FIRST DIVISION That sometime in

  December 1999, in the

PEOPLE OF THE PHILIPPINES, G.R. City of Manila, Philippines,
No. 177752 [appellant] by means of
Appellant, force and intimidation, did
P then and there willfully,
r unlawfully and knowingly
e commit sexual abuse and
s lascivious conduct against
e [AAA], a minor, 13 years of
n age, by then and there
t kissing her breast and
: whole body, lying on top of
  her and inserting his penis
PUNO, C.J., Chairperson, into her vagina, thus
CARPIO, succeeded in having
- v e r s u s - CORONA, carnal knowledge of her,
LEONARDO-DE CASTRO and against her will and
BRION, JJ.* consent thereafter
  threatening to kill her
ROBERTO ABAY y TRINIDAD, should she report the
Appellee. Promulgated: incident, thereby gravely
Febru endangering her survival
ary 24, and normal growth and
2009 development, to the
  damage and prejudice of
x------------------------------- [AAA].
-------------------x CONTRARY TO LAW.
   
 
DECISION
  Appellant pleaded not guilty during
CORONA, J.:
  arraignment.
   

On March 8, 2000, appellant Roberto During trial, the prosecution presented

Abay y Trinidad was charged with rape AAA, her mother BBB and expert

in relation to Section 5(b), Article III of witness Dr. Stella Guerrero-Manalo of

RA 7610 in the Regional Trial Court the Child Protection Unit of the

(RTC) of Manila, Branch 4[1] under the Philippine General Hospital as its

following Information: witnesses.

 
AAA testified that appellant, her mothers AAAs physical examination indicating

live-in partner, had been sexually prior and recent penetration injuries.

abusing her since she was seven years The defense, on the other hand,

old. Whenever her mother was working asserted the incredibility of the charge

or was asleep in the evening, appellant against appellant. Appellants sister,

would threaten her with a bladed Nenita Abay, and appellants daughter,

instrument[2] and force her to undress Rizza, testified that if appellant had

and engage in sexual intercourse with really been sexually abusing AAA, the

him. family would have noticed. The rooms of

 
their house were divided only by -inch
BBB corroborated AAAs
thick plywood walls that did not even
testimony. She testified that she knew
reach the ceiling. Thus, they should
about appellants dastardly acts.
have heard AAAs cries. Moreover,
However, because he would beat her up
Nenita and Rizza claimed that they often
and accuse AAA of lying whenever she
caught AAA and her boyfriend in
confronted him, she kept her silence.
intimate situations.
Thus, when she caught appellant in the  

act of molesting her daughter on According to the RTC, one

December 25, 1999, she immediately wrongly accused of a crime will

proceeded to the police station and staunchly defend his innocence. Here,

reported the incident. appellant kept his silence which was

According to Dr.
Manalo, AAA confided to her that
appellant had been sexually abusing her
for six years. This was confirmed by
contrary to human nature. On the other
Guerrero-
hand, AAA straightforwardly narrated
her horrifying experience at the hands of
appellant. The RTC concluded that
appellant had indeed sexually abused

AAA. A young girl would not have

exposed herself to humiliation and reduced the penalty imposed

public scandal unless she was impelled to reclusion perpetua. Furthermore, in

by a strong desire to seek justice.[3] addition to the civil indemnity ex

 
delicto (which is mandatory once the
In a decision dated November 25,
fact of rape is proved)[9] granted by the
[4]
2003,  the RTC found appellant guilty
RTC, it awarded P50,000 as moral
beyond reasonable doubt of the crime of
damages and P25,000 as exemplary
rape:
WHEREFORE, damages. Moral damages are
finding [appellant] Roberto
automatically granted in rape cases
Abay y Trinidad guilty
beyond reasonable doubt without need of proof other than the
of committing the crime of
rape under Article 335 of commission of the crime[10] while
the Revised Penal Code in
relation to Section 5, exemplary damages are awarded by
Article III of RA 7610 way of example and in order to protect
against [AAA], the Court
imposes upon him the young girls from sexual abuse and
death penalty,[5] and to pay
private complainant moral exploitation.[11]
damages in the amount of  
Fifty Thousand (P50,000)
Pesos. We affirm the decision of the CA
  with modifications.
SO ORDERED.  
  Under Section 5(b), Article III of
The Court of Appeals (CA), on RA 7610[12] in relation to RA 8353,[13] if
intermediate appellate review,[6] affirmed the victim of sexual abuse[14] is below 12
the findings of the RTC but modified the years of age, the offender should not be
penalty and award of damages. prosecuted for sexual abuse but for
 
statutory rape under Article 266-A(1)(d)
In view of the enactment of RA
of the Revised Penal Code[15] and
8353[7] and RA 9346,[8] the CA found
penalized with reclusion perpetua.[16] On
appellant guilty only of simple rape and
the other hand, if the victim is 12 years 7610 or rape under Article 266-A

or older, the offender should be charged (except paragraph 1[d]) of the Revised

with either sexual abuse[17] under Penal Code. While the Information may

Section 5(b) of RA 7610 or rape under have alleged the elements of both

Article 266-A (except paragraph 1[d]) of crimes, the prosecutions evidence only

the Revised Penal Code. However, the established that appellant sexually

offender cannot be accused of both violated the person of AAA through force

crimes[18] for the same act because his and intimidation[22] by threatening her

right against double jeopardy will be with a bladed instrument and forcing her

prejudiced. A person cannot be to submit to his bestial designs. Thus,

subjected twice to criminal liability for a rape was established.[23]

 
single criminal act.[19] Likewise, rape
Indeed, the records are replete
cannot be complexed with a violation of
with evidence establishing that appellant
Section 5(b) of RA 7610. Under Section
forced AAA to engage in sexual
48 of the Revised Penal Code (on
intercourse with him on December 25,
complex crimes),[20] a felony under the
1999. Appellant is therefore found guilty
Revised Penal Code (such as rape)
of rape under Article 266-A(1)(a) of the
cannot be complexed with an offense
Revised Penal Code and sentenced
penalized by a special law.[21]
  to reclusion perpetua. Furthermore, to

In this case, the victim was more conform with existing jurisprudence, he

than 12 years old when the crime was is ordered to pay AAA P75,000 as civil

committed against her. The Information indemnity ex-delicto[24] and P75,000 as

against appellant stated that AAA was moral damages.[25]

 
13 years old at the time of the incident.
WHEREFORE, the January 18, 2007
Therefore, appellant may be prosecuted
decision of the Court of Appeals in CA-
either for violation of Section 5(b) of RA
G.R. CR-H.C. No. 01365 is

hereby AFFIRMED WITH

MODIFICATION. Appellant Roberto

Abay y Trinidad is hereby

found GUIILTY of simple rape and is

sentenced to suffer the penalty Republic of the Philippines

SUPREME COURT
of reclusion perpetua. He is further
Manila
ordered to pay AAA P75,000 as civil
SECOND DIVISION
indemnity ex-delicto, P75,000 as moral
G.R. No. 160110               June 18,
damages and P25,000 as exemplary 2014
damages.
  MARIANO C. MENDOZA and ELVIRA
LIM, Petitioners, 
Costs against appellant. vs.
  SPOUSES LEONORA J. GOMEZ and
GABRIEL V. GOMEZ, Respondents.
SO ORDERED.
DECISION

PEREZ, J.:

Assailed in the present appeal by

certiorari is the Decision1 dated 29
September 2003 of the Special Fourth
Division of the Court of Appeals (CA) in
CA-G.R. CV No. 71877, which affirmed
with modification the Decision2 dated 31
January 2001 of the Regional Trial Court
(RTC), Branch 172, Valenzuela City in
Civil Case No. 5352-V-97, and which
effectively allowed the award of actual,
moral, and exemplary damages, as well
as attorney's fees and costs of the suit
in favor of respondent Spouses Leonora
and Gabriel Gomez (respondents).

Antecedent Facts
On 7 March 1997, an Isuzu Elf truck
(Isuzu truck) with plate number UAW
582,3 owned by respondent Leonora J.
Gomez (Leonora)4 and driven by
Antenojenes Perez (Perez),5 was hit by
a Mayamy Transportation bus (Mayamy
bus) with temporary plate number 1376-
1280,6 registered under the name of
petitioner Elvira Lim (Lim)7 and driven by
petitioner Mariano C. Mendoza
8
(Mendoza).
Owing to the incident, an Information for
reckless imprudence resulting in
damage to property and multiple
physical injuries was filed against
Mendoza.9 Mendoza, however, eluded
arrest, thus, respondents filed a
separate complaint for damages against
Mendoza and Lim, seeking actual
damages, compensation for lost income,
moral damages, exemplary damages,
attorney’s fees and costs of the
suit.10 This was docketed as Civil Case
No. 5352-V-97.
According to PO1 Melchor F. Rosales
(PO1 Rosales), investigating officer of
the case, at around 5:30 a.m., the Isuzu
truck, coming from Katipunan Road and
heading towards E. Rodriguez, Sr.
Avenue, was travelling along the
downward portion of Boni Serrano
Avenue when, upon reaching the corner
of Riviera Street, fronting St. Ignatius
Village, its left front portion was hit by
the Mayamy bus.11 According to PO1
Rosales, the Mayamy bus, while
traversing the opposite lane, intruded on
the lane occupied by the Isuzu truck.12
PO1 Rosales also reported that
Mendoza tried to escape by speeding
away, but he was apprehended in
Katipunan Road corner C. P. Garcia
Avenue by one Traffic Enforcer Galante
and a security guard of St. Ignatius
Village.13
As a result of the incident, Perez,as well
as the helpers on board the Isuzu truck,
namely Melchor V. Anla (Anla), Romeo
J. Banca (Banca), and Jimmy Repisada
(Repisada), sustained injuries
necessitating medical treatment
amounting to ₱11,267.35,which amount
was shouldered by respondents.
Moreover, the Isuzu truck sustained
extensive damages on its cowl, chassis,
lights and steering wheel, amounting to
₱142,757.40.14
Additionally, respondents averred that
the mishap deprived them of a daily
income of ₱1,000.00. Engaged in the
business of buying plastic scraps and
delivering them to recycling plants,
respondents claimed that the Isuzu truck
was vital in the furtherance of their
business.
For their part, petitioners capitalized on
the issue of ownership of the bus in
question. Respondents argued that
although the registered owner was Lim,
the actual owner of the bus was SPO1
Cirilo Enriquez (Enriquez), who had the
bus attached with Mayamy
Transportation Company (Mayamy
Transport) under the so-called "kabit
system." Respondents then impleaded
both Lim and Enriquez.
Petitioners, on the other hand,
presented Teresita Gutierrez
(Gutierrez), whose testimony was
offered to prove that Mayamy Bus or
Mayamy Transport is a business name
registered under her name, and that
such business is a sole proprietorship.
Such was presented by petitioners to
rebut the allegation of respondents that
Mayamy Transport is a income of the [respondents] when
15
corporation;  and to show, moreover, the incident transpired up to the
that although Gutierrez is the sole time the damaged Isuzu truck
proprietor of Mayamy Transport, she was repaired;
was not impleaded by respondents in
the case at bar.16 3. Ordering the [petitioners]
except Enriquez to pay
After weighing the evidence, the RTC [respondents], jointly and
found Mendoza liable for direct personal severally, the amount of
negligence under Article 2176 of the ₱100,000.00 as moral damages,
Civil Code, and it also found Lim plus a separate amount of
vicariously liable under Article 2180 of ₱50,000.00 as exemplary
the same Code. damages;

