G.R. Nos.
L-39303-39305             March 17, 1934 A careful study and examination of the evidence presented disclose the following
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffs-appellee,
vs.
FELIPE KALALO, ET AL., defendants.
FELIPE KALALO, MARCELO KALALO, JUAN KALALO, and GREGORIO
RAMOS, appellants.
Meynardo M. Farol and Feliciano Gomez for appellants.
Acting Solicitor-General Peña for appellee.
DIAZ, J.:
On November 10, 1932, the herein appellants Felipe Kalalo, Marcelo Kalalo, Juan
Kalalo, and Gregorio Ramos, were tried in the Court of First Instance of Batangas
jointly with Alejandro Garcia, Fausta Abrenica and Alipia Abrenica in criminal cases
Nos. 6858, 6859 and 6860, the first two for murder, and the last for frustrated murder.
Upon agreement of the parties said three cases were tried together and after the
presentation of their respective evidence, the said court acquitted Alejandro Garcia,
Fausta Abrenica and Alipia Abrenica, and sentenced the appellants as follows:
In case No. 6858, for the alleged murder of Marcelino Panaligan, to seventeen years,
four months and one day of reclusion temporal, with the corresponding accessory
penalties, and to indemnify the heirs of the said deceased Marcelino Panaligan in the
sum of P1,000, with the costs.
In case No. 6859, for the alleged murder of Arcadio Holgado, to seventeen years, four
months and one day of reclusion temporal, with the corresponding accessory
penalties, and to indemnify the heirs of the aforesaid victim, the deceased Arcadio
Holgado, in the sum of P1,000, with the costs.
In the third case, that is, No. 6860, wherein the court a quo held that the crime
committed was simply that of discharge of firearm, not frustrated murder, the
appellant Marcelo Kalalo was sentenced to one year, eight months and twenty-one
days of prision correccional and to pay the proportionate part of the costs of the
proceedings. Felipe Kalalo and Juan Kalalo, as well as their co-accused Fausta and
Alipia Abrenica, Gregorio Ramos and Alejandro Garcia, were acquitted of the charges
therein.
The accused in the aforesaid three cases appealed from their respective sentences
assigning six alleged errors as committed by the trial court, all of which may be
discussed jointly in view of the fact that they raise only one question, to wit: whether
or not said sentences are in accordance with law.
facts: Prior to October 1, 1932, the date of the commission of the three crimes alleged
in the three informations which gave rise to the aforesaid three cases Nos. 6858,
6859 and 6860, the appellant Marcelo Kalalo or Calalo and Isabela Holgado or
Olgado, the latter being the sister of the deceased Arcadio Holgado and a cousin of
the other deceased Marcelino Panaligan, had a litigation over a parcel of land
situated in the barrio of Calumpang of the municipality of San Luis, Province of
Batangas. On September 28, 1931, and again on December 8th of the same year,
Marcelo Kalalo filed a complaint against the said woman in the Court of First Instance
of Batangas. By virtue of a motion filed by his opponent Isabela Holgado, his first
complaint was dismissed on December 7, 1931, and his second complaint was
likewise dismissed on February 5, 1932. Marcelo Kalalo cultivated the land in
question during the agricultural years 1931 and 1932, but when harvest time came
Isabela Holgado reaped all that had been planted thereon.
On October 1, 1932, Isabela Holgado and her brother Arcadio Holgado, one of the
deceased, decided to order the aforesaid land plowed, and employed several
laborers for that purpose. These men, together with Arcadio Holgado, went to the said
land early that day, but Marcelo Kalalo, who had been informed thereof, proceeded to
the place accompanied by his brothers Felipe and Juan Kalalo, his brother-in-law
Gregorio Ramos and by Alejandro Garcia, who were later followed by Fausta
Abrenica and Alipia Abrenica, mother and aunt, respectively, of the first three.
The first five were all armed with bolos. Upon their arrival at the said land, they
ordered those who were plowing it by request of Isabela and Arcadio Holgado, to
stop, which they did in view of the threatening attitude of those who gave them said
order.1ªvvphi1.ne+
Shortly after nine o'clock on the morning of the same day, Isabela Holgado, Maria
Gutierrez and Hilarion Holgado arrived at the place with food for the laborers. Before
the men resumed their work, they were given their food and not long after they had
finished eating, Marcelino Panaligan, cousin of said Isabela and Arcadio, likewise
arrived. Having been informed of the cause of the suspension of the work, Marcelino
Panaligan ordered said Arcadio and the other laborers to again hitch their respective
carabaos to continue the work already began. At this juncture, the appellant Marcelo
Kalalo approached Arcadio, while the appellants Felipe Kalalo, Juan Kalalo and
Gregorio Ramos, in turn, approached Marcelino Panaligan. At a remark from Fausta
Abrenica, mother of the Kalalos, about as follows, "what is detaining you?" they all
simultaneously struck with their bolos, the appellant Marcelo Kalalo slashing Arcadio
Holgado, while the appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos
slashed Marcelino Panaligan, inflicting upon them the wounds enumerated and
described in the medical certificates Exhibits I and H. Arcadio Holgado and Marcelino
Panaligan died instantly from the wounds received by them in the presence of Isabela
Holgado and Maria Gutierrez, not to mention the accused. The plowmen hired by
Arcadio and Isabela all ran away.
1 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Arcadio Holgado's body bore the following six wounds, to wit:
1. A cut wound on the ulnar side of right arm near the wrist, cutting the ulnar
bone completely and, the radius partially.
2. A cut wound on the anterior upper portion of the left arm measuring about
7 cm. long and 5 cm. wide extending to the bone and cutting the deltoid
muscle across.
3. A penetrating wound on the left chest just below the clavicle going thru the
first intercostal space measuring about 8 cm. long and 2 cm wide.
4. A wound on the left side of the back about 20 cm. long following the 10th
intercostal space and injuring the lung, diaphragm, stomach and large
intestine.
5. A small superficial cut wound about 2 cm. long and ½ cm. wide situated
on the inner side of the right scapula.
6. A superficial wound barely cutting the skin, about 4 cm. long in the lumbar
region just to the right of the spinal column. (Exhibit I.)
Marcelino Panaligan's body, in turn, bore the following fourteen wounds, to wit:
1. A penetrating cut wound in the epigastric region of the abdomen
measuring about 7 cm. long and 3 cm. wide cutting the omentum and
injuring the lower portion of the stomach and a portion of the transverse
colon, but no actual perforation of either one of the two organs.
2. A cut wound on the head just above the forehead about 6 cm. long and 4
cm. wide lifting a portion of scalp as a flap.
3. A cut wound on the left side of the head measuring about 7 cm. long and
2 cm. wide.
4. A cut wound about 12 cm. long across the face just below the eyes
extending from one cheek bone to the other, perforating the left antrum and
cutting the nasal bone.
5. A cut wound on the anterior portion of the left forearm extending to the
bone with a flap of skin and muscle which measures about 12 cm long and 6
cm. wide.
6. A cut wound across the dorsal side of the right hand about 5 cm. long and
2 cm. wide cutting the bones of the hand.
7. A superficial wound about 6 cm. long and 4 cm. wide and 2 cm. deep
situated in the left axilla.
8. A cut wound about 6 cm. long and 2 cm. wide situated over the left
scapula.
9. A cut wound on the right shoulder about 6 cm. long passing near the inner
angle of the scapula cutting the muscles of the shoulder.
10. A cut wound about 7 cm. long and 3 cm. wide situated near and almost
parallel to the inner border of the right scapula.
11. A wound on the back of the head, oval in shape, about 10 cm. long and
5 cm. wide from which a flap of scalp was removed.
12. A wound across the back and left side of the neck about 12 cm. long and
7 cm. deep cutting the vertebral column together with the great arteries and
veins on the left side of the neck.
13. A wound about 15 cm. long and 4 cm. wide on the left side of the back.
14. A small wound on the left thumb from which a portion of the bone and
other tissues were removed. (Exhibit H.)
The above detailed description of the wounds just enumerated discloses — and there
is nothing of record to contradict it all of them were caused by a sharp instrument or
instruments.
After Arcadio Holgado and Marcelino Panaligan had fallen to the ground dead, the
appellant Marcelo Kalalo took from its holster on the belt of Panaligans' body, the
revolver which the deceased carried, and fired four shots at Hilarion Holgado who
was then fleeing from the scene inorder to save his own life.
The appellants attempted to prove that the fight, which resulted in the death of the
two deceased, was provoked by Marcelino Panaligan who fired a shot at Marcelo
Kalalo upon seeing the latter's determination to prevent Arcadio Holgado and his men
from plowing the land in question. No such firing, however, can be taken into
consideration, in the first place, because of the existence of competent evidence such
as the testimony of Maria Gutierrez, who is a disinterested witness, which
corroborates that of Isabela Holgado in all its details, showing that the said deceased
was already lying prostrate and lifeless on the ground when the appellant Marcelo
2 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Kalalo approached him to take his revolver for the purpose of using it, as he in fact
did, against Hilarion Holgado; in the second place, because the assault and
aggression of the said appellant were not directed against said Marcelino Panaligan
but exclusively against Arcadio Holgado, the evidence of record on this point being
overwhelming, and if his claim were true, he naturally should have directed his attack
at the person who openly made an attempt against his life; in the third place, because
the evidence shows without question that Panaligan was an expert shot with a
revolver, and among the eight wounds that the appellant Marcelo Kalalo received
(Exhibit 3), not one appears to have been caused by bullet, and similarly, none of the
other appellants received any wound that might, in any way, suggest the possibility of
having been caused by bullet; and finally, because the fact that he and his co-
appellants, together with those who had been charged jointly with them, had gone to
the place of the crime armed with bolos, determined at any cost to prevent the
Holgados from plowing the land in dispute, cannot but disclose not only their
determination to resort to violence or something worse, but that they did not need any
provocation in order to carry out their intent.
They likewise attempted to prove that the appellant Marcelo Kalalo alone fought
against the deceased Marcelino Panaligan and Arcadio Holgado and inflicted upon
them the wounds which resulted in their death, said appellant testifying that he was
compelled to do so in defense of his own life because both of the deceased attacked
him first, the former with a revolver, firing three shots at him, and the latter with a bolo.
For the same reasons hereinbefore stated, such defense of the appellants cannot be
given credit. One man alone could not have inflicted on the two deceased their
multiple wounds, particularly when it is borne in mind that one of them was better
armed, because he carried a revolver, and that he was furthermore an expert shot
and scarcely two arm-lengths from Kalalo, according to the latter's own testimony.
The two witnesses for the defense, who witnessed the crime very closely, refuted
such allegation saying that Marcelo Kalalo alone fought the deceased Arcadio
Holgado and that the other three appellants went after the other deceased. It is true
that Arcadio Holgado also used his bolo to defend himself from Marcelo Kalalo's
aggression but it is no less true that five of the principal wounds of the other
deceased Marcelino Panaligan were inflicted on him from behind, inasmuch as
according to Exhibit H they were all found at the back of the head, on the neck and on
his back. Neither is it less true that all the wounds of the appellant Marcelo Kalalo
were inflicted on him from the front, which fact shows that it was not he alone who
inflicted the wounds on the two deceased because had he been alone Panaligan
would not have exposed his back to be thus attacked from behind, inasmuch as he
was armed with a revolver, which circumstance undoubtedly allowed him to keep at a
distance from Kalalo; and in connection with the testimony of Isabela Holgado and
Maria Gutierrez, said circumstance shows furthermore that the three appellants Felipe
Kalalo, Juan Kalalo and Gregorio Ramos attacked said Panaligan with their
respective bolos at the same time that Marcelo Kalalo attacked Arcadio Holgado, in
order that all might act simultaneously in conformity with the common intent of the
four and of their coaccused to eliminate through violence and at any cost, without
much risk to them, all those who wanted to plow the land which was the cause of the
dispute between the two parties. And it is not strange that the three appellants, who
inflicted the wounds upon Marcelino Panaligan, should act as they did, because they
knew that the latter carried a revolver in a holster on his belt.
Although it may seem a repetition or redundancy, it should be stated that Marcelo
Kalalo's allegation that he acted in self-defense is absolutely unfounded on the
ground that, were it true that the deceased Marcelino Panaligan succeeded in using
his revolver, he would have wounded if not the said appellant, at least the other
appellants.
The trial court has acted correctly in not giving credit to the testimony of the
appellants Juan and Felipe Kalalo and Gregorio Ramos that they proceeded to the
scene of the crime completely unarmed, with the exception that one of them had a
brush in his hand and the other a plane, after Marcelino Panaligan and Arcadio
Holgado had already expired, which is incredible and improbable under the
circumstances, knowing, as in fact they then knew, that their brother Marcelo Kalalo
had been attacked by armed men. This court cannot help but agree with the decision
of the lower court where it states:
It is improbable that after having been informed that their brother was
engaged in a fight, they went to the scene of the crime, one merely armed
with a plane and the other with a brush. It is improbable that Felipe Kalalo
also went to that place simply to follow Juan Kalalo and Gregorio Ramos
upon seeing them run unarmed in that direction. These improbabilities of the
defenses of the accused, in the face of the positive and clear testimony of
the eyewitnesses pointing to the said accused as the aggressors of the
deceased Marcelino Panaligan and Arcadio Holgado, cannot, of course,
prevail against nor detract from the weight of the evidence of the
prosecution, particularly taking into consideration the numerous wounds of
each of the deceased and the positions thereof, which show that the said
deceased were attacked by several persons and that those several persons
were the defendants. Furthermore, the established fact that after the
commission of the crime the said defendants had been in hiding in order to
avoid arrest, is corroborative evidence of their guilt.
It certainly is a fact of record that the said three appellants Felipe Kalalo, Juan Kalalo
and Gregorio Ramos were not arrested until after several days, because they had
been hiding or, at least, absenting themselves from their homes.
That the four appellants should all be held liable for the death of the two deceased
leaves no room for doubt. All of them, in going to the land where the killing took place,
were actuated by the same motive which was to get rid of all those who might insist
on plowing the land which they believed belonged to one of them, that is, to Marcelo
Kalalo, a fact naturally inferable from the circumstance that all of them went there fully
armed and that they simultaneously acted after they had been instigated by their
mother with the words hereinbefore stated, to wit: "What is detaining you?"
3 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
The question now to be decided is whether the appellants are guilty of murder or of
simple homicide in each of cases G.R. No. L-39303 and G.R. No. L-39304. The
Attorney-General maintains that they are guilty of murder in view of the presence of
the qualifying circumstance of abuse of superior strength in the commission of the
acts to which the said two cases particularly refer. The trial court was of the opinion
that they are guilty of simple homicide but with the aggravating circumstance of abuse
of superior strength.
It is true that under article 248 of the Revised Penal Code, which defines murder, the
circumstance of "abuse of superior strength", if proven to have been presented, raises
homicide to the category of murder; but this court is of the opinion that said
circumstance may not properly be taken into consideration in the two cases at bar,
either as a qualifying or as a generic circumstance, if it is borne in mind that the
deceased were also armed, one of them with a bolo, and the other with a revolver.
The risk was even for the contending parties and their strength was almost balanced
because there is no doubt but that, under circumstances similar to those of the
present case, a revolver is as effective as, if not more than three bolos. For this
reason, this court is of the opinion that the acts established in cases Nos. 6858 and
6859 (G.R. Nos. L-39303 and 39304, respectively), merely constitute two homicides,
with no modifying circumstance to be taken into consideration because none has
been proved.
As to case No. 6860 (G.R. No. 39305), the evidence shows that Marcelo Kalalo fired
four successive shots at Hilarion Holgado while the latter was fleeing from the scene
of the crime in order to be out of reach of the appellants and their companions and
save his own life. The fact that the said appellant, not having contended himself with
firing only once, fired said successive shots at Hilarion Holgado, added to the
circumstance that immediately before doing so he and his co-appellants had already
killed Arcadio Holgado and Marcelino Panaligan, cousin and brother-in-law,
respectively, of the former, shows that he was then bent on killing said Hilarion
Holgado. He performed everything necessary on his pat to commit the crime that he
determined to commit but he failed by reason of causes independent of his will, either
because of his poor aim or because his intended victim succeeded in dodging the
shots, none of which found its mark. The acts thus committed by the said appellant
Marcelo Kalalo constitute attempted homicide with no modifying circumstance to be
taken into consideration, because none has been established.
Wherefore, the three appealed sentences are hereby modified as follows:
In case No. 6858, or G.R. No. 39303, the court finds that the crime committed by the
appellants is homicide and they hereby sentenced to fourteen years, eight months
and one day of reclusion temporal each, to jointly and severally indemnify the heirs of
Marcelino Panaligan in the sum of P1,000 and to pay the proportionate part of the
costs of the proceedings of both instances; and by virtue of the provisions of Act No.
4103, the minimum of the said penalty of reclusion temporal is hereby fixed at nine
years;
In case No. 6859, or G.R. No. 39304, the court likewise finds that the crime
committed by the appellants is homicide, and they are hereby sentenced to fourteen
years, eight months and one day of reclusion temporal each, to jointly and severally
indemnify the heirs of Arcadio Holgado in the sum of P1,000 and to pay the
proportionate part of the costs of both instances; and in conformity with the provisions
of Act No. 4103, the minimum of the penalty of reclusion temporal herein imposed
upon them is hereby fixed at nine years;
In case No. 6860, or G.R. No. 39305, the court finds that the crime committed by the
appellant Marcelo Kalalo is attempted homicide, and he is hereby sentenced to two
years, four months and one day of prision correccional, it being understood that by
virtue of the provisions of said Act No. 4103, the minimum of this penalty is six
months, and he is furthermore sentenced to pay the costs of the appeal in this case.
In all other respects, the appealed sentences in the said three cases are hereby
affirmed without prejudice to crediting the appellants therein with one-half of the time
during which they have undergone preventive imprisonment, in accordance with
article 29 of the Revised Penal Code. So ordered.
G.R. No. L-5848             April 30, 1954
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SY PIO, alias POLICARPIO DE LA CRUZ, defendant-appellant.
Exequiel Zaballero, Jr. for appellant.
Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio Villamor for
appellee.
LABRADOR, J.:
This is an appeal from a judgment of the Court of First Instance of Manila finding the
defendant-appellant herein Sy Pio, alias Policarpio de la Cruz, guilty of frustrated
murder against the person of Tan Siong Kiap, and sentencing him to suffer an
indeterminate sentence of 6 years, 1 month, and 11 days of prision mayor, to 14
years, 8 months, and 1 day of reclusion temporal, to indemnify the offended party Tan
Siong Kiap in the sum of P350, without subsidiary imprisonment in case of insolvency,
and to pay the costs. The case was appealed to the Court of Appeals, but that court
certified it to this Court under the provisions of section 17 (4) of Republic Act No. 296,
on the ground that the crime charged was committed on the same occasion that the
defendant-appellant had committed crime of murder, with which the defendant-
appellant was also charged.
The evidence for the prosecution shows that early in the morning of September 3,
1949, the defendant-appellant entered the store at 511 Misericordia, Sta Cruz,
4 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Manila. Once inside he started firing a .45 caliber pistol that he had in his hand. The
first one shot was Jose Sy. Tan Siong Kiap, who was in the store and saw the
accused enter and afterwards fire a shot at Jose Sy, asked the defendant-appellant,
"What is the idea?" Thereupon defendant-appellant turned around and fired at him
also. The bullet fired from defendant-appellant's pistol entered the right shoulder of
Tan Siong Kiap immediately ran to a room behind the store to hide. From there he still
heard gunshot fired from defendant-appellant's pistol, but afterwards defendant-
appellant ran away.
Tan Siong Kiap was brought to the Chinese General Hospital, where his wound was
treated. He stayed there from September 3 to September 12, 1949, when he was
released upon his request and against the physician's advice. He was asked to return
to the hospital for further treatment, and he did so five times for a period of more than
ten days. Thereafter his wound was completely healed. He spent the sum of P300 for
hospital and doctor's fees.
The defendant-appellant shot two other persons in the morning of September 3,
1949, before shooting and wounding Tan Siong Kiap; one was Ong Pian and the
other Jose Sy. On September 5 information was received by the Manila Police
Department that defendant-appellant was in custody of the Constabulary in Tarlac, so
a captain of the Manila police by the name of Daniel V. Lomotan proceeded to Tarlac.
There he saw the defendant-appellant and had a conversation with him. On this
occasion defendant-appellant and had a conversation with him. On this occasion
defendant-appellant admitted to Lomotan that his victims were Tan Siong Kiap, Ong
Pian, and Jose Sy. The Constabulary in Tarlac also delivered to Lomotan the pistol
used by the defendant-appellant, marked Exhibit C, and its magazine, Exhibit C-1,
both of which the Constabulary had confiscated from the defendant-appellant. The
defendant-appellant was thereupon delivered to the custody of Lomotan, and the
latter brought him to Manila, where his statement was taken down in writing. This
declaration was submitted at the time of the trial as Exhibit D, and it contains all the
details of the assaults that defendant-appellant 3 against the persons of Tan Siong
Kiap, Ong Pian, and Jose Sy. This written statement was taken down on a typewriter
and afterwards signed by the defendant-appellant in both his Chinese and Filipino
names, the latter being Policarpio de la Cruz.
According to the declaration of the defendant-appellant, some months prior to
September 3, 1949, he was employed as an attendant in a restaurant belonging to
Ong Pian. Defendant-appellant's wife by the name of Vicenta was also employed by
Ong Pian's partner, Eng Cheng Suy. Prior to September 3 the relatives of his wife had
been asking the latter for help, because her father was sick. Defendant-appellant
asked money from Ong Pian, but the latter could only give him P1. His wife was able
to borrow P20 from her employer, and this was sent to his wife's parents in Cebu.
Afterwards defendant-appellant was dismissed from his work at the restaurant of Ong
Pian, and he became a peddler. Ong Pian presented a list of the sums that
defendant-appellant had borrowed from him, and these sums were deducted from the
salary of his wife. Defendant-appellant did not recognize these sums as his
indebtedness, and so he resented Ong Pian's conduct.
As to Tan Siong Kiap, the confession states that a few days before September 3,
1949, defendant-appellant had been able to realize the sum of P70 from the sales of
medicine that he peddled. He laid his money in a place in his room, but the following
morning he found that it had disappeared from the place in which he had placed it.
Tan Siong Kiap and Jose Sy, upon the discovery of the loss of money, told
defendant-appellant that he must have given the money to his wife, and that nobody
had stolen it. After this incident of the loss, the defendant-appellant used to hear Tan
Siong Kiap and Jose Sy and other Chinamen say that the money had not been
actually stolen, but that he lost it in gambling. Because of these accusations against
him, he nurtured resentment against both Tan Siong Kiap and Jose Sy.
So early in the morning of September 3, while a Chinaman by the name of Ngo Cho,
who the possessor of a caliber .45 pistol, was away from his room, defendant-
appellant got his pistol and tucked it in his belt. With this pistol he went to the
restaurant at 822 Ongpin, and there shot Ong Pian. After shooting him, he proceeded
to 511 Misericordia, in store where Jose Sy and Tan Siong Kiap were, and there he
fired at them. Then he escaped to Legarda Street, in Sampaloc, where he borrowed
P1 from his relatives. From there he went to Malabon, to the house of his mother, to
whom he told he had killed two persons and from he asked money.
The foregoing is the substance of the written declaration made by the defendant-
appellant in Exhibit D on September 6, 1949. At the time of the trial, however, he
disowned the confession and explained that he signed it without having read its
contents. He declared that it was not he who shot the three victims, but it was one by
the name of Chua Tone, with whom he had previously connived to kill the three other
victims. He introduced no witnesses, however, to support his denial. Neither did he
deny that he admitted before Captain Lomotan having killed the three persons, or
having been found in Tarlac in possession of the caliber .45 pistol, Exhibit C, and its
magazine, Exhibit C-1. In his cross-examination he admitted many of the incidents
mentioned in the confession, especially the cause of his resentment against his
victims Ong Pian, Jose Sy, and Tan Siong Kiap.
The trial court refused to believed his testimony, and therefore, found him guilty of the
crime charged.
On this appeal counsel for the defendant-appellant claims that the trial court erred in
not finding that Tan Siong Kiap received the shot accidentally from the same bullet
that had been fired at Jose Sy, and in finding that defendant-appellant has committed
a crime distinct and separate from that of murder for the slaying of Jose Sy. We find
no merit in this contention. According to the uncontradicted testimony of the offended
party Tan Siong Kiap, when the latters saw defendant-appellant firing shots he asked
him why he was doing so, and the defendant-appellant, instead of answering him,
turned around and fired at him also. It is not true, therefore, that the shot which hit him
was fired at Sy.
5 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
It is also contended that the evidence is not sufficient to sustain the judgment of
conviction. We also find no merit in this contention. The evidence submitted to prove
the charge consists of: the uncontradicted testimony of the victim himself; the
admissions made verbally by the defendant-appellant before Captain Lomotan in
Tarlac; the fact that the defendant-appellant had escaped and was found in Tarlac;
his possession of the .45 caliber pistol coupled with the fact, attested to by the
testimony of the physician who examined and treated the wounds of Tan Siong Kiap,
that the wounds found in his person must have been caused by the caliber .45 bullet;
and, lastly, the confession of the defendant-appellant himself, Exhibit D, which he was
not able to impugn. As against this mass of evidence, defendant-appellant has only
made a very unbelievable story that it was not he but another that had committed the
crime charged. His admissions at the time of the trial regarding the incidents, as well
as the cause of his having assaulted his victims, coincide exactly with the reasons
given in his written confession. This shows that he had made the confession himself,
for nobody but himself could have known the facts therein stated. The claim that the
offense has not been proved beyond reasonable doubt must be dismissed.
The defendant-appellant lastly claims that the lower court also erred in sentencing
him to pay an indemnity of P350. The offended party testified that he actually spent
P300 for hospital and doctor's fees, and that he was confined in the hospital for nine
days. The above facts stand uncontradicted. This assignment of error must also be
dismissed.
It is lastly contended that the defendant-appellant should be found guilty only of less
serious physical injuries instead of the crime of frustrated murder as defendant-
appellant admitted in his confession in the open court that he had a grudge against
the offended party, and that he connived with another to kill the latter. The intent to kill
is also evident from his conduct in firing the shot directly at the body of the offended
party.
But while intent to kill is conclusively proved the wound inflicted was not necessarily
fatal, because it did not touch any of the vital organs of the body. As a matter of fact,
the medical certification issued by the physician who examined the wound of the
offended party at the time he went to the hospital, states that the wound was to heal
within a period of fourteen days, while the offended party actually stayed in the
hospital for nine days and continued receiving treatment thereafter five time for the
period of more than ten days, or a total of not more than thirty days. The question that
needs to be determined, therefore, is: Did the defendant-appellant perform all the acts
of execution necessary to produce the death of his victim?
In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. Dagman,  47 Phil., 768
and People vs. Borinaga, 55 Phil., 433, this Court has held that it is not necessary
that the accused actually commit all the acts of execution necessary to produce the
death of his victim, but that it is sufficient that he believes that he has committed all
said acts. In the case of People vs. Dagman, supra, the victim was first knocked down
by a stone thrown at him, then attacked with a lance, and then wounded by bolos and
clubs wielded by the accused, but the victim upon falling down feigned death, and the
accused desisted from further continuing in the assault in the belief that their victim
was dead. And in the case of People vs. Borinaga, supra, the accused stabbed his
intended victim, but the knife with which he committed the aggression instead of
hitting the body of the victim, lodged in the back of the chair in which he was seated,
although the accused believed that he had already harmed him. In both these cases
this Court held that of the crime committed was that of frustrated murder, because the
subjective phase of the acts necessary to commit the offense had already passed;
there was full and complete belief on the part of the assailant that he had committed
all the acts of execution necessary to produce the death of the intended victim.
In the case at bar, however, the defendant-appellant fired at his victim, and the latter
was hit, but he was able to escape and hide in another room. The fact that he was
able to escape, which appellant must have seen, must have produced in the mind of
the defendant-appellant that he was not able to his his victim at a vital part of the
body. In other words, the defendant-appellant knew that he had not actually all the
acts of execution necessary to kill his victim. Under these circumstances, it can not be
said that the subjective phase of the acts of execution had been completed. And as it
does not appear that the defendant-appellant continued in the pursuit, and as a
matter of fact, he ran away afterwards a reasonable doubt exist in our mind that the
defendant-appellant had actually believed that he has committed all the acts of
execution or passed the subjective phase of the said acts. This doubt must be
resolved in favor of the defendant-appellant.
We are, therefore, not prepared to find the defendant-appellant guilty of frustrated
murder, as charged in the information. We only find him guilty of attempted murder,
because he did not perform all the acts of execution, actual and subjective, in order
that the purpose and intention that he had to kill his victim might be carried out.
Therefore, the judgment appealed from should be, as it is hereby, modified and the
defendant-appellant is found guilty of the crime of attempted murder, and the
sentence imposed upon him reduced to an indeterminate penalty of from 4 years, 2
months, and 1 day of prision correccional to 10 years of prision mayor. In all other
respects the judgment is affirmed. With costs against the defendant-appellant.
G. R. No. 160188              June 21, 2007
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS
NACHURA, respondents.
6 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
 DECISION
TINGA, J.:
This case aims for prime space in the firmament of our criminal law jurisprudence.
Petitioner effectively concedes having performed the felonious acts imputed against
him, but instead insists that as a result, he should be adjudged guilty of frustrated
theft only, not the felony in its consummated stage of which he was convicted. The
proposition rests on a common theory expounded in two well-known
decisions1 rendered decades ago by the Court of Appeals, upholding the existence of
frustrated theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.
As far as can be told,2 the last time this Court extensively considered whether an
accused was guilty of frustrated or consummated theft was in 1918, in People v.
Adiao.3 A more cursory
treatment of the question was followed in 1929, in People v. Sobrevilla, 4 and in 1984,
in Empelis v. IAC.5 This petition now gives occasion for us to finally and fully measure
if or how frustrated theft is susceptible to commission under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an
Information6 charging petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon
(Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner
and Calderon were sighted outside the Super Sale Club, a supermarket within the
ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a security
guard who was then manning his post at the open parking area of the supermarket.
Lago saw petitioner, who was wearing an identification card with the mark "Receiving
Dispatching Unit (RDU)," hauling a push cart with cases of detergent of the well-
known "Tide" brand. Petitioner unloaded these cases in an open parking space,
where Calderon was waiting. Petitioner then returned inside the supermarket, and
after five (5) minutes, emerged with more cartons of Tide Ultramatic and again
unloaded these boxes to the same area in the open parking space.7
Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and
directed it towards the parking space where Calderon was waiting. Calderon loaded
the cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts
were eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking
area. When Lago asked petitioner for a receipt of the merchandise, petitioner and
Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow
security guards of the incident. Petitioner and Calderon were apprehended at the
scene, and the stolen merchandise recovered.8 The filched items seized from the duo
were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3)
additional cases of detergent, the goods with an aggregate value of ₱12,090.00.9
Petitioner and Calderon were first brought to the SM security office before they were
transferred on the same day to the Baler Station II of the Philippine National Police,
Quezon City, for investigation. It appears from the police investigation records that
apart from petitioner and Calderon, four (4) other persons were apprehended by the
security guards at the scene and delivered to police custody at the Baler PNP Station
in connection with the incident. However, after the matter was referred to the Office of
the Quezon City Prosecutor, only petitioner and Calderon were charged with theft by
the Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after
the incident.10
After pleading not guilty on arraignment, at the trial, petitioner and Calderon both
claimed having been innocent bystanders within the vicinity of the Super Sale Club on
the afternoon of 19 May 1994 when they were haled by Lago and his fellow security
guards after a commotion and brought to the Baler PNP Station. Calderon alleged
that on the afternoon of the incident, he was at the Super Sale Club to withdraw from
his ATM account, accompanied by his neighbor, Leoncio Rosulada. 11 As the queue
for the ATM was long, Calderon and Rosulada decided to buy snacks inside the
supermarket. It was while they were eating that they heard the gunshot fired by Lago,
leading them to head out of the building to check what was
transpiring. As they were outside, they were suddenly "grabbed" by a security guard,
thus commencing their detention.12 Meanwhile, petitioner testified during trial that he
and his cousin, a Gregorio Valenzuela,13 had been at the parking lot, walking beside
the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they
saw the security guard Lago fire a shot. The gunshot caused him and the other
people at the scene to start running, at which point he was apprehended by Lago and
brought to the security office. Petitioner claimed he was detained at the security office
until around 9:00 p.m., at which time he and the others were brought to the Baler
Police Station. At the station, petitioner denied having stolen the cartons of detergent,
but he was detained overnight, and eventually brought to the prosecutor’s office
where he was charged with theft.14 During petitioner’s cross-examination, he admitted
that he had been employed as a "bundler" of GMS Marketing, "assigned at the
supermarket" though not at SM.15
In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of
Quezon City, Branch 90, convicted both petitioner and Calderon of the crime of
consummated theft. They were sentenced to an indeterminate prison term of two (2)
years of prision correccional as minimum to seven (7) years of prision mayor as
maximum.17 The RTC found credible the testimonies of the prosecution witnesses and
established the convictions on the positive identification of the accused as
perpetrators of the crime.
7 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Both accused filed their respective Notices of Appeal,18 but only petitioner filed a
brief19 with the Court of Appeals, causing the appellate court to deem Calderon’s
appeal as abandoned and consequently dismissed. Before the Court of Appeals,
petitioner argued that he should only be convicted of frustrated theft since at the time
he was apprehended, he was never placed in a position to freely dispose of the
articles stolen.20 However, in its Decision dated 19 June 2003, 21 the Court of Appeals
rejected this contention and affirmed petitioner’s conviction.22 Hence the present
Petition for Review,23 which expressly seeks that petitioner’s conviction "be modified
to only of Frustrated Theft."24
Even in his appeal before the Court of Appeals, petitioner effectively conceded both
his felonious intent and his actual participation in the theft of several cases of
detergent with a total value of ₱12,090.00 of which he was charged. 25 As such, there
is no cause for the Court to consider a factual scenario other than that presented by
the prosecution, as affirmed by the RTC and the Court of Appeals. The only question
to consider is whether under the given facts, the theft should be deemed as
consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner cites26 two
decisions rendered many years ago by the Court of Appeals: People v. Diño27 and
People v. Flores.28 Both decisions elicit the interest of this Court, as they modified trial
court convictions from consummated to frustrated theft and involve a factual milieu
that bears similarity to the present case. Petitioner invoked the same rulings in his
appeal to the Court of Appeals, yet the appellate court did not expressly consider the
import of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to the Diño and
Flores rulings since they have not yet been expressly adopted as precedents by this
Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not come to pass
before us. Yet despite the silence on our part, Diño and Flores have attained a level
of renown reached by very few other appellate court rulings. They are
comprehensively discussed in the most popular of our criminal law annotations, 29 and
studied in criminal law classes as textbook examples of frustrated crimes or even as
definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios
that populate criminal law exams more than they actually occur in real life. Indeed, if
we finally say that Diño and Flores are doctrinal, such conclusion could profoundly
influence a multitude of routine theft prosecutions, including commonplace shoplifting.
Any scenario that involves the thief having to exit with the stolen property through a
supervised egress, such as a supermarket checkout counter or a parking area pay
booth, may easily call for the application of Diño and Flores. The fact that lower courts
have not hesitated to lay down convictions for frustrated theft further validates that
Diño and Flores and the theories offered therein on frustrated theft have borne some
weight in our jurisprudential system. The time is thus ripe for us to examine whether
those theories are correct and should continue to influence prosecutors and judges in
the future.
III.
To delve into any extended analysis of Diño  and  Flores, as well as the specific issues
relative to "frustrated theft," it is necessary to first refer to the basic rules on the three
stages of crimes under our Revised Penal Code.30
Article 6 defines those three stages, namely the consummated, frustrated and
attempted felonies. A felony is consummated "when all the elements necessary for its
execution and accomplishment are present." It is frustrated "when the offender
performs all the acts of execution which would produce the felony as a consequence
but which, nevertheless, do not produce it by reason of causes independent of the will
of the perpetrator." Finally, it is attempted "when the offender commences the
commission of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause or accident
other than his own spontaneous desistance."
Each felony under the Revised Penal Code has a "subjective phase," or that portion
of the acts constituting the crime included between the act which begins the
commission of the crime and the last act performed by the offender which, with prior
acts, should result in the consummated crime.31 After that point has been breached,
the subjective phase ends and the objective phase begins. 32 It has been held that if
the offender never passes the subjective phase of the offense, the crime is merely
attempted.33 On the other hand, the subjective phase is completely passed in case of
frustrated crimes, for in such instances, "[s]ubjectively the crime is complete."34
Truly, an easy distinction lies between consummated and frustrated felonies on one
hand, and attempted felonies on the other. So long as the offender fails to complete
all the acts of execution despite commencing the commission of a felony, the crime is
undoubtedly in the attempted stage. Since the specific acts of execution that define
each crime under the Revised Penal Code are generally enumerated in the code
itself, the task of ascertaining whether a crime is attempted only would need to
compare the acts actually performed by the accused as against the acts that
constitute the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or consummated
necessitates an initial concession that all of the acts of execution have been
performed by the offender. The critical distinction instead is whether the felony itself
was actually produced by the acts of execution. The determination of whether the
felony was "produced" after all the acts of execution had been performed hinges on
the particular statutory definition of the felony. It is the statutory definition that
8 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
generally furnishes the elements of each crime under the Revised Penal Code, while
the elements in turn unravel the particular requisite acts of execution and
accompanying criminal intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an
important characteristic of a crime, that "ordinarily, evil intent must unite with an
unlawful act for there to be a crime," and accordingly, there can be no crime when the
criminal mind is wanting.35 Accepted in this jurisdiction as material in crimes mala in
se,36 mens rea has been defined before as "a guilty mind, a guilty or wrongful purpose
or criminal intent,"37 and "essential for criminal liability."38 It follows that the statutory
definition of our mala in se crimes must be able to supply what the mens rea of the
crime is, and indeed the U.S. Supreme Court has comfortably held that "a criminal
law that contains no mens rea requirement infringes on constitutionally protected
rights."39 The criminal statute must also provide for the overt acts that constitute the
crime. For a crime to exist in our legal law, it is not enough that mens rea be shown;
there must also be an actus reus.40
It is from the actus reus and the mens rea, as they find expression in the criminal
statute, that the felony is produced. As a postulate in the craftsmanship of
constitutionally sound laws, it is extremely preferable that the language of the law
expressly provide when the felony is produced. Without such provision, disputes
would inevitably ensue on the elemental question whether or not a crime was
committed, thereby presaging the undesirable and legally dubious set-up under which
the judiciary is assigned the legislative role of defining crimes. Fortunately, our
Revised Penal Code does not suffer from such infirmity. From the statutory definition
of any felony, a decisive passage or term is embedded which attests when the felony
is produced by the acts of execution. For example, the statutory definition of murder
or homicide expressly uses the phrase "shall kill another," thus making it clear that the
felony is produced by the death of the victim, and conversely, it is not produced if the
victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal
Code, its elements are spelled out as follows:
Art. 308. Who are liable for theft.—  Theft is committed by any person who, with intent
to gain but without violence against or intimidation of persons nor force upon things,
shall take personal property of another without the latter’s consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the
local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of another, shall
remove or make use of the fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is
forbidden or which belongs to another and without the consent of its owner, shall hunt
or fish upon the same or shall gather cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and three alternative and highly
idiosyncratic means by which theft may be committed.41 In the present discussion, we
need to concern ourselves only with the general definition since it was under it that
the prosecution of the accused was undertaken and sustained. On the face of the
definition, there is only one operative act of execution by the actor involved in theft ─
the taking of personal property of another. It is also clear from the provision that in
order that such taking may be qualified as theft, there must further be present the
descriptive circumstances that the taking was with intent to gain; without force upon
things or violence against or intimidation of persons; and it was without the consent of
the owner of the property.
Indeed, we have long recognized the following elements of theft as provided for in
Article 308 of the Revised Penal Code, namely: (1) that there be taking of personal
property; (2) that said property belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without the consent of the owner; and (5)
that the taking be accomplished without the use of violence against or intimidation of
persons or force upon things.42
In his commentaries, Judge Guevarra traces the history of the definition of theft,
which under early Roman law as defined by Gaius, was so broad enough as to
encompass "any kind of physical handling of property belonging to another against
the will of the owner,"43 a definition similar to that by Paulus that a thief "handles
(touches, moves) the property of another."44 However, with the Institutes of Justinian,
the idea had taken hold that more than mere physical handling, there must further be
an intent of acquiring gain from the object, thus: "[f]urtum est contrectatio rei
fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus
possessinisve."45 This requirement of animo lucrandi, or intent to gain, was
maintained in both the Spanish and Filipino penal laws, even as it has since been
abandoned in Great Britain.46
In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful
taking," to characterize theft. Justice Regalado notes that the concept of
apoderamiento once had a controversial interpretation and application. Spanish law
had already discounted the belief that mere physical taking was constitutive of
apoderamiento, finding that it had to be coupled with "the intent to appropriate the
object in order to constitute apoderamiento; and to appropriate means to deprive the
lawful owner of the thing."47 However, a conflicting line of cases decided by the Court
of Appeals ruled, alternatively, that there must be permanency in the taking 48 or an
intent to permanently deprive the owner of the stolen property;49 or that there was no
need for permanency in the taking or in its intent, as the mere temporary possession
by the offender or disturbance of the proprietary rights of the owner already
constituted apoderamiento.50 Ultimately, as Justice Regalado notes, the Court
9 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
adopted the latter thought that there was no need of an intent to permanently deprive
the owner of his property to constitute an unlawful taking.51
So long as the "descriptive" circumstances that qualify the taking are present,
including animo lucrandi and apoderamiento, the completion of the operative act that
is the taking of personal property of another establishes, at least, that the
transgression went beyond the attempted stage. As applied to the present case, the
moment petitioner obtained physical possession of the cases of detergent and loaded
them in the pushcart, such seizure motivated by intent to gain, completed without
need to inflict violence or intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club, petitioner forfeited the
extenuating benefit a conviction for only attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated theft, we are
obliged to apply Article 6 of the Revised Penal Code to ascertain the answer.
Following that provision, the theft would have been frustrated only, once the acts
committed by petitioner, if ordinarily sufficient to produce theft as a consequence, "do
not produce [such theft] by reason of causes independent of the will of the
