FIRST DIVISION heal from one to seven days.

5 The doctor prescribed medicine for

G.R. No. 166326             January 25, 2006
ESMERALDO RIVERA, ISMAEL RIVERA, EDGARDO
RIVERA, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review of the Decision 1 of the Court of
Appeals (CA) in CA-G.R. CR No. 27215 affirming, with
modification, the Decision2 of the Regional Trial Court (RTC) of
Cavite, Branch 90, in Criminal Case No. 6962-99, entitled People
of the Philippines. v. Esmeraldo Rivera, et al.
On April 12, 1999, an Information was filed in the RTC of Imus,
Cavite, charging Esmeraldo, Ismael and Edgardo, all surnamed
Rivera, of attempted murder. The accusatory portion of the
Information reads:
That on or about the 3rd day of May 1998, in the Municipality of
Dasmariñas, Province of Cavite, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another, with
intent to kill, with treachery and evident premeditation, did then
and there, wilfully, unlawfully, and feloniously attack, assault and
hit with a piece of hollow block, one RUBEN RODIL who thereby
sustained a non-mortal injury on his head and on the different
parts of his body, the accused thus commenced the commission of
the felony directly by overt acts, but failed to perform all the acts
of execution which would produce the crime of Murder by reason
of some causes other than their own spontaneous desistance, that
is, the said Ruben Rodil was able to ran (sic) away and the timely
response of the policemen, to his damage and prejudice.
CONTRARY TO LAW.3
Ruben Rodil testified that he used to work as a taxi driver. He
stopped driving in April 1998 after a would-be rapist threatened
his life. He was even given a citation as a Bayaning Pilipino by the
television network ABS-CBN for saving the would-be victim. His
wife eked out a living as a manicurist. They and their three
children resided in Barangay San Isidro Labrador II, Dasmariñas,
Cavite, near the house of Esmeraldo Rivera and his brothers
Ismael and Edgardo.
At noon of May 2, 1998, Ruben went to a nearby store to buy
food. Edgardo mocked him for being jobless and dependent on his
wife for support. Ruben resented the rebuke and hurled invectives
at Edgardo. A heated exchange of words ensued.
At about 7:30 p.m. the next day, a Sunday, Ruben went to the
store to buy food and to look for his wife. His three-year-old
daughter was with him. Momentarily, Esmeraldo and his two
brothers, Ismael and Edgardo, emerged from their house and
ganged up on Ruben. Esmeraldo and Ismael mauled Ruben with
fist blows and he fell to the ground. In that helpless position,
Edgardo hit Ruben three times with a hollow block on the parietal
area. Esmeraldo and Ismael continued mauling Ruben. People
who saw the incident shouted: "Awatin sila! Awatin sila!" Ruben
felt dizzy but managed to stand up. Ismael threw a stone at him,
hitting him at the back. When policemen on board a mobile car
arrived, Esmeraldo, Ismael and Edgardo fled to their house.
Ruben was brought to the hospital. His attending physician, Dr.
Lamberto Cagingin, Jr., signed a medical certificate in which he
declared that Ruben sustained lacerated wounds on the parietal
area, cerebral concussion or contusion, hematoma on the left
upper buttocks, multiple abrasions on the left shoulder and
hematoma periorbital left.4 The doctor declared that the lacerated
wound in the parietal area was slight and superficial and would
Ruben’s back pain, which he had to take for one month.6
Esmeraldo testified that at around 1:00 p.m. on May 3, 1998,
Ruben arrived at his house and banged the gate. Ruben
challenged him and his brothers to come out and fight. When he
went out of the house and talked to Ruben, the latter punched
him. They wrestled with each other. He fell to the ground.
Edgardo arrived and pushed Ruben aside. His wife arrived, and he
was pulled away and brought to their house.
For his part, Ismael testified that he tried to pacify Ruben and his
brother Esmeraldo, but Ruben grabbed him by the hair. He
managed to free himself from Ruben and the latter fled. He went
home afterwards. He did not see his brother Edgardo at the
scene.
Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was
throwing garbage in front of their house. Ruben arrived and he
went inside the house to avoid a confrontation. Ruben banged the
gate and ordered him to get out of their house and even
threatened to shoot him. His brother Esmeraldo went out of their
house and asked Ruben what the problem was. A fist fight
ensued. Edgardo rushed out of the house and pushed Ruben
aside. Ruben fell to the ground. When he stood up, he pulled at
Edgardo’s shirt and hair, and, in the process, Ruben’s head hit the
lamp post.7
On August 30, 2002, the trial court rendered judgment finding all
the accused guilty beyond reasonable doubt of frustrated murder.
The dispositive portion of the decision reads:
WHEREFORE, premises considered, all the accused are found
GUILTY beyond reasonable doubt and are sentenced to an
imprisonment of six (6) years and one (1) day to eight (8) years
of prision mayor as the prosecution has proved beyond
reasonable doubt the culpability of the accused. Likewise, the
accused are to pay, jointly and severally, civil indemnity to the
private complainant in the amount of P30,000.00.
SO ORDERED.8
The trial court gave no credence to the collective testimonies of
the accused and their witnesses. The accused appealed to the CA,
which rendered judgment on June 8, 2004 affirming, with
modification, the appealed decision. The dispositive portion of the
CA decision reads:
WHEREFORE, the Decision of the Regional Trial Court of Imus,
Cavite, Branch 90, is MODIFIED in that the appellants are
convicted of ATTEMPTED MURDER and sentenced to an
indeterminate penalty of 2 years of prision correccional as
minimum to 6 years and 1 day of prision mayor as maximum. In
all other respects, the decision appealed from is AFFIRMED.
SO ORDERED.9
The accused, now petitioners, filed the instant petition for review
on certiorari, alleging that the CA erred in affirming the RTC
decision. They insist that the prosecution failed to prove that they
had the intention to kill Ruben when they mauled and hit him with
a hollow block. Petitioners aver that, based on the testimony of
Dr. Cagingin, Ruben sustained only a superficial wound in the
parietal area; hence, they should be held criminally liable for
physical injuries only. Even if petitioners had the intent to kill
Ruben, the prosecution failed to prove treachery; hence, they
should be held guilty only of attempted homicide.
On the other hand, the CA held that the prosecution was able to
prove petitioners’ intent to kill Ruben:

1
On the first assigned error, intent to kill may be deduced from the
nature of the wound inflicted and the kind of weapon used. Intent
to kill was established by victim Ruben Rodil in his testimony as
follows:
Q: And while you were being boxed by Esmeraldo and Bong, what
happened next?
A: When I was already lying [down] xxx, Dagol Rivera showed up
with a piece of hollow block xxx and hit me thrice on the head,
Sir.
Q: And what about the two (2), what were they doing when you
were hit with a hollow block by Dagol?
A: I was already lying on the ground and they kept on boxing me
while Dagol was hitting, Sir.
As earlier stated by Dr. Cagingin, appellants could have killed the
victim had the hollow block directly hit his head, and had the
police not promptly intervened so that the brothers scampered
away. When a wound is not sufficient to cause death, but intent to
kill is evident, the crime is attempted. Intent to kill was shown by
the fact that the (3) brothers helped each other maul the
defenseless victim, and even after he had already fallen to the
ground; that one of them even picked up a cement hollow block
and proceeded to hit the victim on the head with it three times;
and that it was only the arrival of the policemen that made the
appellants desist from their concerted act of trying to kill Ruben
Rodil.10
The Office of the Solicitor General (OSG), for its part, asserts that
the decision of the CA is correct, thus:
The evidence and testimonies of the prosecution witnesses defeat
the presumption of innocence raised by petitioners. The crime has
been clearly established with petitioners as the perpetrators. Their
intent to kill is very evident and was established beyond
reasonable doubt.
Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo
clearly and categorically declared that the victim Ruben Rodil was
walking along St. Peter Avenue when he was suddenly boxed by
Esmeraldo "Baby" Rivera. They further narrated that, soon
thereafter, his two brothers Ismael and Edgardo "Dagul" Rivera,
coming from St. Peter II, ganged up on the victim. Both Alicia
Vera Cruz and Lucita Villejo recounted that they saw Edgardo
"Dagul" Rivera pick up a hollow block and hit Ruben Rodil with it
three (3) times. A careful review of their testimonies revealed the
suddenness and unexpectedness of the attack of petitioners. In
this case, the victim did not even have the slightest warning of
the danger that lay ahead as he was carrying his three-year old
daughter. He was caught off-guard by the assault of Esmeraldo
"Baby" Rivera and the simultaneous attack of the two other
petitioners. It was also established that the victim was hit by
Edgardo "Dagul" Rivera, while he was lying on the ground and
being mauled by the other petitioners. Petitioners could have
killed the victim had he not managed to escape and had the police
not promptly intervened.
Petitioners also draw attention to the fact that the injury
sustained by the victim was superficial and, thus, not life
threatening. The nature of the injury does not negate the intent to
kill. The Court of Appeals held:
As earlier stated by Dr. Cagingin, appellants could have killed the
victim had the hollow block directly hit his head, and had the
police not promptly intervened so that the brothers scampered
away. When a wound is not sufficient to cause death, but intent to
kill is evident, the crime is attempted. Intent to kill was shown by
the fact that the three (3) brothers helped each other maul the
2
defenseless victim, and even after he had already fallen to the
ground; that one of them picked up a cement hollow block and
proceeded to hit the victim on the head with it three times; and
that it was only the arrival of the policemen that made the
appellants desist from their concerted act of trying to kill Ruben
Rodil.11
The petition is denied for lack of merit.
An essential element of murder and homicide, whether in their
consummated, frustrated or attempted stage, is intent of the
offenders to kill the victim immediately before or simultaneously
with the infliction of injuries. Intent to kill is a specific intent which
the prosecution must prove by direct or circumstantial evidence,
while general criminal intent is presumed from the commission of
a felony by dolo.
In People v. Delim,12 the Court declared that evidence to prove
intent to kill in crimes against persons may consist, inter alia, in
the means used by the malefactors, the nature, location and
number of wounds sustained by the victim, the conduct of the
malefactors before, at the time, or immediately after the killing of
the victim, the circumstances under which the crime was
committed and the motives of the accused. If the victim dies as a
result of a deliberate act of the malefactors, intent to kill is
presumed.
In the present case, the prosecution mustered the requisite
quantum of evidence to prove the intent of petitioners to kill
Ruben. Esmeraldo and Ismael pummeled the victim with fist
blows. Even as Ruben fell to the ground, unable to defend himself
against the sudden and sustained assault of petitioners, Edgardo
hit him three times with a hollow block. Edgardo tried to hit
Ruben on the head, missed, but still managed to hit the victim
only in the parietal area, resulting in a lacerated wound and
cerebral contusions.
That the head wounds sustained by the victim were merely
superficial and could not have produced his death does not negate
petitioners’ criminal liability for attempted murder. Even if
Edgardo did not hit the victim squarely on the head, petitioners
are still criminally liable for attempted murder.
The last paragraph of Article 6 of the Revised Penal Code defines
an attempt to commit a felony, thus:
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.13
The first requisite of an attempted felony consists of two
elements, namely:
(1) That there be external acts; which has a range of six (6) months and one (1) day to six (6)
years.
(2) Such external acts have direct connection with the crime
intended to be committed.14 Hence, petitioners should be sentenced to suffer an indeterminate
penalty of from two (2) years of prision correccional in its
minimum period, as minimum, to nine (9) years and four (4)
The Court in People v. Lizada15 elaborated on the concept of an
months of prision mayor in its medium period, as maximum.
overt or external act, thus:

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for

An overt or external act is defined as some physical activity or
lack of merit. The Decision of the Court of Appeals is AFFIRMED
deed, indicating the intention to commit a particular crime, more
WITH THE MODIFICATION that petitioners are sentenced to
than a mere planning or preparation, which if carried out to its
suffer an indeterminate penalty of from two (2) years of prision
complete termination following its natural course, without being
correccional in its minimum period, as minimum, to nine (9) years
frustrated by external obstacles nor by the spontaneous
and four (4) months of prision mayor in its medium period, as
desistance of the perpetrator, will logically and necessarily ripen
maximum. No costs.
into a concrete offense. 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 SO ORDERED.
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.16

In the case at bar, petitioners, who acted in concert, commenced

the felony of murder by mauling the victim and hitting him three
times with a hollow block; they narrowly missed hitting the middle
portion of his head. If Edgardo had done so, Ruben would surely
have died.

We reject petitioners’ contention that the prosecution failed to

prove treachery in the commission of the felony. Petitioners
attacked the victim in a sudden and unexpected manner as Ruben
was walking with his three-year-old daughter, impervious of the
imminent peril to his life. He had no chance to defend himself and
retaliate. He was overwhelmed by the synchronized assault of the
three siblings. The essence of treachery is the sudden and
unexpected attack on the victim.17 Even if the attack is frontal but
is sudden and unexpected, giving no opportunity for the victim to
repel it or defend himself, there would be treachery. 18 Obviously,
petitioners assaulted the victim because of the altercation
between him and petitioner Edgardo Rivera a day before. There
being conspiracy by and among petitioners, treachery is
considered against all of them.19

The appellate court sentenced petitioners to suffer an

indeterminate penalty of two (2) years of prision correccional in
its minimum period, as minimum, to six years and one day
of prision mayor in its maximum period, as maximum. This is
erroneous. Under Article 248 of the Revised Penal Code, as
amended by Republic Act No. 7659, the penalty for murder
is reclusion perpetua to death. Since petitioners are guilty only of
attempted murder, the penalty should be reduced by two
degrees, conformably to Article 51 of the Revised Penal Code.
Under paragraph 2 of Article 61, in relation to Article 71 of the
Revised Penal Code, such a penalty is prision mayor. In the
absence of any modifying circumstance in the commission of the
felony (other than the qualifying circumstance of treachery), the
maximum of the indeterminate penalty shall be taken from the
medium period of prision mayor which has a range of from eight
(8) years and one (1) day to ten (10) years. To determine the
minimum of the indeterminate penalty, the penalty of prision
mayor should be reduced by one degree, prision correccional,
3
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12155            February 2, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
PROTASIO EDUAVE, defendant-appellant.
Manuel Roxas for appellant.
Attorney-General Avanceña for appellee.
MORELAND, J.:
We believe that the accused is guilty of frustrated murder.
We are satisfied that there was an intent to kill in this case. A
deadly weapon was used. The blow was directed toward a vital
part of the body. The aggressor stated his purpose to kill, thought
he had killed, and threw the body into the bushes. When he gave
himself up he declared that he had killed the complainant.
There was alevosia  to qualify the crime as murder if death had
resulted. The accused rushed upon the girl suddenly and struck
her from behind, in part at least, with a sharp bolo, producing a
frightful gash in the lumbar region and slightly to the side eight
and one-half inches long and two inches deep, severing all of the
muscles and tissues of that part.
The motive of the crime was that the accused was incensed at the
girl for the reason that she had theretofore charged him criminally
before the local officials with having raped her and with being the
cause of her pregnancy. He was her mother's querido  and was
living with her as such at the time the crime here charged was
committed.
That the accused is guilty of some crime is not denied. The only
question is the precise crime of which he should be convicted. It is
contended, in the first place, that, if death has resulted, the crime
would not have been murder but homicide, and in the second
place, that it is attempted and not frustrated homicide.
As to the first contention, we are of the opinion that the crime
committed would have been murder if the girl had been killed. It
is qualified by the circumstance of alevosia, the accused making a
sudden attack upon his victim from the rear, or partly from the
rear, and dealing her a terrible blow in the back and side with his
bolo. Such an attack necessitates the finding that it was made
treacherously; and that being so the crime would have been
qualified as murder if death had resulted.
As to the second contention, we are of the opinion that the crime
was frustrated and not attempted murder. Article 3 of the Penal
Code defines a frustrated felony as follows:
A felony is frustrated when the offender performs all the
acts of execution which should produce the felony as a
consequence, but which, nevertheless, do not produce it
by reason of causes independent of the will of the
perpetrator.
An attempted felony is defined thus:
There is an attempt when the offender commences the
commission of the felony directly by overt acts, and does
not perform all the acts of execution which constitute
the felony by reason of some cause or accident other
than his own voluntarily desistance.
The crime cannot be attempted murder. This is clear from the fact
that the defendant performed all  of the acts which should have
4
resulted in the consummated crime and voluntarily desisted from
further acts. A crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime by overt
acts, is prevented, against his will, by some outside cause from
performing all of the acts which should produce the crime. In
other words, to be an attempted crime the purpose of the
offender must be thwarted by a foreign force or agency which
intervenes and compels him to stop prior to the moment when he
has performed all of the acts which should produce the crime as a
consequence, which acts it is his intention to perform. If he has
performed all of the acts which should result in the consummation
of the crime and voluntarily  desists from proceeding further, it
can not be an attempt. The essential element which distinguishes
attempted from frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or agency between
the beginning of the commission of the crime and the moment
when all of the acts have been performed which should result in
the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of
performing all of the acts which should produce the crime. He is
stopped short of that point by some cause apart from his
voluntary desistance.
To put it in another way, in case of an attempt the offender never
passes the subjective phase of the offense. He is interrupted and
compelled to desist by the intervention of outside causes before
the subjective phase is passed.
On the other hand, in case of frustrated crimes the subjective
phase is completely passed. Subjectively the crime is complete.
Nothing interrupted the offender while he was passing through the
subjective phase. The crime, however, is not consummated by
reason of the intervention of causes independent of the will of the
offender. He did all that was necessary to commit the crime. If
the crime did not result as a consequence it was due to something
beyond his control.
The subjective phase is 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
the prior acts, should result in the consummated crime. From that
time forward the phase is objective. It may also be said to be that
period occupied by the acts of the offender over which he has
control — that period between the point where he begins  and the
points where he voluntarily desists. If between  these two points
the offender is stopped by reason of any cause outside of his own
voluntary desistance, the subjective phase has not been passed
and it is an attempt. If he is not so stopped but continues until he
performs the last act, it is frustrated.
That the case before us is frustrated is clear.
The penalty should have been thirteen years of cadena
temporal  there being neither aggravating nor mitigating
circumstance. As so modified, the judgment is affirmed with costs.
So ordered.
 FIRST DIVISION
G.R. No. 122099               July 5, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AGAPITO LISTERIO y PRADO and SAMSON DELA TORRE y
ESQUELA, accused,
AGAPITO LISTERIO y PRADO, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
For the deadly assault on the brothers Jeonito Araque and Marlon
Araque, Agapito Listerio y Prado, Samson dela Torre y Esquela,
Marlon dela Torre, George dela Torre, Bonifacio Bancaya and
several others who are still at large were charged in two (2)
separate Amended Informations with Murder and Frustrated
Murder.
In Criminal Case No. 91-5842 the Amended Information 1 for
Murder alleges –
That on or about the 11th day of August 1991 in the Municipality
of Muntinlupa, Metro Manila, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring
and confederating together and mutually helping and aiding one
another, all armed with bladed weapons and GI lead pipes, with
intent to kill, treachery and evident premeditation with abuse of
superior strength did then and there willfully, unlawfully and
feloniously attack, assault and stab one Jeonito Araque y Daniel at
the back of his body, thereby inflicting upon the latter mortal
wounds which directly caused his death.
CONTRARY TO LAW.
2 
In Criminal Case No. 91-5843, the Amended Information for
Frustrated Homicide charges:
That on or about the 14th day of May 1991 in the Municipality of
Muntinlupa, Metro Manila, Philippines and within the jurisdiction
this Honorable Court, the above-named accused, conspiring,
confederating together, mutually helping and aiding one another,
with intent to kill did then and there willfully, unlawfully and
feloniously stab and hit with a lead pipe and bladed weapon one
Marlon Araque y Daniel on the vital portions of his body, thereby
inflicting serious and mortal wounds which would have cause[d]
the death of the said victim thus performing all the acts of
execution which should have produce[d] the crime of Homicide as
a consequence but nevertheless did not produce it by reason of
causes independent of their will, that is by timely and able
medical attendance rendered to said Marlon Araque y Daniel
which prevented his death.
CONTRARY TO LAW.
Upon arraignment, accused Agapito Listerio y Prado and Samson
dela Torre y Esquela pleaded not guilty to the crimes charged.
Their other co-accused have remained at large.
Trial thereafter ensued after which the court a quo  rendered
judgment only against accused Agapito Listerio because his co-
accused Samson dela Torre escaped during the presentation of
the prosecution’s evidence and he was not tried in absentia.  The
dispositive portion of the decision3 reads:
5
WHEREFORE, finding Accused AGAPITO LISTERIO guilty beyond
reasonable doubt, he is sentenced:
1. For the death of Jeonito Araque y Daniel in Criminal Case NO.
91-5842, RECLUSION PERPETUA;
2. For the attempt to kill Marlon Araque y Daniel, in Criminal Case
No. 91-5843, he is sentenced to six (6) months and one (1) day
as minimum, to four (4) years as maximum;
3. As civil indemnity, he is ordered to indemnify the heirs of
Jeonito Araque y Daniel the sum[s] of :
P54,200.66 as actual damages;
P50,000.00 as moral damages;
P5,000.00 as exemplary damages.
4. And for the damages sustained by Marlon Araque y Daniel, he
is required to pay Marlon Araque y Daniel, the sum[s] of :
P5,000.00 as actual damages;
P5,000.00 as moral damages; and
P5,000.00 as exemplary damages
SO ORDERED.4
Dissatisfied, accused Agapito Listerio interposed this appeal
alleging that –
I
THE PROSECUTION EVIDENCE FAILED TO ESTABLISH THE GUILT
OF THE ACCUSED BEYOND REASONABLE DOUBT.
II
THE COURT CONVICTED THE ACCUSED OF THE CRIME OF
MURDER AND ATTEMPTED HOMICIDE DESPITE ABSENCE OF
PROOF OF CONSPIRACY AND AGGRAVATING CIRCUMSTANCE OF
TREACHERY.
The version of the prosecution of what transpired on that fateful
day of August 14, 1991 culled from the eyewitness account of
Marlon Araque discloses that at around 5:00 p.m. of August 14,
1991, he and his brother Jeonito were in Purok 4, Alabang,
Muntinlupa to collect a sum of money from a certain Tino. 5 Having
failed to collect anything from Tino,  Marlon and Jeonito then
turned back.6 On their way back while they were passing Tramo
near Tino’s place,7 a group composed of Agapito Listerio, Samson
dela Torre, George dela Torre, Marlon dela Torre and Bonifacio
Bancaya8 blocked their path9 and attacked them with lead pipes
and bladed weapons.10
Agapito Listerio, Marlon dela Torre and George dela Torre, who
were armed with bladed weapons, stabbed Jeonito Araque from
behind.11 Jeonito sustained three (3) stab wounds on the upper
right portion of his back, another on the lower right portion and
the third on the middle portion of the left side of his
back12 causing him to fall down. 13 Marlon Araque was hit on the
head by Samson dela Torre and Bonifacio Bancaya with lead pipes
and momentarily lost consciousness.14 When he regained his
senses three (3) minutes later, he saw that Jeonito was already
dead.15 Their assailants then fled after the incident. 16 Marlon
Araque who sustained injuries in the arm and back, 17 was
thereafter brought to a hospital for treatment.18
Marlon Araque was examined by Dr. Salvador Manimtim, head of
the Medico Legal Division of the UP-PGH, 19 who thereafter issued
a Medical Certificate20 indicating that Marlon Araque sustained two
(2) lacerated wounds, one measuring 5 centimeters in length
located in the center (mid-parietal area) of the ear. 21 The second
lacerated wound measuring 2 centimeters in length is located at
the mid-frontal area commonly known as the forehead. 22 A third
lacerated wound measuring 1.5 centimeters long is located at the
forearm23 and a fourth which is a stab wound measuring 3
centimeters is located at the right shoulder at the
collar.24 Elaborating on the nature of Marlon Araque’s injuries, Dr.
Manimtim explained in detail during cross-examination that the
two (2) wounds on the forearm and the shoulder were caused by
a sharp object like a knife while the rest were caused by a blunt
instrument such as a lead pipe.25
Dr. Bievenido Munoz, NBI Medico Legal Officer conducted an
autopsy on the cadaver of Jeonito Araque 26 and prepared an
Autopsy Report27 of his findings. The report which contains a
detailed description of the injuries inflicted on the victim shows
that the deceased sustained three (3) stab wounds all of them
inflicted from behind by a sharp, pointed and single-bladed
instrument like a kitchen knife, balisong  or any similar
instrument.28 The first stab wound, measuring 1.7 centimeters
with an approximate depth of 11.0 centimeters, perforated the
lower lobe of the left lung and the thoracic aorta. 29 Considering the
involvement of a vital organ and a major blood vessel, the wound
was considered fatal.30 The second wound, measuring 2.4
centimeters, affected the skin and underlying soft tissues and did
not penetrate the body cavity.31 The third wound measuring 2.7
centimeters was like the second and involved only the soft
tissues.32 Unlike the first, the second and third wounds were non-
fatal.33 Dr. Munoz averred that of the three, the first and second
wounds were inflicted by knife thrusts delivered starting below
going upward by assailants who were standing behind the
victim.34
On the other hand, accused-appellant’s version of the incident is
summed thus in his brief:
1. Accused-appellant is 39 years old, married, side walk vendor
and a resident of Purok 4, Bayanan, Muntinlupa, Metro Manila. He
earns a living by selling vegetables.35
2. At around 1:00 o’clock in the afternoon of August 14, 1991,
Accused-Appellant was in the store of Nimfa Agustin having a little
fun with Edgar Demolador and Andres Gininao drinking beer. At
around 2:00 o’clock Accused-appellant went to his house and
slept.36
3. While asleep, at about 5 o’clock, Edgar Remolador and Andres
Gininao woke him up and told him there was a quarrel near the
railroad track.37
4. At around 6:00 o’clock two (2) policemen passed by going to
the house of Samson de la Torre while Accused-appellant was
chatting with Edgar Remolador and Andres Gininao. These two (2)
policemen together with co-accused Samson de la Torre came
back and invited Accused-appellant for questioning at the
Muntinlupa Police Headquarters together with Edgar Demolador
and Andres Gininao. Subsequently, Edgar Demolador and Andres
Gininao were sent home.38
5. At the Police Station, Accused-Appellant was handed a
Sinumpaang Salaysay executed by Marlon Araque, implicating him
for the death of Jeonito Araque and the frustrated murder of
Marlon Araque. Accused-Appellant confronted Marlon Araque as to
6
why he was being included in the case. Marlon Araque answered
"because you eject[ed] us from your house."39
Professing his innocence, accused-appellant claims that Marlon
Araque’s uncorroborated testimony failed to clearly and positively
identify him as the malefactor responsible for his brother’s death.
In fine, he insists that Marlon’s testimony is insufficient to convict
him of the crimes charged.
We disagree.
It is well settled that witnesses are to be weighed, not numbered,
such that the testimony of a single, trustworthy and credible
witness could be sufficient to convict an accused. 40 More explicitly,
the well entrenched rule is that "the testimony of a lone
eyewitness, if found positive and credible by the trial court is
sufficient to support a conviction especially when the testimony
bears the earmarks of truth and sincerity and had been delivered
spontaneously, naturally and in a straightforward manner. It has
been held that witnesses are to be weighed not numbered; hence,
it is not at all uncommon to reach a conclusion of guilt on the
basis of the testimony of a single witness."41
The trial court found Marlon Araque’s version of what transpired
candid and straightforward. We defer to the lower court’s findings
on this point consistent with the oft-repeated pronouncement
that: "the trial judge is the best and the most competent person
who can weigh and evaluate the testimony of witnesses. His
firsthand look at the declarant’s demeanor, conduct and attitude
at the trial places him in a peculiar position to discriminate
between the true and the false. Consequently appellate courts will
not disturb the trial court’s findings save only in cases where
arbitrariness has set in and disregard for the facts important to
the case have been overlooked."42
The account of Marlon Araque as to how they were assaulted by
the group of accused-appellant was given in a categorical,
convincing and straightforward manner:
Q Mr. Witness, do you know a certain Jeonito Araque y Daniel?
A Yes, sir.
Q And why do you know him?
A He is my brother.
Q Where is Jeonito Araque now?
A He is already dead.
Q When did he die?
A Last August 14.
Q Do you know of your own knowledge how he died?
A Yes, sir.
Q Will you please inform the Honorable Court what is your own
knowledge?
A He was stabbed, sir.
Q Do you know the person or persons who stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who are these
person or persons, if you know?
A Its (sic) Agapito Listerio, Samson dela Torre, George dela Torre,
Marlon dela Torre and Bonifacio.
Q Now if these persons [are] inside the courtroom, could you
identify them?
A They (sic) are only two persons but the three persons is (sic)
not around.
Q Could you please point to this Honorable Court who are these
two persons in side the courtroom?
A Yes, sir (Witness pointing to a persons [sic] and when asked
[identified themselves as] Agapito Listerio and Samson dela
Torre.)
Q Now, at around 5:00 o’clock in the afternoon of August 14,
1991, do you recall where were you?
A Yes, sir.
Q Will you please inform the Honorable Court where were you at
that time?
A I’m in Alabang at Purok 4 and I’m collecting.
Q Do you have any companion at that time?
A Yes, sir.
Q What are you doing at that time in [that] particular date?
A I’m collecting from a certain Tino.
Q Were you able to collect?
A No, sir.
Q If you said that there were no collections, what did you do?
A We went back.
Q When you went back, did you have any companion?
A Yes, sir.
Q Who was your companion?
A My brother.
Q While you were going back, was there any untoward incidents
that happened?
A Yes sir "Hinarang po kami."
Q Now, what particular place [where] you were waylaid, if you
recall?
A In Tramo, near Tino’s place.
Q And who were the persons that were waylaid (sic)?
A Agapito Listerio, Samson dela Torre, George dela Torre and
Bonifacio.
Q Will you please inform the Honorable Court how will (sic) you
waylaid by these persons?
A We were walking then suddenly they stabbed us with knife (sic)
and ran afterwards.
Q Who were the persons that waylaid you?
A Agapito Listerio, George and Marlon.
Q How about your brother, what happened to him?
A He fall (sic) down.
Q And after he fall (sic) down, do you know what happened?
A I was hit by a lead pipe that’s why I painted (sic).
Q Do you know the reason why your brother fall (sic) down?
A I cannot recall, sir. Because I already painted (sic).
Q Do you know the reason why your brother fall (sic) before you
painted (sic)?
A Yes, sir.
Q Will you please inform the Honorable Court why your brother
fall (sic) down?
x x x           x x x          x x x
A Yes, sir, because he was stabbed.
Q What particular place of his body was [he] stabbed if you know?
A At the back of his body.
Q Do you know the person or persons who was (sic) stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who was that
persons was stabbed him?
A Agapito, Marlon and George.
COURT
How many stabbed [him], if you know?
A Three (3), sir.
COURT
In what particular part of his body was stabbed wound (sic)?
A Witness pointing to his back upper right portion of the back,
another on the lower right portion and another on the middle
portion of the left side at the back.
COURT
Proceed.
Q Will you please inform the Honorable Court why you are (sic)
lost consciousness?
A I was hit by [a] lead pipe by Samson and Bonifacio.
Q And when did you regain consciousness?
A After three minutes.
Q And when you gain[ed] consciousness, what happened to your
brother?
A He was already dead.
Q How about you, what did you do?
A I go (sic) to the Hospital.
Q How about the accused, the persons who way laid, what
happened to them?
A From what I know, they ran away. 43
Persistent efforts by defense counsel to establish that the attack
was provoked, by eliciting from Marlon Araque an admission that
he and the deceased had a drinking spree with their attackers
prior to the incident, proved futile as Marlon steadfastly
maintained on cross examination that he and his brother never
drank liquor on that fateful day:
7
Q After your work, was there an occasion when you drink
something with your borther (sic)?
A No, sir.
Q And you stand to your testimony that you never drink (sic) on
August 14, 1991?
A Yes, sir.
Q Were (sic) there no occasion on August 14, 1991 when you
visited Sonny Sari-Sari Store at 4:00 p.m. on August 14, 1991?
A No, sir.
Q And did you not have a drinking spree with George dela Torre?
A No, sir.
Q Marlon dela Torre?
A No, sir.
Q Bonifacio?
A With your borther (sic)?
Q So you want to tell this Honorable Court that there was no point
in time on August 14, 1991 at 4:00 p.m. that you did not take a
sip of wine?
A No, sir.
Q Neither your brother?
Atty. Agoot
Objection, Your Honor, the question is vague.
COURT
Ask another question.
Q Mr. Witness, will you please tell the Honorable Court where this
George dela Torre, Marlon dela Torre and a certain Bonifacio
were?
Atty. Agoot
Witness is incompetent.
Q Mr. Witness, you testified that it was your brother the deceased
who invited you to Purok 4?
A Yes, sir.
Atty. Lumakang
That will be all for the witness, your Honor.44
That Marlon was able to recognize the assailants can hardly be
doubted because relatives of the victim have a natural knack for
remembering the faces of the attackers and they, more than
anybody else, would be concerned with obtaining justice for the
victim by the felons being brought to the face of the law. 45 Indeed,
family members who have witnessed the killing of a loved one
usually strive to remember the faces of the assailants. 46 Marlon’s
credibility cannot be doubted in this case because as a victim
himself and an eyewitness to the incident, it can be clearly
gleaned from the foregoing excerpts of his testimony that he
remembered with a high degree of reliability the identity of the
malefactors.47
Likewise, there is no showing that he was motivated by any ill-
feeling or bad blood to falsely testify against accused-appellant.
Being a victim himself, he is expected to seek justice. It is settled
that if the accused had nothing to do with the crime, it would be
against the natural order of events to falsely impute charges of
wrongdoing upon him.48 Accused-appellant likewise insists on the
absence of conspiracy and treachery in the attack on the victims.
We remain unconvinced.
It must be remembered that direct proof of conspiracy is rarely
found for criminals do not write down their lawless plans and
plots.49 Conspiracy may be inferred from the acts of the accused
before, during and after the commission of the crime which
indubitably point to and are indicative of a joint purpose, concert
of action and community of interest.50 Indeed –
A conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to
commit it. To establish the existence of a conspiracy, direct proof
is not essential since it may be shown by facts and circumstances
from which may be logically inferred the existence of a common
design among the accused to commit the offense charged, or it
may be deduced from the mode and manner in which the offense
was perpetrated.51
More explicitly –
… conspiracy need not be established by direct evidence of acts
charged, but may and generally must be proved by a number of
indefinite acts, conditions and circumstances, which vary
according to the purpose accomplished. Previous agreement to
commit a crime is not essential to establish a conspiracy, it being
sufficient that the condition attending to its commission and the
acts executed may be indicative of a common design to
accomplish a criminal purpose and objective. If there is a chain of
circumstances to that effect, conspiracy can be established.52
Thus, the rule is that conspiracy must be shown to exist by direct
or circumstantial  evidence, as clearly and convincingly as the
crime itself.53 In the absence of direct proof thereof, as in the
present case, it may be deduced from the mode, method, and
manner  by which the offense was perpetrated, or inferred from
the acts of the accused themselves when such acts point to
a joint purpose and design, concerted action and community of
interest.54 Hence, it is necessary that a conspirator should have
performed some overt acts as a direct or indirect contribution in
the execution of the crime planned to be committed. The overt act
may consist of active participation in the actual commission of the
crime itself, or it may consist of moral assistance to his con-
conspirators by being present at the commission of the crime  or
by exerting moral ascendancy over the other co-conspirators. 55
Conspiracy transcends mere companionship, it denotes an
intentional participation in the transaction with a view to the
furtherance of the common design and purpose. 56 "Conspiracy to
exist does not require an agreement for an appreciable period
prior to the occurrence. 57 From the legal standpoint, conspiracy
exists if, at the time of the commission of the offense, the
accused had the same purpose and were united  in its
execution."58 In this case, the presence of accused-appellant and
his colleagues, all of them armed with deadly weapons at
the locus criminis,  indubitably shows their criminal design to kill
the victims.
Nowhere is it more evident than in this case where accused-
appellant and his cohorts blocked the path of the victims and as a
group attacked them with lead pipes and bladed weapons.
Accused-appellant and his companions acted in concert during the
assault on the victims. Each member of the group performed
specific and coordinated acts as to indicate beyond doubt a
common criminal design or purpose. 59 Thus, even
assuming arguendo  that the prosecution eyewitness may have
been unclear as to who delivered the fatal blow on the victim,
accused-appellant as a conspirator is equally liable for the crime
as it is unnecessary to determine who inflicted the fatal wound
because in conspiracy, the act of one is the act of all. 60
commits any of the crimes against persons employing means,
methods or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising
from the defense which the offended party might make. 65 That
circumstance qualifies the crime into murder.
The commission of the crime was also attended by abuse of
superior strength on account of the fact that accused-appellant
and his companions were not only numerically superior to the
victims but also because all of them, armed with bladed weapons
and lead pipes, purposely used force out of proportion to the
means of defense available to the persons attacked. However, this
aggravating circumstance is already absorbed in
treachery.66 Furthermore, although alleged in the information,
evident premeditation was not proved by the prosecution. In the
light of the finding of conspiracy, evident premeditation need not
be further appreciated, absent concrete proof as to how and when
the plan to kill was hatched or what time had elapsed before it
was carried out.67
In stark contrast to the evidence pointing to him as one of the
assailants of the victims, accused-appellant proffers the defense
of alibi. At the risk of sounding trite, it must be remembered that
alibi is generally considered with suspicion and always received
with caution because it can be easily fabricated. 68 For alibi to serve
as a basis for acquittal, the accused must establish that: a.] he
was present at another place at the time of the perpetration of
the offense; and b.] it would thus be physically impossible for him
to have been at the scene of the crime.69
Suffice it to state that accused-appellant failed to discharge this
burden. The positive identification of the accused as one of the
perpetrators of the crime by the prosecution eyewitness, absent
any showing of ill-motive, must prevail over the weak and
obviously fabricated alibi of accused-appellant. 70 Furthermore, as
aptly pointed out by the trial court "[t]he place where the accused
was at the time of the killing is only 100 meters away. The
distance of his house to the place of the incident makes him
physically possible to be a participant in the killing [of Jeonito]
and [the] wounding of Marlon."71
All told, an overall scrutiny of the records of this case leads us to
no other conclusion than that accused-appellant is guilty as
charged for Murder in Criminal Case No. 91-5842.
In Criminal Case No. 91-5843, wherein accused-appellant was
indicted for Frustrated Homicide, the trial court convicted
accused-appellant of Attempted Homicide only on the basis of Dr.
Manimtim’s testimony that none of the wounds sustained by
Marlon Araque were fatal.