As regards Lim, the RTC relied on the 4. Ordering the [petitioners]

Certificate of Registration issued by the except Enriquez to pay
Land Transportation Office on 9 [respondents], jointly and
December 199617 in concluding that she severally, the amount of
is the registered owner of the bus in ₱50,000.00 as attorney’s fees; 5.
question. Although actually owned by Ordering the [petitioners] except
Enriquez, following the established Enriquez to pay [respondents] the
principle in transportation law, Lim, as costs of suit.18
the registered owner, is the one who can
be held liable. Displeased, petitioners appealed to the
CA, which appeal was docketed as CA-
Thus, the RTC disposed of the case as G.R. CV No. 71877. After evaluating the
follows: damages awarded by the RTC, such
were affirmed by the CA with the
WHEREFORE, judgment is hereby exception of the award of unrealized
rendered in favor of the [respondents] income which the CA ordered deleted,
and against the [petitioners]: viz:

1. Ordering the [petitioners] WHEREFORE, premises considered,

except Enriquez to pay the appeal is PARTLY GRANTED. The
[respondents], jointly and judgment of the Regional Trial Court of
severally, the costs of repair of Valenzuela City, Branch 172 dated
the damaged vehicle in the January 31, 2001, is MODIFIED, in that
amount of ₱142,757.40; the award of ₱1,000.00 per day from
March 1997 up to November 1997
2. Ordering the defendants representing unrealized income is
except Enriquez to pay DELETED. The award of ₱142,757.40
[respondents], jointly and for the cost of repair of the damaged
severally, the amount of vehicle, the award of ₱100,000.00 as
₱1,000.00 per day from March 7, moral damages, the award of
1997 up to November 1997 ₱50,000.00 as exemplary damages, the
representing the unrealized award of ₱50,000.00 as attorney’s fees
and the costs of the suit are hereby
MAINTAINED.19
The Present Petition
Unsatisfied with the CA ruling,
petitioners filed an appeal by certiorari
before the Court, raising the following
issues:20
1. The court a quo has decided
questions of substance in a way
not in accord with law or with the
applicable decisions of the
Supreme Court when it awarded:
a. Moral damages in spite
of the fact that the
[respondents’] cause of
action is clearly based on
quasi-delict and
[respondents] did not
sustain physical injuries to
be entitled thereto
pursuant to Article 2219
(2) of the New Civil Code
and pertinent decisions of
the Supreme Court to that
effect. The court a quo
erroneously concluded that
the driver acted in bad
faith and erroneously
applied the provision of
Article 21 of the same
code to justify the award
for bad faith is not
consistent with quasi-delict
which is founded on fault
or negligence.
b. Exemplary damages in
spite of the fact that there
is no finding that the
vehicular accident was due
to petitioner-driver’s gross
negligence to be entitled
thereto pursuant to Article
2231 of the New Civil
Code and pertinent
decisions of the Supreme
Court to that effect. The
factual basis of the court a
quo that "the act of the
driver of the bus in
attempting to escape after
causing the accident in
wanton disregard of the
consequences of his
negligent act is such gross
negligence that justifies an
award of exemplary
damages" is an act after
the fact which is not within
the contemplation of
Article 2231 of the New
Civil Code.
c. Attorney’s fees in spite
of the fact that the assailed
decisions of the trial court
and the court a quo are
bereft with jurisdictions for
the award of attorney’s
fees pursuant to the
pertinent decisions of the
Supreme Court on the
matter and provision
Article 2208 of the New
Civil Code. The court a
quo erroneously applied
the decision of the
Supreme Court in Bañas,
Jr. vs. Court of Appeals,
325 SCRA 259.
The Court’s Ruling
The petition is partially meritorious.
Respondents anchor their claim for
damages on Mendoza’s negligence,
banking on Article 2176 of the Civil
Code, to wit:
Whoever by act or omission causes
damage to another, there being fault or
negligence, is obliged to pay for the
damage done. Such fault or negligence,
if there is no pre-existing contractual
relation between the parties, is called a
quasi-delict and is governed by the
provisions of this Chapter.
In impleading Lim, on the other hand,
respondents invoke the latter’s vicarious
liability as espoused in Article 2180 of
the same Code:
The obligation imposed by Article 2176
is demandable not only for one’s own
acts or omissions, but also for those of
persons for whom one is responsible.
xxxx
Employers shall be liable for the
damages caused by their employees
and household helpers acting within the
scope of their assigned tasks, even
though the former are not engaged in
any business of industry.
The first question to address, then, is
whether or not Mendoza’s negligence
was duly proven. Negligence is defined
as the failure to observe for the
protection of the interests of another
person, that degree of care, precaution
and vigilance which the circumstances
justly demand, whereby such other
person suffers injury.21
As found by the RTC, and affirmed by
the CA, Mendoza was negligent in
driving the subject Mayamy bus, as
demonstrated by the fact that, at the
time of the collision, the bus intruded on
the lane intended for the Isuzu truck.
Having encroached on the opposite
lane, Mendoza was clearly in violation of
traffic laws. Article2185 of the Civil Code
provides that unless there is proof to the
contrary, it is presumed that a person
driving a motor vehicle has been
negligent if at the time of the mishap, he
was violating any traffic regulation. In
the case at bar, Mendoza’s violation of
traffic laws was the proximate cause of
the harm.
Proximate cause is defined as that
cause, which, in natural and continuous
sequence, unbroken by any efficient
intervening cause, produces the injury,
and without which the result would not
have occurred. And more
comprehensively, the proximate legal
cause is that acting first and producing
the injury, either immediately or by
setting other events in motion, all
constituting a natural and continuous
chain of events, each having a close
causal connection with its immediate
predecessor, the final event in the chain
immediately effecting the injury as a
natural and probable result of the cause
which first acted, under such
circumstances that the person
responsible for the first event should, as
an ordinary prudent and intelligent
person, have reasonable ground to
expect at the moment of his act or
default that an injury to some person
might probably result therefrom.22
The evidence on record shows that
before the collision, the Isuzu truck was
in its rightful lane, and was even at a
stop, having been flagged down by a
security guard of St. Ignatius
23
Village.  The mishap occurred when the
Mayamy bus, travelling at a fast speed
as shown by the impact of the collision,
and going in the opposite direction as
that of the Isuzu truck, encroached on
the lane rightfully occupied by said Isuzu
truck, and caused the latter to spin,
injuring Perez, Anla, Banca, and
Repisada, and considerably damaging
the Isuzu truck.
Having settled the fact of Mendoza’s
negligence, then, the next question that
confronts us is who may beheld liable.
According to Manresa, liability for
personal acts and omissions is founded
on that indisputable principle of justice
recognized by all legislations that when
a person by his act or omission causes
damage or prejudice to another, a
juridical relation is created by virtue of
which the injured person acquires a right
to be indemnified and the person
causing the damage is charged with the
corresponding duty of repairing the
damage. The reason for this is found in
the obvious truth that man should
subordinate his acts to the precepts of
prudence and if he fails to observe them
and causes damage to another, he must
repair the damage.24 His negligence
having caused the damage, Mendoza is
certainly liable to repair said damage.
Additionally, Mendoza’s employer may
also be held liable under the doctrine of
vicarious liability or imputed negligence.
Under such doctrine, a person who has
not committed the act or omission which
caused damage or injury to another may
nevertheless be held civilly liable to the
latter either directly or subsidiarily under
certain circumstances.25 In our
jurisdiction, vicarious liability or imputed
negligence is embodied in Article 2180
of the Civil Code and the basis for
damages in the action under said article
is the direct and primary negligence of
the employer in the selection or
supervision, or both, of his employee.26
In the case at bar, who is deemed as
Mendoza’s employer? Is it Enriquez, the
actual owner of the bus or Lim, the
registered owner of the bus?
In Filcar Transport Services v.
Espinas,27 we held that the registered
owner is deemed the employer of the
negligent driver, and is thus vicariously
liable under Article 2176, in relation to
Article 2180, of the Civil Code. Citing
Equitable Leasing Corporation v.
Suyom,28 the Court ruled that in so far
as third persons are concerned, the
registered owner of the motor vehicle is
the employer of the negligent driver, and
the actual employer is considered
merely as an agent of such owner.
Thus, whether there is an employer-
employee relationship between the
registered owner and the driver is
irrelevant in determining the liability of
the registered owner who the law holds
primarily and directly responsible for any
accident, injury or death caused by the
operation of the vehicle in the streets
and highways.29
As early as Erezo v. Jepte,30 the Court,
speaking through Justice Alejo Labrador
summarized the justification for holding
the registered owner directly liable, to
wit:
x x x The main aim of motor vehicle
registration is to identify the owner so
that if any accident happens, or that any
damage or injury is caused by the
vehicles on the public highways,
responsibility therefore can be fixed on a
definite individual, the registered owner.
Instances are numerous where vehicle
running on public highways caused
accidents or injuries to pedestrians or
other vehicles without positive
identification of the owner or drivers, or
with very scant means of identification. It
is to forestall these circumstances, so
inconvenient or prejudicial to the public,
that the motor vehicle registration is
primarily ordained, in the interest of the
determination of persons responsible for
damages or injuries caused on public
highways.
"‘One of the principal purposes of motor
vehicles legislation is identification of the
vehicle and of the operator, in case of
accident; and another is that the
knowledge that means of detection are
always available may act as a deterrent
from lax observance of the law and of
the rules of conservative and safe
operation. Whatever purpose there may
be in these statutes, it is subordinate at
the last to the primary purpose of
rendering it certain that the violator of
the law or of the rules of safety shall not
escape because of lack of means to
discover him." The purpose of the
statute is thwarted, and the displayed
number becomes a "snare and
delusion," if courts will entertain such
defenses as that put forward by appellee
in this case. No responsible person or
corporation could be held liable for the
most outrageous acts of negligence, if
they should be allowed to place a
"middleman" between them and the
public, and escape liability by the
manner in which they recompense their
servants.31
Generally, when an injury is caused by
the negligence of a servant or
employee, there instantly arises a
presumption of law that there was
negligence on the part of the master or
employer either in the selection of the
servant or employee (culpa in eligiendo)
or in the supervision over him after the
selection (culpa vigilando), or both. The
presumption is juris tantum and not juris
et de jure; consequently, it may be
rebutted. Accordingly, the general rule is
that if the employer shows to the
satisfaction of the court that in the
selection and supervision of his
employee he has exercised the care and
diligence of a good father of a family, the
presumption is overcome and he is
relieved of liability.32 However, with the
enactment of the motor vehicle
registration law, the defenses available
under Article 2180 of the Civil Code -
that the employee acts beyond the
scope of his assigned task or that it
exercised the due diligence of a good
father of a family to prevent damage –
are no longer available to the registered
owner of the motor vehicle, because the
motor vehicle registration law, to a
certain extent, modified Article 2180.33
As such, there can be no other
conclusion but to hold Lim vicariously
liable with Mendoza.
