G.R. No.
178512, November 26, 2014 Thereafter, Alexander was transferred to the Polymedic General Hospital where he
ALFREDO DE GUZMAN, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
Frustrated homicide requires intent to kill on the part of the offender. Without proof
of such intent, the felony may only be serious physical injuries. Intent to kill may be
established through the overt and external acts and conduct of the offender before,
during and after the assault, or by the nature, location and number of the wounds
inflicted on the victim.
The Case
Under review at the instance of the petitioner is the decision promulgated on
September 27, 2006,1 whereby the Court of Appeals (CA) affirmed his conviction for
frustrated homicide committed against Alexander Flojo under the judgment rendered
on September 10, 2003 by the Regional Trial Court (RTC), Branch 213, in
Mandaluyong City in Criminal Case No. 191-MD.2
Antecedents
The CA summarized the versions of the parties as follows:
x x x [O]n December 24, 1997, at aboutten o’clock in the evening, Alexander Flojo
(hereafter "Alexander") was fetching water below his rented house at 443 Aglipay
Street, Old Zaniga St., Mandaluyong City when suddenly Alfredo De Guzman (hereafter
"Alfredo"), the brother of his land lady, Lucila Bautista (hereafter "Lucila"), hit him on
the nape. Alexander informed Lucila about what Alfredo did to him. Lucila apologized
to Alexander by saying, "Pasensya ka na Mang Alex" and told the latter to just go up.
Alexander obliged and went upstairs. He took a rest for about two hours. Thereafter,
at around 12:00 to 12:15 A.M., Alexander went down and continued to fetch water.
While pouring water into a container, Alfredo suddenly appeared in front of
Alexander and stabbed him on his left face and chest.
Cirilino Bantaya, a son-in-law of Alexander, saw the latter bleeding on the left portion
of his body and begging for help. Alexander then told Cirilino that Alfredo stabbed
him. Cirilino immediately loaded Alexander into his motorcycle (backride) and
brought him to the Mandaluyong City Medical Center. Upon arrival at the hospital, the
doctors immediately rendered medical assistance to Alexander. Alexander stayed in
the emergency room of said hospital for about 30 to 40 minutes. Then, he was
brought to the second floor of the said hospital where he was confined for two days.
was subjected for (sic) further medical examination.
Alexander sustained two stabbed (sic) wounds. (sic) One of which was on the zygoma,
left side, and aboutone (1) cm. long. The other is on his upper left chest which
penetrated the fourth intercostal space at the proximal clavicular line measuring
about two (2) cm. The second stabbed (sic) wound penetrated the thoracic wall and
left lung of the victim which resulted to blood air (sic) in the thoracic cavity thus
necessitating the insertion of a thoracostomy tube toremove the blood. According to
Dr. Francisco Obmerga, the physician who treated the victim at the Mandaluyong City
Medical Center, the second wound was fatal and could have caused Alexander’s death
without timely medical intervention. (Tsn, July 8, 1998, p.8).
On the other hand, Alfredo denied having stabbed Alexander. According to him, on
December 25,1997 at around midnight, he passed by Alexander who was, then, fixing
a motorcycle. At that point, he accidentally hit Alexander’s back, causing the latter to
throw invective words against him. He felt insulted, thus, a fistfight ensued between
them. They even rolled on the ground. Alfredo hit Alexander on the cheek causing
blood to ooze from the latter’s face.3
The RTC convicted the petitioner, decreeing thusly:
PRESCINDING (sic) FROM THE FOREGOING
CONSIDERATIONS, the court finds accused Alfredo De Guzman y Agkis a.k.a.,
"JUNIOR," guilty beyond reasonable doubt for (sic) the crime of FRUSTRATED
HOMICIDE defined and penalized in Article 250 of the Revised Penal Code and in the
absence of any modifying circumstance, he is hereby sentenced to suffer the
indeterminate penalty of Six (6) Months and One (1) day of PRISION
CORR[R]ECCIONAL as MINIMUM to Six (6) Years and One (1) day of PRISION MAYOR
as MAXIMUM.
The accused is further ordered topay the private complainant compensatory damages
in the amount of ₱14,170.35 representing the actual pecuniary loss suffered by him as
he has duly proven.
SO ORDERED.4
On appeal, the petitioner contended that his guilt had not been proved beyond
reasonable doubt; that intent to kill, the critical element of the crime charged, was not
established; that the injuries sustained by Alexander were mere scuffmarks inflicted
in the heatof anger during the fist fight between them; that he did not inflict the
stabwounds, insisting that another person could have inflicted such wounds; and that
he had caused only slight physical injuries on Alexander, for which he should be
accordingly found guilty.
Nonetheless, the CA affirmedthe petitioner’s conviction, viz:
WHEREFORE, premises considered, the instant appeal is DISMISSED. The September
10, 2003 Decision of the Regional Trial Court of Mandaluyong City, Branch 213, is
hereby AFFIRMED in toto.
SO ORDERED.5
The CA denied the petitioner’s motion for reconsideration on May 2, 2007. 6
Issue
Was the petitioner properly found guilty beyond reasonable doubt of frustrated
homicide?
Ruling
The appeal lacks merit.
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 but did not die because of timely medical assistance; and (3) noneof
the qualifying circumstances for murder under Article 248 of the Revised Penal Code,
as amended, is present. 7 Inasmuch as the trial and appellate courts found none of the
qualifying circumstances in murder under Article 248 to be present, we immediately
proceed to ascertain the presence of the two other elements.
The petitioner adamantly denies that intent to kill was present during the fistfight
between him and Alexander.1âwphi1 He claims that the heightened emotions during
the fistfight naturally emboldened both of them, but he maintains that he only
inflicted minor abrasions on Alexander, not the stab wounds that he appeared to have
sustained. Hence, he should be held liable only for serious physical injuries because
the intent to kill, the necessary element to characterize the crime as homicide, was not
sufficiently established. He avers that such intentto kill is the main element that
distinguishes the crime of physical injuries from the crime of homicide; and that the
crime is homicide only if the intent to kill is competently shown.
The essential element in frustrated or attempted homicide is the intent of the offender
to kill the victim immediately before or simultaneously with the infliction of injuries.
Intent to kill is a specific intent that the State must allege in the information, and then
prove by either direct or circumstantial evidence, as differentiated from a general
criminal intent, which is presumed from the commission of a felony by dolo. 8 Intent to
kill, being a state of mind, is discerned by the courts only through external
manifestations, i.e., the acts and conduct of the accused at the time of the assault and
immediately thereafter. In Rivera v. People, 9 we considered the following factors to
determine the presence of intent to kill, namely: (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, during, 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 have also considered as determinative factors the motive
of the offender and the words he uttered at the time of inflicting the injuries on the
victim.10
Here, both the trial and the appellate court agreed that intent to kill was present. We
concur with them. Contrary to the petitioner’s submission, the wounds sustained by
Alexander were not mere scuffmarks inflicted in the heat of anger or as the result ofa
fistfight between them. The petitioner
wielded and used a knife in his assault on Alexander. The medical records indicate,