perpetrator." There are clearly two determinative factors to consider: that the felony is
not "produced," and that such failure is due to causes independent of the will of the
perpetrator. The second factor ultimately depends on the evidence at hand in each
particular case. The first, however, relies primarily on a doctrinal definition attaching to
the individual felonies in the Revised Penal Code 52 as to when a particular felony is
"not produced," despite the commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or frustrated, it is
necessary to inquire as to how exactly is the felony of theft "produced." 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 latter’s consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was
charged with theft after he abstracted a leather belt from the baggage of a foreign
national and secreted the item in his desk at the Custom House. At no time was the
accused able to "get the merchandise out of the Custom House," and it appears that
he "was under observation during the entire transaction."54 Based apparently on those
two circumstances, the trial court had found him guilty, instead, of frustrated theft. The
Court reversed, saying that neither circumstance was decisive, and holding instead
that the accused was guilty of consummated theft, finding that "all the elements of the
completed crime of theft are present."55 In support of its conclusion that the theft was
consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the
discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the land of another. As
he was in the act of taking the fruit[,] he was seen by a policeman, yet it did not
appear that he was at that moment caught by the policeman but sometime later. The
court said: "[x x x] The trial court did not err [x x x ] in considering the crime as that of
consummated theft instead of frustrated theft inasmuch as nothing appears in the
record showing that the policemen who saw the accused take the fruit from the
adjoining land arrested him in the act and thus prevented him from taking full
possession of the thing stolen and even its utilization by him for an interval of time."
(Decision of the Supreme Court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was hearing mass
in a church. The latter on account of the solemnity of the act, although noticing the
theft, did not do anything to prevent it. Subsequently, however, while the defendant
was still inside the church, the offended party got back the money from the defendant.
The court said that the defendant had performed all the acts of execution and
considered the theft as consummated. (Decision of the Supreme Court of Spain,
December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a key
opened up a case, and from the case took a small box, which was also opened with a
key, from which in turn he took a purse containing 461 reales and 20 centimos, and
then he placed the money over the cover of the case; just at this moment he was
caught by two guards who were stationed in another room near-by. The court
considered this as consummated robbery, and said: "[x x x] The accused [x x x]
having materially taken possession of the money from the moment he took it from the
place where it had been, and having taken it with his hands with intent to appropriate
the same, he executed all the acts necessary to constitute the crime which was
thereby produced; only the act of making use of the thing having been frustrated,
which, however, does not go to make the elements of the consummated crime."
(Decision of the Supreme Court of Spain, June 13, 1882.)56
It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited
therein, that the criminal actors in all these cases had been able to obtain full
possession of the personal property prior to their apprehension. The interval between
the commission of the acts of theft and the apprehension of the thieves did vary, from
"sometime later" in the 1898 decision; to the very moment the thief had just extracted
the money in a purse which had been stored as it was in the 1882 decision; and
before the thief had been able to spirit the item stolen from the building where the
theft took place, as had happened in Adiao and the 1897 decision. Still, such intervals
proved of no consequence in those cases, as it was ruled that the thefts in each of
those cases was consummated by the actual possession of the property belonging to
another.
In 1929, the Court was again confronted by a claim that an accused was guilty only of
frustrated rather than consummated theft. The case is People v. Sobrevilla, 57 where
the accused, while in the midst of a crowd in a public market, was already able to
abstract a pocketbook from the trousers of the victim when the latter, perceiving the
theft, "caught hold of the [accused]’s shirt-front, at the same time shouting for a
policeman; after a struggle, he recovered his pocket-book and let go of the defendant,
10 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
who was afterwards caught by a policeman."58 In rejecting the contention that only
frustrated theft was established, the Court simply said, without further comment or
elaboration:
We believe that such a contention is groundless. The [accused] succeeded in taking
the pocket-book, and that determines the crime of theft. If the pocket-book was
afterwards recovered, such recovery does not affect the [accused’s] criminal liability,
which arose from the [accused] having succeeded in taking the pocket-book.59
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases
cited in the latter, in that the fact that the offender was able to succeed in obtaining
physical possession of the stolen item, no matter how momentary, was able to
consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict
the position of petitioner in this case. Yet to simply affirm without further comment
would be disingenuous, as there is another school of thought on when theft is
consummated, as reflected in the Diño and Flores decisions.
Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15
years before Flores. The accused therein, a driver employed by the United States
Army, had driven his truck into the port area of the South Harbor, to unload a
truckload of materials to waiting U.S. Army personnel. After he had finished
unloading, accused drove away his truck from the Port, but as he was approaching a
checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck
and found therein three boxes of army rifles. The accused later contended that he
had been stopped by four men who had loaded the boxes with the agreement that
they were to meet him and retrieve the rifles after he had passed the checkpoint. The
trial court convicted accused of consummated theft, but the Court of Appeals modified
the conviction, holding instead that only frustrated theft had been committed.
In doing so, the appellate court pointed out that the evident intent of the accused was
to let the boxes of rifles "pass through the checkpoint, perhaps in the belief that as the
truck had already unloaded its cargo inside the depot, it would be allowed to pass
through the check point without further investigation or checking."60 This point was
deemed material and indicative that the theft had not been fully produced, for the
Court of Appeals pronounced that "the fact determinative of consummation is the
ability of the thief to dispose freely of the articles stolen, even if it were more or less
momentary."61 Support for this proposition was drawn from a decision of the Supreme
Court of Spain dated 24 January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea determinate
de la consumacion del delito de hurto es preciso que so haga en circunstancias tales
que permitan al sustractor la libre disposicion de aquella, siquiera sea mas o menos
momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no
puede decirse en realidad que se haya producido en toda su extension, sin
materializar demasiado el acto de tomar la cosa ajena.62
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the booty subject
to the control and disposal of the culprits, the articles stolen must first be passed
through the M.P. check point, but since the offense was opportunely discovered and
the articles seized after all the acts of execution had been performed, but before the
loot came under the final control and disposal of the looters, the offense can not be
said to have been fully consummated, as it was frustrated by the timely intervention of
the guard. The offense committed, therefore, is that of frustrated theft.63
Diño thus laid down the theory that the ability of the actor to freely dispose of the
items stolen at the time of apprehension is determinative as to whether the theft is
consummated or frustrated. This theory was applied again by the Court of Appeals
some 15 years later, in Flores, a case which according to the division of the court that
decided it, bore "no substantial variance between the circumstances [herein] and in
[Diño]."64 Such conclusion is borne out by the facts in Flores. The accused therein, a
checker employed by the Luzon Stevedoring Company, issued a delivery receipt for
one empty sea van to the truck driver who had loaded the purportedly empty sea van
onto his truck at the terminal of the stevedoring company. The truck driver proceeded
to show the delivery receipt to the guard on duty at the gate of the terminal. However,
the guards insisted on inspecting the van, and discovered that the "empty" sea van
had actually contained other merchandise as well.65 The accused was prosecuted for
theft qualified by abuse of confidence, and found himself convicted of the
consummated crime. Before the Court of Appeals, accused argued in the alternative
that he was guilty only of attempted theft, but the appellate court pointed out that
there was no intervening act of spontaneous desistance on the part of the accused
that "literally frustrated the theft." However, the Court of Appeals, explicitly relying on
Diño, did find that the accused was guilty only of frustrated, and not consummated,
theft.
As noted earlier, the appellate court admitted it found "no substantial variance"
between Diño and Flores then before it. The prosecution in Flores had sought to
distinguish that case from Diño, citing a "traditional ruling" which unfortunately was
not identified in the decision itself. However, the Court of Appeals pointed out that the
said "traditional ruling" was qualified by the words "is placed in a situation where [the
actor] could dispose of its contents at once." 66 Pouncing on this qualification, the
appellate court noted that "[o]bviously, while the truck and the van were still within the
compound, the petitioner could not have disposed of the goods ‘at once’." At the
same time, the Court of Appeals conceded that "[t]his is entirely different from the
case where a much less bulk and more common thing as money was the object of the
crime, where freedom to dispose of or make use of it is palpably less
restricted,"67 though no further qualification was offered what the effect would have
been had that alternative circumstance been present instead.
11 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Synthesis of the Diño and Flores rulings is in order. The determinative characteristic
as to whether the crime of theft was produced is the ability of the actor "to freely
dispose of the articles stolen, even if it were only momentary." Such conclusion was
drawn from an 1888 decision of the Supreme Court of Spain which had pronounced
that in determining whether theft had been consummated, "es preciso que so haga en
circunstancias tales que permitan al sustractor de aquella, siquiera sea mas o menos
momentaneamente." The qualifier "siquiera sea mas o menos momentaneamente"
proves another important consideration, as it implies that if the actor was in a capacity
to freely dispose of the stolen items before apprehension, then the theft could be
deemed consummated. Such circumstance was not present in either Diño or Flores,
as the stolen items in both cases were retrieved from the actor before they could be
physically extracted from the guarded compounds from which the items were filched.
However, as implied in Flores, the character of the item stolen could lead to a
different conclusion as to whether there could have been "free disposition," as in the
case where the chattel involved was of "much less bulk and more common x x x,
[such] as money x x x."68
In his commentaries, Chief Justice Aquino makes the following pointed observation
on the import of the Diño ruling:
There is a ruling of the Court of Appeals that theft is consummated when the thief is
able to freely dispose of the stolen articles even if it were more or less momentary. Or
as stated in another case[69 ], theft is consummated upon the voluntary and malicious
taking of property belonging to another which is realized by the material occupation of
the thing whereby the thief places it under his control and in such a situation that he
could dispose of it at once. This ruling seems to have been based on Viada’s opinion
that in order the theft may be consummated, "es preciso que se haga en
circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino, concluding from Adiao and other
cases, also states that "[i]n theft or robbery the crime is consummated after the
accused had material possession of the thing with intent to appropriate the same,
although his act of making use of the thing was frustrated."72
There are at least two other Court of Appeals rulings that are at seeming variance
with the Diño and Flores rulings. People v. Batoon73 involved an accused who filled a
container with gasoline from a petrol pump within view of a police detective, who
followed the accused onto a passenger truck where the arrest was made. While the
trial court found the accused guilty of frustrated qualified theft, the Court of Appeals
held that the accused was guilty of consummated qualified theft, finding that "[t]he
facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that
actual taking with intent to gain is enough to consummate the crime of theft."74
In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a
supply depot and loaded them onto a truck. However, as the truck passed through the
checkpoint, the stolen items were discovered by the Military Police running the
checkpoint. Even though those facts clearly admit to similarity with those in Diño, the
Court of Appeals held that the accused were guilty of consummated theft, as the
accused "were able to take or get hold of the hospital linen and that the only thing that
was frustrated, which does not constitute any element of theft, is the use or benefit
that the thieves expected from the commission of the offense."76
In pointing out the distinction between Diño and Espiritu, Reyes wryly observes that
"[w]hen the meaning of an element of a felony is controversial, there is bound to arise
different rulings as to the stage of execution of that felony." 77 Indeed, we can discern
from this survey of jurisprudence that the state of the law insofar as frustrated theft is
concerned is muddled. It fact, given the disputed foundational basis of the concept of
frustrated theft itself, the question can even be asked whether there is really such a
crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and
not consummated, theft. As we undertake this inquiry, we have to reckon with the
import of this Court’s 1984 decision in Empelis v. IAC.78
As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons
in the premises of his plantation, in the act of gathering and tying some coconuts. The
accused were surprised by the owner within the plantation as they were carrying with
them the coconuts they had gathered. The accused fled the scene, dropping the
coconuts they had seized, and were subsequently arrested after the owner reported
the incident to the police. After trial, the accused were convicted of qualified theft, and
the issue they raised on appeal was that they were guilty only of simple theft. The
Court affirmed that the theft was qualified, following Article 310 of the Revised Penal
Code,79 but further held that the accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft was
consummated or frustrated was raised by any of the parties. What does appear,
though, is that the disposition of that issue was contained in only two sentences,
which we reproduce in full:
However, the crime committed is only frustrated qualified theft because petitioners
were not able to perform all the acts of execution which should have produced the
felony as a consequence. They were not able to carry the coconuts away from the
plantation due to the timely arrival of the owner.80
No legal reference or citation was offered for this averment, whether Diño, Flores or
the Spanish authorities who may have bolstered the conclusion. There are indeed
evident problems with this formulation in Empelis.
12 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Empelis held that the crime was only frustrated because the actors "were not able to
perform all the acts of execution which should have produced the felon as a
consequence."81 However, per Article 6 of the Revised Penal Code, the crime is
frustrated "when the offender performs all the acts of execution," though not
producing the felony as a result. If the offender was not able to perform all the acts of
execution, the crime is attempted, provided that the non-performance was by reason
of some cause or accident other than spontaneous desistance. Empelis concludes
that the crime was
frustrated because not all of the acts of execution were performed due to the timely
arrival of the owner. However, following Article 6 of the Revised Penal Code, these
facts should elicit the conclusion that the crime was only attempted, especially given
that the acts were not performed because of the timely arrival of the owner, and not
because of spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we consider the present
petition. Even if the two sentences we had cited actually aligned with the definitions
provided in Article 6 of the Revised Penal Code, such passage bears no reflection
that it is the product of the considered evaluation of the relevant legal or
jurisprudential thought. Instead, the passage is offered as if it were sourced from an
indubitable legal premise so settled it required no further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even cited as
authority on theft. Indeed, we cannot see how Empelis can contribute to our present
debate, except for the bare fact that it proves that the Court had once deliberately
found an accused guilty of frustrated theft. Even if Empelis were considered as a
precedent for frustrated theft, its doctrinal value is extremely compromised by the
erroneous legal premises that inform it, and also by the fact that it has not been
entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that frustrated
theft is viable in this jurisdiction. Considering the flawed reasoning behind its
conclusion of frustrated theft, it cannot present any efficacious argument to persuade
us in this case. Insofar as Empelis may imply that convictions for frustrated theft are
beyond cavil in this jurisdiction, that decision is subject to reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de
España was then in place. The definition of the crime of theft, as provided then, read
as follows:
Son reos de hurto:
1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas ni
fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su dueño.
2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la
apropriaren co intención de lucro.
3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado,
salvo los casos previstos en los artίculos 606, núm. 1.0; 607, núms, 1.0, 2.0 y 3.0;
608, núm. 1.0; 611; 613; Segundo párrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme
Court decisions were handed down. However, the said code would be revised again
in 1932, and several times thereafter. In fact, under the Codigo Penal Español de
1995, the crime of theft is now simply defined as "[e]l que, con ánimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado"82
Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre
disposicion" of the property is not an element or a statutory characteristic of the crime.
It does appear that the principle originated and perhaps was fostered in the realm of
Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926
commentaries on the 1870 Codigo Penal de España. Therein, he raised at least three
questions for the reader whether the crime of frustrated or consummated theft had
occurred. The passage cited in Diño was actually utilized by Viada to answer the
question whether frustrated or consummated theft was committed "[e]l que en el
momento mismo de apoderarse de la cosa ajena, viéndose sorprendido, la arroja al
suelo."83 Even as the answer was as stated in Diño, and was indeed derived from the
1888 decision of the Supreme Court of Spain, that decision’s factual predicate
occasioning the statement was apparently very different from Diño, for it appears that
the 1888 decision involved an accused who was surprised by the employees of a
haberdashery as he was abstracting a layer of clothing off a mannequin, and who
then proceeded to throw away the garment as he fled.84
Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites
decisions of the Supreme Court of Spain that have held to that effect. 85 A few
decades later, the esteemed Eugenio Cuello Calón pointed out the inconsistent
application by the Spanish Supreme Court with respect to frustrated theft.
Hay frustración cuando los reos fueron sorprendidos por las guardias cuando
llevaban los sacos de harino del carro que los conducia a otro que tenían preparado,
22 febrero 1913; cuando el resultado no tuvo efecto por la intervención de la policia
situada en el local donde se realizó la sustracción que impidió pudieran los reos
disponer de lo sustraído, 30 de octubre 1950. Hay "por lo menos" frustración, si
13 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930;
hay frustración "muy próxima" cuando el culpable es detenido por el perjudicado acto
seguido de cometer la sustracción, 28 febrero 1931. Algunos fallos han considerado
la existencia de frustración cuando, perseguido el culpable o sorprendido en el
momento de llevar los efectos hurtados, los abandona, 29 mayo 1889, 22 febrero
1913, 11 marzo 1921; esta doctrina no es admissible, éstos, conforme a lo antes
expuesto, son hurtos consumados.86
Ultimately, Cuello Calón attacked the very idea that frustrated theft is actually
possible:
La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando
la cosa queda de hecho a la disposición del agente. Con este criterio coincide la
doctrina sentada últimamente porla jurisprudencia española que generalmente
considera consumado el hurto cuando el culpable coge o aprehende la cosa y ésta
quede por tiempo más o menos duradero bajo su poder. El hecho de que éste pueda
aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carácter de
consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada.
No se concibe la frustración, pues es muy dificil que el que hace cuanto es necesario
para la consumación del hurto no lo consume efectivamente, los raros casos que
nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos
delitos consumados.87 (Emphasis supplied)
Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content
with replicating the Spanish Supreme Court decisions on the matter, Cuello Calón
actually set forth his own thought that questioned whether theft could truly be
frustrated, since "pues es muy dificil que el que hace cuanto es necesario para la
consumación del hurto no lo consume efectivamente." Otherwise put, it would be
difficult to foresee how the execution of all the acts necessary for the completion of
the crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no weighted force in
scholarly thought that obliges us to accept frustrated theft, as proposed
in Diño and Flores. A final ruling by the Court that there is no crime of frustrated theft
in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly
heretical in light of Cuello Calón’s position.
Accordingly, it would not be intellectually disingenuous for the Court to look at the
question from a fresh perspective, as we are not bound by the opinions of the
respected Spanish commentators, conflicting as they are, to accept that theft is
capable of commission in its frustrated stage. Further, if we ask the question whether
there is a mandate of statute or precedent that must compel us to adopt the Diño and
Flores doctrines, the answer has to be in the negative. If we did so, it would arise not
out of obeisance to an inexorably higher command, but from the exercise of the
function of statutory interpretation that comes as part and parcel of judicial review,
and a function that allows breathing room for a variety of theorems in competition until
one is ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that it lies in the
province of the legislature, through statute, to define what constitutes a particular
crime in this jurisdiction. It is the legislature, as representatives of the sovereign
people, which determines which acts or combination of acts are criminal in nature.
Judicial interpretation of penal laws should be aligned with what was the evident
legislative intent, as expressed primarily in the language of the law as it defines the
crime. It is Congress, not the courts, which is to define a crime, and ordain its
punishment.88 The courts cannot arrogate the power to introduce a new element of a
crime which was unintended by the legislature, or redefine a crime in a manner that
does not hew to the statutory language. Due respect for the prerogative of Congress
in defining crimes/felonies constrains the Court to refrain from a broad interpretation
of penal laws where a "narrow interpretation" is appropriate. "The Court must take
heed of language, legislative history and purpose, in order to strictly determine the
wrath and breath of the conduct the law forbids."89
With that in mind, a problem clearly emerges with the Diño/Flores dictum. The ability
of the offender to freely dispose of the property stolen is not a constitutive element of
the crime of theft. It finds no support or extension in Article 308, whether as a
descriptive or operative element of theft or as the mens rea or actus reus of the
felony. To restate what this Court has repeatedly held: the elements of the crime of
theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be
taking of personal property; (2) that said property belongs to another; (3) that the
taking be done with intent to gain; (4) that the taking be done without the consent of
the owner; and (5) that the taking be accomplished without the use of violence
against or intimidation of persons or force upon things.90
Such factor runs immaterial to the statutory definition of theft, which is the taking, with
intent to gain, of personal property of another without the latter’s consent. While
the Diño/Flores dictum is considerate to the mindset of the offender, the statutory
definition of theft considers only the perspective of intent to gain on the part of the
offender, compounded by the deprivation of property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of commission in the
frustrated stage, the question is again, 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. This conclusion is reflected in Chief Justice
Aquino’s commentaries, as earlier cited, that "[i]n theft or robbery the crime is
14 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
consummated after the accused had material possession of the thing with intent to
appropriate the same, although his act of making use of the thing was frustrated."91
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 accomplished." Perhaps this point could serve
as fertile ground for future discussion, but our concern now is whether there is indeed
a crime of frustrated theft, and such consideration proves ultimately immaterial to that
question. Moreover, such issue will not apply to the facts of this particular case. We
are satisfied beyond reasonable doubt that the taking by the petitioner was completed
in this case. With intent to gain, he acquired physical possession of the stolen cases
of detergent for a considerable period of time that he was able to drop these off at a
spot in the parking lot, and long enough to load these onto a taxicab.
Indeed, 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.92 And long ago, we asserted in People v.
Avila:93
x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be
appropriated into the physical power of the thief, which idea is qualified by other
conditions, such as that the taking must be effected animo lucrandi and without the
consent of the owner; and it will be here noted that the definition does not require that
the taking should be effected against the will of the owner but merely that it should be
without his consent, a distinction of no slight importance.94
Insofar as we consider the present question, "unlawful taking" is most material in this
respect. 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.
With these considerations, we can only conclude that under Article 308 of the Revised
Penal Code, theft cannot have a frustrated stage. Theft can only be attempted or
consummated.
Neither Diño nor Flores can convince us otherwise. Both fail to consider that once the
offenders therein obtained possession over the stolen items, the effect of the felony
has been produced as there has been deprivation of property. The presumed inability
of the offenders to freely dispose of the stolen property does not negate the fact that
the owners have already been deprived of their right to possession upon the
completion of the taking.
Moreover, as is evident in this case, the adoption of the rule —that the inability of the
offender to freely dispose of the stolen property frustrates the theft — would introduce
a convenient defense for the accused which does not reflect any legislated
intent,95 since the Court would have carved a viable means for offenders to seek a
mitigated penalty under applied circumstances that do not admit of easy classification.
It is difficult to formulate definite standards as to when a stolen item is susceptible to
free disposal by the thief. Would this depend on the psychological belief of the
offender at the time of the commission of the crime, as implied in Diño?
Or, more likely, the appreciation of several classes of factual circumstances such as
the size and weight of the property, the location of the property, the number and
identity of people present at the scene of the crime, the number and identity of people
whom the offender is expected to encounter upon fleeing with the stolen property, the
manner in which the stolen item had been housed or stored; and quite frankly, a
whole lot more. Even the fungibility or edibility of the stolen item would come into
account, relevant as that would be on whether such property is capable of free
disposal at any stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath all the colorful
detail, the owner was indeed deprived of property by one who intended to produce
such deprivation for reasons of gain. For such will remain the presumed fact if
frustrated theft were recognized, for therein, all of the acts of execution, including the
taking, have been completed. If the facts establish the non-completion of the taking
due to these peculiar circumstances, the effect could be to downgrade the crime to
the attempted stage, as not all of the acts of execution have been performed. But
once all these acts have been executed, the taking has been completed, causing the
unlawful deprivation of property, and ultimately the consummation of the theft.
Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet
they do not align with the legislated framework of the crime of theft. The Revised
Penal Code provisions on theft have not been designed in such fashion as to
accommodate said rulings. Again, there is no language in Article 308 that expressly
or impliedly allows that the "free disposition of the items stolen" is in any way
determinative of whether the crime of theft has been produced. Diño itself did not rely
on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Diño alone for legal support. These cases do not enjoy
the weight of stare decisis, and even if they did, their erroneous appreciation of our
law on theft leave them susceptible to reversal. The same holds true of Empilis, a
regrettably stray decision which has not since found favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime of frustrated
theft. As petitioner has latched the success of his appeal on our acceptance of the
Diño and Flores rulings, his petition must be denied, for we decline to adopt said
rulings in our jurisdiction. That it has taken all these years for us to recognize that
there can be no frustrated theft under the Revised Penal Code does not detract from
the correctness of this conclusion. It will take considerable amendments to our
15 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Revised Penal Code in order that frustrated theft may be recognized. Our deference
to Viada yields to the higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
G.R. No. L-43530             August 3, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto K. Bausa for appellant.
Office of the Solicitor-General Hilado for appellee.
RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from a decision of the
Court of First Instance of Iloilo, finding him guilty of attempted robbery and sentencing
him to suffer two years and four months of prision correccional  and to an additional
penalty of ten years and one day of prision mayor for being an habitual delinquent,
with the accessory penalties of the law, and to pay the costs of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his
beat on Delgado and C.R. Fuentes streets of the City of Iloilo, caught the accused in
the act of making an opening with an iron bar on the wall of a store of cheap goods
located on the last named street. At that time the owner of the store, Tan Yu, was
sleeping inside with another Chinaman. The accused had only succeeded in breaking
one board and in unfastening another from the wall, when the policeman showed up,
who instantly arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the provincial
fiscal of Iloilo, the trial judge and the Solicitor-General, as constituting attempted
robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code punishes
is that which has a logical relation to a particular, concrete offense; that, which is the
beginning of the execution of the offense by overt acts of the perpetrator, leading
directly to its realization and consummation. The attempt to commit an indeterminate
offense, inasmuch as its nature in relation to its objective is ambiguous, is not a
juridical fact from the standpoint of the Penal Code. There is no doubt that in the case
at bar it was the intention of the accused to enter Tan Yu's store by means of
violence, passing through the opening which he had started to make on the wall, in
order to commit an offense which, due to the timely arrival of policeman Tomambing,
did not develop beyond the first steps of its execution. But it is not sufficient, for the
purpose of imposing penal sanction, that an act objectively performed constitute a
mere beginning of execution; it is necessary to establish its unavoidable connection,
like the logical and natural relation of the cause and its effect, with the deed which,
upon its consummation, will develop into one of the offenses defined and punished by
the Code; it is necessary to prove that said beginning of execution, if carried to its
complete termination following its natural course, without being frustrated by external
obstacles nor by the voluntary desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense. Thus, in case of robbery, in order that the
simple act of entering by means of force or violence another person's dwelling may be
considered an attempt to commit this offense, it must be shown that the offender
clearly intended to take possession, for the purpose of gain, of some personal
property belonging to another. In the instant case, there is nothing in the record from
which such purpose of the accused may reasonably be inferred. From the fact
established and stated in the decision, that the accused on the day in question was
making an opening by means of an iron bar on the wall of Tan Yu's store, it may only
be inferred as a logical conclusion that his evident intention was to enter by means of
force said store against the will of its owner. That his final objective, once he
succeeded in entering the store, was to rob, to cause physical injury to the inmates, or
to commit any other offense, there is nothing in the record to justify a concrete
finding.1avvphil.ñet
It must be borne in mind (I Groizard, p. 99) that in offenses not
consummated, as the material damage is wanting, the nature of the action
intended (accion fin) cannot exactly be ascertained, but the same must be
inferred from the nature of the acts executed (accion medio). Hence, the
necessity that these acts be such that by their very nature, by the facts to
which they are related, by the circumstances of the persons performing the
same, and by the things connected therewith, they must show without any
doubt, that they are aimed at the consummation of a crime. Acts susceptible
of double interpretation , that is, in favor as well as against the culprit, and
which show an innocent as well as a punishable act, must not and can not
furnish grounds by themselves for attempted nor frustrated crimes. The
relation existing between the facts submitted for appreciation and the offense
which said facts are supposed to produce must be direct; the intention must
be ascertained from the facts and therefore it is necessary, in order to avoid
regrettable instances of injustice, that the mind be able to directly infer from
them the intention of the perpetrator to cause a particular injury. This must
have been the intention of the legislator in requiring that in order for an
attempt to exist, the offender must commence the commission of the felony
directly by overt acts, that is to say, that the acts performed must be such
that, without the intent to commit an offense, they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading
to the commission of the offense, are not punished except when they are aimed
16 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
directly to its execution, and therefore they must have an immediate and necessary
relation to the offense."
Considering — says the Supreme Court of Spain in its decision of March 21,
1892 — that in order to declare that such and such overt acts constitute an
attempted offense it is necessary that their objective be known and
established, or that said acts be of such nature that they themselves should
obviously disclose the criminal objective necessarily intended, said objective
and finality to serve as ground for the designation of the offense: . . . .
In view of the foregoing, we are of the opinion, and so hold that the fact under
consideration does not constitute attempted robbery but attempted trespass to
dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme
Court of Spain therein cited). Under article 280 of the Revised Penal Code, this
offense is committed when a private person shall enter the dwelling of another
against the latter's will. The accused may be convicted and sentenced for an attempt
to commit this offense in accordance with the evidence and the following allegation
contained in the information: "... the accused armed with an iron bar forced the wall of
said store by breaking a board and unfastening another for the purpose of entering
said store ... and that the accused did not succeed in entering the store due to the
presence of the policeman on beat Jose Tomambing, who upon hearing the noise
produced by the breaking of the wall, promptly approached the accused ... ." Under
the circumstances of this case the prohibition of the owner or inmate is presumed.
(U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil.,
67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes,
25 Phil., 292.) Against the accused must be taken into consideration the aggravating
circumstances of nighttime and former convictions, — inasmuch as the record shows
that several final judgments for robbery and theft have been rendered against him —
and in his favor, the mitigating circumstance of lack of instruction. The breaking of the
wall should not be taken into consideration as an aggravating circumstance inasmuch
as this is the very fact which in this case constitutes the offense of attempted trespass
to dwelling.
The penalty provided by the Revised Penal Code for the consummated offense of
trespass to dwelling, if committed with force, is prision correccional in its medium and
maximum periods and a fine not exceeding P1,000 (art. 280, par. 2); therefore the
penalty corresponding to attempted trespass to dwelling is to degrees lower (art. 51),
or, arresto mayor in its minimum and medium periods. Because of the presence of
two aggravating circumstances and one mitigating circumstance the penalty must be
imposed in its maximum period. Pursuant to article 29 of the same Code, the accused
is not entitled to credit for one-half of his preventive imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is hereby held
guilty of attempted trespass to dwelling, committed by means of force, with the
aforesaid aggravating and mitigating circumstances and sentenced to three months
and one day of arresto mayor, with the accessory penalties thereof and to pay the
costs.
G.R. No. 138033             February 22, 2006
RENATO BALEROS, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks
the reversal of the January 13, 1999 decision 1 of the Court of Appeals (CA) in CA-
G.R. CR No. 17271 as reiterated in its March 31, 1999 resolution 2 denying petitioner’s
motion for reconsideration.
The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of
Manila, Branch 2, in Criminal Case No. 91-101642 finding petitioner Renato Baleros,
Jr. y David (CHITO) guilty of attempted rape.3
The accusatory portion of the information4 dated December 17, 1991 charging
petitioner with attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991 in
Manila and within the jurisdiction of this Honorable Court, the above-named accused,
by forcefully covering the face of Martina Lourdes T. Albano with a piece of cloth
soaked in chemical with dizzying effects, did then and there willfully, unlawfully and
feloniously commenced the commission of rape by lying on top of her with the
intention to have carnal knowledge with her but was unable to perform all the acts of
execution by reason of some cause or accident other than his own spontaneous
desistance, said acts being committed against her will and consent to her damage
and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not
Guilty."5 Thereafter, trial on the merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses. Among them
were private complainant Martina Lourdes Albano (Malou), and her classmates,
Joseph Bernard Africa, Rommel Montes, Renato Alagadan and Christian Alcala. Their
testimonies, as narrated in some detail in the decision of the CA, established the
following facts:
17 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Like most of the tenants of the Celestial Marie Building (hereafter "Building", …) along
A.H. Lacson Street, Sampaloc, Manila, MALOU, occupying Room 307 with her maid,
Marvilou Bebania (Marvilou), was a medical student of the University of Sto. Tomas
[UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around 10:30.
Outside, right in front of her bedroom door, her maid, Marvilou, slept on a folding bed.
Early morning of the following day, MALOU was awakened by the smell of chemical
on a piece of cloth pressed on her face. She struggled but could not move.
Somebody was pinning her down on the bed, holding her tightly. She wanted to
scream for help but the hands covering her mouth with cloth wet with chemicals were
very tight (TSN, July 5, 1993, p. 33). Still, MALOU continued fighting off her attacker
by kicking him until at last her right hand got free. With this …the opportunity
presented itself when she was able to grab hold of his sex organ which she then
squeezed.
The man let her go and MALOU went straight to the bedroom door and roused
Marvilou. xxx. Over the intercom, MALOU told S/G Ferolin that: "may pumasok sa
kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who it was she did not, however, know.
The only thing she had made out during their struggle was the feel of her attacker’s
clothes and weight. His upper garment was of cotton material while that at the lower
portion felt smooth and satin-like (Ibid, p. 17). He … was wearing a t-shirt and shorts
… Original Records, p. 355).
To Room 310 of the Building where her classmates Christian Alcala, Bernard
Baptista, Lutgardo Acosta and Rommel Montes were staying, MALOU then
proceeded to seek help. xxx.
It was then when MALOU saw her bed … topsy-turvy. Her nightdress was stained
with blue … (TSN, July 5, 1993, pp. 13-14). Aside from the window with grills which
she had originally left opened, another window inside her bedroom was now open.
Her attacker had fled from her room going through the left bedroom window (Ibid,
Answers to Question number 5; Id), the one without iron grills which leads to Room
306 of the Building (TSN, July 5, 1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with CHITO, who was her classmate …,
was friendly until a week prior to the attack. CHITO confided his feelings for her,
telling her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she rejected him.
…. (TSN, July 5, 1993, p. 22).
Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the
Building at 1:30 in the early morning of December 13, 1991, wearing a white t-shirt
with “‘…a marking on the front of the T-shirt T M and a Greek letter (sic) ΣΦ’ and
below the quoted letters the word ‘1946’ ‘UST Medicine and Surgery’” (TSN, October
9, 1992, p. 9) and black shorts with the brand name “Adidas” (TSN, October 16, 1992,
p.7) and requested permission to go up to Room 306. This Unit was being leased by
Ansbert Co and at that time when CHITO was asking permission to enter, only
Joseph Bernard Africa was in the room.
He asked CHITO to produce the required written authorization and when CHITO
could not, S/G Ferolin initially refused [but later, relented] …. S/G Ferolin made the
following entry in the security guard’s logbook …:
"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a
Request letter from our tenant of Unit #-306 Ansbert, but still I let him inter (sic) for the
reason that he will be our tenant this coming summer break as he said so I let him
sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was
corroborated by Joseph Bernard Africa (Joseph), ….
xxx xxx xxx
Joseph was already inside Room 306 at 9 o’clock in the evening of December 12,
1991. xxx by the time CHITO’s knocking on the door woke him up, …. He was able to
fix the time of CHITO’s arrival at 1:30 A.M. because he glanced at the alarm clock
beside the bed when he was awakened by the knock at the door ….
Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid.,
p. 23) when he let the latter in. …. It was at around 3 o’clock in the morning of
December 13, 1991 when he woke up again later to the sound of knocking at the
door, this time, by Bernard Baptista (Bernard), ….
xxx. With Bernard, Joseph then went to MALOU’s room and thereat was shown by
Bernard the open window through which the intruder supposedly passed.
xxx xxx xxx
Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally
able to talk to CHITO …. He mentioned to the latter that something had happened
and that they were not being allowed to get out of the building. Joseph also told
CHITO to follow him to Room 310.
18 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx.
None was in Room 310 so Joseph went to their yet another classmate, Renato
Alagadan at Room 401 to see if the others were there. xxx.
People from the CIS came by before 8 o’clock that same morning …. They likewise
invited CHITO and Joseph to go with them to Camp Crame where the two (2) were
questioned ….
An occupant of Room 310 … Christian Alcala (Christian) recalled in Court that in the
afternoon of December 13, 1991, after their 3:30 class, he and his roommates,
Bernard Baptista and Lutgardo Acosta (Gary) were called to the Building and were
asked by the CIS people to look for anything not belonging to them in their Unit. While
they were outside Room 310 talking with the authorities, Rommel Montes (Loyloy),
another roommate of his, went inside to search the Unit. Loyloy found (TSN, January
12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their
unit which they did not know was there and surrender the same to the investigators.
When he saw the gray bag, Christian knew right away that it belonged to CHITO (Ibid,
p. 55) as he had seen the latter usually bringing it to school inside the classroom
(Ibid, p. 45).
In their presence, the CIS opened the bag and pulled out its contents, among others,
a white t-shirt with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black Adidas short
pants, a handkerchief , three (3) white T-shirts, an underwear, and socks (Ibid).
Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"),
and the handkerchief (Exhibit "D-3) to be CHITO’s because CHITO had lent the very
same one to him …. The t-shirt with CHITO’s fraternity symbol, CHITO used to wear
on weekends, and the handkerchief he saw CHITO used at least once in December.
That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was
what consisted mainly of Renato R. Alagadan’s testimony.
xxx xxx xxx.
The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and
appeared to be full but was closed with a zipper when Renato saw it then (Ibid, pp.
19-20). At that time Christian, Gary, Bernard, and Renato went back to Room 310 at
around 3 to 4 o’clock that afternoon along with some CIS agents, they saw the bag at
the same place inside the bedroom where Renato had seen CHITO leave it. Not until
later that night at past 9 o’clock in Camp Crame, however, did Renato know what the
contents of the bag were.
xxx xxx xxx.
The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime
Laboratory in Camp Crame, having acted in response to the written request of PNP
Superintendent Lucas M. Managuelod dated December 13, 1991, (Exhibit "C";
Original Records, p. 109.) conducted laboratory examination on the specimen
collated and submitted…. Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p.
112) reads in part, thus:
"SPECIMEN SUBMITTED:
xxx xxx xxx:
1) One (1) small white plastic bag marked ‘UNIMART’ with the following:
xxx xxx xxx
Exh ‘C’ – One (1) night dress colored salmon pink.
2) One (1) small white pl astic bag marked ‘JONAS’ with the following:
Exh. ‘D’ – One (1) printed handkerchief.
Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.
Exh. ‘F’ – One (1) black short (sic) marked ‘ADIDAS’.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic), non-volatile and/or metallic poison on the
above stated specimens.
FINDINGS:
Toxicological examination conducted on the above stated specimens gave the
following results:
Exhs. ‘C’ and ‘D’ – POSITIVE to the test for chloroform, a volatile poison.
Exhs. ‘A’, ‘B’, ‘E’ and ‘F’ are insufficient for further analysis.
CONCLUSION:
Exhs. ‘C’ and ‘D’ contain chloroform, a volatile poison."6 (Words in bracket added)
19 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
For its part, the defense presented, as its main witness, the petitioner himself. He
denied committing the crime imputed to him or making at any time amorous advances
on Malou. Unfolding a different version of the incident, the defense sought to
establish the following, as culled from the same decision of the appellate court:
In December of 1991, CHITO was a medical student of … (UST). With Robert Chan
and Alberto Leonardo, he was likewise a member of the Tau Sigma Phi Fraternity ….
MALOU, …, was known to him being also a medical student at the UST at the time.
From Room 306 of the Celestial Marie Building …, CHITO, wearing the prescribed
barong tagalog over dark pants and leather shoes, arrived at their Fraternity house
located at … Dos Castillas, Sampaloc, Manila at about 7 o’clock in the evening of
December 12, 1991. He was included in the entourage of some fifty (50) fraternity
members scheduled for a Christmas gathering at the house of their senior fraternity
brother, Dr. Jose Duran, at No. 3 John Street, North Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming pool …. Soon after, …
the four (4) presidential nominees of the Fraternity, CHITO included, were being
dunked one by one into the pool. xxx.
xxx CHITO had anticipated his turn … and was thus wearing his t-shirt and long pants
when he was dunked. Perla Duran, …, offered each … dry clothes to change into and
CHITO put on the white t-shirt with the Fraternity’s symbol and a pair of black shorts
with stripes. xxx .
Again riding on Alberto’s car and wearing "barong tagalog over a white t-shirt with the
