G.R. No.
115988 March 29, 1996 At his arraignment on January 8, 1991 with the assistance of counsel
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LEO LIAN y VERANO, accused-appellant.
REGALADO, J.:p
In this appeal, accused-appellant Leo Lian y Verano bewails his
conviction by the Regional Trial Court, Branch 31, of Agoo, La Union
for the offense of illegal possession of firearm and ammunition
punished by Section 1 of Presidential Decree No. 1866, as amended.
Appellant maintains that the charge against him under said law
should have been dismissed by the trial court in view of the absence
of animus possidendi on his part. The evidence, however, shows
otherwise.
On October 11, 1990, Second Assistant Provincial Prosecutor Rogelio
C. Hipol commenced Criminal Case No. A-2106 before the trial court
through an information indicting appellant with illegal possession of
firearm and ammunition, with the allegations ––
That on or about the 27th day of June, 1990, in the Municipality of
Pugo, Province of La Union, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused did then and there
wilfully, unlawfully, and feloniously have in his actual possession,
control, and custody, one (1) Caliber .45 pistol with Serial No. 603514
and one (1) live ammunition of the same caliber, without the
corresponding license to possess the same and/or permit to carry it
outside his residence.
CONTRARY TO PRESIDENTIAL DECREE NO. 1866.1
de oficio, appellant entered a negative plea.2 In the trial that
followed, the prosecution presented as its witnesses Sgt. Orlandino
Lales, the apprehending police officer; Abelardo Macaraeg, a
barangay tanod in Pugo, and Capt. Edgar Basbas of the Philippine
National Police (PNP) Provincial Command of San Fernando, La Union.
The firearm and ammunition confiscated from appellant were
likewise offered as evidence in court. On the other hand, it was only
appellant who appeared in his defense. The decision of the trial court
promulgated on August 10, 1993 pronounced appellant guilty as
charged and sentenced him to suffer the penalty of reclusion
temporal in its maximum period to reclusion perpetua, and to pay the
costs. The seized articles were ordered to be turned over to the PNP
Director General for proper disposition.3
I
Appellant was apprehended in the early evening of June 27, 1990
having in his possession a caliber .45 Colt pistol, together with a live
bullet, at the public market of Pugo, La Union by Sgt. Orlandino Lales,
PNP Station Commander of said municipality. Prior to appellant's
apprehension, one Abelardo Macaraeg, a barangay tanod, had
reported to Lales, who was then at the Pugo police station, that he
saw Lian at the public market of Pugo with a handgun tucked in his
waist. Lales then proceeded to the market to look for appellant, but
to no avail. He then went home but, a few minutes thereafter,
Macaraeg reappeared and informed him that Lian had returned to
the market.4
Once more, Lales sought out appellant at the marketplace. This time,
he saw appellant standing near an electric post. He forthwith
approached appellant and, at that instant, he noticed something
which was bulging at the latter's waist. Lales then asked appellant in
Ilocano, "What is that protruding in your waistline?" but this elicited
an angry look from Lian. The latter then reached toward his waist as if
to draw something therefrom and, in the process, the handgun
tucked there was revealed. Lales, who was then only a meter away
from appellant, was able to quickly grab the firearm which, upon
inspection, had a bullet in its chamber. As appellant could not show
any license to carry the firearm, Lales arrested him and brought him
to the police station. 5
Appellant admits having had in his possession the firearm, together
with a bullet, at the time of his apprehension. What he underscores is
the fact that he had all along intended to surrender that firearm. He
narrated during his trial that in the afternoon of June 27, 1990, he
went to his sister's house at Poblacion East of Pugo where he partook
of some food. After eating, he proceeded to open a brown bag which
he had earlier found in the bus where he rode. Appellant says he saw
a firearm inside, wrapped in a handkerchief. He took the gun and
tucked it in his waist before he went on his way to surrender it. At the
public market, he met some friends whom he had not seen for a
while and he had a drinking spree with them. Appellant adds that he
forgot all about the gun, and that he and his friends continued with
their version of an alcoholic soiree that evening. It was shortly
thereafter, he now recalls, that he was accosted by Sgt. Lales at the
market.6
In his appellate brief, Lian imputes to the trial court the reversible
error of having convicted him of the offense charged in spite of
insufficiency of evidence. The element of intent to possess or animus
possidendi, according to appellant, has not been established by the
prosecution. In his words, his possession of the subject firearm was
merely temporary or incidental and that it was really his intention to
surrender the same from the start. Appellant furthermore argues that
he did not have control over the firearm since it was immediately
confiscated from him before he could surrender the same. These are
puerile and specious arguments.
Presidential Decree No. 1866, as amended, which was passed to curb
criminality affecting public order and safety, punishes, inter·alia, both
actual physical possession and constructive possession of firearms,
ammunition, and explosives without authority of license therefor.
Ownership thus is not an essential element. In the case of
constructive possession, it refers to the subjection of the articles in
question to one's control and management. Once the prosecution
evidence indubitably points to possession without the requisite
authority or license, coupled with animus possidendi or intent to
possess on the part of the accused, conviction for violation of the said
law must follow.7
Contrarily, where there is no animus possidendi or intent to possess
by the accused, as when one's possession or control of a firearm is
merely temporary, incidental, or casual, no violation of Presidential
Decree No. 1866, as amended, may be successfully imputed to such
an individual. Animus possidendi, it has been held, is a state of mind,
the presence and determination of which is largely dependent on the
circumstances obtaining in each case. What the courts must take into
consideration are the prior and coetaneous acts of the accused and
the surrounding circumstances anent his possession of the prohibited
articles.8
In the case of appellant, there is no dispute, for he admitted in court
that he was apprehended possessing a firearm and live bullet without
the necessary authority or license. Moreover, the police officer who
arrested him, Sgt. Orlandino Lales, testified to the fact that at the
time he nabbed Lian, he asked the former whether he had any license
to carry the gun but appellant could not produce then or thereafter
the necessary documents that would have attested to lawful
possession of the firearm and its ammunition. This much regarding
Sgt. Lales' testimony was also conceded by appellant himself. Also,
Sgt. Lales categorically identified. in court the firearm and live bullet
that he had confiscated from appellant who was in actual physical
possession thereof. Hence, the first essential element of possession
without authority or license has been clearly demonstrated by the
prosecution.
It is on the matter of putative lack of animus possidendi that
appellant is essaying his appeal for reversal of the trial court's
judgment. Appellant testified that from the time he first got hold of
the firearm, he had thought of surrendering it to the authorities,
knowing the danger of possessing it, and that he was on his way to
the municipal town hall to surrender it when he unfortunately ran
into long-lost friends at the market who invited him for some drinks.
It was on account of this that he forgot all about the firearm. He
hastens to add that he could very well have properly given the gun to
Sgt. Lales were it not for the fact that the firearm was
unceremoniously seized from him, thus affording him no opportunity
for effecting its lawful surrender.
Appellant's foregoing narration pitiably bears the badges or indicia of
incredibility. It is elementary that for testimonial evidence to be
regarded with credence, it must have been declared not only by a
credible witness but that the same must in itself be believable.
Conformity with human experience is the test. On appellant's version,
we need merely to refer to this rebuttal of the Solicitor General
regarding the former's arguments:
Appellant does not deny that he indeed had the gun in his possession,
hence, he has the burden of proving that his possession thereof was
merely temporary or incidental. His defense, however, that he merely
found the gun in his bag and intended to surrender the same to the
authorities is incredible and unbelievable.
First, if appellant really had the intention of surrendering the gun to
the authorities, he should have done so right away. The danger of
carrying a gun, loaded at that, should have been foremost in his mind
instead of joining his friends for a drink before surrendering the gun.
Second, appellant testified that they started drinking at 3:30 o'clock in
the afternoon up to 7:00 o'clock in the evening (p. 5, tsn, August 28,
1991.) He also testified that he forgot about the gun while drinking
with his friends. (id.)
Appellant could not have forgotten about the gun considering that he
carried it in his waist all the time. Its weight and the danger of
carrying it should have been sufficient reminder that he had a gun in
his waist which he should surrender to the authorities if it was really
not his.
Third, appellant failed to present corroborative testimony to prove his
defense that he was not able to surrender the gun to the authorities
because he was invited by his friends to go drinking. Taking into
consideration the gravity of the offense with which he was charged,
none of his friends with whom he supposedly went drinking, came to
his rescue by testifying in his favor. This only leads one to question
the truth of his allegations.
Fourth, the testimony of Macaraeg and Lales, as Barangay Tanod and
Station Commander respectively, should be given weight as public
officials who are presumed to have regularly performed their official
duties in accordance with section 5(m), Rule 131 of the Rules of
Court. Furthermore, no ill motive, on the part of Macaraeg and Lales,
to concoct a Story against the accused has been shown.9
Thus, from all that has hereinbefore been said, animus possidendi
cannot but be clearly inferred. Additionally, the Court finds it hard to
believe that appellant still had to hide the firearm in his waist before
setting out to surrender it to the authorities when he could have
taken the gun to the town hall in the same bag in which he found it, in
which case it would have been safer and would have avoided
detection. In fine, the indispensable elements of possession without
the necessary authority or license and the corresponding attendance
of animus possidendi have both been convincingly established by the
prosecution to warrant appellant's conviction of a violation of
Presidential Decree No. 1866, as amended, the imposable penalties
wherein have been decried as unduly heavy and his proportionate to
the offenses defined therein.
This accordingly brings us to the matter of the penalties imposed by
said decree, particularly for simple illegal possession under Section 1
thereof, to which we shall confine this opinion since that is the
offense involved in the present case. In several decisions on this type
of illegal possession, 10 the penalties have not only been variantly
assessed but no consistent rule of application was followed. The
objections to the penalties were cavalierly sought to be mollified by
the trite rejoinder of dura lex, sed lex, thus shifting the onus of relief
to the legislature. Notably, the possibility of judicial relief on this
aspect was never explored, and we intend to do so now. While for
cases already decided, our judgment and discussion here will appear
to be post-factum dicta, the case at bar provides the opportunity far
reexamination of those previous judgments and the penalties
imposed therein.
II
The first paragraph of Section 1 of Presidential Decree No. 1866, as
amended, punishes the crime of simple illegal possession of firearm11
with reclusion temporal in its maximum period to reclusion perpetua.
In unquestioning obedience, the trial court merely adopted that very
same penalty which it just quoted verbatim in its judgment in this
case. In effect, therefore, it imposed an indeterminate sentence the
minimum and maximum extent of which are legally indeterminable.
The maximum period of reclusion temporal consists of 17 years, 4
months and 1 day to 20 years. This is supposed to be the penalty
which should serve as the basis for fixing the minimum of the
indeterminate sentence, but the court below failed to specify the
duration of that minimum. On the other hand, reclusion perpetua,
pursuant to a recent statutory amendment, now has a duration of 40
years12 but it is nevertheless an indivisible penalty.13 Hence, in order
that it may be used as the maximum of the indeterminate sentence,
the only feasible way is to put the same at either 20 years and 1 day
or 40 years, but which the court a quo likewise did not do.
In all events, it would have been pointless if it had just done so as
such an indeterminate sentence would, in the first place, be
unauthorized and invalid. There can be no indeterminate sentence if
the penalty imposed is reclusion perpetua or life imprisonment, 14
otherwise it will result in commingling divisible and indivisible
penalties in the same sentence to be served by the convict. Hence,
the indeterminate sentence imposed by the trial court in this case is
legally indefensible for lack of specification of the minimum and
maximum range thereof, aside from the proscription against an
indeterminate sentence if the penalty imposed, as the court below
has done, extends to reclusion perpetua.
This does not mean, however, that there is any legal obstacle to the
application and graduation of the penalty in the aforesaid Section 1 of
the decree involved nor, for that matter, to the imposition of an
indeterminate sentence properly taken therefrom. The penalty of
reclusion temporal in its maximum period to reclusion perpetua is not
singular, unusual or prohibited in the scheme of penalties in the
Revised Penal Code. That is the same penalty for malversation of
more than P22,000.00,15 for attempted or frustrated robbery with
homicide, 16 and, before the subsequent amendments to the Code,
for destructive arson.17
In fact, such a penalty is contemplated in Article 61 of the Code which
speaks of a principal penalty composed of one indivisible penalty and
the maximum period of a divisible penalty, in which case the penalty
next lower in degree consists of the three succeeding periods taken
from the penalties next lower in degree, that is, prision mayor in its
maximum period to reclusion temporal in-its medium period. What is
sought to be emphasized and clarified by this illustration, and which
appears to have been overlooked in previous decisions, is that the
aforesaid penalty of reclusion temporal in its maximum period to
reclusion perpetua is a complex and divisible penalty consisting of
three periods.
Now, the second paragraph of Article 77 of the Code, which deals
with complex penalties, provides that "(w)henever the penalty SO ORDERED.
prescribed does not have one of the forms specially provided for in
this Code, the periods shall be distributed, applying by analogy the
prescribed rules," that is, those in Articles 61 and 76. Hence, where as
in this case, the penalty provided by Section 1 of Presidential Decree
No. 1866, as amended, is reclusion temporal in its maximum period to
reclusion perpetua, the minimum period thereof is 17 years, 4
months and 1 day to 18 years and 8 months; the medium period is 18
years, 8 months and 1 day to 20 years; and the maximum period is
reclusion perpetua.

In the case at bar, no mitigating or aggravating circumstances have

been alleged or proved. In accordance with the doctrine regarding
special laws explained in People vs. Simon,18 although Presidential
Decree No. 1866 is a special law, the penalties therein were taken
from the Revised Penal Code, hence the rules in said Code for
graduating by degrees19 or determining the proper period 20 should
be applied. Consequently, the penalty for the offense of simple illegal
possession of firearm is the medium period of the complex penalty in
said Section 1, that is, 18 years, 8 months and 1 day to 20 years.