This does not mean, however, that Lim
is left without any recourse against
Enriquez and Mendoza. Under the civil
law principle of unjust enrichment, the
registered owner of the motor vehicle
has a right to be indemnified by the
actual employer of the driver; and under
Article 2181 of the Civil Code, whoever
pays for the damage caused by his
dependents or employees may recover
from the latter what he has paid or
delivered in satisfaction of the claim.
Having identified the persons liable, our
next question is what may be awarded.
Actual or Compensatory Damages.
Actual or compensatory damages are
those awarded in satisfaction of, or in
recompense for, loss or injury sustained.
They simply make good or replace the
loss caused by the wrong.34
Article 2202 of the Civil Code provides
that in crimes and quasi delicts, the
defendant shall be liable for all damages
which are the natural and probable
consequences of the act or omission
complained of. It is not necessary that
such damages have been foreseen or
could have reasonably been foreseen by
the defendant. Article 2199 of the same
Code, however, sets the limitation that,
except as provided by law or by
stipulation, one is entitled to an
adequate compensation only for such
pecuniary loss suffered by him as he
has duly proved. As such, to warrant an
award of actual or compensatory
damages, the claimant must prove that
the damage sustained is the natural and
probable consequences of the negligent
act and, moreover, the claimant must
adequately prove the amount of such
damage.
In the case at bar, the RTC, basing on
the receipts submitted by respondents
and which receipts petitioners had the
opportunity to examine, found that the
total repairs on the Isuzu truck
amounted to ₱142,757.40, and that the
full hospitalization and medical
expenses of Perez, Anla, Banca, and
Repisada amounted to ₱11,267.35. As
such, these are the amounts that
respondents are entitled to as actual
and compensatory damages.
Although respondents alleged in their
complaint that the damage to their Isuzu
truck caused them the loss of a daily
income of ₱1,000.00, such claim was
not duly substantiated by any evidence
on record, and thus cannot be awarded
in their favor.
Moral Damages. Moral damages are
awarded to enable the injured party to
obtain means, diversions or
amusements that will serve to alleviate
the moral suffering he has undergone,
by reason of the defendant's culpable
action.35
In prayers for moral damages, however,
recovery is more an exception rather
than the rule. Moral damages are not
meant to be punitive but are designed to
compensate and alleviate the physical
suffering, mental anguish, fright, serious
anxiety, besmirched reputation,
wounded feelings, moral shock, social
humiliation, and similar harm unjustly
caused to a person. To be entitled to
such an award, the claimant must
satisfactorily prove that he has suffered
damages and that the injury causing it
has sprung from any of the cases listed
in Articles 2219 and 2220 of the Civil
Code. Moreover, the damages must be
shown to be the proximate result of a
wrongful act or omission. The claimant
must thus establish the factual basis of
the damages and its causal tie with the
acts of the defendant.36
In fine, an award of moral damages calls
for the presentation of 1) evidence of
besmirched reputation or physical,
mental or psychological suffering
sustained by the claimant; 2)a culpable
act or omission factually established; 3)
proof that the wrongful act or omission
of the defendant is the proximate cause
of the damages sustained by the
claimant; and 4) the proof that the act is
predicated on any of the instances
expressed or envisioned by Article 2219
and Article 2220 of the Civil Code.37
A review of the complaint and the
transcript of stenographic notes yields
the pronouncement that respondents
neither alleged nor offered any evidence
of besmirched reputation or physical,
mental or psychological suffering
incurred by them. All that Leonora and
her counsel had to say on the matter of
damages other than actual or
38
compensatory damages is this:
Q: Did you ever spend covering
attorney’s fees?
A: Yes, sir. ₱50,000.00.
Q: Aside from the actual damage that
you have mentioned x x x, how much
more would you like this Court to award
you by way of moral damages?
A: ₱100,000.00, sir.
Q: How about exemplary damages?
A: ₱50,000.00, sir.
Q: What happened to you, what did you
feel when the defendants failed to
immediately repair your vehicle that was
damaged Madam Witness?
A: I have incurred expenses and I was
forced to apply for a loan, sir.
In Kierulf v. CA,39 we observed that this
Court cannot remind the bench and the
bar often enough that in order that moral
damages may be awarded, there must
be pleading and proof of moral suffering,
mental anguish, fright and the like.
Citing Francisco v. GSIS,40 the Court
held that there must be clear testimony
on the anguish and other forms of
mental suffering. Thus, if the plaintiff
fails to take the witness stand and testify
as to his social humiliation, wounded
feelings and anxiety, moral damages
cannot be awarded.
Moreover, respondents were not able to
show that their claim properly falls under
Articles 2219 and 2220 of the Civil
Code. Respondents cannot rely on
Article 2219 (2) of the Civil Code which
allows moral damages in quasi-delicts
causing physical injuries because in
physical injuries, moral damages are
recoverable only by the injured
party,41and in the case at bar, herein
respondents were not the ones who
were actually injured.
In B.F. Metal (Corp.) v. Sps. Lomotan, et
al.,42 the Court, in a claim for damages
based on quasi-delict causing physical
injuries, similarly disallowed an award of
moral damages to the owners of the
damaged vehicle, when neither of them
figured in the accident and sustained
injuries.
Neither can respondents rely on Article
21 of the Civil Code as the RTC
erroneously did. Article 21 deals with
acts contra bonus mores, and has the
following elements: (1) There is an act
which is legal; (2) but which is contrary
to morals, good custom, public order, or
public policy; (3) and it is done with
intent to injure.43 In the present case, it
can hardly be said that Mendoza’s
negligent driving and violation of traffic
laws are legal acts. Moreover, it was not
proven that Mendoza intended to injure
Perez, et al. Thus, Article 21 finds no
application to the case at bar. All in all,
we find that the RTC and the CA erred
in granting moral damages to
respondents. Exemplary Damages.
Article 2229 of the Civil Code provides
that exemplary or corrective damages
are imposed, by way of example or
correction for the public good, in addition
to moral, temperate, liquidated or
compensatory damages. Article 2231 of
the same Code further states that in
quasi-delicts, exemplary damages may
be granted if the defendant acted with
gross negligence.
Our jurisprudence sets certain
conditions when exemplary damages
may be awarded: First, they may be
imposed by way of example or
correction only in addition, among
others, to compensatory damages, and
cannot be recovered as a matter of right,
their determination depending upon the
amount of compensatory damages that
may be awarded to the claimant.
Second, the claimant must first establish
his right to moral, temperate, liquidated
or compensatory damages. Third, the
wrongful act must be accompanied by
bad faith, and the award would be
allowed only if the guilty party acted in a
wanton, fraudulent, reckless, oppressive
or malevolent manner.44
In motor vehicle accident cases,
exemplary damages may be awarded
where the defendant’s misconduct is so
flagrant as to transcend simple
negligence and be tantamount to
positive or affirmative misconduct rather
than passive or negative misconduct. In
characterizing the requisite positive
misconduct which will support a claim
for punitive damages, the courts have
used such descriptive terms as willful,
wanton, grossly negligent, reckless, or
malicious, either alone or in
combination.45
Gross negligence is the absence of care
or diligence as to amount to a reckless
disregard of the safety of persons or
property. It evinces a thoughtless
disregard of consequences without
exerting any effort to avoid them.46
In the case at bar, having established
respondents’ right to compensatory
damages, exemplary damages are also
in order, given the fact that Mendoza
was grossly negligent in driving the
Mayamy bus. His act of intruding or
encroaching on the lane rightfully
occupied by the Isuzu truck shows his
reckless disregard for safety.
In Baño v. Bachelor Express, Inc., et
al.,47 where an erring bus, in the process
of overtaking a jeepney, also
encroached on the opposite lane, and
consequently collided with a dump truck,
the Court held the driver of the bus
grossly negligent and affirmed the award
of exemplary damages. Attorney’s Fees.
Article 2208 of the Civil Code
enumerates the instances when
attorney’s fees may be recovered:
Art. 2208. In the absence of stipulation,
attorney’s fees and expenses of
litigation, other than judicial costs,
cannot be recovered, except:
(1) When exemplary damages
are awarded;
(2) When the defendant’s act or
omission has compelled the
plaintiff to litigate with third
persons or to incur expenses to
protect his interest;
(3) In criminal cases of malicious
prosecution against the plaintiff;
 (4) In case of a clearly unfounded
civil action or proceeding against
the plaintiff;
(5) Where the defendant acted in
gross and evident bad faith in
refusing to satisfy the plaintiff’s
valid and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of
wages of household helpers,
laborers and skilled workers;
(8) In actions for indemnity under
workmen’s compensation and
employer’s liability laws;
(9) In a separate civil action to
recover civil liability arising from a
crime;
(10) When at least double judicial
costs are awarded;
(11) In any other case where the
court deems it just and equitable
that attorney’s fees and expenses
of litigation should be recovered;
In all cases, the attorney’s fees and
expenses of litigation must be
reasonable.
From the very opening sentence of
Article 2208 of the Civil Code, it is
clearly intended to retain the award of
attorney’s fees as the exception in our
law, as the general rule remains that
attorney’s fees are not recoverable in
the absence of a stipulation thereto, the
reason being that it is not sound policy
to set a premium on the right to litigate.48
As such, in Spouses Agustin v. CA,49 we
held that, the award of attorney’s fees
being an exception rather than the
general rule, it is necessary for the court
to make findings of facts and law that
would bring the case within the
exception and justify the grant of such
award. Thus, the reason for the award of
attorney’s fees must be stated in the text
of the court’s decision; otherwise, if it is
stated only in the dispositive portion of
the decision, the same must be
disallowed on appeal.
In the case at bar, the RTC Decision
had nil discussion on the propriety of
attorney’s fees, and it merely awarded
such in the dispositive. The CA
Decision, on the other hand, merely
stated that the award of attorney’s fees
is merited as such is allowed when
exemplary damages are
awarded.50 Following established
jurisprudence,51however, the CA should
have disallowed on appeal said award of
attorney’s fees as the RTC failed to
substantiate said award. Costs of suit.
The Rules of Court provide that,
generally, costs shall be allowed to the
prevailing party as a matter of course,
thus:52
Section 1. Costs ordinarily follow results
of suit.- Unless otherwise provided in
these rules, costs shall be allowed to the
prevailing party as a matter of course,
but the court shall have power, for
special reasons, to adjudge that either
party shall pay the costs of an action, or
that the same be divided, as may be
equitable. No costs shall be allowed
against the Republic of the Philippines,
unless otherwise provided by law.
In the present case, the award of costs
of suit to respondents, as the prevailing
party, is in order.
Interests.1âwphi1 Interest by way of
damages has been defined as interest
allowed in actions for breach of
contractor tort for the unlawful detention
of money already due. This type of
interest is frequently called "moratory
interest." Interest as a part of damage, is
allowed, not by application of arbitrary
rules, but as a result of the justice of the
individual case and as compensation to
the injured party.53
compensated through an award of
interest.56
WHEREFORE, premises considered,
the Court Resolves to PARTIALLY
GRANT the appeal by certiorari, as
follows:
1) DECLARE Mariano Mendoza
and Elvira Lim solidarily liable to
respondent Spouses Leonora
and Gabriel Gomez;