symbol TAU Sigma Phi, black short pants with stripe, socks and shoes" (TSN, April
25, 1994, p. 15), CHITO left the party with Robert Chan and Alberto at more or less
past 1 A.M. of December 13, 1991 and proceeded to the Building which they reached
at about 1:30 A.M. (Ibid., p. 19). He had left his gray traveling bag containing "white t-
shirt, sando, underwear, socks, and toothbrush (Ibid., pp. 17-18) at room 306 in the
afternoon of the previous day ….
At the gate of the Building, CHITO knocked and …, S/G Ferolin, looking at his watch,
approached. Because of this, CHITO also looked at his own watch and saw that the
time was 1:30 (Ibid., p. 26). S/G Ferolin initially refused CHITO entry …. xxx.
S/G Ferolin called Unit 306 …. xxx. When S/G Ferolin finally let him in, already about
ten (10) minutes had lapsed since CHITO first arrived (Ibid., p. 25).
CHITO went up the floor, found the key left for him by Joseph behind the opened
jalousie window and for five (5) minutes vainly tried to open the door until Rommel
Montes, … approached him and even commented: "Okey ang suot mo ha, di mo
mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried to open the door of Unit 306 …
but was likewise unsuccessful. CHITO then decided to just call out to Joseph while
knocking at the door.
It took another (5) minutes of calling out and knocking before Joseph, …, at last
answered the door. Telling him, "Ikaw na ang bahala diyan" Joseph immediately
turned his back on CHITO and went inside the bedroom. CHITO , …changed to a
thinner shirt and went to bed. He still had on the same short pants given by Perla
Duran from the fraternity party (TSN, June 16, 1994, p. 20).
At 6 o’clock in the morning of December 13, 1991, CHITO woke up …. He was
already in his school uniform when, around 6:30 A.M, Joseph came to the room not
yet dressed up. He asked the latter why this was so and, without elaborating on it,
Joseph told him that something had happened and to just go to Room 310 which
CHITO did.
At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU
was not able to identify, went to the room of MALOU and tried to rape her (TSN, April
25, 1994, p. 36). xxx.
Joseph told him that the security guard was not letting anybody out of the Building ….
When two (2) CIS men came to the unit asking for Renato Baleros, CHITO presented
himself. Congressman Rodolfo B. Albano, father of MALOU, then asked him for the
key to Room 306….
xxx xxx xxx
The CIS men looked inside the bedroom and on the windows. Joseph was told to
dress up and the two (2) of them, CHITO and Joseph, were brought to Camp Crame.
When they arrived at Camp Crame …, Col. Managuelod asked Joseph inside his
room and talked to him for 30 minutes. xxx. No one interviewed CHITO to ask his
side.
xxx xxx xxx
Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed
them to undergo physical examination at the Camp Crame Hospital ….. At the
hospital, … CHITO and Joseph were physically examined by a certain Dr. de Guzman
who told them to strip ….
xxx xxx xxx
CHITO had left his gray bag containing, among others, the black striped short pants
lent to him by Perla Duran (Exhibit "8-A", Original Records, p. 345), inside Room 310
20 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
at more/less 6:30 to 7 o’clock in the morning of December 13, 1991. The next time
that he saw it was between 8 to 9 P.M. when he and Joseph were brought before
Fiscal Abesamis for inquest. One of the CIS agents had taken it there and it was not
opened up in his presence but the contents of the bag were already laid out on the
table of Fiscal Abesamis who, however, made no effort to ask CHITO if the items
thereat were his.
The black Adidas short pants purportedly found in the bag, CHITO denied putting in
his gray bag which he had left at Room 306 in the early evening of December 12,
1991 before going to the fraternity house. He likewise disavowed placing said black
Adidas short pants in his gray bag when he returned to the apartment at past 1:00
o’clock in the early morning of December 13, 1991 (TSN, June 16, 1994, p. 24), nor
when he dressed up at about 6 o’clock in the morning to go to school and brought his
gray bag to Room 310 (Ibid. 25). In fact, at any time on December 13, 1991, he was
not aware that his gray bag ever contained any black short Adidas pants (Ibid). He
only found out for the first time that the black Adidas short pants was alluded to be
among the items inside his gray bag late in the afternoon, when he was in Camp
Crame.
Also taking the witness stand for the defense were petitioner’s fraternity brothers,
Alberto Leonardo and Robert Chan, who both testified being with CHITO in the
December 12, 1991 party held in Dr. Duran’s place at Greenhills, riding on the same
car going to and coming from the party and dropping the petitioner off the Celestial
Marie building after the party. Both were one in saying that CHITO was wearing a
barong tagalog, with t-shirt inside, with short pants and leather shoes at the time they
parted after the party.7 Rommel Montes, a tenant of Room 310 of the said building,
also testified seeing CHITO between the hours of 1:30 and 2:00 A.M. of December
13, 1991 trying to open the door of Room 306 while clad in dark short pants and white
barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair of short
pants with stripes after the dunking party held in her father’s house. 8 Presented as
defense expert witness was Carmelita Vargas, a forensic chemistry instructor whose
actual demonstration in open court showed that chloroform, being volatile, evaporates
in thirty (30) seconds without tearing nor staining the cloth on which it is applied.9
On December 14, 1994, the trial court rendered its decision10 convicting petitioner of
attempted rape and accordingly sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the foregoing, the Court
finds the accused Renato D. Baleros, Jr., alias "Chito", guilty beyond reasonable
doubt of the crime of attempted rape as principal and as charged in the information
and hereby sentences him to suffer an imprisonment ranging from FOUR (4) YEARS,
TWO (2) MONTHS AND ONE (1) DAY of Prision Correctional, as Minimum to TEN
(10) YEARS of Prision Mayor as Maximum, with all the accessory penalties provided
by law, and for the accused to pay the offended party Martina Lourdes T. Albano, the
sum of P50,000.00 by way of Moral and exemplary damages, plus reasonable
Attorney’s fees of P30,000.00, without subsidiary imprisonment in case of insolvency,
and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as
CA-G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated January 13,
1999, affirmed the trial court’s judgment of conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from the findings of the
court a quo, the decision appealed from is hereby AFFIRMED in toto. Costs against
appellant.
SO ORDERED.11
Petitioner moved for reconsideration, but his motion was denied by the CA in its
equally assailed resolution of March 31, 1999.12
Petitioner is now with this Court, on the contention that the CA erred -
1. In not finding that it is improbable for petitioner to have committed the
attempted rape imputed to him, absent sufficient, competent and convincing
evidence to prove the offense charged.
2. In convicting petitioner of attempted rape on the basis merely of
circumstantial evidence since the prosecution failed to satisfy all the
requisites for conviction based thereon.
3. In not finding that the circumstances it relied on to convict the petitioner
are unreliable, inconclusive and contradictory.
4. In not finding that proof of motive is miserably wanting in his case.
5. In awarding damages in favor of the complainant despite the fact that the
award was improper and unjustified absent any evidence to prove the same.
6. In failing to appreciate in his favor the constitutional presumption of
innocence and that moral certainty has not been met, hence, he should be
acquitted on the ground that the offense charged against him has not been
proved beyond reasonable doubt.
21 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Otherwise stated, the basic issue in this case turns on the question on whether or not
the CA erred in affirming the ruling of the RTC finding petitioner guilty beyond
reasonable doubt of the crime of attempted rape.
After a careful review of the facts and evidence on record in the light of applicable
jurisprudence, the Court is disposed to rule for petitioner’s acquittal, but not
necessarily because there is no direct evidence pointing to him as the intruder holding
a chemical-soaked cloth who pinned Malou down on the bed in the early morning of
December 13, 1991.
Positive identification pertains essentially to proof of identity and not per se to that of
being an eyewitness to the very act of commission of the crime. There are two types
of positive identification. A witness may identify a suspect or accused as the offender
as an eyewitness to the very act of the commission of the crime. This constitutes
direct evidence. There may, however, be instances where, although a witness may
not have actually witnessed the very act of commission of a crime, he may still be
able to positively identify a suspect or accused as the perpetrator of a crime as when,
for instance, 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. This is the second
type of positive identification, which forms part of circumstantial evidence. 13 In the
absence of direct evidence, the prosecution may resort to adducing circumstantial
evidence to discharge its burden. Crimes are usually committed in secret and under
condition where concealment is highly probable. If direct evidence is insisted under all
circumstances, the prosecution of vicious felons who committed heinous crimes in
secret or secluded places will be hard, if not well-nigh impossible, to prove.14
Section 4 of Rule 133 of the Rules of Court provides the conditions when
circumstantial evidence may be sufficient for conviction. The provision reads:
Sec. 4. Circumstantial evidence, when sufficient – Circumstantial evidence is
sufficient for conviction if –
a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven; and
c) The combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.
In the present case, the positive identification of the petitioner forms part of
circumstantial evidence, which, when taken together with the other pieces of evidence
constituting an unbroken chain, leads to only fair and reasonable conclusion, which is
that petitioner was the intruder in question.
We quote with approval the CA’s finding of the circumstantial evidence that led to the
identity of the petitioner as such intruder:
Chito was in the Building when the attack on MALOU took place. He had access to
the room of MALOU as Room 307 where he slept the night over had a window which
allowed ingress and egress to Room 306 where MALOU stayed. Not only the Building
security guard, S/G Ferolin, but Joseph Bernard Africa as well confirmed that CHITO
was wearing a black "Adidas" shorts and fraternity T-shirt when he arrived at the
Building/Unit 307 at 1:30 in the morning of December 13, 1991. Though it was dark
during their struggle, MALOU had made out the feel of her intruder’s apparel to be
something made of cotton material on top and shorts that felt satin-smooth on the
bottom.
From CHITO’s bag which was found inside Room 310 at the very spot where witness
Renato Alagadan saw CHITO leave it, were discovered the most incriminating
evidence: the handkerchief stained with blue and wet with some kind of chemicals; a
black "Adidas" satin short pants; and a white fraternity T-shirt, also stained with blue.
A different witness, this time, Christian Alcala, identified these garments as belonging
to CHITO. As it turned out, laboratory examination on these items and on the
beddings and clothes worn by MALOU during the incident revealed that the
handkerchief and MALOU’s night dress both contained chloroform, a volatile poison
which causes first degree burn exactly like what MALOU sustained on that part of her
face where the chemical-soaked cloth had been pressed.
This brings the Court to the issue on whether the evidence adduced by the
prosecution has established beyond reasonable doubt the guilt of the petitioner for
the crime of attempted rape.
The Solicitor General maintained that petitioner, by pressing on Malou’s face the
piece of cloth soaked in chemical while holding her body tightly under the weight of
his own, had commenced the performance of an act indicative of an intent or attempt
to rape the victim. It is argued that petitioner’s actuation thus described is an overt act
contemplated under the law, for there can not be any other logical conclusion other
than that the petitioner intended to ravish Malou after he attempted to put her to an
induced sleep. The Solicitor General, echoing what the CA said, adds that if
petitioner’s intention was otherwise, he would not have lain on top of the victim.15
Under Article 335 of the Revised Penal Code, rape is committed by a man who has
carnal knowledge or intercourse with 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. Under Article 6, in relation to the aforementioned article of the
same code, rape is attempted when the offender commences the commission of rape
directly by overt acts and does not perform all the acts of execution which should
produce the crime of rape by reason of some cause or accident other than his own
spontaneous desistance.16
22 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Expounding on the nature of an attempted felony, the Court, speaking thru Justice
Claro M. Recto in People vs. Lamahang,17 stated that "the attempt which the Penal
Code punishes is that which has a logical connection to a particular, concrete offense;
that which is the beginning of the execution of the offense by overt acts of the
perpetrator, leading directly to its realization and consummation." Absent the
unavoidable connection, like the logical and natural relation of the cause and its
effect, as where the purpose of the offender in performing an act is not certain,
meaning the nature of the act in relation to its objective is ambiguous, then what
obtains is an attempt to commit an indeterminate offense, which is not a juridical fact
from the standpoint of the Penal Code.18
There is absolutely no dispute about the absence of sexual intercourse or carnal
knowledge in the present case. The next question that thus comes to the fore is
whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth
while on top of Malou, constitutes an overt act of rape.1avvphil.net
Overt or external act has been defined as some physical activity or deed, indicating
the intention to commit a particular crime, more than a mere planning or preparation,
which if carried out to its complete termination following its natural course, without
being frustrated by external obstacles nor by the voluntary desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense.19
Harmonizing the above definition to the facts of this case, it would be too strained to
construe petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou
which would induce her to sleep as an overt act that will logically and necessarily
ripen into rape. As it were, petitioner did not commence at all the performance of any
act indicative of an intent or attempt to rape Malou. It cannot be overemphasized that
petitioner was fully clothed and that there was no attempt on his part to undress
Malou, let alone touch her private part. For what reason petitioner wanted the
complainant unconscious, if that was really his immediate intention, is anybody’s
guess. The CA maintained that if the petitioner had no intention to rape, he would not
have lain on top of the complainant. Plodding on, the appellate court even anticipated
the next step that the petitioner would have taken if the victim had been rendered
unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have to come
later. His sexual organ is not yet exposed because his intended victim is still
struggling. Where the intended victim is an educated woman already mature in age, it
is very unlikely that a rapist would be in his naked glory before even starting his attack
on her. He has to make her lose her guard first, or as in this case, her
unconsciousness.20
At bottom then, the appellate court indulges in plain speculation, a practice disfavored
under the rule on evidence in criminal cases. For, mere speculations and probabilities
cannot substitute for proof required to establish the guilt of an accused beyond
reasonable doubt.21
In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of
attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution to produce the
felony. Thus, for there to be an attempted rape, the accused must have commenced
the act of penetrating his sexual organ to the vagina of the victim but for some cause
or accident other than his own spontaneous desistance, the penetration, however,
slight, is not completed.
xxx xxx xxx
Petitioner’s act of lying on top of the complainant, embracing and kissing her,
mashing her breasts, inserting his hand inside her panty and touching her sexual
organ, while admittedly obscene and detestable acts, do not constitute attempted
rape absent any showing that petitioner actually commenced to force his penis into
the complainant’s sexual organ. xxx.
Likewise in People vs. Pancho,23 the Court held:
xxx, appellant was merely holding complainant’s feet when his Tito Onio arrived at the
alleged locus criminis. Thus, it would be stretching to the extreme our credulity if we
were to conclude that mere holding of the feet is attempted rape.
Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the
premises, of any wrongdoing whatsoever. The information filed against petitioner
contained an allegation that he forcefully covered the face of Malou with a piece of
cloth soaked in chemical. And during the trial, Malou testified about the pressing
against her face of the chemical-soaked cloth and having struggled after petitioner
held her tightly and pinned her down. Verily, while the series of acts committed by the
petitioner do not determine attempted rape, as earlier discussed, they constitute
unjust vexation punishable as light coercion under the second paragraph of Article
287 of the Revised Penal Code. In the context of the constitutional provision assuring
an accused of a crime the right to be informed of the nature and cause of the
accusation,24 it cannot be said that petitioner was kept in the dark of the inculpatory
acts for which he was proceeded against. To be sure, the information against
petitioner contains sufficient details to enable him to make his defense. As aptly
observed by then Justice Ramon C. Aquino, there is no need to allege malice,
restraint or compulsion in an information for unjust vexation. As it were, unjust
vexation exists even without the element of restraint or compulsion for the reason that
this term is broad enough to include any human conduct which, although not
productive of some physical or material harm, would unjustly annoy or irritate an
innocent person.25 The paramount question is whether the offender’s act causes
annoyance, irritation, torment, distress or disturbance to the mind of the person to
whom it is directed.26 That Malou, after the incident in question, cried while relating to
her classmates what she perceived to be a sexual attack and the fact that she filed a
23 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
case for attempted rape proved beyond cavil that she was disturbed, if not distressed
by the acts of petitioner.
The penalty for coercion falling under the second paragraph of Article 287 of the
Revised Penal Code is arresto menor or a fine ranging from ₱5.00 to ₱200.00 or
both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the
Regional Trial Court of Manila, is hereby REVERSED and SET ASIDE and a new one
entered ACQUITTING petitioner Renato D. Baleros, Jr. of the charge for attempted
rape. Petitioner, however, is adjudged GUILTY of light coercion and is accordingly
sentenced to 30 days of arresto menor and to pay a fine of ₱200.00, with the
accessory penalties thereof and to pay the costs.
SO ORDERED.
G.R. Nos. 143468-71            January 24, 2003
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FREDDIE LIZADA @ FREDIE LIZADA, accused-appellant.
CALLEJO, SR., J.:
This is an automatic review of the Decision1 of the Regional Trial Court of Manila,
Branch 54, finding accused-appellant Freddie Lizada guilty beyond reasonable doubt
of four (4) counts of qualified rape and meting on him the death penalty for each
count.
I. The Charges
Accused-appellant2 was charged with four (4) counts of qualified rape under four
separate Informations. The accusatory portion of each of the four Informations reads:
"That sometime in August 1998 in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and
feloniously, by means of force, violence and intimidation upon the person of
one ANALIA ORILLOSA y AGOO, by then and there embracing her, kissing
and touching her private parts, thereafter removing her skirt and panty,
placing himself on top of her and trying to insert his penis into her vagina and
succeeded in having carnal knowledge with the said ANALIA ORILLOSA y
AGOO, against her will and consent.
Contrary to law.
xxx           xxx           xxx
That on or about November 5, 1998, in the City of Manila, Philippines, the
said accused, with lewd designs, did then and there willfully, unlawfully and
feloniously, by means of force, violence and intimidation upon the person of
one ANALIA ORILLOSA Y AGOO, by then and there embracing her, kissing
and touching her private parts, thereafter removing her skirt and panty,
placing himself on top of her and trying to insert his penis into her vagina and
succeeded in having carnal knowledge with the said ANALIA ORILLOSA Y
AGOO, against her will and consent.
Contrary to law.
xxx           xxx           xxx
That on or about October 22, 1998, in the City of Manila, Philippines, the
said accused, with lewd designs, did then and there willfully, unlawfully and
feloniously, by means of force, violence and intimidation upon the person of
one ANALIA ORILLOSA Y AGOO, by then and there embracing her, kissing
and touching her private parts, thereafter removing her skirt and panty,
placing himself on top of her and trying to insert his penis into her vagina and
succeeded in having carnal knowledge with the said ANALIA ORILLOSA Y
AGOO, against her will and consent.
Contrary to law.
xxx           xxx           xxx
That on or about September 15, 1998, in the City of Manila, Philippines, the
said accused, with lewd designs, did then and there willfully, unlawfully and
feloniously, by means of force, violence and intimidation upon the person of
one ANALIA ORILLOSA Y AGOO, by then and there embracing her, kissing
and touching her private parts, thereafter removing her skirt and panty,
placing himself on top of her and trying to insert his penis into her vagina and
succeeded in having carnal knowledge with the said ANALIA ORILLOSA Y
AGOO, against her will and consent.
Contrary to law."3
The four (4) Informations were docketed as Criminal Cases Nos. 99-171390, 99-
171391, 99-171392 and 99-171393, respectively.
Accused-appellant was arraigned on April 15, 1999, assisted by counsel de parte and
entered a plea of not guilty to each of the charges.4 A joint trial then ensued.
24 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
II. Evidence of the Prosecution5
Ricardo Orillosa and his wife, Rose Orillosa, natives of San Isidro, Bohol, had three
(3) children, namely: Analia, who was born on December 18, 1985; 6 Jepsy, who was
11 years old, and Rossel, who was nine years old. However, the couple decided to
part ways and live separately. Rose left Bohol and settled in Manila with her young
children. She worked as a waitress to make both ends meet.
In 1994, Rose met accused-appellant. They decided to live together as husband and
wife at No. 1252 Jose Abad Santos Street, Moriones, Tondo, Manila. In 1996, Rose
resigned from her job as a waitress. She secured a loan, bought a truck and used it
for her business.
In the meantime, Rose secured a loan anew and used the proceeds thereof to put up
a video shop in her house. She sold Avon products from house to house to augment
her income. Whenever she was out of their house, Rossel and Analia took turns in
tending the video shop and attending to customers.
Sometime in 1996, Analia was in her room when accused-appellant entered. He laid
on top of her, removed her T-shirt and underwear. He then inserted his finger in her
vagina. He removed his finger and inserted his penis in her vagina. Momentarily, she
felt a sticky substance coming out from his penis. She also felt pain in her sex organ.
Satiated, accused-appellant dismounted but threatened to kill her if she divulged to
anyone what he did to her. Accused-appellant then returned to his room. The incident
lasted less than one hour. Petrified by the threats on her life, Analia kept to herself
what happened to her.7
Sometime in August 1997, accused-appellant entered again the room of Analia,
placed himself on top of her and held her legs and arms. He then inserted his finger
into her sex organ ("fininger niya ako"). Satiated, accused-appellant left the room.
During the period from 1996 to 1998, accused-appellant sexually abused private
complainant two times a week.
On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their house
studying her assignments. Accused-appellant was also in the sala. Rossel tended the
video shop while his mother was away. Analia went into her room and lay down in
bed. She did not lock the door of the room because her brother might enter any time.
She wanted to sleep but found it difficult to do so. Accused-appellant went to his room
next to the room of Analia. He, however, entered the room of Analia. He was wearing
a pair of short pants and was naked from waist up. Analia did not mind accused-
appellant entering her room because she knew that her brother, Rossel was around.
However, accused-appellant sat on the side of her bed, placed himself on top of her,
held her hands and legs and fondled her breasts. She struggled to extricate herself.
Accused-appellant removed her panty and touched her sex organ. Accused-appellant
inserted his finger into her vagina, extricated it and then inserted his penis into her
vagina. Accused-appellant ejaculated. Analia felt pain in her sex organ. Momentarily,
Rossel passed by the room of Analia after drinking water from the refrigerator, and
peeped through the door. He saw accused-appellant on top of Analia. Accused-
appellant saw Rossel and dismounted. Accused-appellant berated Rossel and
ordered him to go to his room and sleep. Rossel did. Accused-appellant then left the
room. Analia likewise left the room, went out of the house and stayed outside for one
hour. Rose arrived home at 6:00 p.m. However, Analia did not divulge to her mother
what accused-appellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the house. Accused-appellant
was in the sala of the house watching television. Analia tended the video shop.
However, accused-appellant told Analia to go to the sala. She refused, as nobody
would tend the video shop. This infuriated accused-appellant who threatened to slap
and kick her.
Analia ignored the invectives and threats of accused-appellant and stayed in the
video shop. When Rose returned, a heated argument ensued between accused-
appellant and Analia. Rose sided with her paramour and hit Analia. This prompted
Analia to shout. "Ayoko na, ayoko na." Shortly thereafter, Rose and Analia left the
house on board the motorcycle driven by her mother in going to Don Bosco Street,
Moriones, Tondo, Manila, to retrieve some tapes which had not yet been returned.
When Rose inquired from her daughter what she meant by her statement, "ayoko na,
ayoko na," she told her mother that accused-appellant had been touching the
sensitive parts of her body and that he had been on top of her. Rose was shocked
and incensed. The two proceeded to Kagawad Danilo Santos to have accused-
appellant placed under arrest. On November 10, 1998, the two proceeded to the
Western Police District where Analia gave her Affidavit-Complaint to PO1 Carmelita
Nocum in the presence of SPO2 Fe H. Avindante. She related to the police
investigator that accused-appellant had touched her breasts and arms in August,
1998, September 15, 1998, October 22, 1998 and on November 5, 1998, at 3:00 p.m.
Analia then submitted herself to genitalia examination by Dr. Armie Umil, a medico-
legal officer of the NBI. The medico-legal officer interviewed Analia, told him that she
was raped in May, 1997 at 3:00 p.m. and November 5, 1998 at 3:00 p.m.8
Dr. Umil prepared and signed a report on "Living Case No. MO-98-1265" which
contained her findings during her examination on Analia, thus:
"xxx           xxx           xxx
Fairly nourished, conscious, coherent, cooperative, ambulatory subject.
Breasts, developed, hemispherical, firm. —, brown, 3.0 cms. in diameter.
Nipples brown, protruding, 0.7 cms. in diameter.
No extragenital physical injuries noted.
GENITAL EXAMINATION:
25 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
 Pubic hair, fully grown, moderate. Labia majora and minora, coaptated.
Fourchette, tense. Vetibular mucosa, pinkish. Hymen, tall, thick, intact.
Hymenal orifice measures, 1.5 cms. in diameter. Vaginal walls, tight.
Rugosities, prominent.
CONCLUSIONS:
1). No evident sign of extragenital physical injuries noted on the body of the
subject at the time of examination.
2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude
complete penetration by an average-sized adult Filipino male organ in full
erection without producing any genital injury."9
Subsequently, Analia told her mother that "mabuti na lang iyong panghihipo
lang ang sinabi ko." When Rose inquired from her daughter what she meant
by her statement, Analia revealed to her mother that accused-appellant had
sexually abused her. On December 15, 1998, Analia executed a "Dagdag na
Salaysay ng Paghahabla" and charged accused-appellant with rape.10
III. The Defenses and Evidence of Accused-Appellant
Accused-appellant testified in his defense. He declared that after a month of
courtship, he and Rose agreed in 1994 to live together as husband and wife. He was
then a utility worker with the Navotas Branch of the Philippine Banking Corporation.
Rose, on the other hand, was a waitress at the Golden Bird beer house at Rizal
Avenue, Manila.
Accused-appellant denied having raped Analia. He claimed that he loved the children
of Rose as if they were his own children. He took care of them, as in fact he cooked
and prepared their food before they arrived home from school. At times, he ironed
their school uniforms and bathed them, except Analia who was already big. Analia
was hard-headed because she disobeyed him whenever he ordered her to do some
errands. Because of Analia's misbehavior, accused-appellant and Rose oftentimes
quarreled. Rose even demanded that accused-appellant leave their house. Another
irritant in his and Rose's lives were the frequent visits of the relatives of her husband.
Sometime in 1997, accused-appellant was retrenched from his employment and
received a separation pay of P9,000.00 which he used to put up the VHS Rental and
Karaoke from which he earned a monthly income of P25,000.00. While living
together, accused-appellant and Rose acquired two colored television sets, two VHS
Hi-fi recorders, one VHS player, one washing machine, one scooter motor, two VHS
rewinders, one sala set, one compact disc player and many other properties.
Accused-appellant ventured that Rose coached her children Analia and Rossel to
testify against him and used them to fabricate charges against him because Rose
wanted to manage their business and take control of all the properties they acquired
during their coverture. Also, Rose was so exasperated because he had no job.
IV. The Verdict
On May 29, 2000, the trial court rendered judgment against accused-appellant finding
him guilty beyond reasonable doubt of four (4) counts of rape, defined and penalized
in the seventh paragraph, no. 1, Art. 335 of the Revised Penal Code, and meted on
him the death penalty for each count. The dispositive portion of the decision reads:
"From all the evidence submitted by the prosecution, the Court concludes
that the accused is guilty beyond reasonable doubt of the crime charged
against him in these four (4) cases, convicts him thereof, and sentences him
to DEATH PENALTY in each and every case as provided for in the seventh
paragraph, no. 1, Article 335 of the Revised Penal Code.
SO ORDERED."11
V. Assigned Errors of the Trial Court
Accused-appellant assailed the decision of the court a quo and averred in his brief
that:
"THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF
FACT IN ITS DECISION AND SUCH FAILURE IS A REVERSIBLE
ERROR."12
xxx           xxx           xxx
"THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-
APPELLANT OF FOUR (4) COUNTS OF RAPE DESPITE FAILURE OF
THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE
DOUBT.13
VI. Findings of the Court
On the first assignment of error, accused-appellant contends that the decision of the
trial court is null and void as it failed to comply with the requirements of Section 14,
Article VIII of the 1987 Constitution and Section 1, Rule 36 of the 1997 Rules of Civil
Procedure, as amended. He avers that the court a quo made no findings of facts in its
decision. The trial court merely summarized the testimonies of the witnesses of the
prosecution and those of accused-appellant and his witnesses, and forthwith set forth
26 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
the decretal portion of said decision. The trial court even failed to state in said
decision the factual and legal basis for the imposition of the supreme penalty of death
on him. The Solicitor General, on the other hand, argues that there should be no
mechanical reliance on the constitutional provision. Trial courts may well-nigh
synthesize and simplify their decisions considering that courts are harassed by
crowded dockets and time constraints. Even if the trial court did not elucidate the
grounds as the legal basis for the penalties imposed, nevertheless the decision is
valid. In any event, the Solicitor General contends that despite the infirmity of the
decision, there is no need to remand the case to the trial court for compliance with the
constitutional requirement as the Court may resolve the case on its merits to avoid
delay in the final disposition of the case and afford accused-appellant his right to a
speedy trial.
The contention of accused-appellant is well-taken. Article VIII, paragraph 14 of the
1987 Constitution provides that "no decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is based."
This requirement is reiterated and implemented by Rule 120, Section 2 of the 1985
Rules on Criminal Procedure, as amended, which reads:
"SEC. 2. Form and contents of judgment. — The judgment must be written in
the official language, personally and directly prepared by the judge and
signed by him and shall contain clearly and distinctly a statement of the facts
proved or admitted by the accused and the law upon which the judgment is
based.
If it is of conviction, the judgment shall state (a) the legal qualification of the
offense constituted by the acts committed by the accused, and the
aggravating or mitigating circumstances attending the commission thereof, if
there are any; (b) the participation of the accused in the commission of the
offense, whether as principal, accomplice, or accessory after the fact; (c) the
penalty imposed upon the accused; and (d) the civil liability or damages
caused by the wrongful act to be recovered from the accused by the
offended party, if there is any, unless the enforcement of the civil liability by a
separate action has been reserved or waived."14
The purpose of the provision is to inform the parties and the person reading the
decision on how it was reached by the court after consideration of the evidence of the
parties and the relevant facts, of the opinion it has formed on the issues, and of the
applicable laws. The parties must be assured from a reading of the decision of the
trial court that they were accorded their rights to be heard by an impartial and
responsible judge.15 More substantial reasons for the requirement are:
"For one thing, the losing party must be given an opportunity to analyze the
decision so that, if permitted, he may elevate what he may consider its errors
for review by a higher tribunal. For another, the decision if well-presented
and reasoned, may convince the losing party of its merits and persuade it to
accept the verdict in good grace instead of prolonging the litigation with a
useless appeal. A third reason is that decisions with a full exposition of the
facts and the law on which they are based, especially those coming from the
Supreme Court, will constitute a valuable body of case law that can serve as
useful references and even as precedents in the resolution of future
controversies."16
The trial court is mandated to set out in its decision the facts which had been proved
and its conclusions culled therefrom, as well as its resolution on the issues and the
factual and legal basis for its resolution.17 Trial courts should not merely reproduce the
respective testimonies of witnesses of both parties and come out with its decretal
conclusion.
In this case, the trial court failed to comply with the requirements under the
Constitution and the Rules on Criminal Procedure. It merely summarized the
testimonies of the witnesses of the prosecution and of accused-appellant on direct
and cross examinations and merely made referral to the documentary evidence of the
parties then concluded that, on the basis of the evidence of the prosecution, accused-
appellant is guilty of four (4) counts of rape and sentenced him to death, on each
count.
The trial court even failed to specifically state the facts proven by the prosecution
based on their evidence, the issues raised by the parties and its resolution of the
factual and legal issues, as well as the legal and factual bases for convicting
accused-appellant of each of the crimes charged. The trial court rendered judgment
against accused-appellant with the court declaration in the decretal portion of its
decision that it did so based on the evidence of the prosecution. The trial court
swallowed hook, line and sinker the evidence of the prosecution. It failed to explain in
its decision why it believed and gave probative weight to the evidence of the
prosecution. Reading the decision of the trial court, one is apt to conclude that the
trial court ignored the evidence of accused-appellant. The trial court did not even
bother specifying the factual and legal bases for its imposition of the supreme penalty
of death on accused-appellant for each count of rape. The trial court merely cited
seventh paragraph, no. 1, Article 335 of the Revised Penal Code. The decision of the
trial court is a good example of what a decision, envisaged in the Constitution and the
Revised Rules of Criminal Procedure, should not be.
The Court would normally remand the case to the trial court because of the infirmity of
the decision of the trial court, for compliance with the constitutional provision.
However, to avert further delay in the disposition of the cases, the Court decided to
resolve the cases on their merits considering that all the records as well as the
evidence adduced during the trial had been elevated to the Court. 18 The parties filed
their respective briefs articulating their respective stances on the factual and legal
issues.
27 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
In reviewing rape cases, this Court is guided by the following principles: (1) to accuse
a man of rape is easy but to disprove it is difficult though the accused may be
innocent; (2) considering the nature of things, and only two persons are usually
involved in the crime of rape, the testimony of the complainant should be scrutinized
with great caution; (3) the evidence for the prosecution must stand or fall on its own
merits and not be allowed to draw strength from the weakness of the evidence of the
defense.19 By the very nature of the crime of rape, conviction or acquittal depends
almost entirely on the credibility of the complainant's testimony because of the fact
that usually only the participants can testify as to its occurrence. However, if the
accused raises a sufficient doubt as to any material element of the crime, and the
prosecution is unable to overcome it with its evidence, the prosecution has failed to
discharge its burden of proving the guilt of the accused beyond cavil of doubt and
hence, the accused is entitled to an acquittal.
Anent the second assignment of error, we will resolve the same for convenience, as
follows:
Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime
of rape committed on or about October 22, 1998 and on or about September
15, 1998)
Accused-appellant avers that the prosecution failed to adduce the requisite quantum
of evidence that he raped the private complainant precisely on September 15, 1998
and October 22, 1998. Moreover, the medical findings of Dr. Armie Umil show that the
hymen of the private complainant was intact and its orifice so small as to preclude
complete penetration by an average size adult Filipino male organ in full erection
without producing any genital injury. The physical evidence belies private
complainant's claim of having been deflowered by accused-appellant on four different
occasions. The Office of the Solicitor General, for its part, contends that the
prosecution through the private complainant proved the guilt of accused-appellant for
the crime charged on both counts.
The contention of accused-appellant does not persuade the Court. The private
complainant testified that since 1996, when she was only eleven years old, until 1998,
for two times a week, accused-appellant used to place himself on top of her and
despite her tenacious resistance, touched her arms, legs and sex organ and inserted
his finger and penis into her vagina. In the process, he ejaculated. Accused-appellant
threatened to kill her if she divulged to anyone what he did to her. 20 Although private
complainant did not testify that she was raped on September 15, 1998 and October
22, 1998, nevertheless accused-appellant may be convicted for two counts of rape, in
light of the testimony of private complainant.
It bears stressing that under the two Informations, the rape incidents are alleged to
have been committed "on or about September 15, 1998" and "on or about October
22, 1998." The words "on or about" envisage a period, months or even two or four
years before September 15, 1998 or October 22, 1998. The prosecution may prove
that the crime charged was committed on or about September 15, 1998 and on or
about October 22, 1998.
In People vs. Gianan,21 this Court affirmed the conviction of accused-appellant of five
(5) counts of rape, four of which were committed in December 1992 (two counts) and
one each in March and April, 1993 and in November, 1995 and one count of acts of
lasciviousness committed in December 1992, on a criminal complaint for multiple
rape, viz:
"That sometime in November 1995, and some occasions prior and/or
subsequent thereto, in the Municipality of Dasmariñas, Province of Cavite,
and within the jurisdiction of this Honorable Court, the above-named
accused, with lewd designs, taking advantage of his superior strength over
the person of his own twelve (12) year old daughter, and by means of force,
violence and intimidation, did, then and there, willfully, unlawfully and
feloniously, have repeated carnal knowledge of Myra M. Gianan, against her
will and consent, to her damage and prejudice."22
On the contention of accused-appellant in said case that his conviction for rape in
December 1992 was so remote from the date (November 1995) alleged in the
Information, so that the latter could no longer be considered as being "as near to the
actual date at which the offense was committed" as provided under Section 11, Rule
110 of the Rules on Criminal Procedure, as amended, this Court held:
"Accused-appellant nevertheless argues that his conviction for rape in
December 1992 is so remote from the date (November 1995) alleged in the
information, so that the latter could no longer be considered as being "as
near to the actual date at which the offense was committed" as provided
under Rule 110, §11.
This contention is also untenable. In People v. Garcia, this Court upheld a
conviction for ten counts of rape based on an information which alleged that
the accused committed multiple rape "from November 1990 up to July 21,
1994," a time difference of almost four years which is longer than that
involved in the case at bar. In any case, as earlier stated, accused-
appellant's failure to raise a timely objection based on this ground constitutes
a waiver of his right to object."23
Moreover, when the private complainant testified on how accused-appellant defiled
her two times a week from 1996 until 1998, accused-appellant raised nary a whimper
of protest. Accused-appellant even rigorously cross-examined the private complainant
on her testimony on direct examination. The presentation by the prosecution, without
objection on the part of accused-appellant, of evidence of rape committed two times a
week from 1996 until 1998 (which includes September 15, 1998 and October 22,
1998) to prove the charges lodged against him constituted a waiver by accused-
28 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
appellant of his right to object to any perceived infirmity in, and in the amendment of,
the aforesaid Informations to conform to the evidence adduced by the prosecution.
The barefaced fact that private complainant remained a virgin up to 1998 does not
preclude her having been repeatedly sexually abused by accused-appellant. The
private complainant being of tender age, it is possible that the penetration of the male
organ went only as deep as her labia. Whether or not the hymen of private
complainant was still intact has no substantial bearing on accused-appellant's
commission of the crime.24 Even, the slightest penetration of the labia by the male
organ or the mere entry of the penis into the aperture constitutes consummated rape.
It is sufficient that there be entrance of the male organ within the labia of
the pudendum.25 In People vs. Baculi, cited in People vs. Gabayron,26 we held that
there could be a finding of rape even if despite repeated intercourse over a period of
four years, the complainant still retained an intact hymen without injury. In these
cases, the private complainant testified that the penis of accused-appellant gained
entry into her vagina:
"Fiscal Carisma
(continuing)
After your underwear was removed by the accused, what happened
next?
Witness:
He laid himself on top of me, sir.
Q         What did he do while he was on top of you?
A         He inserted his finger (Finenger nya ako, ipinatong nya yong ano
nya)
Q         Can you please describe more specifically what is this and I quote
"Pinatong nya yong ano nya" and where did he place it?
A         His organ, sir.
Q         Where did he place his organ?
A         In my organ, sir. (sa ari ko po.)
Q         At this very juncture madam witness, what did you feel?
A         I felt pain, sir, and I also felt that there was a sticky substance that
was coming out, sir."27 (Emphasis supplied)
We agree with accused-appellant that he is guilty only of two counts of simple rape,
instead of qualified rape. The evidence on record shows that accused-appellant is the
common-law husband of Rose, the mother of private complainant. The private
complainant, as of October 1998, was still 13 years old, and under Article 335 as
amended by Republic Act 7659, the minority of the private complainant, concurring
with the fact that accused-appellant is the common-law husband of the victim's
mother, is a special qualifying circumstance warranting the imposition of the death
penalty.28 However, said circumstance was not alleged in the Informations as required
by Section 8, Rule 110 of the Revised Rules on Criminal Procedure which was given
retroactive effect by this Court because it is favorable to the accused. 29 Hence, even if
the prosecution proved the special qualifying circumstance of minority of private
complainant and relationship, the accused-appellant being the common-law husband
of her mother, accused-appellant is guilty only of simple rape. Under the given law,
the penalty for simple rape is reclusion perpetua. Conformably with current
jurisprudence, accused-appellant is liable to private complainant for civil indemnity in
the amount of P50,000.00 and moral damages in the amount of P50,000.00 for each
count of rape, or a total of P200,000.00.
Re: Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime
committed on or about August 1998 and November 5, 1998)
Accused-appellant avers that (a) the Information in Criminal Case No. 99-171390 is
defective because the date of the offense "on or about August 1998" alleged therein
is too indefinite, in violation of Rule 110, Section 11 of the Revised Rules on Criminal
Procedure which reads:
"Sec. 11. Date of commission of the offense. — It is not necessary to state in
the complaint or information the precise date the offense was committed
except when it is a material ingredient of the offense. The offense may be
alleged to have been committed on a date as near as possible to the actual
date of its commission. (11a)"30
Accused-appellant further asserts that the prosecution failed to prove that he raped
private complainant in August 1998. Hence, he argues, he should be acquitted of said
charge. The Office of the Solicitor General, for its part, argued that the date "on or
about August 1998" is sufficiently definite. After all, the date of the commission of the
crime of rape is not an essential element of the crime. The prosecution adduced
conclusive proof that accused-appellant raped private complainant on or about
August 1998, as gleaned from her testimony during the trial.
The Court does not agree with accused-appellant. It bears stressing that the
precise date of the commission of the crime of rape is not an essential
element of the crime. Failure to specify the exact date when the rape was
29 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
 committed does not render the Information defective. The reason for this is on November 5, 1998, accused-appellant who was wearing a pair of short pants but
that the gravamen of the crime of rape is carnal knowledge of the private naked from waist up, entered the bedroom of private complainant, went on top of her,
complainant under any of the circumstances enumerated under Article 335 held her hands, removed her panty, mashed her breasts and touched her sex organ.
of the Revised Penal Code, as amended. Significantly, accused-appellant However, accused-appellant saw Rossel peeping through the door and dismounted.
did not even bother to file a motion for a bill of particulars under Rule 116, He berated Rossel for peeping and ordered him to go back to his room and to sleep.
Section 9 of the Revised Rules on Criminal Procedure before he was Accused-appellant then left the room of the private complainant. The testimony of
arraigned. Indeed, accused-appellant was duly arraigned under the private complainant on direct examination reads:
Information and entered a plea of not guilty to the charge without any plaint
on the sufficiency of the Information. Accused-appellant even adduced his "Fiscal Carisma:
evidence after the prosecution had rested its case. It was only on appeal to
this Court that accused-appellant questioned for the first time the sufficiency
of the Information filed against him. It is now too late in the day for him to do Q         In between 1996 and August 1997?
so. Moreover, in People vs. Salalima,31 this Court held that:
A         Yes, sir, sometimes two (2) times a week.
"Failure to specify the exact dates or time when the rapes occurred does not
ipso facto make the information defective on its face. The reason is obvious. Q         In November of 1998, do you recall of any unusual experience that
The precise date or time when the victim was raped is not an element of the happened to you again?
offense. The gravamen of the crime is the fact of carnal knowledge under
any of the circumstances enumerated under Article 335 of the Revised Penal A         Yes, sir.
Code. As long as it is alleged that the offense was committed at any time as
near to the actual date when the offense was committed an information is
sufficient. In previous cases, we ruled that allegations that rapes were Q         What was this unusual experience of yours?
committed "before and until October 15, 1994," "sometime in the year 1991
and the days thereafter," "sometime in November 1995 and some occasions A         He laid himself on top of me, sir.
prior and/or subsequent thereto" and "on or about and sometime in the year
1988" constitute sufficient compliance with Section 11, Rule 110 of the
Q         You said "he" whom are you referring to?
Revised Rules on Criminal Procedure.