This penalty, being that which is to be actually imposed in accordance

with the rules therefor and not merely imposable as a general
prescription under the law, shall be the maximum of the range of the
indeterminate sentence. 21 The minimum thereof shall be taken, as
aforesaid, from any period of the penalty next lower in degree, which
is, prision mayor in its maximum period to reclusion temporal in its
medium period.

WHEREFORE, the appealed judgment of the trial court is hereby

MODIFIED and accused-appellant Leo Lian y Verano is hereby
sentenced to serve an indeterminate penalty of ten (10) years, and
one (I) day of prision mayor, as minimum, to eighteen (18) years,
eight (8) months and one (1) day of reclusion temporal, as maximum.
In all other respects, said judgment is AFFIRMED.
A.M. No. RTJ-96-1349 April 18, 1997
SPOUSES JOSE and TRINIDAD BACAR, complainants,
vs.
JUDGE SALVADOR P. DE GUZMAN, JR., respondent.
PADILLA, J.:
In this petition by way of complaint, dated 11 April 1994, petitioner-
spouses Jose and Trinidad Bacar pray for the dismissal from the
service of respondent Judge Salvador P. de Guzman, Jr., presiding
judge of the Regional Trial Court of Makati, Branch 142, on the
grounds of: 1) gross ignorance of the law, and; 2) rendering an unjust
judgment in Criminal Cases Nos. 89-1360 and 89-2878 for homicide
and attempted homicide respectively, both entitled "People of the
Philippines v. Gerardo Fortaleza Marcial".
The antecedent facts are as follows:
On 30 March 1989, an information for homicide (for the death of one
Maximo Bacar, son of herein petitioner-spouses) was filed by 2nd
Assistant Fiscal Domingo A. Israel against Gerardo Fortaleza Marcial
before the Regional Trial Court of Makati, Branch 142, docketed as
Criminal Case No. 89-1360.
On 7 June 1989, another information (this time for attempted
homicide committed against one Edgar Mabuyo) was filed by the
aforesaid Fiscal Israel against the same Gerardo Fortaleza Marcial
before the same court, docketed as Criminal Case No. 89-2878.
On 13 May 1992, after trial on the merits, a Joint Judgment in
Criminal Cases Nos. 89-1360 and 89-2878 was rendered by
respondent judge, finding the accused Gerardo Marcial guilty beyond
reasonable doubt of the crimes charged. The dispositive part of the
decision reads:
WHEREFORE, in view of the foregoing, the Court finds the accused
Gerardo Marcial guilty beyond reasonable doubt of the crime of
Homicide in Criminal Case No. 89-1360 and of the offense of Slight
Physical Injuries in Criminal Case No. 89-2878. No modifying
circumstances having attended the commission of said crimes, the
accused is hereby sentenced to an indeterminate penalty of from
eight (8) years and one (1) day of prision mayor to fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal with
respect to Criminal Case No. 89-1360 and to suffer imprisonment of
thirty (30) days of arresto menor as regards Criminal Case No. 89-
2878.
The accused is further ordered to indemnify the heirs of the victim
Maximo Bacar in the amount of P50,000.00 as moral damages and to
pay the amount of P33,572.00 as actual damages and costs of suit.
SO ORDERED.
Makati, Metro Manila, May 13, 1992.
On 13 August 1992, the accused, Gerardo Marcial, filed a motion for
reconsideration of the joint judgment, alleging among others, that the
court erred in imposing the penalties without considering at least two
(2) mitigating circumstances, namely: sufficient provocation or threat
on the part of the offended party which immediately preceded the
act, and; that the accused had no intention to commit so grave a
wrong as that committed.
On 28 October 1992, herein petitioners filed an opposition to said
motion. However, on 13 November 1992, the lower court granted the
motion for reconsideration filed by the accused. After reassessing the
facts of the case on the basis of said motion, respondent judge took
into account the mitigating circumstances of want of intent to commit
so grave a wrong and sufficient provocation which immediately
preceded the act and accordingly, reduced the penalty in Criminal
Case No. 89-1360 to six (6) years of prision mayor, while retaining the
penalty in Criminal Case No. 89-2878, i.e., imprisonment of thirty (30)
days of arresto menor.
The lower court justified its order thus:
It appearing upon a re-examination of the evidence on record that
the encounter between the group of the accused Gerardo Marcial
and that of the victims Maximo Bacar and Edgar Mabuyo precipitated
a "free for all fight", that in such a melee, confusion broke loose and
was expected to ensue as a matter of course; that the participation in
the melee of each of the members of the respective groups of the
victims and the accused was unexpected and unpremeditated; that
the victim Edgar Mabuyo admitted that prior to the incident, there
was heckling which came from him directed to the group of the
accused Gerardo Marcial and that it was he who started it out, that
accused Gerardo Marcial confined himself to giving a single thrust
with an icepick on the right arm of Edgar Mabuyo and at the back of
Maximo Bacar from which it can be safely inferred that the accused
had no intention to commit so grave a wrong, for otherwise, he would
have persisted in attacking the victims to the point of finishing them
off; the Court resolves to accord the accused Gerardo Marcial the
benefit of the mitigating circumstances of want of intent to commit
so grave a wrong and sufficient provocation which immediately
preceded the act in accordance with Article 13, paragraphs 3 and 4 of
the Revised Penal Code and hereby reconsiders the Decision dated
May 13, 1992 in the foregoing respect.1
On 14 December 1992 and 16 April 1993, respectively, the
prosecution filed a motion for reconsideration and an addendum to
said motion. On 25 May 1993, the accused filed his comment and/or
opposition to the prosecution's motion for reconsideration. On 9
December 1993, respondent judge issued an order denying the
prosecution's motion for reconsideration for lack of merit. On 4
January 1994, the prosecution filed another motion for
reconsideration and clarification which respondent judge denied
anew on 21 January 1994.
On 11 April 1994, the spouses Jose and Trinidad Bacar, parents of the
deceased — victim Maximo Bacar in Criminal Case No. 89-1360, filed
the present petition praying for the dismissal of respondent judge
Salvador P. de Guzman, Jr., presiding judge of the RTC of Makati,
Branch 142, for gross ignorance of the law and for rendering an unjust
judgment in said consolidated cases.
On the first issue, petitioners allege that respondent judge committed
gross ignorance of the law when he accorded the accused the
mitigating circumstances of want of intent to commit so grave a
wrong and sufficient provocation which immediately preceded the act
in accordance with Art. 13, pars. 3 and 4 of the Revised Penal Code
because these cited provisions are not applicable in either or both
criminal cases. They contend that lack of intent to commit so grave a
wrong cannot apply in Criminal Case No. 89-2878 where the accused
was found guilty of slight physical injuries because lack of intention to
kill is not mitigating in crimes against persons, citing the case of
People v. Dalacgac2 where it was held that in crimes against persons
who do not die as a result of the assault, the absence of the intent to
kill reduces the felony to mere physical injuries, but it does not
constitute a mitigating circumstance under Art. 13, par. 3.3
Additionally, said mitigating circumstances cannot apply to Criminal
Case No. 89-1360 (for Homicide) for when the accused stabbed the
unarmed and defenseless Maximo Bacar at his back with an icepick, it
is crystal clear, so petitioners contend, that the intention of the
accused Gerardo Marcial at that particular moment when he
executed or committed the stabbing was to kill and finish off Maximo
Bacar and not to harm him only.4 Petitioners cite the case of People
v. Boyles, et al.,5 to wit:
Art. 13, par. 3 of the Revised Penal Code addresses itself to the
intention of the offender at the particular moment when he executes
or commits the criminal act; not to his intention during the planning
stage. Therefore, when, as in the case under review, the original plan
was only to rob, but which plan, on account of the resistance offered
by the victim, was compounded into the more serious crime of
robbery with homicide, the plea of lack of intention to commit so
grave a wrong cannot be rightly granted. The unforgettable fact
remains that when they ganged up on their victim, they employed
deadly weapons and inflicted on him, mortal wounds in his neck. At
that precise moment, they did intend to kill their victim, and that was
the moment to which Art. 13, par. 3 refers.6
As for the mitigating circumstance of sufficient provocation,
petitioners contend that this is not applicable to Criminal Case No. 89-
1360 (for Homicide) for while Edgardo Mabuyo, the victim in Criminal
Case No. 89-2878, admitted that prior to the incident, there was
heckling which came from him directed at the group of the accused
Gerardo Marcial and that he was the one who started the heckling,
and that the heckling triggered the "free for all fight", there was
however, no iota of evidence that the deceased Maximo Bacar made
any provocation. It is further argued by petitioners that under said
Article 13, par. 4, RPC, the provocation to be considered mitigating
must originate from the offended party. Therefore, said mitigating
circumstance cannot be appreciated in the case involving the
deceased Maximo Bacar as it is undisputed that he himself never gave
or caused any provocation.
Petitioners contend that instead of according the accused Gerardo
Marcial the aforesaid mitigating circumstances, respondent judge
should have considered the aggravating circumstances of abuse of
superior strength under Art. 14, par. 15, of the Revised Penal Code
and treachery under Art. 14, par. 16, of the same Code.7
On rendering an unjust judgment, petitioners allege that in imposing
a straight penalty of six (6) years imprisonment for homicide, after
taking into consideration the aforesaid mitigating circumstances,
respondent judge has rendered an unjust judgment in Criminal Case
No. 89-1360. It is contended that under the graduation and
application of penalties, the penalty that should be imposed can in no
case be justified to only six (6) years "flat".8
The present complaint was referred to respondent judge for
comment by then Deputy Court Administrator Juanito A. Bernad in his
First (1st) Indorsement dated 27 May 1994. In reply thereto,
respondent judge filed a motion, dated 3 June 1994, requesting for an
extension of twenty (20) days within which to file his comment for
the reason that he needed to borrow the records of said Criminal
Cases Nos. 89-1360 and 89-2878 from the Makati Regional Trial Court
so that he may be able to file an intelligible comment. He also
explained that per his recollection, when accused Marcial filed his
motion for reconsideration of the joint judgment, respondent judge,
to be sure that he would not commit an error, sought a second
opinion from one Judge Nemesio Felix who allegedly opined that the
said accused should have been given the benefit of homicide in a
"tumultuous affray" with no intent to commit the crime, and of self-
defense, and suggested a reducted straight penalty of anywhere from
two (2) years to six (6) years. Respondent's request for extension was
granted by then Deputy Court Administrator Juanito A. Bernad per his
letter dated 20 June 1994.
However, as his comment was not forthcoming, tracer letters, dated 8
November 1994 and 10 October 1995, were sent to respondent judge
by the Office of the Court Administrator (OCA, for brevity), reiterating
the directive for him to file his comment on the complaint against
him.
Meanwhile, complainants filed a letter with the OCA dated 20
October 1995 reiterating the charges against respondent judge and
particularly assailing his order of 13 November 1992 imposing a
straight penalty of six (6) years so as to enable the accused to avail of
the benefits of probation and prayed that judgment be imposed by
this Court on the accused to vindicate the death of their son. They
also took exception to the statement of respondent judge in the
assailed order that their motion for reconsideration dated 10
December 1992 was filed out of time.9
Since respondent judge continually failed to file his comment, this
Court issued a Resolution, dated 1 July 1996, requiring respondent
judge to 1) show cause why he should not be disciplinarily dealt with
or held in contempt for failure to comment on the complaint, and; 2)
file the required comment on the complaint. In the same Resolution,
the complainants were advised that their prayer to impose the
correct penalty in the criminal charges cannot be granted since the
present proceedings involve only the administrative liability, if any, of
respondent judge.
On 6 August 1996, respondent judge finally filed his comment. He
explained therein why he took into consideration the aforesaid
mitigating circumstances and contends that in doing so, he merely
exercised his discretion and judgment. As to why he should not be
disciplinary dealt with or held in contempt for failure to file comment,
respondent judge set forth the following reasons:
1. In the belief that the complaint for ignorance of the law (for
appreciating the two (2) mitigating circumstances) was
unquestionably, obviously and completely baseless because they
were acts of judicial discretion in the appreciation of evidence,
respondent did not give the matter the priority that it deserved.
2. The Bacar spouses assured respondent during a visit to him in the
Pasay City RTC that they were going to withdraw their complaint.
3. Respondent had been under severe stress since the first week of
November 1995 to the present when he discovered that Judge
Salvador Abad Santos, executive judge of the Regional Trial Court of
Makati, . . . initiated an administrative complaint against him . . . 10
On 14 August 1996, respondent judge filed an urgent ex-parte motion
for second (2nd) extension of time to file his explanation, and; on 28
August 1996, respondent finally filed his explanation on why he
should not be disciplinarily dealt with or held in contempt of court for
his failure to file a comment.
After evaluating the foregoing facts, the Office of the Court
Administrator made the following findings:
1. Respondent cannot be held liable for rendering an unjust judgment
by considering in favor of the accused the two (2) mitigating
circumstances. Under the Rules of Court, a judgment of conviction
may, upon motion of the accused, be modified or set aside by the
court rendering it before the judgment has become final or appeal
has been perfected. Moreover, errors in the application of the law
and the appreciation of the evidence are judicial in nature. The
remedy therefore of the complainants should likewise be judicial.
2. However, respondent may be held liable for gross ignorance of the
law for imposing a straight penalty of six (6) years of imprisonment on
the accused in his modified judgment in the case for homicide. The
application of the Indeterminate Sentence Law is mandatory where
imprisonment would exceed one (1) year. 11 And in applying the
Indeterminate Sentence Law for offenses penalized under the Revised
Penal Code, the indeterminate sentence should have a fixed
minimum and maximum. 12 In this case, what was imposed was a
straight penalty which is erroneous. 13
We agree with aforesaid findings of the Office of the Court
Administrator on both points.
Not every error or mistake of a judge in the performance of his duties
makes him liable therefor. To hold a judge administratively
accountable for every erroneous ruling or decision he renders,
assuming that he has erred, would be nothing short of harassment
and would make his position unbearable. For no one called upon to
try the facts or interpret the law in the process of administering
justice can be infallible in his judgment. 14