indeed, that Alexander sustained two stab wounds, specifically, one on his upper left
chest and the other on the left side of his face. The petitioner’s attack was unprovoked
with the knife used therein causing such wounds, thereby belying his submission, and
firmly proving the presence of intent to kill. There is also to beno doubt about the
wound on Alexander’s chest being sufficient to result into his death were it not for the
timely medical intervention.
With the State having thereby shown that the petitioner already performed all the
acts of execution that should produce the felony of homicide as a consequence, but did
not produce it by reason of causes independent of his will, i.e., the timely medical
attention accorded to Alexander, he was properly found guilty of frustrated homicide.
We have no cogent reason to deviate from or to disregard the findings of the trial and
appellate courts on the credibility of Alexander’s testimony. It is not disputed that the
testimony of a single but credible and trustworthy witness sufficed to support the
conviction of the petitioner. This guideline finds more compelling application when
the lone witness is the victim himself whose direct and positive identification of his
assailant is almost always regarded with indubitable credibility, owing to the natural
tendency of the victim to seek justice for himself, and thus strive to remember the face
of his assailant and to recall the manner in which the latter committed the
crime.11 Moreover, it is significant that the petitioner’s mere denial of the deadly
manner of his attack was contradicted by the credible physical evidence
corroborating Alexander’s statements. Under the circumstances, we can only affirm
the petitioner’s conviction for frustrated homicide. The affirmance of the conviction
notwithstanding, we find the indeterminate penalty of "Six (6) Months and One (1)
day of PRISION CORR[R]ECCIONAL as MINIMUM to Six (6) Years and One (1) day of
PRISION MAYOR as MAXIMUM"12 fixed by the RTC erroneous despite the CA
concurring with the trial court thereon. Under Section 1 of the Indeterminate
Sentence Law, an indeterminate sentence is imposed on the offender consisting of a
maximum term and a minimum term.13 The maximum term is the penaltyproperly
imposed under the Revised Penal
Code after considering any attending modifying circumstances; while the minimum
term is within the range of the penalty next lower than that prescribed by the Revised
Penal Codefor the offense committed. Conformably with Article 50 of the Revised
Penal Code,14 frustrated homicide is punished by prision mayor, which is next lower
to reclusion temporal, the penalty for homicide under Article 249 of the Revised Penal
Code. There being no aggravating or mitigating circumstances present, however,
prision mayorin its medium period – from eight years and one day to 10 years – is
proper. As can be seen, the maximum of six years and one day of prision mayor as
fixed by the RTC and affirmed by the CA was not within the medium period of prision
mayor. Accordingly, the correct indeterminate sentence is four years of prision
correccional, as the minimum, to eight years and one day of prision mayor, as the
maximum.
The RTC and the CA also agreed on limiting the civil liability to the sum of ₱14,170.35
as compensatory damages "representing the actual pecuniary loss suffered by
[Alexander] as he has duly proven." 15 We need to revise such civil liability in order to
conform to the law, the Rules of Court and relevant jurisprudence. In Bacolod v.
People,16 we emphatically declared to be "imperative that the courts prescribe the
proper penalties when convicting the accused, and determine the civil liability to be
imposed on the accused, unless there has been a reservation of the action to recover
civil liability or a waiver of its recovery." We explained why in the following manner:
It is not amiss to stress that both the RTC and the CA disregarded their express
mandate under Section 2, Rule 120 of the Rules of Courtto have the judgment, if it was
of conviction, state: "(1) the legal qualification of the offense constituted by the acts
committed by the accused and the aggravating or mitigating circumstances which
attended its commission; (2) the participation of the accused in the offense, whether
as principal, accomplice, or accessory after the fact; (3) the penalty imposed upon the
accused; and (4) the civil liability or damages caused by his wrongful act or omission
to be recovered from the accused by the offended party, if there is any, unless the
enforcement of the civil liability by a separate civil action has been reserved or
waived." Their disregard compels us to actas we now do lest the Court be
unreasonably seen as tolerant of their omission. That the Spouses Cogtas did not
themselves seek the correction of the omission by an appeal is no hindrance to this
action because the Court, as the final reviewing tribunal, has not only the authority
but also the duty to correct at any time a matter of law and justice.
We also pointedly remind all trial and appellate courts to avoid omitting reliefs that
the parties are properly entitled to by law or in equity under the established facts.
Their judgments will not be worthy of the name unless they thereby fully determine
the rights and obligations of the litigants. It cannot be otherwise, for only by a full
determination of such rights and obligations would they be true to the judicial office
of administering justice and equity for all. Courts should then be alert and cautious in
their rendition of judgments of conviction in criminal cases. They should prescribe the
legal penalties, which is what the Constitution and the law require and expect them to
do. Their prescription of the wrong penalties will be invalid and ineffectual for being
done without jurisdiction or in manifest grave abuse of discretion amounting to lack
of jurisdiction. They should also determine and set the civil liability ex delicto of the
accused, in order to do justice to the complaining victims who are always entitled to
them. The Rules of Court mandates them to do so unless the enforcement of the civil
liability by separate actions has been reserved or waived. 17
Alexander as the victim in frustrated homicide suffered moral injuries because the
offender committed violence that nearly took away the victim’s life. "Moral damages
include physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar injury.
Though incapable of pecuniary computation, moral damages may be recovered if they
are the proximate result of the defendant's wrongful act for omission." 18 Indeed,
Article 2219, (1), of the Civil Code expressly recognizes the right of the victim in
crimes resulting in physical injuries. 19 Towards that end, the Court, upon its
appreciation of the records, decrees that ₱30,000.00 is a reasonable award of moral
damages.20 In addition, AAA was entitled to recover civil indemnity of
₱30,000.00.21 Both of these awards did not require allegation and proof.
In addition, the amounts awarded ascivil liability of the petitioner shall earn interest
of 6% per annumreckoned from the finality of this decision until full payment by the
accused. WHEREFORE, the Court AFFIRMS the decision promulgated on September
27, 2006 finding petitioner Alfredo De Guzman, Jr. GUILTY beyond reasonable doubt
of FRUSTRATED HOMICIDE, and SENTENCES him to suffer the indeterminate penalty
of four years of prision correccional, as the minimum, to eight years and one day of
prision mayor, as the maximum; ORDERS the petitioner to pay to Alexander Flojo civil
indemnity of ₱30,000.00; moral damages of ₱30,000.00; and compensatory damages
of Pl4,170.35, plus interest of 6% per annum on all such awards from the finality of
this decision until full payment; and DIRECTS the petitioner to pay the costs of suit.
SO ORDERED.