The legal provision on interests in quasi- 2) MAINTAIN the award of actual

delicts is Article 2211 of the Civil Code
which provides that in crimes and quasi-
delicts, interest as part of the damage,
may, in a proper case, be adjudicated in
the discretion of the court.
or compensatory damages in the
amount of ₱142,757.40 for the
repair of the Isuzu Elf truck, with
legal interest beginning 31
January 2001 until fully paid;

Generally, interest is allowed as a 3) GRANT additional actual or

matter of right for failure to pay compensatory damages in the
liquidated claims when due.54 For amount of ₱11,267.35 for the
unliquidated claims, however, Article medical expenses shouldered by
2213 of the Civil Code provides that respondent Spouses Leonora
interest cannot be recovered upon and Gabriel Gomez, with legal
unliquidated claims or damages, except interest beginning 31 January
when the demand can be established 2001 until fully paid;
with reasonable certainty.
4) DELETE the award of moral
In the case at bar, although the award of damages;
exemplary damages is unliquidated in
the sense that petitioners cannot know 5) MAINTAIN the award of
for sure, before judgment, the exact exemplary damages at
amount that they are required to pay to ₱50,000.00;
respondents, the award of actual or
compensatory damages, however, such 6) DELETE the award of
as the truck repairs and medical attorney's fees; and
expenses, is arguably liquidated in that
they can be measured against a 7) MAINTAIN the award of costs
reasonably certain of suit.
55
standard.  Moreover, justice would
seem to require that the delay in paying SO ORDERED.
for past losses which can be made
reasonably certain should be JOSE PORTUGAL PEREZ
Associate Justice
WE CONCUR: PEOPLE OF Promulgated:
THE PHILIPPINE
S,
Respondent.
  July 13, 2009
x----------------------------------------------------
-------------------------------------x
 
 
Republic of the Philippines
DECISION
Supreme Court  
Manila  
   
THIRD DIVISION
  PERALTA, J.:

   

GEMMA T. G.R. No. 162540 Before us is a petition for review

JACINTO, on certiorari filed by petitioner Gemma
 
Petitioner, T. Jacinto seeking the reversal of the
Decision[1] of the Court of Appeals (CA)
  Present:
in CA-G.R. CR No. 23761
  dated December 16, 2003, affirming
  YNARES- petitioner's conviction of the crime of
SANTIAGO, J., Qualified Theft, and its
 
Chairperson, [2]
Resolution  dated March 5,
- versus 
- CHICO- 2004 denying petitioner's motion for
NAZARIO, reconsideration.
 
 
VELASCO,
  Petitioner, along with two other
JR.,
women, namely, Anita Busog de
NACHURA, a
nd Valencia y Rivera and Jacqueline
Capitle, was charged before the
PERALTA, JJ.
Regional Trial Court (RTC)
    of CaloocanCity, Branch 131, with the
crime of Qualified Theft, allegedly
committed as follows:
That on or about
and sometime in the month
of July 1997, in Kalookan
City, Metro Manila, and
within the jurisdiction of
this Honorable Court, the
above-named accused,
conspiring together and
mutually helping one
another, being then all
employees of MEGA
FOAM INTERNATIONAL
INC., herein represented
by JOSEPH DYHENGCO
Y CO, and as such had
free access inside the
aforesaid establishment,
with grave abuse of trust
and confidence reposed
upon them with intent to
gain and without the
knowledge and consent of
the owner thereof, did then
and there willfully,
unlawfully and feloniously
take, steal and deposited
in their own account,
Banco De Oro Check No.
0132649 dated July 14,
1997 in the sum
of P10,000.00,
representing payment
made by customer Baby
Aquino to the Mega Foam
Int'l. Inc. to the damage
and prejudice of the latter
in the aforesaid stated
amount of P10,000.00.
CONTRARY TO
[3]
LAW.
 
The prosecution's evidence, which both
the RTC and the CA found to be more
credible, reveals the events that
transpired to be as follows.
 
In the month of June 1997, Isabelita
Aquino Milabo, also known as Baby
Aquino, handed petitioner Banco De Oro
(BDO) Check Number 0132649
postdated July 14, 1997 in the amount
of P10,000.00. The check was payment
for Baby Aquino's purchases from Mega
Foam Int'l., Inc., and petitioner was then
the collector of Mega Foam. Somehow,
the check was deposited in the Land
Bank account of Generoso Capitle, the
husband of Jacqueline Capitle; the latter
is the sister of petitioner and the former
pricing, merchandising and inventory
clerk of Mega Foam.
Meanwhile, Rowena Ricablanca,
another employee of Mega Foam,
received a phone call sometime in the
middle of July from one of their
customers, Jennifer Sanalila. The
customer wanted to know if she could
issue checks payable to the account of
Mega Foam, instead of issuing the
checks payable to CASH. Said customer
had apparently been instructed by
Jacqueline Capitle to make check
payments to Mega Foam payable
to CASH. Around that time, Ricablanca
also received a phone call from an
employee of Land Bank, Valenzuela
Branch, who was looking for Generoso
Capitle. The reason for the call was to
inform Capitle that the subject BDO
check deposited in his account had
been dishonored.
 
