fallen. She shouted, "Bakit ninyo pinagbabaril
ang aking asawa". The five persons fired at her. She was then about twenty meters away from them.
She retreated to the hut for cover. She heard some more shots. After the lapse of about five
minutes, Laureano Sangalang and his companions left the place. When Flora returned to the spot
where her husband was prostrate, he was already dead.

On the occasion already described, Ricardo Sarno, twenty-seven years old, a brother of Flora, was
inside his own nipa hut which was about ten meters away from Flora's hut. He was drinking coffee.
His wife and children were eating breakfast. He heard several shots. He came out of his hut. He saw
his brother-in-law being shot by Laureano Sangalang, Eleuterio Cuyom, Perino Canuel, Irineo
Canuel and Conrado Gonzales. He saw Sangalang using a Garand carbine in shooting his brother-
in-law. The latter fell from the top of the coconut tree after he was shot (10 tsn). His sister Flora was
trying to approach her husband but she had to flee to her hut when Sangalang and his companions
fired at her. He wanted to join her but he was likewise fired upon by the five men. So, he retired and
took refuge in his own hut.
Later, Sarno saw his sister Flora, sitting inside her hut. He followed her after she left the hut and
went to see her dead husband, who was lying on the ground, face up, at the base of the coconut
tree. When he noticed that his brother-in-law was already dead, he gathered his children and
brought them to Sitio Biga, which was more or less thirty meters away from his hut in Sitio Adlas.
Ricardo reported the killing to the chief of police who went to the scene of the crime with some
policemen and Constabularymen.

The necropsy report shows that the twenty-five-year-old Cortez sustained twenty-three gunshot
wounds on the different parts of the body, fourteen of which were entrance-wounds, and nine were
exit-wounds (Exh. A and B). He died due to the multiple gunshot wounds (Exh. C).

On June 10, 1968 or on the day following the killing, Flora and Ricardo were interrogated by the
Silang police. They executed sworn statements before the Municipal Judge pointing to Laureano
Sangalang, Conrado Gonzales, Irineo Canuel, Perino Canuel and Eleuterio Cuyom as the assassins
of Ricardo Cortez. Flora said in her statement that she knew those persons because from time to
time they used to pass by her place. They resided at Barrio Capitula, Dasmariñas, which is near
Barrio Adlas. On the basis of those statements, the police filed on June 10 in the Municipal Court a
complaint for murder against the five aforenamed persons. Sangalang was arrested. He posted bail
in the sum of P50,000 on June 13. He waived the second stage of the preliminary investigation. The
other accused have not been apprehended. On August 8, 1968 the Provincial Fiscal filed an
information for murder against Sangalang.

After trial, the Court of First Instance of Cavite, Tagaytay City Branch, rendered a judgment
convicting Sangalang of murder, sentencing him to reclusion perpetua and ordering him to pay the
heirs of Ricardo Cortez an indemnity of twelve thousand pesos and to pay his widow moral damages
in the sum of ten thousand pesos (Criminal Case No. TG-162). Sangalang appealed.

The appellant, a fifty-six-year old farmer, admitted that he knew Cortez and that he knows his wife,
Flora Sarno. He pleaded an alibi. He declared that in the afternoon of June 8, 1968 he and Crispulo
Mendoza went to the house of Julian Gatdula at Dapitan Street, Sampaloc, Manila. He arrived at
Gatdula's place at six o'clock. He wanted to borrow money from Gatdula to defray the matriculation
fees of his children.

As Gatdula had no money at that time, he advised Sangalang to wait until morning. He would try to
raise the sum of two hundred pesos which Sangalang desired to borrow. Sangalang and Mendoza
agreed. They allegedly slept in Gatdula's house on the night of June 8th. The next morning, they
breakfasted in that house. At about ten o'clock on June 9, Gatdula delivered the two hundred pesos
to Sangalang. He and Mendoza then went to the Central Market in Manila and then to Quiapo. They
returned to Cavite and arrived at seven o'clock in the evening of June 9 in Barrio Capdula. Gatdula
and Mendoza corroborated Sangalang's alibi.

In this appeal Sangalang insists on his alibi and impugns the credibility of the prosecution
eyewitnesses, Mrs. Cortez and the victim's brother-in-law, Ricardo Sarno. The basic issue is whether
their eyewitness-testimony that they saw appellant Sangalang as one of the five armed persons,
who riddled Cortez with fourteen gunshot wounds of entry, is sufficient to overcome his alibi. In
essence, the case projects the ever recurring conflict in criminal jurisprudence between positive
identification and alibi.

The trial court rejected appellant's alibi. It noted that although his witnesses, Mendoza and Gatdula,
learned of his arrest, and Mendoza even visited him in the municipal jail, Sangalang and his
witnesses did not interpose the defense of alibi when he was investigated by the police and when he
was summoned at the preliminary investigation.
Sangalang points to certain discrepancies in the declarations of Mrs. Cortez and her brother Ricardo
Sarno. Those inconsistencies, which are not glaring, strengthen their credibility and show that their
testimonies were not coached nor rehearsed. The discrepancies may be attributed to deficiencies in
observation and recollection, or misapprehension of the misleading and confusing questions during
cross-examination, or to the defective translation of the questions and answers but they do not
necessarily indicate a wilful attempt to commit falsehood (People vs. Selfaison, 110 Phil. 839;
People vs. Resayaga, L-23234, December 26, 1973, 54 SCRA 350).

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

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

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

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

The trial court correctly imposed the penalty of reclusion perpetua on Sangalang (Arts. 64[1] and
248, Revised Penal Code).

Finding no error in its judgment, the same is affirmed with costs against the appellant.

SO ORDERED.

Zaldivar (Chairman), Fernando, Barredo and Fernandez, JJ., concur.

Antonio, J., took no take part.