G.R. No. 208835, January 19, 2018
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee
vs.
NOEL BEJIM y ROMERO, Accused-Appellant
DECISION
This is an appeal from the September 25, 2012 Decision 1 of the Court of Appeals (CA)
in CA-G.R. CR-HC No. 05010 affirming with modification the December 9, 2010
Consolidated Judgment2 of the Regional Trial Court (RTC), Branch 9, La Trinidad,
Benguet, finding appellant Noel Bejimy Romero guilty of seven counts of rape.
Factual Antecedents
On February 19, 2007, appellant was charged before the RTC of La Trinidad, Benguet,
with seven counts of statutory rape under seven separate Informations, viz.:
Criminal Case No. 07-CR-6765
That sometime in the first week of October. 2001, x x x Province of Benguet,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously have carnal
knowledge of "AM,"3 a minor being six (6) years and eleven (11) months of age at the
time of the commission of the crime, to her damage and prejudice.
CONTRARY TO LAW.4
Criminal Case No. 07-CR-6766
That sometime in the second week of October, 2001, x x x Province of Benguet,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously haw carnal
knowledge of "AAA," a minor being six (6) years and eleven (11) months of age at the
time of the commission of the crime, to her damage and prejudice.
CONTRARY TO LAW.5
Criminal Case No. 07-CR-6767
That sometime in the month of September, 2001, x x x Province of Benguet,
Philippines, and "Within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously have carnal
knowledge of "BBB," a minor being seven (7) years and eleven (11) months of age at
the time of the commission of the crin1e, to her damage and prejudice.
CONTRARY TO LAW.6
Criminal Case No. 07-CR-6768
That sometime in the month of September, 2001, x x x Province of Benguet,
Philippines, and within the jurisdiction of this Honorable Court, the Above-named
accused, did then and there willfully, unlawfully and feloniously have carnal
knowledge of ''CCC," a minor being seven (7) years and ten (10) months of age at the
time of the commission of the crime, to her damage and prejudice.
CONTRARY TO LAW.7
Criminal Case No. 07-CR-6769
That sometime in the second week of October, 2001, x x x Province of Benguet,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously have carnal
knowledge of "CCC," a minor being seven (7) years and eleven (11) months of age at
the time of the commission of the crime, to her damage and prejudice.
CONTRARY TO LAW.8
Criminal Case No. 07-CR-6770
That sometime in the last week of October, 2001, x x x Province of Benguet,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously have carnal
knowledge of "CCC," a minor being seven (7) years and eleven (11) months of age at
the time of the commission of the crime, to her damage and prejudice.
CONTRARY TO LAW.9
Criminal Case No. 07-CR-6771
That sometime in the first week of October, 2001, x x x Province of Benguet,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously have carnal
knowledge of "CCC," a minor being seven (7) years and eleven (11) months of age at
the time of the commission of the crime, to her damage and prejudice.
CONTRARY TO LAW.10
On May 8, 2007, appellant was arraigned in all the seven Informations and pleaded
not guilty. The cases were consolidated and tried jointly.
Criminal Case No. 07-CR-6765
"AAA'' first met appellant who was the helper of her cousin ''CCC's" father at "CCC's"
house when she went there to play. In the first week of October 2001 while at "CCC's"
house, appellant made "AAA'' lie on a sofa. He undressed her, applied cooking oil on
her vagina and on his penis, and then rubbed his penis against her vagina for some
time. He then pulled "CCC" to the sofa and again placed cooking oil on his penis and on
"CCC's" vagina. "AAA" saw this because she was just a meter away from them.
Appellant warned "AAA" and ''CCC'' not to tell anyone of what transpired otherwise
he would kill them and their families.
Criminal Case No. 07-CR-6766
Sometime in the second or third week of October 2001, while "AAA" and "CCC' were
playing at the latter's house, appellant again pulled them to a sofa. When appellant
went to the kitchen, "AAA" and "CCC" tried to run away but appellant caught them at
the living room. He forced ''AAA" to lie on the sofa, pulled down her pants and panties
to her ankle, and applied cooking oil on his penis and her vagina. Appellant rubbed his
penis on "AAA's vagina. She felt pain. Thereafter, appellant likewise pulled "CCC" to
the sofa, brought down the latter's pants, and rubbed his penis against her vagina.
After threatening them, appellant wore his pants and went out of the house.
Criminal Case No. 07-CR-6767
"BBB" is also a cousin of "CCC" and "AAA". In the first week of September 2001, while
she and "CCC" were inside the latter's house. appellant suddenly pulled them to the
sofa in the living room. Appellant laid "CCC" on the sofa, applied cooking oil on her
vagina and his penis; and tried to insert his penis into "CCC's" vagina. Thereafter,
appellant turned to "BBB." He made her Lie on the sofa, lifted her skirt, pulled down
her panties, his pants and brief, and tried to insert his penis into her vagina,
Unsuccessful, he just brushed or rubbed his penis against her vagina. "BBB" felt pain
in her vagina. Appellant immediately stood up; fixed his clothes and ran away upon
seeing the arrival of "BBB's" cousins. "DOD" and "EEE." "BB" told her cousins that they
were sexually molested by appellant but wan1ed them not to tell anybody because if
they do appellant would kill them.
Criminal Case No. 07-CR-6768
'"CCC" knew appellant because he was the helper of her father and lived with them in
their house. In the first week of September 2001, while she and her cousin "BBB"
were playing inside their house, appellant closed all the windows and doors, made her
lie on the sofa, lowered her pant5 and underwear down to her ankle, and put cooking
oil on his penis and on her vagina. "BBB" saw appellant's penis penetrating ''CCC's"
vagina. When appellant saw "CCC's" two sisters "DDD" and "EEE" arrive, he went out
of the house.
Criminal Case No. 07-CR-6769
In the second week of October 2001, appellant laid ''CCC" on the kitchen table,
removed her pants, put cooking oil on his penis and her vagina and tried to penetrate
it but was unsuccessful.
Criminal Case No. 07-CR-6770
In the last week of October 2001, while "CCC" was sleeping in her sister's bedroom,
appellant came and removed her clothes, mounted her and tried to insert his penis
but he failed, albeit she felt his big penis. "CCC" did not tell her father of what
happened because of appellant's threat.
Criminal Case No. 07-CR-6771
Sometime in the first week of October 2001 and while inside "CCC's" house, appellant
laid "CCC" on the sofa, put cooking oil on her vagina and his penis. He tried to insert
his penis into her vagina but failed. Thereafter, appellant went outside. "CCC" did not
tell anyone about the incident because of appellant's threat to kill her and her family.
"AAA,'' ''BBB" and "CCC" were physically examined by Dra. Bernadette Valdez (Dra.
Valdez). The result of her examination which was reduced into writing 11 shows no
evident injury at the time of her examination though her medical evaluation does not
exclude possible sexual abuse.
Appellant denied the accusations against him claiming that he was not in the house of
"CCC" when the alleged incidents happened in 200l.
Ruling of the Regional Trial Court
After trial, the RTC rendered on December 9, 2010 its Consolidated Judgment finding
appellant guilty beyond reasonable doubt of seven counts of rape and sentencing him
to suffer the penalty of reclusion perpetua for each count. He was also ordered to pay
the amount of ₱50,000.00 as civil indemnity and another ₱50,000.00 as moral
damages for each crime.
Ruling of the Court of Appeals
The CA, in its Decision dated September 25, 2012, affirmed with modifications the
RTC Consolidated Judgment in this wise:
ACCORDINGLY, the Consolidated Judgment dated December 9, 2010 is AFFIRMED
with MODIFICATION, as follows:
1. pronouncing appellant Noel Bejim y Romero guilty of qualified rape in
Criminal Case Nos. 07-CR-67-65 and 07-CR- 67-66 and liable for
Php75,000.00 as civil indemnity, Php75,000.00 as moral damages and
Php30,000.00 as exemplary damages for each count;
2. pronouncing appellant Noel Bejim y Romero guilty of statutory rape in
Criminal Case ·No. 07-CR-67-67 and liable for Php75,000.00 as civil
indemnity. Php75,000.00 as moral damages and Php30,000.00 as exemplary
damages; and,
3. pronouncing appellant Noel Bejim y Romero guilty of statutory rape in
Criminal Case Nos. 07-[CR]-67-68, 07-[CR]-67-69, 07- [CR]-67-70, and 07-
[CR]-67-7 l and liable for Php75,000.00 as civil indemnity, Php75,000.00 as
moral [damages] and Php30,000.00 as exemplary damages for each count.
In Criminal Case Nos. 07-CR-67-65 and 07-CR-67-66 appellant shall not be qualified
for parole.
SO ORDERED.12
Appellant interposed before this Court the present recourse adopting the same
argument he raised in his brief before the CA, viz.:
The court a quo gravely erred in finding the accused-appellant guilty of the crime of
rape despite the prosecution's failure to prove his guilt beyond reasonable doubt. 13
In support of his argument, appellant impugns the victims' credibilities by capitalizing
on the alleged inconsistencies in their open court testimonies; their failure to shout
for help during the alleged incidents; the belated filing of their complaints; and, the
medical finding of no evident injury during their examination.
Our Ruling
The appeal lacks merit.
The inconsistency pointed out by appellant as to whether "AAA" was alone or with
"BBB" during the alleged incident on the first week of October 200 l refers merely to
inconsequential matter that will not affect the determination of whether appellant is
innocent of the crime charged or not. "[D]iscrepancies referring only to minor details
and not to the cen1ral fact of the crime do not affect the veracity or detract from the
credibility of a witness' declaration x x x." 14 Respecting the alleged inconsistency on
whether appellant's penis touched "AAA's" vagina or not, the same has been clarified
by "AAA" herself15 "AAA" stated that appellant's penis indeed brushed her vagina. As
held in Dizon v. People,16 "(i]n rape cases, the testimony of [the] complainant must be
considered and calibrated in its entirety, and not in its truncated portion or isolated
passages thereof The true meaning of answers to questions propounded to a witness
is to be ascertained with due consideration of all the questions and answers given
thereto. The whole impression or effect of what has been said or done must be
considered, and not individual words or phrases alone. Facts imperfectly stated in
answer to a question may be supplied or clarified by one's answer to other questions."
The failure of the victims to shout for help or escape during the incidents does not
undermine their credibility. It is not also fatal to the prosecution's case. "[N]o
standard form of behavior can be anticipated of a rape victim following her
defilement, particularly a child who could not be expected to fully comprehend the
ways of an adult. People react differently to emotional stress, and rape victims are no
different from them."17
Neither the delay in reporting the incidents to the proper authorities tainted the
victims' credibility. For sure, there was no prompt revelation of what befell the
victims. But "long silence and delay in reporting the crime of rape have not always
been construed as indications of a false accusation." 18 "A rape charge becomes
doubtful only when the delay in revealing its commission is unreasonable and
unexplained."19In the present case, appellant threatened the victims that he would kill
them and their families if they would tell anyone of what he did to them. To our mind,
this is a reasonable explanation for the delay.
Regarding the findings of Dra. Valdez that her physical examination on the victims
shows no evident injury, this Court had already ruled that ''a medical examination of
the victim is not indispensable in a prosecution for rape inasmuch as the victim's
testimony alone, if credible, is sufficient to convict the [accused] of the crime." 20
Appellant denies being Cit the house of "CCC" duri.ng the incidents. However, he failed The rape on the second week of October 2001 (Criminal Case No. 07-CR- 6766)-
to provide an account of his whereabouts such that it was physically impossible for
him to have committed the crimes. Appellant's unsubstantiated denial must fail in xxxx
light of the categorical testimonies of the victims that it was he who molested them.
Q: And after pulling down your pants and panty, what did he do next?
Notably, appellant's belabored attempt to reverse his conviction is essentially
anchored on credibility.1âwphi1 The general rule is that "this Court will not disturb A: Sir, he again placed cooking oil on his penis and [on] my vagina and he again
the findings of the trial court as to the credibility of witnesses, considering that it is in rubbed his penis into my vagina.
a better position to observe their candor and behavior on the witness
stand."21 However, this principle ·does not .preclude a reevaluation of the evidence to
xxxx
determine whether matei1al facts or circumstances have been overlooked or
misinterpreted by the trial court. 22 Consistent with the p1incipal that an appeal in a
criminal action opens the whole case for review, we shall now determine whether the' Q: And did you feel anything when he rubbed his penis [on] your vagina?
evidence of the prosecution is sufficient to sustain the conviction of the appellant for
qualified rape and statutory rape. A: Yes, sir, it was quite painful. 26