The reasoning of the lower court on this point is flawed because it

As to the qualifying circumstances here present, the treacherous
is not the gravity of the wounds inflicted which determines
manner in which accused-appellant and his group perpetrated the
whether a felony is attempted or frustrated but whether or not
crime is shown not only by the sudden and unexpected attack
the subjective phase in the commission of an offense has been
upon the unsuspecting and apparently unarmed victims but also
passed.  By subjective phase is meant "[t]hat portion of the acts
by the deliberate manner in which the assault was perpetrated. In
constituting the crime included between the act which begins the
this case, the accused-appellant and his companions, all of them
commission of the crime and the last act performed by the
armed with bladed weapons and lead pipes, blocked (hinarang)
offender which, with the prior acts, should result in the
the path of the victims effectively cutting off their escape. 61 In the
consummated crime. From that time forward, the phase is
ensuing attack, the deceased was stabbed three (3) times from
objective. It may also be said to be that period occupied by the
behind by a sharp, pointed and single-bladed instrument like a
acts of the offender over which he has control – that period
kitchen knife, balisong or similar instrument 62 while Marlon Araque
between the point where he begins and the point where
sustained lacerated wounds in the head caused by blows inflicted
he voluntarily desists.  If between these two points  the offender is
by lead pipes as well as stab wounds on the shoulder and forearm
stopped by reason of any cause outside of his own voluntary
which were caused by a sharp object like a knife.63
desistance, the subjective phase has not been passed and it is an
attempt. If he is not so stopped but continues until he performs
It must be noted in this regard that the manner in which the stab the last act, it is frustrated."72
wounds were inflicted on the deceased were clearly meant to kill
without posing any danger to the malefactors considering their
It must be remembered that a felony is frustrated when: 1.] the
locations and the fact that they were caused by knife thrusts
offender has performed all the acts of execution which would
starting below going upward by assailants who were standing
produce the felony; 2.] the felony is not produced due to causes
behind the victim.64 Treachery is present when the offender
8
independent of the perpetrator’s will. 73 On the other hand, in an
attempted felony: 1.] the offender commits overt acts to
commence the perpetration of the crime; 2.] he is not able to
perform all the acts of execution which should produce the felony;
and 3.] his failure to perform all the acts of execution was due to
some cause or accident other than his spontaneous
desistance.74 The distinction between an attempted and frustrated
felony was lucidly differentiated thus in the leading case of U.S. v.
Eduave:75
A crime cannot be held to be attempted unless the offender,
after beginning  the commission of the crime by overt acts, is
prevented, against his will, by some outside cause from
performing all of the acts which should produce the crime. In
other words, to be an attempted crime the purpose of the
offender must be thwarted by a foreign force or agency which
intervenes and compels him to stop prior to the moment when he
has performed all of the acts which should produce the crime as a
consequence, which acts it is his intention to perform. If he has
performed all  the acts which should result in the consummation of
the crime and voluntarily desists from proceeding further, it
cannot be an attempt. The essential element which distinguishes
attempted from frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or agency between
the beginning of the commission of crime and the moment when
all the acts have been performed which should result in the
consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of
performing all  of the acts which should produce the crime. He is
stopped short of that point by some cause apart from his
voluntary desistance.
To put it another way, in case of an attempt the offender never
passes the subjective phase of the offense. He is interrupted and
compelled to desist by the intervention of outside causes before
the subjective phase is passed.
On the other hand, in case of frustrated crimes, the subjective
phase is completely passed. Subjectively the crime is complete.
Nothing interrupted the offender while he was passing through the
subjective phase. The crime, however, is not consummated by
reason of the intervention of causes independent of the will of the
offender. He did all that was necessary to commit the crime. If
the crime did not result as a consequence it was due to something
beyond his control.
In relation to the foregoing, it bears stressing that intent to kill
determines whether the infliction of injuries should be punished as
attempted or frustrated murder, homicide, parricide or
consummated physical injuries.76 Homicidal intent must be
evidenced by acts which at the time of their execution are
unmistakably calculated to produce the death of the victim by
adequate means.77 Suffice it to state that the intent to kill of the
malefactors herein who were armed with bladed weapons and
lead pipes can hardly be doubted given the prevailing facts of the
case. It also can not be denied that the crime is a frustrated
felony not an attempted offense considering that after being
stabbed and clubbed twice in the head as a result of which he lost
consciousness and fell, Marlon’s attackers apparently thought he
was already dead and fled.
An appeal in a criminal case throws the whole case wide open for
review78 and the reviewing tribunal can correct errors, though
unassigned in the appealed judgement 79 or even reverse the trial
court’s decision on the basis of grounds other than those that the
parties raised as errors.80 With the foregoing in mind, we now
address the question of the proper penalties to be imposed.
With regard to the frustrated felony, Article 250 of the Revised
Penal Code provides that –
9
ART. 250. Penalty for frustrated parricide, murder, or homicide.
–  The courts, in view of the facts of the case, may impose upon
the person guilty of the frustrated crime of parricide, murder or
homicide, defined and penalized in the preceding articles, a
penalty lower by one degree than that which should be imposed
under the provisions of article 50.81
The courts, considering the facts of the case, may likewise reduce
by one degree the penalty which under article 51 should be
imposed for an attempt to commit any of such crimes.
The penalty for Homicide is reclusion temporal82 thus, the penalty
one degree lower would be prision mayor.83 With the presence of
the aggravating circumstance of abuse of superior strength and
no mitigating circumstances, the penalty is to be imposed in its
maximum period.84 Prision mayor  in its maximum period ranges
from ten (10) years and one (1) day to twelve (12) years.
Applying further the Indeterminate Sentence Law, 85 the minimum
of the imposable penalty shall be within the range of the penalty
next lower in degree, i.e. prision correccional  in its maximum
period which has a range of six (6) months and one (1) day to six
(6) years.
What now remains to be determined is the propriety of the
awards made by the trial court with regard to the civil aspect of
the case for the death of Jeonito Araque and the injuries
sustained by Marlon Araque.
Anent actual or compensatory damages, it bears stressing that
only substantiated and proven expenses or those which appear to
have been genuinely incurred in connection with the death, wake
or burial of the victim will be recognized by the courts. 86 In this
case, the expenses incurred for the wake, funeral and burial of
the deceased are substantiated by receipts. 87 The trial court’s
award for actual damages for the death of Jeonito Araque should
therefore be affirmed.
In line with current jurisprudence, 88 the award of P50,000.00 as
civil indemnity ex delicto  must also be sustained as it requires no
proof other than the fact of death of the victim and the assailant’s
responsibility therefor.89 The award for moral damages for the
pain and sorrow suffered by the victim’s family in connection with
his untimely death must likewise be affirmed. The award is
adequate, reasonable and with sufficient basis taking into
consideration the anguish and suffering of the deceased’s family
particularly his mother who relied solely upon him for
support.90 The award of exemplary damages should likewise be
affirmed considering that an aggravating circumstance attended
the commission of the crime.91
The trial court, however, correctly ignored the claim for loss of
income or earning capacity of the deceased for lack of factual
basis.1âwphi1 The estimate given by the deceased’s sister on his
alleged income as a ‘pre-cast’ businessman is not supported by
competent evidence like income tax returns or receipts. It bears
emphasizing in this regard that compensation for lost income is in
the nature of damages92 and as such requires due proof
thereof.93 In short, there must be unbiased proof of the deceased’s
average income.94 In this case, the victim’s sister merely gave an
oral, self-serving and hence unreliable statement of her deceased
brother’s income.
As for the awards given to Marlon Araque, the award for actual
damages must be affirmed as the same is supported by
documentary evidence.95 With regard to moral and exemplary
damages, the same being distinct from each other require
separate determination.96 The award for moral damages must be
struck down as the victim himself did not testify as to the moral
suffering he sustained as a result of the assault on his person. For
lack of competent proof such an award is improper. 97 The award
for exemplary damages must, however, be retained considering
that under Article 2230 of the Civil Code, such damages may be
imposed "when the crime is committed with one or more
aggravating circumstances."98

Finally, this Court has observed that the trial court did not render
judgment against accused Samson dela Torre, notwithstanding
that he was arraigned and pleaded not guilty to both charges.
Under the circumstances, he should be deemed to have been
tried in absentia and, considering the evidence presented by the
prosecution against him, convicted of the crime charged together
with appellant Agapito Listerio.

WHEREFORE, the appealed decision is AFFIRMED with the

following MODIFICATIONS:

1.] the award of P5,000.00 to Marlon Araque by way of moral

damages in Criminal Case No. 91-5843 is DELETED;

2.] Accused-Appellant is found GUILTY beyond reasonable doubt

in Criminal Case No. 91-5843 of Frustrated Homicide and is
sentenced to suffer an indeterminate penalty of Six (6) Years
of Prision Correccional,  as minimum to Ten (10) Years and One
(1) Day of Prision Mayor,  as maximum.

After finality of this Decision, the records shall be remanded to the

Regional Trial Court of Makati City, which is directed to render
judgment based on the evidence against Samson dela Torre y
Esquela.

SO ORDERED.

10
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-26298             January 20, 1927

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
JULIAN ERINIA Y VINOLLA, defendant-appellant.

Hermogenes Caluag for appellant.

Attorney-General Jaranilla for appellee.

OSTRAND, J.:

This is an appeal from a judgment of the Court of First Instance of

Manila finding the defendant guilty of the crime of consummated
rape and sentencing him to suffer seventeen years, four months
and one day of reclusion temporal, with the accessory penalties
provided by law and to pay the costs.

The victim of the crime was a child of 3 years and 11 months old
and the evidence is conclusive that the defendant endeavored to
have carnal intercourse with her, but there may be some doubt
whether he succeeded in penetrating the vagina before being
disturbed by the timely intervention of the mother and the sister
of the child. The physician who examined the genital organ of the
child a few hours after the commission of the crime found a slight
inflammation of the exterior parts of the organ, indicating that an
effort had been made to enter the vagina, but in testifying before
the court he expressed doubts as to whether the entry had been
effected. The mother of the child testified that she found its
genital organ covered with a sticky substance, but that cannot be
considered conclusive evidence of penetration.

It has been suggested that the child was of such tender age that
penetration was impossible; that the crime of rape consequently
was impossible of consummation; and that, therefore, the offense
committed should be treated only as abusos deshonestos. We do
not think so. It is probably true that a complete penetration was
impossible, but such penetration is not essential to the
commission of the crime; it is sufficient if there is a penetration of
the labia. In the case of Kenny vs. State  ([Tex. Crim. App.], 79 S.
W., 817; 65 L. R. A., 316) where the offended party was a child of
the age of 3 years and 8 months the testimony of several
physicians was to the effect that her labia of the privates of a
child of that age can be entered by a man's male organ to the
hymen and the defendant was found guilty of the consummated
crime rape.

There being no conclusive evidence of penetration of the genital

organ of the offended party, the defendant is entitled to the
benefit of the doubt and can only be found guilty of frustrated
rape, but in view of the fact that he was living in the house of the
parents of the child as their guest, the aggravating circumstance
of abuse of confidence existed and the penalty must therefore be
imposed in its maximum degree.

The judgment appealed from is modified and the defendant-

appellant is hereby found guilty of the crime of frustrated rape
and is sentenced to suffer twelve years of prision mayor, with the
accessory penalties prescribed by law, and with the costs in both
instances. So ordered.

Johnson, Street, Villamor, Romualdez and Villa-Real, JJ., concur.

11
 Republic of the Philippines taken place; whether it has gone past the hymen, into
SUPREME COURT what is anatomically called the hymen, or even so far as
Manila to touch the hymen." (Stewart on Legal Medicine, p.
137.)1awph!l.net
EN BANC
In People vs. Rivers  (147 Mich., 643), the court says:
G.R. No. L-23916             October 14, 1925
The law may now indeed be considered as settled that
while the rupturing of the hymen is not indispensable to
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
a conviction, there must be proof of some degree of
vs.
entrance of the male organ "within the labia of
DOMINGO HERNANDEZ, defendant-appellant.
Pudendum."

Cirilo B. Santos for appellant.

In the following cases it has been held that entry of the labia or
Acting Attorney-General Reyes for appllees
lips of the female organ, merely, without rupture of the hymen or
laceration of the vagina, is sufficient to warrant conviction of the
consummated crime of rape. (Kenny vs. State [Tex. Crim. App.];
65 L. R. A., 316; 79 S. W., 817 [1903]. See [Eng.] Reg. vs. Lines,
1 Car. & K., 393 [1844]; 44 N. W., 571 [1890]; [Tex.]
Rodgers vs. State, 30 Tex. App., 510; 17 S. W., 1077 [1891];
OSTRAND, J.: [Wis.] Brauer vs. State, 25 Wis., 413 [1870].)

The defendant is accused of the crime of rape, the information
alleging "that on or about the 26th day of February, 1925, in the
City of Manila, Philippine Islands, the said accused wilfully,
unlawfully, and feloniously, by means of force and by intimidating
one Conrada Jocson with killing her with a knife which said
accused held in his hand should she not accede to his wish, did
then and there lie with and have carnal knowledge of said
Conrada Jocson, a girl under 12 years of age. That in the
commission of the crime the following aggravating circumstances
existed to wit: (1) The accused is the husband of the grandmother
of said Conrada Jocson and (2) the crime was committed with
grave abuse of confidence, inasmuch as the offended and the
accused living in the same house."
The defendant is a man 70 years of age and the offended party is
a child of 9 years, the granddaughter of the defendant's wife.
There can be no question as to the defendant's guilt. The
evidence shows that he and the offended party were living in the
same house and that taking advantage of the absence of the
other inhabitants of the house, he had intercourse with the child
by force and violence. He admits that he did so, but maintains
that he was intoxicated at the time and did not know what he was
doing. The testimony of the witnesses for the prosecution is,
however, to the effect that he did not show any signs of
intoxication at the time of the commission of the crime or
immediately afterwards.
In the present case the physician who examined the offended
party immediately after the commission of the crime found the
labia and the opening of the vagina inflamed together with an
abundance of semen, though the hymen was intact. It also
appears from the evidence that the defendant lay on top of the
child for over fifteen minutes and continued his efforts of
penetration during that period; the child testifies that the
defendant succeeded in a partial penetration and that she felt
intense pain. In these circumstances, the crime must be regarded
as consummated.
The judgment appealed from is therefore modified by finding the
defendant guilty of the consummated crime of rape and, in view
of the aggravating circumstances mentioned in the information,
the penalty imposed upon the defendant is hereby increased to
seventeen years, four months and one day of reclusion temporal,
with the accessory penalties prescribed by law. In all other
respects the judgment is affirmed with the costs against the
appellant. So ordered.
Avanceña, C. J., Street, Malcolm, Villamor, Johns, Romualdez and
Villa-Real, JJ., concur.

The court below found the defendant guilty of frustrated rape and
sentenced him to suffer ten years and one day of prision mayor.
In holding that the crime was frustrated, the court seems to have
been of the opinion that there can be no consummated rape
without a complete penetration of the hymen. This view is not
accordance with the weight of authority; in fact, it is contrary to
practically all modern authorities. In State vs. Johnson (91 Mo.,
439), the court held that "finding the hymen intact is not always
proof that no rape has been committed, nor virginity; for the case
are not rare where the hymen had to be removed after
impregnation and in order to permit delivery."

In the same case, the court further said:

Any penetration whether reaching to the hymen or not is

sufficient to constitute the crime; for as Lord
Meadowbank said in case in Scotland. "Scientific and
anatomical distinctions as to where the vagina
commences are worthless in a case of rape; it is enough
if the woman's body is entered; and it is not necessary
to show to what extent penetration of the parts has
12
 Republic of the Philippines paragraph 3 of Batas Pambansa Blg. 129 in conjunction with
SUPREME COURT Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of
Manila 1948.
FIRST DIVISION
G.R. No. 88724               April 3, 1990
The antecedent facts as summarized in the People's brief are as
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
follows (pp. 71-75, Rollo):
vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee. Complainant Cristina S. Abayan was a 19-year old freshman
C. Manalo for defendant-appellant. student at the St. Joseph's College at Borongan, Eastern Samar.
MEDIALDEA, J.: Appellant was a Philippine Constabulary (PC) soldier.

The accused, Ceilito Orita alias Lito, was charged with the crime of In the early morning of March 20, 1983, complainant arrived at
rape in Criminal Case No. 83-031-B before the Regional Trial her boarding house. Her classmates had just brought her home
Court, Branch II, Borongan, Eastern Samar. The information filed from a party (p. 44, tsn, May 23, 1984). Shortly after her
in the said case reads as follows (p. 47, Rollo): classmates had left, she knocked at the door of her boarding
house (p. 5, ibid). All of a sudden, somebody held her and poked
a knife to her neck. She then recognized appellant who was a
The undersigned Second Assistant Provincial Fiscal upon prior
frequent visitor of another boarder (pp. 8-9, ibid).
complaint under oath by the offended party, accuses CEILITO
ORITA alias LITO of the crime of Rape committed as follows:
She pleaded with him to release her, but he ordered her to go
upstairs with him. Since the door which led to the first floor was
That on March 20, 1983, at about 1:30 o'clock in the morning
locked from the inside, appellant forced complainant to use the
inside a boarding house at Victoria St., Poblacion, Borongan,
back door leading to the second floor (p. 77, ibid). With his left
Eastern Samar, Philippines, and within the jurisdiction of this
arm wrapped around her neck and his right hand poking a
Honorable Court, above named accused with lewd designs and by
"balisong" to her neck, appellant dragged complainant up the
the use of a Batangas knife he conveniently provided himself for
stairs (p. 14, ibid). When they reached the second floor, he
the purpose and with threats and intimidation, did, then and there
commanded her to look for a room. With the Batangas knife still
wilfully, unlawfully and feloniously lay with and succeeded in
poked to her neck, they entered complainant's room.
having sexual intercourse with Cristina S. Abayan against her will
and without her consent.
Upon entering the room, appellant pushed complainant who hit
her head on the wall. With one hand holding the knife, appellant
CONTRARY TO LAW.
undressed himself. He then ordered complainant to take off her
clothes. Scared, she took off her T-shirt. Then he pulled off her
Upon being arraigned, the accused entered the plea of not guilty bra, pants and panty (p. 20, ibid).
to the offense charged. After the witnesses for the People testified
and the exhibits were formally offered and admitted, the
He ordered her to lie down on the floor and then mounted her. He
prosecution rested its case. Thereafter, the defense opted not to
made her hold his penis and insert it in her vagina. She followed
present any exculpatory evidence and instead filed a Motion to
his order as he continued to poke the knife to her. At said
Dismiss. On August 5, 1985, the trial court rendered its decision,
position, however, appellant could not fully penetrate her. Only a
the dispositive portion of which reads (pp. 59-60, Rollo):
portion of his penis entered her as she kept on moving (p.
23, ibid).
WHEREFORE. the Court being morally certain of the guilt of
accused CEILITO ORITA @ LITO, of the crime of Frustrated Rape
Appellant then lay down on his back and commanded her to
(Art. 335, RPC), beyond reasonable doubt, with the aggravating
mount him. In this position, only a small part again of his penis
circumstances of dwelling and nightime (sic) with no mitigating
was inserted into her vagina. At this stage, appellant had both his
circumstance to offset the same, and considering the provisions of
hands flat on the floor. Complainant thought of escaping (p.
the Indeterminate Sentence Law, imposes on accused an
20, ibid).
imprisonment of TEN (10) YEARS and ONE (1) DAY,  PRISION
MAYOR, as minimum to TWELVE (12) YEARS  PRISION MAYOR,
maximum; to indemnify CRISTINA S. ABAYAN, the amount of She dashed out to the next room and locked herself in. Appellant
Four Thousand (P4,000.00) Pesos, without subsidiary pursued her and climbed the partition. When she saw him inside
imprisonment in case of insolvency, and to pay costs. the room, she ran to another room. Appellant again chased her.
She fled to another room and jumped out through a window (p.
27, ibid).
SO ORDERED.

Not satisfied with the decision, the accused appealed to the Court
of Appeals. On December 29, 1988, the Court of Appeals rendered
its decision, the dispositive portion of which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED, and
the appellant found guilty of the crime of rape, and consequently,
sentenced to suffer imprisonment of reclusion perpetua  and to
indemnify the victim in the amount of P30,000.00.
SO ORDERED.
Still naked, she darted to the municipal building, which was about
eighteen meters in front of the boarding house, and knocked on
the door. When there was no answer, she ran around the building
and knocked on the back door. When the policemen who were
inside the building opened the door, they found complainant
naked sitting on the stairs crying. Pat. Donceras, the first
policeman to see her, took off his jacket and wrapped it around
her. When they discovered what happened, Pat. Donceras and
two other policemen rushed to the boarding house. They heard a
sound at the second floor and saw somebody running away. Due
to darkness, they failed to apprehend appellant.

Meanwhile, the policemen brought complainant to the Eastern

On January 11, 1989, the Court of Appeals issued a resolution
Samar Provincial Hospital where she was physically examined.
setting aside its December 29, 1988 decision and forwarded the
case to this Court, considering the provision of Section 9,
13
Dr. Ma. Luisa Abude, the resident physician who examined
complainant, issued a Medical Certificate (Exhibit "A") which
states:
Physical Examination — Patient is fairly built, came in with loose
clothing with no under-clothes; appears in state of shock, per
unambulatory.
PE Findings — Pertinent Findings only.
Neck- — Circumscribed hematoma at Ant. neck.
Breast — Well developed, conical in shape with prominent nipples;
linear abrasions below (L) breast.
Back — Multiple pinpoint marks.
Extremities — Abrasions at (R) and (L) knees.
Vulva — No visible abrasions or marks at the perineal area or over
the vulva, errythematous (sic) areas noted surrounding vaginal
orifice, tender, hymen intact; no laceration fresh and old noted;
examining finger can barely enter and with difficulty; vaginal
canal tight; no discharges noted.
As aforementioned, the trial court convicted the accused of
frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial
inconsistencies in the testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of frustrated
rape was committed by the accused.
The accused assails the testimonies of the victim and Pat.
Donceras because they "show remarkable and vital
inconsistencies and its incredibility amounting to fabrication and
therefore casted doubt to its candor, truth and validity." (p.
33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they
refer to trivial inconsistencies which are not sufficient to blur or
cast doubt on the witnesses' straightforward attestations. Far
from being badges of fabrication, the inconsistencies in their
testimonies may in fact be justifiably considered as manifestations
of truthfulness on material points. These little deviations also
confirm that the witnesses had not been rehearsed. The most
candid witnesses may make mistakes sometimes but such honest
lapses do not necessarily impair their intrinsic credibility (People
v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA 98).
Rather than discredit the testimonies of the prosecution
witnesses, discrepancies on minor details must be viewed as
adding credence and veracity to such spontaneous testimonies
(Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358,
March 16, 1988, 158 SCRA 695). As a matter of fact, complete
uniformity in details would be a strong indication of untruthfulness
and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June
27, 1988, 162 SCRA 609). However, one of the alleged
inconsistencies deserves a little discussion which is, the testimony
of the victim that the accused asked her to hold and guide his
penis in order to have carnal knowledge of her. According to the
accused, this is strange because "this is the only case where an
aggressor's advances is being helped-out by the victim in order
that there will be a consumation of the act." (p. 34, Rollo). The
allegation would have been meritorious had the testimony of the
victim ended there. The victim testified further that the accused
was holding a Batangas knife during the aggression. This is a
14
material part of the victim's testimony which the accused
conveniently deleted.
We find no cogent reason to depart from the well-settled rule that
the findings of fact of the trial court on the credibility of witnesses
should be accorded the highest respect because it has the
advantage of observing the demeanor of witnesses and can
discern if a witness is telling the truth (People v. Samson, G.R.
No. 55520, August 25, 1989). We quote with favor the trial
court's finding regarding the testimony of the victim (p 56,  Rollo):
As correctly pointed out in the memorandum for the People, there
is not much to be desired as to the sincerity of the offended party
in her testimony before the court. Her answer to every question
profounded (sic), under all circumstances, are plain and
straightforward. To the Court she was a picture of supplication
hungry and thirsty for the immediate vindication of the affront to
her honor. It is inculcated into the mind of the Court that the
accused had wronged her; had traversed illegally her honor.
When a woman testifies that she has been raped, she says in
effect all that is necessary to show that rape was committed
provided her testimony is clear and free from contradiction and
her sincerity and candor, free from suspicion (People v Alfonso,
G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v. Alcid,
G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v.
Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The
victim in this case did not only state that she was raped but she
testified convincingly on how the rape was committed. The
victim's testimony from the time she knocked on the door of the
municipal building up to the time she was brought to the hospital
was corroborated by Pat. Donceras. Interpreting the findings as
indicated in the medical certificate, Dr. Reinerio Zamora (who was
presented in view of the unavailability of Dr. Abude) declared that
the abrasions in the left and right knees, linear abrasions below
the left breast, multiple pinpoint marks, circumscribed hematoma
at the anterior neck, erythematous area surrounding the vaginal
orifice and tender vulva, are conclusive proof of struggle against
force and violence exerted on the victim (pp. 52-53, Rollo). The
trial court even inspected the boarding house and was fully
satisfied that the narration of the scene of the incident and the
conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition
safe enough to carry the weight of both accused and offended
party without the slightest difficulty, even in the manner as
narrated. The partitions of every room were of strong materials,
securedly nailed, and would not give way even by hastily scaling
the same.
A little insight into human nature is of utmost value in judging
rape complaints (People v. Torio, et al., G.R. No. L-48731,
December 21, 1983, 126 SCRA 265). Thus, the trial court added
(p. 55, Rollo):
. . . And the jump executed by the offended party from that
balcony (opening) to the ground which was correctly estimated to
be less than eight (8) meters, will perhaps occasion no injury to a
frightened individual being pursued. Common experience will tell
us that in occasion of conflagration especially occuring (sic) in
high buildings, many have been saved by jumping from some
considerable heights without being injured. How much more for a
frightened barrio girl, like the offended party to whom honor
appears to be more valuable than her life or limbs? Besides, the
exposure of her private parts when she sought assistance from
authorities, as corroborated, is enough indication that something
not ordinary happened to her unless she is mentally deranged.
Sadly, nothing was adduced to show that she was out of her
mind.
In a similar case (People v. Sambili G.R. No. L-44408, September
30, 1982, 117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is her
having been rendered entirely naked by appellant and that even
in her nudity, she had to run away from the latter and managed
to gain sanctuary in a house owned by spouses hardly known to
her. All these acts she would not have done nor would these facts
have occurred unless she was sexually assaulted in the manner
she narrated.
The accused questions also the failure of the prosecution to
present other witnesses to corroborate the allegations in the
complaint and the non-presentation of the medico-legal officer
who actually examined the victim. Suffice it to say that it is up to
the prosecution to determine who should be presented as
witnesses on the basis of its own assessment of their necessity
(Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29,
1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for
the non-presentation of the medico-legal officer who actually
examined the victim, the trial court stated that it was by
agreement of the parties that another physician testified
inasmuch as the medico-legal officer was no longer available. The
accused did not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the
first assignment of error fall flat on its face. Some were not even
substantiated and do not, therefore, merit consideration. We are
convinced that the accused is guilty of rape. However, We believe
the subject matter that really calls for discussion, is whether or
not the accused's conviction for  frustrated rape is proper. The trial
court was of the belief that there is no conclusive evidence of
penetration of the genital organ of the victim and thus convicted
the accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape.
The Solicitor General shares the same view.
Article 335 of the Revised Penal Code defines and enumerates the
elements of the crime of rape:
Art. 335. When and how rape is committed. — Rape is committed
by having carnal knowledge of a woman under any of the
following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or
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.
x x x           x x x          x x x
Carnal knowledge is defined as the act of a man in having sexual
bodily connections with a woman (Black's Law Dictionary. Fifth
Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
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.
15
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.
Correlating these two provisions, there is no debate that the
attempted and consummated stages apply to the crime of
rape.1âwphi1 Our concern now is whether or not the frustrated
stage applies to the crime of rape.
The requisites of a frustrated felony are: (1) that 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. In the leading case
of United States v.  Eduave, 36 Phil. 209, 212, Justice Moreland
set a distinction between attempted and frustrated felonies which
is readily understood even by law students:
. . . A crime cannot be held to be attempted unless the offender,
after beginning the commission of the crime by overt acts, is
prevented, against his will, by some outside cause from
performing all of the acts which should produce the crime. In
other words, to be an attempted crime the purpose of the
offender must be thwarted by a foreign force or agency which
intervenes and compels him to stop prior to the moment when he
has performed all of the acts which should produce the crime as a
consequence, which acts it is his intention to perform. If he has
performed all of the acts which should result in the consummation
of the crime and voluntarily desists from proceeding further, it can
not be an attempt. The essential element which distinguishes
attempted from frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or agency between
the beginning of the commission of the crime and the moment
when all of the acts have been performed which should result in
the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of
performing all of the acts which should produce the crime. He is
stopped short of that point by some cause apart from his
voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has
carnal knowledge of his victim he actually attains his purpose
and, from that moment also all the essential elements of the
offense have been accomplished.  Nothing more is left to be done
by the offender, because he has performed the last act necessary
otherwise to produce the crime.  Thus, the felony is consummated. In a long
line of cases (People v. Oscar, 48 Phil. 527; People v. Hernandez,
49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974,
56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21,
1974, 58 SCRA 505), We have set the uniform rule that for the
consummation of rape, perfect penetration is not essential. Any
penetration of the female organ by the male organ is sufficient.
Entry of the labia or lips of the female organ, without rupture of
the hymen or laceration of the vagina is sufficient to warrant
conviction. Necessarily, rape is attempted if there is no
penetration of the female organ (People v. Tayaba, 62 Phil. 559
People v. Rabadan et al., 53 Phil. 694; United States v. Garcia: 9
Phil. 434) because not all acts of execution was performed.  The
offender merely commenced the commission of a felony directly
by overt acts. Taking into account the nature, elements and
manner of execution of the crime of rape and jurisprudence on
the matter, it is hardly conceivable how the frustrated stage in
rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case
of People v. Eriña  50 Phil. 998 [1927] where We found the
offender guilty of frustrated rape there being no conclusive
evidence of penetration of the genital organ of the offended party.
However, it appears that this is a "stray" decision inasmuch as it
has not been reiterated in Our subsequent decisions. Likewise, We
are aware of Article 335 of the Revised Penal Code, as amended
by Republic Act No. 2632 (dated September 12, 1960) and
Republic Act No. 4111 (dated March 29, 1965) which provides, in
its penultimate paragraph, for the penalty of death when the rape
is attempted or  frustrated and a homicide is committed by reason
or on the occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead provision. The
Eriña case, supra, might have prompted the law-making body to
include the crime of frustrated rape in the amendments
introduced by said laws.
In concluding that there is no conclusive evidence of penetration
of the genital organ of the victim, the trial court relied on the
testimony of Dr. Zamora when he "categorically declared that the
findings in the vulva does not give a concrete disclosure of
penetration. As a matter of fact, he tossed back to the offended
party the answer as to whether or not there actually was
penetration." (p. 53, Rollo) Furthermore, the trial court stated (p.
57, Rollo):
. . . It cannot be insensible to the findings in the medical
certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora and
the equivocal declaration of the latter of uncertainty whether
there was penetration or not. It is true, and the Court is not
oblivious, that conviction for rape could proceed from the
uncorroborated testimony of the offended party and that a
medical certificate is not necessary (People v. Royeras People v.
Orteza, 6 SCRA 109, 113). But the citations the people relied
upon cannot be applicable to the instant case. The testimony of
the offended party is at variance with the medical certificate. As
such, a very disturbing doubt has surfaced in the mind of the
court. It should be stressed that in cases of rape where there is a
positive testimony and a medical certificate, both should in all
respect, compliment each other, for otherwise to rely on the
testimony alone in utter disregard of the manifest variance in the
medical certificate, would be productive of mischievous results.
Although the second assignment of error is meritorious, it will not
tilt the scale in favor of the accused because after a thorough
review of the records, We find the evidence sufficient to prove his
guilt beyond reasonable doubt of the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that
whenever the crime of rape is committed with the use of a deadly
weapon, the penalty shall be reclusion perpetua to death. The trial
court appreciated the aggravating circumstances of dwelling and
nighttime. Thus, the proper imposable penalty is death. In view,
however, of Article 111, Section 19(1) of the 1987 Constitution
and Our ruling in People v.  Millora, et al., G.R. Nos. L-38968-70,
February 9, 1989, that the cited Constitutional provision did not
declare the abolition of the death penalty but merely prohibits the
imposition of the death penalty, the Court has since February 2,
1987 not imposed the death penalty whenever it was called for
under the Revised Penal Code but instead reduced the same
to reclusion perpetua (People v. Solis, et al., G.R. Nos. 78732-33,
February 14, 1990). Reclusion perpetua, being a single indivisible
penalty under Article 335, paragraph 3, is imposed regardless of
any mitigating or aggravating circumstances (in relation to Article
63, paragraph 1, Revised Penal Code; see People v. Arizala, G.R.
No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano,
G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v.
Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby
MODIFIED. The accused Ceilito Orita is hereby found guilty
beyond reasonable doubt of the crime of rape and sentenced
to reclusion perpetua as well as to indemnify the victim in the
amount of P30,000.00.
SO ORDERED.

Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

The alleged variance between the testimony of the victim and the
medical certificate does not exist. On the contrary, it is stated in
the medical certificate that the vulva was erythematous (which
means marked by abnormal redness of the skin due to capillary
congestion, as in inflammation) and tender. It bears emphasis
that Dr. Zamora did not rule out penetration of the genital organ
of the victim. He merely testified that there was uncertainty
whether or not there was penetration. Anent this testimony, the
victim positively testified that there was penetration, even if only
partially (pp. 302, 304, t.s.n., May 23, 1984):

Q Was the penis inserted on your vagina?

A It entered but only a portion of it.

x x x           x x x          x x x

Q What do you mean when you said comply, or what act

do you referred (sic) to, when you said comply?

A I inserted his penis into my vagina.

Q And was it inserted?

A Yes only a little.

The fact is that in a prosecution for rape, the accused may be

convicted even on the sole basis of the victim's testimony if
credible (People v. Tabago, G.R. No. 69778, November 8, 1988,
167 SCRA 65; People v. Aragona, G.R. No. L-43752, September
19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L-37928-
29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's
testimony is merely corroborative and is not an indispensable
element in the prosecution of this case (People v. Alfonso, supra).

16
 EN BANC
G.R. No. 129433             March 30, 2000
PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita 1 finally did away with
frustrated rape 2 and allowed only attempted rape and
consummated rape to remain in our statute books. The instant
case lurks at the threshold of another emasculation of the stages
of execution of rape by considering almost every attempt at
sexual violation of a woman as consummated rape, that is, if the
contrary view were to be adopted. The danger there is that that
concept may send the wrong signal to every roaming lothario,
whenever the opportunity bares itself, to better intrude with
climactic gusto, sans any restraint, since after all any attempted
fornication would be considered consummated rape and punished
as such. A mere strafing of the citadel of passion would then be
considered a deadly  fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment
the offender had carnal knowledge of the victim since by it he
attained his objective. All the elements of the offense were
already present and nothing more was left for the offender to do,
having performed all the acts necessary to produce the crime and
accomplish it. We ruled then that perfect penetration was not
essential; any penetration of the female organ by the male organ,
however slight, was sufficient. The Court further held that entry of
the labia or lips of the female organ, even without rupture of the
hymen or laceration of the vagina, was sufficient to warrant
conviction for consummated rape. We distinguished consummated
rape from attempted rape where there was no penetration of the
female organ because not all acts of execution were performed as
the offender merely commenced the commission of a felony
directly by overt acts. 3 The inference that may be derived
therefrom is that complete or full penetration of the vagina is not
required for rape to be consummated. Any penetration, in
whatever degree, is enough to raise the crime to its consummated
stage.
But the Court in Orita clarified the concept of penetration in rape
by requiring entry into the labia or lips of the female organ, even
if there be no rupture of the hymen or laceration of the vagina, to
warrant a conviction for consummated rape. While the entry of
the penis into the lips of the female organ was considered
synonymous with mere touching of the external genitalia, e.g.,
labia majora, labia minora, etc., 4 the crucial doctrinal bottom line
is that touching must be inextricably viewed in light of, in relation
to, or as an essential part of, the process of penile penetration,
and not just mere touching in the ordinary sense. In other words,
the touching must be tacked to the penetration itself. The
importance of the requirement of penetration, however slight,
cannot be gainsaid because where entry into the labia or the lips
of the female genitalia has not been established, the crime
committed amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining
whether rape has been committed either in its attempted or in its
consummated stage; otherwise, no substantial distinction would
exist between the two, despite the fact that penalty-wise, this
distinction, threadbare as it may seem, irrevocably spells the
difference between life and death for the accused — a reclusive
life that is not even  perpetua but only temporal on one hand, and
the ultimate extermination of life on the other. And, arguing on
another level, if the case at bar cannot be deemed attempted but
consummated rape, what then would constitute attempted rape?
Must our field of choice be thus limited only to consummated rape
17
and acts of lasciviousness since attempted rape would no longer
be possible in light of the view of those who disagree with
this  ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of
statutory rape and sentenced by the court a quo to the extreme
penalty of death, 5 hence this case before us on automatic review
under Art. 335 of the Revised Penal Code as amended by RA
7659. 6
As may be culled from the evidence on record, on 25 April 1996,
at around 4 o'clock in the afternoon, Ma. Corazon P. Pamintuan,
mother of four (4)-year old Crysthel Pamintuan, went down from
the second floor of their house to prepare Milo chocolate drinks for
her two (2) children. At the ground floor she met Primo
Campuhan who was then busy filling small plastic bags with water
to be frozen into ice in the freezer located at the second floor.
Primo was a helper of Conrado Plata Jr., brother of Corazon. As
Corazon was busy preparing the drinks, she heard one of her
daughters cry, "Ayo'ko, ayo'ko!" 7 prompting Corazon to rush
upstairs. Thereupon, she saw Primo Campuhan inside her
children's room kneeling before Crysthel whose pajamas or
"jogging pants" and panty were already removed, while his short
pants were down to his knees.
According to Corazon, Primo was forcing his penis into Crysthel's
vagina. Horrified, she cursed the accused, "P - t - ng ina mo, anak
ko iyan!" and boxed him several times. He evaded her blows and
pulled up his pants. He pushed Corazon aside when she tried to
block his path. Corazon then ran out and shouted for help thus
prompting her brother, a cousin and an uncle who were living
within their compound, to chase the accused. 8 Seconds later,
Primo was apprehended by those who answered Corazon's call for
help. They held the accused at the back of their compound until
they were advised by their neighbors to call the barangay officials
instead of detaining him for his misdeed. Physical examination of
the victim yielded negative results. No evident sign of extra-
genital physical injury was noted by the medico-legal officer on
Crysthel's body as her hymen was intact and its orifice was only
0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He
maintained his innocence and assailed the charge as a mere
scheme of Crysthel's mother who allegedly harbored ill will
against him for his refusal to run an errand for her. 9 He asserted
that in truth Crysthel was in a playing mood and wanted to ride
on his back when she suddenly pulled him down causing both of
them to fall down on the floor. It was in this fallen position that
Corazon chanced upon them and became hysterical. Corazon
slapped him and accused him of raping her child. He got mad but
restrained himself from hitting back when he realized she was a
woman. Corazon called for help from her brothers to stop him as
he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help
and accosted Primo. Vicente punched him and threatened to kill
him. Upon hearing the threat, Primo immediately ran towards the
house of Conrado Plata but Vicente followed him there. Primo
pleaded for a chance to explain as he reasoned out that the
accusation was not true. But Vicente kicked him instead. When
Primo saw Vicente holding a piece of lead pipe, Primo raised his
hands and turned his back to avoid the blow. At this moment, the
relatives and neighbors of Vicente prevailed upon him to take
Primo to the barangay hall instead, and not to maul or possibly
kill him.
Although Primo Campuhan insisted on his innocence, the trial
court on 27 May 1997 found him guilty of statutory rape,
sentenced him to the extreme penalty of death, and ordered him
to pay his victim P50,000.00 for moral damages, P25,000.00 for
exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of
Ma. Corazon Pamintuan. He argues that her narration should not
be given any weight or credence since it was punctured with
implausible statements and improbabilities so inconsistent with
human nature and experience. He claims that it was truly
inconceivable for him to commit the rape considering that
Crysthel's younger sister was also in the room playing while
Corazon was just downstairs preparing Milo drinks for her
daughters. Their presence alone as possible eyewitnesses and the
fact that the episode happened within the family compound where
a call for assistance could easily be heard and responded to,
would have been enough to deter him from committing the crime.
Besides, the door of the room was wide open for anybody to see
what could be taking place inside. Primo insists that it was almost
inconceivable that Corazon could give such a vivid description of
the alleged sexual contact when from where she stood she could
not have possibly seen the alleged touching of the sexual organs
of the accused and his victim. He asserts that the absence of any
external signs of physical injuries or of penetration of Crysthel's
private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on
the testimony of Corazon that she saw Primo with his short pants
down to his knees kneeling before Crysthel whose pajamas and
panty were supposedly "already removed" and that Primo was
"forcing his penis into Crysthel's vagina." The gravamen of the
offense of statutory rape is carnal knowledge of a woman below
twelve (12), as provided in Art. 335, par. (3), of the Revised
Penal Code. Crysthel was only four (4) years old when sexually
molested, thus raising the penalty, from reclusion perpetua to
death, to the single indivisible penalty of death under RA 7659,
Sec. 11, the offended party being below seven (7) years old. We
have said often enough that in concluding that carnal knowledge
took place, full penetration of the vaginal orifice is not an
essential ingredient, nor is the rupture of the hymen necessary;
the mere touching of the external genitalia by the penis capable
of consummating the sexual act is sufficient to constitute carnal
knowledge. 10 But the act of touching should be understood here
as inherently part of the entry of the penis into the labias of the
female organ and not mere touching alone of the  mons pubis  or
the  pudendum.
In People v. De la Peña 11 we clarified that the decisions finding a
case for rape even if the attacker's penis merely touched the
external portions of the female genitalia were made in the context
of the presence or existence of an erect penis capable of full
penetration. Where the accused failed to achieve an erection, had
a limp or flaccid penis, or an oversized penis which could not fit
into the victim's vagina, the Court nonetheless held that rape was
consummated on the basis of the victim's testimony that the
accused repeatedly tried, but in vain, to insert his penis into her
vagina and in all likelihood reached the labia of her pudendum as
the victim felt his organ on the lips of her vulva, 12 or that the
penis of the accused touched the middle part of her
vagina. 13 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. 14 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 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
18
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. 15 Jurisprudence dictates that the labia majora must be
entered for rape to be consummated, 16 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.
Judicial depiction of consummated rape has not been confined to
the oft-quoted "touching of the female organ," 17 but has also
progressed into being described as "the introduction of the male
organ into the labia of the pudendum," 18 or "the bombardment of
the drawbridge." 19 But, to our mild, the case at bar merely
constitutes a "shelling of the castle of orgasmic potency," or as
earlier stated, a "strafing of the citadel of passion.
A review of the records clearly discloses that the prosecution
utterly failed to discharge its onus of proving that Primo's penis
was able to penetrate Crysthel's vagina however slight. Even if we
grant arguendo that Corazon witnessed Primo in the act of
sexually molesting her daughter, we seriously doubt the veracity
of her claim that she saw the inter-genital contact between Primo
and Crysthel. When asked what she saw upon entering her
children's room Corazon plunged into saying that she saw Primo
poking his penis on the vagina of Crysthel without explaining her
relative position to them as to enable her to see clearly and
sufficiently, in automotive lingo, the contact point. It should be
recalled that when Corazon chanced upon Primo and Crysthel, the
former was allegedly in a kneeling position, which Corazon
described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the
chest of the accused is pinning down the victim, while
his right hand is holding his penis and his left hand is
spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that
Primo's kneeling position rendered an unbridled observation
impossible. Not even a vantage point from the side of the accused
and the victim would have provided Corazon an unobstructed view
of Primo's penis supposedly reaching Crysthel's external
genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc.,
since the legs and arms of Primo would have hidden his
movements from Corazon's sight, not to discount the fact that
Primo's right hand was allegedly holding his penis thereby
blocking it from Corazon's view. It is the burden of the
prosecution to establish how Corazon could have seen the sexual
contact and to shove her account into the permissive sphere of
credibility. It is not enough that she claims that she saw what was
done to her daughter. It is required that her claim be properly
demonstrated to inspire belief. The prosecution failed in this
respect, thus we cannot conclude without any taint of serious
doubt that inter-genital contact was at all achieved. To hold
otherwise would be to resolve the doubt in favor of the
prosecution but to run roughshod over the constitutional right of
the accused to be presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing
his wicked intention despite her timely appearance, thus giving
her the opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with man's instinct of
self-preservation to remain where he is and persist in satisfying
his lust even when he knows fully well that his dastardly acts have
already been discovered or witnessed by no less than the mother
of his victim. For, the normal behavior or reaction of Primo upon
learning of Corazon's presence would have been to pull his pants
up to avoid being caught literally with his pants down. The
interval, although relatively short, provided more than enough
opportunity for Primo not only to desist from but even to conceal
his evil design.
What appears to be the basis of the conviction of the accused was
Crysthel's answer to the question of the court —
Q: Did the penis of Primo touch your organ?
Villena explained, although the absence of complete penetration
of the hymen does not negate the possibility of contact, she
clarified that there was no medical basis to hold that there was
sexual contact between the accused and the victim. 27
In cases of rape where there is a positive testimony and a medical
certificate, both should in all respects complement each other;
otherwise, to rely on the testimonial evidence alone, in utter
disregard of the manifest variance in the medical certificate,
would be productive of unwarranted or even mischievous results.
It is necessary to carefully ascertain whether the penis of the
accused in reality entered the labial threshold of the female organ
to accurately conclude that rape was consummated. Failing in
this, the thin line that separates attempted rape from
consummated rape will significantly disappear.

Under Art. 6, in relation to Art. 335, of the Revised Penal Code,

A: Yes, sir.
rape is attempted when the offender commences the commission
of rape directly by overt acts, and does not perform all the acts of
But when asked further whether his penis penetrated her organ, execution which should produce the crime of rape by reason of
she readily said, "No." Thus — some cause or accident other than his own spontaneous
desistance. All the elements of attempted rape — and only of
attempted rape — are present in the instant case, hence, the
Q: But did his penis penetrate your organ? accused should be punished only for it.

A: No, sir. 20
This testimony alone should dissipate the mist of confusion that
enshrouds the question of whether rape in this case was
consummated. It has foreclosed the possibility of Primo's penis
penetrating her vagina, however slight. Crysthel made a
categorical statement denying penetration, 27 obviously induced by
a question propounded to her who could not have been aware of
the finer distinctions between touching and penetration.
Consequently, it is improper and unfair to attach to this reply of a
four (4)-year old child, whose vocabulary is yet as
underdeveloped as her sex and whose language is bereft of
worldly sophistication, an adult interpretation that because the
penis of the accused touched her organ there was sexual entry.
Nor can it be deduced that in trying to penetrate the victim's
organ the penis of the accused touched the middle portion of her
vagina and entered the labia of her pudendum as the prosecution
failed to establish sufficiently that Primo made efforts to penetrate
Crysthel. 22 Corazon did not say, nay, not even hint that Primo's
penis was erect or that he responded with an erection. 23 On the
contrary, Corazon even narrated that Primo had to hold his penis
with his right hand, thus showing that he had yet to attain an
erection to be able to penetrate his victim.
The penalty for attempted rape is two (2) degrees lower than the
imposable penalty of death for the offense charged, which is
statutory rape of a minor below seven (7) years. Two (2) degrees
lower is reclusion temporal, the range of which is twelve (12)
years and one (1) day to twenty (20) years. Applying the
Indeterminate Sentence Law, and in the absence of any
mitigating or aggravating circumstance, the maximum of the
penalty to be imposed upon the accused shall be taken from the
medium period of reclusion temporal, the range of which is
fourteen (14) years, eight (8) months and (1) day to seventeen
(17) years and four (4) months, while the minimum shall be taken
from the penalty next lower in degree, which is  prision mayor, the
range of which is from six (6) years and one (1) day to twelve
(12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding accused
PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and
sentencing him to death and to pay damages is MODIFIED. He is
instead found guilty of ATTEMPTED RAPE and sentenced to an
indeterminate prison term of eight (8) years four (4) months and
ten (10) days of  prision mayor medium as minimum, to fourteen
(14) years ten (10) months and twenty (20) days of reclusion
temporal medium as maximum. Costs de oficio.

Antithetically, the possibility of Primo's penis having breached SO ORDERED.

Crysthel's vagina is belied by the child's own assertion that she
resisted Primo's advances by putting her legs close
together; 24 consequently, she did not feel any intense pain but
just felt "not happy" about what Primo did to her. 25 Thus, she
only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases
where penetration was not fully established, the Court had
anchored its conclusion that rape nevertheless was consummated
on the victim's testimony that she felt pain, or the medico-legal
finding of discoloration in the inner lips of the vagina, or the labia
minora was already gaping with redness, or the hymenal tags
were no longer visible. 26 None was shown in this case. Although a
child's testimony must be received with due consideration on
account of her tender age, the Court endeavors at the same time
to harness only what in her story appears to be true, acutely
aware of the equally guaranteed rights of the accused. Thus, we
have to conclude that even on the basis of the testimony of
Crysthel alone the accused cannot be held liable for consummated
rape; worse, be sentenced to death.1âwphi1

Lastly, it is pertinent to mention the medico legal officer's finding

in this case that there were no external signs of physical injuries
on complaining witness' body to conclude from a medical
perspective that penetration had taken place. As Dr. Aurea P.

19
 Republic of the Philippines box, which was also opened with a key, from which in turn he
SUPREME COURT took a purse containing 461 reales and 20 centimos, and then
Manila placed the money over the cover of the case; just at this moment
EN BANC he was caught by two guards who were stationed in another room
G.R. No. L-13785             October 8, 1918 near-by. The court considered this as consummated robbery, and
THE UNITED STATES, plaintiff-appellee, said: " . . . The accused . . . having materially taken possession of
vs. the money from the moment he took it from the place where it
TOMAS ADIAO, defendant-appellant. had been, and having taken it with his hands with intent to
Victoriano Yamzon for appellant. appropriate the same, he executed all the acts necessary to
Attorney-General Paredes for appellee. 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.)
MALCOLM, J.:

There exists the aggravating circumstance that advantage was

The defendant was charged in the Municipal Court of the city of taken by the offender of his public position. Wherefore, in view of
Manila with the crime of theft. He was found guilty of the lesser the provisions of articles 517 and 518, No. 5, of the Penal Code,
crime of frustrated theft. He appealed to the Court of First and there being present one aggravating circumstance
Instance of the city of Manila and again he was found guilty of the compensated by no mitigating circumstances, the penalty must be
crime of frustrated theft, and was sentenced to pay a fine of imposed in the maximum degree.1awph!l.net
P100, with subsidiary imprisonment in case of insolvency, and to
pay the costs.
Judgment is reversed and the defendant and appellant is
sentenced to three months and one day of arresto mayor, with
The sole error assigned on appeal is that the lower court erred in the costs of all instances against him. The merchandise in
holding that the defendant was guilty of the crime of theft as dis question, attached to the record as Exhibit A, shall be returned to
closed by the facts appearing of record. We have examined the the lawful owner, T. Murakami. So ordered.
evidence carefully and from our study are unable to say that the
proof is contrary to the findings of the lower court. Stated in one
sentence, the defendant, Tomas Adiao, a customs inspector, Torres, Johnson, Street, Avanceña and Fisher, JJ., concur.
abstracted a leather belt valued at P0.80, from the baggage of a
Japanese named T. Murakami, and secreted the belt in his desk in
the Custom House, where it was found by other customs
employees.

Based on these facts, the Court is of the opinion that the crime
can not properly be classified as frustrated, as this word is defined
in article 3 of the Penal Code, but that since the offender
performed all of the acts of execution necessary for the
accomplishment crime of theft. The fact that the defendant was
under observation during the entire transaction and that he was
unable to get the merchandise out of the Custom House, is not
decisive; all the elements of the completed crime of theft are
present. The following decisions of the supreme court of Spain are
in point:

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: ". . . The
trial court did not err . . . 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
20
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G. R. No. 160188              June 21, 2007
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF
APPEALS NACHURA, respondents.
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 decisions 1 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
21
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.
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. Diño 27 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
22
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 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 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.
23
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 Code52 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.
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:

In 1929, the Court was again confronted by a claim that an

This court is of the opinion that in the case at bar, in order to
accused was guilty only of frustrated rather than consummated
make the booty subject to the control and disposal of the culprits,
theft. The case is People v. Sobrevilla,57 where the accused, while
the articles stolen must first be passed through the M.P. check
in the midst of a crowd in a public market, was already able to
point, but since the offense was opportunely discovered and the
abstract a pocketbook from the trousers of the victim when the
articles seized after all the acts of execution had been performed,
latter, perceiving the theft, "caught hold of the [accused]’s shirt-
but before the loot came under the final control and disposal of
front, at the same time shouting for a policeman; after a struggle,
the looters, the offense can not be said to have been fully
he recovered his pocket-book and let go of the defendant, who
consummated, as it was frustrated by the timely intervention of
was afterwards caught by a policeman." 58 In rejecting the
the guard. The offense committed, therefore, is that of frustrated
contention that only frustrated theft was established, the Court
theft.63
simply said, without further comment or elaboration:

Diño thus laid down the theory that the ability of the actor to
We believe that such a contention is groundless. The [accused]
freely dispose of the items stolen at the time of apprehension is
succeeded in taking the pocket-book, and that determines the
determinative as to whether the theft is consummated or
crime of theft. If the pocket-book was afterwards recovered, such
frustrated. This theory was applied again by the Court of Appeals
recovery does not affect the [accused’s] criminal liability, which
some 15 years later, in Flores, a case which according to the
arose from the [accused] having succeeded in taking the pocket-
division of the court that decided it, bore "no substantial variance
book.59
between the circumstances [herein] and in [Diño]." 64 Such
conclusion is borne out by the facts in Flores. The accused
If anything, Sobrevilla is consistent with Adiao and the Spanish therein, a checker employed by the Luzon Stevedoring Company,
Supreme Court cases cited in the latter, in that the fact that the issued a delivery receipt for one empty sea van to the truck driver
offender was able to succeed in obtaining physical possession of who had loaded the purportedly empty sea van onto his truck at
the stolen item, no matter how momentary, was able to the terminal of the stevedoring company. The truck driver
consummate the theft. 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
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited
actually contained other merchandise as well. 65 The accused was
therein contradict the position of petitioner in this case. Yet to
prosecuted for theft qualified by abuse of confidence, and found
simply affirm without further comment would be disingenuous, as
himself convicted of the consummated crime. Before the Court of
there is another school of thought on when theft is consummated,
Appeals, accused argued in the alternative that he was guilty only
as reflected in the Diño and Flores decisions.
of attempted theft, but the appellate court pointed out that there
was no intervening act of spontaneous desistance on the part of
Diño was decided by the Court of Appeals in 1949, some 31 years the accused that "literally frustrated the theft." However, the
after Adiao and 15 years before Flores. The accused therein, a Court of Appeals, explicitly relying on Diño, did find that the
driver employed by the United States Army, had driven his truck accused was guilty only of frustrated, and not consummated,
into the port area of the South Harbor, to unload a truckload of theft.
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

24
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.
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
25
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.
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.
26
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 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 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
27
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 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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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
28
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.
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 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.

Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.

29
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
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 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
30
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."
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).
31
"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 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.
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.
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.

The facts of this case differ from those in People vs. Astor, et al. It follows then that as the detention in this case was not merely
(G.R. Nos. L-71765-66, 29 April 1987, 149 SCRA 325) where the incidental to the robbery but a necessary means employed to
accused were convicted of Robbery but acquitted in the case for facilitate it, the penalty imposed by the Trial Court is proper.
Serious Illegal Detention and where it was held that "the
detention is absorbed in the crime of robbery." For one, in Astor,
WHEREFORE, the judgment appealed from is hereby AFFIRMED.
there were two (2) separate Informations filed, one for Robbery
Proportionate costs.
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 SO ORDERED.
and the detention was merely to forestall the capture of the
robbers by the police. Not so in this case, where the detention
Paras, Padilla Sarmiento and Regalado JJ., concur.
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.

32
 Republic of the Philippines suitable for accomplishment. The crime should, therefore, be
SUPREME COURT qualified as murder because of the presence of the circumstance
Manila of treachery.

EN BANC The only debatable question, not referred to in the briefs, but
which must be decided in order to dispose of the appeal, is: Do
the facts constitute frustrated murder or attempted murder within
G.R. No. 33463             December 18, 1930
the meaning of article 3 of the Penal Code? Although no exact
counterpart to the facts at bar has been found either in Spanish or
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, Philippine jurisprudence, a majority of the court answer the
vs. question propounded by stating that the crime committed was
BASILIO BORINAGA, defendant-appellant. that of frustrated murder. This is true notwithstanding the
admitted fact that Mooney was not injured in the least.
Paulo Jaro for appellant.
Attorney-General Jaranilla for appellee. The essential condition of a frustrated crime, that the author
perform all the acts of execution, attended the attack. Nothing
remained to be done to accomplish the work of the assailant
MALCOM, J.: completely. The cause resulting in the failure of the attack arose
by reason of forces independent of the will of the perpetrator. The
Sometime prior to March 4, 1929, an American by the name of assailant voluntarily desisted from further acts. What is known as
Harry H. Mooney, a resident of the municipality of Calubian, the subjective phase of the criminal act was passed. (U. S. vs.
Leyte, contracted with one Juan Lawaan for the construction of a Eduave [1917], 36 Phil., 209; People vs. Mabugat [1926], 51
fish corral. Basilio Borinaga was associated with Lawaan in the Phil., 967.)
construction of the corral. On the morning of March 4, 1929,
Lawaan, with some of his men, went to Mooney's shop and tried No superfine distinctions need be drawn in favor of that accused
to collect from him the whole amount fixed by the contract, to establish a lesser crime than that of frustrated murder, for the
notwithstanding that only about two-thirds of the fish corral had facts disclose a wanton disregard of the sanctity of human life
been finished. As was to be expected, Mooney refused to pay the fully meriting the penalty imposed in the trial court.
price agreed upon at that time. On hearing this reply of Mooney,
Lawaan warned him that if he did not pay, something would
happen to him, to which Mooney answered that if they wanted to Based on foregoing considerations, the judgment appealed from
do something to him they should wait until after breakfast, will be affirmed, with the costs of this instance against the
Lawaan then left with his men, and Mooney, after partaking of his appellant.
morning meal, returned to his shop.
Avanceña, C.J., Villamor, Ostrand, Johns and Romualdez, JJ.,
On the evening of the same day, Mooney was in the store of a concur.
neighbor by the name of Perpetua Najarro. He had taken a seat
on a chair in front of the Perpetua, his back being to the window.
 
Mooney had not been there long when Perpetua saw Basilio
Borinaga from the window strike with a knife at Mooney, but
fortunately for the latter, the knife lodged in the back of the chair
on which Mooney was seated. Mooney fell from the chair as a
result of the force of the blow, but was not injured. Borinaga ran
away towards the market place. Before this occurred, it should be
stated that Borinaga had been heard to tell a companion: "I will
stab this Mooney, who is an American brute." After the attack,
Borinaga was also heard to say that he did not hit the back of
Mooney but only the back of the chair. But Borinaga was
persistent in his endeavor, and hardly ten minutes after the first
attack, he returned, knife in hand, to renew it, but was unable to
do so because Mooney and Perpetua were then on their guard and
turned a flashlight on Borinaga, frightening him away. Again the
same night, Borinaga was overheard stating that he had missed
his mark and was unable to give another blow because of the
flashlight. The point of the knife was subsequently, on
examination of the chair, found embedded in it.

The foregoing occurrences gave rise to the prosecution of Basilio

Borinaga in the Court of First Instance of Leyte for the crime of
frustrated murder. The defense was alibi, which was not given
credence. The accused was convicted as charged, by Judge Ortiz,
who sentenced him to fourteen years, eight months, and one day
of imprisonment, reclusion temporal, with the accessory penalties
and the costs.

The homicidal intent of the accused was plainly evidenced. The

attendant circumstances conclusively establish that murder was in
the heart and mind of the accused. More than mere menaces took
place. The aggressor stated his purpose, which was to kill, and
apologized to his friends for not accomplishing that purpose. A
deadly weapon was used. The blow was directed treacherously
toward vital organs of the victim. The means used were entirely
33
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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, 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
34
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.
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.
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.
Paras, C.J., Pablo, Bengzon, Reyes, Jugo, Bautista Angelo, and
Concepcion, JJ., concur.