A         Freedie Lizada Jakosalem, sir.

In this case, although the indictments did not state with particularity the dates
when the sexual assaults took place, we believe that the allegations therein
that the acts were committed "sometime during the month of March 1996 or Q         The same person you pointed to earlier?
thereabout," "sometime during the month of April 1996 or thereabout,"
"sometime during the month of May 1996 or thereabout" substantially A         Yes, sir.
apprised appellant of the crimes he was charged with since all the elements
of rape were stated in the informations. As such, appellant cannot complain
Q         You said he placed himself on top of you in November, 1998, what
that he was deprived of the right to be informed of the nature of the cases
did he do while he was on top of you?
filed against him. Accordingly, appellant's assertion that he was deprived of
the opportunity to prepare for his defense has no leg to stand on."
A         He's smashing my breast and he was also touching my arms and my
legs, sir.
The prosecution proved through the testimony of private complainant that accused-
appellant raped her two times a week in 1998. As in Criminal Cases Nos. 99-171392
and 99-171393, accused-appellant is guilty only of simple rape. Q         What else if any madam witness?

As to the crime of rape subject of Criminal Case No. 99-171391, accused-appellant A         He was also touching my sex organ, sir.
avers that he is not criminally liable of rape. We agree with accused-appellant. The
collective testimony of private complainant and her younger brother Rossel was that Q         What else, if any?