Rape is committed by having carnal knowledge of a woman with the use of force, Regarding the rape allegedly committed during the first week of September 2001
threat or intimidation or when she is under 12 years of age or is demented. Where the (Criminal Case No. 07-CR-6767) "BBB" narrated her horrifying experience as follows:
victim is below 12 years old, the only subject of inquiry is whether ''carnal
knowledge" took place. Carnal knowledge is "the act of a man having sexual Q: So after Noel Bejim sat beside you, did Nod Bejim do anything Else?
intercourse or sexual bodily connections with a woman". 23 There must be proof that
his penis touched the labias of the victims or slid into their female organs and not A: Yes, sir.
merely stroked the external surface thereof, to produce a conviction of rape by sexual
intercourse.24
Q: What did he do?
''AAA" recounted the details on how the alleged rape was committed as follows:
A: He pulled me and let me lie down on the sofa.
The alleged rape committed on the first week of October 2001 (Criminal Case No. 07-
Q: Was he able to make you lie down on the sofa?
CR-6765)-

A: Yes, sir.
xxxx

Q: And when he was able to lay you down on the sofa, what did he do next, if any?
Q: And what did he do after he made you lie down on the sofa?

A: He lifted my skirt and . . .

A: He went to get cooking oil and poured it on his penis and he undressed me and he
also poured cooking oil on my vagina.
Q: After he lifted your skirt, what did he do next, if any?
Q; After he placed oil [on] his penis and placed oil (on] your vagina, what did he do
next? A: He brought down my panty and he pulled down his clothes.

A: He rubbed his penis on my vagina.25 Q: What clothes did he bring down?

A: Sir, his pants sir and his brief.
Q: And after he brought down his pants and his brief, what did Noel Bejim do next?
A: He tried to insert his penis [into] my vagina.
Q: Did you feel his penis [inside] your vagina?
A: Yes, sir.
Q: And was he able to insert his penis into your vagina?
A: Sir, he just brushed it.
xxxx
Q: And what did you feel, if any, when he was brushing his penis [on] your vagina?
A: It was painful, sir.
xxxx
Q: So after rubbing his penis into your vagina, what did he do next?
A: When he saw my cousins, he immediately got up, stood up.
xxxx
Q: And when he stood up, what did he do next?
A: He fixed his pants and his brief and he ran away. 27
The foregoing revelations of "AAA'' and "BBB" show that the evidence adduced by the
prosecution did not conclusively establish the element of carnal knowledge. In the
aforementioned cases, there is no categorical proof of entrance or introduction of
appellant's male organ into the labia of the pudendum of "AAA." Neither is there
evidence to show that appellant made an attempt to penetrate "AAA's" vagina. The
prosecution’s evidence lacks definite details regarding penile penetration. On the
contrary, "AAA'' and "'BBB" stated that appellant merely "brushed or rubbed" his
penis on their respective private organs. While "BBB" testified that appellant tried to
insert his penis into her vagina, she nevertheless failed to state for the record that
there was the slightest penetration into it. What is clear on record is that appellant
merely brushed it.
The Court held in People v. Butiong28 that ''the labia majora must be entered for rape
to be consummated, and not merely for the penis to stroke the surface of the female
organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of
the pudendum is not sufficient to constitute consummated rape. Absent any showing
of the slightest penetration of the female organ, i.e., touching of either the 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." While "the mere touching of the external
genitalia by the penis capable of consummating the sexual act is sufficient to
constitute carnal knowledge,"29 "the act of touching should be m1derstood 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 pudemdum."30 Indeed, the grazing of the
victims' private organ caused pain, but it cannot be presumed that carnal knowledge
indeed took place by reason thereof As the Court held in People v. Brioso,31 "the Court
is loath to convict an accused for rape solely on the basis of the pain experienced by
the victim as a result of efforts to inse1t the penis into the vagina." Significantly, from
their own declaration following the public prosecutor's questioning, they suffered
pains not because of appellant's attempt to insert his penis but because of the grazing
of their vagina.
Given the foregoing and since there is neither clear showing or direct proof of penile
penetration or that appellant's penis made contact with the labias of the victims,
which is an essential element of the crime of rape, we cannot sustain appellant's
conviction for the crime of rape in Criminal Case Nos. 07-CR-6765; 07-CR-6766; 07-
CR-6768; 07-CR-6769 and 07-CR-6770.
However, appellant can be convicted of Acts of Lasciviousness under Article 336 of
the Revised Penal Code (RPC) in relation to Section 5 of Republic Act (RA) No.
7610,32 which was the offense proved though he was charged with rape through
sexual intercourse in relation to RA 7610, applying the variance doctrine under
Section 4 in relation to Section 5 of Rule 120 of the Revised Rules of Criminal
Procedure.33 The crime of Acts of Lasciviousness under Article 336 of the RPC in
relation to Section 5 of RA 7610, which was the offense proved is included in rape, the
offense charged.34
The essential elements of sexual abuse under Section S(b) of RA 7 610 are as follows:
(l) The accused commits the act of sexual intercourse or lascivious conduct;
(2) The said act is performed with a child exploited in prostitution or subjected to
other sexual abuse; and,
(3) The child, whether male or female, is below 18 years of age35 A: He again raped me, sir.

On the other hand, the elements of Acts of Lasciviousness under Article 336 of the Q: What did he do?
RPC are as follows:
A: He again, tried to put his penis into my vagina.'
(1) That the offender commits any act of lasciviousness or lewdness;
Q: Did you feel his penis into your vagina?
(2) That it is done under any of the following circumstances:
A: Yes, your Honor.
a) Through force, threat or intimidation;
Q: And what happened when he was trying to insert his penis into your vagina?
b) Where the offended party is deprived of reason or otherwise unconscious;
A: Sir it failed.
c) By means of fraudulent machination or grave abuse of authority;
Q: What do you mean it failed?
d) When the offended party is under twelve (12) years of age or is demented,
even though none of the circumstances mentioned above be present; and (3) A: It did not enter, it cannot enter. He was hard up inserting his penis.
That the offended party is another person of either sex. 36
Q: Why?
All the elements of acts of lasciviousness under Article 336 of the RPC and sexual
abuse under Section 5(b) of RA 7 610 were sufficiently established in the afore- A: Because his penis is big.40
numbered cases. Specifically, appellant committed lasciviousness when he poured
cooking oil on the victims' private organ and rubbed them with his penis. The victims
As to the rape allegedly committed in the last week of October 2001 (Criminal Case
were under 12 years of age as established by their respective birth certificate and
No. 07-CR-6770) "CCC's'' pertinent testimony is as follows:
therefore way below 18 years of age. They were subjected to "other sexual abuse" as
required wider Section 5(b) of RA 7610. "A child is deemed subjected to 'other sexual
abuse' when he or she indulges in lascivious conduct under the coercion or influence Q: And after he removed your clothes, what did he do next?
of any adult."37 There is coercion or influence when there is some form of compulsion
equivalent to intimidation which subdues the free exercise of the offended party's free A: He again tried to insert it [into] my vagina, sir.
will.38 In the present cases, the victims were sexually abused as they were coerced,
influenced, threatened and intimidated by appellant who was the helper of "CCC's" xxxx
father.
Q: Did you feel his penis in your vagina?
Based on the evidence established, appellant can thus be held criminally liable of the
crime of Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5 of A: Yes, your Honor.
RA7610.39
Q: What did you feel?
On the alleged rape committed during the second week of October 2001 (Criminal
Case No. 07-CR-6769) ''CCC declared:
A: He was trying to insert his penis into my vagina, your Honor and I felt pain.
Q· And after your pants were removed, what did Noel Bejim do next?
Q: What caused that pain?
A: His penis is big.41 A: He placed the cooking oil [on] my vagina and [on] his penis.

We find no compelling reason why we should not apply our earlier ratiocination in xxxx
Criminal Case Nos. 07-CR-6765, 07-CR-6766 and 07-CR-6767 to the incidents
committed on "CCC" sometime in October 2001. In Criminal Case No. 07-CR-6769, Q: So after he removed x x x your pants and panty [and] while you were lying down on
"CCC'' categorically testified that appellant failed to inse1t his penis into her vagina the sofa, what did Noel Bejim do next?
because it is big. Similarly, in Criminal Case No. 07-CR- 6770, "CCC" revealed that she
felt pain when appellant was trying to insert his penis into her vagina because it is big. A: He tried to put his penis [into] my vagina.
Significantly, however, we could not discern from her testimony that there was penile
penetration even only in the slightest degree. To conclude that there was penile
Q: How did he try?
penetration simply because they felt pain when appellant tried to insert his penis into
her vagina is engaging in the realm of speculation. However, the medical examination
on "CCC," though not indispensable in a prosecution for rape, shows no evident injury. A: He held his penis.
At this juncture, it must be stressed that in a criminal prosecution, each and every
element of the crime, must be proved beyond reasonable doubt. Judgment must never Q: And what did he do with his penis?
rest on speculation or suspicion, no matter how strong it is. "Courts cannot function to
supply missing links in the prosecution evidence which otherwise insufficiently A: He inserted it [into] my vagina.
proves carnal knowledge.''42
Q: Did his penis touch your vagina?
Relative to the rape which allegedly occurred in the first week of September 2001
(Criminal Case No. 07-CR-6768) "CCC" related her ordeal as follows: A: No, your Honor.

Q: In the year 2001 while you were in Grade Two, do you recall if Noel Bejim did Q: It did not touch your vagina?
anything to you?
A: His penis touched my vagina.
A:Yes, your Honor.
Q: Now, you said he was trying to insert his penis into your vagina, what motion did
Q: What did he do to you? he do, if any?

A: He raped me, sir. A: He was hard up.

xxxx Q: Did you feel his penis?