In the case at bar, respondent judge cannot be faulted for modifying
his decision after considering the two (2) mitigating circumstances of
want of intent to commit so grave a wrong and sufficient provocation
which immediately preceded the act, set forth in the motion for
reconsideration filed by the accused. Under the law, a judgment of
conviction may, upon motion of the accused, be modified or set aside
by the court rendering it before the judgment has become final or
appeal has been perfected.
The fact that respondent judge's appreciation of the evidence
differed from that of petitioners which could be biased, does not
warrant the conclusion that said judge has rendered an unjust
judgment nor that he is ignorant of the law. In the absence of any
indication 1) that the trial court's conclusion is based entirely on
speculations; 2) that there is grave abuse of discretion; 3) that the
court, in making its findings went beyond the issues of the case and
the same are contrary to the admissions of both appellant and
appellee, or; that the judgment is based on a misapprehension of
facts, or; that the presiding judge is blatantly biased, the general rule
that the trial court's findings of fact should be given great weight still
stands.
However, respondent judge is liable for gross ignorance of the law for
imposing a straight penalty of six (6) years imprisonment on the
accused in his modified judgment in the case for homicide. It is basic
law that, as stated above, the application of the Indeterminate
Sentence Law is mandatory where imprisonment exceeds one (1)
year, 15 except only in the following cases:
a. Offenses punished by death or life imprisonment.
b. Those convicted of treason (Art. 114), conspiracy or proposal to
commit treason (Art. 115).
c. Those convicted of misprision of treason (Art. 116), rebellion (Art.
134), sedition (Art. 139), or espionage (Art. 177).
d. Those convicted of piracy (Art. 122).
e. Habitual delinquents (Art. 62, par. 5).
Recidivists are entitled to an indeterminate sentence. (People v.
Jaramilla, L-28547, Feb. 22, 1974). Offender is not disqualified to avail
of the benefits of the law even if the crime is committed while he is
on parole. (People v. Clareon, CA 78 O.G. 6701, Nov. 19, 1982).
f. Those who escaped from confinement or those who evaded
sentence.
g. Those granted conditional pardon and who violated the terms of
the same (Art. 159). (People v. Corral, 74 Phil. 359).
h. Those whose maximum period of imprisonment does not exceed
one year.
Where the penalty actually imposed does not exceed one year, the
accused cannot avail himself of the benefits of the law, the
application of which is based upon the penalty actually imposed in
accordance with law and not upon that which may be imposed in the
discretion of the Court. (People v. Hidalgo, [CA] G.R. No. 00452-CR,
Jan. 22, 1962).
i. Those who are already serving final judgment upon the approval of
the Indeterminate Sentence Law. 16
The need for specifying the minimum and maximum periods of the
indeterminate sentence is to prevent the unnecessary and excessive
deprivation of liberty and to enhance the economic usefulness of the
accused, since he may be exempted from serving the entire sentence,
depending upon his behavior and his physical, mental, and moral
record. The requirement of imposing an indeterminate sentence in all
criminal offenses whether punishable by the RPC or by special laws,
with definite minimum and maximum terms, as the Court deems
proper within the legal range of the penalty specified by the law
must, therefore, be deemed mandatory. 17
In crimes punishable under the Revised Penal Code, the maximum
term of the indeterminate penalty is determined in accordance with
the rules and provisions of the Code exactly as if the Indeterminate
Sentence Law had never been enacted. 18
The rules and provisions which must be applied to determine the
maximum term of the indeterminate penalty are those provided in
Articles 46, 48, 50 to 57, 61, 62 (except paragraph 5), 64, 65, 68, 69,
and 71. 19
However, the aforesaid rules and provisions in those articles,
particularly Arts. 50 to 57, 62, 64 and 65, are not applicable in fixing
the minimum term of the indeterminate penalty. The Court has
unqualified discretion to fix the term of the minimum. 20 The only
limitation is that it is within the range of the penalty next lower to
that prescribed by the Code for the offense committed, without
regard to its three (3) periods. 21
Take the present case, for example, of homicide in which two (2)
mitigating circumstances attended its commission. The penalty for
homicide prescribed by Article 249 of the Revised Penal Code is
reclusion temporal. Since two (2) mitigating circumstances and no
aggravating circumstance attended the commission of the offense,
said penalty shall be lowered by one degree pursuant to Article 64
paragraph 5 of the same Code, which in this case is prision mayor.
This penalty shall be imposed in its medium period considering that
no other modifying circumstance attended the commission of the
offense, the two (2) mitigating circumstances having been already
taken into account in reducing the penalty by one (1) degree lower
(Basan v. People, L-39483, 29 November 1974, 61 SCRA 275).
Applying the Indeterminate Sentence Law, the minimum of the
penalty shall be within the range of the penalty next lower in degree
which is prision correccional and the maximum of which shall be
within the range of the medium period of prision mayor. 22
Since respondent judge imposed the straight penalty of six (6) years
which is erroneous, he is therefore liable for gross ignorance of the
law. This Court has held that when the law is so elementary, not to
know it or to act as if one does not know it, constitutes gross
ignorance of the law. 23 Likewise, that unawareness of and
unfamiliarity with the application of the Indeterminate Sentence Law
and duration and graduation of penalties merit disciplinary action,
from reprimand to removal. 24
Respondent judge cannot shirk responsibility for imposing said
erroneous penalty by saying, as he did in his motion for extension
dated 3 June 1994,25 that he in fact sought and adopted the opinion
of one Judge Nemesio Felix. A judge should have moral and
intellectual courage and independence of mind in the discharge of his
duties for only in that way can he merit his judicial position and the
support and confidence of the people in him. 26
Respondent judge owes it to the public and to the legal profession to
know the law he is supposed to apply to a given controversy. He is
called upon to exhibit more than just a cursory acquaintance with the
statutes and procedural rules. Party litigants will have great faith in
the administration of justice if judges cannot justly be accused of
apparent deficiency in their grasp of the legal principles. 27
Finally, this Court takes notice of the fact that respondent judge filed
his comment on this present petition more than two (2) years from
the time the Office of the Court Administrator through then Deputy
Court Administrator Juanito Bernad, issued a directive for him to do
so. As a judge, respondent ought to know that all directives coming
from the Office of the Court Administrator and his deputies are issued
in the exercise of administrative supervision of courts and their
personnel, hence, they should be respected. His excuses that the
complaint was unquestionably, obviously, and completely baseless;
that complainants were going to withdraw their complaint, and; that
he was under severe stress are not enough for him to ignore said
Office's directives. It took a resolution of the Court itself for
respondent judge to finally file his comment. Even then, respondent
judge had to ask for several extensions before complying with his
Court's
orders. 28

WHEREFORE, the Court, resolving to hold respondent Judge Salvador

P. de Guzman, Jr. administratively liable for gross ignorance of the
law, imposes on him a FINE of Five Thousand Pesos (P5,000.00) WITH
A STERN WARNING that a repetition of the same or similar act will be
dealt with more severely. Additionally, he is hereby ADMONISHED for
failure to file promptly his comment as directed by the Office of the
Court Administrator.

SO ORDERED.
G.R. No. 126175 May 29, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ARMANDO ROMUA, accused-appellant.
PUNO, J.:
Rape is an odious crime. It becomes more despicable when
committed against a person deprived of reason. Such was the case of
Lolita Jaban, a 24-year old mental retardate.
A complaint was initiated by Jovita Jaban against Armando Romua for
raping her retarded daughter, Lolita. The Information 1 against him,
dated April 10, 1990, was subsequently filed before the Regional Trial
Court of Kabacan, Cotabato. 2 It reads:
That on or about 9:30 o'clock in the evening of January 31, 1990, at
Barangay Katidtuan, Municipality of Kabacan, Province of Cotabato,
Philippines, and within the jurisdiction of this Honorable Court, the
said accused, taking advantage of a feeble-minded, idiotic woman,
Lolita Jaban, did then and there, willfully, unlawfully and feloniously
have carnal knowledge with said Lolita Jaban, who by reason of her
said mental abnormality or deficiency, has no will or otherwise
deprived of reason.
CONTRARY TO LAW.
Romua pleaded "not guilty" upon arraignment. 3 Trial ensued.
The prosecution evidence rests chiefly on the testimonies of Jovita
Jaban, Dr. Crisostomo Necesario, Jr., P/Sgt. Jesus Ragonton and P/Sgt.
Polcronio Dulay.
The records reveal that Jovita Jaban, a widow, lives in Katidtuan,
Kabacan, Cotabato, with her daughter Lolita Jaban and the latter's
two-year old child. The man who sired Lolita's child is unknown since
her mental condition has rendered her incapable of talking or
communicating with anyone.
Armando Romua, husband of Jovita's niece, resides in the same
neighborhood, about ten (10) meters away from Jovita's house. He
and his wife used to look after Lolita whenever Jovita had to leave the
house to work as a laundry woman. At times, Romua would go to
Jovita's house and give food to Lolita when her mother was not
around. 4
In the evening of January 31, 1990, Jovita went to the house of
Leodegario Pablo, father-in-law of Romua, to watch a video. Romua
and his wife were also at Pablo's house watching the video. Romua
did not finish the video as he told his wife that he would go home to
sleep. He left at about 9:00 p.m. 5
After Romua left, Jovita felt nervous for no apparent reason.
Nevertheless, she continued watching the video and went home at
about 9:30 p.m. When she reached her house and opened its door,
she encountered Romua who was inside and about to leave. Jovita
asked him what he did inside her house. He replied that he was just
checking because the baby was crying. Romua was clad in brief and T-
shirt. Suspecting that Romua molested Lolita, she held on to his arms
and shouted for help. Their neighbors arrived, including Romua's wife
and another relative, Lito Amosin. Amosin led them inside
the house to avoid scandal. Inside the house, Jovita found Lolita
completely naked. 6 She immediately reported the incident to the
authorities.
The following morning, at about 10:00 a.m., Jovita brought Lolita to
Dr. Crisostomo Necesario, Jr., for a medical examination. Dr.
Necesario found sperm in the vaginal canal of Lolita and opined that
she had sexual contact one (1) or two (2) days before the
examination. 7 Jovita and Lolita proceeded to Kabacan Police Station
where Jovita executed her sworn statement before P/Sgt. Jesus T.
Ragonton. 8
We now consider the defense's version of the incident.
On January 31, 1990, at about 9:00 p.m., Armando Romua watched a
video tape at his father-in-law's house. His aunt Jovita came and
joined them. After a while, he felt sleepy and he told his wife he
would go home. He went straight to his house, some twenty (20)
meters away from his father-in-law's house. 9
Allegedly, he heard something fall inside Jovita's house. He went to
Jovita's house to verify if anything untoward has happened. He
peeped inside and saw the baby jumping on Lolita's abdomen. He
started to leave after finding nothing wrong. He then met his aunt
Jovita who suddenly shouted and accused him of raping Lolita. His
wife and Lito Amosin came and pacified them. Romua denied he was
clad in brief. He claimed he was wearing a T-shirt and maong pants.
He said that Lolita was not naked but wore a dress. Her dress,
however, was raised.
Lito Amosin, brother in-law of Romua, testified for the defense. He
narrated that on the material date and time, he saw his aunt Jovita
and Romua standing by the road, in front of Jovita's house. Jovita was
holding on to Romua's hands. He approached the two and led them
inside the house to avoid scandal. Amosin affirmed that Romua was
wearing a T-shirt and long pants that evening.
On April 29, 1993, the trial court rendered its Decision 10 finding
appellant guilty as charged. Its dispositive portion reads:
WHEREFORE, premises considered, accused Armando Romua is found
guilty by proof beyond reasonable doubt of Rape and applying the
Indeterminate Sentence Law, is sentenced to suffer (the) penalty of
imprisonment of 12 years and one day to 14 years and 8 months.
SO ORDERED.
Accused appealed to the Court of Appeals. He contended that:
I
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT MAINLY ON THE BASIS OF THE TESTIMONY OF THE
MOTHER OF THE VICTIM AND THE EXAMINING PHYSICIAN WITHOUT
THE VICTIM IDENTIFYING THE ACCUSED-APPELLANT.
II
THE TRIAL COURT GRAVELY ERRED IN APPLYING THE RULING IN
PEOPLE VS. TOMENTOS IN THE INSTANT CASE WITHOUT EVEN
DISCUSSING ITS FINDINGS OF FACTS IN THE ASSAILED DECISION.
III
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME
CHARGED.
After review, the appellate court affirmed the judgment of the trial
court but modified the penalty to reclusion perpetua. 11 The records
of the case were then forwarded to this Court for further review.
We affirm appellant's conviction.
Appellant maintains that the victim's mental depravity was not
established by the prosecution. He also insists that no concrete
evidence linked him to the crime charged because he was not
identified by the victim.
We reject these contentions.
The mental depravity of the victim was established through the A: I held his hand because I suspected he molested my child.
testimonies of the prosecution witnesses. 12 Dr. Necesario testified
13 as follows: Q: You are referring to your daughter Lolita Jaban who is an abnormal
daughter?
FISCAL BAYOG:
A: Yes, sir.
Q: Now, were you able to ask the victim on (sic) what happened to
her a day before you previously examined her? xxx xxx xxx

(DR. NECESARIO): Q: You refer to Lolita Jaban, where is this Lolita Jaban now?

A: The victim is mentally retarded.
Q: When you say mentally retarded, can she speak?
A: She uttered words that cannot be understood.
A: (The witness is pointing at a woman sitting at the bench who is
always shouting during the hearing).
Q: By the way, could this Lolita Jaban could [sic] utter any words to
express what she desires?