Ricablanca then phoned accused Anita
Valencia, a former employee/collector of
Mega Foam, asking the latter to inform
Jacqueline Capitle about the phone call
from Land Bank regarding the bounced
check. Ricablanca explained that she
had to call and relay the message
through Valencia, because the Capitles
did not have a phone; but they could be
reached through Valencia, a neighbor
and former co-employee of Jacqueline
Capitle at Mega Foam.
Valencia then told Ricablanca that the
check came from Baby Aquino, and
instructed Ricablanca to ask Baby
Aquino to replace the check with
cash. Valencia also told Ricablanca of a
plan to take the cash and divide it
equally into four: for herself, Ricablanca,
petitioner Jacinto and Jacqueline
Capitle. Ricablanca, upon the advise of
Mega Foam's accountant, reported the
matter to the owner of Mega Foam,
Joseph Dyhengco.
Thereafter, Joseph Dyhengco talked to
Baby Aquino and was able to confirm
that the latter indeed handed petitioner a
BDO check for P10,000.00 sometime in
June 1997 as payment for her
purchases from Mega Foam.[4] Baby
Aquino further testified that, sometime in
July 1997, petitioner also called her on
the phone to tell her that the BDO check
bounced.[5] Verification from company
records showed that petitioner never
remitted the subject check to Mega
Foam. However, Baby Aquino said that
she had already paid Mega
Foam P10,000.00 cash in August 1997
as replacement for the dishonored
check.[6]
Generoso Capitle, presented as a
hostile witness, admitted depositing the
subject BDO check in his bank account,
but explained that the check came into
his possession when some unknown
woman arrived at his house around the
first week of July 1997 to have the check
rediscounted. He parted with his cash in
exchange for the check without even
bothering to inquire into the identity of
the woman or her address. When he
was informed by the bank that the check
bounced, he merely disregarded it as he
didnt know where to find the woman
who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint
with the National Bureau of Investigation
(NBI) and worked out an entrapment
operation with its agents. Ten pieces
of P1,000.00 bills provided by Dyhengco
were marked and dusted with
fluorescent powder by the
NBI. Thereafter, the bills were given to
Ricablanca, who was tasked to pretend
that she was going along with Valencia's agents, who had been watching the
plan. whole time.
On August 15, 2007, Ricablanca and  
petitioner met at the latter's Petitioner and Valencia were brought to
house. Petitioner, who was then holding the NBI office where the Forensic
the bounced BDO check, handed over Chemist found fluorescent powder on
said check to Ricablanca. They the palmar and dorsal aspects of both of
originally intended to proceed to Baby their hands. This showed that petitioner
Aquino's place to have the check and Valencia handled the marked
replaced with cash, but the plan did not money. The NBI filed a criminal case for
push through. However, they agreed to qualified theft against the two and one
meet again on August 21, 2007. Jane Doe who was later identified as
On the agreed date, Ricablanca again Jacqueline Capitle, the wife of Generoso
went to petitioners house, where she Capitle.
met petitioner and Jacqueline The defense, on the other hand, denied
Capitle. Petitioner, her husband, and having taken the subject check and
Ricablanca went to the house of Anita presented the following scenario.
Valencia; Jacqueline Capitle decided not  
to go with the group because she Petitioner admitted that she was a
decided to go shopping. It was only collector for Mega Foam until she
petitioner, her husband, Ricablanca resigned on June 30, 1997, but claimed
and Valencia who then boarded that she had stopped collecting
petitioner's jeep and went on to Baby payments from Baby Aquino for quite
Aquino's factory. Only Ricablanca some time before her resignation from
alighted from the jeep and entered the the company. She further testified that,
premises of Baby Aquino, pretending on the day of the arrest, Ricablanca
that she was getting cash from Baby came to her mothers house, where she
Aquino. However, the cash she actually was staying at that time, and asked that
brought out from the premises was she accompany her (Ricablanca) to
the P10,000.00 marked money Baby Aquino's house. Since petitioner
previously given to her by was going for a pre-natal check-up at
Dyhengco. Ricablanca divided the the Chinese General Hospital,
money and upon returning to the jeep, Ricablanca decided to hitch a ride with
gave P5,000.00 each to Valencia and the former and her husband in their jeep
petitioner. Thereafter, petitioner going to Baby Aquino's place
and Valencia were arrested by NBI in Caloocan City. She allegedly had no
idea why Ricablanca asked them to wait the RTC rendered its Decision, the
in their jeep, which they parked outside dispositive portion of which reads:
the house of Baby Aquino, and was very  
surprised when Ricablanca placed the WHEREFORE, in view of
the foregoing, the Court
money on her lap and the NBI agents finds accused Gemma
arrested them. Tubale De Jacinto y
Anita Valencia also admitted that she Latosa, Anita Busog De
Valencia y Rivera and
was the cashier of Mega Foam until she
Jacqueline
resigned on June 30, 1997. It was never Capitle GUILTY beyond
part of her job to collect payments from reasonable doubt of the
crime of QUALIFIED
customers.According to her, on the
THEFT and each of them
morning of August 21, 1997, Ricablanca is hereby sentenced to
called her up on the phone, asking if she suffer imprisonment
(Valencia) could accompany her of FIVE (5) YEARS, FIVE
(5) MONTHS AND
(Ricablanca) to the house of Baby ELEVEN (11) DAYS, as
Aquino. Valencia claims that she agreed minimum, to SIX (6)
to do so, despite her admission during YEARS, EIGHT (8)
MONTHS AND TWENTY
cross-examination that she did not know (20) DAYS, as maximum.
where Baby Aquino resided, as she had  
never been to said house. They then SO ORDERED.[7]
met at the house of petitioner's mother,  
rode the jeep of petitioner and her The three appealed to the CA and,
husband, and proceeded to Baby on December 16, 2003, a Decision was
Aquino's place. When they arrived at promulgated, the dispositive portion of
said place, Ricablanca alighted, but which reads, thus:
requested them to wait for her in the  
jeep. After ten minutes, Ricablanca IN VIEW OF THE
FOREGOING, the decision
came out and, to her of the trial
surprise, Ricablanca gave her money court is MODIFIED, in that:
and so she even asked, What is  
(a) the sentence
this? Then, the NBI agents arrested against accused
them. Gemma Jacinto
  stands;
(b) the
The trial of the three accused went its
sentence
usual course and, on October 4, 1999, against
accused
 Anita
Valencia is
reduced to 4
months arres
to
mayor mediu
m.
(c) The accused
Jacqueline Capitle
is acquitted.
 
SO ORDERED.
 
A Partial Motion for
Reconsideration of the foregoing CA
Decision was filed only for petitioner
Gemma Tubale Jacinto, but the same
was denied per Resolution dated March
5, 2004.
 
Hence, the present Petition for Review
on Certiorari filed by petitioner alone,
assailing the Decision and Resolution of
the CA. The issues raised in the petition
are as follows:
 
1.      Whether or not
petitioner can be
convicted of a crime
not charged in the
information;
 
2.      Whether or not a
worthless check can
be the object of
theft; and
3. Whether or not the
prosecution has proved
petitioner's guilt beyond
reasonable doubt.[8]
The petition deserves considerable
thought.
The prosecution tried to establish the
following pieces of evidence to
constitute the elements of the crime of
qualified theft defined under Article 308,
in relation to Article 310, both of the
Revised Penal Code: (1) the taking of
personal property - as shown by the fact
that petitioner, as collector for Mega
Foam, did not remit the customer's
check payment to her employer and,
instead, appropriated it for herself; (2)
said property belonged to another − the
check belonged to Baby Aquino, as it
was her payment for purchases she
made; (3) the taking was done with
intent to gain this is presumed from the
act of unlawful taking and further shown
by the fact that the check was deposited
to the bank account of petitioner's
brother-in-law; (4) it was done without
the owners consent petitioner hid the
fact that she had received the check
payment from her employer's customer
by not remitting the check to the
company; (5) it was accomplished
without the use of violence or
intimidation against persons, nor of force
upon things the check was voluntarily
handed to petitioner by the customer, as
she was known to be a collector for the
company; and (6) it was done with grave
abuse of confidence petitioner is
admittedly entrusted with the collection relation to Article 59, both of the Revised
of payments from customers. Penal Code, because of the factual
However, as may be gleaned from the impossibility of producing the
aforementioned Articles of the Revised crime. Pertinent portions of said
Penal Code, the personal property provisions read as follows:
subject of the theft must have some Article 4(2). Criminal
Responsibility. - Criminal
value, as the intention of the accused responsibility shall be
is to gain from the thing stolen. This incurred:
is further bolstered by Article 309, where  
xxxx
the law provides that the penalty to be
 
imposed on the accused is dependent 2.                  
on the value of the thing stolen. By
any
In this case, petitioner unlawfully took
perso
the postdated check belonging to Mega n
Foam, but the same was apparently perfor
without value, as it was subsequently ming
an act
dishonored. Thus, the question arises on which
whether the crime of qualified theft was would
actually produced. be an
offens
  e
The Court must resolve the issue in the agains
t
negative. perso
  ns or
Intod v. Court of Appeals[9] is highly proper
ty,
instructive and applicable to the present were it
case. In Intod, the accused, intending to not for
kill a person, peppered the latters the in
heren
bedroom with bullets, but since the t
intended victim was not home at the impos
time, no harm came to him. The trial sibilit
y of
court and the CA held Intod guilty of
its
attempted murder. But upon review by acco
this Court, he was adjudged guilty only mplis
of an impossible crime as defined and hment 
or on
penalized in paragraph 2, Article 4, in accou
 nt of
the
emplo
yment
of
inadeq
uate
to
ineffec
tual
means
. aspect of the inherent impossibility of
(emph
asis
suppli
ed)
Article 59. Penalty to be
imposed in case of failure
to commit the crime
because the means
employed or the aims
sought are impossible. -
When the person intending
to commit an offense has
already performed the acts
for the execution of the
same but nevertheless the
crime was not produced by
reason of the fact that the
act intended was by its
nature one of impossible
accomplishment or
because the means
employed by such person
are essentially inadequate
to produce the result
desired by him, the court,
having in mind the social
danger and the degree of
criminality shown by the
offender, shall impose
upon him the penalty
of arresto mayor or a fine
ranging from 200 to 500
pesos.
Thus, the requisites of an impossible
crime are: (1) that the act performed
would be an offense against persons or
property; (2) that the act was done with
evil intent; and (3) that its
accomplishment was inherently
impossible, or the means employed was
either inadequate or ineffectual. The
accomplishing the intended crime under
Article 4(2) of the Revised Penal Code
was further explained by the Court
in Intod[10] in this wise:
 
Under this article, the act
performed by the offender
cannot produce an offense
against persons or
property because: (1) the
commission of the offense
is inherently impossible of
accomplishment; or (2) the
means employed is either
(a) inadequate or (b)
ineffectual.
 