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

35
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 79123-25 January 9, 1989
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EMELIANO TRINIDAD, accused-appellant.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellant.
MELENCIO-HERRERA, J.:
On the sole issue that the adduced evidence is insufficient to
prove his guilt beyond reasonable doubt of two crimes of Murder
and one of Frustrated Murder with which he has been charged,
accused Emeliano Trinidad appeals from the judgment of the
Regional Trial Court, Branch 7, Bayugan, Agusan del Sur.
From the testimony of the principal witness, Ricardo TAN, the
prosecution presents the following factual version:
The deceased victim, Lolito Soriano, was a fish dealer based in
Davao City. His helpers were TAN, a driver, and the other
deceased victim Marcial LAROA. On 19 January 1983, using a Ford
Fiera, they arrived at Butuan City to sell fish. In the morning of 20
January 1983 SORIANO drove the Fiera to Buenavista, Agusan del
Norte, together with LAROA and a helper of one Samuel
Comendador. TAN was left behind in Butuan City to dispose of the
fish left at the Langihan market. He followed SORIANO and
LAROA, however, to Buenavista later in the morning.
While at Buenavista, accused Emeliano TRINIDAD, a member of
the Integrated National Police, assigned at Nasipit Police Station,
and residing at Baan, Butuan City, asked for a ride to Bayugan,
Agusan del Sur, which is on the way to Davao City. TRINIDAD was
in uniform and had two firearms, a carbine, and the other, a side-
arm .38 caliber revolver. SORIANO, LAROA, TAN, and TRINIDAD
then left Butuan on 20 January 1983 at about 5:20 P.M. bound for
Davao City. TAN was driving the Fiera. Seated to his right was
SORIANO, LAROA and the accused TRINIDAD, in that order. When
they reached the stretch between El Rio and Afga, TRINIDAD
advised them to drive slowly because, according to him, the place
was dangerous. All of a sudden, TAN heard two gunshots.
SORIANO and LAROA slumped dead. TAN did not actually see the
shooting of LAROA but he witnessed the shooting of SORIANO
having been alerted by the sound of the first gunfire. Both were
hit on the head. TRINIDAD had used his carbine in killing the two
victims.
TAN then hurriedly got off the Fiera, ran towards the direction of
Butuan City and hid himself in the bushes. The Fiera was still
running slowly then but after about seven (7) to ten (10) meters
it came to a halt after hitting the muddy side of the road. TAN
heard a shot emanating from the Fiera while he was hiding in the
bushes.
After about twenty (20) to thirty (30) minutes, when a passenger
jeep passed by, TAN hailed it and rode on the front seat. After a
short interval of time, he noticed that TRINIDAD was seated at
the back. Apparently noticing TAN as well, TRINIDAD ordered him
to get out and to approach him (TRINIDAD) but, instead, TAN
moved backward and ran around the jeep followed by TRINIDAD.
When the jeep started to drive away, TAN clung to its side.
TRINIDAD fired two shots, one of which hit TAN on his right thigh.
As another passenger jeep passed by, TAN jumped from the first
jeep and ran to the second. However, the passengers in the latter
jeep told him to get out not wanting to get involved in the affray.
Pushed out, TAN crawled until a member of the P.C. chanced upon
him and helped him board a bus for Butuan City.
36
TRINIDAD's defense revolved around denial and alibi. He
contended that he was in Cagayan de Oro City on the date of the
incident, 20 January 1983. At that time, he was assigned as a
policeman at Nasipit Police Station, Agusan del Norte. He reported
to his post on 19 January 1983 but asked permission from his
Station Commander to be relieved from work the next day, 20
January, as it was his birthday. He left Baan, his Butuan City
residence, at about 3:00 P.M. on 20 January 1983 and took a bus
bound for Cagayan de Oro City. He arrived at Cagayan de Oro at
around 8:00 P.M. and proceeded to his sister's house at Camp
Alagar to get his subsistence allowance, as his sister was working
thereat in the Finance Section.
At his sister's house he saw Sgt. Caalim, Mrs. Andoy, one Paelmo,
in addition to his sister. Sgt. Caalim corroborated having seen
TRINIDAD then.
Continuing, TRINIDAD claimed that he left Cagayan de Oro for
Butuan at lunch time on 21 January 1983 arriving at the latter
place around 6:00 P.M., and went to his house directly to get his
service carbine. He was on his way to Nasipit to report for duty on
21 January 1983 when he was arrested at around 6:00 P.M. at
Buenavista, Agusan del Norte.
After joint trial on the merits and unimpressed by the defense by
the Trial Court** sentenced the accused in an "Omnibus
Decision", thus:
WHEREFORE PREMISES CONSIDERED, this Court finds Emeliano
Trinidad GUILTY beyond reasonable doubt of the crimes of Murder
and Frustrated Murder.
In the Frustrated Murder, there being no mitigating circumstance,
and taking into account the provisions of the Indeterminate
Sentence Law, accused Trinidad is meted out a penalty of:
1) 8 years and 1 day to 12 years of prision mayor medium;
2) to indemnify the complainant the amount of P 5,000.00; and
3) to pay the costs.
Likewise, in the two murder cases, Trinidad is accordingly
sentenced:
1) to a penalty of Reclusion Perpetua in each case;
2) to indemnify the heirs of Marcial Laroa and Lolito Soriano the
amount of P30,000.00 each; and
3) to pay the cost. (p. 14, RTC Decision, p. 28, Rollo).
Before us now, TRINIDAD claims that the Trial Court erred in
giving full faith and credit to TAN's testimony who, TRINIDAD
alleges, was an unreliable witness. That is not so.
We find no variance in the statement made by TAN before the
NAPOLCOM Hearing Officer that when TRINIDAD boarded the
Fiera in Buenavista, he (TAN) was not in the vehicle, and that
made in open Court when he said that he was with TRINIDAD
going to Butuan City on board the Fiera. For the facts disclose
that when TRINIDAD boarded the Fiera in Buenavista, TAN was
still in Langihan distributing fish. The Fiera left for Buenavista,
driven by SORIANO between 6:00 to 7:00 A.M., while TAN
followed only at 11:00, A.M. in another vehicle. So that when
TRINIDAD boarded the Fiera in Buenavista, TAN was not yet in
that vehicle although on the return trip from Butuan City to Davao
City, TAN was already on board. In fact, TAN was the one driving.
TAN's testimony clarifying this point reads:
Q Did you not say in your direct examination that you went to
Buenavista, Agusan del Norte?
A We were in Langihan and since our fishes were not consumed
there, we went to Buenavista.
Q Now, what time did you leave for Buenavista from Langihan?
A It was more or less at 6:00 to 7:00 o'clock.
Q You were riding the fish car which you said?
A I was not able to take the fish car in going to Buenavista
because they left me fishes to be dispatched yet.
Q In other words, you did not go to Buenavista on January 20,
1983?
A I was able to go to Buenavista after the fishes were consumed.
Q What time did you go to Buenavista?
A It was more or less from 11:00 o'clock noon.
Q What transportation did you take?
A I just took a ride with another fish car because they were also
going to dispatch fishes in Buenavista.
Q Now, who then went to Buenavista with the fish car at about
7:00 o'clock in the morning of January 20, 1983?
A Lolito Soriano and Marcia Laroa with his helper.
xxxxxx
Q Now, when this fish car returned to Butuan City who drove it?
A Lolito Soriano.
Q Were you with the fish car in going back to Langihan?
A Yes, sir. (T.S.N., December 6, 1985, pp. 53-54).
Felimon Comendador, also a fish vendor, and a resident of Butuan
City, testified that he saw TRINIDAD riding in the Fiera on the
front seat in the company of TAN, SORIANO and LAROA, when the
Fiera stopped by his house at Butuan City (TSN, November 5,
1985, pp. 32-33).
The other inconsistencies TRINIDAD makes much of, such as, that
TAN was unsure before the NAPOLCOM Hearing Officer whether
TRINIDAD was wearing khaki or fatigue uniform but, in open
Court, he testified positively that TRINIDAD was in khaki uniform;
and that while TAN declared that TRINIDAD was wearing a cap,
prosecution witness Felimon Comendador said that he was not but
was in complete fatigue uniform, are actually trivial details that do
not affect the positive identification of TRINIDAD that TAN has
made nor detract from the latter's overall credibility.
Nor is there basis for TRINIDAD to contend that the absence of
gunpowder burns on the deceased victims negates TAN's claim
that they were shot "point-blank." Actually, this term refers
merely to the "aim directed straight toward a target" (Webster's
Third New International Dictionary) and has no reference to the
distance between the gun and the target. And in point of fact, it
matters not how far the assailant was at the time he shot the
victims, the crucial factor being whether he did shoot the victim or
not.
TRINIDAD's defense of alibi is inherently weak and cannot prevail
over the straightforward and detailed descriptive narration of TAN,
thus:
Q Now, from Butuan City, where did you proceed?
A We proceeded to Davao.
Q Did you in fact reach Davao on that date?
A No, sir.
Q Could you tell the Court why you failed to reach Davao?
A Because we were held-up.
Q Who held-up you?
A Emeliano Trinidad, sir.
Q Are you referring to accused Emeliano Trinidad whom you
pointed to the court awhile ago?
37
A Yes, sir.
Q Will you tell the Court how did Emeliano Trinidad holdup you?
A When we reach between El Rio and Afga, Trinidad advised us to
run slowly because this place is dangerous. Then suddenly there
were two gun bursts.
Q Now, you heard two gun bursts. What happened? What did you
see if there was any?
A I have found out that Lolito Soriano and Marcial Laroa already
fall.
Q Fall dead?
A They were dead because they were hit at the head.
Q You mean to inform the Court that these two died because of
that gun shot bursts?
A Yes, sir.
Q Did you actually see Trinidad shooting the two?
A I did not see that it was really Trinidad who shot Laroa but since
I was already alerted by the first burst, I have seen that it was
Trinidad who shot Soriano.
Q What was the firearm used?
A Carbine, sir.
xxxxxx
Q Now, after you saw that the two fell dead, what did you do?
A I got out from the Ford Fiera while it was running.
xxxxxx
Q From the place where you were because you said you ran, what
transpired next?
A I hid myself at the side of the jeep, at the bushes.
Q While hiding yourself at the bushes, what transpired?
A I heard one gun burst.
Q From what direction was that gun bursts you heard?
A From the Ford Fiera, sir.
Q After that, what happened?
A At around 20 to 30 minutes, I moved out from the place where
I hid myself because I wanted to go back to Butuan, Then, I
boarded the jeep and sat at the front seat but I found out that
Emeliano Trinidad was at the back seat.
Q When you found out that Trinidad was at the back, what
happened?
A He ordered me to get out.
Q Now, when you got down, what happened?
A When I got out from the jeep, Trinidad also got out.
Q Tell the Court, what happened after you and Trinidad got out
from the jeep?
A He called me because he wanted me to get near him.
Q What did you do?
A I moved backward.
'Q Now, what did Trinidad do?
A He followed me.
Q While Trinidad followed you, what happened?
A I ran away around the jeep.
Q Now, while you were running around the jeep, what happened?
A The driver drove the jeep.
Q Now, after that, what did you do?
A I ran after the jeep and then I was able to take the jeep at the
side of it.
Q How about Trinidad, where was he at that time?
A He also ran, sir.
Q Now, when Trinidad ran after you what happened?
A Trinidad was able to catchup with the jeep and fired his gun.
Q Were you hit?
A At that time I did not know that I was hit because it was
sudden.
Q When for the first time did you notice that you were hit?
A At the second jeep.
Q You mean to inform the Court that the jeep you first rode is not
the very same jeep that you took for the second time?
A No, sir.
Q Now, when you have notice that you were hit, what did you do?
A At the first jeep that I took I was hit, so I got out from it and
stood-up at the middle of the road so that I can catch up the
other jeep.' (TSN, December 6, 1985, pp. 44-49)
TAN's testimony remained unshaken even during cross-
examination. No ill motive has been attributed to him to
prevaricate the truth. He was in the vehicle where the killing
transpired was a witness to the actual happening, and was a
victim himself who managed narrowly to escape death despite the
weaponry with which TRINIDAD was equipped.

The defense is correct, however, in contending that in the

Frustrated Murder case, TRINIDAD can only be convicted of
Attempted Murder. TRINIDAD had commenced the commission of
the felony directly by overt acts but was unable to perform all the
acts of execution which would have produced it by reason of
causes other than his spontaneous desistance, such as, that the
jeep to which TAN was clinging was in motion, and there was a
spare tire which shielded the other parts of his body. Moreover,
the wound on his thigh was not fatal and the doctrinal rule is that
where the wound inflicted on the victim is not sufficient to cause
his death, the crime is only Attempted Murder, the accused not
having performed all the acts of execution that would have
brought about death (People vs. Phones, L-32754-5, July 21,
1978, 84 SCRA 167; People vs. Garcia, L-40106, March 13, 1980,
96 SCRA 497).

But while the circumstances do spell out the two crimes of

Murder, the penalty will have to be modified. For, with the
abolition of capital punishment in the 1987 Constitution, the
penalty for Murder is now reclusion temporal in its maximum
period to reclusion perpetua  (People vs. Lopez, et al. G.R. No.
71876-76, January 25, 1988 citing People vs. Gavarra, No. L-
37673, October 30, 1987; People vs. Masangkay, G.R. No. 73461,
October 27, 1987). With no attending mitigating or aggravating
circumstance, said penalty is imposable in its medium period or
from eighteen (18) years, eight (8) months and one (1) day to
twenty (20) years. The penalty next lower in degree for purposes
of the Indeterminate Sentence Law is prision mayor, maximum,
to reclusion temporal, medium, or from ten (10) years and one
(1) day to seventeen (17) years and four (4) months (Article 61,
parag. 3, Revised Penal Code).

WHEREFORE, the guilt of the accused Emeliano Trinidad for the

crimes of Murder (on two counts) and Attempted Murder, having
been proven beyond reasonable doubt, his conviction is hereby
AFFIRMED and he is hereby sentenced as follows:

1) In each of Criminal Cases Nos. 79123-24 (Nos. 96 and 99

below) for Murder, he shall suffer the indeterminate penalty of ten
(10) years and one (1) day of prision mayor, as minimum, to
eighteen (18) years, eight (8) months and one (1) day of
reclusion temporal, as maximum; to indemnify the heirs of Marcial
Laroa and Lolito Soriano, respectively, in the amount of
P30,000.00 each; and to pay the costs.

2) In Criminal Case No. 79125 (No. 100 below) for Frustrated

Murder, he is hereby found guilty only of Attempted Murder and
sentenced to an indeterminate penalty of six (6) months and one
(1) day of prision correccional, as minimum, to six (6) years and
one (1) day of prision mayor, as maximum; to indemnify Ricardo
Tan in the sum of P5,000,00; and to pay the costs.

SO ORDERED.

Paras, Padilla, Sarmiento and Regalado, JJ., concur.