Q: So you said you were raped by Noel Bejim, how did he rape you, what did he do to A: Yes, your Honor.
you that you claim that he raped you?
Q: You felt it in your vagina?
xxxx
A: Yes, your Honor.43
A: Sir, he [got] cooking oil, your Honor.
"CCC' continued further in narrating the incident of rape allegedly committed in the
Q: After he got cooking oil, what did he do with the cooking oil, if you noticed? first week of October 2001 (Criminal Case No. 07-CR-6771) as follows:
Q: And after putting cooking oil [on] your vagina and [on] his penis, what did he do
next?
A: He tried again to put his penis [into] my vagina but he failed again.
Q: Did you feel his penis into your vagina?
A: Yes, sir.
Q: Now, why did you say he failed?
A: It was not inserted enough.
Q: Do you know of any reason why it was not inserted enough into your vagina?
A: Because his penis is big.44
Based on the foregoing narration, the Court is convinced that in Criminal Case Nos.
07-CR-6768 and 07-CR-6771, there was a slight penetration on "CCC's" genitalia.
"CCC'' positively testified that appellant's penis indeed touched her vagina. That
appellant's penis was not inserted enough only indicates that he was able to penetrate
her even partially. Anyway, complete penetration is not required to consummate the
crime of rape. "Full penile penetration is not a consummating ingredient in the crime
of rape."45 Thus, from the testimonial account of "CCC," the Court could reasonably
conclude that there was indeed carnal knowledge by appellant of the victim "CCC." We
therefore sustain the CA in finding appellant guilty of statutory rape in Criminal Case
Nos. 07-CR-6768 and 07-CR-6771, the only elements of which are "(1) that the
offender had carnal knowledge of a woman; and (2) that such woman is under 12
years of age or is demented."46
With the guilt beyond reasonable doubt of appellant of the crime of Acts of
Lasciviousness under Article 336 of the RPC in relation to Section 5 of RA 7610 in
Criminal Case Nos. 07-CR-6765, 07-CR-6766, 07-CR-6767, 07-CR-6769 and 07-CR-
6770 and statutory rape in Criminal Case Nos. 07-CR-6768 and 07-CR- 6771, having
been proven, we shall now determine the appropriate penalties imposable for each
offense.
Under Article 336 of the RPC, in relation to Section 5(b), Article III of RA 7610, 47 the
penalty for acts of lasciviousness when the victim is under 12 years of age is reclusion
temporal in its medium period which has a range of fourteen (14) years, eight (8)
months and one (1) day to seventeen (17) years and four (4) months. Applying the
Jndete1minate Sentence Law, the minimum of the indeterminate penalty shall be
taken from the full range of the penalty next lower in degree i.e., reclusion temporal in
its minimum period or from twelve (12) years and one (1) day to fourteen (14) years
and eight (8) months. The maximum of the indeterminate penalty shall be taken from
the proper penalty that could be imposed under the RPC for acts of lasciviousness
which, there being no aggravating or mitigating circumstance in these cases, is the
medium period of reclusion temporal medium which ranges from fifteen (15) years,
six (6) months and twenty (20) days to sixteen (16) years, five (5) months and nine
(9) days.
In Criminal Case Nos. 07-CR-6768 and 07-CR-6771, the sentence of reclusion
perpetua imposed upon appellant by the CA for the crime of statutory rape is in
accordance with Article 266-B of the RPC, as amended, in relation to Section 5(b),
Article III of RA 7610. Likewise proper are the awards of civil indemnity in the
amount of Php75,000.00 and moral damages in the amount of Php75,000.00 for each
count of rape. The award of exemplary damages in the amount of Php30,000.00 is
increased to Php75,000.00 for each case.
WHEREFORE, the appealed September 25, 2012 Decision of the Court of Appeals
is AFFIRMED with modifications. Appellant Noel Bejim y Romero is
found GUILTY of:
1. Acts of Lasciviousness under Article 336 of the Revised Penal Code in
relation to Section 5 of Republic Act No. 7610 in Criminal Case Nos. 07-CR-
6765, 07-CR-6766, 07-CR-6767, 07-CR-6769 and 07-CR-6770 and sentenced
in each case to an indeterminate prison term of thirteen (13) years, nine (9)
months and ten (10) days of reclusion temporal minimum, as minimum, to
sixteen (16) years, five (5) months and nine (9) days of reclusion
temporal medium, as maximum. In addition, appellant is ordered to pay the
victims the amounts of Php20,000.00 as civil indemnity, Php15,000.00 as
moral damages, Php15,000.00 as exemplary damages, and Php15,000.00 as
fine, for each count of acts of lasciviousness.
2. Statutory Rape in Criminal Case Nos. 07-CR-6768 and 07-CR-6771 and
sentenced to suffer the penalty of reclusion perpetua for each count and
ordered to pay the offended party the amounts of Php75,000.00 as civil
indemnity, Php75,000.00 as moral damages and Php75,000.00 as exemplary
damages for each count of rape.
Appellant is ORDERED to pay the offended parties interest on all damages awarded at
the legal rate of 6% per annum from the date of finality of this judgment until fully
paid.
SO ORDERED.

G.R. No. 88724, April 3, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal
Case No. 83-031-B before the Regional Trial Court, Branch II, Borongan, Eastern
Samar. The information filed in the said case reads as follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior complaint
under oath by the offended party, accuses CEILITO ORITA alias LITO of the
crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a
boarding house at Victoria St., Poblacion, Borongan, Eastern Samar,
Philippines, and within the jurisdiction of this Honorable Court, above named
accused with lewd designs and by the use of a Batangas knife he conveniently
provided himself for the purpose and with threats and intimidation, did, then
and there wilfully, unlawfully and feloniously lay with and succeeded in
having sexual intercourse with Cristina S. Abayan against her will and
without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the offense
charged. After the witnesses for the People testified and the exhibits were formally
offered and admitted, the prosecution rested its case. Thereafter, the defense opted
not to present any exculpatory evidence and instead filed a Motion to Dismiss. On
August 5, 1985, the trial court rendered its decision, the dispositive portion of which
reads (pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of accused CEILITO
ORITA @ LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond
reasonable doubt, with the aggravating circumstances of dwelling and
nightime (sic) with no mitigating circumstance to offset the same, and
considering the provisions of the Indeterminate Sentence Law, imposes on
accused an 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 Four Thousand (P4,000.00)
Pesos, without subsidiary imprisonment in case of insolvency, and to pay
costs.
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.
On January 11, 1989, the Court of Appeals issued a resolution setting aside its
December 29, 1988 decision and forwarded the case to this Court, considering the
provision of Section 9, paragraph 3 of Batas Pambansa Blg. 129 in conjunction with
Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows (pp. 71-
75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St.
Joseph's College at Borongan, Eastern Samar. Appellant was a Philippine
Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her boarding
house. Her classmates had just brought her home from a party (p. 44, tsn,
May 23, 1984). Shortly after her 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 frequent
visitor of another boarder (pp. 8-9, ibid).
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 locked from the inside,
appellant forced complainant to use the back door leading to the second floor
(p. 77, ibid). With his left arm wrapped around her neck and his right hand
poking a "balisong" to her neck, appellant dragged complainant up the stairs
(p. 14, ibid). When they reached the second floor, he commanded her to look
for a room. With the Batangas knife still poked to her neck, they entered
complainant's room.
Upon entering the room, appellant pushed complainant who hit her head on
the wall. With one hand holding the knife, appellant undressed himself. He
then ordered complainant to take off her clothes. Scared, she took off her T-
shirt. Then he pulled off her bra, pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her. He made her
hold his penis and insert it in her vagina. She followed his order as he
continued to poke the knife to her. At said position, however, appellant could
not fully penetrate her. Only a portion of his penis entered her as she kept on
moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount him. In
this position, only a small part again of his penis was inserted into her vagina.
At this stage, appellant had both his hands flat on the floor. Complainant
thought of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant pursued her
and climbed the partition. When she saw him inside 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).
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 Samar
Provincial Hospital where she was physically examined.
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 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 otherwise unconscious and
3. When the woman is under twelve years of age, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be
present.
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.
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 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.
Eriñ a 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 Eriñ a 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.
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).
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.