Q: What is the age of the victim? A: She cannot talk but she could only shout.

A: According to the data, 24. Q: Could she express her thoughts or idea by expression or by
communicating signs?
Significantly, during cross-examination, the defense did not make any
attempt to impugn the opinion of the doctor that the victim is a A: No, sir.
mental retardate.
Another witness for the prosecution, Sgt. Ragonton, similarly
Likewise, Jovita Jaban testified on the mental condition of her testified: 15
daughter without any challenge from the appellant. Her testimony 14
is as follows: (FISCAL BAYOG):

(FISCAL BAYOG): Q: Being the investigator at that time, do you remember if a person
reported to you about an alleged rape?
Q: When you noticed this accused Armando Romua wearing his brief
and T-shirt, what did you do if any? (SGT. RAGONTON):

(JOVITA JABAN) A: Yes, sir.


Q: Do you recall who was that person who came to your office and
reported the incident (which) occurred previously?
A: The complainant is retarded and her mother is Mrs. Jaban.
Throughout the trial of the case, appellant did not challenge the
mental abnormality of the victim. It is too late for him to raise this
factual issue before this tribunal. Besides, defense witness Lito
Amosin also confirmed the mental retardation of the victim in open
court. 16 Indeed, appellant himself was aware of the mental state of
the victim. They are relatives and neighbors. He used to take care of
the victim when her mother was away.
It is not an easy task to ascertain the identity of the rapist when the
victim is deprived of reason as in the case at bar. Nonetheless, said
identity can be established with certainty from the events preceding
or following the bestial
act. 17 In People vs. Danao, 18 we held:
Direct evidence of the commission of a crime is not the only matrix
wherefrom a trial court may draw its conclusion and finding of guilt.
Indeed, there are crimes when there are no eyewitnesses at all.
Under such situations, the courts are allowed to rule on the bases of
circumstantial evidence. Such species of evidence is sufficient for
conviction if (1) there is more than one circumstance, (2) the facts
from which the inferences are derived are proven, and (3) the
combination at all the circumstances is such as to produce a
conviction beyond reasonable doubt.
In the case at bar, several circumstances indicate appellant as the
perpetrator of the crime, viz:
(1) Appellant knew that the victim was alone in her house because
her mother was also watching the video tape at Pablo's house.
(2) Appellant went to the house of the victim ostensibly to check if
anything untoward happened to her. There is no evidence that
anybody else visited the victim before the incident.
(3) When appellant emerged from her house, Jovita saw him clad in
brief while the victim was stripped of her clothes. Appellant's wife
who arrived at the scene later was not presented in court to disprove
Jovita's allegation.
(4) The doctor found sperm cells in the vaginal canal of the victim
when he examined her less than 24 hours after the incident.
These circumstances lead us to the inescapable conclusion that it was
appellant who took advantage of the mental frailty of the victim and
raped her. Appellant is guilty of rape under Article 335 of the Revised
Penal Code, viz:
Art. 335. When and how rape is committed. — Rape is committed by
having carnal knowledge of a woman under any of the following
circumstances.
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious;
and
3. When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
xxx xxx xxx
Appellant's bare denial cannot exculpate him. He was not even
consistent in his story. For one, he claimed he heard something fall
inside the house of the victim. He went there and peeped inside as he
thought something untoward had happened. He saw Lolita's child
jumping on her abdomen. Since everything looked all right inside the
house, he left and returned to his house. It was along the way that he
met his aunt Jovita. Later, however, appellant modified his story. He
testified that when he peeped inside and saw Lolita's baby crying, he
left immediately to call his aunt Jovita. Appellant met her on the way
but his aunt was already shouting for help as she suspected that
something had happened to Lolita. 19
For another, appellant initially testified that his aunt did not accuse
him of raping her daughter. 20 On cross-examination, however, he
again changed his answer and admitted that his aunt immediately
accused him of raping Lolita. 21
The records also show that appellant could not give straightforward
answers to the simple questions propounded by his counsel. For
instance, appellant pretended he did not know the victim's name. On
further questioning, he identified the victim as "Omel"; that Lolita
Jaban and "Omel" refer to the same person. 22 When asked whether
the victim was wearing a blouse or was naked, appellant was evasive
and gave the lame excuse that he could not remember. Or follow-up
questioning, however, he said that the victim was wearing
"something like (a) dress." 23 On cross-examination, he conceded
that she was wearing a dress but "it was raised up and (she) was
naked." 24 When asked if he saw Lolita when he peeped inside the
house, he said he did not. A few questions later, he flipped-flopped
and admitted she was inside the house. 25
In stark contrast, Jovita gave a credible account of the events that
evening. She was steadfast in her testimony that she saw the
appellant without his pants on, inside her house. She also found her
daughter naked. There were traces of sperm in her daughter's vaginal
canal. Her story deserves full faith and credit. A mother would not
expose her daughter's misfortune to the public if she was not
motivated by an honest desire to have the culprit punished. 26
We note too that there was no grudge between Jovita and appellant
prior to the incident. There is thus no motive for Jovita to distort the
truth. 27 It is a settled rule that in the absence of evidence of
improper motive on the part of a prosecution witness to falsely testify
against an accused or falsely implicate him in the commission of a
crime, the testimony deserves credence. 28
Appellant also contends that the trial court misapplied People vs.
Tomentos 29 to the case at bar. He points out that in Tomentos, the
mental retardation of the victim was proven by medical evidence and
the victim herself testified and identified the accused.
We are not impressed. Mental retardation can be proved by other
evidence. 30 As afore-discussed, the mental retardation of Lolita was
established by several witnesses and was not contested by appellant.
While no witness directly saw appellant rape the victim, nonetheless,
various circumstantial evidence leave no doubt that he committed
the dastardly offense.
We now come to the penalty. We agree with the Court of Appeals
that the proper penalty in this case is reclusion perpetua. 31 We have
held in People vs. Fabro 32 that for offenses in which the law
prescribes the single, indivisible penalty of reclusion perpetua, it is
the first paragraph of Article 63 of the Revised Penal Code and not the
Indeterminate Sentence Law which applies. Said article provides that
"in all cases in which the law prescribes a single and indivisible
penalty, it shall be applied by the courts regardless of any mitigating
or aggravating circumstances that may have attended the commission
of the deed."
IN VIEW WHEREOF, we find appellant ARMANDO ROMUA guilty as
charged and accordingly modify his sentence to reclusion perpetua. In
line with the previous decisions 33 of this Court, appellant is ordered
to indemnify the offended party in the amount of fifty thousand
pesos (P50,000.00). Costs against appellant.
SO ORDERED.
G.R. No. 118816 July 10, 1998
SANTIAGO ARGONCILLO, RICHARDO BALBONA and POLICARPIO
UMITEN, petitioners,
vs.
COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES,
respondents.
KAPUNAN, J.:
This is a petition to review the decision 1 of the Court of Appeals
which affirmed in toto the decision of the Regional Trial Court of
Roxas City, Branch 15, 2 finding petitioners herein guilty of "illegal
fishing with the use of an explosive," the dispositive portion of which
reads:
WHEREFORE, the Court finds the accused, Policarpio Umiten,
Santiago Argoncillo and Richard Balbona, guilty beyond reasonable
doubt for the crime of illegal fishing with the use of an explosive
punishable under Section 33 in relation to Section 38 of Presidential
Decree No. 704 dated May 16, 1975 as amended by Presidential
Decree No. 1058 dated December 1, 1976 and each shall suffer a
straight penalty of twenty (20) years imprisonment.
However, accused, Johnson Sucgang, Elvis Villar and Efren Alvaro, are
acquitted for failure of the prosecution to prove their guilt beyond
reasonable doubt.
The fish sample is forfeited in favor of the government.
Considering the penalty imposed upon the accused, Policarpio
Umiten, Santiago Argoncillo and Richard Balbona, the bail bond for
their provisional liberty is increased to Twenty Thousand (P20,000.00)
Pesos each effective immediately upon promulgation. They shall not
be released from detention until they put up an appropriate bail bond
for their provisional liberty.
The property bond of accused, Johnson Sucgang, Elvis Villar and Efren
Alvaro, are deemed cancelled.
Costs against the convicted accused.
SO ORDERED. 3
On August 1, 1990, an Information was filed by the Provincial Fiscal of
Capiz charging Johnson Sucgang, Policarpio Umiten, Elvis Villar,
Santiago Argoncillo, Richardo Balbona and Efren Alvaro with illegal
fishing (with the use of dynamite), as follows:
That at or about 6:30 o'clock [sic] in the evening of May 7, 1990, in
the sea water of Barangay Basiao, Ivisan, Capiz, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and helping one another, wilfully,
unlawfully and feloniously catch, take, gather and have in their
possession and control different species of fish with the use of
explosives. 4
Upon arraignment on September 11, 1990, the accused, with the
assistance of counsel, pleaded "not guilty" to the offense charged.
Trial ensued thereafter.
The lower court synthesized the evidence presented by the
prosecution as follows: 5
Due to reports of rampant illegal fishing at Barangay Basiao, Ivisan,
Capiz, personnel from the Department of Agriculture and Natural
Resources specifically from the Bureau of Fisheries as well as the
Barangay Captain of said place assisted by the local policemen
created a team to conduct surveillance within the Ivisan Bay. Thus,
around 5:30 in the afternoon of May 7, 1990, a team riding in two (2)
pumpboats from the Barangay Basiao wharf proceeded along the
waters of Ivisan Bay. Riding in one pumpboat were Persinefles U.
Oabe, the Barangay Captain of said place; Rolando Amoroso, an
employee of the Bureau of Fisheries; Pat. Rafael Tupaz, a member of
the local Integrated National Police and Remegio Unasin, a barangay
councilman who acted as the pilot. In the other pumpboat were Joey
de la Cruz, a co-employee of Rolando Amoroso; Pat. Reggie Uadan
and Enido Baldesimo. Now and then, the team had to stop and listen
for possible occurrences of illegal fishing within their vicinity. Around
6:30 of the same evening while standing by with their engines off, in a
place facing Barangay Culasi, they heard an explosion. Sensing it was
caused by dynamite, they proceeded to the area around five hundred
meters (500 m.) away from them.
After ten minutes of navigation, the team arrived at the scene in
question which was near an islet. They surrounded the area. At a
distance of around ten meters, Joey de la Cruz, an employee of the
Bureau of Fisheries and Aquatic Resources, saw three persons diving
into the water. Thereafter, they would surface and throw their catch
of fish to the unmotorized banca around four meters long nearby. In
the seashore of said islet, around three to four meters away from
these three persons floating in the water, were three other persons
standing in the rocky portions around three meters apart. These six
persons tried to escape but Rolando Amoroso, the co-employee of
Joey de la Cruz, advised them not to do so and introduced themselves
as law enforcers. The team found out that the fishes they caught
were deep sea fish of four kinds locally known as "vulgan," "bulawis,"
"pacol," and "bag-angan." Joey de la Cruz gathered seven fish samples
from their banca while Rolando Amoroso went down from the
pumpboat and proceeded to the islet. However, upon inspection, he
failed to find any explosive (dynamite) either on the seashore or on
the banca. No paraphernalia used in dynamite fishing were found.
Both Joey de la Cruz and Rolando Amoroso recognized the six persons
as the herein accused by their faces.
Persinefles U. Oabe, barangay captain of Barangay Basiao, who was
with the team riding in a pumpboat with Rolando Amoroso identified
the three persons retrieving fish from the water as Policarpio Umiten,
Santiago Argoncillo and Richard Balbona while the other three
persons standing on the rocky portions of the islet as Johnson
Sucgang, Elvis Umiten and Efren Alvaro.
The team apprehended the six accused and brought them to the fish
cage of the barangay captain located within the same barangay.
While on their way, Joey de la Cruz externally examined the fish
samples.
Upon their arrival at the fish cage, another external examination was
conducted by Joey de la Cruz and Rolando Amoroso. In both external
examinations, the two found out that the fishes were caught with the
use of explosives because blood was oozing from their operculums
and their eyes were protruding.
An on-the-spot investigation was conducted but the accused denied
any culpability. They were then released on the strength of their
promise to report to the local police the following day.
The fish samples were then placed in a plastic bag filled with ice at the
house of Barangay Captain Persinefles U. Oabe that evening. In the
morning, Joey de la Cruz and Rolando Amoroso brought the fish
samples to their office in Roxas City where they conducted an internal
examination. The examination revealed that the fish samples were
caught with the use of explosives because their air bladders were
raptured and deeply stained with blood; the vertebral columns were
broken but with bloodstains; their ribs were broken; and there were
blood clots in their abdomens. Joey de la Cruz and Rolando Amoroso
rendered a written report of their internal examination to the
Provincial Agricultural Officer.
The testimonies of Joey de la Cruz, Rolando Amoroso, and Persinefles
U. Oabe above were corroborated by Pat. Rafael Tupaz, one of the
police escorts of the team.
Sgt. Sergio Ordales, a member of the local police of the municipality
of Ivisan testified that while on duty in the morning of May 8, 1990,
herein six accused arrived at their station. He asked why they were
there and they answered that they were told to report to the police
station. He learned from them that they were arrested for illegal
fishing with the use of explosives.
On the other hand, the lower court portrayed the evidence presented
by the version of the defense, thus:
All the accused denied the imputation of the prosecution.
Policarpio Umiten, Santiago Argoncillo, Richard O. Balbona were
uniform in alleging that around 4:00 in the afternoon of May 7, 1990,
they dropped a fishnet about two hundred (200) "armslength" and
one (1) meter in width at the scene where they were apprehended.
This method they locally call "patuloy" requires that the fishnet be
retrieved every hour to collect its catch. The trio went back to the
place near the islet in question around 6:30 in the evening for the
purpose of collecting their catch from the fishnet. They had not been
able to collect all their catch from the net when the team of law
enforcers, prosecution witnesses herein, arrived. They were asked
whether they heard an explosion. After they denied having heard any,
Barangay Captain Persinefles U. Oabe, told the accused to go with
them. The team got seven pieces of fish samples. The accused left
around one and one-half kilos of fish they had gathered at the time
the team of law enforcers arrived. They were then brought to the fish
cage owned by Persinefles U. Oabe at Barangay Basiao.
Above three accused would like the Court to believe that the seven
pieces of fish samples taken by the team of fishing law enforcers were
the catch of their fishnet they locally called "patuloy."
On the other hand, Elvis Villar testified that he and Efren Alvaro were
together in going to the islet in question, riding in an unmotorized
banca to gather shells locally called "suso" and "butlogan" for viand.
Both started gathering shells under the stones in the islet around 5:30
in the afternoon. While they were preparing to go home at around
6:30 in the evening, the team of law enforcers riding in motorized
pumpboats arrived. The barangay captain and the personnel from the
Bureau of Fisheries and Aquatic Resources asked them whether they
heard an explosion. After they denied having heard any, they were
told by the barangay captain to board their pumpboats. They obliged,
leaving the shells they had gathered. They were then brought to the
fish cage of the barangay captain.
Although accused Johnson Sucgang admitted his presence in the islet
in question, he offered a different explanation. He testified that he
went to said place to look for "pulutan" requested by his customer,
Wilfredo Arcangeles. Being an operator and manager of Virgen Beach
Resort located at Sitio Manangkalan, he obliged. Thus, between 5:00
to 5:30 in the afternoon of May 7, 1990, he left his resort riding in a
banca. He paddled his way towards the islet where he saw two
persons at the bank while the other three were on the water. He
went ashore. Later, the barangay captain and his companions riding in
two pumpboats arrived. Like his co-accused, he was asked if he heard
an explosion. After he denied hearing any, the barangay captain told
him to go with them. They were all brought to the fish cage of the
barangay captain for questioning.
Wilfredo Arcangeles corroborated the claim of Johnson Sucgang. He
confirmed that he requested the latter to look for "pulutan" since he
had visitors from Bacolod City prompting Johnson Sucgang to look for
some. He saw the accused leave in a banca and affirmed that he had
no dynamite with him. 6
On September 30, 1991, the trial court rendered its decision which, as
stated at the beginning, was affirmed by the Court of Appeals.