38
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 175023               July 5, 2010
GIOVANI SERRANO y CERVANTES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:
We review in this petition for review on certiorari 1 the
decision2 dated July 20, 2006 of the Court of Appeals (CA) in CA-
G.R. CR No. 29090, entitled "People of the Philippines v. Giovani
Serrano y Cervantes." The CA modified the decision dated October
25, 20043 of the Regional Trial Court4 (RTC), Branch 83, Quezon
City, and found petitioner Giovani Serrano y Cervantes
(petitioner) guilty beyond reasonable doubt of attempted
homicide, instead of frustrated homicide.
The Facts
The case stemmed from a brawl involving 15 to 18 members of
two (2) rival groups that occurred at the University of the
Philippines, Diliman, Quezon City (UP) on the evening of March 8,
1999. The incident resulted in the stabbing of Anthony Galang
(victim). Pinpointed as the victim’s assailant, the petitioner was
charged on March 11, 1999,5 with frustrated homicide in an
Information that reads:
That on or about the 8th day of March 1999, in Quezon City,
Philippines, the said accused, with intent to kill, did then and
there willfully, unlawfully and feloniously attack, assault and
employ personal violence upon the person of one ANTHONY
GALANG Y LAGUNSAD, by then and there stabbing him on the
stomach with a bladed weapon, thus performing all the acts of
execution which should have produced the crime of homicide, as a
consequence but which nevertheless did not produce it, by reason
of some causes independent of the will of the accused; that is the
timely and able medical assistance rendered to said ANTHONY
GALANG Y LAGUNSAD which prevented his death, to the damage
and prejudice of the said offended party.
CONTRARY TO LAW.6
On March 20, 2000, the petitioner pleaded not guilty. During the
pre-trial, the prosecution and the defense agreed to dispense with
the testimonies of SPO2 Isagani dela Paz and the records
custodian of East Avenue Medical Center on the basis of the
following stipulations: (1) SPO2 dela Paz was the one who
conducted the investigation; (2) SPO2 dela Paz took the
statement of the victim at the East Avenue Medical Center; (3)
the victim was able to narrate the story of the incident to SPO2
dela Paz before he underwent surgery; (4) SPO2 dela Paz
prepared a referral-letter to the city prosecutor; (5) SPO2 dela
Paz had no personal knowledge of the incident; and (6) the victim
was confined for treatment at the East Avenue Medical Center
from March 8, 1999, and the documents referring to his
confinement and treatment were duly executed and
authenticated.7 After these stipulations, trial on the merits
immediately followed.
The Prosecution’s Evidence
The prosecution presented the victim, Arlo Angelo Arceo, Sgt.
Rolando Zoleto, and SPO2 Roderick Dalit.
These witnesses testified that, at around 9:30 p.m. of March 8,
1999, the victim and his two friends, Arceo and Richard Tan, were
on their way to Fatima II in Pook Dagohoy, UP Campus when they
39
came across Gener Serrano, the petitioner’s brother, who was
with his group of friends. The victim, Arceo and Tan approached
Gener and his friends to settle a previous quarrel between Gener
and Roberto Comia. While the victim and Gener were talking,
Comia suddenly appeared and hurled invectives at Gener. Irked,
Gener challenged Comia to a fistfight to settle their quarrel once
and for all; Comia rose to the challenge.
It was at this point that the petitioner appeared with other
members of his group. He was a guest at a party nearby, and was
informed that a fight was about to take place between his brother
and Comia. Members of the victim’s group also started to show
up.
The petitioner watched Gener fight Comia. When Gener lost the
fight, the petitioner sought to get back at the victim and his
friends. Thus, the one-on-one escalated into a rumble between
the members of the two groups. During the rumble, and with the
aid of the light emanating from two Meralco posts, the victim and
Arceo saw that the petitioner had a knife and used it to chase
away the members of their group. The petitioner also chased
Arceo away, leaving the victim alone; the petitioner’s group
ganged up on him.
The petitioner went to where the victim was being beaten by
Gener and one Obet Orieta. It was then that the victim was
stabbed. The petitioner stabbed the left side of his stomach while
he was standing, with Gener and Orieta holding his arms. The
petitioner, Gener and Orieta thereafter continued to beat and
stone the victim until he fell into a nearby creek. The petitioner
and his group left him there.
From his fallen position, the victim inspected his stab wound and
saw that a portion of his intestines showed. On foot, he went to
find help. The victim was initially taken to the UP Infirmary, but
was referred to the East Avenue Medical Center where he
underwent surgery. The victim stayed at the hospital for a week,
and thereafter stayed home for one month to recuperate.
In the investigation that immediately followed, the victim
identified the petitioner as the person who stabbed him. In court,
the victim likewise positively identified the petitioner as his
assailant.
The Defense’s Evidence
The defense presented the testimonies of the petitioner, Gener,
and George Hipolito.
The petitioner denied that he stabbed the victim. While he
admitted that he was present during the fistfight between Gener
and Comia, he claimed that he and Gener left as soon as the
rumble started. The petitioner testified that as he and Gener were
running away from the scene (to get back to the party), bottles
and stones were being thrown at them.
Hipolito, a participant in the rumble and a member of the
petitioner’s group, narrated that the rumble happened fast and he
was too busy defending himself to take note of everything that
happened. He testified that he did not see the petitioner and
Gener during the fight. He also testified that the place where the
rumble took place was near a steel manufacturing shop which
provided some light to the area. He further testified that the
victim was left alone at the scene and he alone faced the rival
group.
The RTC Ruling
After considering the evidence, the trial court found the petitioner
guilty beyond reasonable doubt of frustrated homicide. It held,
thus:
The bare statement of Giovani Serrano that he did not stab
Anthony and he really does not know who might have stabbed
Anthony is outweighed by the positive identification by Anthony
that Giovani stabbed him frontally while they faced each other
and also the circumstantial evidence pointing to him as the
wielder of the knife. Naturally, Giovani Serrano would feign
ignorance as to who stabbed Anthony but there is no way that he
can avoid said direct and circumstantial evidences.8
Accordingly, the RTC decision disposed:
WHEREFORE, the prosecution having established the guilt of
accused GIOVANI SERRANO Y CERVANTES of the offense of
FRUSTRATED HOMICIDE beyond reasonable doubt, this Court
finds him GUILTY thereof and hereby sentences him to undergo
imprisonment of FOUR (4) YEARS, TWO (2) MONTHS and ONE (1)
DAY of prision correccional as minimum to TEN (10) YEARS
of prision mayor as maximum.
Accused Giovani Serrano is hereby ordered to reimburse to
complainant Anthony Galang the medical expenses incurred by
the latter in his hospitalization and treatment of his injuries in the
amount of FIFTEEN THOUSAND PESOS (₱15,000.00) and loss of
income for one (1) month in the amount of FOUR THOUSAND
PESOS (₱4,000.00) or the total amount of NINETEEN THOUSAND
PESOS (₱19,000.00).
Costs against the accused.
SO ORDERED.9
The petitioner appealed to the CA. He claimed that the
inconsistencies in the victim’s testimony rendered it incredible,
but the RTC disregarded the claim. The RTC also disregarded the
evidence that the dimness of the light in the crime scene made it
impossible for the victim to identify his assailant.
The CA Ruling
In its decision, the CA agreed with the RTC that the petitioner had
been positively identified as the victim’s assailant. The CA,
however, ruled that the crime committed was attempted
homicide, not frustrated homicide. The CA ruled that the
prosecution evidence failed to conclusively show that the victim’s
single stab wound was sufficient to cause death without timely
medical intervention. In support of its conclusion, the CA said
that:
Thus, in Paddayuman v. People (G.R. No. 120344, 23 January
2002), appellant’s conviction for attempted homicide was upheld
because there was no evidence that the wounds suffered by the
victim were fatal enough as to cause her demise. Thus:
x x x petitioner stabbed the victim twice on the chest, which is
indicative of an intent to kill. x x x This can be gleaned from the
testimony of Dr. Pintucan who did not categorically state whether
or not the wounds were fatal. x x x (I)n People v. Pilones, this
Court held that even if the victim was wounded but the injury was
not fatal and could not cause his death, the crime would only be
attempted.
Similarly, in the case of People v. Costales (G.R. No. 141154, 15
January 2002), where the offense charged was frustrated murder,
the trial court rendered a verdict of guilty for attempted murder
because the prosecution failed to present a medical certificate or
competent testimonial evidence which will prove that the victim
40
would have died from her wound without medical intervention.
Citing People v. De La Cruz, the Supreme Court sustained the trial
court and stressed that:
x x x the crime committed for the shooting of the victim was
attempted murder and not frustrated murder for the reason that
"his injuries, though no doubt serious, were not proved fatal such
that without timely medical intervention, they would have caused
his death.10
Thus, the CA modified the RTC decision. The dispositive portion of
the CA decision reads:
WHEREFORE, with the MODIFICATIONS that:
1) Appellant is found GUILTY beyond reasonable doubt of the
crime of ATTEMPTED HOMICIDE and sentenced to suffer the
indeterminate penalty of imprisonment of SIX (6) MONTHS of
arresto mayor as minimum to FOUR (4) YEARS and TWO (2)
MONTHS of prision correccional, as maximum;
2) The actual damages is REDUCED to ₱3,858.50; and
3) The award of loss earnings is DELETED,
The appealed decision is AFFIRMED in all other respects.
SO ORDERED.11
Undaunted, the petitioner filed this present petition.
The Issues
The petitioner raises the following issues for the Court’s
consideration:
A
THE COURT OF APPEALS ERRED IN GIVING FULL FAITH AND
CREDENCE TO THE INCREDIBLE AND INCONSISTENT TESTIMONY
OF THE PRIVATE COMPLAINANT.
B
THE COURT OF APPEALS ERRED IN GIVING CREDENCE TO THE
TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION,
WHICH WERE BASED ON MERE SPECULATION AND CONJECTURE.
C
THE COURT OF APPEALS GRAVELY ERRED IN OVERLOOKING THE
FACT THAT THE STABBING INCIDENT OCCURRED IN THE MIDDLE
OF A STREET BRAWL, WHERE ANYBODY OF THE NUMEROUS
PARTICIPANTS COULD HAVE BEEN THE ASSAILANT.
D
THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THE
GUILT OF THE ACCUSED-APPELLANT WAS PROVEN BEYOND
REASONABLE DOUBT.12
The petitioner claims that the lower courts’ decisions were
erroneous based on two-pronged arguments – first, he cannot be
convicted because he was not positively identified by a credible
testimony; and second, if he is criminally culpable, he can only be
convicted of serious physical injuries as the intent to kill the
victim was not sufficiently proven.
The Court Ruling
We do not find merit in the petitioner’s arguments, and
accordingly hold that the petition is devoid of merit.
At the outset, we clarify that we shall no longer deal with the
correctness of the RTC and the CA’s appreciation of the victim’s
identification of the petitioner as his assailant. This is a question
of fact that we cannot entertain in a Rule 45 review, save for
exceptional reasons13 that must be clearly and convincingly
shown. As a rule, we accord the greatest respect for the findings
of the lower courts, especially the evaluation by the trial judge
who had the distinct opportunity to directly hear and observe the
witnesses and their testimonies. As we explained in People v.
Lucena14 –
[It] has been consistently held by this Court that the matter of
assigning values to declarations on the witness stand is best and
most competently performed by the trial judge, who had the
unmatched opportunity to observe the witnesses and to assess
their credibility by the various indicia  available but not reflected in
the record. The demeanor of the person on the stand can draw
the line between fact and fancy. The forthright answer or the
hesitant pause, the quivering voice or the angry tone, the
flustered look or the sincere gaze, the modest blush or the guilty
blanch – these can reveal if the witness is telling the truth or lying
through his teeth.15
In this regard, the petitioner cites an exception – the lower courts’
misappreciation of the testimonial evidence. Due consideration of
the records, however, does not support the petitioner’s position.
We find that the RTC and the CA did not err in their appreciation
of the evidence.
The petitioner was positively identified
The RTC’s and CA’s conclusions on the petitioner’s positive
identification are supported by ample evidence. We consider in
this regard the following pieces of evidence of the prosecution:
(1) the manner of attack which was done frontally and at close
range, thus allowing the victim to see his assailant; (2) the
lighting conditions at the scene of the stabbing, provided by two
Meralco posts;16 the scene was also illuminated by "white,
fluorescent type" light coming from a steel manufacturing
shop;17 and (3) that the victim and the petitioner knew each other
also allowed the victim to readily identify the petitioner as his
assailant.
The victim’s credibility is further strengthened by his lack of
improper motive to falsely accuse the petitioner of the crime.
Human experience tells us that it is unnatural for a victim to
accuse someone other than his actual attacker; in the normal
course of things, the victim would have the earnest desire to bring
the guilty person to justice, and no other. We consider, too, that
the victim consistently and positively, in and out of court,
identified the petitioner as his assailant. The victim testified that
the petitioner was a neighbor who lived just a few houses away
from his house.
We also take into account the evidence that the petitioner was the
only one seen in possession of a knife during the rumble. The
victim testified that he saw the petitioner holding a knife which he
used to chase away others.18 Prosecution witness Arceo testified
that he also saw the petitioner wielding a knife during the rumble.
Based on these considerations, we find the victim’s identification
of the petitioner as his assailant to be positive and conclusive.
41
In contrast, we find the inconsistencies attributed to the victim to
be minor and insufficient to discredit his testimony. These
inconsistencies refer to extraneous matters that happened during
the rumble, not directly bearing on the stabbing. They do not
likewise relate to the material elements of the crime.
We also cannot give any credit to the petitioner’s position that the
victim’s failure to identify the weapon used to stab him discredited
his testimony. The victim’s failure to identify the weapon is
irrelevant under the circumstances, considering that the identity
of the weapon is not an element of the crime charged.
The intent to kill was sufficiently established
The petitioner posits that he can only be held liable for serious
physical injuries since the intent to kill, the necessary element to
characterize the crime as homicide, was not sufficiently proven.
The assailant’s intent to kill is the main element that distinguishes
the crime of physical injuries from the crime of homicide. The
crime can only be homicide if the intent to kill is proven.
Intent to kill is a state of mind that the courts can discern only
through external manifestations, i.e., acts and conduct of the
accused at the time of the assault and immediately thereafter. In
Rivera v. People,19 we considered the following factors to
determine the presence of an intent to kill: (1) the means used by
the malefactors; (2) the nature, location, and number of wounds
sustained by the victim; (3) the conduct of the malefactors
before, at the time, or immediately after the killing of the victim;
and (4) the circumstances under which the crime was committed
and the motives of the accused. We also consider motive and the
words uttered by the offender at the time he inflicted injuries on
the victim as additional determinative factors.20
In this case, the records show that the petitioner used a knife in
his assault. The petitioner stabbed the victim in the abdomen
while the latter was held by Gener and Orieta. Immediately after
the stabbing, the petitioner, Gener and Orieta beat and stoned the
victim until he fell into a creek. It was only then that the
petitioner, Gener and Orieta left. We consider in this regard that
the stabbing occurred at around 9:30 p.m. with only the
petitioner, Gener, Orieta, and the victim as the only persons left
in the area. The CA aptly observed that a reasonable inference
can be made that the victim was left for dead when he fell into
the creek.
Under these circumstances, we are convinced that the petitioner,
in stabbing, beating and stoning the victim, intended to kill him.
Thus, the crime committed cannot be merely serious physical
injuries.
Frustrated homicide versus attempted homicide
Since the victim did not die, the issue posed to us is the stage of
execution of the crime. The lower courts differed in their legal
conclusions.
On one hand, the RTC held that the crime committed reached the
frustrated stage since the victim was stabbed on the left side of
his stomach and beaten until he fell into a creek. 21 The RTC also
took into account that the victim had to be referred by the UP
Infirmary to the East Avenue Medical Center for medical
treatment.22
On the other hand, the CA ruled that the crime committed only
reached the attempted stage as there was lack of evidence that
the stab wound inflicted was fatal to cause the victim’s
death.23 The CA observed that the attending physician did not
testify in court.24 The CA also considered that the Medical
Certificate and the Discharge Summary issued by the East Avenue
Medical Center fell short of "specifying the nature or gravity of the
wound."25
Article 6 of the Revised Penal Code, as amended defines the
stages of a felony in the following manner:
ART. 6. Consummated,  frustrated, and  attempted  felonies. –
Consummated felonies, as well as those which are frustrated and
attempted, are punishable.
A felony is consummated when all the elements necessary for 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. [Emphasis and italics supplied.]
In Palaganas v. People,26 we made the following distinctions
between frustrated and attempted felony as follows:
1.) In frustrated felony, the offender has performed all the acts of
execution which should produce the felony as a consequence;
whereas in attempted felony, the offender merely commences the
commission of a felony directly by overt acts and does not
perform all the acts of execution.
2.) In frustrated felony, the reason for the non-accomplishment of
the crime is some cause independent of the will of the
perpetrator; on the other hand, in attempted felony, the reason
for the non-fulfillment of the crime is a cause or accident other
than the offender’s own spontaneous desistance.27
The crucial point to consider is the nature of the wound inflicted
which must be supported by independent proof showing that the
wound inflicted was sufficient to cause the victim’s death without
timely medical intervention.
In discussing the importance of ascertaining the degree of injury
sustained by a victim and its importance in determining criminal
liability, the Court in People v. Matyaong, said:28
In considering the extent of injury done, account must be taken of
the injury to the function of the various organs, and also the
danger to life. A division into mortal and nonmortal wounds, if it
could be made, would be very desirable; but the unexpected
complications and the various extraneous causes which give
gravity to the simplest cases, and, on the other hand, the
favorable termination of some injuries apparently the most
dangerous, render any such classification impracticable. The
general classification into slight, severe, dangerous, and mortal
wounds may be used, but the possibility of the slight wound
terminating with the loss of the person’s life, and the apparently
mortal ending with only a slight impairment of some function,
must always be kept in mind. x x x
The danger to life of any wound is dependent upon a number of
factors: the extent of the injury, the form of the wound, the
region of the body affected, the blood vessels, nerves, or organs
involved, the entrance of disease-producing bacteria or other
organisms into the wound, the age and constitution of the person
injured, and the opportunities for administering proper surgical
treatment.
42
When nothing in the evidence shows that the wound would be
fatal without medical intervention, the character of the wound
enters the realm of doubt; under this situation, the doubt created
by the lack of evidence should be resolved in favor of the
petitioner. Thus, the crime committed should be attempted, not
frustrated, homicide.29
Under these standards, we agree with the CA’s conclusion. From
all accounts, although the stab wound could have been fatal since
the victim testified that he saw his intestines showed, no exact
evidence exists to prove the gravity of the wound; hence, we
cannot consider the stab wound as sufficient to cause death. As
correctly observed by the CA, the victim’s attending physician did
not testify on the gravity of the wound inflicted on the victim. We
consider, too, the CA’s observation that the medical certifications
issued by the East Avenue Medical Center merely stated the
location of the wound.30 There was also no proof that without
timely medical intervention, the victim would have died. 31 This
paucity of proof must necessarily favor the petitioner.
The view from the "frustrated" stage of the crime gives the same
results. The elements of frustrated homicide are: (1) the accused
intended to kill his victim, as manifested by his use of a deadly
weapon in his assault; (2) the victim sustained fatal or mortal
wound/s but did not die because of timely medical assistance; and
(3) none of the qualifying circumstance for murder under Article
248 of the Revised Penal Code, as amended, is present. 32 Since
the prosecution failed to prove the second element, we cannot
hold the petitioner liable for frustrated homicide.
The Penalty
Article 51 of the Revised Penal Code, as amended, provides that
the imposable penalty for an attempted crime shall be lower by
two degrees than that prescribed by law for the consummated
felony.
Under Article 249, the crime of homicide is punished by reclusion
temporal. Applying Article 61 (Rules of graduating penalties) and
Article 71 (Graduated scales), two (2) degrees lower of reclusion
temporal is prision correccional which has a duration of six (6)
months and one (1) day to six (6) years.
Under the Indeterminate Sentence Law, the maximum term of the
indeterminate sentence shall be taken, in view of the attending
circumstances that could be properly imposed under the rules of
the Revised Penal Code, and the minimum term shall be within
the range of the penalty next lower to that prescribed by the
Revised Penal Code.33 Thus, the maximum term of the
indeterminate sentence shall be taken within the range of prision
correccional, depending on the modifying circumstances. In turn,
the minimum term of the indeterminate penalty to be imposed
shall be taken from the penalty one degree lower of prision
correccional, that is arresto mayor with a duration of one (1)
month and one (1) day to six (6) months.
In the absence of any modifying circumstance, the maximum
term of the indeterminate penalty shall be taken from the medium
period of prision correccional or two (2) years and four (4)
months and one (1) day to four (4) years and two (2)
months.34 The minimum term shall be taken within the range of
arresto mayor. Hence, the penalty imposed by the CA against the
petitioner of six (6) months of arresto mayor, as minimum term of
the indeterminate penalty, to four (4) years and two (2) months
of prision correccional, as maximum term of the indeterminate
penalty, is correct.
The Civil Liability
We modify the CA decision with respect to the petitioner’s civil
liability. The CA ordered actual damages to be paid in the amount
of ₱3,858.50. This is erroneous and contrary to the prevailing
jurisprudence.
In People v. Andres,35 we held that if the actual damages, proven
by receipts during the trial, amount to less than ₱25,000.00, the
victim shall be entitled to temperate damages in the amount of
₱25,000.00, in lieu of actual damages. The award of temperate
damages is based on Article 2224 of the New Civil Code which
states that temperate or moderate damages may be recovered
when the court finds that some pecuniary loss was suffered but its
amount cannot be proven with certainty. In this case, the victim is
entitled to the award of ₱25,000.00 as temperate damages
considering that the amount of actual damages is only ₱3,858.50.
The amount of actual damages shall be deleted.
Lastly, we find that the victim is also entitled to moral damages in
the amount of ₱10,000.00 in accordance with settled
jurisprudence.36 Under Article 2219, paragraph 1 of the New Civil
Code, the victim is entitled to moral damages in a criminal offense
resulting in physical injuries.1avvphi1
WHEREFORE, we hereby DENY the petition. The decision, dated
July 20, 2006, of the Court of Appeals in CA-G.R. CR No. 29090,
finding petitioner Giovani Serrano y Cervantes guilty beyond
reasonable doubt of Attempted Homicide, is AFFIRMED with
MODIFICATION. The petitioner is ORDERED to PAY the victim,
Anthony Galang, the following amounts:
(1) ₱25,000.00 as temperate damages; and
(2) ₱10,000.00 as moral damages.
Costs against the petitioner. SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19069            October 29, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AMADEO PERALTA, ET AL., defendants,
ANDRES FACTORA, LEONARDO DOSAL, ANGEL PARUMOG,
AMADEO PERALTA, FLORENCIO LUNA and GERVASIO
LARITA, defendants-review.
Assistant Solicitors General Vicente A. Torres and Antonio Ibarra
for plaintiff-appellee.
J. R. Nuguid for defendants-review.
PER CURIAM:
In the decision in criminal case 7705 of the Court of First Instance
of Rizal,subject of the present automatic review, Amadeo Peralta,
Andres Factora, Leonardo Dosal, Angel Parumog, Gervasio
Larita and Florencio Luna (six among the twenty-two
defendants1 charged therein with multiple murder) were
pronounced guilty, and all sentenced to death, to indemnify jointly
and severally the heirs of each of the victims, namely, Jose
Carriego, Eugenio Barbosa and Santos Cruz, in the sum of P6,000,
and each to pay his corresponding share of the costs.
The information recites:
That on or about the 16th day of February, 1958, in the
municipality of Muntinglupa, province of Rizal, Philippines, and
within the jurisdiction of this Honorable Court, the abovenamed
accused, who are convicts confined in the New Bilibid Prisons by
virtue of final judgments, conspiring, confederating and mutually
helping and aiding one another, with evident premeditation and
treachery, all armed with deadly weapons, did, then and there,
willfully, unlawfully and feloniously kill Jose Carriego, Eugenio
Barbosa and Santos Cruz, also convicts confined in the same
43
institution, by hitting, stabbing and striking them with ice picks,
clubs and other improvised weapons, pointed and/or sharpened,
thereby inflicting upon the victims multiple serious injuries which
directly caused their deaths.
That the aggravating circumstance of quasi-recidivism is present
in the commission of the crime in that the crime was committed
after the accused have been convicted by final judgments and
while they are serving the said judgments in the New Bilibid
Prisons.
Contrary to law with the following aggravating circumstances:
1. That the crime was committed with insult to public authorities;
2. That the crime was committed by a band;
3. That the crime was committed by armed men or persons who
insure or afford impunity;
4. That use of superior strength or means was employed to
weaken the defense;
5. That as a means to the commission of the crime doors and
windows have been broken;
6. That means was employed which add ignominy to the natural
effects of the act;
7. That the crime was committed where public authorities were
engaged in the discharge of their duties.
Upon motion of the provincial fiscal before trial, the lower court
dismissed the charge against one of the accused 2 for lack of
evidence. After the prosecution had rested its case, the charges
against six of the accused 3 were dismissed for failure of the
prosecution to establish a  prima facie case against them. One of
the defendants died4 during the pendency of the case. After trial,
the court a quo acquitted eight5 of the remaining defendants.
As early as in 1956, a great number of inmates confined in the
national penitentiary at Muntinglupa arrayed themselves into two
warring gangs, the "Sigue-Sigue" and the "OXO", the former
composed predominantly of Tagalog inmates, the latter comprised
mainly of prisoners from the Visayas and Mindanao. Since then
the prison compound has been rocked time and time again by
bloody riots resulting in the death of many of their members and
suspected sympathizers. In an effort to avert violent clashes
between the contending groups, prison officials segrerated known
members of the "Sigue-Sigue" from those of the "OXO". Building
1 housed "Sigue-Sigue" members, while a majority of the
prisoners confined in Bldg. 4 belonged to the "OXO". Even in Bldg.
4, which is composed of four brigades, namely, 4-A and 4-B
(upper floor) and 4-C and 4-D (first floor), inmates from Visayas
and Mindanao, from whom the "OXO" drew most of its members,
were confined in 4-A.
It was at about 7:00 a.m. on February 16, 1958, while the
inmates of the penitentiary were preparing to attend Sunday
mass, that a fight between two rival members of the "Sigue-
Sigue" and "OXO" gangs occurred in the plaza where the
prisoners were assembled, causing a big commotion. The fight
was, however, quelled, and those involved were led away for
investigation, while the rest of the prisoners were ordered to
return to their respective quarters. Hardly had conditions returned
to normal when a riot broke out in Bldg. 1, a known lair of the
"Sigue-Sigue". The inmates thereof tried to invade Bldg. 4, where
many members and sympathizers of the "OXO" gang were
confined. The timely arrival of the guards forced the invading
inmates to retreat and return to Bldg. 1. Moments later, another
riot erupted in Bldg. 4, as the inmates of brigade 4-A destroyed
the lock of their door and then rampaged from one brigade to
another. The invading prisoners from 4-A, mostly "OXO" members
and sympathizers, clubbed and stabbed to death Jose Carriego,
an inmate of 4-B. Afterwards, they forcibly opened the door of 4-
C and killed two more inmates, namely, Eugenio Barbosa and
Santos Cruz.
The three victims sustained injuries which swiftly resulted in their
death — before they could be brought to the hospital.
Jose Carriego: (a) lacerated wound on the lower lip, 5 cm. in
length and 3 cm.in depth; (b) contusion and hematoma of the
back of the neck, about 2 inches in diameter; and (c) five
punctured wounds in the chest, penetrating the lungs. Cause of
death: internal hemorrhage from multiple fatal wounds in the
chest.
Eugenio Barbosa: (a) lacerated wound in the occipital region, 3
inches in length and 1 cm. in depth; (b) two penetrating wounds
in the abdomen, puncturing the intestines; (c) lacerated wounds
on the right oxilla, 3 cm. in length and 2 cm. in depth; and (d)
several bruises at the right and left lower extremities. Cause of
death: shock, secondary to internal hermorrhage in the abdomen.
Santos Cruz: (a) lacerated wound on the head, 2 inches in length;
(b) fractured skull; (c) wound on the upper lip cutting the lip in
two; (d) seven punctured wounds in the chest, two of which were
penetrating; (e) hematoma on the right hand; and (f) three
punctured wounds on the left hand. Cause of death: fractured
skull.
Romeo Pineda, an inmate and first quarter-in-charge of brigade 4-
B, testified that while he was taking his breakfast with Jose
Carriego, who was at the time the representative of the prisoners
confined in 4-B to the inmate carcel, he "suddenly heard
commotion" near the door of their brigade; that his fellow
prisoners started shouting "pinapasok na tayo," as the invading
inmates from brigade 4-A stampeded into 4-B; that he and
Carriego took hold of their clubs and stood at the end of the
passageway; that he saw Carriego surrender his club to Andres
Factora, an "OXO" member from 4-A; that as Carriego started to
walk away, Factora clubbed Carriego on the nape causing the
latter to fall; that Factora turned up the face of his fallen victim
and struck him again in the face; that while Carriego was in this
prostrate position, Amadeo Peralta and Leonardo Dosal,
companions of Factora, repeatedly stabbed him.
The testimony of Pineda was corroborated in all its material points
by Juanito Marayoc and Avelino Sauza, both inmates of 4-B.
These two prosecution witnesses identified Factora, Peralta and
Dosal as the assailants of Carriego.
From 4-B, the invading inmates of 4-A went down and forcibly
entered 4-C. According to Oscar Fontillas, an inmate of 4-C, he
saw the prisoners from 4-A rushing toward their brigade; that
among the invading inmates who forced open the door of 4-C,
with help from the inside provided by Visayan prisoners confined
in 4-C, were Factora, Dosal, Angel Parumog, Gervacio Larita,
Ernesto Fernandez and Jose Tariman; that he saw Factora, Larita
and Fernandez kill Barbosa, while the rest of their companies
instructed the Visayans to leave their cell and ordered the "Manila
boys" (Tagalogs) to remain. Antonio Pabarlan, another inmate of
4-C, declared that he saw Peralta stab Barbosa, as Dosal, Larita,
Florencio Luna, Parumog and Factora clubbed the hapless victim.
Another inmate of 4-C, Jose Halili, not only corroborated the
testimony of Fontillas and Pabarlan but as well added grim details.
He declared that while Barbosa was trying to hide under a cot, he
was beaten and stabbed to death by Dosal, Parumog, Factora and
Fernandez, with Luna, Larita, Pedro Cogol and Eilel Tugaya
standing guard, armed with clubs and sharp instruments, in
readiness to repel any intervention from the Tagalog inmates.
Carlos Espino, also confined in 4-C, declared that he saw
Parumog, Peralta Factora and Larita assault and kill Barbosa.
The same witnesses for the prosecution testifies that after killing
Barbosa, the invading "OXO" members and sympathizers
proceeded to hunt for Santos Cruz, another Tagalog like Carriego
and Barbosa. Halili testified, that he saw Peralta, Larita, Cogol and
Tugaya take Santos Cruz to 4-A from 4-C; that Santos Cruz knelt
44
down and pleaded for his life, saying, "Maawa kayo sa akin.
Marami akong anak;" that Luna and Peralta were unmoved as
they stabbed Santos Cruz to death. Pabarlan declared that after
the death of Barbosa, Santos Cruz was brought to 4-A by the
invading inmates but Cruz was able to slip back to his cell only to
be recaptured by Factora, Dosal and Luna and brought to near the
fire escape where he was clubbed and stabbed to death by
Parumog, Dosal, Factora and Peralta. Fontillas and Espino
corroborated the declarations of Halili and Pabarlan with respect
to the killing of Santos Cruz, and both mentioned Larita as one of
the assailants of Cruz.
The trial judge summarized the evidence for the prosecution,
thus:
"... it clearly appears that the three killings in question were an
offshoot of the rivalry between the two organizations. All those
who were killed, namely, Barbosa, Carriego and Santos Cruz,
were Tagalogs and well known as members if not sympathizers of
the Sigue Sigue, while the accused so charged with their killing
were mostly members if not sympathizers of the Oxo
organization. These three killings were sparked by the commotion
that happened in the plaza between 8:00 and 9:00 in the
morning, while the prisoners were preparing to go the mass ... It
was evident that the clash that occurred in the plaza produced a
chain reaction among the members and followers of the two
organizations. The inmates of Building No. 1, known lair of the
Sigue Sigues bolted the door of their cells and tried to invade
Building No. 4 where a big number of the Oxo members and their
sympathizers were confined, but, however, were forced to retreat
by the timely arrival of the guards who sent them back to their
building. When the members of the Oxo in Building No. 4 learned
about this, they went on a rampage looking for members of the
Sigue Sigue or their sympathizers who were confined with them in
the same building. As the evidence of the prosecution shows, the
accused who were confined in Brigade 4-A of Building No. 4 led
the attack. They destroyed the lock of their dormitories and with
the help of their companions succeeded in bolting the door of the
different brigades, and once they succeeded in bolting the doors
of the different brigades, they went inside and tried to segregate
the Tagalogs from their group; that as soon as they discovered
their enemies they clubbed and stabbed them to death ...
Admitting that he was one among several who killed Jose
Carriego, Peralta nevertheless claims self-defense. He testified
that on the morning of the riot he was attacked by Carriego and
Juan Estrella near the door of 4-A while he was returning to his
brigade from the chapel with some companions; that Carriego
clubbed him on the head; that he was able to parry the second
blow of Carriego and then succeeded in squeezing Carriego's head
with his hands; that forthwith he whipped out an improvised ice
pick and stabbed Carriego several times; that when he (Peralta)
was already dizzy due to the head wound he sustained from the
clubbing, Carriego managed to slip away; that he then became
unconscious, and when he regained consciousness he found
himself on a tarima with his head bandaged.
Peralta's declarations do not inspire belief. The impressive array
of prosecution witnesses who saw him actively participate in the
killing of the three victims pointed to him as the aggressor, not
the aggrieved. Pineda, Marayoc and Sauza positively identified
him as one of the assailants of Carriego. Contrary to the
pretensions of Peralta, Carriego an alleged "Sigue-Sigue"
member, would not have attacked him, knowing fully well that
Building No. 4 was an "OXO" lair where the "Sigue-Sigue"
members were outnumbered. Anent the killing of Barbosa and
Santos Cruz, Peralta failed to offer any explicit defense to rebut
the inculpatory declarations of prosecution witnesses Pabarlan and
Espino who saw him participate in the killing of Barbosa and those
of Halili, Fontillas and Espino who identified him as one of the
murderers of Santos Cruz.
For his part, Leonardo Dosal stated that he killed Santos Cruz, but
also claims self-defense in exculpation. He declared that Santos
Cruz, Jose Carriego, Juanita Espino, Carlos Espino and Oscar
Fontillas invaded 4-A where he was confined; that a free-for-all
forthwith ensued; that he then heard Santos Cruz call Carlos
Espino, and advise the latter to go away as "I will be the one to
kill that person (Dosal);" that with a sharp instrument, Cruz hit
him on the head and then on the nose; that as Cruz was about to
hit him again, he got hold of his ice pick and stabbed Cruz
repeatedly until the latter fell.
Dosal's avowal is clearly belied by the positive testimonies of
Pabarlan, Halili and Espino who saw him participate in the killing
of Santos Cruz. If it is true that Dosal killed Santos Cruz in self-
defense when the latter together with his companions supposedly
invaded Dosal's brigade (4-A), why is it that the body of Santos
Cruz was found at the fire escape near the  pasillo between 4-C
and 4-D of the first floor of Bldg. 1 instead of in 4-A which is
located in the upper floor? Moreover, Dosal failed to explain why
he was seen in 4-C, which he does not deny, since he was an
inmate of 4-A where he was allegedly attacked. With respect to
the murder of Carriego and Barbosa with which Dosal was also
charged, he did not offer any evidence in his behalf. Hence, the
testimonies of Pineda, Marayoc and Sauza identifying him as one
of the killers of Carriego and those of Pabarlan, Halili and Espino
implicating him in the death of Santos Cruz, stand unrebutted.
Andres Factora declared that he clubbed Carriego and Santos Cruz
under compulsion of his co-accused who threatened to kill him if
he disobeyed their order; that he did not hit Barbosa anymore
because the latter was already dead; that it was his co-accused
who actually killed the three victims. Again, the declarations of
the prosecution witnesses, which were accorded full credence by
the trial court, expose the guilt of Factora beyond reasonable
doubt. In fact, according to Pineda, whose testimony was
corroborated by Marayoc, it was Factora who started the mass
assault by clubbing Carriego treacherously. Fontillas, Halili,
Pabarlan and Espino pointed to Factora as one of the killers of
Barbosa, while at least three prosecution witnesses, namely,
Pabarlan, Fontillas and Espino, saw Factora participate in the
slaying of Santos Cruz. The active participation of Factora in the
killing, which is clear index of voluntariness, thus negates his
claim of compulsion and fear allegedly engendered by his co-
accused.
Angel Parumog, Gervasio Larita and Florencio Luna take refuge in
the exculpatory device of alibi. Parumog testified that he did not
participate in the killing of the three inmates because he stayed
during that entire hapless day in the office of the trustees for
investigation after the fight in the  plaza; that he was implicated in
the killing by the prosecution witnesses because of his refusal to
accede to their request to testify against his co-accused; that he
is not a Visayan but a Tagalog from Nueva Ecija. Larita claims
that he did not know about the killing until he was informed that
three inmates had died; that on the day in question he was
brought to the police trustee brigade for investigation after the
incident in the  plaza; that he was escorted back to his brigade
only in the afternoon. Luna likewise disclaims any knowledge of
the killing and asserts that for the entire duration of the riot he
remained in his cell (brigade 4-A).
The alibis of Parumog, Larita and Luna merit no credence when
set against the positive testimonies of prosecution witness
identifying them as participants in the killing of Barbosa and
Santos Cruz. Pabarlan, Espino and Fontillas declared that Larita
was one of the killers of Barbosa; Espino and Fontillas declared
that they saw Larita kill Santos Cruz; Pabarlan, Halili and Espino
testified that they saw Parumog participate in the murder of
Barbosa; Espino, Fontillas and Pabarlan stated that Parumog took
part in the killing of Santos Cruz. Pabarlan and Halili declared that
Luna participated in the fatal assault on Barbosa and Santos Cruz.
45
The alibis of the accused are thus sufficiently overcome by strong
evidence to the contrary. The defense of alibi is generally weak
since it is easy to concoct. For this reason, courts view it with no
small amount of caution, and accept it only when proved by
positive, clear and satisfactory evidence. 6 In the case at bar, if
Parumog and Larita were really confined in the police trustee
brigade for investigation on the day of the incident, there should
have been a record of the alleged investigation. But none was
presented. The testimony of Luna that throughout the riot he
stayed in his cell is quite unnatural. He claims that he did not
even help his cellmates barricade their brigade with tarimas in
order to delay if not prevent the entry of the invading inmates.
According to him, he "just waited in one corner."
The rule is settled that the defense of alibi is worthless in the face
of positive identification by prosecution witnesses pointing to the
accused as  particeps criminis.7 Moreover, the defense of alibi is an
issue of fact the resolution of which depends almost entirely on
the credibility of witnesses who seek to establish it. In this respect
the relative weight which the trial judge accords to the testimony
of the witnesses must, unless patently inconsistent without
evidence on record, be accepted.8 In the case at bar, the trial
court, in dismissing the alibis of Parumog, Larita and Luna, said
that "their mere denial cannot prevail over the positive testimony
of the witnesses who saw them participate directly in the
execution of the conspiracyto kill Barbosa, Carriego and Santos
Cruz."
The killing of Carriego constitutes the offense of murder because
of the presence of treachery as a qualifying circumstance:
Carriego was clubbed by Factora from behind, and as he lay
prostrate and defenseless, Peralta and Dosal stabbed him
repeatedly on the chest. The blow on the nape and the
penetrating chest wounds were all fatal, according to Dr.
Bartolome Miraflor. Abuse of superior strength qualified the killing
of Barbosa and Santos Cruz to the category of murder. The
victims, who were attacked individually were completely
overwhelmed by their assailants' superiority in number and
weapons and had absolutely no chance at all to repel or elude the
attack. All the attackers were armed with clubs or sharp
instruments while the victims were unarmed, as so found by the
trial court. In fact, Halili testified that Barbosa was clubbed and
stabbed to death while he was trying to hide under a cot, and
Santos Cruz was killed while he was on his knees pleading for his
life.
The essential issue that next confronts us is whether conspiracy
attended the commission of the murders. The resolution of this
issue is of marked importance because upon it depends the
quantity and quality of the penalties that must be imposed upon
each of the appellants.
For this purpose, it is not amiss to briefly restate the doctrine on
conspiracy, with particular emphasis on the facets relating to its
nature, the quantum of proof required, the scope and extent of
the criminal liability of the conspirators, and the penalties
imposable by mandate of applicable law.
Doctrine. A conspiracy exists when two or more persons come to
an agreement concerning the commission of a felony and decide
to commit it.9 Generally, conspiracy is not a crime except when
the law specifically provides a penalty therefor as in
treason,10 rebellion11 and sedition.12 The crime of conspiracy
known to the common law is not an indictable offense in the
Philippines.13 An agreement to commit a crime is a reprehensible
act from the view-point of morality, but as long as the
conspirators do not perform overt acts in furtherance of their
malevolent design, the sovereignty of the State is not outraged
and the tranquility of the public remains undisturbed. However,
when in resolute execution of a common scheme, a felony is
committed by two or more malefactors, the existence of a
conspiracy assumes pivotal importance in the determination of
the liability of the perpetrators. In stressing the significance of
conspiracy in criminal law, this Court in U.S. vs. Infante and
Barreto14 opined that
While it is true that the penalties cannot be imposed for the mere
act of conspiring to commit a crime unless the statute specifically
prescribes a penalty therefor, nevertheless the existence of a
conspiracy to commit a crime is in many cases a fact of vital
importance, when considered together with the other evidence of
record, in establishing the existence, of the consummated crime
and its commission by the conspirators.
Once an express or implied conspiracy is proved, all of the
conspirators are liable as co-principals regardless of the extent
and character of their respective active participation in the
commission of the crime or crimes perpetrated in furtherance of
the conspiracy because in contemplation of law the act of one is
the act of all.15 The foregoing rule is anchored on the sound
principle that "when two or more persons unite to accomplish a
criminal object, whether through the physical volition of one, or
all, proceeding severally or collectively, each individual whose evil
will actively contributes to the wrong-doing is in law responsible
for the whole, the same as though performed by himself
alone."16 Although it is axiomatic that no one is liable for acts
other than his own, "when two or more persons agree or conspire
to commit a crime, each is responsible for all the acts of the
others, done in furtherance of the agreement or
conspiracy."17 The imposition of collective liability upon the
conspirators is clearly explained in one case 18 where this Court
held that
... it is impossible to graduate the separate liability of each
(conspirator) without taking into consideration the close and
inseparable relation of each of them with the criminal act, for the
commission of which they all acted by common agreement ... The
crime must therefore in view of the solidarity of the act and intent
which existed between the ... accused, be regarded as the act of
the band or party created by them, and they are all equally
responsible ...
Verily, the moment it is established that the malefactors conspired
and confederated in the commission of the felony proved,
collective liability of the accused conspirators attaches by reason
of the conspiracy, and the court shall not speculate nor even
investigate as to the actual degree of participation of each of the
perpetrators present at the scene of the crime. Of course, as to
any conspirator who was remote from the situs of aggression, he
could be drawn within the enveloping ambit of the conspiracy if it
be proved that through his moral ascendancy over the rest of the
conspirators the latter were moved or impelled to carry out the
conspiracy.
In fine, the convergence of the wills of the conspirators in the
scheming and execution of the crime amply justifies the
imputation to all of them the act of any one of them. It is in this
light that conspiracy is generally viewed not as a separate
indictable offense, but a rule for collectivizing criminal liability.
The ensnaring nature of conspiracy is projected in bold relief in
the cases of malversation and rape committed in furtherance of a
common design.
The crime of malversation is generally committed by an
accountable public officer who misappropriates public funds or
public property under his trust.19 However, in the classic case
of People vs. Ponte20 this Court unequivocally held that a janitor
and five municipal policemen, all of whom were not accountable
public officers, who conspired and aided a municipal treasurer in
the malversation of public funds under the latter's custody, were
principally liable with the said municipal treasurer for the crime of
malversation. By reason of conspiracy, the felonious act of the
accountable public officer was imputable to his co-conspirators,
although the latter were not similarly situated with the former in
46
relation to the object of the crime committed. Furthermore, in the
words of Groizard, "the private party does not act independently
from the public officer; rather, he knows that the funds of which
he wishes to get possession are in the latter's charge, and instead
of trying to abstract them by circumventing the other's vigilance
he resorts to corruption, and in the officer's unfaithfulness seeks
and finds the most reprehensible means of accomplishing a deed
which by having a public officer as its moral instrument assumes
the character of a social crime." 21 In an earlier case22 a non-
accountable officer of the Philippine Constabulary who conspired
with his superior, a military supply officer, in the malversation of
public funds was adjudged guilty as co-principal in the crime of
malversation, although it was not alleged, and in fact it clearly
appeared, that the funds misappropriated were not in his custody
but were under the trust of his superior, an accountable public
officer.
In rape, a conspirator is guilty not only of the sexual assault he
personally commits but also of the separate and distinct crimes of
rape perpetrated by his co-conspirators. He may have had carnal
knowledge of the offended woman only once but his liability
includes that pertaining to all the rapes committed in furtherance
of the conspiracy. Thus, in People vs. Villa,23 this Court held that
... from the acts performed by the defendants front the time they
arrived at Consolacion's house to the consummation of the
offense of rape on her person by each and everyone of them, it
clearly appears that they conspired together to rape their victim,
and therefore each one is responsible not only for the rape
committed personally by him, but also that committed by the
others, because each sexual intercourse had, through force, by
each one of the defendants with the offended was consummated
separately and independently from that had by the others, for
which each and every one is also responsible because of the
conspiracy.
The rule enunciated in People vs. Villa was reiterated in People vs.
Quitain24 where the appellant Teofilo Anchita was convicted of
forcible abduction with double rape for having conspired and
cooperated in the sexual assault of the aggrieved woman,
although he himself did not actually rape the victim. This Court
observed:
We have no doubt all in all that Teofilo Anchita took part in the
sexual assault ... the accused inserted his fingers in the woman's
organ, and widened it. Whether he acted out of lewdness or to
help his brother-in-law consummate the act, is immaterial; it was
both maybe. Yet, surely, by his conduct, this prisoner conspired
and cooperated, and is guilty.
With respect to robbery in band, the law presumes the attendance
of conspiracy so much so that "any member of a band who is
present at the commission of a robbery by the band, shall be
punished as principal of any of the assaults committed by the
band, unless it be shown that he attempted to prevent the
same."25 In this instance, conspiracy need not be proved, as long
as the existence of a band is clearly established. Nevertheless, the
liability of a member of the band for the assaults committed by
his group is likewise anchored on the rule that the act of one is
the act of all.
Proof of conspiracy. While conspiracy to commit a crime must be
established by positive evidence, 26 direct proof is not essential to
show conspiracy.27 Since by it nature, conspiracy is planned in
utmost secrecy, it can seldom be proved by direct
evidence.28 Consequently, competent and convincing
circumstantial evidence will suffice to establish conspiracy.
29
According to People vs. Cabrera,  conspiracies are generally
proved by a number of indefinite acts, conditions, and
circumstances which vary according to the purposes to be
accomplished. If it be proved that the defendants pursued by their
acts the same object, one performing one part and another
another part of the same, so as to complete it, with a view to the
attainment of the same object, one will be justified in the
conclusion that they were engaged in a conspiracy to effect the
object." Or as elucidated in People vs. Carbonel30 the presence of
the concurrence of minds which is involved in conspiracy may be
inferred from "proofs of facts and circumstances which, taken
together, apparently indicate that they are merely parts of some
complete whole. If it is proved that two or more persons aimed by
their acts towards the accomplishment of the same unlawful
object, each doing a part so that their acts, though apparently
independent, were in fact connected and cooperative, indicating a
closeness of personal association and a concurrence of sentiment,
a conspiracy may be inferred though no actual meeting among to
concert means is proved ..." In two recent cases, 31 this Court
ruled that where the acts of the accused, collectively and
individually, clearly demonstrate the existence of a common
design toward the accomplishment of the same unlawful purpose,
conspiracy is evident.
Conspiracy presupposes the existence of a preconceived plan or
agreement; however, to establish conspiracy, "it is not essential
that there be proof as to previous agreement to commit a crime,
it being sufficient that the malefactors committed shall have acted
in concert pursuant to the same objective." 32 Hence, conspiracy is
proved if there is convincing evidence to sustain a finding that the
malefactors committed an offense in furtherance of a common
objective pursued in concert.
Liability of conspirators. A time-honored rule in the corpus of our
jurisprudence is that once conspiracy is proved, all of the
conspirators who acted in furtherance of the common design are
liable as co-principals.33 This rule of collective criminal liability
emanates from the ensnaring nature of conspiracy. The concerted
action of the conspirators in consummating their common purpose
is a patent display of their evil partnership, and for the
consequences of such criminal enterprise they must be held
solidarity liable.
However, in order to hold an accused guilty as co-principal by
reason of conspiracy, it must be established that he performed an
overt act in furtherance of the conspiracy, either by actively
participating in the actual commission of the crime, or by lending
moral assistance to his co-conspirators by being present at the
scene of the crime, or by exerting moral ascendancy over the rest
of the conspirators as to move them to executing the conspiracy.
The difference between an accused who is a principal under any of
the three categories enumerated in Art. 17 of the Revised Penal
Code and a co-conspirator who is also a principal is that while the
former's criminal liability is limited to his own acts, as a general
rule, the latter's responsibility includes the acts of his fellow
conspirators.
In People vs. Izon, et al.,34 this Court acquitted appellant
Francisco Robles, Jr., who was convicted by the trial court of
robbery with homicide as a conspirator, on the ground that
although he may have been present when the conspiracy to rob
was proposed and made, "Robles uttered not a word either of
approval or disapproval. There are authorities to the effect that
mere presence at the discussion of a conspiracy, even approval of
it, without any active participation in the same, is not enough for
purposes of conviction." In a more recent case, 35this Court, in
exonerating one of the appellants, said:
There is ample and positive evidence on record that appellant
Jose Guico was absent not only from the second meeting but
likewise from the robbery itself. To be sure, not even the decision
under appeal determined otherwise. Consequently, even if Guico's
participation in the first meeting sufficiently involved him with the
conspiracy (as he was the one who explained the location of the
house to be robbed in relation to the surrounding streets and the
points thereof through which entrance and exit should be
effected), such participation and involvement, however, would be
inadequate to render him criminally liable as a conspirator.
Conspiracy alone, without the execution of its purpose, is not a
47
crime punishable by law, except in special instances (Article 8,
Revised Penal Code) which, however, do not include robbery.
Imposition of multiple penalties where conspirators commit more
than one offense. Since in conspiracy, the act of one is the act of
all, then, perforce, each of the conspirators is liable for all of the
crimes committed in furtherance of the conspiracy. Consequently,
if the conspirators commit three separate and distinct crimes of
murder in effecting their common design and purpose, each of
them is guilty of three murders and shall suffer the corresponding
penalty for each offense. Thus in People vs. Masin,36 this Court
held:
... it being alleged in the information that three crimes were
committed not simultaneously indeed but successively, inasmuch
as there was, at least, solution of continuity between each
other, the accused (seven in all) should be held responsible for
said crimes. This court holds that the crimes are murder ... In
view of all these circumstances and of the frequently reiterated
doctrine that once conspiracy is proven each and every one of the
conspirators must answer for the acts of the others, provided said
acts are the result of the common plan or purpose ... it would
seem evident that the penalty that should be imposed upon each
of the appellants for each of their crimes should be the same, and
this is the death penalty ... (emphasis supplied).
In the aforesaid case, however, the projected imposition of three
death penalties upon each of the conspirators for the three
murders committed was not carried out due to the lack of the
then requisite unanimity in the imposition of the capital penalty.
In another case,37 this Court, after finding that conspiracy
attended the commission of eleven murders, said through Mr.
Justice Tuason:
Some members of this Court opine that the proper penalty is
death, under the circumstances of the case, but they fall short of
the required number for the imposition of this punishment. The
sentence consequently is reclusion perpetua; but each appellant
is guilty of as many crimes of murder as there were deaths
(eleven) and should be sentenced to life imprisonment for each
crime, although this may be a useless formality for in no case can
imprisonment exceed forty years. (Emphasis supplied.)
In People vs. Masani,38 the decision of the trial court imposing
only one life imprisonment for each of the accused was modified
by this Court on appeal on the ground that "inasmuch as their
(the conspirators') combined attack resulted in the killing of three
persons, they should be sentenced to suffer said penalty
(reclusion perpetua) for each of the three victims (crimes)."
(Emphasis supplied.)
It is significant to note that in the abovementioned cases, this
Court consistently stressed that once conspiracy is ascertained,
the culpability of the conspirators is not only solidary (all co-
principals) but also multiple in relation to the number of felonies
committed in furtherance of the conspiracy. It can also be said
that had there been a unanimous Court in
the Masin and Macaso cases, multiple death penalties would have
been imposed upon all the conspirators.
Legality and practicality of imposing multiple death penalties upon
conspirators. An accused who was charged with three distinct
crimes of murder in a single information was sentenced to two
death penalties for two murders,39 and another accused to
thirteen (13) separate death penalties for the 13 killings he
perpetrated.40 Therefore there appears to be no legal reason why
conspirators may not be sentenced to multiple death penalties
corresponding to the nature and number of crimes they commit in
furtherance of a conspiracy. Since it is the settled rule that once
conspiracy is established, the act of one conspirator is attributable
to all, then each conspirator must be held liable for each of the
felonious acts committed as a result of the conspiracy, regardless
of the nature and severity of the appropriate penalties prescribed
by law.
The rule on the imposition of multiple penalties where the accused
is found guilty of two or more separate and distinct crimes
charged in one information, the accused not having interposed
any objection to the multiplicity of the charges, was enunciated in
the leading case of U.S. vs. Balaba,41 thus: Upon conviction of two
or more offenses charged in the complaint or information, the
prescribed penalties for each and all of such offenses may be
imposed, to be executed in conformity with the provisions of
article 87 of the Penal Code [now article 70 of the Revised Penal
Code]. In other words, all the penalties corresponding to the
several violations of law should be imposed. Conviction for
multiple felonies demands the imposition of multiple penalties.
The two conceptual exceptions to the foregoing rule, are the
complex crime under article 48 of the Revised Penal Code and the
special complex crime (like robbery with homicide). Anent an
ordinary complex crime falling under article 48, regardless of the
multiplicity of offenses committed, there is only one imposable
penalty — the penalty for the most serious offense applied in its
maximum period. Similarly, in special complex crimes, there is
but a single penalty prescribed by law notwithstanding the
number of separate felonies committed. For instance, in the
special complex crime of robbery with hommicide the imposible
penalty is reclusion perpetua to death42 irrespective of the number
of homicides perpetrated by reason or on occasion of the robbery.
In Balaba, the information charged the accused with triple
murder. The accused went to trial without objection to the said
information which charged him with more than one offense. The
trial court found the accused guilty of two murders and one
homicide but it imposed only one death penalty. In its review en
consulta, this Court modified the judgment by imposing separate
penalties for each of the three offenses committed. The Court,
thru Mr. Justice Carson (with Mr. Justice Malcolm dissenting with
respect to the imposition of two death penalties), held:
The trial judge was erroneously of the opinion that the prescribed
penalties for the offenses of which the accused was convicted
should be imposed in accord with the provisions of article 89 of
the Penal Code. That article is only applicable to cases wherein a
single act constitutes two or more crimes, or when one offense is
a necessary means for committing the other. (U.S. vs. Ferrer, 1
Phil. Rep., 56)
It becomes our duty, therefore, to determine what penalty or
penalties should have been imposed upon the accused upon
conviction of the accused of three separate felonies charged in the
information.
There can be no reasonable doubt as to the guilt of the convict of
two separate crimes of asesinato (murder) marked with the
generic aggravating circumstances mentioned in the decision of
the trial judge ... It follows that the death penalty must and
should be imposed for each of these offenses ...
Unless the accused should be acquitted hereafter on appeal of one
or both the asesinatos with which he is charged in the
information, it would seem to be a useless formality to impose
separate penalties for each of the offenses of which he was
convicted, in view of the nature of the principal penalty; but
having in mind the possibility that the Chief Executive may deem
it proper to grant a pardon for one or more of the offenses
without taking action on the others; and having in mind also the
express provisions of the above cited article 87 of the Penal Code,
we deem it proper to modify the judgment entered in the court
below by substituting for the penalty imposed by the trial judge
under the provisions of article 89 of the Code, the death penalty
prescribed by law for each of the two separate asesinatos of
48
which he stands convicted, and the penalty of 14 years, 8 months
and 1 day of reclusion temporal (for the separate crime of
homicide) ... these separate penalties to be executed in accord
with the provisions of article 87 of the Penal Code. (Emphasis
supplied.)
The doctrine in Balaba was reiterated in U.S. vs. Jamad43 where a
unanimous Court, speaking again thru Mr. Justice Carson (with
Mr. Justice Malcolm concurring in the result in view of
the Balaba ruling), opined:
For all the offenses of which the accused were convicted in the
court below, the trial judge imposed the death penalty, that is to
say the penalty prescribed for the most serious crime committed,
in its maximum degree, and for this purpose made use of the
provisions of article 89 of the Penal Code [now article 48 of the
Revised Penal Code]. But as indicated in the case of the United
States vs. Balaba, recently decided wherein the controlling facts
were substantially similar to those in the case at bar, "all of the
penalties corresponding to the several violations of law" should
have been imposed under the express provisions of article 87
[now engrafted in article 70 of the Revised Penal Code] and under
the ruling in that case, the trial court erred in applying the
provision of article 89 of the code.
We conclude that the judgment entered in the court below should
be reversed, ... and that the following separate penalties should
be imposed upon him [the accused Jamad], to be executed in
accordance with article 87 of the Penal Code: (1) The penalty of
death for the parricide of his wife Aring; (2) the penalty of life
imprisonment for the murder of Labonete; (3) the penalty of life
imprisonment for the murder of Torres; (4) the penalty of 12
years and one day of cadena temporal for the frustrated murder
of Taclind ...
The doctrine in Balaba was reechoed in People vs.
Guzman,44 which applied the pertinent provisions of the Revised
Penal Code, where this Court, after finding the accused liable as
co-principals because they acted in conspiracy, proceeded to
stress that where an "information charges the defendants with the
commission of several crimes of murder and frustrated murder, as
they failed to object to the multiplicity of the charges made in the
information, they can be found guilty thereof and sentenced
accordingly for as many crimes the information charges them,
provided that they are duly established and proved by the
evidence on record." (Emphasis supplied.)
The legal and statutory justification advanced by the majority
in Balaba for imposing all the penalties (two deaths and one life
imprisonment) corresponding to the offense charged and proved
was article 87 of the old Penal Code which provided:
When a person is found guilty of two or more felonies or
misdemeanors, all the penalties corresponding to the several
violations of law shall be imposed, the same to be simultaneously
served, if possible, according to the nature and effects of such
penalties.
in relation to article 88 of the old Code which read:
When all or any of the penalties corresponding to the several
violations of the law can not be simultaneously executed, the
following rules shall be observed with regard thereto:
1. In the imposition of the penalties, the order of their respective
severity shall be followed so that they may be executed
successively or as nearly as may be possible, should a pardon
have been granted as to the penalty or penalties first imposed, or
should they have been served out.
The essence and language, with some alterations in form and in
the words used by reason of style, of the above-cited provisions
have been preserved in article 70 of the Revised Penal Code which
is the product of the merger of articles 87 and 88 of the old Penal
Code. Article 70 provides:
When the culprit has to serve two or more penalties, he shall
serve them simultaneously if the nature of the penalties will so
permit; otherwise, the following rules shall be observed:
In the imposition of the penalties, the order of their respective
severity shall be followed so that they may be executed
successively or as nearly as may be possible, should a pardon
have been granted as to the penalty or penalties first imposed, or
should they have been served out.
Although article 70 does not specifically command, as the former
article 87 clearly did, that "all the penalties corresponding to the
several violations of law shall be imposed," it is unmistakable,
however, that article 70 presupposes that courts have the power
to impose multiple penalties, which multiple penal sanctions
should be served either simultaneously or successively. This
presumption of the existence of judicial power to impose all the
penalties corresponding to the number and nature of the offenses
charged and proved is manifest in the opening sentence of article
70: "When the culprit has to serve two or more penalties, he shall
serve them simultaneously if the nature of the penalties will so
permit ..." (Emphasis supplied.) Obviously, the two or more
penalties which the culprit has to serve are those legally imposed
by the proper court. Another reference to the said judicial
prerogative is found in the second paragraph of article 70 which
provides that "in the imposition of the  penalties, the order of their
respective severity shall be followed ..." Even without the
authority provided by article 70, courts can still impose as many
penalties as there are separate and distinct offenses committed,
since for every individual crime committed, a corresponding
penalty is prescribed by law. Each single crime is an outrage
against the State for which the latter, thru the courts ofjustice,
has the power to impose the appropriate penal sanctions.
With respect to the imposition of multiple death penalties, there is
no statutory prohibition or jurisprudential injunction against it. On
the contrary, article 70 of the Revised Penal Code presumes that
courts have the power to mete out multiple penalties without
distinction as to the nature and severity of the penalties.
Moreover, our jurisprudence supports the imposition of multiple
death penalties as initially advocated in Balaba and thunderously
reechoed in Salazar where the accused was sentenced on appeal
to thirteen (13) death penalties. Significantly, the Court
in Balaba imposed upon the single accused mixed multiple
penalties of two deaths and one life imprisonment.
The imposition of multiple death penalties is decried by some as a
useless formality, an exercise in futility. It is contended,
undeniably enough, that a death convict like all mortals, has only
one life to forfeit. And because of this physiological and biological
attribute of man, it is reasoned that the imposition of multiple
death penalties is impractical and futile because after the service
of one capital penalty, the execution of the rest of the death
penalties will naturally be rendered impossible. The foregoing
opposition to the multiple imposition of death penalties suffers
from four basic flaws: (1) it fails to consider the legality of
imposing multiple capital penalties; (2) it fails to distinguish
between imposition of penalty and service of sentence; (3) it
ignores the fact that multiple death sentences could be served
simultaneously; and (4) it overlooks the practical merits of
imposing multiple death penalties.
The imposition of a penalty and the service of sentence are two
distinct, though related, concepts. The imposition of the proper
penalty or penalties is determined by the nature, gravity and
number of offenses charged and, proved, whereas service of
sentence is determined by the severity and character of the
49
penalty or penalties imposed. In the imposition of the proper
penalty or penalties, the court does not concern itself with the
possibility or practicality of the service of the sentence, since
actual service is a contingency subject to varied factors like
successful escape of the convict, grant of executive clemency or
natural death of the prisoner. All that go into the imposition of the
proper penalty or penalties, to reiterate, are the nature, gravity
and number of the offenses charged and proved and the
corresponding penalties prescribed by law.
Multiple death penalties are not impossible to serve because they
will have to be executed simultaneously. A cursory reading of
article 70 will show that there are only two modes of serving two
or more (multiple) penalties: simultaneously or successively. The
first rule is that two or more penalties shall be served
simultaneously if the nature of the penalties will so permit. In the
case of multiple capital penalties, the nature of said penal
sanctions does not only permit but actually necessitates
simultaneous service.
The imposition of multiple death penalties, far from being a
useless formality, has practical importance. The sentencing of an
accused to several capital penalties is an indelible badge of his
extreme criminal perversity, which may not be accurately
projected by the imposition of only one death sentence
irrespective of the number of capital felonies for which he is liable.
Showing thus the reprehensible character of the convict in its real
dimensions, the possibility of a grant of executive clemency is
justifiably reduced in no small measure. Hence, the imposition of
multiple death penalties could effectively serve as a deterrent to
an improvident grant of pardon or commutation. Faced with the
utter delinquency of such a convict, the proper penitentiary
authorities would exercise judicious restraint in recommending
clemency or leniency in his behalf.
Granting, however, that the Chief Executive, in the exercise of his
constitutional power to pardon (one of the presidential
prerogatives which is almost absolute) deems it proper to
commute the multiple death penalties to multiple life
imprisonments, then the practical effect is that the convict has to
serve the maximum of forty (40) years of multiple life sentences.
If only one death penalty is imposed, and then is commuted to life
imprisonment, the convict will have to serve a maximum of only
thirty years corresponding to a single life sentence.
Reverting now to the case at bar, it is our considered view that
the trial court correctly ruled that conspiracy attended the
commission of the murders. We quote with approval the following
incisive observations of the court a quo in this respect:
Although, there is no direct evidence of conspiracy, the Court can
safely say that there are several circumstances to show that the
crime committed by the accused was planned. The following
circumstances show beyond any doubt the acts of
conspiracy: First, all those who were killed, Barbosa, Santos Cruz
and Carriego, were Tagalogs. Although there were many Tagalogs
like them confined in Building 4, these three were singled out and
killed thereby showing that their killing has been
planned. Second, the accused were all armed with improvised
weapons showing that they really prepared for the
occasion. Third, the accused accomplished the killing with team
work precision going from one brigade to another and attacking
the same men whom they have previously marked for liquidation
and lastly, almost the same people took part in the killing of
Carriego, Barbosa and Santos Cruz.
It is also important to note that all the accused were inmates of
brigade 4-A; that all were from either the Visayas or Mindanao
except Peralta who is from Masbate and Parumog who hails from
Nueva Ecija; that all were either "OXO" members or
sympathizers; and that all the victims were members of the
"Sigue-Sigue" gang.
The evidence on record proves beyond peradventure that the Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Sanchez,
accused acted in concert from the moment they bolted their Castro, Angeles, Fernando and Capistrano, JJ., concur.
common brigade, up until the time they killed their last victim, Zaldivar, J., is on leave.
Santos Cruz. While it is true that Parumog, Larita and Luna did
not participate in the actual killing of Carriego, nonetheless, as co-
conspirators they are equally guilty and collectively liable for in
conspiracy the act of one is the act of all. It is not indispensable
that a co-conspirator should take a direct part in every act and
should know the part which the others have to perform.
Conspiracy is the common design to commit a felony; it is not
participation in all the details of the execution of the crime. All
those who in one way or another help and cooperate in the
consummation of a felony previously planned are co-
principals.45 Hence, all of the six accused are guilty of the
slaughter of Carriego, Barbosa and Santos Cruz — each is guilty
of three separate and distinct crimes of murder.