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
This case aims for prime space in the firmament of our criminal law jurisprudence.
Petitioner effectively concedes having performed the felonious acts imputed against
him, but instead insists that as a result, he should be adjudged guilty of frustrated
theft only, not the felony in its consummated stage of which he was convicted. The
proposition rests on a common theory expounded in two well-known
decisions1 rendered decades ago by the Court of Appeals, upholding the existence of
frustrated theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.
As far as can be told,2 the last time this Court extensively considered whether an
accused was guilty of frustrated or consummated theft was in 1918, in People v.
Adiao.3 A more cursory
treatment of the question was followed in 1929, in People v. Sobrevilla, 4 and in 1984,
in Empelis v. IAC.5 This petition now gives occasion for us to finally and fully measure
if or how frustrated theft is susceptible to commission under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an
Information6 charging petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon
(Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner
and Calderon were sighted outside the Super Sale Club, a supermarket within the
ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard
who was then manning his post at the open parking area of the supermarket. Lago
saw petitioner, who was wearing an identification card with the mark "Receiving
Dispatching Unit (RDU)," hauling a push cart with cases of detergent of the well-
known "Tide" brand. Petitioner unloaded these cases in an open parking space, where
Calderon was waiting. Petitioner then returned inside the supermarket, and after five
(5) minutes, emerged with more cartons of Tide Ultramatic and again unloaded these
boxes to the same area in the open parking space.7
Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and
directed it towards the parking space where Calderon was waiting. Calderon loaded
the cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts
were eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking
area. When Lago asked petitioner for a receipt of the merchandise, petitioner and
Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow
security guards of the incident. Petitioner and Calderon were apprehended at the
scene, and the stolen merchandise recovered. 8 The filched items seized from the duo
were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3)
additional cases of detergent, the goods with an aggregate value of ₱12,090.00. 9
Petitioner and Calderon were first brought to the SM security office before they were
transferred on the same day to the Baler Station II of the Philippine National Police,
Quezon City, for investigation. It appears from the police investigation records that
apart from petitioner and Calderon, four (4) other persons were apprehended by the
security guards at the scene and delivered to police custody at the Baler PNP Station
in connection with the incident. However, after the matter was referred to the Office
of the Quezon City Prosecutor, only petitioner and Calderon were charged with theft
by the Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day
after the incident.10
After pleading not guilty on arraignment, at the trial, petitioner and Calderon both
claimed having been innocent bystanders within the vicinity of the Super Sale Club on
the afternoon of 19 May 1994 when they were haled by Lago and his fellow security
guards after a commotion and brought to the Baler PNP Station. Calderon alleged that
on the afternoon of the incident, he was at the Super Sale Club to withdraw from his
ATM account, accompanied by his neighbor, Leoncio Rosulada. 11 As the queue for the
ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket.
It was while they were eating that they heard the gunshot fired by Lago, leading them
to head out of the building to check what was
transpiring. As they were outside, they were suddenly "grabbed" by a security guard,
thus commencing their detention. 12 Meanwhile, petitioner testified during trial that he
and his cousin, a Gregorio Valenzuela, 13 had been at the parking lot, walking beside
the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they
saw the security guard Lago fire a shot. The gunshot caused him and the other people
at the scene to start running, at which point he was apprehended by Lago and brought
to the security office. Petitioner claimed he was detained at the security office until
around 9:00 p.m., at which time he and the others were brought to the Baler Police
Station. At the station, petitioner denied having stolen the cartons of detergent, but he
was detained overnight, and eventually brought to the prosecutor’s office where he
was charged with theft.14 During petitioner’s cross-examination, he admitted that he
had been employed as a "bundler" of GMS Marketing, "assigned at the supermarket"
though not at SM.15
In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of
Quezon City, Branch 90, convicted both petitioner and Calderon of the crime of
consummated theft. They were sentenced to an indeterminate prison term of two (2)
years of prision correccional as minimum to seven (7) years of prision mayor as
maximum.17 The RTC found credible the testimonies of the prosecution witnesses and
established the convictions on the positive identification of the accused as
perpetrators of the crime.
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 cites 26 two
decisions rendered many years ago by the Court of Appeals: People v. Diñ o 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 Diñ o 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, Diñ o 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 Diñ o 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 Diñ o and Flores. The fact that
lower courts have not hesitated to lay down convictions for frustrated theft further
validates that Diñ o and Flores and the theories offered therein on frustrated theft
have borne some weight in our jurisprudential system. The time is thus ripe for us to
examine whether those theories are correct and should continue to influence
prosecutors and judges in the future.
III.
To delve into any extended analysis of Diño and Flores, as well as the specific issues
relative to "frustrated theft," it is necessary to first refer to the basic rules on the three
stages of crimes under our Revised Penal Code.30
Article 6 defines those three stages, namely the consummated, frustrated and
attempted felonies. A felony is consummated "when all the elements necessary for its
execution and accomplishment are present." It is frustrated "when the offender
performs all the acts of execution which would produce the felony as a consequence
but which, nevertheless, do not produce it by reason of causes independent of the will
of the perpetrator." Finally, it is attempted "when the offender commences the
commission of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause or accident other
than his own spontaneous desistance."
Each felony under the Revised Penal Code has a "subjective phase," or that portion of
the acts constituting the crime included between the act which begins the commission
of the crime and the last act performed by the offender which, with prior acts, should
result in the consummated crime. 31 After that point has been breached, the subjective
phase ends and the objective phase begins. 32 It has been held that if the offender never
passes the subjective phase of the offense, the crime is merely attempted. 33 On the
other hand, the subjective phase is completely passed in case of frustrated crimes, for
in such instances, "[s]ubjectively the crime is complete." 34
Truly, an easy distinction lies between consummated and frustrated felonies on one
hand, and attempted felonies on the other. So long as the offender fails to complete all
the acts of execution despite commencing the commission of a felony, the crime is
undoubtedly in the attempted stage. Since the specific acts of execution that define
each crime under the Revised Penal Code are generally enumerated in the code itself,
the task of ascertaining whether a crime is attempted only would need to compare the
acts actually performed by the accused as against the acts that constitute the felony
under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or consummated
necessitates an initial concession that all of the acts of execution have been performed
by the offender. The critical distinction instead is whether the felony itself was
actually produced by the acts of execution. The determination of whether the felony
was "produced" after all the acts of execution had been performed hinges on the
particular statutory definition of the felony. It is the statutory definition that 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.
On the critical question of whether it was consummated or frustrated theft, we are
obliged to apply Article 6 of the Revised Penal Code to ascertain the answer.
Following that provision, the theft would have been frustrated only, once the acts
committed by petitioner, if ordinarily sufficient to produce theft as a consequence, "do
not produce [such theft] by reason of causes independent of the will of the
perpetrator." There are clearly two determinative factors to consider: that the felony
is not "produced," and that such failure is due to causes independent of the will of the
perpetrator. The second factor ultimately depends on the evidence at hand in each
particular case. The first, however, relies primarily on a doctrinal definition attaching
to the individual felonies in the Revised Penal Code 52 as to when a particular felony is
"not produced," despite the commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or frustrated, it is
necessary to inquire as to how exactly is the felony of theft "produced." Parsing
through the statutory definition of theft under Article 308, there is one apparent
answer provided in the language of the law — that theft is already "produced" upon
the "tak[ing of] personal property of another without the latter’s consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was
charged with theft after he abstracted a leather belt from the baggage of a foreign
national and secreted the item in his desk at the Custom House. At no time was the
accused able to "get the merchandise out of the Custom House," and it appears that he
"was under observation during the entire transaction." 54 Based apparently on those
two circumstances, the trial court had found him guilty, instead, of frustrated theft.
The Court reversed, saying that neither circumstance was decisive, and holding
instead that the accused was guilty of consummated theft, finding that "all the
elements of the completed crime of theft are present." 55 In support of its conclusion
that the theft was consummated, the Court cited three (3) decisions of the Supreme
Court of Spain, the discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the land of another. As
he was in the act of taking the fruit[,] he was seen by a policeman, yet it did not appear
that he was at that moment caught by the policeman but sometime later. The court
said: "[x x x] The trial court did not err [x x x ] in considering the crime as that of
consummated theft instead of frustrated theft inasmuch as nothing appears in the
record showing that the policemen who saw the accused take the fruit from the
adjoining land arrested him in the act and thus prevented him from taking full
possession of the thing stolen and even its utilization by him for an interval of time."
(Decision of the Supreme Court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was hearing mass
in a church. The latter on account of the solemnity of the act, although noticing the
theft, did not do anything to prevent it. Subsequently, however, while the defendant
was still inside the church, the offended party got back the money from the defendant.
The court said that the defendant had performed all the acts of execution and
considered the theft as consummated. (Decision of the Supreme Court of Spain,
December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a key
opened up a case, and from the case took a small box, which was also opened with a
key, from which in turn he took a purse containing 461 reales and 20 centimos, and
then he placed the money over the cover of the case; just at this moment he was
caught by two guards who were stationed in another room near-by. The court