Hence, this petition.
Petitioners point out that the fact that neither explosives nor related
paraphernalia were found in their possession is an indication of their
innocence.
We do not agree. First, it is quite probable that petitioners dumped
these materials into the sea while the raiding party was approaching.
Moreover, Section 33, Presidential Decree No. 704, as amended by
Presidential Decree No. 1058, provides:
Sec. 33. Illegal fishing; . . . — It shall be unlawful for any person to
catch, take or gather, or cause to be caught, taken or gathered fish or
fishery/aquatic products in Philippine waters with the use of
explosives, obnoxious or poisonous substance, or by the use of
electricity as defined in paragraphs (l), 7 (m) 8 and (d), 9 respectively,
of Sec. 3 hereof . . .
xxx xxx xxx
The discovery of dynamite, other explosives and chemical compounds
containing combustible elements, or obnoxious or poisonous
substance, or equipment or device for electric fishing in any fishing
boat or in the possession of a fisherman shall constitute a
presumption that the same were used for fishing in violation of this
Decree, the discovery in any fishing boat of fish caught or killed by the
use of explosives, obnoxious or poisonous substance or by electricity
shall constitute a presumption that the owner, operator or fisherman
were fishing with the use of explosives, obnoxious or poisonous
substance or electricity.
In Hizon vs. Court of Appeals, 10 this Court held that the law, as
contained in the last paragraph of Section 33, creates a presumption
that illegal fishing has been committed when fish caught or killed with
the use of explosives, obnoxious or poisonous substances or by
electricity are found in a fishing boat. In this case, it cannot be denied
that the fishes found in petitioners' banca were caught or killed by
the use of explosives.
The Report 11 of Bureau of Fisheries employees Joey de la Cruz and
Rolando Amoroso states:
Republic of the Philippines
Department of Agriculture
Roxas City
1990-05-08
The Provincial Agricultural Officer
Department of Agriculture
Roxas City
Sir:
I have the honor to submit to this office the result of the scientific fish
examination conducted on the fish samples taken from the
possession of Mr. Johnson Umiten Sucgang, 38 years old, married and
resident of Barangay Basiao, Ivisan, Capiz and company on May 7,
1990, 6:30 PM by combined elements of the Department of
Agriculture, PC/INP Unit of Ivisan, Capiz and Barangay officials of
Basiao, Ivisan, Capiz conducting sea borne patrol on illegal fishing.
Source of fish samples : Sea water of Brgy., Basiao, Ivisan,
Capiz
Fish samples taken from : Johnson U. Sucgang, 38 years old,
married, of Brgy., Basiao, Ivisan,
Capiz, et. al.
Date fish samples taken : May 7, 1990 at 6:30 PM
Date fish samples examined : May 7, 1990 at 7:00 PM
Name offish samples taken Number Weight Value
Local Name
Bulawis 2 pcs. 300 gms P 8.00
Bulgan 2 pcs. 200 gms 10.00
Pakol 1 pc. 100 gms 2.00
Bag-angan 1 pc. 150 gms 3.00
Bukod 1 pc. 150 gms 3.00
Characteristics noted on the fish examined:
1. External Manifestation
a. Blood, oozing on the operculum.
2. Internal Manifestation
a. Air bladder raptured deeply stained with blood;
b. Vertebral column broken with blood stain.
Conclusion:
The fish samples manifested signs that said fish were caught or killed
by the use of explosives.
Examined by:
(Sgd.)
JOEY I. DE LA CRUZ
(Sgd.)
ROLANDO E. AMOROSO
Fish Examiners
Joey de la Cruz affirmed the above findings in his testimony before
the trial court. 12 Said testimony was corroborated by Rolando
Amoroso, a co-employee of De la Cruz in the Bureau of Fisheries. The
latter further stated that the fish were killed specifically by dynamite:
ATTY. LUMAWAG:
Q Can you identify whether it was through dynamite or any other
means of explosive the fish was caught?
A Yes, sir. Because you know when we saw, when we conducted the
external manifestation of the fish, not only blood oozing from the
ears but also from the eyes that were protruding.
Q Is it not possible that it be caused also through fishing by means of
electricity?
A No.
Q Other kinds of explosives?

A Yes, explosives.
Q For example, what other aside from dynamite?
A What explosives aside from dynamite, no other. 13
The trial court correctly gave credence to these testimonies, thus:
Above three (3) accused would like the Court to believe that the
seven (7) pieces of fish samples taken by the team of fishing law
enforcers were the catch of their fish net they locally called [sic]
"patuloy."
xxx xxx xxx
With the external and internal examination by Joey de la Cruz and
Rolando Amoroso showing that these fishes were caught with the use
of explosive, bare denial of above three (3) accused that they caught
them by means of a fishing net they locally call "patoloy" is
insufficient to disprove such finding. It is simply a superiority of
weight of object evidence over testimonies of the accused.
Joey de la Cruz is an agricultural technologist of their office and a
graduate of Bachelor of Science in Fishery. Joey de la Cruz and
Rolando Amoroso had undergone training course in fishery laws and
implementing regulations as well as actual demonstrations in sea to
practice what they had learned in theory. [As] . . . technical personnel
of the Bureau of Fishery and Aquatic Resources, their finding after an
internal and external examination of fish samples to prove they were
caught with the use of explosives should be presented to show that
these prosecution witnesses fabricated their story. There is no
ulterior motive which implied them to testify as they did.
Furthermore, no evidence was introduced by the defense to impeach
their credibility nor evidence to discredit their persons. Credibility of
the testimonies having remained unimpeached, it shall be given great
weight in the determination of the guilt of the accused. Besides, being
public officers to enforce fishing laws, in the absence of ill-motive on
their part, to impute to the accused a serious offense of illegal fishing
with the use of explosive, the presumption is that there was regular
performance of public duty on their part. 14
The presumption that the crime of illegal fishing was committed has,
therefore, been clearly established. Such presumption, however, is
merely prima facie, and may be rebutted by the accused. 15
Petitioners attempt to overcome said presumption by disputing the
findings of prosecution witnesses Joey de la Cruz and Rolando
Amoroso. They claim that since not all their catch were examined,
there can be no conclusive proof that the fish were killed with the use
of explosives. 16
They also question the credibility of these witnesses, thus:
. . . . If it is true that prosecution witness Joey dela Cruz, allegedly a
technical personnel [sic] of the Bureau of Fisheries and competent to
determine if a fish is killed by dynamite blast, found the 7 fishes to
have been killed by a dynamite blast, it was unnatural for the team
not to arrest the petitioners on the spot. . . . 17
Petitioners' arguments have no merit.
It is ridiculous to have expected that all the fish found in the accused's
fishing boat would be subjected to an examination. It is sufficient
that, as in the case at bar, a random sample of the accused's catch
was examined and found to have been killed with the use of
explosives. A patent impracticality would result if the law required
otherwise.
The fact that the patrol team did not immediately deliver the accused
to the municipal jail does not diminish the credibility of the above
witnesses. Persinefles U. Oabe, the barangay captain of Basiao, gave a
plausible explanation for the accused's release:
A We released those six persons because if we bring them to the
municipality of Ivisan we have no available transportation because
they were only riding in a single motor vehicle. 18
The want of available transportation is not surprising. The dearth in
law enforcement facilities, especially in the provinces, is not lost on
this Court and is a matter of judicial notice.
In fine, we find no reason to disturb the assessment of the trial court
regarding the credibility of prosecution witnesses Joey de la Cruz and
Rolando Amoroso. Its findings are accorded great respect by appellate
tribunals since trial courts have the advantage of examining the
witnesses' testimonies and observing their demeanor first hand. 19
Petitioners also argue that they could not have been caught fishing
with the use of dynamite in shallow waters because the fishes used as
evidence were described by the prosecution witnesses as "deep sea
fishes." According to petitioners:
The seven (7) fishes that the prosecution used as evidence were
described by prosecution witnesses as "deep sea fishes". But it has
been shown in the testimony of petitioner Santiago Argoncillo that he
and the other petitioners were fishing in shallow waters about 1 1/2
meters deep (TSN, March 13, 1991, p. 7) and using fishnet 200
armslength long and 1 meter wide (TSN, March 13, 1991, p. 4). This
testimony was not rebutted by the prosecution. In fact, the 3 accused
who were acquitted by the trial court were found by the prosecution
witnesses standing on the seashore near where the petitioners were
fishing (TSN, January 23, 1991, pp. 5 to 6). That petitioners would
engage in dynamite fishing in shallow waters and near the seashore
would be unnatural. The allegation that the petitioners were fishing
with the use of explosive is therefore not credible. 20
We are not persuaded.
The fishes caught by petitioners were not actually "deep sea fishes" in
the sense that they came from the deep portions of the sea as
distinguished from shallow waters or waters near or along the shores.
The fishes caught were locally known as "vulgan," "bulawis," "pacol,"
and "bag-angan." They are generally described as "isda sa bato" or
"bottom feeders." The following excerpt from the testimony of fish
examiner Joey de la Cruz shows that the term "deep sea fishes" arose
from the trial court's erroneous translation of "isda sa bato" or
"bottom feeders" which were the terms actually employed by said
witness to describe the subject fishes:
ATTY. LUMAWAG:
Q What were the species of the fishes that you recovered from that
banca?
A Bottom feeders.
COURT:
"Isda sa bato," in English?
A Bottom feeders.
COURT:
Deep sea fishes. 21
Petitioners next contend that if it is true that they were engaged in
illegal fishing, it would be "unnatural" for them to use a boat which
would make it difficult for them to escape from the law enforcers
riding motorized boats. 22
Petitioners' contention is too ludicrous to warrant serious
consideration. The law punishing illegal fishing does not require the
use of motorized banca or boat for the crime to be committed.
Concededly, a motorized banca can better serve those engaged in
illegal fishing for purposes of eluding law enforcers. However, not
everyone can financially afford to fit a motor in his banca. Indeed,
petitioner Argoncillo admitted that the banca that they were using
was leased from a certain Dikoy Odrunia. 23
Petitioners likewise aver that they did not flee when the law
enforcers arrived, and even voluntarily reported to the Ivisan Police
Station the following morning. They submit that their alleged non-
flight should strengthen their claim of innocence. 24
We disagree. There is no established doctrine to the effect that, in
every instance, non-flight is an indication of innocence. 25 Moreover,
even if they wanted to, petitioners could not have possibly eluded the
law enforcers who were in two pump boats. Attempts to flee would
also have been useless since petitioners were already identified by
the barrio captain.
Lastly, the fact that the accused were asked by the patrol team
whether or not they heard an explosion is not in any way reflective of
petitioners' innocence. We deem such inquiry as nothing more than a
part of the investigative process. It is quite common, and in most
cases, necessary, for law enforcers to ask questions to help them
ascertain whether or not there exists probable cause to arrest
persons suspected of committing a crime.
Having failed to discharge themselves of the burden of disproving
that they have committed illegal fishing, the Court is left with no
alternative but to affirm petitioners' conviction.
The penalty imposed by law 26 for illegal fishing if explosive is actually
used is imprisonment ranging from twenty (20) years to life
imprisonment. The Indeterminate Sentence Law provides that if, as in
this case, the offense is punished by a law other than the Revised
Penal Code, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the maximum
fixed by said law and the minimum shall not be less than the
minimum term prescribed by the same. 27 The trial court therefore
erred when it sentenced petitioners to "suffer a straight penalty of
twenty (20) years imprisonment." 28 In Spouses Jose and Trinidad
Bacar vs. Judge Salvador P. de Guzman, Jr., 29 we held that it was
erroneous to impose a straight penalty of six (6) years imprisonment
on the accused for homicide. We explained:
. . . It is basic law that . . . the application of the Indeterminate
Sentence Law is mandatory where imprisonment exceeds one (1)
year, except only in the following cases:
a. Offenses punished by death or life imprisonment.
b. Those convicted of treason (Art. 114), conspiracy or proposal to
commit treason (Art. 115).
c. Those convicted of misprision of treason (Art. 116), rebellion (Art.
134), sedition (Art. 139, or espionage (Art. 117).
d. Those convicted of piracy (Art. 122).
e. Habitual delinquents (Art. 62, par. 5).
Recidivists are entitled to an indeterminate sentence. (People v.
Jaramilla, L-28547, Feb. 22, 1974). Offender is not disqualified to avail
of the benefits of the law even if the crime is committed while he is
on parole. (People v. Calreon, CA 78 O.G. 6701, Nov. 19, 1982).
f. Those who escaped from confinement or those who evaded
sentence.
g. Those granted conditional pardon and who violated the terms of
the same (Art. 159). (People v. Corral, 74 Phil. 359). SO ORDERED.

h. Those whose maximum period of imprisonment does not exceed

one year.