We cannot agree, however, with the trial court that evident

premeditation was also present. The facts on record and the
established jurisprudence on the matter do not support the
conclusion of the court a quo that evident premeditation "is
always present and inherent in every conspiracy." Evident
premeditation is not inherent in conspiracy as the absence of the
former does not necessarily negate the existence of the
latter.46 Unlike in evident premeditation where a sufficient period
of time must elapse to afford full opportunity for meditation and
reflection for the perpetrator to deliberate on the consequences of
his intended deed, conspiracy arises at the very instant the
plotters agree, expressly or impliedly, to commit the felony and
forthwith decide to commit it.47 This view finds added support
in People vs. Custodia,48 wherein this Court stated:

Under normal conditions, where the act of conspiracy is directly

established, with proof of the attendant deliberation and selection
of the method, time and means of executing the crime, the
existence of evident premeditation can be taken for granted. In
the case before us, however, no such evidence exists; the
conspiracy is merely inferred from the acts of the accused in the
perpetration of the crime. There is no proof how and when the
plan to kill Melanio Balancio was hatched, or what time elapsed
before it was carried out; we are, therefore, unable to determine
if the appellants enjoyed "sufficient time between its inception
and its fulfillment dispassionately to consider and accept the
consequences." (cf. People vs. Bangug, 52 Phil. 91.) In other
words, there is no showing of the opportunity of reflection and the
persistence in the criminal intent that characterize the
aggravating circumstance of evident premeditation (People vs.
Mendoza, 91 Phil. 58; People vs. Iturriaga, 47 Off. Gaz., [Supp to
No. 12] 166; People vs. Lesada 70 Phil., 525.)

Not a single extenuating circumstance could be appreciated in

favor of any of the six accused, as they did neither allege nor
prove any.

In view of the attendance of the special aggravating circumstance

of quasi-recidivism, as all of the six accused at the time of the
commission of the offenses were serving sentences49 in the New
Bilibid Prison at Muntinlupa by virtue of convictions by final
judgments the penalty for each offense must be imposed in its
maximum period, which is the mandate of the first paragraph of
article 160 of the Revised Penal Code. Viada observes, in
apposition, that the severe penalty imposed on a quasi-
recidivist is justified because of his perversity and incorrigibility. 50

ACCORDINGLY, the judgment a quo is hereby modified as follows:

Amadeo Peralta, Andres Factora, Leonardo Dosal, Angel Parumog,
Gervasio Larita and Florencio Luna are each pronounced guilty of
three separate and distinct crimes of murder, and are each
sentenced to three death penalties; all of them shall, jointly and
severally, indemnify the heirs of each of the three deceased
victims in the sum of P12,000; 51 each will pay one-sixth of the
costs.