considered this as consummated robbery, and said: "[x x x] The accused [x x x] having
materially taken possession of the money from the moment he took it from the place
where it had been, and having taken it with his hands with intent to appropriate the
same, he executed all the acts necessary to constitute the crime which was thereby
produced; only the act of making use of the thing having been frustrated, which,
however, does not go to make the elements of the consummated crime." (Decision of
the Supreme Court of Spain, June 13, 1882.)56
It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited
therein, that the criminal actors in all these cases had been able to obtain full
possession of the personal property prior to their apprehension. The interval between
the commission of the acts of theft and the apprehension of the thieves did vary, from
"sometime later" in the 1898 decision; to the very moment the thief had just extracted
the money in a purse which had been stored as it was in the 1882 decision; and before
the thief had been able to spirit the item stolen from the building where the theft took
place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of
no consequence in those cases, as it was ruled that the thefts in each of those cases
was consummated by the actual possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was guilty only of
frustrated rather than consummated theft. The case is People v. Sobrevilla, 57 where
the accused, while in the midst of a crowd in a public market, was already able to
abstract a pocketbook from the trousers of the victim when the latter, perceiving the
theft, "caught hold of the [accused]’s shirt-front, at the same time shouting for a
policeman; after a struggle, he recovered his pocket-book and let go of the defendant,
who was afterwards caught by a policeman."58 In rejecting the contention that only
frustrated theft was established, the Court simply said, without further comment or
elaboration:
We believe that such a contention is groundless. The [accused] succeeded in taking
the pocket-book, and that determines the crime of theft. If the pocket-book was
afterwards recovered, such recovery does not affect the [accused’s] criminal liability,
which arose from the [accused] having succeeded in taking the pocket-book. 59
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases
cited in the latter, in that the fact that the offender was able to succeed in obtaining
physical possession of the stolen item, no matter how momentary, was able to
consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict
the position of petitioner in this case. Yet to simply affirm without further comment
would be disingenuous, as there is another school of thought on when theft is
consummated, as reflected in the Diñ o and Flores decisions.
Diñ o was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15
years before Flores. The accused therein, a driver employed by the United States
Army, had driven his truck into the port area of the South Harbor, to unload a
truckload of materials to waiting U.S. Army personnel. After he had finished
unloading, accused drove away his truck from the Port, but as he was approaching a
checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck
and found therein three boxes of army rifles. The accused later contended that he had
been stopped by four men who had loaded the boxes with the agreement that they
were to meet him and retrieve the rifles after he had passed the checkpoint. The trial
court convicted accused of consummated theft, but the Court of Appeals modified the
conviction, holding instead that only frustrated theft had been committed.
In doing so, the appellate court pointed out that the evident intent of the accused was
to let the boxes of rifles "pass through the checkpoint, perhaps in the belief that as the
truck had already unloaded its cargo inside the depot, it would be allowed to pass
through the check point without further investigation or checking." 60 This point was
deemed material and indicative that the theft had not been fully produced, for the
Court of Appeals pronounced that "the fact determinative of consummation is the
ability of the thief to dispose freely of the articles stolen, even if it were more or less
momentary."61 Support for this proposition was drawn from a decision of the
Supreme Court of Spain dated 24 January 1888 (1888 decision), which was quoted as
follows:
Considerando que para que el apoderamiento de la cosa sustraida sea determinate de
la consumacion del delito de hurto es preciso que so haga en circunstancias tales que
permitan al sustractor la libre disposicion de aquella, siquiera sea mas o menos
momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no
puede decirse en realidad que se haya producido en toda su extension, sin
materializar demasiado el acto de tomar la cosa ajena. 62
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the booty subject
to the control and disposal of the culprits, the articles stolen must first be passed
through the M.P. check point, but since the offense was opportunely discovered and
the articles seized after all the acts of execution had been performed, but before the
loot came under the final control and disposal of the looters, the offense can not be
said to have been fully consummated, as it was frustrated by the timely intervention
of the guard. The offense committed, therefore, is that of frustrated theft. 63
Diñ o thus laid down the theory that the ability of the actor to freely dispose of the
items stolen at the time of apprehension is determinative as to whether the theft is
consummated or frustrated. This theory was applied again by the Court of Appeals
some 15 years later, in Flores, a case which according to the division of the court that
decided it, bore "no substantial variance between the circumstances [herein] and in
[Diñ o]."64 Such conclusion is borne out by the facts in Flores. The accused therein, a
checker employed by the Luzon Stevedoring Company, issued a delivery receipt for
one empty sea van to the truck driver who had loaded the purportedly empty sea van
onto his truck at the terminal of the stevedoring company. The truck driver proceeded
to show the delivery receipt to the guard on duty at the gate of the terminal. However,
the guards insisted on inspecting the van, and discovered that the "empty" sea van
had actually contained other merchandise as well. 65 The accused was prosecuted for
theft qualified by abuse of confidence, and found himself convicted of the
consummated crime. Before the Court of Appeals, accused argued in the alternative
that he was guilty only of attempted theft, but the appellate court pointed out that
there was no intervening act of spontaneous desistance on the part of the accused
that "literally frustrated the theft." However, the Court of Appeals, explicitly relying on
Diñ o, did find that the accused was guilty only of frustrated, and not consummated,
theft.
As noted earlier, the appellate court admitted it found "no substantial variance"
between Diño and Flores then before it. The prosecution in Flores had sought to
distinguish that case from Diño, citing a "traditional ruling" which unfortunately was
not identified in the decision itself. However, the Court of Appeals pointed out that the
said "traditional ruling" was qualified by the words "is placed in a situation where
[the actor] could dispose of its contents at once."66 Pouncing on this qualification, the
appellate court noted that "[o]bviously, while the truck and the van were still within
the compound, the petitioner could not have disposed of the goods ‘at once’." At the
same time, the Court of Appeals conceded that "[t]his is entirely different from the
case where a much less bulk and more common thing as money was the object of the
crime, where freedom to dispose of or make use of it is palpably less
restricted,"67 though no further qualification was offered what the effect would have
been had that alternative circumstance been present instead.
Synthesis of the Diñ o 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 Diñ o 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 Diñ o and Flores rulings. People v. Batoon 73 involved an accused who filled a
container with gasoline from a petrol pump within view of a police detective, who
followed the accused onto a passenger truck where the arrest was made. While the
trial court found the accused guilty of frustrated qualified theft, the Court of Appeals
held that the accused was guilty of consummated qualified theft, finding that "[t]he
facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual
taking with intent to gain is enough to consummate the crime of theft." 74
In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a
supply depot and loaded them onto a truck. However, as the truck passed through the
checkpoint, the stolen items were discovered by the Military Police running the
checkpoint. Even though those facts clearly admit to similarity with those in Diñ o, 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 Diñ o 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 Diñ o, 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
Españ a 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 intimidació n en las personas ni
fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su dueñ o.
2. Los que encontrá ndose una cosa perdida y sabiendo quién es su dueñ o se la
apropriaren co intenció n de lucro.
3. Los dañ adores que sustrajeren o utilizaren los frutos u objeto del dañ o causado,
salvo los casos previstos en los artίculos 606, nú m. 1.0; 607, nú ms, 1.0, 2.0 y 3.0; 608,
nú m. 1.0; 611; 613; Segundo pá rrafo 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 Españ ol de 1995,
the crime of theft is now simply defined as "[e]l que, con á nimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueñ o será castigado"82
Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre
disposicion" of the property is not an element or a statutory characteristic of the
crime. It does appear that the principle originated and perhaps was fostered in the
realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926
commentaries on the 1870 Codigo Penal de España. Therein, he raised at least three
questions for the reader whether the crime of frustrated or consummated theft had
occurred. The passage cited in Diñ o 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 Diñ o, 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 Diñ o, 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 Caló n pointed out the inconsistent
application by the Spanish Supreme Court with respect to frustrated theft.
Hay frustració n 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 intervenció n de la policia
situada en el local donde se realizó la sustracció n que impidió pudieran los reos
disponer de lo sustraído, 30 de octubre 1950. Hay "por lo menos" frustració n, si existe
apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay
frustració n "muy pró xima" cuando el culpable es detenido por el perjudicado acto
seguido de cometer la sustracció n, 28 febrero 1931. Algunos fallos han considerado la
existencia de frustració n 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 Caló n 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 disposició n del agente. Con este criterio coincide la
doctrina sentada ú ltimamente porla jurisprudencia españ ola que generalmente
considera consumado el hurto cuando el culpable coge o aprehende la cosa y ésta
quede por tiempo má s 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 cará cter de
consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada.
No se concibe la frustració n, pues es muy dificil que el que hace cuanto es necesario
para la consumació n 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 Caló n’s submissions cannot be lightly ignored. Unlike Viada, who was content
with replicating the Spanish Supreme Court decisions on the matter, Cuello Caló n
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
consumació n 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 Caló n’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 Diñ o 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
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 Diñ o?
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. Diñ o itself did not rely
on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Diñ o 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 Diñ o
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.