Where the penalty actually imposed does not exceed one year, the
accused cannot avail himself of the benefits of the law, the
application of which is based upon the penalty actually imposed in
accordance with law and not upon that which may be imposed in the
discretion of the Court. (People v. Hidalgo, [CA] G.R. No. 00452-CR,
Jan. 22, 1962).

i. Those who are already serving final judgment upon the approval of
the Indeterminate Sentence Law.

The need for specifying the minimum and maximum periods of the
indeterminate sentence is to prevent the unnecessary and excessive
deprivation of liberty and to enhance the economic usefulness of the
accused, since he may be exempted from serving the entire sentence,
depending upon his behavior and his physical, mental, and moral
record. The requirement of imposing an indeterminate sentence in all
criminal offenses whether punishable by the or by special laws, with
definite minimum and maximum terms, as the Court deems proper
within the legal range of the penalty specified by the law must,
therefore, be deemed mandatory. 30

Accordingly, the proper penalty to be imposed upon the accused

should be an indeterminate penalty which is hereby set at twenty (20)
years as minimum to twenty-five (25) years as maximum.

WHEREFORE, the petition is hereby DISMISSED, and the decision of

the Court of Appeals is AFFIRMED with the modification that
petitioners are hereby sentenced to suffer an indeterminate penalty
of imprisonment ranging from twenty (20) years as minimum to
twenty-five (25) years as maximum.
G.R. No. 131714 November 16, 1998
EDUARDO R. VACA and FERNANDO NIETO, petitioners,
vs.
COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES,
respondents.
MENDOZA, J.:
Petitioners seek a review of the decision, dated October 25, 1996, 1
and the resolution, dated December 2, 1997, 2 of the Court of
Appeals, affirming their conviction by the Regional Trial Court of
Quezon City (Branch 100) for violation of B.P. Blg. 22, otherwise
known as the "Bouncing Checks Law."
The facts are as follows:
Petitioner Eduardo R. Vaca is the president and owner of Ervine
International, Inc. (Ervine), which is engaged in the manufacture and
sale of refrigeration equipment, while his son-in-law, petitioner
Fernando Nieto, is the firm's purchasing manager. On March 10,
1988, petitioners issued a check for P10,000.00 to the General Agency
for Reconnaissance, Detection, and Security, Inc. (GARDS) in partial
payment of the security services rendered by GARDS to Ervine. The
check was drawn on the China Banking Corporation (CBC). When
deposited in the Philippine Commercial International Bank (PCIBank)
branch at Shaw Boulevard, Mandaluyong, the check was dishonored
for insufficiency of funds.
On March 29, 1988, GARDS wrote Ervine a letter in which it
demanded payment in cash of the amount of the check within seven
days from notice. The letter was received by Ervine on the same day,
but petitioners did not pay within the time given.
On April 13, 1988, petitioners issued a check for P19,860.16 to
GARDS. The check was drawn on the Associated Bank. The voucher
accompanying it stated that the check was to replace the dishonored
check, the P9,860.16 balance being partial payment for Ervine's
outstanding account. The check and the voucher were received by a
GARDS messenger, Nolan C. Pena, on April 15, 1988, but GARDS did
not return the dishonored check.
On April 14, 1988, GARDS Operations Manager Jovito C. Cabusara
filed a criminal complaint against petitioners for violation of B.P. Blg.
22. After preliminary investigation, an information was filed in the
Regional Trial Court of Quezon City (Branch 97). However, the case
was dismissed by the court on May 11, 1989, upon motion of the
prosecution, on the ground that Ervine had already paid the amount
of the check.
On September 18, 1989, GARDS, through its Acting Operations
Manager Eduardo B. Alindaya, filed another complaint for violation of
B.P. Bldg. 22 against petitioners. This resulted in the filing of an
information against petitioners in the Regional Trial Court of Quezon
City (Branch 100). After trial, petitioners were found guilty of the
charge and each was sentenced to suffer one (1) year imprisonment
and to pay a fine of P10,000.00 and the costs.
On appeal, the Court of Appeals affirmed the decision. It
subsequently denied petitioners' motion for reconsideration. Hence,
this petition. Petitioners contend:
A. Respondent Court gravely erred in not holding that the prosecution
failed to prove petitioners' guilt beyond reasonable doubt.
B. Respondent Court gravely erred in basing conviction on the alleged
weakness of the evidence of the defense rather than on the strength
of the evidence of the prosecution.
C. Respondent Court erred in not acquitting petitioners on grounds of
"mistake of fact" and "lack of knowledge."
Petitioners pray that the case against them be dismissed or, in the
alternative, that the decision of the trial court be modified by
sentencing each to an increased fine but without imprisonment.
By supplemental petition, dated January 29, 1998, petitioners
submitted an affidavit of desistance executed by GARDS president
Dominador R. Santiago which states that the case arose from a mere
"accounting difference" between petitioners and GARDS, that the
latter had not really suffered any damage as a result of the issuance
of the check in question and, that GARDS was no longer interested in
prosecuting the case.
On May 28, 1998, petitioners filed another supplemental petition, this
time invoking the recent decision in Lao v. Court of Appeals,3 in which
this Court reversed a conviction for violation of B.P. Blg. 22 upon a
showing that the accused had no knowledge of the insufficiency of
funds.
The Solicitor General opposes the appeal. He contends that the facts
of Lao v. Court of Appeals are different from those of the case at bar
and that the affidavit of desistance of Dominador Santiago is of no
moment, such affidavit having been made only after petitioners'
conviction.
After due review of the decision in this case, we find that petitioners'
conviction for violation of B.P. Blg. 22 is well founded.
First. The elements of the offense penalized under B.P. Blg. 22 are: (1)
making, drawing, and issuance of any check to apply to account or for
value; (2) knowledge of the maker, drawer, or issuer that at the time
of issue he does not have sufficient funds in or credit with the drawee
bank for the payment of the check in full upon its presentment; and
(3) subsequent dishonor of the check by the drawee bank for
insufficiency of funds or credit, or dishonor of the check for the same
reason had not the drawer, without any valid cause, ordered the bank
to stop paymnent.4 The maker's knowledge is presumed from the
dishonor of the check for insufficiency of funds.5 Thus, §2 of B.P. Blg.
22 expressly provides:
Sec. 2. Evidence of knowledge of insufficient funds. — The making,
drawing and issuance of a check payment of which is refused by the
drawee because of insufficient funds in or credit with such bank,
when presented within ninety (90) days from the date of the check,
shall be prima facie evidence of knowledge of such insufficiency of
funds or credit unless such maker or drawer pays the holder thereof
the amount due thereon, or makes arrangements for payment in full
by the drawee of such check within five (5) banking days after
receiving notice that such check has not been paid by the drawee.
In this case, after being notified on March 29, 1988 of the dishonor of
their previous check, petitioners gave GARDS a check for P19,860.16.
They claim that this check had been intended by them to replace the
bad check they had previously issued to the GARDS. Based on the
testimony of a GARDS accountant, however, the Court of Appeals
found that the check was actually payment for two bills, one for the
period of January 16 to January 31, 1988 in the amount of P9,930.08
and another one for the period of March 16 to March 31, 1988 in the
same amount. But even if such check was intended to replace the bad
one, its issuance on April 13, 1988 — 15 days after petitioners had
been notified on March 29, 1988 of the dishonor of their previous
check — cannot negate the presumption that petitioners knew of the
insufficiency of funds to cover the amount of their previous check.
Sec. 2 of B.P. Blg. 22 requires that such check be given within five (5)
days from the notice of dishonor to them.
Petitioners contend that, in accordance with the ruling in Lao v. Court
of Appeals,6 they should be acquitted because the preparation of
checks is the responsibility of the company accountant and all they do
is sign the checks. They claim that they rely on the word of the
accountant that there are sufficient funds in the bank to pay for the
checks.
In the Lao case, the accused, as the Court found, had merely been
made by her employer, Premiere Investment House, to countersign
checks in bank. The accused was a mere employee who did not have
anything to do with the issuance of checks for the company. She did
not know to whom the checks would be paid as the names of payees
were written only later by the head of operations. Moreover, no
notice of dishonor was given to her as required by B.P. Blg. 22 §2. It
could thus rightly be concluded that the accused issued checks to
apply to account not knowing that at the time of issuance funds were
insufficient to pay for the checks.
Petitioners in this case cannot pretend ignorance of the insufficiency
of funds. While it may be true that it was the company's accountant
who actually prepared the rubber check, the fact remains that
petitioners are the owners and officers of the company. Sec. 1 of B.P.
Blg. 22 provides that "Where the check is drawn by a corporation,
company, or entity, the person or persons who actually signed the
check in behalf of such drawer shall be liable under this Act.
In fact, petitioner Nieto testified that after the check in question was
dishonored, he instructed their company accountant to prepare a
replacement check.7 This belies petitioners' claim that they had no
hand in the preparation of checks8 and shows that petitioners were
in control of the finances of the company.
Second. The affidavit of desistance of the GARDS president deserves
no more than passing mention. The claim that this case was simply
the result of a misunderstanding between GARDS and petitioners and
that the former did not really suffer any damage from the dishonor of
the check is flimsy. After prosecuting the case below with tenacity,
complainants going so far as to file another complaint after their first
one had been dismissed, it is trifling with this Court for complainants
to now assert that the filing of their case was simply a mistake. It is
for reasons such as this the affidavit of desistance, like retractions,
are generally disfavored.9 The affidavit in this case, which was made
after petitioners' conviction, is nothing but a last-minute attempt to
save them from punishment. Even if the payee suffered no damage as
a result of the issuance of the bouncing check, the damage to the
integrity of the banking system cannot be denied. Damage to the
payee is not an element of the crime punished in B.P. Blg. 22.
Third. Petitioners pray that, in the alternative, the penalty be
modified by deleting the sentence of imprisonment and, in lieu
thereof a fine in an increased amount be imposed on them. In
support of their plea, they allege that they do not have any record of
prior conviction; that Eduardo Vaca is of advanced age (late 60s); and,
that they come from good families. Petitioners claim that "with their
family background and social standing there is no reason why they,
will refuse to pay a due and demandable debt of only P10,000.00. It is
precisely because of their founded belief that the subject obligation
has been paid that they refused to be intimidated by a criminal
charge."
The Court of Appeals dismissed these allegations as irrelevant to the
question of petitioners' guilt. We think so ourselves. However, we
believe that they can be considered in determining the appropriate
penalty to impose on petitioners.
B.P. Blg. 22, §1, par. 1 provides a penalty of "imprisonment of not less
than thirty days but not more than one (1) year or by a fine of not less
than, but not more than double, the amount of the check which fine
shall in no case esceed two hundred thousand pesos, or both such
fine and imprisonment at the discretion of the Court." Petitioners are
first-time offenders. They are Filipino entrepreneurs who presumably
contribute to the national economy. Apparently, they brought this
appeal, believing in all good faith, although mistakenly, that they had
not committed a violation of B.P. Blg. 22. Otherwise, they could
simply have accepted the judgment of the trial court and applied for
probation to evade a prison term. It would best serve the ends of
criminal justice if in fixing the penalty within the range of discretion
allowed by §1, par. 1, the same philosophy underlying the
Indeterminate Sentence Law is observed, namely, that of redeeming
valuable human material and preventing unnecessary deprivation of
personal liberty and economic usefulness with due regard to the
protection of the social order.10 In this case we believe that a fine in
an amount equal to double the amount of the check involved is an
appropriate penalty to impose on each of the petitioners.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with

the modification that the sentence of imprisonment is deleted and
petitioners are each ordered to pay a fine of P20,000.00 equivalent to
double the amount of the check.