50
 EN BANC
G.R. No. 148965               February 26, 2002
JOSE "JINGGOY" E. ESTRADA, petitioner,
vs.
SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE
PHILIPPINES and OFFICE OF THE
OMBUDSMAN, respondents.
DECISION
PUNO, J.:
A law may not be constitutionally infirm but its application to a
particular party may be unconstitutional. This is the submission of
the petitioner who invokes the equal protection clause of the
Constitution in his bid to be excluded from the charge of plunder
filed against him by the respondent Ombudsman.
The antecedent facts are as follows:
In November 2000, as an offshoot of the impeachment
proceedings against Joseph Ejercito Estrada, then President of the
Republic of the Philippines, five criminal complaints against the
former President and members of his family, his associates,
friends and conspirators were filed with the respondent Office of
the Ombudsman.
On April 4, 2001, the respondent Ombudsman issued a Joint
Resolution1 finding probable cause warranting the filing with the
Sandiganbayan of several criminal Informations against the
former President and the other respondents therein. One of the
Informations was for the crime of plunder under Republic Act No.
7080 and among the respondents was herein petitioner Jose
"Jinggoy" Estrada, then mayor of San Juan, Metro Manila.
The Information was amended and filed on April 18, 2001.
Docketed as Criminal Case No. 26558, the case was assigned to
respondent Third Division of the Sandiganbayan. The arraignment
of the accused was set on July 10, 2001 and no bail for
petitioner’s provisional liberty was fixed.
On April 24, 2001, petitioner filed a "Motion to Quash or Suspend"
the Amended Information on the ground that the Anti-Plunder
Law, R.A. No. 7080, is unconstitutional and that it charged more
than one offense. Respondent Ombudsman opposed the motion.
On April 25, 2001, the respondent court issued a warrant of arrest
for petitioner and his co-accused. On its basis, petitioner and his
co-accused were placed in custody of the law.
On April 30, 2001, petitioner filed a "Very Urgent Omnibus
Motion"2 alleging that: (1) no probable cause exists to put him on
trial and hold him liable for plunder, it appearing that he was only
allegedly involved in illegal gambling and not in a "series or
combination of overt or criminal acts" as required in R.A. No.
7080; and (2) he is entitled to bail as a matter of right. Petitioner
prayed that he be excluded from the Amended Information and be
discharged from custody. In the alternative, petitioner also prayed
that he be allowed to post bail in an amount to be fixed by
respondent court.3
On June 28, 2001, petitioner filed a "Motion to Resolve Mayor Jose
‘Jinggoy’ Estrada’s Motion To Fix Bail On Grounds That An
Outgoing Mayor Loses Clout An Incumbent Has And That On Its
Face, the Facts Charged In The Information Do Not Make Out A
Non-Bailable Offense As To Him."4
On July 3, 2001, petitioner filed a "Motion to Strike Out So-Called
‘Entry of Appearance,’ To Direct Ombudsman To Explain Why He
Attributes Impropriety To The Defense And To Resolve Pending
Incidents."5
51
On July 9, 2001, respondent Sandiganbayan issued a Resolution
denying petitioner’s "Motion to Quash and Suspend" and "Very
Urgent Omnibus Motion." 6 Petitioner’s alternative prayer to post
bail was set for hearing after arraignment of all accused. The
court held:
"WHEREFORE, in view of the foregoing, the Court hereby DENIES
for lack of merit the following: (1) MOTION TO QUASH AND
SUSPEND dated April 24, 2001 filed by accused Jose ‘Jinggoy’
Estrada; (2) MOTION TO QUASH dated June 7, 2001 filed by
accused Joseph Ejercito Estrada; and (3) MOTION TO QUASH (Re:
Amended Information dated 18 April 2001) dated June 26, 2001
filed by accused Edward S. Serapio.
Considering the denial of the MOTION TO QUASH AND SUSPEND
of accused Jose ‘Jinggoy’ Estrada, his VERY URGENT OMNIBUS
MOTION, praying that he be: (1) dropped from the information for
plunder for want of probable cause and (2) discharged from
custody immediately which is based on the same grounds
mentioned in this MOTION TO QUASH AND SUSPEND is hereby
DENIED. Let his alternative prayer in said OMNIBUS MOTION that
he be allowed to post bail be SET for hearing together with the
petition for bail of accused Edward S. Serapio scheduled for July
10, 2001, at 2:00 o’clock in the afternoon after the arraignment
of all the accused."7
The following day, July 10, 2001, petitioner moved for
reconsideration of the Resolution. Respondent court denied the
motion and proceeded to arraign petitioner. Petitioner refused to
make his plea prompting respondent court to enter a plea of "not
guilty" for him.8
Hence, this petition. Petitioner claims that respondent
Sandiganbayan acted without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack of jurisdiction in:
"1) not declaring that R.A. No. 7080 is unconstitutional
on its face and, as applied to petitioner, and denying
him the equal protection of the laws;
2) not holding that the Plunder Law does not provide
complete and sufficient standards;
3) sustaining the charge against petitioner for alleged
offenses, and with alleged conspirators, with which and
with whom he is not even remotely connected - contrary
to the dictum that criminal liability is personal, not
vicarious - results in the denial of substantive due
process;
4) not fixing bail for petitioner for alleged involvement in
jueteng in one count of the information which amounts
to cruel and unusual punishment totally in defiance of
the principle of proportionality."9
We shall resolve the arguments of petitioner in seriatim.
I.
Petitioner contends that R.A. No. 7080 is unconstitutional on its
face and as applied to him and denies him the equal protection of
the laws.10
The contention deserves our scant attention. The constitutionality
of R.A. No. 7080, the Anti-Plunder Law, has been settled in the
case of Estrada v. Sandiganbayan.11 We take off from the
Amended Information which charged petitioner, together with
former President Joseph E. Estrada, Atty. Edward Serapio, Charlie
"Atong" Ang, Yolanda T. Ricaforte and others, with the crime of
plunder as follows:
"AMENDED INFORMATION
The undersigned Ombudsman Prosecutor and OIC-Director,
EPIB Office of the Ombudsman, hereby accuses
former PRESIDENT OF THE PHILIPPINES, Joseph Ejercito
Estrada a.k.a. "ASIONG SALONGA" AND a.k.a "JOSE
VELARDE", together with Jose ‘Jinggoy’ Estrada, Charlie
‘Atong’ Ang, Edward Serapio, Yolanda T. Ricaforte, Alma
Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos
Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and
John DOES & Jane Does, of the crime of Plunder, defined
and penalized under R.A. No. 7080, as amended by Sec. 12
of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January, 2001,
in the Philippines, and within the jurisdiction of this
Honorable Court, accused Joseph Ejercito Estrada, THEN A
PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACY with his co-
accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES
BY AFFINITY OR CONSANGUINITY, BUSINESS
ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS,
BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL
POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR
INFLUENCE, did then and there wilfully, unlawfully and
criminally amass, accumulate and acquire BY HIMSELF,
DIRECTLY OR INDIRECTLY, ill-gotten wealth in the
aggregate amount OR TOTAL VALUE of FOUR BILLION
NINETY SEVEN MILLION EIGHT HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND
SEVENTEEN CENTAVOS [P4,097,804,173.17], more or
less, THEREBY UNJUSTLY ENRICHING HIMSELF OR
THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF
THE FILIPINO PEOPLE AND THE REPUBLIC OF THE
PHILIPPINES, through ANY OR A combination OR A series
of overt OR criminal acts, OR SIMILAR SCHEMES OR
MEANS, described as follows:
(a) by receiving OR collecting, directly or
indirectly, on SEVERAL INSTANCES, MONEY IN THE
AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-
FIVE MILLION PESOS (P545,000,000.00), MORE
OR LESS, FROM ILLEGAL GAMBLING IN THE FORM
OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY
FORM OF PECUNIARY BENEFIT, BY HIMSELF
AND/OR in connivance with co-accused CHARLIE
‘ATONG’ ANG, Jose ‘Jinggoy’ Estrada, Yolanda T.
Ricaforte, Edward Serapio, AN (sic)  JOHN DOES
AND JANE DOES, in consideration OF TOLERATION
OR PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating,
converting OR misusing DIRECTLY OR
INDIRECTLY, for HIS OR THEIR PERSONAL gain
and benefit, public funds in the amount of ONE
HUNDRED THIRTY MILLION PESOS
[P130,000,000.00], more or less, representing a
portion of the TWO HUNDRED MILLION PESOS
[P200,000,000] tobacco excise tax share allocated
for the Province of Ilocor Sur under R.A. No.
7171, BY HIMSELF AND/OR in CONNIVANCE with
co-accused Charlie ‘Atong’ Ang, Alma Alfaro, JOHN
DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan
or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND
OTHER JOHN DOES AND JANE DOES;
(c) by directing, ordering and compelling, FOR HIS
PERSONAL GAIN AND BENEFIT, the Government
Service Insurance System (GSIS) TO PURCHASE
52
351,878,000 SHARES OF STOCK MORE OR LESS,
and the Social Security System (SSS), 329,855,000
SHARES OF STOCK MORE OR LESS, OF THE BELLE
CORPORATION IN THE AMOUNT OF MORE OR LESS
ONE BILLION ONE HUNDRED TWO MILLION NINE
HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED
SEVEN PESOS AND FIFTY CENTAVOS
[P1,102,965,607.50] AND MORE OR LESS SEVEN
HUNDRED FORTY FOUR MILLION SIX HUNDRED
TWELVE THOUSAND AND FOUR HUNDRED FIFTY
PESOS [P744,612,450.00], RESPECTIVELY, OR A
TOTAL OF MORE OR LESS ONE BILLION EIGHT
HUNDRED FORTY SEVEN MILLION FIVE HUNDRED
SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS
AND FIFTY CENTAVOS [P1,847,578,057.50]; AND
BY COLLECTING OR RECEIVING, DIRECTLY OR
INDIRECTLY, BY HIMSELF AND/OR IN
CONNIVANCE WITH JOHN DOES AND JANE DOES,
COMMISSIONS OR PERCENTAGES BY REASON OF
SAID PURCHASES OF SHARES OF STOCK IN THE
AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION
SEVEN HUNDRED THOUSAND PESOS
[P189,700,000.00], MORE OR LESS, FROM THE
BELLE CORPORATION WHICH BECAME PART OF
THE DEPOSIT IN THE EQUITABLE-PCI BANK
UNDER THE ACCOUNT NAME "JOSE VELARDE";
(d) by unjustly enriching himself FROM
COMMISSIONS, GIFTS, SHARES, PERCENTAGES,
KICKBACKS, OR ANY FORM OF PECUNIARY
BENEFITS, IN CONNIVANCE WITH JOHN DOES AND
JANE DOES, in the amount of MORE OR
LESS THREE BILLION TWO HUNDRED THIRTY
THREE MILLION ONE HUNDRED FOUR THOUSAND
ONE HUNDRED SEVENTY THREE PESOS AND
SEVENTEEN CENTAVOS [P3,233,104,173.17] AND
DEPOSITING THE SAME UNDER HIS ACCOUNT
NAME "JOSE VELARDE" AT THE EQUITABLE-PCI
BANK.
CONTRARY TO LAW.
Manila for Quezon City, Philippines, 18 April 2001"12
Petitioner’s contention that R.A. No. 7080 is unconstitutional as
applied to him is principally perched on the premise that the
Amended Information charged him with only one act or one
offense which cannot constitute plunder. He then assails the
denial of his right to bail.
Petitioner’s premise is patently false. A careful examination of the
Amended Information will show that it is divided into three (3)
parts: (1) the first paragraph charges former President Joseph E.
Estrada with the crime of plunder together with petitioner Jose
"Jinggoy" Estrada, Charlie "Atong" Ang, Edward Serapio, Yolanda
Ricaforte and others; (2) the second paragraph spells out in
general terms how the accused conspired in committing the crime
of plunder; and (3) the following four sub-paragraphs (a) to (d)
describe in detail the predicate acts constitutive of the crime of
plunder pursuant to items (1) to (6) of R.A. No. 7080, and state
the names of the accused who committed each act.
Pertinent to the case at bar is the predicate act alleged in
sub-paragraph (a) of the Amended Information which is of
"receiving or collecting, directly or indirectly, on several
instances, money in the aggregate amount of ₱545,000,000.00
for illegal gambling in the form of gift, share, percentage,
kickback or any form of pecuniary benefit x x x." In this sub-
paragraph (a), petitioner, in conspiracy with former President
Estrada, is charged with the act of receiving or collecting money
from illegal gambling amounting to ₱545 million. Contrary to
petitioner’s posture, the allegation is that he received or collected
money from illegal gambling "on several instances." The
phrase "on several instances" means the petitioner
committed the predicate act in series. To insist that the
Amended Information charged the petitioner with the commission
of only one act or offense despite the phrase "several instances" is
to indulge in a twisted, nay, "pretzel" interpretation.
It matters little that sub-paragraph (a) did not utilize the exact
words "combination" or "series" as they appear in R.A. No. 7080.
For in Estrada v. Sandiganbayan,13 we held that where these
two terms are to be taken in their popular, not technical,
meaning, the word "series" is synonymous with the clause "on
several instances." "Series" refers to a repetition of the same
predicate act in any of the items in Section 1 (d) of the law. The
word "combination" contemplates the commission of at least any
two different predicate acts in any of said items. Plainly, sub-
paragraph (a) of the Amended Information charges
petitioner with plunder committed by a series of the same
predicate act under Section 1 (d) (2) of the law.
Similarly misleading is petitioner’s stand that in the Ombudsman
Resolution of April 4, 2001 finding probable cause to charge him
with plunder together with the other accused, he was alleged to
have received only the sum of P2 million, which amount is way
below the minimum of P50 million required under R.A. No. 7080.
The submission is not borne out by the April 4, 2001 Resolution of
the Ombudsman, recommending the filing of charges against
petitioner and his co-accused, which in pertinent part reads:
"x x x           x x x          x x x
Respondent Jose ‘Jinggoy’ Estrada, the present Mayor of San
Juan, Metro Manila, appears to have also surreptitious collection
of protection money from jueteng operations in Bulacan. This is
gleaned from the statements of Gov. Singson himself and the fact
that Mayor Estrada, on at least two occasions, turned over to a
certain Emma Lim, an emissary of the respondent governor,
jueteng haul totalling P2 million, i.e., P1 million in January, 2000
and another P1 million in February, 2000. An alleged "listahan" of
jueteng recipients listed him as one "Jingle Bell," as affirmed by
Singson [TSN 8 & Dec. 2000 SICt/17 Oct. 2000 SBRC/SCI]." 14
Hence, contrary to the representations of the petitioner, the
Ombudsman made the finding that P2 million was delivered to
petitioner as "jueteng haul" on "at least two occasions." The P2
million is, therefore, not the entire sum with which petitioner is
specifically charged. This is further confirmed by the conclusion of
the Ombudsman that:
"x x x           x x x          x x x
It is clear that Joseph Ejercito Estrada, in confabulation with Jose
‘Jinggoy’ Estrada, Atty. Edward Serapio and Yolanda Ricaforte,
demanded and received, as bribe money, the aggregate sum of
P545 million from jueteng collections of the operators thereof,
channeled thru Gov. Luis ‘Chavit’ Singson, in exchange for
protection from arrest or interference by law enforcers; x x x." 15
To be sure, it is too late in the day for the petitioner to argue that
the Ombudsman failed to establish any probable cause against
him for plunder. The respondent Sandiganbayan itself has found
probable cause against the petitioner for which reason it issued a
warrant of arrest against him. Petitioner then underwent
arraignment and is now on trial. The time to assail the finding of
probable cause by the Ombudsman has long passed. The issue
cannot be resurrected in this petition.
II.
Next, petitioner contends that "the plunder law does not provide
sufficient and complete standards to guide the courts in dealing
53
with accused alleged to have contributed to the offense." 16 Thus,
he posits the following questions:
"For example, in an Information for plunder which cites at least
ten criminal acts, what penalty do we impose on one who is
clearly involved in only one such criminal act? Is it reclusion
perpetua? Or should it be a lesser penalty? What if another
accused is shown to have participated in three of the ten
specifications, what would be the penalty imposable, compared to
one who may have been involved in five or seven of the
specifications? The law does not provide the standard or specify
the penalties and the courts are left to guess. In other words, the
courts are called to say what the law is rather than to apply what
the lawmaker is supposed to have intended."17
Petitioner raises these hypothetical questions for he labors hard
under the impression that: (1) he is charged with only one act or
offense and (2) he has not conspired with the other accused
named in sub-paragraphs (b) to (d) of the Amended
Information, ergo,  the penalty imposable on him ought to be
different from reclusion perpetua to death. R.A. No. 7080, he
bewails, is cloudy on the imposable penalty on an accused
similarly situated as he is. Petitioner, however, overlooks that the
second paragraph of the Amended Information charges him to
have conspired with former President Estrada in committing the
crime of plunder. His alleged participation consists in the
commission of the predicate acts specified in sub-paragraph (a) of
the Amended Information. If these allegations are proven, the
penalty of petitioner cannot be unclear. It will be no different from
that of the former President for in conspiracy, the act of one is the
act of the other. The imposable penalty is provided in Section 2 of
R.A. No. 7080, viz:
"Section 2. Any public officer who, by himself or in
connivance with the members of his family, relatives by affinity
or consanguinity, business associates, subordinates or other
persons, amasses, accumulates or acquires ill-gotten wealth
through a combination or series of overt or criminal acts as
described in Section 1(d) hereof in the aggregate amount or total
value of at least Fifty million pesos (P50,000,000.00) shall be
guilty of the crime of plunder and shall be punished
by reclusion perpetua to death. Any person who participated
with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for
such offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal Code, shall be
considered by the court."
III.
Petitioner also faults the respondent Sandiganbayan for
"sustaining the charge against petitioner for alleged offenses and
with alleged conspirators, with which and with whom he is not
even remotely connected – contrary to the dictum that criminal
liability is personal, not vicarious – results in the denial of
substantive due process."18
The Solicitor General argues, on the other hand, that petitioner is
charged not only with the predicate act in sub-paragraph (a) but
also with the other predicate acts in sub-paragraphs (b), (c) & (d)
because he is indicted as a principal and as co-conspirator of the
former President. This is purportedly clear from the first and
second paragraphs of the Amended Information.19
For better focus, there is a need to examine again the allegations
of the Amended Information vis-à-vis  the provisions of R.A. No.
7080.
The Amended Information, in its first two paragraphs, charges
petitioner and his other co-accused with the crime of plunder. The
first paragraph names all the accused, while the second
paragraph describes in general how plunder was committed and
lays down most of the elements of the crime itself. Sub-
paragraphs (a) to (d) describe in detail the predicate acts
that constitute the crime and name in particular the co-
conspirators of former President Estrada in each predicate
act. The predicate acts alleged in the said four sub-
paragraphs correspond to the items enumerated in Section
1 (d) of R.A. No. 7080. Sub-paragraph (a) alleged the predicate
act of receiving, on several instances, money from illegal
gambling, in consideration of toleration or protection of illegal
gambling, and expressly names petitioner as one of those who
conspired with former President Estrada in committing the
offense. This predicate act corresponds with the offense described
in item [2] of the enumeration in Section 1 (d) of R.A. No. 7080.
Sub-paragraph (b) alleged the predicate act of diverting, receiving
or misappropriating a portion of the tobacco excise tax share
allocated for the province of Ilocos Sur, which act is the offense
described in item [1] in the enumeration in Section 1 (d) of the
law. This sub-paragraph does not mention petitioner but instead
names other conspirators of the former President. Sub-paragraph
(c) alleged two predicate acts - that of ordering the Government
Service Insurance System (GSIS) and the Social Security System
(SSS) to purchase shares of stock of Belle Corporation, and
collecting or receiving commissions from such purchase from the
Belle Corporation which became part of the deposit in the "Jose
Velarde" account at the Equitable-PCI Bank. These two predicate
acts fall under items [2] and [3] in the enumeration of R.A. No.
7080, and was allegedly committed by the former President in
connivance with John Does and Jane Does. Finally, sub-paragraph
(d) alleged the predicate act that the former President unjustly
enriched himself from commissions, gifts, kickbacks, in
connivance with John Does and Jane Does, and deposited the
same under his account name "Jose Velarde" at the Equitable-PCI
Bank. This act corresponds to the offense under item [6] in the
enumeration of Section 1 (d) of R.A. No. 7080.
From the foregoing allegations of the Amended Information, it is
clear that all the accused named in sub-paragraphs (a) to (d),
thru their individual acts, conspired with former President
Estrada to enable the latter to amass, accumulate or acquire ill-
gotten wealth in the aggregate amount of P4,097,804,173.17. As
the Amended Information is worded, however, it is not certain
whether the accused in sub-paragraphs (a) to (d) conspired
with each other to enable the former President to amass the
subject ill-gotten wealth. In light of this lack of clarity, petitioner
cannot be penalized for the conspiracy entered into by the other
accused with the former President as related in the second
paragraph of the Amended Information in relation to its sub-
paragraphs (b) to (d). We hold that petitioner can be held
accountable only for the predicate acts he allegedly committed as
related in sub-paragraph (a) of the Amended Information which
were allegedly done in conspiracy with the former President
whose design was to amass ill-gotten wealth amounting to more
than P4 billion.
We hasten to add, however, that the respondent
Ombudsman cannot be faulted for including the predicate
acts alleged in sub-paragraphs (a) to (d) of the Amended
Information in one, and not in four, separate
Informations. A study of the history of R.A. No. 7080 will show
that the law was crafted to avoid the mischief and folly of filing
multiple informations. The Anti-Plunder Law was enacted in the
aftermath of the Marcos regime where charges of ill-gotten
wealth were filed against former President Marcos and his alleged
cronies. Government prosecutors found no appropriate law
to deal with the multitude and magnitude of the acts
allegedly committed by the former President to acquire
illegal wealth.20 They also found that under the then existing
laws such as the Anti-Graft and Corrupt Practices Act, the Revised
Penal Code and other special laws, the acts involved different
transactions, different time and different personalities. Every
transaction constituted a separate crime and required a
separate case and the over-all conspiracy had to be broken
down into several criminal and graft charges. The
preparation of multiple Informations was a legal nightmare but
54
eventually, thirty-nine (39) separate and independent cases were
filed against practically the same accused before the
Sandiganbayan.21 R.A. No. 7080 or the Anti-Plunder Law 22 was
enacted precisely to address this procedural problem. This is
pellucid in the Explanatory Note to Senate Bill No. 733, viz:
"Plunder, a term chosen from other equally apt terminologies like
kleptocracy and economic treason, punishes the use of high office
for personal enrichment, committed thru a series of acts done not
in the public eye but in stealth and secrecy over a period of time,
that may involve so many persons, here and abroad, and which
touch so many states and territorial units. The acts and/or
omissions sought to be penalized do not involve simple
cases of malversation of public funds, bribery, extortion,
theft and graft but constitute plunder of an entire nation
resulting in material damage to the national economy. The
above-described crime does not yet exist in Philippine statute
books. Thus, the need to come up with a legislation as a
safeguard against the possible recurrence of the depravities of the
previous regime and as a deterrent to those with similar
inclination to succumb to the corrupting influence of power."
There is no denying the fact that the "plunder of an entire nation
resulting in material damage to the national economy" is made up
of a complex and manifold network of crimes. In the crime of
plunder, therefore, different parties may be united by a
common purpose. In the case at bar, the different accused and
their different criminal acts have a commonality—to help the
former President amass, accumulate or acquire ill-gotten wealth.
Sub-paragraphs (a) to (d) in the Amended Information alleged
the different participation of each accused in the conspiracy.
The gravamen of the conspiracy charge, therefore, is not that
each accused agreed to receive protection money from illegal
gambling, that each misappropriated a portion of the tobacco
excise tax, that each accused ordered the GSIS and SSS to
purchase shares of Belle Corporation and receive commissions
from such sale, nor that each unjustly enriched himself from
commissions, gifts and kickbacks; rather, it is that each of
them, by their individual acts, agreed to participate,
directly or indirectly, in the amassing, accumulation and
acquisition of ill-gotten wealth of and/or for former
President Estrada.
In the American jurisdiction, the presence of several accused
in multiple conspiracies commonly involves two structures: (1)
the so-called "wheel" or "circle" conspiracy, in which there is a
single person or group (the "hub") dealing individually with two or
more other persons or groups (the "spokes"); and (2) the "chain"
conspiracy, usually involving the distribution of narcotics or other
contraband, in which there is successive communication and
cooperation in much the same way as with legitimate business
operations between manufacturer and wholesaler, then wholesaler
and retailer, and then retailer and consumer.23
From a reading of the Amended Information, the case at bar
appears similar to a "wheel" conspiracy. The hub is former
President Estrada while the spokes are all the accused, and the
rim that encloses the spokes is the common goal in the overall
conspiracy, i.e., the amassing, accumulation and acquisition of ill-
gotten wealth.
IV.
Some of our distinguished colleagues would dismiss the charge
against the petitioner on the ground that the allegation of
conspiracy in the Amended Information is too general. The fear is
even expressed that it could serve as a net to ensnare the
innocent. Their dissents appear to be inspired by American law
and jurisprudence.
We should not confuse our law on conspiracy with
conspiracy in American criminal law and in common law.
Under Philippine law, conspiracy should be understood on
two levels. As a general rule, conspiracy is not a crime in
our jurisdiction. It is punished as a crime only when the
law fixes a penalty for its commission such as in conspiracy
to commit treason, rebellion and sedition. In contrast,
under American criminal law, the agreement or conspiracy
itself is the gravamen of the offense. 24 The essence of
conspiracy is the combination of two or more persons, by
concerted action, to accomplish a criminal or unlawful purpose, or
some purpose not in itself criminal or unlawful, by criminal or
unlawful means.25 Its elements are: agreement to accomplish an
illegal objective, coupled with one or more overt acts in
furtherance of the illegal purpose; and requisite intent necessary
to commit the underlying substantive offense.26
A study of the United States Code ought to be instructive.
It principally punishes two (2) crimes of
conspiracy27 – conspiracy to commit any offense or to defraud
the United States, and conspiracy to impede or injure officer.
Conspiracy to commit offense or to defraud the United States is
penalized under 18 U.S.C. Sec. 371,28 as follows:
"Sec. 371. Conspiracy to commit offense or to defraud the United
States.  If two or more persons conspire either to commit any
offense against the United States, or to defraud the United States,
or any agency thereof in any manner or for any purpose, and one
or more of such persons to any act to effect the object of the
conspiracy, each shall be fined not more than $10,000 or
imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of
the conspiracy, is a misdemeanor only, the punishment for such
conspiracy shall not exceed the maximum punishment provided
for such misdemeanor."
Conspiracy to impede or injure officer is penalized under 18
U.S.C. Sec. 372, viz:
"Sec. 372. Conspiracy to impede or injure officer. If two or more
persons in any State, Territory, Possession, or District conspire to
prevent, by force, intimidation, or threat, any person from
accepting or holding any office, trust or place of confidence under
the United States, or from discharging any duties thereof, or to
induce by like means any officer of the United States to leave the
place, where his duties as an officer are required to be performed,
or to injure him in his person or property on account of his lawful
discharge of the duties of his office, or while engaged in the lawful
discharge thereof, or to injure his property so as to molest,
interrupt, hinder, or impede him in the discharge of his official
duties, each of such persons shall be fined not more than $5,000
or imprisoned not more than six years, or both."
Section 371 of 18 U.S.C. punishes two acts: (1) conspiracy to
commit any offense against the United States; and (2) conspiracy
to defraud the United States or any agency thereof. The
conspiracy to "commit any offense against the United States"
refers to an act made a crime by federal laws. 29 It refers to an act
punished by statute.30 Undoubtedly, Section 371 runs the
whole gamut of U.S. Federal laws, whether criminal or
regulatory.31 These laws cover criminal offenses such as perjury,
white slave traffic, racketeering, gambling, arson, murder, theft,
bank robbery, etc. and also include customs violations,
counterfeiting of currency, copyright violations, mail fraud,
lotteries, violations of antitrust laws and laws governing interstate
commerce and other areas of federal regulation. 32 Section 371
penalizes the conspiracy to commit any of these
substantive offenses. The offense of conspiracy is generally
separate and distinct from the substantive offense,33 hence,
the court rulings that acquittal on the substantive count does not
foreclose prosecution and conviction for related conspiracy. 34
55
The conspiracy to "defraud the government" refers primarily to
cheating the United States out of property or money. It also
covers interference with or obstruction of its lawful governmental
functions by deceit, craft or trickery, or at least by means that are
dishonest.35 It comprehends defrauding the United States in any
manner whatever, whether the fraud be declared criminal or not.36
The basic difference in the concept of
conspiracy notwithstanding, a study of the American case law
on how conspiracy should be alleged will reveal that it is not
necessary for the indictment to include particularities of
time, place, circumstances or causes, in stating the manner
and means of effecting the object of the conspiracy. Such
specificity of detail falls within the scope of a bill of
particulars.37 An indictment for conspiracy is sufficient where
it alleges: (1) the agreement; (2) the offense-object toward which
the agreement was directed; and (3) the overt acts performed in
furtherance of the agreement.38 To allege that the defendants
conspired is, at least, to state that they agreed to do the matters
which are set forth as the substance of their conspiracy. To allege
a conspiracy is to allege an agreement.39 The gist of the crime
of conspiracy is unlawful agreement, and where conspiracy
is charged, it is not necessary to set out the criminal object
with as great a certainty as is required in cases where such
object is charged as a substantive offense.40
In sum, therefore, there is hardly a substantial difference
on how Philippine courts and American courts deal with
cases challenging Informations alleging conspiracy on the
ground that they lack particularities of time, place,
circumstances or causes. In our jurisdiction, as
aforestated, conspiracy can be alleged in the Information
as a mode of committing a crime or it may be alleged as
constitutive of the crime itself. When conspiracy is alleged
as a crime in itself, the sufficiency of the allegations in the
Information charging the offense is governed by Section 6,
Rule 110 of the Revised Rules of Criminal Procedure. It
requires that the information for this crime must contain the
following averments:
"Sec. 6. Sufficiency of complaint or information.- A complaint or
information is sufficient if it states the name of the accused, the
designation of the offense given by the statute; the acts or
omissions complained of as constituting the offense; the
name of the offended party; the approximate date of the
commission of the offense; and the place where the offense was
committed.
When the offense was committed by more than one person, all of
them shall be included in the complaint or information."
The complaint or information to be sufficient must state the name
of the accused, designate the offense given by statute, state the
acts or omissions constituting the offense, the name of the
offended party, the approximate date of the commission of the
offense and the place where the offense was committed.
Our rulings have long settled the issue on how the acts or
omissions constituting the offense should be made in order to
meet the standard of sufficiency. Thus, the offense must be
designated by its name given by statute or by reference to the
section or subsection of the statute punishing it. 41 The information
must also state the acts or omissions constituting the offense, and
specify its qualifying and aggravating circumstances. 42 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.43 No information for a crime will be
sufficient if it does not accurately and clearly allege the elements
of the crime charged.44 Every element of the offense must be
stated in the information. 45 What facts and circumstances are
necessary to be included therein must be determined by reference
to the definitions and essentials of the specified crimes. 46 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. The
presumption is that the accused has no independent knowledge of
the facts that constitute the offense.47
To reiterate, when conspiracy is charged as a crime, the act
of conspiring and all the elements of said crime must be set
forth in the complaint or information. For example, the crime
of "conspiracy to commit treason" is committed when, in time of
war, two or more persons come to an agreement to levy war
against the Government or to adhere to the enemies and to give
them aid or comfort, and decide to commit it. 48 The elements of
this crime are: (1) that the offender owes allegiance to the
Government of the Philippines; (2) that there is a war in which
the Philippines is involved; (3) that the offender and other person
or persons come to an agreement to: (a) levy war against the
government, or (b) adhere to the enemies, to give them aid and
comfort; and (4) that the offender and other person or persons
decide to carry out the agreement. These elements must be
alleged in the information.
The requirements on sufficiency of allegations are different
when conspiracy is not charged as a crime in itself but only
as the mode of committing the crime as in the case at
bar. There is less necessity of reciting its particularities in the
Information because conspiracy is not the gravamen of the
offense charged. The conspiracy is significant only because it
changes the criminal liability of all the accused in the conspiracy
and makes them answerable as co-principals regardless of the
degree of their participation in the crime. 49 The liability of the
conspirators is collective and each participant will be equally
responsible for the acts of others, 50 for the act of one is the act of
all.51 In People v. Quitlong,52 we ruled on how conspiracy as
the mode of committing the offense should be alleged in the
Information, viz:
"x x x. In embodying the essential elements of the crime charged,
the information must set forth the facts and circumstances that
have a bearing on the culpability and liability of the accused so
that the accused can properly prepare for and undertake his
defense. One such fact or circumstance in a complaint against two
or more accused persons is that of conspiracy. Quite unlike the
omission of an ordinary recital of fact which, if not excepted from
or objected to during trial, may be corrected or supplied by
competent proof, an allegation, however, of conspiracy, or
one that would impute criminal liability to an accused for
the act of another or others, is indispensable in order to
hold such person, regardless of the nature and extent of
his own participation, equally guilty with the other or
others in the commission of the crime. Where conspiracy
exists and can rightly be appreciated, the individual acts done to
perpetrate the felony becomes of secondary importance, the act
of one being imputable to all the others (People v. Ilano, 313
SCRA 442). Verily, an accused must know from the information
whether he faces a criminal responsibility not only for his acts but
also for the acts of his co-accused as well.
A conspiracy indictment need not, of course, aver all the
components of conspiracy or allege all the details thereof,
like the part that each of the parties therein have
performed, the evidence proving the common design or the
facts connecting all the accused with one another in the
web of the conspiracy. Neither is it necessary to describe
conspiracy with the same degree of particularity required
in describing a substantive offense. It is enough that the
indictment contains a statement of facts relied upon to be
constitutive of the offense in ordinary and concise
language, with as much certainty as the nature of the case
will admit, in a manner that can enable a person of
common understanding to know what is intended, and with
such precision that the accused may plead his acquittal or
conviction to a subsequent indictment based on the same
facts. It is said, generally, that an indictment may be held
56
sufficient "if it follows the words of the statute and reasonably
informs the accused of the character of the offense he is charged
with conspiring to commit, or, following the language of the
statute, contains a sufficient statement of an overt act to effect
the object of the conspiracy, or alleges both the conspiracy and
the contemplated crime in the language of the respective statutes
defining them (15A C.J.S. 842-844).
x x x           x x x          x x x
x x x. Conspiracy arises when two or more persons come to an
agreement concerning the commission of a felony and decide to
commit it. Conspiracy comes to life at the very instant the plotters
agree, expressly or impliedly, to commit the felony and forthwith
to actually pursue it. Verily, the information must state that
the accused have confederated to commit the crime or that
there has been a community of design, a unity of purpose
or an agreement to commit the felony among the accused.
Such an allegation, in the absence of the usual usage of the
words "conspired" or "confederated" or the phrase "acting
in conspiracy," must aptly appear in the information in the
form of definitive acts constituting conspiracy. In fine, the
agreement to commit the crime, the unity of purpose or the
community of design among the accused must be conveyed
such as either by the use of the term "conspire" or its
derivatives and synonyms  or  by allegations of basic facts
constituting the conspiracy. Conspiracy must be alleged,
not just inferred, in the information on which basis an
accused can aptly enter his plea, a matter that is not to be
confused with or likened to the adequacy of evidence that
may be required to prove it. In establishing conspiracy when
properly alleged, the evidence to support it need not necessarily
be shown by direct proof but may be inferred from shown acts
and conduct of the accused.
x x x           x x x          x x x."
Again, following the stream of our own jurisprudence, it is
enough to allege conspiracy as a mode in the commission
of an offense in either of the following manner: (1) by use of
the word "conspire," or its derivatives or synonyms, such as
confederate, connive, collude, etc;53 or (2) by allegations of basic
facts constituting the conspiracy in a manner that a person of
common understanding would know what is intended, and with
such precision as would enable the accused to competently enter
a plea to a subsequent indictment based on the same facts.54
The allegation of conspiracy in the information must not be
confused with the adequacy of evidence that may be
required to prove it. A conspiracy is proved by evidence of
actual cooperation; of acts indicative of an agreement, a common
purpose or design, a concerted action or concurrence of
sentiments to commit the felony and actually pursue it. 55 A
statement of this evidence is not necessary in the information.
In the case at bar, the second paragraph of the Amended
Information alleged in general terms how the accused
committed the crime of plunder. It used the words "in
connivance/conspiracy with his co-accused." Following the ruling
in Quitlong, these words are sufficient to allege the conspiracy of
the accused with the former President in committing the crime of
plunder.
V.
We now come to petitioner’s plea for bail. On August 14, 2002,
during the pendency of the instant petition before this Court,
petitioner filed with respondent Sandiganbayan an "Urgent
Second Motion for Bail for Medical Reasons." Petitioner prayed
that he be allowed to post bail due to his serious medical
condition which is life-threatening to him if he goes back to his
place of detention.1âwphi1 The motion was opposed by
respondent Ombudsman to which petitioner replied.
For three days, i.e., on September 4, 20 and 27, 2001,
respondent Sandiganbayan conducted hearings on the motion for
bail. Dr. Roberto V. Anastacio, a cardiologist of the Makati Medical
Center, testified as sole witness for petitioner.
On December 18, 2001, petitioner filed with the Supreme Court
an "Urgent Motion for Early/Immediate Resolution of Jose
‘Jinggoy’ Estrada’s Petition for Bail on Medical/Humanitarian
Considerations." Petitioner reiterated the motion for bail he earlier
filed with respondent Sandiganbayan. 56
Upon proper motion of the petitioner, respondent Sandiganbayan
should conduct hearings to determine if the evidence of
petitioner’s guilt is strong as to warrant the granting of bail to
petitioner.
IN VIEW WHEREOF, the petition is dismissed for failure to show
that the respondent Sandiganbayan acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack of
jurisdiction.
SO ORDERED.

On the same day, we issued a Resolution referring the motion to

respondent Sandiganbayan for resolution and requiring said court
to make a report, not later than 8:30 in the morning of December
21, 2001.

On December 21, 2001, respondent court submitted its Report.

Attached to the Report was its Resolution dated December 20,
2001 denying petitioner’s motion for bail for "lack of factual
basis."57 Basing its finding on the earlier testimony of Dr.
Anastacio, the Sandiganbayan found that petitioner "failed to
submit sufficient evidence to convince the court that the medical
condition of the accused requires that he be confined at home and
for that purpose that he be allowed to post bail." 58

The crime of plunder is punished by R.A. No. 7080, as amended

by Section 12 of R.A. No. 7659, with the penalty of reclusion
perpetua  to death. Under our Rules, offenses punishable by
death, reclusion perpetua  or life imprisonment are non-bailable
when the evidence of guilt is strong, to wit:

"Sec. 7. Capital offense or an offense punishable by reclusion

perpetua or life imprisonment, not bailable. – No person charged
with a capital offense, or an offense punishable by reclusion
perpetua  or life imprisonment, shall be admitted to bail when
evidence of guilt is strong, regardless of the stage of the criminal
prosecution."59

Section 7, Rule 114 of the Revised Rules of Criminal Procedure is

based on Section 13, Article III of the 1987 Constitution which
reads:

"Sec. 13.  All persons, except those charged with offenses

punishable by reclusion perpetua when evidence of guilt is strong,
shall, before conviction be bailable by sufficient sureties, or be
released on recognizance as may be provided by law. The right to
bail shall not be impaired even when the privilege of the writ
of habeas corpus is suspended. Excessive bail shall not be
required."

The constitutional mandate makes the grant or denial of bail in

capital offenses hinge on the issue of whether or not the
evidence of guilt of the accused is strong. This requires that
the trial court conduct bail hearings wherein both the prosecution
and the defense are afforded sufficient opportunity to present
their respective evidence. The burden of proof lies with the
prosecution to show strong evidence of guilt.60

This Court is not in a position to grant bail to the petitioner as the

matter requires evidentiary hearing that should be conducted by
the Sandiganbayan. The hearings on which respondent court
based its Resolution of December 20, 2001 involved the reception
of medical evidence only and which evidence was given in
September 2001, five months ago. The records do not show that
evidence on petitioner’s guilt was presented before the lower
court.

57
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 65833             May 6, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EUGENIO LAGARTO y GETALADO, JR., accused-appellant.
The Solicitor General for plaintiff-appellee.
Dakila F. Castro & Associates for accused-appellant.
PARAS, J.:
This is an automatic review of the judgment * of the Regional
Trial Court, 8th Judicial Region, Branch XXII, Laoang, Northern
Samar, in Criminal Case No. 1566, finding the accused EUGENIO
LAGARTO y GETALADO, JR. guilty beyond reasonable doubt of the
crime of MURDER.
The pertinent facts of the case are:
In the early evening of May 25, 1983, Reynaldo Aducal, who was
buying fish in the public market, Poblacion Laoang, Northern
Samar, was fatally stabbed. Right after the stabbing, the assailant
was apprehended by Pfc. Wenefredo Laguitan whose
commendable act thwarted the assailant's escape.
For the killing of Reynaldo Aducal, accused Eugenio Lagarto y
Getalado, Jr. was charged in an amended information with the
crime of Murder as defined and penalized under Article 248 of the
Revised Penal Code, allegedly committed as follows:
That on or about the 25th day of May, 1983, at about 6:00 o'clock
in the evening more or less, inside the public market Bgy. Little
Venice, Municipality of Laoang, Province of Northern Samar,
Philippines and within the jurisdiction of this Honorable Court, the
above named accused with deliberate intent to kill with the
qualifying circumstances of treachery and evident premeditation
did then and there willfully, unlawfully and feloniously attack,
assault and stab one REYNALDO ADUCAL y LURA with the use of a
Batangas fan knife or Balisong which the above-named accused
had provided himself for the purpose, thereby inflicting upon said
victim fatal wounds on his chest, which wounds caused the
instantaneous death of the victim.
Accused is a recidivist, having been previously convicted by final
judgment of another came embraced IN THE SAME TITLE OF THE
REVISED PENAL CODE, THAT OF MURDER IN CRIMINAL CASE NO.
1473.
CONTRARY TO LAW.
(Record, "Amended Information", p. 35)
Upon arraignment, appellant entered a plea of guilty.
The records disclose that the trial court had asked appellant
whether or not he understood the consequences of his plea.
Following the rulings of this Court, however, the trial court still
directed the prosecution to present its evidence for the purpose of
establishing with certainty the guilt and the degree of culpability
of the accused.
Two witnesses were presented by the prosecution: they were
Zosimo Aducal, father of the victim, and Pfc. Wenefredo Laguitan.
1. Zasimo Aducal testified that in the evening of May 25, 1983
while he was attending to his farm, three (3) kilometers away
from the poblacion of Little Venice, Laoang, Northern Samar, his
58
grandson Artemio Aducal, son of Reynaldo, informed him that
Reynaldo Aducal had been stabbed dead; he was not able to see
his deceased son that night because he could not see his way
during night time; it was only in the following morning when he
saw his deceased son with two stab wounds on the right and left
breast. (TSN, October 18, 1983, pp. 14-20).
2. Pfc. Wenefredo Laguitan testified that on May 25, 1983, around
6:00 in the evening, while he and Pat. Manuel Sevillana were
passing the market place, his attention was called by a certain
Armando Baluyot to a commotion; he observed that the people
were scampering for safety and a man was escaping; when
somebody shouted that the man was the assailant, he
immediately followed the man and apprehended him right then
and there; at the police headquarters the man admitted to him
that he had long planned to kill the victim and that, the plotter
was Eugenio Lagarto, Jr., herein appellant. (TSN, October 18,
1983, pp. 22-28,).
The prosecution likewise presented the following evidence:
(a) Case Record of Criminal Case No. 1473 entitled "People vs.
Eugenio Lagarto, Jr." showing that appellant had been convicted
by final judgment of homicide. (Exhibit "A" to "A-1 a");
(b) Death Certificate of deceased Reynaldo Aducal (Exhibit "B");
(c) Fan knife (Exhibit "D");
(d) Extra-judicial confession of appellant (Exhibit "C" to "C-4"),
which discloses the following:
07. Question: Do you know Reynaldo Aducal personally?
Answer: Not so much, sir, but he was the one who stabbed my
brother Pablito last 1980.
08. Question: What was the result when Reynaldo Aducal stabbed
your brother Pablito?
Answer: As a result, my brother Pablito was hospitalized.
09. Question: Why did you stab to death Reynaldo Aducal?
Answer: I stabbed him to death sir, as a revenge or retaliation for
his stabbing of my brother Pablito.
10. Question: According to what you have said Reynaldo Aducal
had stabbed your brother Pablito in 1980. Do you mean to say
that since 1980 up to May 25, 1983 you had been planning to
avenge your brother by killing Reynaldo?
Answer: Yes, sir.
(p. 2, Exhibit "C")
Based on the appellant's plea of guilty and the evidence adduced,
the trial court rendered judgment, the dispositive portion of which
reads:
WHEREFORE, the Court accepts his plea and declares accused,
Eugenio Lagarto y Getalado guilty beyond reasonable doubt as
principal of the crime of Murder defined and penalized in Article
248 of the Revised Penal Code, as charged in the information,
appreciating in his favor the mitigating circumstance of
spontaneous plea of guilty which is offset by the aggravating
circumstance of evident premeditation, the Court hereby
sentences said accused to suffer the extreme penalty of DEATH
with all the accessories provided for in Art. 40 of the Revised
Penal Code.
The accused is hereby ordered to indemnify the heirs of Reynaldo
Aducal in the amount of P12,000.00 and to pay the costs.
SO ORDERED.
(Decision, p. 5; Rollo, p. 20)
The imposition of the supreme penalty of death warrants an
automatic review by this Court. However, the penalty of Death
had been changed to reclusion perpetua in accordance with the
provision of Section 19(l), Article III of the 1987 Constitution.
The counsel de oficio recommends that the sentence be modified,
contending that:
I. THE LOWER COURT ERRED IN APPRECIATING THE
AGGRAVATING CIRCUMSTANCE OF EVIDENT PREMEDITATION
AGAINST THE ACCUSED.
II. THE LOWER COURT LIKEWISE ERRED IN APPRECIATING THE
AGGRAVATING CIRCUMSTANCE OF TREACHERY AGAINST THE
ACCUSED; AND
III. CONSEQUENTLY, THE LOWER COURT ERRED IN SENTENCING
THE ACCUSED TO SUFFER THE EXTREME PENALTY OF DEATH."
(Brief for Accused-Appellant, p. 4; Rollo, p. 1 1 8)
It is a well-established rule that a plea of guilty, besides being a
mitigating circumstance, is a judicial confession of guilt—an
admission of all the material facts alleged in the information,
including the aggravating circumstances. (People vs. Ariola, 100
SCRA, 523) To be considered a true plea of guilty, it must be
made by the accused freely, voluntarily and with full knowledge of
the consequences and meaning of his act. It must be made
unconditionally. (People vs. Comendador, 100 SCRA 155).
In the case at bar, the trial court exerted its utmost effort to be
extra solicitous in seeing to it that the accused understood, the
meaning and importance of his plea. Thus,
Q Do you realize the import and consequences of your having
entered the plea of guilty?
A Yes, your Honor.
x x x           x x x          x x x
Q Now, the Court would repeat to you that you have entered the
plea of guilty to a most grievous offense?
A Yes, your Honor.
Q For having entered a plea of guilty to the present crime of
murder for the killing of Reynaldo Aducal you are therefore
submitting the case without presenting your own evidence, do you
realize that?
A Yes, your Honor.
59
Q And despite this advise and admonition to you by the court, do
you still insist on entering a plea of guilty to the crime as
charged?
A Yes, your Honor.
Q The Court will advise you that in this kind of offense which is a
crime of murder there is only one possible penalty and the court
has no other recourse but to impose it, that of death, do you
realize that?
A Yes, your Honor.
(Translated in the dialect known to the accused)
(TSN, October 11, 1983, pp. 2-4).
The trial court was not remiss in its obligation to warn the accused
of the important consequences of his plea. The possibility that
death might be imposed should have warned the accused to
protect his interest: even an ordinary unlettered man fears death.
And despite the thought of losing his life, the accused pleaded
guilty. We are convinced that the guilt of the accused has been
proved beyond reasonable doubt in the light of overwhelming
evidence presented by the prosecution, fully corroborated and
substantiated by the plea of guilty of the accused.
The only issue before Us is whether or not the trial court correctly
appreciated the existence of recidivism and the qualifying
circumstances of evident premeditation and treachery.
Section 5, Rule 118 of the old Rules of Court provides that "Where
the defendant pleads guilty to a complaint or information, if the
trial court accepts the plea and has discretion as to the
punishment for the offense, it may hear witnesses to determine
what punishment shall be imposed." (emphasis supplied). The
trial court in a criminal case may sentence a defendant who
pleads guilty to the offense charged in the information, without
the necessity of taking testimony. (US vs. Talbanos, 6 Phil. 541).
Yet, it is advisable for the trial court to call witnesses for the
purpose of establishing the guilt and the degree of culpability of
the defendant. (People vs. Comendador, supra) The present
Revised Rules of Court, however, decrees that where the accused
pleads guilty to a capital offense, it is now mandatory for the
court to require the prosecution to prove the guilt of the accused
and his precise degree of culpability, with the accused being
likewise entitled to present evidence to prove, inter alia,
mitigating circumstances (See People vs. Camay, 152 SCRA 401;
Section 3, Rule 116 of Rules of Court).
In the case at bar, the trial court directed the prosecution to
present evidence for the purpose of establishing the guilt and
degree of culpability of the defendant.
We find, as the trial court found, that the accused is a recidivist. A
recidivist is one who, at the time of his trial for one crime, shall
have been previously convicted by final judgment of another
crime embraced in the same title of the Revised Penal Code.
Herein accused had been convicted of the crime of homicide in
Criminal Case No. 1473 before the trial of the present Criminal
Case No. 1566. The former counsel de oficio of herein accused
alleged that the judgment in Criminal Case No. 1473 was
rendered on September 15, 1983, hence when the accused was
arraigned on October 11, 1983 for Criminal Case No. 1566 he was
not a recidivist.
The former counsel de oficio is of the opinion that "the time of
trial" is to be reckoned with the date of the arraignment. The
phrase "at the time of his trial" should not be restrictively
construed as to mean the date of arraignment.
We declared in People vs. Enriquez, 90 Phil. 428, that the phrase deduced from assumptions; it must be as clearly proved as the
"at the time of his trial for an offense" is employed in its general crime itself in order to qualify the crime into murder.
sense, including the rendering of the judgment. In US vs.
Karelsen, 3 Phil. 23, We held that the phrase "at the trial" is
WHEREFORE, the that court's judgment is MODIFIED. Accused-
meant to include everything that is done in the course of the trial,
appellant EUGENIO LAGARTO y GETALADO is hereby CONVICTED
from arraignment until after sentence is announced by the judge
of homicide; appreciating in his favor the mitigating circumstance
in open court. In the case at bar, the accused was convicted of
of spontaneous plea of guilty which is offset by the aggravating
homicide in Criminal Case No. 1473 on September 15, 1983.
circumstance of recidivism, the Court hereby sentences said
There being no appeal, the judgment therein became final on
accused to an indeterminate penalty of ten (10) years of  prision
October 11, 1983. The second conviction was rendered on
mayor as minimum, to seventeen (17) years and four (4) months
October 26, 1983 for Murder. Hence, it is crystal clear that the
of reclusion temporal as maximum, and to pay the heirs of
accused is a recidivist: the accused had been convicted by final
Reynaldo Aducal an indemnity of fifty thousand pesos
judgment at the time of the rendition of the judgment for the
(P50,000.00). Costs de oficio.
second offense.