That the offense cannot be
produced because the
commission of the offense
is inherently impossible of
accomplishment is the
focus of this petition. To be
impossible under this
clause, the act intended by
the offender must be by its
nature one impossible of
accomplishment. There
must be either (1) legal
impossibility, or (2)
physical impossibility of
accomplishing the
intended act in order to
 qualify the act as an
impossible crime.
 
Legal impossibility occurs
where the intended acts,
even if completed, would
not amount to a crime.
xxxx
 
The impossibility of killing
a person already dead falls
in this category.
 
On the other hand, factual
impossibility occurs when
extraneous circumstances
unknown to the actor or
beyond his control prevent
the consummation of the
intended crime. x x x [11]
In Intod, the Court went on to give an
example of an offense that involved
factual impossibility, i.e., a man puts his
hand in the coat pocket of another with
the intention to steal the latter's wallet,
but gets nothing since the pocket is
empty.
Herein petitioner's case is closely akin to
the above example of factual
impossibility given in Intod. In this case,
petitioner performed all the acts to
consummate the crime of qualified theft,
which is a crime against
property. Petitioner's evil intent cannot
be denied, as the mere act of unlawfully
taking the check meant for Mega Foam
showed her intent to gain or be unjustly
enriched. Were it not for the fact that the
check bounced, she would have
received the face value thereof, which
was not rightfully hers. Therefore, it was
only due to the extraneous circumstance
of the check being unfunded, a fact
unknown to petitioner at the time, that
prevented the crime from being
produced. The thing unlawfully taken by
petitioner turned out to be absolutely
worthless, because the check was
eventually dishonored, and Mega Foam
had received the cash to replace the
value of said dishonored check.
 
The fact that petitioner was later
entrapped receiving the P5,000.00
marked money, which she thought was
the cash replacement for the dishonored
check, is of no moment. The Court held
in Valenzuela v. People[12] that under the
definition of theft in Article 308 of the
Revised Penal Code, there is only one
operative act of execution by the actor
involved in theft ─ the taking of personal
property of another. Elucidating further,
the Court held, thus:
x x x Parsing through the
statutory definition of theft
under Article 308, there is
one apparent answer
provided in the language of
the law that theft is already
produced upon the tak[ing
of] personal property of
another without the latters
consent.
 
xxxx
 x x x when is the crime of
theft produced? There
would be all but certain
unanimity in the position
that theft is produced when
there is deprivation of
personal property due to its
taking by one with intent to
gain. Viewed from that
perspective, it is immaterial
to the product of the felony
that the offender, once
having committed all the
acts of execution for theft,
is able or unable to freely
dispose of the property
stolen since the deprivation
from the owner alone has
already ensued from such
acts of execution. x x x
 
xxxx
x x x we have, after all,
held that unlawful taking,
or apoderamiento, is
deemed complete from the
moment the offender gains
possession of the thing,
even if he has no
opportunity to dispose of
the same. x x x
 
x x x Unlawful taking,
which is the deprivation of
ones personal property, is
the element which
produces the felony in its
consummated stage. x x
x [13]
 