SO ORDERED
G.R. No. 133918 September 13, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TIBOY ALBACIN, accused-appellant.
DECISION
PUNO, J.:
For the Navarro family of Lasang, Davao City, the usual burst of
firecrackers on New Year's Eve of 1993 was muted by the resounding
gunshots that snuffed out the life of Teresita Navarro and wounded
her husband, Florencio Navarro. The accused, Tiboy Albacin, was the
author of the dastardly acts.
On March 10, 1994, an information was filed charging the accused
Albacin with murder in Criminal Case No. 33,512-94, viz:
"That on or about December 31, 1993, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable Court, the
above-mentioned accused, conspiring, confederating and helping
with (sic) one John Doe, armed with a gun, with treachery and intent
to kill, wilfully (sic), unlawfully and feloniously shot Teresita G.
Navarro, thereby inflicting upon the latter gunshot wounds which
caused her instantaneous death.
Contrary to law."1
On the same day, another information was filed charging the accused
with frustrated murder in Criminal Case No. 33, 513-94, viz:
"That on or about December 31, 1993, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable Court, the
above-mentioned accused, conspiring, confederating and helping
with one John Doe, armed with a gun, with treachery and intent to
kill, wilfully (sic), unlawfully, and feloniously attacked and shot with
said gun one Florencio S. Navarro hitting his right hand and chest
through and through, which injuries would ordinarily cause the death
of the said Florencio S. Navarro, thus performing all the acts of
execution which should have produced the crime of murder as a
consequence, but nevertheless did not produce it by reason of causes
independent of his will, that is, by the timely and able medical
assistance rendered to the said Florencio S. Navarro that prevented
his death.
Contrary to law."2
The records show that on December 31, 1993, at about 9:00 p.m.,
Teresita Navarro, together with her husband, Florencio Navarro, and
their two daughters were on their way to church to attend the New
Year's Eve mass. Coming from their house, they passed through a
two-meter wide muddy path between ramie plants in Lasang
Poblacion, Davao del Norte.3 The ramie plants were thickly planted
and reached up to the shoulders of a grown man.4 Florencio walked
about twenty meters behind his daughters while Teresita was about
four meters behind him. Although it was a moonlit night, Teresita
held a torch to light her way. All of a sudden, Florencio heard a
gunshot from behind. He immediately looked back and saw his wife
lying on the ground. The torch she was holding fell but continued to
burn. With the light coming from the moon and the torch, Florencio
saw the accused Albacin approaching him, coming from where his
wife was. He recognized Albacin because he personally knew him as
his neighbor for more than twenty years.5 Then another man wearing
a big hat emerged from the ramie plants and approached Florencio
on his right side. At a distance of about half a meter at the right front
side of Florencio, Albacin pointed a gun at Florencio's forehead.
Albacin then fired his gun twice, the first shot hitting Florencio on his
right back hand and the second shot grazing the middle portion of his
chest. The other man then fired at Florencio's right waist but his pistol
jammed.6
Florencio fled from the crime scene and caught up with his daughters
and told them that their mother had been shot and was feared to be
dead. Together, they headed to the Lasang Police Substation.7 When
they got there, Florencio told the police that he was shot twice, but
did not reveal the identity of his assailant because he was not in his
right mind. He asked for help for him to be brought to the hospital.8
Florencio, along with one of his daughters, Carmela, were brought to
the Davao Medical Center.9 His other daughter went home. PO Paul
Quilisado, the desk officer at the substation, entered the report in the
police blotter. Another daughter of Florencio, Teresa Sabac, got wind
of the shooting incident and also arrived at the substation. From
there, she called up her younger brother who later arrived at the
substation and was interviewed by the policemen about the name
and age of Florencio. Teresa, along with a policeman named Rufino
Dayag, went to her father in the hospital.10 Another policeman, PO2
Rodel Estrellan, called up the Bunawan Police Station for
assistance.11 SPO1 San Nicolas Palado received the call and entered
in the blotter the shooting of Florencio and Teresita Navarro. Palado
then informed their station commander about the incident and
immediately, the commander, Inspector Ano-os, two other policemen
and a CAFGU member from the Bunawan Police Station went to the
Lasang Substation,12 and together with PO2 Estrellan proceeded to
the crime scene.13 The police team found the lifeless body of Teresita
Navarro on a private road, lying on her side with her face, neck, chest
and clothes burned. A lighted torch standing one meter from the feet
of the body clearly lighted it.14 The body was then brought to the
house of Teresita's in-laws who lived nearby.15 At about 10:00 p.m.,
the team of policemen returned to the Lasang Substation and entered
in the police blotter the identity of the victims.16 At 1:00 a.m.,
January 1, 1994, the team from Bunawan Police Station returned
there.17
Meanwhile, Florencio was treated by Dr. Alden Bagarra, a resident
surgeon at the Davao Medical Center. He sustained a non-
penetrating, grazing gunshot wound on the anterior chest and a
penetrating gunshot wound on the space between the thumb and the
index finger of his right hand. Both wounds were not serious.18 Dr.
Bagarra testified that if the wound on the right hand was left
untreated, infection would probably set in in 48 hours, and eventually
cause general infection leading to death. But he also testified that
even a small cut if left unattended could cause infection eventually
leading to death if left without medical attention.19 In the medical
certificate that Dr. Bagarra prepared, he indicated that the probable
healing time of the wounds was fifteen days barring complication.20
From the location of the wounds, Dr. Bagarra concluded that the
assailant was probably on Florencio's side at a distance of more than
two feet.21 At the hospital, the police asked Florencio about the
shooting incident. Again, he did not tell the police who the assailant
was because he was still not in his right mind.22 At about 10:00 the
following morning, Florencio was discharged from the hospital. He
then went to his father-in-law's house for the wake of his wife.23
During the wake, Florencio refused to reveal the identity of the
assailant and told Teresa that he would avenge the death of Teresita.
On January 2, 1994, however, he told Teresa that the accused Albacin
was the culprit. Teresa dissuaded her father from taking revenge and
prevailed upon him to file a case instead. On January 3, 1994,
Florencio, with Teresa, went to the police station to report that it was
the accused Albacin who killed his wife and shot him twice.24 His
report was entered by Inspector Ano-os in the police blotter. He
executed an affidavit narrating the shooting incident.25 About a week
thereafter, before his wife was buried, Florencio also reported to
Barangay Captain Git Navarro that it was the accused Albacin who
shot him twice.26 After his wife was buried, Florencio revealed to his
mother-in-law that Albacin shot his wife.27
Florencio testified that prior to the shooting incident, the family of
the accused Albacin already held a grudge against the Navarro family.
The Albacins suspected that the accused's brother was killed by the
New People's Army (NPA) upon instruction of the Navarro family
because after the killing, the NPA's headed towards the direction of
the Navarro residence. In one instance, the mother of the accused
Albacin had an altercation and exchanged hot words with the victim,
Teresita.28
Teresa corroborated Florencio's testimony. She testified that the
older brother of the accused was killed by the NPA in October 1993.
Teresa was able to read, however, a letter left by the NPA near the
body of the older Albacin which stated the offenses committed by the
accused against the NPA and that he (the accused) could not be
forgiven and should be killed by the NPA. She was told by her mother
that the family of the accused suspected their family to have given
instructions to the NPA to kill the older Albacin.29
Dr. Danila Ledesma, Medico-Legal Officer of the Davao City Health
Office, also took the witness stand. He examined the body of the
victim, Teresita Navarro, at 7:00 a.m. of January 1, 1994, but the
victim's daughter refused to have the body autopsied. His findings
show that Teresita sustained a gunshot wound at the left back portion
of her head. This was the bullet's point of entry. The point of exit was
a star-shaped wound in the upper eyelid portion. There were no
other abrasions or contusions on her body. The probable cause of
Teresita's death was the gunshot wound on her head. Dr. Ledesma
surmised that because of the location of the wounds sustained by
Teresita, the assailant was probably standing behind her slightly on
the left side. He also concluded that the gun was fired within two feet
from the victim.30
The accused Albacin had a different story to tell. He testified that he
was born in Lasang and resided there until he became a cook of the
75th Infantry Batallion Charlie Company from October 23, 1993 up to
1995, and resided in their camp in Cacao, Panabo, Davao del Norte.
During this whole period, he never returned to their house in Lasang.
On December 31, 1993, he was at the camp. He woke up at 5:00 a.m.
and cooked breakfast until 8:00 a.m. At 10:00 a.m., he started
preparing lunch. From 1:00 to 5:00 p.m., he took a rest in the sleeping
quarters. In the afternoon, he started cooking dinner at 5:00 p.m. and
finished at 8:00 p.m. He then cleaned the cooking utensils until 8:30
p.m. From 8:30 p.m. to 11:00 p.m., he joined six soldiers drinking
Tanduay at their post in the camp. He was the "gunner" (the person
pouring drink into the soldiers' glasses). From 11:00 p.m. to 12:00
p.m., a certain Pfc. Oscar Tongson and he started preparing food for
the New Year celebration. At 12:00 midnight, the soldiers partook of
the food. The accused Albacin again became the "gunner" from 12:30
a.m. to 2:00 a.m. of January 1, 1994. At 2:00 a.m., he went to bed at
the bunkhouse.31
The accused Albacin also testified that to get to Lasang from Cacao,
he has to take a jeep going to Panabo for one and a half hours. From
Panabo, he has to take another jeep going to Lasang for ten minutes.
The last trip of these jeeps is at 7:00 p.m. He also admitted that he
knew the Navarro family since he was seven years old. The Navarros
lived ten minutes away from his house, and would pass by his house
on the way to church in Lasang poblacion. He, however, denied
having any misunderstanding with them.32 When asked about his
brother who was allegedly shot by the NPA's in October 1993, he
could recall the year when he was shot, but not the month because
according to him, that was a long time ago already.33 On cross-
examination, however, he testified that he was killed on October 29,
1993.
Herman Bermoy, brother-in-law of William Albacin (brother of the
accused Albacin) testified that the accused left Lasang and resided in
the camp of the 75th infantry batallion after William was killed on
October 29, 1993. He did not come back to Lasang until he was
apprehended in the camp in November 1995 in connection with the
instant case. He visited the accused in the camp for the first time in
January 1995. Coming from his office in the Lasang market place, it
took him only fifteen minutes to get to the camp, and about 25
minutes to return to his office. The second time Bermoy visited the
accused was in February 1995. In both visits, he informed the accused
Albacin that a case was filed against him for the death of Teresita
Navarro and the wounding of Florencio Navarro. The accused was
surprised. Bermoy advised the accused Albacin to surrender to the
authorities. Albacin agreed to do so but never did. Inconsistent with
his earlier testimony that the accused was apprehended in the camp
in Cacao, Bermoy stated that the accused surrendered in Bunawan in
November 1995.34
Pfc. Danilo Buchan, a soldier at the 75th infantry batallion camp, also
took the witness stand. He came to know the accused Albacin when
the latter became a cook in their camp in Cacao, Panabo, Davao del
Norte from July or August 1993 up to 1995.35 On December 31, 1993,
he saw the accused Albacin and another civilian cook, Cesar Caseñas,
cook breakfast. The soldiers had breakfast at 7:00 a.m. Again, he saw
the accused Albacin and Caseñas preparing lunch. Later, at 4:00 p.m.,
Albacin and Caseñas prepared supper. At 5:30 p.m., the soldiers took
their dinner and finished in fifteen minutes. Shortly after 5:45 p.m., a
group of soldiers composed of Morillo, Oscar Tongson, Joe Cales,
Buchan, and another soldier instructed Albacin to buy Tanduay
"lapad" while Caseñas cleaned the kitchen. Albacin bought the liquor
at a store about fifteen to twenty meters away from the group's post
in the camp. At 7:00 p.m., the group had consumed their drink and
instructed Albacin to buy another bottle. Buchan's group consumed a
total of six "lapad" bottles that night. At 1:00 a.m. of January 1, 1994,
the group finished drinking and Albacin turned in to sleep while some
of the other soldiers took their post. The whole time they were
drinking, accused Albacin was beside Buchan acting as "gunner" of
the group. However, in his affidavit executed about two months after
the shooting of the Navarros, Buchan stated that his group's drinking
spree started at 3:00 p.m. of December 31, 1993 and ended at 10:00
that night. When confronted with his affidavit on cross-examination,
he stated that their drinking spree ended at 10:00 p.m. Buchan also
testified that Cacao is fifteen to twenty kilometers away from
Lasang.36
Oscar Tongson also took the witness stand. He met the accused in
1990 at the Panabo market. Thereafter, upon Tongson's
recommendation, the accused Albacin became a cook of the 75th
Charlie Company in Cacao from May 1993 to 1995. On December 31,
1993, he saw Albacin cooking in the camp. From 1:00 p.m. to 5:00
p.m., Albacin helped Tongson prepare the food for the New Year
celebration. From 5:00 p.m. to 7:00 p.m., Albacin joined the group of
Buchan, Murillo, Dizon, Español and Tongson on a drinking spree of
Tanduay "lapad" near the camp's kitchen. He would shuttle back and
forth from the kitchen where he was preparing food to Tongson's
group.37 From 7:00 p.m. to 10:00 p.m., the accused, along with some
soldiers, helped Tongson prepare the food. From 10:00 p.m. to 11:00
p.m., they prepared the food on the table. At 11:00 p.m., they
gathered themselves. Thereafter, at 12:00 midnight, Albacin served
the food and the soldiers ate. When they finished eating, Albacin
cleaned up the cooking utensils.38
On cross-examination, however, Tongson narrated that on December
31, 1993, he saw the accused sitting at the post of the camp. At 4:00
p.m., he saw the accused in the kitchen of the camp. The latter was
still in the kitchen at 5:00 p.m. A group of soldiers including Albacin
and he started drinking Tanduay in the camp at 6:00 p.m. They
consumed six Tanduay "lapad" bottles until 10:00 p.m. Thereafter,
they prepared food from 10:00 p.m. to 12:00 midnight in the kitchen.
At 12:00 midnight up to 1:00 a.m., they ate. Afterwards, they
resumed drinking Tanduay "lapad" until 2:00 a.m. of January 1, 1994.
Tongson went to bed at 2:00 a.m. That morning, he saw the accused
cooking at 7:00 a.m.39
On rebuttal, Gilbert Navarro, Barangay Captain of Lasang, took the
witness stand. He testified that Lasang is the last barangay of Davao
City. Its boundary is Panabo. Between Lasang and Cacao, a barangay
in Panabo, there are two barangays. From Lasang, Cacao can be