30 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL

Atty. Estorco: On cross-examination, the private complainant testified, thus:

May we take note of the same objection your honor, the "Atty. Balaba:
prosecution —
Q         Who was that somebody who entered the room?
Court:
A         My stepfather Freedie Lizada, sir.
Same ruling. Let the complainant continue considering that she is
crying and still young. Q         He was fully dressed at that time, during the time, is that correct?

Witness: A         Yes, sir, he was dressed then, sir.

None else, sir. Q         And he had his pants on, is that correct?

Fiscal Carisma: A         He was wearing a short pants, sir.

With what part of his body did he touch your sex organ? Q         Was it a T-shirt that he had, at that time or a polo shirt?

Atty. Estorco: A         He was not wearing any shirt then, sir, he was naked.

Your Honor, that is — Q         When you realized that somebody was entering the room were you
not afraid?
Court:
A         No, sir, I was not afraid.
May answer.
Q         What happened when you realized that somebody entered the room,
Fiscal Carisma: and the one who entered was your stepfather, Freedie Lizada?

I will re-propound the question, your honor. A         I did not mind him entering the room because I know that my brother
was around but suddenly I felt that somebody was holding me.
You said that he touched your sex organ, will you tell the court with
what part of his body, did he touch your sex organ? Q         He was holding you, where were you when he held you?

Witness: A         I was in the bed, sir, lying down.

With his hands, sir. Q         You were lying down?

Q         What about after November 1998 — was this the last incident, this A         Yes, sir.
unusual thing that you experienced from the hands of the accused was this
that last time, the one you narrated in November 1998? Q         What part of the body did the accused Freedie Lizada touched you?

A         Yes, sir."32
31 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
A         My two arms, my legs and my breast, sir. A         I cannot recall, sir.

Q         Do you mean to tell us that he was holding your two arms and at the Q         What was the position of Freedie Lizada when he held your arms?
same time your legs, is that what you are trying to tell us?
A         He was sitting on our bed, sir.
A         He held me first in my arms and then my legs, sir.
Q         Which side of your bed was Freedie Lizada sitting on?
Q         He held you first by your arms, is that what you are trying to tell us?
A         I do not know, sir. I cannot recall.
Fiscal Carisma:
Atty. Balaba:
Already answered your honor, he held the arms and then the legs.
Can we take a recess your honor?
Court:
Court:
Already answered.
How long will it take you to finish your cross?
Atty. Balaba:
Atty. Balaba:
Q         Your honor, I am just trying to —
We will confront the witness with so many things your honor.
Court:
Court:
Proceed.
Yes, that's why I am asking you how long will it take you to finish
Atty. Balaba: your cross?

Q         He held your arms with his two hands? Atty. Balaba:

A         Only with one hand, sir. About another hour, sir.

Q         Which hand were you touched? Court:

A         I do not know which hand, sir. So we will be finished by 11:15, proceed.

Q         Which arm of yours was held by Freedie Lizada? Atty. Balaba:

A         I could not recall, sir. You cannot also remember which leg was held by Freedie Lizada?

Q         Which side of your body was Freedie Lizada at that time? A         I cannot recall, sir.

32 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL

 Q         When this happened, did you not shout for help? Court:

A         I did not ask for help, I was motioning to resist him, so that he would Q         The same address?
go out, sir. I was struggling to free myself from him, sir.
A.         Yes, sir.
Q         And you were not able to extricate yourself from him?
Fiscal Carisma:
A         I was not able to extricate myself, sir.
Q         On that date, time and place, do your recall where your sister Anna
Q         You were struggling with one arm of Lizada holding your arm, and Lea Orillosa was?
the other hand was holding your leg, is that what you are trying to tell us?
A         Yes, sir.
A         No, sir, it's not like that.
Q         Where was she?
Q         Could you tell us, what happened, you did not shout for help and you
were trying to extricate yourself, what happened? A         She was sleeping, sir.

A         He suddenly went out of the room, sir. Q         Now, on that date, time and place you said you were outside your
house, did you stay the whole afternoon outside your house?
Q         Now, he went —
A         No, sir.
Court:
Q         Where did you go next?
You did not shout during that time?
A         Inside, sir.
A         No, your honor."33
Q         For what purpose did you get inside your house?
Rossel, the nine-year old brother of the private complainant corroborated in part his
sister's testimony. He testified on direct examination, thus: A         Because I was thirsty, sir.

"Fiscal Carisma: (continuing) Q         So you went to the fridge to get some water?

Q         Now, on November 2, 1998 do you recall where you were at about A         Yes, sir.
3:00 o'clock?
Q         And what happened as you went inside your house to get some
A         I was outside our house, sir. water?

Q         Where was your house again, Mr. witness, at that time? Where was A         I saw my stepfather removing the panty of my sister and he touched
your house at that date, time and place? At that date and time? her and then he laid on top of her, sir.

A         1252 Jose Abad Santos, Tondo, Manila, sir. Q         Do you see your stepfather inside the courtroom now?

33 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL

 A         Yes, sir.
Q         Will you point to him?
A         He is the one, sir.
Court Interpreter:
Witness pointing to a male person who when asked answers to the
name Freedie Lizada.
Fiscal Carisma:
Q         This thing that your father was — that your stepfather did to your
elder sister, did you see this before or after you went to the fridge to get
some water?
A         I already got water then, sir.
Q         What did you do as you saw this thing being done by your stepfather
to your elder sister?
A         I was just looking at them when he saw me, sir.
Q         Who, you saw who? You are referring to the accused Freedie
Lizada?
A         Yes, sir.
Q         So, what did you do as you were seen by your stepfather?
A         He scolded me, he shouted at me, he told me something and after
that he went to the other room and slept, sir."34
Rossel testified on cross-examination, thus:
"Q         So you got thirsty, is that correct, and went inside the house?
A         Yes, sir.
Q         And you took a glass of water from the refrigerator?
A         Yes, sir.
Q         And it was at this time that you saw the accused Freedie Lizada
touching your sister?
A         Yes, sir.
Q         Where was this refrigerator located?
A         In front of the room where my sister sleeps, sir.
Q         So the door of your sister's room was open?
A         Yes, sir.
Q         And — okay, you said your sister was sleeping. What was the
position of your sister when you said the accused removed her panty?
A         She was lying straight, but she was resisting, sir.
Q         Were you noticed by your sister at that time?
A         No, sir.
Q         And your sister did not call for help at that time?
A         No, sir.
Q         And all this time you saw the accused doing this, from the refrigerator
where you were taking a glass of water?
A         Yes, sir.
Q         Did you not say something to the accused?
A         No, sir, I was just looking.
Q         So your sister was lying down when the accused removed her panty,
is that what you are trying to tell us?
A         Yes, sir.
34 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Q         And where was the — and the accused saw you when he was Q         Removing her?
removing the panty of your sister?
A         Panty, sir.
A         Not yet, sir, but after a while he looked at the refrigerator because he
might be thirsty. Q         Which hand of your sister was being removed with the left hand of
the accused?
Q         So — you said the accused was touching your sister. What part of
her body was touched by the accused? Court:

A         Here, sir. Which?

Court Interpreter: Atty. Balaba:

Witness pointing at the lower portion of the body. Which hand, which hand?

Atty. Balaba: Fiscal Carisma:

Q         You saw with what hand was the accused touching your sister? The question is vague, your honor.

A         Yes, sir. Atty. Balaba:

Q         What hand was he touching your sister? Because he said that removing the hand —

A         This hand, sir. Fiscal Carisma:

Court Interpreter: He said removing the panty.

Witness raising his right hand. Atty. Balaba:

Atty. Balaba: Is that panty? I'm sorry.

Q         And which part of your sister's body was the accused touching with Q         So, the accused was touching with his right hand the left thigh of your
his right hand? Your sister's body was the accused touching with his right sister —
hand?
Fiscal Carisma:
A         Her right leg, sir.
The right thigh.
Q         How about his left hand, what was the accused doing with his left
hand?
Atty. Balaba:
A         Removing her panty, sir.