SO ORDERED.
We find no merit in the finding of the trial court that evident
premeditation and treachery existed in the commission of the
crime. It is a rule that a plea of guilty cannot be held to include
evident premeditation and treachery where the evidence adduced
does not adequately disclose the existence of these qualifying
circumstances (People vs. Gravino, 122 SCRA 123).

Evident premeditation requires proof of the following requisites:

(a) the time when the offender determined to commit the crime;
(b) an act manifestly indicating that he had clung to his
determination; and (c) a sufficient lapse of time between the
determination and the execution of the crime to allow him to
reflect upon the consequences of his act and to allow his
conscience to overcome the resolution of his will. (People vs.
Cafe, 166 SCRA 704; People vs. Montejo, 167 SCRA 506).

The statement of the accused, that he had long planned to kill

Reynaldo Aducal in retaliation for the act of Reynaldo Aducal in
stabbing his brother, does not adequately prove the existence of
evident premeditation. It is necessary to establish that the
accused meditated on his intention between the time it was
conceived and the time the crime was actually perpetrated.
Defendant's proposition was nothing but an expression of his own
determination to commit the crime which is entirely different from
premeditation. (People vs. Carillo 77 Phil. 572). In People vs.
Alde, 64 SCRA 224, We ruled that there is no evident
premeditation where the only evidence to support it is the
statement of the accused that he planned to kill the victim in
1964 when actual stabbing was 1969.

To show premeditation, it is required that the criminal intent be

evidenced by notorious acts evincing the determination to commit
the same. (People vs. Guiyab, 139 SCRA 446). It must be evident
and not merely suspected (People vs. Iturriaga, 88 Phil. 534) or
merely thought of or contemplated mentally, without externalized
acts. The finding of the trial court, that the accused had
clandestinely concealed the knife in his body away from the
searching eye of the prison guards which showed the deliberate
intent of the accused, is not borne out by the records. Perusal of
the records does not show that the accused deliberately planned
the killing through external acts. The finding of facts by the trial
court should not be based on mere assumptions; there must be
proof that such facts exist.

In order that treachery may be appreciated, it is necessary to

prove the manner in which the victim was
attacked.1âwphi1 Treachery can in no way be presumed but must
be fully proved. Where there are merely indications that the
attack was sudden and unexpected, but there are no precise data
on this point, the circumstance of treachery can not be taken into
account. (People vs. Ariola, supra)

In the case at bar, there is no evidence to show that the mode of

attack was consciously adopted as to insure the perpetration of
the crime and safety from the defense that the victim might put
up. There is an absence of evidence to show the means employed
by assailant and the mode of attack. Treachery may not be simply

60
 Republic of the Philippines The trial court sentenced the appellant under paragraph 5 (b) of
SUPREME COURT article 62 of the Revised Penal Code, as if this were only his fourth
Manila and not his fifth conviction. The Solicitor General recommends the
affirmance of that sentence, on the theory that appellant's fourth
previous conviction alleged in the information should bee
EN BANC
disregarded because the date of his release in connection
therewith was not shown. On the other hand counsel for the
G.R. No. L-48740             August 5, 1942 appellant, on the basis of the trial court's implied finding that this
is appellant's fourth conviction, contends that appellant should be
sentenced under paragraph 5 (a) of article 62, as if the present
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, were only his third conviction, on the ground that the first
vs. conviction should be taken circumstance and should be
FAUSTINO TOLENTINO Y DE DIOS and LUISA CORPUZ Y disregarded as an element of habitual, delinquency.
QUITONG, defendants.
FAUSTINO TOLENTINO Y DE DIOS, appellant.
We cannot uphold appellant's contention. Under his theory an
accused cannot be sentenced for habitual delinquency unless he
Crispin Oben for appellant. has had at least three previous convictions, because the first
Assistant Solicitor-General Enriquez and Solicitor Kapunan, Jr. for conviction has to be taken only as an aggravating circumstance
appellee. and has to be disregarded for the purpose of determining habitual
delinquency. That, we think, would be unwarranted interpretation
OZAETA, J.: of the Habitual Delinquency Law (paragraph 5 of article 62 of the
Revised Penal Code), which reads as follows:

In the municipal court of Manila, where this action was

commenced, as well as in the Court of First Instance, to which it 5. Habitual delinquency shall have the following effects:
was appealed, both of the above-named defendants pleaded
guilty to the charge of theft of seven shirts valued at P14 (a) Upon a third conviction the culprit shall be sentenced
belonging to one Cosme Famorca. Both being, recidivists, were to the penalty provided by law for the last crime of
sentenced in the Court of First Instance to suffer two months and which he be found guilty and to the additional penalty
one day of arresto mayor and to pay the corresponding civil of  prision correccional in its medium and maximum
indemnity to the offended party. Faustino Tolentino y de Dios was periods:
further sentenced to suffer an additional penalty of six years and
one day of  prision mayor for habitual delinquency. He alone
appealed to this Court. (b) Upon a fourth conviction the culprit shall be
sentenced to the penalty provided for the last crime of
which he be found guilty and to the additional penalty
The only question raised by the appellant is the correctness of the of prision mayor in its minimum and medium period;
additional penalty. The pertinent allegation of the information is and
that the accused Faustino Tolentino y de Dios is a habitual
delinquent, he having been convicted of the crimes of theft
and estafa by final judgments rendered by competent court, as (c) Upon fifth or additional conviction, the culprit shall
follows: be sentenced to the penalty provided for the last crime
of which he be found guilty a guilty to the additional
Date of Date of Crime Sentence Date penalty of  prision mayor in its maximum period to
commissio sentenc of the reclusion temporal in its minimum period.
n e releas
e Notwithstanding the provisions of this article, the total of
10-13- Qualifie 6 months 3-18- the penalties to be imposed upon the offender in
25 d theft, and P3 26 conformity herewith, shall in no case exceed 30 years.
MCDE- indemnity
16887 For the purposes of this article, a person shall be
10-29-26 10-30- Theft, 3 months 1-20- deemed to be habitual delinquent if within a period of
26 NCDE - and 1 day 27 ten years from the date of his release or last conviction
42165 of the crimes of robo, hurto, estafa, or falsificacion, he is
found guilty of any of said crimes a third time or oftener.
8-1-27 8-1-27 Qualifie 6 months 1 8-10-
d theft, day and 30
NCDE- P15 A habitual delinquent is necessarily a recidivist, and in imposing
57895 indemnity the principal penalty upon him the aggravating circumstance of
recidivism has to be taken into account. In fixing the penalty
9-14-35 9-30-35 Estafa, 2 months 1
provided by law for the last crime " as required in paragraph 5 (a)
CFID- day arresto
(b), and (c) of article 62 of the Revised Penal Code, the court
50973 mayor, to
cannot disregard articles 14 (9) and Revised Penal Code, which
return the
respectively define recidivism as an aggravating circumstance and
bicycle
lay down the rule for the application of aggravating and mitigating
stolen or its
circumstances. We reaffirm the holding of this Court in People vs.
value P40,
Melendez, 59 Phil., 154; People vs. Espina, 62 Phil., 607; and
and
the People vs. De Jesus, 63 Phil., 760, as a correct interpretation
additional
of the Habitual Delinquency Law. However, for the purpose of
penalty of
fixing the additional penalty, recidivism cannot be taken as an
2 years 4
aggravating circumstance for the reason it is inherent in habitual
months 21
delinquency (People vs. de Jesus, supra).
days
of  prision
correcciona
61 l, and
costs.
Neither can we accept the recommendation for affirmance made
by the Solicitor General on the theory that the present is
appellant's fourth conviction. We cannot disregard his previous
fourth conviction alleged in the information solely because the
date of his release in connection therewith has not been shown. It
appearing that he was sentenced for the fourth time on
September 30, 1935, to suffer two months and done day
of arresto mayor plus an additional penalty of two years, four
months, and twenty-one days of  prision correctional,  we can
readily see that he must have been released in connection
therewith less than ten years previous to August 13, 1941, the
date of the commission of the offense complained of in the
present case. The stand taken by the trial court and the Solicitor
General is untenable because if appellant's fourth previous
conviction be disregarded, he could not be sentenced to any
additional penalty as a habitual delinquent, his previous third
conviction and release having taken place more than ten years
prior to August 13, 1941.

It results that this is appellant's fifth conviction, and accordingly,

he must be sentenced under paragraph 5 (c) of article 62 to the
additional penalty of  prision mayor in its maximum period
to reclusion temporal in its minimum period. This penalty must be
imposed in its minimum degree because of the mitigating
circumstance of plea of guilty.

Wherefore, with the modification that the appellant Faustino

Tolentino y de Dios shall suffer an additional penalty of ten years
and one day of  prision mayor, the sentence appealed from is
affirmed, with costs. So ordered.

Yulo, C.J., Paras and Moran, JJ., concur.

62
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION  appellant, the latter hacked him on the nape. The blow caused
G.R. No. 93436 March 24, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MELCHOR REAL y BARTOLAY, accused-appellant.
QUIASON, J.:
This is an appeal from the decision of the Regional Trial Court,
Branch 44, Masbate, Masbate, in Criminal Case No. 1606 finding
appellant guilty of murder.
We affirm with modification, the appealed decision.
I
The information against appellant reads as follows:
That on or about March 11, 1978, in the morning thereof, at the
Poblacion of the Municipality of Aroroy, Province of Masbate,
Philippines, within the jurisdiction of this Court, the said accused
with intent to kill, evident premeditation and treachery, did then
and there willfully, unlawfully, feloniously and criminally attack,
assault and hack with a sharp bolo one Edgardo Corpus y
Rapsing, hitting the latter on the nape, causing an injury which
caused the death of the said Edgardo Corpus y Rapsing several
days thereafter.
That the accused is a recidivist having been convicted by the
Municipal Court of Aroroy, in the following cases:
Crime Date of Conviction
1. Ill treatment by Deed — July 6, 1965
2. Grave Threats — November 25, 1968
(Rollo, p. 14).
Upon being arraigned, appellant pleaded not guilty.
After trial, the court convicted appellant and sentenced him to
suffer the penalty of reclusion perpetua and to pay the heirs of
the victim the sum of P30,000.00 and costs.
Hence, this appeal.
II
At about 9:00 A.M. on March 17, 1978, in the public market of
Aroroy, Masbate, appellant and Edgardo Corpus, both vendors,
engaged in a heated argument over the right to use the market
table to display their fish.
Moreno de la Rosa, the Municipal Mayor, who happened to be at
the public market, tried to pacify them, saying that they were
arguing over trivial matters.
The two protagonists momentarily kept their peace but after
awhile Corpus raised his voice again and said something to
appellant. The latter, in a soft voice, uttered "SOBRA NA INA NA
IMO PAGDAOGDAOG" (You are being too oppressive).
63
When Corpus kept on walking to and fro near the disputed fish
table, appellant started to sharpen his bolo while murmuring to
himself. Once Corpus turned around with his back towards
Corpus to collapse. He was rushed to a medical clinic. When asked
by his wife as to who hacked him, he answered "Melchor Real."
A police investigator went to the clinic to take the dying
declaration of Corpus, who said that it was appellant who stabbed
him. Corpus died two days later.
Appellant admitted hacking Corpus but claimed that he did so out
of humiliation and anger when the victim threw his fish in the
presence of so many people.
He testified as follows:
Q. When Edgardo Corpus was lambasting you in the presence of
the public, what did you do, how did you feel?
A. I got angry.
Q. And what did you do?
A. So I hacked him.
Q. Was he hit?
A. Yes, Sir.
Q. In what part of his body was he hit?
A. At the right neck.
Q. Did you admit to the authorities that it was you who hacked
Edgardo Corpus?
A. Yes, sir.
On cross-examination, he again admitted his guilt.
Q. And when this Edgardo Corpus turn (sic) his back, you
immediately hacked him on his neck?
A. Yes, sir ( TSN, July 9, 1986, pp. 6-8; Emphasis supplied).
III
Before us, appellant argues that the crime committed was only
homicide and not murder and that he is entitled to two mitigating
circumstances: namely, passion and obfuscation and vindication
of a grave offense.
We agree with appellant that the offense committed was
homicide. He is entitled to the benefit of the doubt as to whether
he acted with alevosia when he attacked the victim. As a rule, a
sudden attack by the assailant, whether frontally or from behind,
is treachery if such mode of attack was cooly and deliberately
adopted by him with the purpose of depriving the victim of a
chance to either fight or retreat. The rule does not apply,
however, where the attack was not preconceived and deliberately
adopted but was just triggered by the sudden infuriation on the
part of the accused because of the provocative act of the victim
(People v. Aguiluz, 207 SCRA 187 [1992]). This is more so, where
the assault upon the victim was preceded by a heated exchange offender has been punished for the previous offense. There is no
of words between him and the accused (People v. Rillorta, 180 evidence presented by the prosecution to that effect.
SCRA 102 [1989]). In the case at bench, the assault came in the
course of an altercation and after appellant had sharpened his
Appellant is convicted of homicide, appreciating in his favor the
bolo in full view of the victim. Appellant's act of sharpening his
mitigating circumstance of passion and obfuscation, which is
bolo can be interpreted as an attempt to frighten the victim so the
offset by the aggravating circumstance of recidivism.
latter would leave him alone. It was simply foolhardy for the
victim to continue walking to and fro near appellant in a taunting
manner while the latter was sharpening his bolo. WHEREFORE, the judgment of the trial court is AFFIRMED with the
MODIFICATION that appellant is convicted of the crime of
homicide and sentenced to an indeterminate penalty of TEN (10)
The suddenness of the attack does not, by itself, suffice to
YEARS of prision mayor  as minimum to SEVENTEEN (17) YEARS
support a finding of alevosia where the decision to attack was
and FOUR (4) MONTHS of reclusion temporal as maximum. The
made peremptorily and the victim's helpless position was
indemnity to be paid to the heirs of the victim is increased to
accidental (People v. Ardisa, 55 SCRA 245 [1974]).
P50,000.00.

Appellant also claims that he is entitled to two mitigating

SO ORDERED.
circumstances: namely, vindication of a grave offense and passion
and obfuscation. The peculiarity of these two mitigating
circumstances is that they cannot be applied at the same time if
they arise from the same facts or motive.

If appellant attacked his victim in the proximate vindication of a

grave offense, he cannot successfully claim in the same breath
that he was also blinded by passion and obfuscation. At most,
only one of two circumstances could be considered in favor of
appellant (People v. Yaon, Court of Appeals, 43 O.G. 4142 cited in
I Reyes, Revised Penal Code [1981]).

The act of the victim in berating and humiliating appellant was

enough to produce passion and obfuscation, considering that the
incident happened in a market place within full view and within
hearing distance of many people.

The trial court held, and the Solicitor General agreed, that the
attendant aggravating circumstance was reiteracion  and
not reincidencia  as alleged in the information. The trial court and
the Solicitor General are in error.

According to the information charging appellant of murder and the

evidence, the accused was previously convicted of ill-treatment by
deed on July 6, 1965 and grave threats on November 25, 1968.

In recidivism or reincidencia, the offender shall have

been  previously convicted by final judgment  of another crime
embraced in the same title of the Revised Penal Code (Revised
Penal Code, Art. 14[g]). In reiteracion, the offender shall have
been punished previously for an offense to which the law attaches
an equal or greater penalty or for two or more crimes to which it
attaches a lighter penalty (Revised Penal Code, Art. 14[10]).
Unlike in reincidencia, the offender in reiteracion commits a crime
different in kind from that for which he was previously tried and
convicted (Guevarra, Penal Sciences and Philippine Criminal Law
129 [1974]).

Appellant was previously convicted of ill-treatment by deed

(Revised Penal Code, Art. 266, Title Eight) and grave threats
(Revised Penal Code, Art. 282, Title Nine). He was convicted of
homicide in the instant criminal case (Revised Penal Code, Art.
249, Title Eight). Inasmuch as homicide and ill-treatment by deed
fall under Title Eight, the aggravating circumstance to be
appreciated against him is recidivism under Article 14[g] rather
than reiteracion under Article 14(10) of the Revised Penal Code.

There is no reiteracion because that circumstance requires that

the previous offenses should not be embraced in the same title of
the Code. While grave threats fall in title (Title Nine) different
from homicide (Title Eight), still reiteracion cannot be appreciated
because such aggravating circumstance requires that if there is
only one prior offense, that offense must be punishable by an
equal or greater penalty than the one for which the accused has
been convicted. Likewise, the prosecution has to prove that the

64
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-25177            October 31, 1969
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NICOLAS LAYSON, CEZAR RAGUB, CEZAR FUGOSO and
JOVENTINO GARCES, defendants-appellants.
Office of the Solicitor General Antonio P. Barredo, Assistant
Solicitor General Antonio A. Torres and Solicitor Lolita O. Gal-lang
for plaintiff-appellee.
Potenciano Villegas, Jr. as counsel de officio for defendants-
appellants.
PER CURIAM:
This is an automatic review of the decision dated September 25,
1965 of the Court of First Instance of Davao in criminal case 8495
imposing the death penalty on Nicolas Layson, Cezar Ragub,
Cezar Fugoso and Joventino Garces.
On January 17, 1964 when these four accused stabbed Regino
Gasang to death, they were inmates of the Davao Penal Colony
serving sentences of conviction for the following crimes:
Nicolas — kidnapping with robbery,
Layson homicide, homicide and theft;
Cezar — frustrated murder and
Ragub homicide;
Cezar — robbery in an inhabited house
Fugoso and theft;
Joventino — robbery hold-up and robbery
Garces in an uninhabited house.
In the early morning of that hapless day, at about 4:45 o'clock,
the four accused, armed with bladed weapons, entered the cell
where the unsuspecting victim, prisoner Regino Gasang, was.
Layson locked the door of the room. Without warning and acting
in concert they then swiftly took turns in stabbing Gasang. They
thereafter barricaded themselves, refusing to surrender to the
trustees who had come to the scene of the crime, agreeing to
surrender only to Vicente Afurong, the supervising prison guard.
Afurong arrived, identified himself, and assured them of their
safety, whereupon they handed their weapons through the hole of
the barricaded door and surrendered themselves.
Gasang died shortly after being brought to the prison hospital.
Death was caused by severe internal and external hemorrhage
and shock, all secondary to multiple stab wounds.
Layson, Ragub and Fugoso admitted that they killed Gasang
because the latter urinated on their coffee cups a number of
times. Garces stated that he killed Gasang because the latter spat
on him a week before. The four plotted to kill Gasang a few days
prior to the actual slaying.
On March 25, 1964 all the accused were indicted for the crime of
murder. The information recites:
The undersigned accuses Nicolas Layson, Cezar Ragub,
Cezar Fugoso and Joventino Garces of the crime of
Murder, under Art. 248, in relation to Art. 160, of the
Revised Penal Code, committed as follows:
65
That on or about January 17, 1964, in the Davao Penal
Colony, Municipality of Panabo, Province of Davao,
Philippines, and within the jurisdiction of this Court, the
above-mentioned accused, while then being convicts
serving in the said Davao Penal Colony their
corresponding sentences of conviction by reason of final
judgment imposed upon them, conspiring and
confederating together and helping one another, armed
with sharp-pointed instruments, with treachery, evident
premeditation and abuse of superior strength, and with
intent to kill, did then and there wilfully, unlawfully and
feloniously attack, assault and stab with said weapons
Regino Gasang, their co-inmate in the said Colony,
thereby inflicting upon him serious injuries which caused
his death; with the aggravating circumstances of (1)
recidivism with respect to the accused Nicolas Layson
and Cezar Ragub, and (2) all of them with two or more
prior convictions.
Upon arraignment, all the four accused, assisted by counsel de
officio, freely and spontaneously pleaded guilty. Notwithstanding
the plea of guilty, the court a quo proceeded to receive testimony
because of the gravity of the offense. On September 30, 1965 the
court rendered its decision, the dispositive portion of which reads
as follows:
WHEREFORE, the Court finds the accused guilty beyond
reasonable doubt as principals of the crime of murder,
defined and penalized under Article 248 of the Revised
Penal Code, with the mitigating circumstance of plea of
guilty in favor of all of them and the aggravating
circumstances of recidivism and having been previously
punished for two or more crimes to which the law
attaches a lighter penalty with respect to the accused
Nicolas Layson and Cezar Ragub, the aggravating
circumstance of having been punished with two or more
offenses to which the law attaches a lighter penalty with
respect to the accused Cezar Fugoso and Joventino
Garces and the aggravating circumstances consisting of
any two of the qualifying circumstances alleged in the
information which are treachery, evident premeditation
and abuse of superior strength for one is sufficient to
qualify the crime to murder and the special aggravating
circumstance of having committed the crime charged
while serving the penalty imposed upon them for
previous offenses as regards all the accused and
conformably with Article 160 of the Revised Penal Code,
hereby sentences all of them to DEATH, to indemnify
jointly and severally the heirs of the deceased Regino
Gasang in the amount of Six Thousand Pesos
(P6,000.00) without subsidiary imprisonment in case of
insolvency by reason of the penalty imposed and to pay
the costs proportionately.
For the purposes of this review, suffice it to consider, on the one
hand, the aggravating circumstances of evident premeditation and
treachery and the special aggravating circumstance of quasi-
recidivism, and, on the other, the mitigating circumstance of plea
of guilty.
We reject the recommendation of the Solicitor General that the
mitigating circumstance of passion and obfuscation be considered
in favor of all the accused. For this circumstance to exist, it is
necessary that the act which gave rise to the obfuscation be not
removed from the commission of the offense by a considerable
length of time, during which period the perpetrator might recover
his normal equanimity.1
Three of the accused admitted that they harbored ill-feeling
against Gasang because the latter urinated on their coffee cups
several times, all these taking place at least ten days before the
actual slaying. Gasang spat on Garces a week before the day of
the killing. All of the accused plotted to kill Gasang a few days
before January 17, 1964. In the light of these circumstances, it is
evident that sufficient time had elapsed during which the accused
regained their equanimity. They moved their evil scheme forward
to consummation after obtaining weapons from their fellow
inmates whose aid they had solicited. The aforenarrated
circumstances negate the presence of passion and obfuscation;
upon the contrary, they prove the attendance of the aggravating
circumstance of evident premeditation.

Treachery attended the commission of the crime. The necropsy

report (exh. I) and the diagram (exh. J), plus the testimony of Dr.
Guillermo de Guzman, conclusively prove that the victim was
killed in a manner insuring utter suddenness and complete
surprise in the execution of the offense, with resultant incapability
of the victim to offer resistance. That there was abuse of superior
strength would suffice to qualify the crime to murder, but this
circumstance must be considered as absorbed in treachery. 2

Treachery qualifies the killing to murder; 3 evident premeditation

becomes a mere generic aggravating circumstance 4 which is offset
by the mitigating circumstance of plea of guilty. A qualifying
circumstance not only gives the crime its proper and exclusive
name but also places the author thereof in such a situation as to
deserve no other penalty than that specially prescribed for said
crime.5

The special aggravating circumstance of quasi-recidivism  (art.

160, Rev. Penal Code) was correctly considered against all the
accused, who, at the time of the commission of the offense, were
undoubtedly serving their respective sentences for previous
convictions. Quasi-recidivism  has for its effect the punishment of
the accused with the maximum period  of the penalty prescribed
by law for the new felony, and cannot be offset by an ordinary
mitigating circumstance.6

When they pleaded guilty to the charge of murder, all the accused
admitted all the material facts and circumstances alleged in the
information. The crime of murder is punished with reclusion
temporal  in its maximum period to death. Because of the
attendance of the special aggravating circumstance of quasi-
recidivism, this Court is left with no alternative to affirming the
death penalty imposed by the court a quo.

It was error for the trial judge to consider against the accused the
aggravating circumstance of having been previously punished for
two or more crimes to which the law attaches lighter penalties
because the said aggravating circumstance of "reiteracion"
requires that the offender against whom it is considered shall
have served out his sentences for the prior offenses. Here all the
accused were yet serving their respective sentences at the time of
the commission of the murder.

Concurrence in the grim view that we take of this case is given by

Attorney Potenciano Villegas, Jr., counsel de officio  for the four
accused, who unqualifiedly recommends affirmance of the
judgment a quo.

It is indeed a lethal hand that pens affirmance of a death

sentence, but ours is the inescapable duty to enforce the
inexorable mandate of the law.

ACCORDINGLY, the judgment a quo  imposing the death penalty

on Nicolas Layson, Cezar Ragub, Cezar Fugoso and Joventino
Garces, is affirmed. The indemnification to the heirs of the victim,
Regino Gasang, is hereby increased to P12,000,7 to be paid jointly
and severally by the four accused. Costs de officio.

66
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-44988             October 31, 1936
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
CANUTO BERNAL, defendant-appellant.
Juan M. Ladaw for appellant.
Acting Solicitor-General Melencio for appellee.
IMPERIAL, J.:
The accused was charged with the crime of theft, the information
alleging that, aside from the presence of the aggravating
circumstance of nocturnity, the accused is an habitual delinquent
because he had been convicted, prior to the commission of the
offense at bar, thrice of the same crime of theft. The accused
pleaded not guilty, but the court, after trial, found him guilty as
charged, and sentenced him to four (4) months and one (1) day
of arresto mayor, to pay the accessories of the law, to return the
three stolen roosters to Mariano de Leon or to indemnify the latter
the value thereof in the sum of P3, and to pay the costs. As an
habitual delinquent, because previously convicted three times of
the same crime of theft, he was sentenced to an additional
penalty of seven (7) years of prision mayor.
The facts are not disputed by the defense. It has been established
that late in the evening of October 11, 1935, the accused, without
the owner's consent, took three gamecocks belonging to Elias
Piamonte valued at P50, and three other roosters belonging to
Mariano de Leon valued at P3. Only two of the gamecocks of Elias
Piamonte, valued at P30, were recovered. It has equally been
established that the accused had been thrice convicted of the
crime of theft; The first time on April 25, 1935 by the justice of
the peace court of San Pablo, Laguna; the second time on June
24, 1935 by the justice of the peace court of San Pablo, Laguna;
and third time on October 19, 1935, by the justice of the peace
court of Tanauan, Batangas.
The defense assigns only one error of law in the judgment, to wit,
the accused an habitual delinquent under subsection (b) of
paragraph 5 of article 62 of the Revised Penal Code, and in
imposing upon him the penalty therein provided. It contends that
the applicable provision is that found in subsection (a) of the
aforesaid codal paragraph and article, because in truth and
according to the decisions, the accused has no more than two
prior convictions, the third being the one at bar. Elaborating on
this contention, the defense alleges that the conviction on October
19, 1935, for the crime of theft should not be counted against the
accused because it took place after the commission of the offense
at bar on the 11th of the said month and year. The Solicitor-
General in his brief agrees with the defense, and recommends
that the penalty fixed in subsection (a) of paragraph 5 of article
62 of the Revised Penal Code be imposed upon the accused. We
hold that the third conviction, having taken place after the
commission of the last offense with which the accused is now
charged, should not be reckoned with in determining habitual
delinquency and the additional penalty to be imposed, upon the
authority of the decisions of this court in People vs. Santiago (55
Phil., 266), People vs. Ventura (56 Phil., 1, 5), and People vs.
Reyes  (G.R. Nos. 43904, 43905, October 18, 1935 [62 Phil.,
966).
The aggravating circumstance of recidivism should be taken into
account in the commission of the crime of theft in view of the
established fact that the accused was thrice convicted of the said
crime prior to the trial of this case on November 4, 1935 (art. 14,
par. 9, Revised Penal Code). For this reason, the penalty
imposable should be six (6) months and one (1) day of prision
correccional. As an habitual delinquent, because he was twice
convicted of the crime of theft prior to the commission of the
offense at bar (art. 62, last paragraph of the Revised Penal Code),
he should be sentenced to the additional penalty of three (3)
67
years of prision correccional pursuant to subsection (a) of
paragraph 5 of the said article.
The question arose, in the course of our deliberation on this case,
of whether or not in instances where the accused turns out to be
an habitual delinquent the aggravating circumstance of recidivism,
when alleged and proved, should be taken into account in fixing
the penalty applicable for the commission of the principal offense,
independently of the additional penalty provided by law for
habitual delinquency. It has been urged that said aggravating
should not be considered, otherwise it would be twice held against
the accused inasmuch as it is necessarily taken into account in
ascertaining whether he is a habitual delinquent or not. The
majority of the court hold to the contrary view, namely, that
recidivism should be reckoned with; hence, the accused is
sentenced to the minimum of the maximum penalty fixed by law.
In resolving this question as above set out, the majority of the
court gave heed to the following considerations:
First: This is not the first time that the question has been
submitted to the consideration of the court. In People vs.
Melendrez  (59 Phil., 154), and People vs, Espina (62 Phil., 607),
we have already held that in cases similar to the one at bar, the
aggravating circumstance of recidivism should be taken into
consideration, notwithstanding the allegation and proof that the
accused were habitual delinquents and should accordingly be
sentenced to the additional penalty provided by law; and
Second: It is not correct to assume that recidivism is twice taken
into account when the accused is declared an habitual delinquent
and when it is deemed to aggravate the crime in fixing the
principal penalty to be imposed, because recidivism as an
aggravating circumstance modifying criminal liability is not an
inherent or integral element of habitual delinquency which the
Revised Penal Code considers as an extraordinary and special
aggravating circumstance.
Under the last subsection of paragraph 5 of article 62 of he
Revised Penal Code, a person shall be deemed to be habitually
delinquent, if within a period of ten years from the date of his
release or last conviction of the crime of robbery, theft, estafa, or
falsification, he is found guilty of any of said crimes a third time or
oftener. Paragraph 9 of article 14 of the Revised Penal Code
defines recidivism by stating that it is committed by a person
who, at the time of his trial for one crime, shall have been
previously convicted by final judgment of another crime embraced
in the same title of the Code. Defining reiteration or habituality
paragraph 10 of the same article provides that it is committed
when the offender has been previously punished for an offense to
which the law attaches at an equal or greater penalty or for two
or more crimes to which it attaches a lighter penalty. Reflecting
on these definitions it will be seen that recidivism, viewed as an
aggravating circumstance, is not a factor or element which
necessarily forms an integral part of habitual delinquency. It will
be noted that the elements as well as the basis of each of these
circumstances are different. For recidivism to exist, it is sufficient
that the accused, on the date of his trial, shall have been
previously convicted by final judgment of another crime embraced
in the same title. For the existence of habitual delinquency, it is
not enough that the accused shall have been convicted of any of
the crimes specified, and that the last conviction shall have taken
place ten (10) years before the commission of the last offense. It
is necessary that the crimes previously committed be prior to the
commission of the offense with which the accused is charged a
third time or oftener.
In view of the foregoing, the appealed judgment is modified, and
the accused-appellant is found guilty of the crime of theft charged
in the complaint and sentenced to six (6) months and one (1) day
of prision correccional, to return to the offended parties the stolen
and unrecovered roosters, or in default thereof to indemnify Elias
Piamonte in the sum of P20 and Mariano de Leon in the sum of
P3, with the corresponding subsidiary imprisonment in case of
insolvency, and to an additional penalty of three (3) years
of  prision correccional, with the costs in both instances. So
ordered.

Avanceña, C. J., Villa-Real, Diaz, and Laurel, JJ., concur.

68