From the above discussion, there can be
no question that as of the time that
petitioner took possession of the
check meant for Mega Foam, she had
performed all the acts to consummate
the crime of theft, had it not been
impossible of accomplishment in this
case. The circumstance of petitioner
receiving the P5,000.00 cash as
supposed replacement for the
dishonored check was no longer
necessary for the consummation of the
crime of qualified theft. Obviously, the
plan to convince Baby Aquino to give
cash as replacement for the check was
hatched only after the check had been
dishonored by the drawee bank. Since
the crime of theft is not a continuing
offense, petitioner's act of receiving the
cash replacement should not be
considered as a continuation of the
theft. At most, the fact that petitioner
was caught receiving the marked money
was merely corroborating evidence to
strengthen proof of her intent to gain.
Moreover, the fact that petitioner further
planned to have the dishonored check
replaced with cash by its issuer is a
different and separate fraudulent
scheme. Unfortunately, since said
scheme was not included or covered by
the allegations in the Information, the
Court cannot pronounce judgment on
the accused; otherwise, it would violate
the due process clause of the
Constitution. If at all, that fraudulent
scheme could have been another
possible source of criminal liability.
IN VIEW OF THE FOREGOING, the
petition is GRANTED. The Decision of
the Court of Appeals, dated December G.R. No. 206442               July 1, 2015
16, 2003, and its Resolution JOVITO CANCERAN, Petitioner, 
dated March 5, 2004, vs.
are MODIFIED. Petitioner Gemma T. PEOPLE OF THE
PHILIPPINES, Respondent.
Jacinto is found GUILTY of
an IMPOSSIBLE CRIME as defined and DECISION
penalized in Articles 4, paragraph 2, and
59 of the Revised Penal Code, MENDOZA, J.:
respectively. Petitioner is sentenced to This is a petition for review on certiorari
suffer the penalty of six (6) months seeking to reverse and set aside the
of arrresto mayor, and to pay the costs. August 10, 2012 Decision1 and the
  March 7, 2013 Resolution2 of the Court
SO ORDERED. of Appeals (CA), in CA-G.R. CR No.
00559, which affirmed and modified the
  September 20, 2007 Judgment3 of the
Regional Trial Court, Branch 39,
  Misamis Oriental, Cagayan de Oro City
  (RTC), in Criminal Case No. 2003-141,
convicting petitioner Jovito Canceran
DIOSDADO M. PERALTA (Canceran) for consummated Theft.
Associate Justice The records disclose that Canceran,
  together with Frederick Vequizo and
Marcial Diaz, Jr., was charged with
  "Frustrated Theft." The Information
reads:
WE CONCUR:
That on or about October 6, 2002, at
more or less 12:00 noon, at Ororama
Mega Center Grocery Department,
Lapasan, Cagayan de Oro City,
Philippines, and within the jurisdiction of
this Honorable Court, the above-named
accused, Jovito Canceran, conspiring,
confederating together and mutually
helping one another with his co-accused
Frederick Vequizo, URC Merchandiser,
and Marcial Diaz, Jr., a Unilever
Philippines merchandiser both of
Republic of the Philippines Ororama Mega Center, with intent to
SUPREME COURT gain and without the knowledge and
Manila consent of the owner thereof, did then
and there wilfully, unlawfully and
SECOND DIVISION
feloniously take, steal and carry away 14
cartons of Ponds White Beauty Cream
valued at ₱28,627,20, belonging to
Ororama Mega Center, represented by
William Michael N. Arcenio, thus,
performing all the acts of execution
which would produce the crime of theft
as a consequence but, nevertheless, did
not produce it by reason of some cause
independent of accused’s will, that is,
they were discovered by the employees
of Ororama Mega Center who prevented
them from further carrying away said 14
cartons of Ponds White Beauty Cream,
to the damage and prejudice of the
Ororama Mega Center.
Article 308 in relation to Article 309, and
6 of the Revised Penal Code.4
Version of the Prosecution
To prove the guilt of the accused, the
prosecution presented Damalito Ompoc
(Ompoc),a security guard; and William
Michael N. Arcenio (Arcenio), the
Customer Relation Officer of Ororama
Mega Center (Ororama),as its
witnesses. Through their testimonies,
the prosecution established that on or
about October 6, 2002, Ompoc saw
Canceran approach one of the counters
in Ororama; that Canceran was pushing
a cart which contained two boxes of
Magic Flakes for which he paid
₱1,423.00; that Ompoc went to the
packer and asked if the boxes had been
checked; that upon inspection by
Ompoc and the packer, they found out
that the contents of the two boxes were
not Magic Flakes biscuits, but 14 smaller
boxes of Ponds White Beauty Cream
worth ₱28,627.20; that Canceran
hurriedly left and a chase ensued; that
upon reaching the Don Mariano gate,
Canceran stumbled as he attempted to
ride a jeepney; that after being
questioned, he tried to settle with the
guards and even offered his personal
effects to pay for the items he tried to
take; that Arcenio refused to settle; and
that his personal belongings were
deposited in the office of Arcenio.5
Version of the Defense
Canceran vehemently denied the
charges against him. He claimed that he
was a promo merchandiser of La
Tondeña, Inc. and that on October 6,
2002, he was in Ororama to buy
medicinefor his wife. On his way out,
after buying medicine and mineral water,
a male person ofaround 20 years of age
requested him to pay for the items in his
cart at the cashier; that he did not know
the name of this man who gavehim
₱1,440.00 for payment of two boxes
labelled Magic Flakes; that he obliged
with the request of the unnamed person
because he was struck by his
conscience; that he denied knowing the
contents of the said two boxes; that after
paying at the cashier, he went out of
Ororama towards Limketkai to take a
jeepney; that three persons ran after
him, and he was caught; that he was
brought to the 4th floor of Ororama,
where he was mauled and kicked by
one of those who chased him; that they
took his Nokia 5110 cellular phone and
cash amounting to ₱2,500.00; and that
Ompoc took his Seiko watch and ring,
while a certain Amion took his
necklace.6
Canceran further claimed that an earlier
Information for theft was already filed on
October 9,2002 which was eventually
dismissed. In January 2003, a second
Information was filed for the same
offense over the same incident and
became the subject of the present
case.7
The Ruling of the Regional Trial Court
In its Judgment, dated September 20,
2007, the RTC found Canceran guilty
beyond reasonable doubt of
consummated Theft in line with the
ruling of the Court in Valenzuela v.
People8 that under Article 308 of the
Revised Penal Code (RPC),there is no
crime of "Frustrated Theft." Canceran
was sentenced to suffer the
indeterminate penalty of imprisonment
from ten (10) years and one (1) day to
ten (10) years, eight (8) months of
prision mayor, as minimum, to fourteen
(14) years, eight (8) months of reclusion
temporal, as maximum.9
The RTC wrote that Canceran’s denial
deserved scant consideration because it
was not supported by sufficient and
convincing evidence and no
disinterested witness was presented to
corroborate his claims. As such, his
denial was considered self-serving and
deserved no weight. The trial court was
also of the view that his defense, that
the complaint for theft filed against him
before the sala of Judge Maximo
Paderanga was already dismissed, was
not persuasive. The dismissal was
merely a release order signed by the
Clerk of Court because he had posted
bail.10
The Ruling of the Court of Appeals
Aggrieved, Canceran filed an appeal
where he raised the issue of double
jeopardy for the first time. The CA held
that there could be no double jeopardy
because he never entered a valid plea
and so the first jeopardy never
attached.11
The CA also debunked Canceran’s
contention that there was no taking
because he merely pushed the cart
loaded with goods to the cashier’s booth
for payment and stopped there. The
appellate court held that unlawful taking
was deemed complete from the moment
the offender gained possession of the
thing, even if he had no opportunity to
dispose of the same.12
The CA affirmed with modification the
September 20, 2007 judgment of the
RTC, reducing the penalty ranging from
two (2) years, four (4) months and one
(1) day of prision correccional, as
minimum, to eight (8) years, eight (8)
months and one (1) day of prision
mayor, as maximum. Canceran moved
for the reconsideration of the said
decision, but his motion was denied by
the CA in its March 7, 2013 resolution.
Hence, this petition.
As can be synthesized from the petition
and other pleadings, the following are
the issues: 1] whether Canceran should
be acquitted in the crime of theft as it
was not charged in the information; and
2] whether there was double jeopardy.
Canceran argues that the CA erred in
affirming his conviction. He insists that
there was already double jeopardy as
the first criminal case for theft was
already dismissed and yet he was
convicted in the second case. Canceran
also contends that there was no taking
of the Ponds cream considering that
"the information in Criminal Case No.
2003-141 admits the act of the petitioner
did not produce the crime of
theft."13 Thus, absent the element of
taking, the felony of theft was never
proved.
In its Comment,14 the Office of the
Solicitor General (OSG)contended that
there was no double jeopardy as the first
jeopardy never attached. The trial court
dismissed the case even before
Canceran could enter a plea during the
scheduled arraignment for the first case.
Further, the prosecution proved that all
the elements of theft were present in this
case.
In his Reply,15 Canceran averred that
when the arraignment of the first case
was scheduled, he was already bonded
and ready to enter a plea. It was the
RTC who decided that the evidence was
insufficient or the evidence lacked the
element to constitute the crime of theft.
He also stressed that there was no
unlawful taking as the items were
assessed and paid for.
The Court's Ruling
The Court finds the petition partially
meritorious.
Constitutional Right of the
Accused to be Informed of
the Nature and Cause of
Accusation against Him.
No less than the Constitution
guarantees the right of every person
accused in a criminal prosecution to be
informed of the nature and cause of
accusation against him.16 It is
fundamental that every element of which
the offense is composed must be
alleged in the complaint or information.
The main purpose of requiring the
various elements of a crime to be set out
in the information is to enable the
accused to suitably prepare his defense.
He is presumed to have no independent
knowledge of the facts that constitute
the offense.17
Under Article 308 of the RPC, the
essential elements of theft are (1) the
taking of personal property; (2) the
property belongs to another; (3) the
taking away was done with intent of
gain; (4) the taking away was done
without the consent of the owner; and
(5) the taking away is accomplished
without violence or intimidation against
person or force upon things. "Unlawful
taking, which is the deprivation of one’s
personal property, is the element which
produces the felony in its consummated
stage. At the same time, without
unlawful taking as an act of execution,
the offense could only be attempted
theft, if at all."18
"It might be argued, that the ability of the
offender to freely dispose of the property
stolen delves into the concept of ‘taking’
itself, in that there could be no true
taking until the actor obtains such
degree of control over the stolen item.
But even if this were correct, the effect
would be to downgrade the crime to its
attempted, and not frustrated stage, for
it would mean that not all the acts of
execution have not been completed, the
"taking not having been
19
accomplished."
A careful reading of the allegations in
the Information would show that
Canceran was charged with "Frustrated
Theft" only. Pertinent parts of the
Information read:
x x x did then and there wilfully,
unlawfully and feloniously take, steal
and carry away 14 cartons of Ponds
White Beauty Cream valued at
₱28,627,20, belonging to Ororama
Mega Center, represented by William
Michael N. Arcenio, thus performing all
the acts of execution which would
produce the crime of theft as a
consequence, but nevertheless, did not
produce it by reason of some cause
independent of accused’s will x x x.
[Emphasis and Underscoring Supplied]
As stated earlier, there is no crime of
Frustrated Theft. The Information can
never be read to charge Canceran of
consummated Theft because the
indictment itself stated that the crime
was never produced. Instead, the
Information should be construed to
mean that Canceran was being charged
with theft in its attempted stage only.
Necessarily, Canceran may only be
convicted of the lesser crime of
Attempted Theft.
"[A]n accused cannot be convicted of a
higher offense than that with which he
was charged in the complaint or
information and on which he was tried. It
matters not how conclusive and
convincing the evidence of guilt may be,
an accused cannot be convicted in the
courts of any offense, unless it is
charged in the complaint or information
on which he is tried, or necessarily
included therein. He has a right to be
informed as to the nature of the offense
with which he is charged before he is
put on trial, and to convict him of an
offense higher than that charged in the
complaint or information on which he is
tried would be an unauthorized denial of
that right."20 Indeed, an accused cannot
be convicted of a crime, even if duly
proven, unless it is alleged or
necessarily included in the information
filed against him.21 An offense charged
necessarily includes the offense proved
when some of the essential elements or
ingredients of the former, as alleged in
the complaint or information, constitute
the latter.22
The crime of theft in its consummated
stage undoubtedly includes the crime in
its attempted stage. In this case,
although the evidence presented during
the trial prove the crime of
consummated Theft, he could be
convicted of Attempted Theft only.
Regardless of the overwhelming
evidence to convict him for
consummated Theft, because the
Information did not charge him with
consummated Theft, the Court cannot
do so as the same would violate his right
to be informed of the nature and cause
of the allegations against him, as he so
protests.
The Court is not unmindful of the rule
that "the real nature of the criminal
charge is determined, not from the
caption or preamble of the information
nor from the specification of the law
alleged to have been violated – these
being conclusions of law – but by the
actual recital of facts in the complaint or
information."23 In the case of Domingo v.
Rayala,24 it was written:
What is controlling is not the title of the
complaint, nor the designation of the
offense charged or the particular law or
part thereof allegedly violated, these
being mere conclusions of law made by
the prosecutor, but the description of the
crime charged and the particular facts
therein recited. The acts or omissions
complained of must be alleged in such
form as is sufficient to enable a person
of common understanding to know what
offense is intended to be charged, and
enable the court to pronounce proper
judgment. No information for a crime will
be sufficient if it does not accurately and
clearly allege the elements of the crime
charged. Every element of the offense
must be stated in the information. What
facts and circumstances are necessary
to be included therein must be
determined by reference to the
definitions and essentials of the
specified crimes. The requirement of
alleging the elements of a crime in the
information is to inform the accused of
the nature of the accusation against him
so as to enable him to suitably prepare
his defense.25
In the subject information, the
designation of the prosecutor of the
offense, which was "Frustrated Theft,"
may be just his conclusion.
Nevertheless, the fact remains that the
charge was qualified by the additional
allegation, "but, nevertheless, did not
produce it by reason of some cause
independent of accused’s will, that is,
they were discovered by the employees
of Ororama Mega Center who prevented
them from further carrying away said 14
cartons of Ponds White Beauty Cream,
x x x.26 This averment, which could also
be deemed by some as a mere
conclusion, rendered the charge
nebulous. There being an uncertainty,
the Court resolves the doubt in favor of
the accused, Canceran, and holds that
he was not properly informed that the
charge against him was consummated
theft.
No double jeopardy when
the first jeopardy never
attached
Anent the issue of double jeopardy, the
Court finds no reason to deviate from
the ruling of the CA.
No person shall be twice put in jeopardy
for punishment for the same offense.
The rule of double jeopardy has a
settled meaning in this jurisdiction. It
means that when a person is charged
with an offense and the case is
terminated either by acquittal or
conviction or in any other manner
without the consent of the accused, the
latter cannot again be charged with the
same or identical offense. This principle
is founded upon the law of reason,
justice and conscience.27
Canceran argues that double jeopardy
exists as the first case was scheduled
for arraignment and he, already bonded,
was ready to enter a plea. It was the
RTC who decided that there was
insufficient evidence to constitute the
crime of theft.
To raise the defense of double jeopardy,
three requisites must be present: (1) a
first jeopardy must have attached prior
to the second; (2) the first jeopardy must
have been validly terminated; and (3)
the second jeopardy must be for the
same offense as that in the first. Legal
jeopardy attaches only (a) upon a valid
indictment, (b) before a competent court,
(c) after arraignment, (d) a valid plea
having been entered; and (e) the case
was dismissed or otherwise terminated
without the express consent of the
accused.28
Here, the CA correctly observed that
Canceran never raised the issue of
double jeopardy before the
RTC.1âwphi1 Even assuming that he
was able to raise the issue of double
jeopardy earlier, the same must still fail
because legal jeopardy did not attach.
First, he never entered a valid plea. He
himself admitted that he was just about
to enter a plea, but the first case was
dismissed even before he was able to
do so. Second, there was no
unconditional dismissal of the complaint.
The case was not terminated by reason
of acquittal nor conviction but simply
because he posted bail. Absent these
two elements, there can be no double
jeopardy.
Penalty of Attempted Theft
The penalty for consummated theft is
prision mayor in its minimum and
medium periods.29 The penalty lower by
two degrees than that prescribed by law
for the consummated felony shall be
imposed upon principals in an attempt to
commit a felony.30 The basis for
reduction of penalty by two degrees is
the penalty prescribed by law for the
consummated crime. Also, when the
offenses defined in the RPC are
punished with a penalty composed of
two periods, like in the crime of theft, the
penalty lower by one degree is formed
by two periods to be taken from the
same penalty prescribed.31
Minimum to Arresto Mayor Medium. In
view of the special aggravating
circumstance under Article 309 (1), the
maximum penalty should be Arresto
Mayor Maximum to Prision Correccional
Minimum in its maximum period.
WHEREFORE, the petition is
PARTIALLY GRANTED. The August 10,
2012 Decision and the March 7, 2013
Resolution of the Court of Appeals in
CA-G.R. CR No. 00559 are hereby
MODIFIED, in that, the Court finds
accused Jovito Canceran guilty beyond
reasonable doubt of the crime of
Attempted Theft.
Accordingly, the Court sentences the
accused to suffer the indeterminate
prison term ranging from Four (4)
Months of Arresto Mayor, as minimum,
to Two (2) Years, Four (4) Months of
Prision Correccional, as maximum.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
WE CONCUR:

Here, the products stolen were worth

₱28,627.20. Following Article 309 par. 1 Republic of the Philippines
of the RPC, the penalty shall be the SUPREME COURT
maximum period of the penalty Baguio
prescribed in. the same paragraph,
because the value of the things stolen FIRST DIVISION
exceeded ₱22,000.00. In other words, a
special aggravating circumstance shall  
affect the imposable penalty.
G.R. No. 99379 April 22, 1994
Applying the Indeterminate Sentence
Law, the minimum penalty should be PEOPLE OF THE
within the range of Arresto Mayor PHILIPPINES, plaintiff-appellee, 
vs.
EDUARDO JORGE
RAMIREZ, accused-appellant.
The Solicitor General for plaintiff-
appellee.
Nestor M. Hermida for accused-
appellant.
BELLOSILLO, J.:
EDUARDO JORGE Y RAMIREZ
appeals from the decision of the Court a
quo finding him guilty of murder and
sentencing him to reclusion perpetua. 1
On 15 June 1989, an amended
information was filed charging Eduardo
Jorge, Romeo Lajera and Remedios
Bernales with murder for the killing of
Francisco Palma with the aggravating
circumstances of treachery and evident
premeditation. However, only Jorge was
tried by the court a quo because Lajera
and Bernales managed to remain at
large, although Bernales was eventually
arrested in August 1991 to face
separate trial. 2
The case of the government is woven
mainly around the testimony of Patricio
Ocenar, a barangay tanod of Barangay
Doña Imelda, Quezon City. Ocenar
narrates that on 26 June 1990, at
around nine-thirty in the evening, he was
at the barangay hall. Then a person
informed him that Francisco Palma was
being molested by three men. 3Taking
with him his "knife-stick," 4 Ocenar
proceeded to Paui Street pointed to by
the informer. There, at a distance of
some ten arms length, 5 Ocenar saw
Eduardo Jorge and Romeo Lajera
holding the hands of Palma and a
Y woman 6 stabbing him on the left chest
with a long instrument. Ocenar could not
tell exactly what kind of weapon was
used. He shouted at them and all three
ran away leaving Palma behind to chase
his aggressors but he collapsed
immediately on Baloy
Street. 7 According to
Dr. Renato Bautista who examined the
victim, the stab wound on his left chest
was the cause of his death. 8
Corazon Palma, widow of the victim,
was also presented to testify for the
prosecution. But the trial court correctly
discounted her testimony —
. . . because as per
Patricio Ocenar she came
to know of the incident
only from him. Besides,
according to Mrs. Palma,
when someone came (sic)
to her house to call her
attention as regards her
husband, the caller said
"Cory, Cory, your husband
is stabbed dead and he is
in Baloy." Hence, her
testimony that she saw her
husband being mauled
and then stabbed does not
appear credible. Her
testimony also reads like
that of Mr. Ocenar which,
considering her interest in
this case, renders doubtful
her narration on the
identity of her husband's
killers.
As the court a quo observed, "her
testimony that she saw her husband
being mauled and then stabbed does
not appear credible." It was obviously
perjured. We can only commiserate with
the widow and say to her, it was good
effort in aid of the prosecution but it was
not good enough to pervert the facts and
convince the court that she was telling
the truth.
On the part of appellant Jorge, he
denies any participation in the crime. He
claims he was sleeping in his house at
the time of the killing and was only
awakened when policemen, led by the
widow, forced him out of his house
despite his protestations and profession
of innocence, and brought to the police
station. But, as earlier mentioned, the
trial court convicted him of murder with
abuse of superior strength.
Jorge now imputes eight errors to the
trial court the salient points of which are:
(a) in finding the prosecution evidence
sufficient to establish his guilt; (b) in
giving full faith to the testimony of
Patricio Ocenar; (c) in finding him guilty
of murder as principal without sufficient
proof of conspiracy among him and his
co-accused; and, (d) in qualifying the
killing to murder with abuse of superior
strength when such circumstance is not
alleged in the Information.
Indeed, under the facts of the case, we
cannot assert with moral certainty that
the accused is guilty of the crime
charged. The evidence for the
prosecution does not meet the quantum
of proof required to overcome the
constitutional presumption of innocence
of the accused. We are not saying here
that appellant is innocent but that his
guilt has not been proved beyond
reasonable doubt; hence, he should be
acquitted.
In order to convict appellant as a
principal by direct participation in the
case before us, it is necessary that
conspiracy among him and his co-
accused be proved. No conspiracy here
was established. Conspiracy; like any
other ingredient of the offense, must be
proved as sufficient as the crime itself
through clear and convincing evidence,
not only by mere conjectures. 9 Proof
beyond reasonable doubt is required to
establish the presence of criminal
conspiracy. 10 In fact, the appealed
decision does not mention, much less
discuss, conspiracy.
Unity of purpose and unity in the
execution of the unlawful objective are
essential to establish the existence of
conspiracy. 11 In this case, no unity of
purpose was shown. The only
involvement of appellant was his holding
of the hand of Palma when he was
stabbed by Bernales on the left chest.
There was no other evidence to show
unity of design. The simultaneousness
of the act of stabbing the victim by
Bernales with the holding of the hand of
the same victim by appellant does not of
itself demonstrate concurrence of wills
or unity of purpose and action. 12 For, it
is possible that the appellant had no
knowledge of the common design, if
there was any, nor of the intended
assault until the victim was actually
stabbed. The thrust could have been
made at the spur of the moment, totally
unexpected by appellant. The mere
holding of the victim's hand does not
necessarily prove intention to kill. If the
tragedy was a chance stabbing, there
can be no conspiracy to speak
of. 13 Perhaps it would have been
different if the victim was stabbed more
than once and appellant still held on to
the hand of the victim. That would have
indicated intent to kill and a community
of purpose and design. But the evidence
does not show that appellant knew that
Bernales had a knife; that she intended
to use it to stab the victim; and, even if
she had such intention and appellant
knew it, that he held the victim's hand to
insure the effectiveness and fatality of
Bernales' attack.
While the holding of the hand of the
victim could demonstrate unity of
purpose, yet, it could also mean a desire
on the part of appellant to avoid a
physical encounter between Palma and
Bernales, a woman, who was not known
to appellant to be armed with a knife.
The distance of some ten arms length
from the startling occurrence could have
blurred the vision of Ocenar, the only
eyewitness for the prosecution, who
could no longer identify the weapon
used except to say it was a long
instrument. This also casts doubt on
some of his factual accounts. The rule is
well settled that if the facts apparently
inculpatory may equally be explained
consistent with one's innocence, the
evidence does not fulfill the test of moral
certainty to support a conviction. 14
Although Ocenar appears credible in his
version, his testimony unfortunately
does not establish the existence of
conspiracy. It is elementary that, in the
absence of conspiracy, each of the
accused is responsible only for the
consequences of his own acts. 15 All that
appellant did was to hold the hand of
Palma, which is not a crime.
Neither can the appellant be considered
a principal by indispensable
cooperation, nor an accomplice in the
crime of murder. To be a principal by
indispensable cooperation, one must
participate in the criminal resolution, a
conspiracy or unity in criminal purpose
and cooperation in the commission of
the offense by performing another act
without which it would not have been
accomplished. 16 In order that a person
may be considered an accomplice, the
following requisites must concur: (a)
community of design, i.e., knowing that
criminal design of the principal by direct
participation, he concurs with the latter
in his purpose; (b) he cooperates in the
execution of the offense by previous or
simultaneous acts; and, (c) there must
be a relation between the acts done by
the principal and those attributed to the
person charged as accomplice.
The cooperation that the law punishes is
the assistance knowingly or intentionally
rendered, which cannot exist without
previous cognizance of the criminal act
intended to be executed. 17 It is therefore
required in order to be liable either as a
principal by indispensable cooperation,
or as an accomplice, that the accused
must unite with the criminal design of
the principal by direct participation.
There is indeed nothing on record to
show that appellant knew that Bernales
was going to stab Palma, thus creating a
doubt as to appellant's criminal intent.
The appellant asserts that it was error
for the trial court to consider "abuse of
superior strength" as qualifying the
killing to murder when such
circumstance is not alleged in the
Information. The accused is correct,
although it could have been considered
nonetheless as a generic aggravating
circumstance even if not so
alleged. 18 However, this is no longer
significant considering the conclusion
herein reached.
The defense of the accused is alibi,
which is the weakest of defenses. But
the case against him must still fail since
the evidence of the prosecution is even
weaker; for, as it has been repeated
often enough, the conviction of the
accused must not rest on the weakness
of the defense but on the strength of the
prosecution. 19

WHEREFORE, the decision appealed from is

REVERSED and accused-appellant
EDUARDO JORGE Y RAMIREZ is
ACQUITTED of the crime charged.
Accordingly, it appearing that he is detained,
his immediate release from custody is ordered
unless he is held for another cause.

SO ORDERED.

Cruz, Davide, Jr., Bellosillo, Quiason and

Kapunan, JJ., concur.