35 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL

 Q         Rather the right thigh of your sister and with his left hand removing
the panty, is that what you are telling to tell us?
A         Yes, sir.
Q         And your sister all the time was trying to — was struggling to get free,
is that not correct?
A         Yes, sir, she was resisting. (witness demonstrating)
Q         She was struggling — was the accused able to remove the panty?
A         Yes, sir.
Q         And all the time you were there looking with the glass of water in your
hand?
A         Yes, sir."35
In light of the evidence of the prosecution, there was no introduction of the penis of
accused-appellant into the aperture or within the pudendum of the vagina of private
complainant. Hence, accused-appellant is not criminally liable for consummated
rape.36
The issue that now comes to fore is whether or not accused-appellant is guilty of
consummated acts of lasciviousness defined in Article 336 of the Revised Penal Code
or attempted rape under Article 335 of the said Code, as amended in relation to the
last paragraph of Article 6 of the Revised Penal Code. In light of the evidence on
record, we believe that accused-appellant is guilty of attempted rape and not of acts
of lasciviousness.
Article 336 of the Revised Penal Code reads:
"Art. 336. Acts of Lasciviousness. — Any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the
circumstances mentioned in the preceding article, shall be punished
by prision correccional."37
For an accused to be convicted of acts of lasciviousness, the prosecution is burdened
to prove the confluence of the following essential elements:
"1. That the offender commits any act of lasciviousness or lewdness.
2. That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise
unconscious; or
c. When the offended party is under 12 years of age."38
"Lewd" is defined as obscene, lustful, indecent, lecherous. It signifies that form of
immorality which has relation to moral impurity; or that which is carried on a wanton
manner.39
The last paragraph of Article 6 of the Revised Penal Code reads:
"There is an attempt when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other
than his own spontaneous desistance."
The essential elements of an attempted felony are as follows:
"1. The offender commences the commission of the felony directly by overt
acts;
2. He does not perform all the acts of execution which should produce the
felony;
3. The offender's act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due
to cause or accident other than his spontaneous desistance."40
The first requisite of an attempted felony consists of two elements, namely:
"(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to be
committed."41
An overt or external act is defined as some physical activity or deed, indicating the
intention to commit a particular crime, more than a mere planning or preparation,
which if carried out to its complete termination following its natural course, without
36 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
being frustrated by external obstacles nor by the spontaneous desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense.42 The raison
d'etre for the law requiring a direct overt act is that, in a majority of cases, the conduct
of the accused consisting merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his declared intent. It is that
quality of being equivocal that must be lacking before the act becomes one which
may be said to be a commencement of the commission of the crime, or an overt act
or before any fragment of the crime itself has been committed, and this is so for the
reason that so long as the equivocal quality remains, no one can say with certainty
what the intent of the accused is.43 It is necessary that the overt act should have been
the ultimate step towards the consummation of the design. It is sufficient if it was the
"first or some subsequent step in a direct movement towards the commission of the
offense after the preparations are made."44 The act done need not constitute the last
proximate one for completion. It is necessary, however, that the attempt must have a
causal relation to the intended crime.45 In the words of Viada, the overt acts must
have an immediate and necessary relation to the offense.46
Acts constitutive of an attempt to commit a felony should be distinguished from
preparatory acts which consist of devising means or measures necessary for
accomplishment of a desired object or end.47 One perpetrating preparatory acts is not
guilty of an attempt to commit a felony. However, if the preparatory acts constitute a
consummated felony under the law, the malefactor is guilty of such consummated
offense.48 The Supreme Court of Spain, in its decision of March 21, 1892, declared
that for overt acts to constitute an attempted offense, it is necessary that their
objective be known and established or such that acts be of such nature that they
themselves should obviously disclose the criminal objective necessarily intended, said
objective and finality to serve as ground for designation of the offense.49
There is persuasive authority that in offenses not consummated as the material
damage is wanting, the nature of the action intended (accion fin) cannot exactly be
ascertained but the same must be inferred from the nature of the acts executed
(accion medio).50 Hence, it is necessary that the acts of the accused must be such
that, by their nature, by the facts to which they are related, by circumstances of the
persons performing the same, and b the things connected therewith, that they are
aimed at the consummation of the offense. This Court emphasized in People vs.
Lamahang51 that:
"The relation existing between the facts submitted for appreciation and the
offense which said facts are supposed to produce must be direct; the
intention must be ascertained from the facts and therefore it is necessary, in
order to avoid regrettable instances of injustice, that the mind be able to
cause a particular injury."52
If the malefactor does not perform all the acts of execution by reason of his
spontaneous desistance, he is not guilty of an attempted felony. 53 The law does not
punish him for his attempt to commit a felony.54 The rationale of the law, as explained
by Viada:
"La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que
castigarlo. Si el autor de la tentativa, despues de haber comenzado a ejecutar el
delito por actos exteriores, se detiene, por un sentimiento libre y espontaneo, en el
borde del abismo, salvo esta. Es un llamamiento al remordimiento, a la conciencia,
una gracia un perdon que concede la Ley al arrepentimiento voluntario."55
As aptly elaborated on by Wharton:
"First, the character of an attempt is lost when its execution is voluntarily
abandoned. There is no conceivable overt act to which the abandoned
purpose could be attached. Secondly, the policy of the law requires that the
offender, so long as he is capable of arresting an evil plan, should be
encouraged to do so, by saving him harmless in case of such retreat before
it is possible for any evil consequences to ensue. Neither society, nor any
private person, has been injured by his act. There is no damage, therefore,
to redress. To punish him after retreat and abandonment would be to destroy
the motive for retreat and abandonment."56
It must be borne in mind, however, that the spontaneous desistance of a malefactor
exempts him from criminal liability for the intended crime but it does not exempt him
from the crime committed by him before his desistance.57
In light of the facts established by the prosecution, we believe that accused-appellant
intended to have carnal knowledge of private complainant. The overt acts of accused-
appellant proven by the prosecution were not mere preparatory acts. By the series of
his overt acts, accused-appellant had commenced the execution of rape which, if not
for his spontaneous desistance, will ripen into the crime of rape. Although accused-
appellant desisted from performing all the acts of execution however his desistance
was not spontaneous as he was impelled to do so only because of the sudden and
unexpected arrival of Rossel. Hence, accused-appellant is guilty only of attempted
rape.58 In a case of similar factual backdrop as this case, we held:
"Applying the foregoing jurisprudence and taking into account Article 6 of the
Revised Penal Code, the appellant can only be convicted of attempted rape.
He commenced the commission of rape by removing his clothes, undressing
and kissing his victim and lying on top of her. However, he failed to perform
all the acts of execution which should produce the crime of rape by reason of
a cause other than his own spontaneous desistance, i.e., by the timely
arrival of the victim's brother. Thus, his penis merely touched Mary Joy's
private organ. Accordingly, as the crime committed by the appellant is
attempted rape, the penalty to be imposed on him should be an
indeterminate prison term of six (6) years of prision correccional as minimum
to twelve (12) years of prision mayor as maximum."
37 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
The penalty for attempted rape is prision mayor which is two degrees lower
than reclusion perpetua.59 Accused-appellant should be meted an indeterminate
penalty the minimum of which should be taken from prision correccional which has a
range of from six months and one day to six years and the maximum of which shall be
taken from the medium period of prision mayor which has a range of from eight years
and one day to ten years, without any modifying circumstance. Accused-appellant is
also liable to private complainant for moral damages in the amount of P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of
Manila, Branch 54, is SET ASIDE. Another judgment is hereby rendered as follows:
1. In Criminal Case No. 99-171390, accused-appellant is hereby found guilty beyond
reasonable doubt of simple rape under Article 335 of the Revised Penal Code as
amended and is hereby meted the penalty of reclusion perpetua. Accused-appellant
is also hereby ordered to pay private complainant Analia Orillosa the amounts of
P50,000.00 by way of civil indemnity and P50,000.00 by way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is hereby found guilty of
attempted rape under Article 335 of the Revised Penal Code as amended in relation
to Article 6 of the said Code and is hereby meted an indeterminate penalty of from six
years of prision correccional in its maximum period, as minimum to ten years
of prision mayor in its medium period, as maximum. Accused-appellant is hereby
ordered to pay private complainant Analia Orillosa the amount of P25,000.00 by way
of moral damages; and,
3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is hereby
found guilty beyond reasonable doubt of two counts of simple rape, defined in Article
335 of the Revised Penal Code as amended and is hereby meted the penalty
of reclusion perpetua for each count. Accused-appellant is hereby ordered to pay to
private complainant Analia Orillosa the amount of P50,000.00 by way of civil
indemnity and the amount of P50,000.00 by way of moral damages for each count, or
a total amount of P200,000.00.
SO ORDERED.
G.R. No. 202867               July 15, 2013
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
REGIE LABIAGA, Appellant.
DECISION
CARPIO, J.:
The Case
Before the Court is an appeal assailing the Decision1 dated 18 October 2011 of the
Court of Appeals-Cebu (CA-Cebu) in CA-G.R. CEB CR-HC No. 01000. The CA-Cebu
affirmed with modification the Joint Decision 2 dated 10 March 2008 of the Regional
Trial Court of Barotac Viejo, Iloilo, Branch 66 (RTC), in Criminal Case No. 2001-155)
convicting Regie Labiaga alias "Banok" (appellant) of murder and Criminal Case No.
2002-1777 convicting appellant of frustrated murder.
The Facts
In Criminal Case No. 2001-1555, appellant, together with a certain Alias Balatong
Barcenas and Cristy Demapanag (Demapanag), was charged with Murder with the
Use of Unlicensed Firearm under an Information3 which reads:
That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and helping one another, armed with unlicensed
firearm, with deliberate intent and decided purpose to kill, by means of treachery and
with evident premeditation, did then and there willfully, unlawfully and feloniously
attack, assault and shoot JUDY CONDE alias ‘JOJO’ with said unlicensed firearm,
hitting her and inflicting gunshot wounds on the different parts of her breast which
caused her death thereafter.
CONTRARY TO LAW.
The same individuals were charged with Frustrated Murder with the Use of
Unlicensed Firearm in Criminal Case No. 2002-1777, under an Information4 which
states:
That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and helping one another, armed with unlicensed
firearm, with deliberate intent and decided purpose to kill, by means of treachery and
with evident premeditation, did then and there willfully, unlawfully and feloniously
attack, assault and shoot Gregorio Conde with said unlicensed firearm, hitting him on
the posterior aspect, middle third right forearm 1 cm. In diameter; thereby performing
all the acts of execution which would produce the crime of Murder as a consequence,
but nevertheless did not produce it by reason of causes independent of the will of the
accused; that is by the timely and able medical assistance rendered to said Gregorio
Conde which prevented his death.
38 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
CONTRARY TO LAW.
Alias Balatong Barcenas remained at large. Both appellant and Demapanag pled not
guilty in both cases and joint trial ensued thereafter. The prosecution presented four
witnesses: Gregorio Conde, the victim in Criminal Case No. 2002-1777; Glenelyn
Conde, his daughter; and Dr. Jeremiah Obañana and Dr. Edwin Jose Figura, the
physicians at the Sara District Hospital where the victims were admitted. The defense,
on the other hand, presented appellant, Demapanag, and the latter’s brother,
Frederick.
Version of the prosecution
The prosecution’s version of the facts is as follows: At around 7:00 p.m. on 23
December 2000, Gregorio Conde, and his two daughters, Judy and Glenelyn Conde,
were in their home at Barangay Malayu-an, Ajuy, Iloilo. Thereafter, Gregorio stepped
outside. Glenelyn was in their store, which was part of their house.
Shortly thereafter, appellant, who was approximately five meters away from Gregorio,
shot the latter. Gregorio called Judy for help. When Judy and Glenelyn rushed to
Gregorio’s aid, appellant shot Judy in the abdomen. The two other accused were
standing behind the appellant. Appellant said, "she is already dead," and the three
fled the crime scene.
Gregorio and Judy were rushed to the Sara District Hospital. Judy was pronounced
dead on arrival while Gregorio made a full recovery after treatment of his gunshot
wound.
Dr. Jeremiah Obañana conducted the autopsy of Judy. His report stated that her
death was caused by "cardiopulmonary arrest secondary to Cardiac Tamponade due
to gunshot wound."5
Dr. Jose Edwin Figura, on the other hand, examined Gregorio after the incident. He
found that Gregorio sustained a gunshot wound measuring one centimeter in
diameter in his right forearm and "abrasion wounds hematoma formation" in his right
shoulder.6
Version of the defense
Appellant admitted that he was present during the shooting incident on 23 December
2000. He claimed, however, that he acted in self-defense. Gregorio, armed with a
shotgun, challenged him to a fight. He attempted to shoot appellant, but the shotgun
jammed. Appellant tried to wrest the shotgun from Gregorio, and during the struggle,
the shotgun fired. He claimed that he did not know if anyone was hit by that gunshot.
Demapanag claimed that at the time of the shooting, he was in D&D Ricemill, which is
approximately 14 kilometers away from the crime scene. This was corroborated by
Frederick, Demapanag’s brother.
The Ruling of the RTC
In its Joint Decision, the RTC acquitted Demapanag due to insufficiency of evidence.
Appellant, however, was convicted of murder and frustrated murder. The dispositive
portion of the Joint Decision reads:
WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie
Labiaga @ "Banok" GUILTY beyond reasonable doubt of the Crime of Murder in
Crim. Case No. 2001-1555 and hereby sentences the said accused to reclusion
perpetua together with accessory penalty provided by law, to pay the heirs of Judy
Conde ₱50,000.00 as civil indemnity, without subsidiary imprisonment in case of
insolvency and to pay the costs.
In Crim. Case No. 2002-1777, the court finds accused Regie Labiaga @ "Banok"
GUILTY beyond reasonable doubt of the crime of Frustrated Murder and hereby
sentences the said accused to a prison term ranging from six (6) years and one (1)
day of prision mayor as minimum to ten (10) years and one (1) day of reclusion
temporal as maximum, together with the necessary penalty provided by law and
without subsidiary imprisonment in case of insolvency and to pay the costs.
Accused’s entire period of detention shall be deducted from the penalty herein
imposed when the accused serves his sentence.
For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crimes
charged in both cases. The Provincial Warden, Iloilo Rehabilitation Center, Pototan,
Iloilo is hereby directed to release accused Cristy Demapanag from custody unless he
is being held for some other valid or lawful cause.
SO ORDERED.7
The Ruling of the CA-Cebu
Appellant impugned the RTC’s Joint Decision, claiming that "the RTC gravely erred in
convicting the appellant of the crime charged despite failure of the prosecution to
prove his guilt beyond reasonable doubt."8 The CA-Cebu, however, upheld the
conviction for murder and frustrated murder.
The CA-Cebu also modified the Joint Decision by imposing the payment of moral and
exemplary damages in both criminal cases. The CA-Cebu made a distinction between
39 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
the civil indemnity awarded by the RTC in Criminal Case No. 2001-1555 and the
moral damages. The CA-Cebu pointed out that:
The trial court granted the amount of ₱50,000.00 as civil indemnity in Criminal Case
No. 2001-1555. It did not award moral damages. Nonetheless, the trial court should
have awarded both, considering that they are two different kinds of damages. For
death indemnity, the amount of ₱50,000.00 is fixed "pursuant to the current judicial
policy on the matter, without need of any evidence or proof of damages. Likewise, the
mental anguish of the surviving family should be assuaged by the award of
appropriate and reasonable moral damages."9
The dispositive portion of the Decision of the CA-Cebu reads:
WHEREFORE, premises considered, the appeal is DENIED. The Joint Decision
dated March 10, 2008 of the Regional Trial Court, Branch 66, in Barotac Viejo, Iloilo is
AFFIRMED with MODIFICATIONS. The dispositive portion of the said Joint Decision
should now read as follows:
WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie
Labiaga @ "Banok" GUILTY beyond reasonable doubt of the crime of Murder in Crim.
Case No. 2001-1555 and hereby sentences the said accused to reclusion perpetua
together with the accessory penalty provided by law, to pay the heirs of Judy Conde
₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages and ₱25,000.00 as
exemplary damages, without subsidiary imprisonment in case of insolvency and to
pay the costs.
In Crim. Case No. 2002-1777 the court finds accused Regie Labiaga @ "Banok"
GUILTY beyond reasonable doubt of the crime of Frustrated Murder and hereby
sentences the said accused to suffer the indeterminate penalty of eight (8) years and
one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8) months
of reclusion temporal, as maximum, together with the accessory penalty provided by
law, to pay Gregorio Conde ₱25,000.00 as moral damages and ₱25,000.00 as
exemplary damages, without subsidiary imprisonment in case of insolvency and to
pay the costs Accused(’s) entire period of detention shall be deducted from the
penalty herein imposed when the accused serves his sentence.
For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crime(s)
charged in both cases. The Provincial Warden, Iloilo Rehabilitation Center, Pototan,
Iloilo is hereby directed to release accused Cristy Demapanag from custody unless he
is being held for some other valid or lawful cause.
SO ORDERED.
SO ORDERED.10
Hence, this appeal.
The Ruling of the Court
Our review of the records of Criminal Case No. 2002-1777 convinces us that
appellant is guilty of attempted murder and not frustrated murder. We uphold
appellant’s conviction in Criminal Case No. 2001-1555 for murder, but modify the civil
indemnity awarded in Criminal Case No. 2001-1555, as well as the award of moral
and exemplary damages in both cases.
Justifying circumstance of self-defense
Appellant’s feeble attempt to invoke self-defense in both cases was correctly rejected
by the RTC and the CA-Cebu. This Court, in People v. Damitan,11 explained that:
When the accused admits killing a person but pleads self-defense, the burden of
evidence shifts to him to prove by clear and convincing evidence the elements of his
defense. However, appellant’s version of the incident was uncorroborated. His bare
and self-serving assertions cannot prevail over the positive identification of the two (2)
principal witnesses of the prosecution.12
Appellant’s failure to present any other eyewitness to corroborate his testimony and
his unconvincing demonstration of the struggle between him and Gregorio before the
RTC lead us to reject his claim of self-defense. Also, as correctly pointed out by the
CA-Cebu, appellant’s theory of self-defense is belied by the fact that:
x x x The appellant did not even bother to report to the police Gregorio’s alleged
unlawful aggression and that it was Gregorio who owned the gun, as appellant
claimed. And, when appellant was arrested the following morning, he did not also
inform the police that what happened to Gregorio was merely accidental.13
Appellant’s claim that he did not know whether Gregorio was hit when the shotgun
accidentally fired is also implausible.
In contrast, we find that the Condes’ account of the incident is persuasive. Both the
CA-Cebu and the RTC found that the testimonies of the Condes were credible and
presented in a clear and convincing manner. This Court has consistently put much
weight on the trial court’s assessment of the credibility of witnesses, especially when
affirmed by the appellate court.14 In People v. Mangune,15 we stated that:
It is well settled that the evaluation of the credibility of witnesses and their testimonies
is a matter best undertaken by the trial court because of its unique opportunity to
observe the witnesses first hand and to note their demeanor, conduct, and attitude
under grilling examination. These are important in determining the truthfulness of
40 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
witnesses and in unearthing the truth, especially in the face of conflicting testimonies.
For, indeed, the emphasis, gesture, and inflection of the voice are potent aids in
ascertaining the witness’ credibility, and the trial court has the opportunity to take
advantage of these aids.16
Since the conclusions made by the RTC regarding the credibility of the witnesses
were not tainted with arbitrariness or oversight or misapprehension of relevant facts,
the same must be sustained by this Court.
Attempted and Frustrated Murder
Treachery was correctly appreciated by the RTC and CA-Cebu. A treacherous attack
is one in which the victim was not afforded any opportunity to defend himself or resist
the attack.17 The existence of treachery is not solely determined by the type of
weapon used. If it appears that the weapon was deliberately chosen to insure the
execution of the crime, and to render the victim defenseless, then treachery may be
properly appreciated against the accused.18
In the instant case, the Condes were unarmed when they were shot by appellant. The
use of a 12-gauge shotgun against two unarmed victims is undoubtedly treacherous,
as it denies the victims the chance to fend off the offender.
We note, however, that appellant should be convicted of attempted murder, and not
frustrated murder in Criminal Case No. 2002-1777.
Article 6 of the Revised Penal Code defines the stages in the commission of felonies:
Art. 6. Consummated, frustrated, and attempted felonies.— Consummated felonies as
well as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the
acts of execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator.
There is an attempt when the offender commences the commission of a felony
directly by overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his own
spontaneous desistance.
In Serrano v. People,19 we distinguished a frustrated felony from an attempted felony
in this manner:
1.) In a frustrated felony, the offender has performed all the acts of execution
which should produce the felony as a consequence; whereas in an
attempted felony, the offender merely commences the commission of a
felony directly by overt acts and does not perform all the acts of execution.
2.) In a frustrated felony, the reason for the non-accomplishment of the crime
is some cause independent of the will of the perpetrator; on the other hand,
in an attempted felony, the reason for the non-fulfillment of the crime is a
cause or accident other than the offender’s own spontaneous desistance.20
In frustrated murder, there must be evidence showing that the wound would have
been fatal were it not for timely medical intervention. 21 If the evidence fails to convince
the court that the wound sustained would have caused the victim’s death without
timely medical attention, the accused should be convicted of attempted murder and
not frustrated murder.
In the instant case, it does not appear that the wound sustained by Gregorio Conde
was mortal. This was admitted by Dr. Edwin Figura, who examined Gregorio after the
shooting incident:
Prosecutor Con-El:
Q: When you examined the person of Gregorio Conde, can you tell the court what
was the situation of the patient when you examined him?
A: He has a gunshot wound, but the patient was actually ambulatory and not in
distress.
xxxx
Court (to the witness)
Q: The nature of these injuries, not serious?
A: Yes, Your Honor, not serious. He has also abrasion wounds hematoma formation
at the anterior aspect right shoulder.22
Since Gregorio’s gunshot wound was not mortal, we hold that appellant should be
convicted of attempted murder and not frustrated murder. Under Article 51 of the
Revised Penal Code, the corresponding penalty for attempted murder shall be two
degrees lower than that prescribed for consummated murder under Article 248, that
is, prision correccional in its maximum period to prision mayor in its medium period.
Section 1 of the Indeterminate Sentence Law provides:
41 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
x x x the court shall sentence the accused to an indeterminate sentence the maximum
term of which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the Revised Penal Code, and the minimum which
shall be within the range of the penalty next lower to that prescribed by the Code for
the offense.1âwphi1
Thus, appellant should serve an indeterminate sentence ranging from two (2) years,
four (4) months and one (1) day of prision correccional in its medium period to eight
(8) years and one (1) day of prision mayor in its medium period.
Award of damages
In light of recent jurisprudence, we deem it proper to increase the amount of damages
imposed by the lower court in both cases. In Criminal Case No. 2001-1555, this Court
hereby awards ₱75,000.00 as civil indemnity23 and ₱30,000.00 as exemplary
damages.24 The award of ₱50,000.00 as moral damages in the foregoing case is
sustained. Appellant is also liable to pay ₱40,000.00 as moral damages and
₱30,000.00 as exemplary damages, in relation to Criminal Case No. 2002-1777.
WHEREFORE, we AFFIRM the 18 October 2011 Decision of the Court of Appeals-
Cebu in CA-G.R. CEB CR-HC No. 01000 with MODIFICATIONS. In Criminal Case
No. 2002-1777, we find that appellant Regie Labiaga is GUILTY of Attempted Murder
and shall suffer an indeterminate sentence ranging from two (2) years, four (4)
months and one (1) day of prision correccional as minimum, to eight (8) years and
one (1) day of prision mayor as maximum, and pay ₱40,000.00 as moral damages
and ₱30,000.00 as exemplary damages. In Criminal Case No. 2001-1555, appellant
shall pay ₱75,000.00 as civil indemnity, ₱50,000.00 as moral damages, and
₱30,000.00 as exemplary damages.
SO ORDERED.
G.R. No. 206442               July 1, 2015
JOVITO CANCERAN, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari seeking to reverse and set aside the August
10, 2012 Decision1 and the March 7, 2013 Resolution2 of the Court 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
(Canceran) for consummated Theft.
The records disclose that Canceran, together with Frederick Vequizo and Marcial
Diaz, Jr., was charged with "Frustrated Theft." The Information reads:
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 Ororama Mega Center, with intent to gain and
without the knowledge and consent of the owner thereof, 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, 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
42 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
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.
43 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
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 accomplished."19
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.
44 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
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
Here, the products stolen were worth ₱28,627.20. Following Article 309 par. 1 of the
RPC, the penalty shall be the maximum period of the penalty prescribed in. the same
paragraph, because the value of the things stolen exceeded ₱22,000.00. In other
words, a special aggravating circumstance shall affect the imposable penalty.
Applying the Indeterminate Sentence Law, the minimum penalty should be within the
range of Arresto Mayor 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.
G.R. No. 188979               September 5, 2012
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
CHRISTOPHER PAREJA y VELASCO, Appellant.
DECISION
BRION, J.:
This is an appeal from the June 15, 2009 decision1 of the Court of Appeals (CA) in
CA-G.R. CR HC No. 02759. TheCA affirmed the February 22, 2007 decision2
of the Regional Trial Court (RTC), Branch 209, Mandaluyong City, finding appellant
Christopher Pareja guilty beyond reasonable doubt of the crime of rape and
sentencing him to suffer the penalty of reclusion perpetua.
THE CASE
45 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
The prosecution charged the appellant before the RTC with the crime of rape under
an Amended Information that reads:
That on or about the 16th day of June 2003, in the City of Mandaluyong, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, did
then and there willfully, unlawfully and feloniously lie and have carnal knowledge of
AAA,3 13 years of age, sister of the common law spouse of accused, against her will
and consent, thus debasing and/or demeaning the intrinsic worth and dignity of the
victim thereby prejudicing her normal development as a child.4
The evidence for the prosecution disclosed that at around 3:30 a.m. of June 16, 2003,
AAA was sleeping beside her two-year old nephew, BBB, on the floor of her sister’s
room, when the appellant hugged her and kissed her nape and neck.5 AAA cried, but
the appellant covered her and BBB with a blanket. 6 The appellant removed AAA’s
clothes, short pants, and underwear; he then took off his short pants and briefs.7 The
appellant went on top of AAA, and held her hands. AAA resisted, but the appellant
parted her legs using his own legs, and then tried to insert his penis into her
vagina.8 The appellant stopped when AAA’s cry got louder; AAA kicked the appellant’s
upper thigh as the latter was about to stand up. The appellant put his clothes back on,
and threatened to kill AAA if she disclosed the incident to anyone. Immediately after,
the appellant left the room.9 AAA covered herself with a blanket and cried.10
At around 6:00 a.m. of the same day, AAA’s brother, CCC, went to her room and
asked her why she was lying on the floor and crying. AAA did not answer, and instead
hurled invectives at CCC.11 AAA went to the house of her other brother, but the latter
was not in his house. AAA proceeded to the house of her older sister, DDD, at Block
19, Welfareville Compound, and narrated to her what had happened. Afterwards,
AAA and her two (2) siblings went to the Women and Children’s Desk of the
Mandaluyong City Police Station and reported the incident.12
For his defense, the appellant declared on the witness stand that he hauled "filling
materials" at his house, located at Block 38, Fabella Compound, on the evening of
June 15, 2003. At around 10:00 p.m., he went to his room and slept.13 On the next
day, the appellant, accompanied by his mother and brother-in-law, went to the
municipal hall to ask for financial assistance for his wife who was confined in the
hospital. Upon arrival at the hospital, the doctor told him that his wife needed blood.
Immediately after, the appellant and his companions went to Pasig City to find blood
donors.14
On the evening of June 16, 2003, and while the appellant was folding the clothes of
his son, two policemen entered his house and informed him that a complaint for
attempted rape had been filed against him. The police brought him to the Criminal
Investigation and Detection Group, forced him to admit the crime, mauled him, and
then placed him in a detention cell.15 The appellant added that he filed a complaint
before the Office of the Ombudsman against the police officers who beat him up.16
The RTC convicted the appellant of rape in its decision of February 22, 2007, under
the following terms:
WHEREFORE, the Court finds accused CHRISTOPHER PAREJA y VELASCO
GUILTY beyond reasonable doubt of the crime of RAPE and hereby sentences him
as he is hereby sentenced to suffer the penalty of reclusion perpetua; and to
indemnify the victim, AAA, the amount of ₱ 50,000.00 as moral damages and ₱
50,000.00 as civil indemnity.17
The CA, in its decision dated June 15, 2009, affirmed the RTC decision. It explained
that a slight penetration of the labia by the male organ is sufficient to constitute rape,
and held that a slight penetration took place when the appellant’s penis touched
AAA’s vagina as he was trying to insert it.
The appellate court further ruled that the presence of people in the other room did not
make it impossible for the appellant to have raped the victim, because lust is no
respecter of time and place. It also held that the victim’s lack of tenacity in resisting
the appellant’s sexual aggression did not amount to consent or voluntary submission
to the criminal act.18
In his brief,19 the appellant argued that the lower courts erred in convicting him for the
crime of rape, as the prosecution failed to prove even the slightest penetration of his
penis into the victim’s vagina. He added that the victim’s testimony was incredible and
contrary to human experience.
THE COURT’S RULING
We find that the prosecution failed to prove the appellant’s guilt beyond reasonable
doubt of the crime of consummated rape. We convict him instead of attempted rape,
as the evidence on record shows the presence of all the elements of this crime.
Carnal Knowledge Not Proven With
Moral Certainty
By definition, rape is committed by having carnal knowledge of a woman with the use
of force, threat or intimidation, or when she is deprived of reason or otherwise
unconscious, or when she is under 12 years of age or is demented. 20 "Carnal
knowledge is defined as the act of a man having sexual intercourse or sexual bodily
connections with a woman."21 Carnal knowledge of the victim by the accused must be
proven beyond reasonable doubt, considering that it is the central element in the
crime of rape.22
In her testimony of February 9, 2004, AAA recounted the alleged rape, as follows:
46 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
FISCAL TRONCO: A:    I was afraid of what will happen next, ma’am.

Q:    You said that the three of you then was (sic) sleeping on the floor, what is it that Q:    Aside from that incident that he was kissing your neck, was there any other
happened on that particular day and time that is unusual? previous incident that happened?

A:    It was like somebody was embracing me or hugging me, ma’am. A:    Yes, ma’am.

Q:    When you felt that some (sic) is embracing and hugging you, what did you do? xxxx

A:    I didn’t mind it because I thought that the person beside me just moved and Q:    What incident was that?
when he made the movement, it’s like that I was embraced, ma’am.
A:    At that time, my brother-in-law covered me and my nephew with a blanket and he
Q:    Whom are you referring to? tried to get my clothes off, ma’am.

A:    My brother-in-law, ma’am. Q:    When did this happen, AAA?

Q:    And after that, what else happened, if any, AAA? A:    Also on said date, ma’am.

A:    Before that happened, my nephew cried and so I picked him up and put him on Q:    You said that he covered you and your nephew with a blanket and then taking
my chest and after a while, I slept again and brought him down again and then (sic) off your clothes?
"dumapa po ako" and I felt that somebody was kissing my nape, ma’am.
A:    Yes, ma’am.
Q:    Were you able to see who was that somebody kissing your nape?
xxxx
A:    When I tried to evade, I looked on my side where the room was not that dark that
I could not see the person and so, I saw that it was my brother-in-law, ma’am. Q:    Was he able to take off your clothes?

xxxx A:    Yes, ma’am.

Q:    When you saw that it was your brother-in-law kissing your nape while you were
on a prone position, what else happened, if any?
A:    He kissed my neck, ma’am.
Q:    What was your position while he was kissing your neck?
Q:    What particular clothing was he able to take off?
A:    My short pants and underwear, ma’am.
Q:    While he was taking off your short pants and your underwear, what did you do, if
any?