reached via the national highway. Alternatively, a barangay road
where jeeps, trucks, and motorcycles pass may be taken. The distance
between these two barangays via the barangay road is about eight
kilometers.40
Florencio Navarro was recalled on rebuttal. He testified that when he
would buy pigs, he would always traverse by foot the distance
between Lasang poblacion to the 75th infantry batallion camp in
Cacao. Walking at a slow pace, it would take him one hour to cover
the distance of only six kilometers because the camp is at the edge of
Barangay Katipunan which is only five kilometers away from Lasang.
Barangay Katipunan is adjacent to Barangay Cacao. The distance of
eight kilometers from Lasang to Cacao, on the other hand, refers to
the center of Cacao. He reiterated that the accused Albacin shot both
his wife and himself (Florencio).41
The trial court sustained the prosecution's version of the shooting
incident and ruled, viz:
"WHEREFORE, finding the accused guilty beyond reasonable doubt of
the crime charged in the two informations, without any modifying
circumstances attendant:
In Criminal Case No. 33,512-94 for Murder, he is hereby sentenced to
Reclusion Perpetua, and to pay the cost; to indemnify the offended
party the sum of P50,000.00 as compensatory damages for the death
of Teresita Navarro and P29,000.00 for actual damages for burial
expenses.
In Criminal Case No. 33,513-94 for Frustrated Murder, he is hereby
sentenced to an indeterminate penalty of seven (7) years, one (1) day
of Prision Correccional Maximum to Prision Mayor Medium as the
minimum range to thirteen (13) years and one (1) day of Prision
Mayor Maximum to Reclusion Temporal medium as the maximum
range and to pay the cost."42
Hence this appeal by the accused Albacin with the following
assignment of errors:
I.
THE COURT A QUO ERRED IN CONVICTING THE ACCUSED,
NOTWITHSTANDING THE FAILURE OF THE PROSECUTION TO PROVE
HIS GUILT BEYOND REASONABLE DOUBT.
II.
THE COURT A QUO ERRED IN GIVING CREDENCE TO THE
IDENTIFICATION MADE BY FLORENCIO S. NAVARRO.
The appeal is partly meritorious in both cases of murder and
frustrated murder.
We first deal with Criminal Case No. 33,512-94 for murder. The
defense faults the trial court for taking Florencio Navarro's word that
the accused Albacin was the perpetrator of the crime considering that
it took him three days before he revealed the assailant's identity. In
the accused's Brief, he punctures Florencio's testimony, viz:
". . . the identification made by Florencio was clearly an afterthought
on his part. . . It is altogether possible that Florencio never really saw
who his assailant was but because of his desire to take revenge upon
his assailant, he tried to picture who he was in his mind."43 (emphasis
supplied)
We cannot subscribe to the accused's contention anchored in the
realm of possibilities. In a criminal case, moral certainty and not
merely possibilities determines the guilt or innocence of the accused.
The positive identification made by Florencio lends such degree of
certainty enough for this Court to conclude that the accused Albacin
was responsible for the untimely demise of Teresita Navarro. Upon
hearing the gunshot which snuffed out the life of his wife, Florencio
immediately looked back and saw the accused Albacin coming from
his fallen wife and approaching him. Albacin then pointed a gun to
Florencio's head.
The accused was the only person Florencio saw with his fallen wife
immediately after he heard a gunshot from where his wife was. With
the light coming from the moon and Teresita's torch, Florencio was
able to recognize the accused Albacin who has been his neighbor for
more than twenty years. He testified as follows:
"Q: While walking in that position, your daughter ahead of you 20
meters and your wife 4 meters (sic), you said you heard a gunshot?
A: Yes, sir, I heard a gunshot.
Q: What was your reaction when you heard that gunshot?
A: I looked at my (sic) back and saw my wife already fell down.
Q: What else did you see aside from see (sic) your wife already fell
down?
A: What I saw was the same person (sic) and he approached me.
Q: How many persons did you see aside from your wife?
A: Only one. Later on, there was another one who approached me.
Q: You said a person, when you turned your back and saw your wife
fell down you saw a person was approaching you. Who is that person
who approached you?
A. I do not know, sir, he was wearing a hat.
Q: Earlier you pointed to the accused. What did the accused do after
your wife fell?
A: That is why after that, he approached me and pointed a gun at me.
COURT:
Q: When you saw the accused you saw the accused approaching you
where did he come from?
A: From the place where my wife fell down."44 (emphasis supplied)
Dr. Ledesma, the medico-legal expert who examined Teresita's body,
testified that Teresita probably died of the gunshot wound she
sustained on her head. He also concluded that she was shot from
within two feet. Albacin carried a gun with which he shot Florencio.
These circumstances lead us to no other conclusion than that the
accused Albacin fatally shot Teresita. Direct evidence, i.e., an
eyewitness account of the commission of the crime, is not always
necessary to identify the accused as the perpetrator of the crime. A
witness may not have actually seen the very act of commission of a
crime, but he may nevertheless identify the accused as the assailant
as when the latter is the person or one of the persons last seen with
the victim immediately before and right after the commission of the
crime.45 sustain the conviction of an accused through circumstantial
evidence, the rules on evidence and jurisprudence require that: (1)
there must be more than one circumstance; (2) the inference must be
based on proven facts; and (3) the combination of all circumstances
produces a conviction beyond reasonable doubt of the guilt of the
accused.46
Contrary to accused Albacin's allegation, the three-day delay in
Florencio's identification of the accused Albacin as the assailant does
not erode his credibility. We have previously ruled that delay in
revealing the author of the crime does not impair the credibility of
witnesses, more so if such delay is satisfactorily explained.47
Florencio admitted that initially, he was not able to reveal the identity
of the assailant because he was not in his right mind immediately
after the shooting incident. A few days after the dastardly act was
committed, he refused to reveal the identity of the perpetrator of the
crimes because he wanted to take revenge against the accused
Albacin. It was only upon insistence of his daughter Teresa that he
was prevailed upon to report to the authorities the identity of the
assailant and accordingly file a case against him.
The accused Albacin has not succeeded in destroying the credibility of
Florencio. It is worth noting that the trial court found Florencio's
testimony "sincere, clear, convincing, and straightforward."48 Well-
settled is the rule that a witness who testifies in a categorical,
straightforward, spontaneous and frank manner and remains
consistent is a credible witness.49 The trial court also ruled that the
"(e)vidence is completely wanting of any motive or reason for the
complainant Florencio Navarro to falsely testify against the accused
for crimes as heinous as that charged." Well-entrenched in our
jurisprudence is the rule that where there is no evidence that the
principal witnesses of the prosecution were actuated by ill-motive,
their testimony is entitled to full faith and credit.50
On the other hand, in a bid to exculpate himself, the accused
interposed the defense of denial and alibi. These defenses prove
futile when juxtaposed with Florencio's positive identification of
accused Albacin as Teresita's and his assailant. Considered as
inherently weak defenses, alibi and denial must be buttressed by
other convincing evidence of non-culpability to merit credibility.51 It
all the more fails in light of the positive identification made by a
credible witness who has no ill-motive to testify against the accused
as in the case at bar.52
Moreover, for the defense of alibi to prosper, it must be proved that
it was physically impossible for the accused to have been at the scene
of the crime at the approximate time of its commission.53 The
accused has failed to adduce such evidence. As borne out by the
testimony of defense witness Bermoy, the camp in Cacao where
Albacin allegedly spent the New Year's Eve was only about fifteen to
twenty-five minutes away from Lasang by jeep. The prosecution
witnesses also stated that the distance between Lasang and the camp
is about five to eight kilometers. Thus, even if the accused Albacin
was seen at the camp on New Year's Eve, it was not physically
impossible for him to have gone to Lasang at the time the crimes
were committed and gone back to the camp in Cacao.
We disagree with the trial court's finding, however, that treachery
attended the killing of Teresita.1âwphi1 Treachery exists when the
following facts are shown: (1) the employment of means of execution
that gives the person attacked no opportunity to defend himself or to
retaliate; and (2) the deliberate and conscious adoption of the means
of execution.54 Moreover, this Court has previously held that where
treachery is alleged, the manner of attack must be proven. Absent
any particulars on the manner in which the aggression commenced or
how the act which resulted in the victim's death unfolded, treachery
cannot be appreciated.55 Florencio testified that Teresita Navarro
walked four meters behind him. Florencio did not therefore witness
the manner his wife was attacked by accused Albacin. He looked back
to his wife only after he heard the fatal gunshot and saw Teresita
already fallen. There is a dearth of evidence whether Teresita had no
opportunity to defend herself or to retaliate, nor on whether the
means of execution was consciously adopted even assuming
arguendo that the attack was sudden.56
In light of the absence of any circumstance to qualify the accused
Albacin's killing of Teresita Navarro to murder, we find him guilty
beyond reasonable doubt of homicide. Accordingly, the penalty
imposed upon the accused Albacin should be lowered to reclusion
temporal in its medium period, there being no aggravating or
mitigating circumstance. Applying the Indeterminate Sentence Law,
the minimum term is anywhere within the range of prision mayor, or
from six (6) years and one (1) day to twelve (12) years, and the
maximum within the range of reclusion temporal in its medium
period, or from fourteen (14) years, eight (8) months and one (1) day
to seventeen (17) years and four (4) months.57
We now come to the charge of frustrated murder in Criminal Case No.
33,513-94. The trial court convicted accused Albacin of frustrated
murder upon the person of Florencio Navarro based on Florencio's
identification of Albacin as his assailant and the testimony of Dr.
Alden Bagarra, resident surgeon of Davao Medical Center, who
treated Florencio's gunshot wounds. Florencio testified that after
hearing a gunshot from behind, he looked back. With the light coming
from the moon and Teresita's torch, he saw the accused Albacin
walking towards him. Albacin then pointed a gun at Florencio's
forehead and at a distance of about half a meter from him, Albacin
fired a penetrating shot into Florencio's right hand and a grazing shot
on his chest. Florencio's testimony was corroborated by Dr. Bagarra
who testified that Florencio sustained a grazing, non-penetrating
gunshot wound on the chest and a penetrating wound on the right
hand, on the space between the index finger and the thumb. Of the
two, the latter is a more serious wound which if left untreated,
infection would probably set in in 48 hours, and eventually cause
general infection leading to death.
Accused Albacin's use of a gun in assaulting Florencio on the same
occasion that he shot and killed Teresita shows his intent to kill
Florencio. In Araneta, Jr. v. Court of Appeals58 where the accused
inflicted only a slight gunshot wound on the victim, we ruled that,
"(t)he use of a gun fired at another certainly leads to no other
conclusion than that there is intent to kill." Nevertheless, we cannot
sustain the trial court's conviction of the accused Albacin of frustrated
murder.
Dr. Bagarra's statements regarding the nature of the wounds inflicted
upon Florencio should be taken in the proper context. Indeed, Dr.
Bagarra declared that in comparison to the gunshot wound sustained
by Florencio on his chest, the wound on his right hand was more
serious. But he also testified that both wounds on Florencio's chest
and hand were not serious.59 While Dr. Bagarra testified that if the
wound on Florencio's right hand is left untreated, infection would
probably set in in 48 hours and eventually cause general infection
leading to death, he also stated that even a small non-fatal cut if left
unattended could cause infection eventually leading to death if left
without medical attention. The possible infection eventually leading
to death cannot therefore be the basis for concluding that the
gunshot wound on Florencio's right hand was of such nature that it
would have been fatal were it not for timely medical intervention.
The doctrinal rule is that where the wound inflicted on the victim is
not life threatening, the accused not having performed all the acts of
execution that would have brought about death, the crime
committed is only attempted murder.60 In the instant case, however,
there being no circumstance to qualify the assault upon Florencio to
attempted murder, the crime committed with respect to Criminal
Case No. 33,513-94 is attempted homicide. Art. 249 of the Revised
Penal Code provides the penalty of reclusion temporal for the crime
of homicide. Under Art. 51 of the Revised Penal Code, the penalty for
an attempted crime is two degrees lower than that prescribed by law.
Attempted homicide is thus punishable by prision correccional.
Applying the Indeterminate Sentence Law, the minimum penalty to
be meted out on the accused Albacin should be anywhere within the
range of one (1) month and one (1) day to six (6) months of arresto
mayor, and the maximum should be within the range of six (6)
months and one (1) day to six (6) years of prision correccional.
Considering that no aggravating or mitigating circumstance attended
the commission of the crime, the accused Albacin shall be sentenced
to an indeterminate prison term of two (2) months and one (1) day of
arresto mayor as minimum, to two (2) years, four (4) months and one
(1) day of prision correccional medium as maximum.61
Anent the damages awarded for the death of Teresita Navarro, we
find that the award of ₱50,000.00 is in accord with settled
jurisprudence. The appellee cites People v. Esteban Victor62 in
claiming that the award should be raised to ₱75,000.00. This
contention is without merit. As we held in People v. Jose,63 the Victor
case increased the award of indemnity in rape cases that are
effectively qualified by any of the circumstances which calls for the
death penalty and has no application to a prosecution for murder or,
as in the instant case, homicide.64 The amount of ₱29,000.00 cannot
be awarded as actual damages as only ₱10,130.00 finds support from
the evidence on record.

IN VIEW WHEREOF, the impugned decision is MODIFIED. In Criminal

Case No. 33,512-94, the accused-appellant is found guilty of Homicide
and sentenced to an indeterminate sentence of eight (8) years and
one (1) day of prision mayor medium as minimum, and fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal medium
as maximum, and to pay ₱50,000.00 for civil indemnity and
₱10,000.00 for funeral and other related expenses. In Criminal Case
No. 33, 513-94, the accused-appellant is found guilty of Attempted
Homicide and sentenced to suffer imprisonment of arresto mayor in
its medium period or from two (2) months and one (1) day as
minimum, and two (2) years, four(4) months and one (1) day of
prision correccional as maximum, and to pay ₱130.00 for medical
expenses and to pay the costs.

SO ORDERED.