A:    I was on my side at that time and I was also crying, ma’am. A:    I tried to fight him off, ma’am.

xxxx xxxx

Q:    Why were you crying at that time while he was kissing your neck? Q:    You said that he was trying to take off your clothes and undergarments, what
was your position at that time?
47 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
A:    I was lying down, ma’am. A:    On my sexual organ, ma’am.

Q:    What about him? xxxx

A:    He was on my lap, ma’am. Q:    You mentioned earlier that he was not able to penetrate your private part, AAA?

xxxx A:    Yes, ma’am.

Q:    You said that you saw him take off his short pants? Q:    So, what happened after that?

A:    Yes, ma’am. A:    I cried and then while I was resisting, I hit my wrist on the wall and my wrist was
"nagasgas," ma’am.
xxxx
xxxx
Q:    Did he also take off his brief?
Q:    And were you able to successfully resist?
A:    Yes, ma’am.
A:    Yes, ma’am, I was able to kicked (sic) his upper thigh, ma’am.23 (italics supplied;
xxxx emphasis ours)

Q:    And after that what happened, AAA?
A:    After removing his undergarments, he suddenly brought his body on top of me
and he held my hands. At that time I was crying and still resisting and then he was
trying to get my legs apart. I was still resisting at that time, and at some point in time I
felt weak and he was able to part my legs, ma’am.
Q:    Could you please tell us how did (sic) he able to part your legs?
A:    He did that with his legs while he was holding my hands, ma’am.
Q:    And when he was able to part your legs, what happened next?
From the foregoing, we find it clear that the appellant’s penis did not penetrate, but
merely ‘touched’ (i.e., "naidikit"), AAA’s private part. In fact, the victim confirmed on
cross-examination that the appellant did not succeed in inserting his penis into
her vagina. Significantly, AAA’s Sinumpaang Salaysay24 also disclosed that the
appellant was holding the victim’s hand when he was trying to insert his penis in her
vagina. This circumstance – coupled with the victim’s declaration that she was
resisting the appellant’s attempt to insert his penis into her vagina – makes penile
penetration highly difficult, if not improbable. Significantly, nothing in the records
supports the CA’s conclusion that the appellant’s penis penetrated, however slightly,
the victim’s female organ.
Did the touching by the appellant’s penis of the victim’s private part amount to carnal
knowledge such that the appellant should be held guilty of consummated rape?

A:    He tried to insert his sexual organ but he was not able to do so, ma’am. In People v. Campuhan,25 the Court laid down the parameters of genital contact in
rape cases, thus:

Q:    How did you know that he was trying to insert his sexual organ?
A:    "Naidikit po niya sa ari ko."
Q:    Which part of your body was he able to touch his sexual organ? (sic)
Thus, touching when applied to rape cases does not simply mean mere epidermal
contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the
external layer of the victim's vagina, or the mons pubis, as in this case. There must be
sufficient and convincing proof that the penis indeed touched the labias or slid into the
female organ, and not merely stroked the external surface thereof, for an accused to
be convicted of consummated rape. As the labias, which are required to be "touched"
by the penis, are by their natural situs or location beneath the mons pubis or the
48 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
vaginal surface, to touch them with the penis is to attain some degree of penetration
beneath the surface, hence, the conclusion that touching the labia majora or the labia
minora of the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs that are
visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen,
the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that
becomes hairy after puberty, and is instantly visible within the surface. The next layer
is the labia majora or the outer lips of the female organ composed of the outer convex
surface and the inner surface. The skin of the outer convex surface is covered with
hair follicles and is pigmented, while the inner surface is a thin skin which does not
have any hair but has many sebaceous glands. Directly beneath the labia majora is
the labia minora. Jurisprudence dictates that the labia majora must be entered for
rape to be consummated, and not merely for the penis to stroke the surface of the
female organ. Thus, a grazing of the surface of the female organ or touching the
mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent
any showing of the slightest penetration of the female organ, i.e., touching of either
labia of the pudendum by the penis, there can be no consummated rape; at most, it
can only be attempted rape, if not acts of lasciviousness.26 (italics supplied)
Simply put, "rape is consummated by the slightest penile penetration of the labia
majora or pudendum of the female organ."27 Without any showing of such penetration,
there can be no consummated rape; at most, it can only be attempted rape [or] acts
of lasciviousness."28
As earlier discussed, the prosecution failed to present sufficient and convincing
evidence to establish the required penile penetration. AAA’s testimony did not
establish that the appellant’s penis touched the labias or slid into her private part.
Aside from AAA’s testimony, no other evidence on record, such as a medico-legal
report, could confirm whether there indeed had been penetration, however slight, of
the victim’s labias. In the absence of testimonial or physical evidence to establish
penile penetration, the appellant cannot be convicted of consummated rape.
Article 6 of the Revised Penal Code, as amended, states that there is an attempt
when the offender commenced the commission of the crime directly by overt acts but
does not perform all the acts of execution by reason of some cause or accident other
than his own spontaneous desistance. In People v. Publico,29 we ruled that when the
"touching" of the vagina by the penis is coupled with the intent to penetrate,
attempted rape is committed; otherwise, the crime committed is merely acts of
lasciviousness.
In the present case, the appellant commenced the commission of rape by the
following overt acts: kissing AAA’s nape and neck; undressing her; removing his
clothes and briefs; lying on top of her; holding her hands and parting her legs; and
trying to insert his penis into her vagina. The appellant, however, failed to perform all
the acts of execution which should produce the crime of rape by reason of a cause
other than his own spontaneous desistance, i.e., the victim's loud cries and
resistance. The totality of the appellant’s acts demonstrated the unmistakable
objective to insert his penis into the victim’s private parts.
A review of jurisprudence reveals that the Court has not hesitated to strike down
convictions for consummated rape when the evidence failed to show that penetration,
however slight, of the victim’s vagina took place. In People v. Bon,30 the Court found
the appellant guilty of attempted rape only, as there was no indication that the
appellant’s penis even touched the labia of the pudendum of the victim. We further
held that the appellant could not be convicted of consummated rape by presuming
carnal knowledge out of pain.
The Court had a similar ruling in People v. Miranda,31 where the accused tried to
insert his penis into the victim’s private parts, but was unsuccessful, so he inserted his
fingers instead. We convicted the accused of attempted rape only due to lack of
evidence to establish that there was even a slight penile penetration. We noted,
however, that the appellant’s act of inserting his fingers would have constituted rape
through sexual assault had the offense occurred after the effectivity of the Anti-Rape
Law of 1997.
In People v. Alibuyog,32 the victim declared that the accused placed his penis on her
vagina; and claimed that it touched her private parts. The Court set aside the
accused’s conviction for rape, and convicted him of attempted rape only, because we
found the victim’s testimony too ambiguous to prove the vital element of penile
penetration. We added that the victim’s testimony was "replete with repeated denial of
penile insertion."33
Similarly, in People v. Quarre,34 the evidence for the prosecution consisted only of the
victim’s testimony that the accused tried, but failed, to insert his penis into her vagina,
and she felt pain in the process. No medico-legal examination report was presented
in evidence. Accordingly, the Court reversed the accused’s conviction for rape, and
found him guilty of attempted rape only.
In People v. Ocomen,35 the Court also set aside the appellant’s conviction for rape
because no proof was adduced of even the slightest penetration of the female organ,
aside from a general statement of the victim that she had been "raped."
People v. Monteron36 is another noteworthy case where the Court set aside the
appellant’s conviction for rape. In this case, the victim testified that the accused
placed his penis on top of her vagina, and that she felt pain. In finding the accused
guilty of attempted rape only, we held that there was no showing that the accused’s
penis entered the victim’s vagina. We added that the pain that the victim felt might
have been caused by the accused’s failed attempts to insert his organ into her
vagina.
49 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
In People v. Mariano,37 the accused tried to insert his penis into the victim’s vagina,
but failed to secure penetration. The Court set aside the accused’s conviction for
three (3) counts of rape and found him guilty of attempted rape only. We explained
the necessity of carefully ascertaining whether the penis of the accused in reality
entered the labial threshold of the female organ to accurately conclude that rape had
been consummated.
In People v. Arce, Jr.,38 the Court found the accused guilty of attempted rape only,
because the victim did not declare that there was the slightest penetration, which was
necessary to consummate rape. On the contrary, she categorically stated that the
accused was not able to insert his penis into her private parts because she was
moving her hips away. We further ruled that the victim’s attempt to demonstrate what
she meant by "idinidikit ang ari" was unavailing to prove that rape had been
consummated.
In People v. Francisco,39 the victim testified that the accused "poked" her vagina. The
Court set aside the accused’s conviction for qualified rape, and convicted him instead
only of attempted rape after failing to discern from the victim's testimony that the
accused attained some degree of penile penetration, which was necessary to
consummate rape.1âwphi1
40 
In People v. Dimapilis, the Court refused to convict the accused for consummated
rape on the basis of the victim's testimony that she felt the accused's penis pressed
against her vagina as he tried to insert it. We explained that in order to constitute
consummated rape, there must be entry into the vagina of the victim, even if only in
the slightest degree.
Finally, in People v. Tolentino,41 the Court reversed the accused’s conviction for rape
and convicted him of attempted rape only, as there was paucity of evidence that the
slightest penetration ever took place. We reasoned out that the victim’s statements
that the accused was "trying to force his sex organ into mine" and "binundol-undol
ang kanyang ari" did not prove that the accused’s penis reached the labia of the
pudendum of the victim’s vagina.
"In rape cases, the prosecution bears the primary duty to present its case with clarity
and persuasion, to the end that conviction becomes the only logical and inevitable
conclusion."42 We emphasize that a conviction cannot be made to rest on possibilities;
strongest suspicion must not be permitted to sway judgment. In the present case, the
prosecution failed to discharge its burden of proving all the elements of consummated
rape.
The Proper Penalty and Indemnities
Under Article 51 of the Revised Penal Code, the imposable penalty for attempted
rape is two degrees lower than the prescribed penalty of reclusion perpetua for
consummated rape. Two degrees lower from reclusion perpetua is prision mayor
whose range is six (6) years and one (1) day to 12 years. Without any attendant
aggravating or mitigating circumstances and applying the Indeterminate Sentence
Law, the maximum of the penalty to be imposed upon the appellant is prision mayor
in its medium period, while the minimum shall be taken from the penalty next lower in
degree, which is prision correccional whose range is six (6) months and one (1) day
to six (6) years, in any of its periods. Accordingly, we sentence the appellant to suffer
the indeterminate penalty of six (6) years of prision correccional, as minimum, to 10
years of prision mayor, as maximum.
In addition, we order the appellant to pay the victim ₱ 30,000.00 as civil indemnity, ₱
25,000.00 as moral damages and ₱ 10,000.00 as exemplary damages, in accordance
with prevailing jurisprudence on attempted rape cases.43
WHEREFORE, premises considered, the June 15, 2009 decision of the Court of
Appeals in CA-G.R. CR HC No. 02759 is MODIFIED, as follows:
The appellant's conviction for the crime of rape is VACATED, and
(1) we find appellant Christopher Pareja y Velasco GUILTY of the crime
of ATTEMPTED RAPE;
(2) we SENTENCE him to suffer the indeterminate penalty of six ( 6) years of
prision correccional, as minimum, to 10 years of prision mayor, as maximum;
and
(3) we ORDER him to PAY the victim the amounts of ₱ 30,000.00 as civil
indemnity; ₱ 25,000.00 as moral damages; and ₱ 10,000.00 as exemplary
damages.
SO ORDERED.
G.R. No. 166441               October 8, 2014
NORBERTO CRUZ y BARTOLOME, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
The intent of the offender to lie with the female defines the distinction between
attempted rape and acts of lasciviousness. The felony of attempted rape requires
50 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
such intent; the felony of acts of lasciviousness does not. Only the direct overt acts of
the offender establish the intent to lie with the female. However, merely climbing on
top of a naked female does not constitute attempted rape without proof of his erectile
penis being in a position to penetrate the female's vagina.
The Case
This appeal examines the decision promulgated on July 26, 2004,1 whereby the Court
of Appeals (CA) affirmed the conviction for attempted rape of the petitioner by the
Regional Trial Court, Branch 34, in Balaoan, La Union (RTC), and imposing on him
the indeterminate penalty of imprisonment of four (4) years and two (2) months of
prision correccional, as minimum, to ten (10) years of prision mayor, as maximum,
and ordering him to pay moral damages of ₱20,000.00 to AAA,2 the victim.
Antecedents
The petitioner was charged in the RTC with attempted rape and acts of
lasciviousness involving different victims. At arraignment, he pleaded not guiltyto the
respective informations, to wit: Criminal Case No. 2388
Attempted Rape
That on or about the 21st day of December 1993, at about 2:00 o'clock in the
morning, along the Bangar-Luna Road, Barangay Central West No. 2, Municipality of
Bangar,Province of La Union, Philippines and within the jurisdiction of this Honorable
Court, said accused, did then and there willfully, unlawfully and feloniously and by
means of force and intimidation commenced the commission ofrape directly byovert
acts, to wit: While private complainant AAA, an unmarried woman, fifteen (15)
yearsold, was sleeping inside the tentalong Bangar-Luna Road, the said accused
remove her panty and underwear and lay on top of said AAA embracing and touching
her vagina and breast with intent of having carnal knowledge of her by means of
force, and if the accused did not accomplish his purpose that is to have carnal
knowledge of the said AAA it was not because of his voluntary desistance but
because the said offended party succeeded in resisting the criminal attempt of said
accused to the damage and prejudice of said offended party.
CONTRARY TO LAW.3
Criminal Case No. 2389
Acts of Lasciviousness
That on or about the 21st day of December 1993, at about 3:00 o’clock in the
morning, along the Bangar-Luna Road, Barangay Central West No. 2, Municipality of
Bangar, Province of La Union, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused with lewd design, did then and there willfully,
unlawfully and feloniously touch the vagina of [BBB]4 against the latter’s will and with
no other purpose but to satisfy his lascivious desire to the damage and prejudice of
said offended party.
CONTRARY TO LAW.5
Version of the Prosecution
The CA summarized the version of the Prosecution as follows:6
x x x [Petitioner] Norberto Bartolome and [his wife] Belinda Cruz were engaged in the
selling of plastic wares and glass wares in different municipalities around the country.
On December 20, 1993, Norberto and Belinda employed AAA and BBB to help them
in selling their wares in Bangar, La Union which was then celebrating its fiesta. From
Libsong East, Lingayen, Pangasinan to Bangar, La Union, AAA and BBB boarded a
passenger jeepney owned by Norberto. The young girls were accompanied by
Norberto, Belinda, Ruben Rodriguez (driver) and a sales boy by the name of "Jess".
Upon reaching Bangar, La Union, at around 8:00 in the evening of December 20,
1993, they parked in front of Maroon enterprises. They brought out all the goods and
wares for display. Two tents were fixed in order that they will have a place to sleep.
Belinda and the driver proceeded to Manila in order to get more goods to be sold.
On December 21, 1993, at around 1:00 o’clock in the morning, AAA and BBB went to
sleep. Less thanan hour later, AAA was awakened when she felt that somebody was
on top of her. Norberto was mashing her breast and touching her private part. AAA
realized that she was divested of her clothing and that she was totally naked.
Norberto ordered her not to scream or she’ll be killed. AAA tried to push Norberto
away and pleaded to have pity on her but her pleas fell on deaf ears. She fought back
and kicked Norberto twice.
Norberto was not able to pursue his lustful desires. Norberto offered her money and
told her not totell the incident to her mother otherwise, she will be killed. AAA went out
of the tent to seek help from Jess (the house boy) but she failed to wake him up.
Thirty minutes later, when AAA returned to their tent, she saw Norberto touching the
private parts of BBB. AAA saw her companion awake but her hands wereshaking.
When she finally entered the tent, Norberto left and went outside.
Later that day, AAA and BBB narrated to Jess the incident that took place that early
morning. Later still, while they were on their way to fetch water, AAA and BBB asked
the people around where they can find the municipal building. An old woman pointed
to them the place.
51 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
In the evening of December 21, 1993, AAA and BBB went straight to the municipal
hall where they met a policeman by the name of "Sabas".
They told Sabas the sexual advances made to them by Norberto. Norberto was
summoned to the police station where he personally confronted his accusers. When
Norberto’s wife, Belinda, arrived at the police station, an argument ensued between
them.
On December 22, 1993, at around 2:20 o’clock in the morning, the police investigator
ordered the complainants to return at6:00 o’clock in the morning. Norberto and
Belinda were still able to bring AAA and BBB home with them and worked for them
until December 30, 1994, after which they were sent back to Lingayen, Pangasinan.
On January 10, 1994, AAA and BBB went back to La Union and executed their
respective sworn statements against Norberto.
Version of the Defense
The petitioner denied the criminal acts imputed to him. His version was presented in
the assailed decision of the CA,7 as follows:
In a bid to exculpate himself, accused-appellant presents a totally different version of
the story. The accused maintains that it was not possible for him to commit the crimes
hurled against him. On the date of the alleged incident, there were many people
around who were preparing for the "simbang gabi". Considering the location of the
tents, which were near the road and the municipal hall, he could not possibly do the
dastardly acts out in the open, not to mention the fact that once AAA and BBB would
scream, the policemen in the municipal hall could hear them. He believes that the
reason why the complainants filed these cases against him was solely for the purpose
of extorting money from him.
Judgment of the RTC
After the joint trial of the two criminal cases, the RTC rendered its judgment on April 6,
2000 finding the petitioner guilty beyond reasonable doubt of attempted rape in
Criminal Case No. 2388 and acts of lasciviousness in Criminal Case No. 2389,8 to wit:
WHEREFORE, in the light of the foregoing, the Court hereby renders judgment
declaring the accused NORBERTO CRUZ Y BARTOLOME guilty beyond reasonable
doubt of the crimes of ATTEMPTED RAPE and ACTS OF LASCIVIOUSNESS as
defined and penalized in Article 335 in relation with (sic) Article 6, par. 3 and Article
336 of the Revised Penal Code respectively. With respect to the crime of
ATTEMPTED RAPE, the Court hereby sentences the accused to suffer an
indeterminate penalty of imprisonment from FOUR (4) YEARS and TWO (2)
MONTHS PRISION CORRECCIONAL as Minimum to TEN (10) YEARS PRISION
MAYOR as Maximum and the accessory penalties provided for by law and to pay the
victim AAA the amount of ₱20,000.00 as moral damages.
With regard to the crime ofACTS OF LASCIVIOUSNESS, the Court hereby sentences
the accused to suffer an indeterminate penalty of imprisonment from FOUR (4)
MONTHS ARRESTO MAYOR as Minimum to FOUR (4) YEARS and TWO (2)
MONTHS PRISION CORRECCIONAL as Maximum and the accessory penalties
provided for by law, and to pay the victim BBBthe amount of ₱10,000.00 as moral
damages.
The preventive imprisonment suffered by the accused by reason of the two cases is
counted in his favor.
SO ORDERED.9
Decision of the CA
On appeal, the petitioner contended that the RTC gravely erred in convicting him of
attempted rape despite the dubious credibility of AAA, and of acts of lasciviousness
despite the fact that BBB did not testify.
On July 26, 2004, the CA promulgated its decision affirming the conviction of the
petitioner for attempted rape in Criminal Case No. 2388, but acquitting him of the acts
of lasciviousness charged in Criminal Case No. 2389 due to the insufficiency of the
evidence,10 holding thusly:
In sum, the arguments of the accused-appellant are too puerile and inconsequential
as to dent, even slightly, the overall integrity and probative value of the prosecution's
evidence insofar as AAA is concerned.
Under Article 51 of the Revised Penal Code, the penalty for an attempted felony is the
"penalty lower by two (2) degrees" prescribed by law for the consummated felony. In
this case, the penalty for rape if it had been consummated would have been reclusion
perpetuapursuant to Article 335 of the Revised Penalty Code, as amended by
Republic Act No. 7659. The penalty two degrees lower than reclusion perpetuais
prision mayor.
Applying the Indeterminate Sentence Law, the maximum term of the penalty shall be
the medium period of prision mayorin the absence of any mitigating or aggravating
circumstance and the minimum shall be within the range of the penalty nextlower to
that prescribed for the offense which in this case is prision correccionalin any of its
periods.
52 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
We also find that the trial court correctly assessed the amount of ₱20,000.00 by way
of moral damages against the accused-appellant. In a rape case, moral damages
may be awarded without the need of proof or pleading since it is assumed that the
private complainant suffered moral injuries, more so, when the victim is aged 13 to
19.
Insofar as the crime of acts of lasciviousness committed against BBB, the accused
argues that there is not enough evidence to support such accusation. BBB did not
testify and neither her sworn statement was formally offered in evidence to support
the charge for acts of lasciviousness.
In this case, the evidence adducedby the prosecution is insufficient to substantiate
the charge of acts of lasciviousness against the accusedappellant. The basis of the
complaint for acts of lasciviousness is the sworn statement of BBB to the effectthat
the accused-appellant likewise molested her by mashing her breast and touching her
private part. However, she was not presented to testify. While AAA claims that she
personally saw the accused touching the private parts of BBB, there was no testimony
to the effect that suchlascivious acts were without the consent or against the will of
BBB.11
Issues
In this appeal, the petitioner posits that the CA’s decision was not in accord with law
or with jurisprudence, particularly:
I. In giving credence to the incredulous and unbelievable testimony of the
alleged victim; and
II. In convicting the accused notwithstanding the failure of the prosecution to
prove the guilt of the petitioner beyond reasonable doubt.
Anent the first issue, the petitioner assails the behavior and credibility of AAA. He
argues that AAA still continued working for him and his wife until December 30, 1994
despite the alleged attempted rape in the early morning of December 21, 1994,
thereby belying his commission of the crime against her; that he could not have
undressed her without rousing her if she had gone to sleep only an hour before,
because her bra was locked at her back; that her testimony about his having been on
top of her for nearly an hour while they struggled was also inconceivable unless she
either consented to his act and yielded to his lust, or the incident did not happen at all,
being the product only of her fertileimagination; that the record does not indicate if he
himself was also naked, or that his penis was poised to penetrate her; and that she
and her mother demanded from him ₱80,000.00 as settlement, under threat that she
would file a case against him.12
On the second issue, the petitioner assails the glaring inconsistencies in the
testimony of AAA that cast doubt on her veracity.
Ruling of the Court
The appeal is partly meritorious.
In an appeal under Rule 45 of the Rules of Court,13 the Court reviews only questions
of law. No review of the findings of fact by the CA is involved. As a consequence of
thisrule, the Court accords the highest respect for the factual findings of the trial court,
its assessment of the credibility of witnesses and the probative weight of their
testimonies and the conclusions drawn from its factual findings, particularly when they
are affirmed by the CA. Judicial experience has shown, indeed, that the trial courts
are in the best position to decideissues of credibility of witnesses, having themselves
heard and seen the witnesses and observed firsthand their demeanor and
deportment and the manner of testifying under exacting examination. As such, the
contentionsof the petitioner on the credibility of AAA as a witness for the State cannot
beentertained. He thereby raises questions of fact that are outside the scope of this
appeal. Moreover, he thereby proposes to have the Court, which is not a trier of facts,
review the entire evidence adduced by the Prosecution and the Defense.
Conformably with this limitation, our review focuses only on determining the question
of law of whether or not the petitioner’s climbing on top of the undressed AAA such
thatthey faced each other, with him mashing her breasts and touching her genitalia
with his hands, constituted attempted rape, the crime for which the RTC and the CA
convicted and punished him. Based on the information, supra, he committed such
acts "with intent of having carnal knowledge ofher by means of force, and if the
accused did not accomplish his purpose that is to have carnal knowledge of the said
AAA it was not because of his voluntary desistance but because the said offended
party succeeded in resisting the criminal attempt of said accused to the damage and
prejudice of said offended party."
There is an attempt, according to Article 6 of the Revised Penal Code, when the
offender commences the commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the felony by reason of some
cause or accident other than this own spontaneous desistance. In People v.
Lamahang,14 the Court, speaking through the eminent Justice Claro M.Recto,
eruditely expounded on what overt acts would constitute anattempted felony, to wit:
It is our opinion that the attempt to commit an offense which the Penal Code punishes
is that which has a logical relation to a particular, concrete offense; that, which is the
beginning of the execution of the offense by overt acts of the perpetrator, leading
directly to its realization and consummation. The attempt to commit an indeterminate
offense, inasmuch as its nature in relation to its objective is ambiguous, is not a
juridical fact from the standpoint of the Penal Code. xxxx But it is not sufficient, for the
purpose of imposing penal sanction, that an act objectively performed constitute a
53 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
mere beginning of execution; it is necessary to establish its unavoidable connection,
like the logical and natural relation of the cause and its effect, with the deed which,
upon its consummation, will develop into one of the offenses defined and punished by
the Code; it is necessary to prove that said beginning of execution, if carried to its
complete termination following its natural course, without being frustrated by external
obstacles nor by the voluntary desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense. x x x x.
"It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the
material damage iswanting, the nature of the action intended (accion fin) cannot
exactly be ascertained, but the same must be inferred from the nature of the acts of
execution (accion medio). Hence, the necessity that these acts be such that by their
very nature, by the facts to which they are related, by the circumstances of the
persons performing the same, and by the things connected therewith, they must show
without any doubt, that they are aimed at the consummation of a crime. Acts
susceptible of double interpretation, that is, in favor as well as against the culprit, and
which show an innocent aswell as a punishable act, must not and cannot furnish
grounds by themselves for attempted or frustrated crimes. The relation existing
between the facts submitted for appreciation and the offense of which said facts are
supposed to produce must be direct; the intention must be ascertainedfrom the facts
and therefore it is necessary, in order to avoid regrettable instance of injustice, that
the mind be able to directly infer from them the intention of the perpetrator to cause a
particular injury. This must have been the intention of the legislator in requiring that in
order for an attempt to exist, the offender must commence the commission of the
felony directly by overt acts, that is to say, that the acts performed must be such that,
withoutthe intent to commit an offense, they would be meaningless."15
To ascertain whether the acts performed by the petitioner constituted attempted rape,
we have to determine the law on rape in effect on December 21, 1993, when the
petitioner committed the crime he was convicted of. That law was Article 335 of the
Revised Penal Code, which pertinently provided as follows:
Article335. 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 ofreason or otherwise unconscious; and
3. When the woman is under twelve years of age, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be
present.
xxxx
The basic element of rape then and now is carnal knowledge of a female. Carnal
knowledge isdefined simply as "theact of a man having sexual bodily connections with
a woman,"16 which explains why the slightest penetration of the female genitalia
consummates the rape. In other words, rape is consummated once the peniscapable
of consummating the sexual act touches the external genitalia of the female.17 In
People v. Campuhan,18 the Court has defined the extent of "touching" by the penis in
rape in the following terms:
[T]ouching when applied to rape cases does not simply mean mere epidermal
contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the
external layer of the victim’s vagina, or the mons pubis, as in this case. There must be
sufficient and convincing proof that the penis indeedtouched the labias or slid into the
female organ, and not merely stroked the external surface thereof, for an accused to
be convicted of consummated rape. As the labias, which are required to be "touched"
bythe penis, are by their natural situsor location beneath the mons pubisor the vaginal
surface, to touch them with the penis is to attain some degree of penetration beneath
the surface, hence, the conclusion that touching the labia majora or the labia minora
of the pudendum constitutes consummated rape.
The pudendumor vulvais the collective term for the female genital organs that are
visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen,
the clitoris, the vaginal orifice, etc. The mons pubisis the rounded eminence that
becomes hairy after puberty, and is instantly visible within the surface. The next layer
is the labia majoraor the outer lips of the female organ composed of the outer convex
surface and the inner surface. The skin of the outer convex surface is covered with
hair follicles and is pigmented, while the inner surface is a thin skin which does not
have any hair but has many sebaceous glands. Directly beneath the labia majorais
the labia minora. Jurisprudence dictates that the labia majoramust be entered for rape
to be consummated, and not merely for the penis to stroke the surface of the female
organ. xxxx Thus, a grazing of the surface of the female organ or touching the mons
pubisof the pudendum is not sufficient to constitute consummated rape. Absent any
showing of the slightest penetration of the female organ, i.e., touching of either labia
of the pudendumby the penis, there can be no consummated rape; at most, it can
only be attempted rape, if not acts of lasciviousness. [Bold emphasis supplied]
It is noteworthy that in People v. Orita,19 the Court clarified that the ruling in People v.
Eriñia20 whereby the offender was declared guilty of frustrated rapebecause of lack of
conclusive evidence of penetration of the genital organ of the offended party, was a
stray decisionfor not having been reiterated in subsequent cases. As the evolving
case law on rape stands, therefore, rape in its frustrated stage is a physical
impossibility, considering that the requisites of a frustrated felony under Article 6 of
the Revised Penal Codeare that: (1) the offender has performed all the acts of
execution which would produce the felony; and (2) that the felony is not produced due
to causes independent of the perpetrator’s will. Obviously, the offender attains his
purpose from the moment he has carnal knowledge of his victim, because from that
moment all the essential elements of the offense have been accomplished, leaving
nothing more to be done by him.21
54 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Nonetheless, rape admits of an attempted stage. In this connection, the character of
the overt actsfor purposes of the attempted stage has been explained in People v.
Lizada:22
An overt or external act is defined as some physical activity or deed, indicating the
intention to commit a particular crime, more than a mere planning or preparation,
which if carried out to its complete termination following its natural course, without
being frustrated by external obstacles nor by the spontaneous desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense. The raison
d’etrefor the law requiring a direct overtact is that, in a majority of cases, the conduct
of the accused consisting merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his declared intent. It is that
quality of being equivocal that must be lacking before the act becomes one which
may be said to be a commencement of the commission of the crime, or an overt act
or before any fragment of the crime itself has been committed, and this is so for the
reason that so long as the equivocal quality remains, no one can say with certainty
what the intent of the accused is.It is necessary that the overt act should have been
the ultimate step towards the consummation of the design. It is sufficient if it was the
"first or some subsequent step in a direct movement towards the commission of the
offense after the preparations are made." The act done need not constitute the last
proximate one for completion. It is necessary, however, that the attempt must have a
causal relation to the intended crime. In the words of Viada, the overt acts must have
an immediate and necessary relation to the offense. (Bold emphasis supplied)
In attempted rape, therefore, the concrete felony is rape, but the offender does not
perform all the acts of execution of having carnal knowledge. If the slightest
penetration of the female genitalia consummates rape, and rape in its attempted
stage requires the commencement of the commission of the felony directly by overt
actswithout the offender performing all the acts of execution that should produce the
felony, the only means by which the overt acts performed by the accused can be
shown to have a causal relation to rape as the intended crime is to make a clear
showing of his intent to lie with the female. Accepting that intent, being a mental act,
is beyond the sphere of criminal law, 23 that showing must be through his overt acts
directly connected with rape. He cannot be held liable for attempted rape withoutsuch
overt acts demonstrating the intent to lie with the female. In short, the State, to
establish attempted rape, must show that his overt acts, should his criminalintent be
carried to its complete termination without being thwarted by extraneous matters,
would ripen into rape,24 for, as succinctly put in People v. Dominguez, Jr.:25 "The
gauge in determining whether the crime of attempted rape had been committed is the
commencement of the act of sexual intercourse, i.e., penetration of the penis into the
vagina, before the interruption."
The petitioner climbed on top of the naked victim, and was already touching her
genitalia with his hands and mashing her breasts when she freed herself from his
clutches and effectively ended his designs on her. Yet, inferring from such
circumstances thatrape, and no other,was his intended felony would be highly
unwarranted. This was so, despite his lust for and lewd designs towards her being
fully manifest. Such circumstances remained equivocal, or "susceptible of double
interpretation," as Justice Recto put in People v. Lamahang, supra, such that it was
not permissible to directly infer from them the intention to cause rape as the particular
injury. Verily, his felony would not exclusively be rapehad he been allowed by her to
continue, and to have sexual congress with her, for some other felony like simple
seduction (if he should employ deceit to have her yield to him)26 could also be ultimate
felony.
We clarify that the direct overt acts of the petitioner that would have produced
attempted rape did not include equivocal preparatory acts. The former would have
related to his acts directly connected to rape as the intended crime, but the latter,
whether external or internal, had no connection with rape as the intended crime.
Perforce, his perpetration of the preparatory acts would not render him guilty of an
attempt to commit such felony.27 His preparatory acts could include his putting up of
the separate tents, with one being for the use of AAA and BBB, and the other for
himself and his assistant, and his allowing his wife to leave for Manila earlier that
evening to buy more wares. Such acts, being equivocal, had no direct connection to
rape. As a rule, preparatory acts are not punishable under the Revised Penal Codefor
as long as they remained equivocal or of uncertain significance, because by their
equivocality no one could determine with certainty what the perpetrator’s intent really
was.28
If the acts of the petitioner did not constitute attempted rape, did they constitute acts
of lasciviousness?
It is obvious that the fundamental difference between attempted rape and acts of
lasciviousness is the offender’sintent to lie with the female. In rape, intent to lie with
the female is indispensable, but this element is not required in acts of
lasciviousness.29 Attempted rape is committed, therefore, when the "touching" of the
vagina by the penis is coupled with the intent to penetrate. The intent to penetrate is
manifest only through the showing of the penis capable of consummating the sexual
act touching the external genitalia of the female.30 Without such showing, only the
felony of acts of lasciviousness is committed.31
Based on Article 336 of the Revised Penal Code, the felony of acts of lasciviousness
is consummated whenthe following essential elements concur, namely: (a) the
offender commits any act of lasciviousness or lewdness upon another person of
either sex; and (b) the act of lasciviousness or lewdness is committed either (i) by
using force or intimidation; or (ii) when the offended party is deprived ofreason or is
otherwise unconscious; or (iii) when the offended party is under 12 years of age.32 In
that regard, lewdis defined as obscene, lustful, indecent, lecherous; it signifies that
form of immorality that has relation to moral impurity; or that which is carried on a
wanton manner.33
The information charged that the petitioner "remove[d] her panty and underwear and
la[id] on top of said AAA embracing and touching her vagina and breast." With such
55 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
allegation of the information being competently and satisfactorily proven beyond a
reasonable doubt, he was guilty only of acts of lasciviousness, not attempted rape.
His embracing her and touching her vagina and breasts did not directly manifest his
intent to lie with her. The lack of evidence showing his erectile penis being in the
position to penetrate her when he was on top of her deterred any inference about his
intent to lie with her. At most, his acts reflected lewdness and lust for her.
The intent to commit rape should not easily be inferred against the petitioner, even
from his own declaration of it, if any, unless he committed overt acts directly leading
to rape. A good illustration of this can be seen in People v. Bugarin, 34 where the
accused was charged with attempted rape through an information alleging that he, by
means of force and intimidation, "did then and there willfully, unlawfully and
feloniously commence the commission of the crime of Rape directly by overt acts, by
then and there kissing the nipples and the vagina of the undersigned [complainant], a
minor, and about to lay on top of her, all against her will, however, [he] did not
perform all the acts of execution which would have produced the crime of Rape by
reason of some causes other than his own spontaneous desistance, that is,
undersigned complainant push[ed] him away." The accused was held liable only for
acts of lasciviousness because the intent to commit rape "is not apparent from the
actdescribed," and the intent to have sexual intercourse with her was not inferable
from the act of licking her genitalia. The Court also pointed out that the "act imputed
to him cannot be considered a preparatory act to sexual intercourse."35
Pursuant to Article 336 of the Revised Penal Code, the petitioner, being guilty of acts
of lasciviousness, is punished with prision correccional. In the absence of modifying
circumstances, prision correccional is imposed in its medium period, which ranges
from two (2) years, four (4) months and one day to four (4) years and two (2) months.
Applying the Indeterminate Sentence Law, the minimum of the penalty should come
from arresto mayor, the penalty next lower than prision correccionalwhich ranges from
one (1) month to six (6) months. Accordingly, the Court fixes the indeterminate
sentence of three (3) months of arresto mayor, as the minimum, to two (2) years, four
(4) months and one day of prision correccional, as the maximum.
In acts of lasciviousness, the victim suffers moral injuries because the offender
violates her chastity by his lewdness.1âwphi1 "Moral damages include physical
suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar injury. Though incapable of
pecuniary computation, moral damages may be recovered if they are the proximate
result of the defendant's wrongful act for omission."36 Indeed, Article 2219, (3), of the
Civil Code expressly recognizes the right of the victim in acts of lasciviousness to
recover moral damages.37 Towards that end, the Court, upon its appreciation of the
record, decrees that ₱30,000.00 is a reasonable award of moral damages. 38 In
addition, AAA was entitled to recover civil indemnity of ₱20,000.00.39
Under Article 2211 of the Civil Code, the courts are vested with the discretion to
impose interest as a part of the damages in crimes and quasidelicts. In that regard,
the moral damages of ₱20,000.00 shall earn interest of 6% per annum reckoned from
the finality of this decision until full payment.40
WHEREFORE, the Court FINDS and PRONOUNCES petitioner NORBERTO CRUZ y
BARTOLOME guilty of ACTS OF LASCIVIOUSNESS, and, ACCORDINGLY,
PENALIZES him with the indeterminate sentence of three (3) months of arresto
mayor, as the minimum, to two (2) years, four (4) months and one day of prision
correccional, as the maximum; ORDERS him to pay moral damages of ₱30,000.00
and civil indemnity of ₱20,000.00 to the complainant, with interest of 6% per annum
on such awards reckoned from the finality of this decision until full payment; and
DIRECTS him to pay the costs of suit.
SO ORDERED.
G.R. No. 86163               April 26, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES,
and SIMPLICIO CANASARES, BIENVENIDO SALVILLA, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Resurreccion S. Salvilla for defendant-appellant.
MELENCIO-HERRERA, J.:
Accused Bienvenido Salvilla alone appeals from the Decision of the Regional Trial
Court, Branch 28, Iloilo City, * dated 29 August 1988, in Criminal Case No. 20092,
finding him and his co-accused Reynaldo, Ronaldo and Simplicio, all surnamed
Canasares, guilty beyond reasonable doubt of the crime of "Robbery with Serious
Physical Injuries and Serious Illegal Detention" and sentencing them to suffer the
penalty of reclusion perpetua.
The Information filed against them reads:
The undersigned City Fiscal accuses BIENVENIDO SALVILLA, REYNALDO
CANASARES, RONALDO CANASARES, and SIMPLICIO CANASARES,
whose maternal surnames, dated and places of birth cannot be ascertained
of the crime of ROBBERY WITH SERIOUS PHYSICAL INJURIES AND
SERIOUS ILLEGAL DETENTION (Art, 294, paragraph 3, in conjunction with
Article 267 of the Revised Penal Code), committed as follows:
That on or about the 12th day of April, 1986, in the City of Iloilo, Philippines
and within the jurisdiction of this Court, said accused, conspiring and
56 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
 confederating among themselves, working together and helping one
another, armed with guns and handgrenade and with the use of violence or
intimidation employed on the person of Severino Choco, Mary Choco, Mimie
Choco and Rodita Hablero did then and there wilfully, unlawfully and
criminally take and carry away, with intent of gain, cash in the amount of
P20,000.00, two (2) Men's wrist watches, one (1) Lady's Seiko quartz wrist
watch and one (1) Lady's Citizen wrist watch and assorted jewelries, all
valued at P50,000.00; that on the occasion and by reason of said robbery,
Mary Choco suffered serious physical injuries under paragraph 2 of Article
263, Bienvenido Salvilla likewise suffered serious physical injuries and
Reynaldo Canasares also suffered physical injuries; that the said accused
also illegally detained, at the compound of the New Iloilo Lumber Company,
Iznart Street, Iloilo City, Severino Choco, owner/proprietor of said Lumber
Company, Mary Choco, Mimie Choco, who is a minor, being 15 years of
age, and Rodita Hablero, who is a salesgirl at said Company; that likewise
on the occasion of the robbery, the accused also asked and were given a
ransom money of P50,000.00; that the said crime was attended by
aggravating circumstances of band, and illegal possession of firearms and
explosives; that the amount of P20,000.00, the ransom money of
P50,000.00, two (2) Men's wrist watches, two (2) lady's wrist watches, one
(1) .38 caliber revolver and one (1) live grenade were recovered from the
accused; to the damage and prejudice of the New Iloilo Lumber Company in
the amount of P120,000.00.
The evidence for the prosecution may be re-stated as follows:
On 12 April 1986, a robbery was staged by the four accused at the New Iloilo Lumber
Yard at about noon time. The plan was hatched about two days before. The accused
were armed with homemade guns and a hand grenade. When they entered the
establishment, they met Rodita Hablero an employee thereat who was on her way out
for her meal break and announced to her that it was a hold-up. She was made to go
back to the office and there Appellant Salvilla pointed his gun at the owner, Severino
Choco, and his two daughters, Mary and Mimie the latter being a minor 15 years of
age, and told the former that all they needed was money. Hearing this, Severino told
his daughter, Mary, to get a paper bag wherein he placed P20,000.00 cash
(P5,000.00, according to the defense) and handed it to Appellant. Thereafter,
Severino pleaded with the four accused to leave the premises as they already had the
money but they paid no heed. Instead, accused Simplicio Canasares took the wallet
and wristwatch of Severino after which the latter, his two daughters, and Rodita, were
herded to the office and kept there as hostages.
At about 2:00 o'clock of the same day, the hostages were allowed to eat. The four
accused also took turns eating while the others stood guard. Then, Appellant told
Severino to produce P100,000.00 so he and the other hostages could be released.
Severino answered that he could not do so because it was a Saturday and the banks
were closed.
In the meantime, police and military authorities had surrounded the premises of the
lumber yard. Major Melquiades B. Sequio Station Commander of the INP of Iloilo City,
negotiated with the accused using a loud speaker and appealed to them to surrender
with the assurance that no harm would befall them as he would accompany them
personally to the police station. The accused refused to surrender or to release the
hostages.
Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the negotiations.
In her dialogue with the accused, which lasted for about four hours, Appellant
demanded P100,000.00, a coaster, and some raincoats. She offered them
P50,000.00 instead, explaining the difficulty of raising more as it was a Saturday.
Later, the accused agreed to receive the same and to release Rodita to be
accompanied by Mary Choco in going out of the office. When they were out of the
door, one of the accused whose face was covered by a handkerchief, gave a key to
Mayor Caram. With this, Mayor Caram unlocked the padlocked door and handed to
Rodita the P50,000.00, which the latter, in turn, gave to one of the accused. Rodita
was later set free but Mary was herded back to the office.
Mayor Caram, Major Sequio and even volunteer radio newscasters continued to
appeal to the accused to surrender peacefully but they refused.1âwphi1 UItimatums
were given but the accused did not budge. Finally, the police and military authorities
decided to launch an offensive and assault the place. This resulted in injuries to the
girls, Mimie and Mary Choco as well as to the accused Ronaldo and Reynaldo
Canasares. Mary suffered a "macerated right lower extremity just below the knee" so
that her right leg had to be amputated. The medical certificate described her condition
as "in a state of hemorrhagic shock when she was brought in to the hospital and had
to undergo several major operations during the course of her confinement from April
13, 1986 to May 30, 1986."
For his part, Appellant Salvilla confirmed that at about noon time of 12 April 1986 he
and his co-accused entered the lumber yard and demanded money from the owner
Severino Choco He demanded P100,000.00 but was given only P5,000.00, which he
placed on the counter of the office of the lumber yard. He admitted that he and his co-
accused kept Severino, his daughters, and Rodita inside the office. He maintained,
however, that he stopped his co-accused from getting the wallet and wristwatch of
Severino and, like the P5,000.00 were all left on the counter, and were never touched
by them. He claimed further that they had never fired on the military because they
intended to surrender. Appellant's version also was that during the gunfire, Severino's
daughter stood up and went outside; he wanted to stop her but he himself was hit by
a bullet and could not prevent her. Appellant also admitted the appeals directed to
them to surrender but that they gave themselves up only much later.
After trial, the Court a quo meted out a judgment of conviction and sentenced each of
the accused "to suffer the penalty of reclusion perpetua, with the accessory penalties
provided by law and to pay the costs."
57 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
Appellant Salvilla's present appeal is predicated on the following Assignments of
Error:
1. The lower court erred in holding that the crime charged was consummated
and in not holding that the same was merely attempted.
2. The lower court erred in not appreciating the mitigating circumstance of
voluntary surrender."
Upon the facts and the evidence, we affirm.
The defense contends that "The complete crime of larceny (theft/robbery) as
distinguished from an attempt requires asportation or carrying away, in addition to the
taking, In other words, the crime of robbery/theft has three consecutive stages: 1) the
giving 2) the taking and 3) the carrying away or asportation And without asportation
the crime committed is only attempted" (Memorandum for Appellant Salvilla, Records,
p. 317).
There is no question that in robbery, it is required that there be a taking of personal
property belonging to another. This is known as the element of asportation the
essence of which is the taking of a thing out of the possession of the owner without
his privity and consent and without the  animus revertendi  (Aquino, Revised Penal
Code, p. 97, citing 5 C.J. 607). In fact, if there is no actual taking, there can be no
robbery. Unlawful taking of personal property of another is an essential part of the
crime of robbery.
Appellant insists that while the "giving" has been proven, the "taking" has not. And
this is because neither he nor his three co-accused touched the P5,000.00 given by
Severino nor the latter's wallet or watch during the entire incident; proof of which is
that none of those items were recovered from their persons.
Those factual allegations are contradicted by the evidence. Rodita, the lumberyard
employee, testified that upon demand by Appellant, Severino put P20,000.00 inside a
paper bag and subsequently handed it to Appellant. In turn, accused Simplicio
Canasares took the wallet and wristwatch of Severino. In respect of the P50,000.00
from Mayor Caram, Rodita declared that the Mayor handed the amount to her after
she (the Mayor) had opened the padlocked door and that she thereafter gave the
amount to one of the holduppers. The "taking" was, therefore, sufficiently proved
(TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The money demanded, and the wallet
and wristwatch were within the dominion and control of the Appellant and his co-
accused and completed the taking.
The State established a "taking" sufficient to support a conviction of robbery
even though the perpetrators were interrupted by police and so did not pick
up the money offered by the victim, where the defendant and an accomplice,
armed with a knife and a club respectively, had demanded the money from
the female clerk of a convenience store, and the clerk had complied with
their instructions and placed money from the register in a paper bag and
then placed the bag on the counter in front of the two men; these actions
brought the money within the dominion and control of defendant and
completed the taking. (Johnson vs. State, 432 So 2d 758).
"Severance of the goods from the possession of the owner and absolute
control of the property by the taker,  even for an instant, constitutes
asportation (Adams vs. Commonwealth, 154 SW 381; State vs. Murray, 280
SW 2d 809; Mason vs. Commonwealth, 105 SE 2d 149) [Emphasis
supplied].
It is no defense either that Appellant and his co-accused had no opportunity to
dispose of the personalities taken. That fact does not affect the nature of the crime,
From the moment the offender gained possession of the thing, even if the culprit had
no opportunity to dispose of the same, the unlawful taking is complete (Reyes,
Revised Penal Code Annotated, Book II, 1981 ed., p. 594).
The crime is consummated when the robber acquires possession of the
property, even if for a short time, and it is not necessary that the property be
taken into the hands of the robber, or that he should have actually carried
the property away, out of the physical presence of the lawful possessor, or
that he should have made his escape with it" (People vs. Quinn, 176 P 2d
404; Woods vs. State, 220 SW 2d 644; People vs. Beal, 39 P 2d 504;
People vs. Clark, 160 P 2d 553).
Contrary to Appellant's submission, therefore, a conviction for consummated and not
merely attempted Robbery is in order.
It is the contention of Appellant that Rodita could not have seen the taking because
the place was dark since the doors were closed and there were no windows. It will be
recalled, however, that Rodita was one of the hostages herself and could observe the
unfolding of events. Her failure to mention the taking in her sworn statement would
not militate against her credibility, it being settled that an affidavit is almost always
incomplete and inaccurate and does not disclose the complete facts for want of
inquiries or suggestions (People vs. Andaya, G.R. No. L-63862, 31 July 1987, 152
SCRA 570; People vs. Tan, et al., 89 Phil. 337 [1951]).
The fact, too, that Rodita was an employee of Severino would not lessen her
credibility. The defense has not proven that she was actuated by any improper motive
in testifying against the accused.
In the last analysis, the basic consideration centers around the credibility of witnesses
in respect of which the findings of the Trial Court are entitled to great weight as it was
58 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
in a superior position to assess the same in the course of the trial (see People vs.
Ornoza G.R. No. L-56283, 30 June 1987, 151 SCRA 495; People vs. Alcantara, G.R.
No. L-38042, 30 June 1987, 151 SCRA 326).
Anent the second assignment of error, the "surrender" of the Appellant and his co-
accused cannot be considered in their favor to mitigate their liability. To be mitigating,
a surrender must have the following requisites: (a) that the offender had not been
actually arrested; (b) that the offender surrendered himself to a person in authority or
to his agent; and (c) that the surrender was voluntary (People vs. Canamo, G.R. No.
L-62043, 13 August 1985, 138 SCRA 141).
The "surrender" by the Appellant and his co-accused hardly meets these
requirements. They were, indeed, asked to surrender by the police and military
authorities but they refused until only much later when they could no longer do
otherwise by force of circumstances when they knew they were completely
surrounded and there was no chance of escape. The surrender of the accused was
held not to be mitigating as when he gave up only after he was surrounded by the
constabulary and police forces (People vs. Sigayan et al., G.R. Nos. L-18523-26, 30
April 1966, 16 SCRA 839; People vs. Mationg G.R. No. L-33488, 29 March 1982, 113
SCRA 167). Their surrender was not spontaneous as it was motivated more by an
intent to insure their safety. And while it is claimed that they intended to surrender, the
fact is that they did not despite several opportunities to do so. There is no voluntary
surrender to speak of (People vs. Dimdiman 106 Phil. 391 [1959]).
All told, the assigned errors remain unsubstantiated and we find the guilt of the
accused-appellant, Bienvenido Salvilla, established beyond reasonable doubt.
Although unassigned as an error, we deem it necessary to turn now to the nature of
the linked offenses involved and the penalty imposed by the Trial Court.
Appellant and his co-accused were charged in the Information with "Robbery with
Serious Physical Injuries and Serious Illegal Detention ("Art. 295, par. 3, in
conjunction with Art. 267, RPC )and sentenced to reclusion perpetua. We agree with
the Trial Court that a complex crime under Article 48 of the Revised Penal Code has
been committed such that the penalty for the more serious offense of Serious Illegal
Detention (Art. 267, Revised Penal Code), or "reclusion perpetua to death," is to be
imposed instead of the penalty prescribed for Robbery with Serious Physical Injuries
(Art. 294 (3), which is reclusion temporal.
Under Article 48, a complex crime arises "when an offense is a necessary means for
committing the other." The term "necessary means" does not connote indispensable
means for if it did then the offense as a "necessary means" to commit another would
be an indispensable element of the latter and would be an ingredient thereof. The
phrase "necessary means" merely signifies that one crime is committed to facilitate
and insure the commission of the other (Aquino, Revised Penal Code, Vol. I, 1987
ed., p. 624, citing Dissent, Montemayor, J., Amado Hernandez, 99 Phil. 515). In this
case, the crime of Serious Illegal Detention was such a "necessary means" as it was
selected by Appellant and his co-accused to facilitate and carry out more effectively
their evil design to stage a robbery.
The facts of this case differ from those in People vs. Astor, et al. (G.R. Nos. L-71765-
66, 29 April 1987, 149 SCRA 325) where the accused were convicted of Robbery but
acquitted in the case for Serious Illegal Detention and where it was held that "the
detention is absorbed in the crime of robbery." For one, in Astor, there were two (2)
separate Informations filed, one for Robbery and another for Serious Illegal Detention.
In the present case, only one Information was filed charging the complex offense. For
another, in Astor, the robbery had already been consummated and the detention was
merely to forestall the capture of the robbers by the police. Not so in this case, where
the detention was availed of as a means of insuring the consummation of the robbery.
Further, in Astor,  the detention was only incidental to the main crime of robbery so
that it was held therein:
. . . were appellants themselves not trapped by the early arrival of the police
at the scene of the crime, they would have not anymore detained the people
inside since they have already completed their job. Obviously, appellants
were left with no choice but to resort to detention of these people as security,
until arrangements for their safe passage were made. This is not the crime of
illegal detention punishable under the penal laws but an act of restraint in
order to delay the pursuit of the criminals by peace officers (People v. Sol, 9
Phil. 265; People v. Uday 55 Phil. 167, cited in the Revised Penal Code,
Aquino, Vol. 3, 1976 ed., p. 1337). Where the victims in a robbery case were
detained in the course of robbery, the detention is absorbed by the crime of
robbery (P. v. Baysa, 92 Phil. 1008, id.). In the case at bar, the detention
was only incidental to the main crime of robbery, and although in the course
thereof women and children were also held, that threats to kill were made,
the act should not be considered as a separate offense. Appellants should
only be held guilty of robbery.
In contract, the detention in the case at bar was not only incidental to the robbery but
was a necessary means to commit the same.1âwphi1 After the amount of P20,000.00
was handed to Appellant, the latter and his co-accused still refused to leave. The
victims were then taken as hostages and the demand to produce an additional
P100,000.00 was made as a prerequisite for their release. The detention was not
because the accused were trapped by the police nor were the victims held as security
against the latter. The detention was not merely a matter of restraint to enable the
malefactors to escape, but deliberate as a means of extortion for an additional
amount. The police and other authorities arrived only much later after several hours of
detention had already passed. And, despite appeals to appellant and his co-accused
to surrender, they adamantly refused until the amount of P100,000.00 they demanded
could be turned over to them. They even considered P50,000.00, the amount being
handed to them, as inadequate.
59 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL
The foregoing features also distinguish this case from those of U.S. v. Sol, 9 Phil. 265
[1907] where the restraint was for no other purpose than to prevent the victims from
reporting the crime to the authorities; from People v. Gamboa, 92 Phil. 1085 [1953]
where the victims were taken to a place one kilometer away and shot in order to
liquidate the witnesses to the robbery; from People v. Baysa, 92 Phil. 1008 [1953];
People v. Manzanilla, 43 Phil. 167 [1922], all of which cases were cited in  Astor and
where the victims were only incidentally detained so that the detention was deemed
absorbed in robbery.

In other words, unlike in the above cases, the elements of the offense of Serious
Illegal Detention are present in this case. The victims were illegally deprived of their
liberty. Two females (Mary and Minnie) and a minor (Minnie), a specified
circumstance in Article 267 (3), were among those detained. The continuing detention
was also for the purpose of extorting ransom, another listed circumstance in Article
267 (last parag.) not only from the detained persons themselves but even from the
authorities who arrived to rescue them.

It follows then that as the detention in this case was not merely incidental to the
robbery but a necessary means employed to facilitate it, the penalty imposed by the
Trial Court is proper.

WHEREFORE, the judgment appealed from is hereby AFFIRMED. Proportionate

costs.

SO ORDERED.

60 ARTICLE 6 | CRIMINAL LAW REVIEW | JUDGE OSCAR PIMENTEL