G.R. No. 186141, April 11, 2012
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
JESUSA FIGUEROA y CORONADO, Accused-Appellant.
DECISION
This is an appeal from the Decision 1 of the Court of Appeals in CA-G.R. C.R.-H.C. No.
02348 dated October 25, 2007 affirming the conviction of accused-appellant Jesusa
Figueroa in Criminal Case No. 04-2433 for violation of Section 26, Article II of
Republic Act No. 9165.
There were originally two Informations filed against accused-appellant:
Criminal Case No. 04-2432
That on or about the 2nd day of July 2004, in the City of Makati, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, not being
lawfully authorized by law, did then and there willfully, unlawfully and feloniously
have in her possession, direct custody and control a total weight of nine point fourty
[sic] two (9.42) grams of Methylamphetamine Hydrochloride (shabu) which is a
dangerous drug, in violation of the above-cited law.2
Criminal Case No. 04-2433
That on or about the 2nd day of July 2004, in the City of Makati, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, without the
corresponding license or prescription, did then and there willfully, unlawfully and
feloniously attempt to sell, give away, distribute and deliver four point sixty (4.60)
grams of Methylamphetamine Hydrochloride (shabu) which is a dangerous drug, by
then and there agreeing to sell and deliver the said dangerous drug to the proposed
buyer PO3 JOSEFINO CALLORA, thereby commencing the commission of the crime of
sale of dangerous drugs, but which nevertheless failed to consummate the said sale by
reason of causes other than her own spontaneous desistance, that is she got
frightened by the presence of police officers at the scene of the crime. 3
Accused-appellant pleaded not guilty to the crimes charged. Thereafter, the Regional
Trial Court (RTC), Branch 64 of Makati City proceeded with the trial of the
aforementioned charges. The versions of the prosecution and the defense of what
transpired on July 2, 2004, as concisely summarized by the Court of Appeals, were as
follows:
Version of the Prosecution
In the evening of June 20, 2004, an informant came to the office of P/Supt. Nelson T.
Yabut (P/SUPT. YABUT), Chief of the Special Operation Unit 1 of PNP Anti-Illegal
Drugs Special Operations Task Force (PNP AIDSOTF) at Camp Crame, Quezon City and
informed him of the drug pushing activities of a certain "Baby," later identified as
accused-appellant FIGUEROA. P/SUPT. YABUT instructed PS/Insp. Pepito Garcia
(PS/INSP. GARCIA), PO3 Josefino Callora (PO3 CALLORA) and PO2 Rogie Pinili (PO2
PINILI) to conduct discreet surveillance operation to verify the information.
On June 23, 2004, at about 8:00 p.m., PO3 CALLORA, together with the informant, met
with accused-appellant FIGUEROA at the parking area of SM Bicutan in Taguig, Metro
Manila. The informant introduced PO3 CALLORA to accused-appellant FIGUEROA as
the one who was willing to regularly buy shabu from her should her sample be of
good quality. Accused-appellant FIGUEROA, however, told them that she had no stock
of shabu at that time, but she promised to inform PO3 CALLORA through the
informant once she already has supply of good quality shabu.
In the morning of the following day, the Special Operation Unit 1 of the PNP AIDSOTF
requested the PNP Crime Laboratory to dust with ultra-violet powder the two (2)
pieces of ₱500.00 bills with serial numbers FG403794 and MY883243 to be used in
the planned buy-bust operation against accused-appellant FIGUEROA.
On July 2, 2004, at about 12:00 noon, the informant called the Desk Officer of the
Special Operation Unit 1 of PNP AIDSOTF, who in turn relayed to P/SUPT. YABUT that
accused-appellant FIGUEROA had informed him that she already had a stock of good
quality shabu and asked how much shabu would be bought by PO3 CALLORA. P/SUPT
YABUT instructed the informant to tell accused-appellant FIGUEROA that ₱10,000.00
worth of shabu would be bought from her. Later on the same day, the informant made
another telephone call and relayed the information that accused-appellant FIGUEROA
had agreed to deliver the shabu worth [₱10,000.00] in front of the 7-Eleven
Convenience Store at the corner of M. Almeda and M. Conception Avenues, San
Joaquin, Pasig City at about 4:00 p.m. of that day.
A team, composed of P/SUPT. YABUT, PS/INSP. GARCIA, PO2 PINILI and PO3
CALLORA, was then formed to conduct the buy-bust operation, with PO3 CALLORA
designated as the poseur-buyer. The buy-bust money was prepared. The genuine two
(2) pieces of ₱500.00 bills were placed on top of boodle money to make them appear
as ₱10,000.00.
At about 4:00 p.m. of July 2, 2004, the team proceeded to the agreed meeting place.
PO3 CALLORA arrived in the vicinity of 7-Eleven on board a car driven by PS/INSP.
GARCIA and met with the informant. PO3 CALLORA and the informant waited for
accused-appellant FIGUEROA, who after a few minutes, arrived driving a Toyota Revo
with Plate No. XPN 433. Seeing the two, accused-appellant FIGUEROA waived at them
and drove towards them. Stopping near them, accused-appellant FIGUEROA rolled
down the window of her car and asked where the money was. On the other hand, PO3
CALLORA asked for the shabu. At that juncture, accused-appellant FIGUEROA opened
a Chowking plastic bag and showed a plastic sachet containing white crystalline
substance. When PO3 CALLORA was about to hand over the buy-bust money to
accused-appellant FIGUEROA, the latter sensed the presence of police officers in the
area, so she sped away towards the direction of Kalayaan Avenue and C-5 road. The
other occupants of the car were Susan Samson y Figueroa, sister-in-law of the
accused, Margie Sampayan y Garbo, Fe Salceda y Resma and Christian Salceda y
Resma, a nine[-]year[-]old boy.
PO3 CALLORA immediately boarded the car being driven by PS/INSP. GARCIA and
gave chase. PO2 PINILI, who was driving another vehicle, joined the chase.
Accused-appellant FIGUEROA’s vehicle was finally blocked at Kalayaan Avenue near
the intersection of C-5 road. At that time, PS/INSP. GARCIA saw Christian Salceda y
Resma alighted from the backdoor of the Toyota Revo and threw the Chowking plastic
bag to the pavement, which was about two steps from the backdoor. PS/INSP. GARCIA
picked it up and saw a heat sealed transparent plastic sachet containing white
crystalline substance inside. PO3 CALLORA and PO2 PINILI introduced themselves as
police officers. The Toyota Revo was checked by PS/INSP. GARCIA and PO2 PINILI,
which was witnessed by PO1 Alvarado and PO3 Basa of the Makati Police PCP No. 7,
MMDA Traffic Enforcers Gonzales and Salvador and a reporter/press photographer of
Manila Star named Eduardo Rosales. Retrieved under the floor matting of the Toyota
Revo were two heat sealed transparent plastic sachets of undetermined quantity of
white crystalline substance.
Accused-appellant FIGUEROA was informed of her violation and was apprised of her
constitutional rights. She was brought to the office of Special Operation Unit 1 of PNP
AIDSOTF for investigation. The items recovered from the crime scene were brought to
the PNP Crime Laboratory, where they were tested positive for Methylamphetamine
Hydrochloride.
Version of the Defense
Accused-appellant FIGUEROA denied that she met and transacted with PO3 CALLORA
regarding the sale of shabu. She likewise denied knowledge of the plastic sachets of
shabu that were recovered under the floor matting of the car she was driving as well
as the plastic sachet of shabu inside a Chowking plastic bag found on the pavement of
Kalayaan Avenue corner C-5 road.
She alleged that between 1:00 and 2:00 p.m. of July 2, 2004, she was driving a Toyota
Revo with Plate No. XPN 433 on her way to the house of her elder brother at Eco
Center, Barangay Calsada, Taguig City to get their mother’s allowance. Their mother
stays with her at her residence at Better Living Subdivision, Parañ aque City. With her
as passengers were Susan Samson y Figueroa, Fe Salceda y Resma, and the latter’s
nine[-]year[-]old son, Christian Salceda y Resma, and Margie Sampayan y Garbo,
accused-appellant FIGUEROA’s laundrywoman. They stayed at her brother’s house for
about twenty (20) minutes.
From her brother’s house, she proceeded to Tejeron, Sta. Ana, Manila to bring Susan
Samson y Figueroa to the latter’s house. The other passengers remained in the car.
Accused-appellant FIGUEROA then continued driving, taking the C-5-Kalayaan Avenue
route. When she was about to proceed after the traffic light turned green at the
junction of Kalayaan Avenue, a navy blue car blocked her path. P/SUPT YABUT
alighted from said car and was shouting that he was a police officer while approaching
accused-appellant FIGUEROA. He ordered accused-appellant FIGUEROA to roll down
her car window. Accused then asked, "Bakit po mister?" P/SUPT YABUT reiterated
that he was a police officer and ordered accused-appellant FIGUEROA to get down
from her car as they would be searching the same.
Accused-appellant FIGUEROA and her companions were made to stay at the sidewalk
for about thirty (30) minutes. They were asked to turn their backs and were told not
to do anything while the search was going on. P/SUPT. YABUT later said, "Aantayin
muna natin sila." For another thirty minutes, they stayed at the sidewalk until other
persons referred to by P/SUPT. YABUT arrived at the scene.
After the search, accused-appellant FIGUEROA and her companions were ordered to
board the same Toyota Revo, which was driven to Camp Crame by one of the persons
who arrived at the scene.4
On May 18, 2006, the RTC rendered its Decision 5 acquitting accused-appellant in
Criminal Case No. 04-2432, but convicting her in Criminal Case No. 04-2433. The
dispositive portion of the Decision states:
WHEREFORE, in view of the foregoing[,] judgment is rendered as follows:
1. In Criminal Case No. 04-2432[,] the accused Jesusa Figueroa y Coronado is
ACQUITTED of the charge for violation of Sec. 11, Art. II RA No. 9165 for lack
of evidence. The two plastic sachets of containing Methylamphetamine
Hydrochloride or shabu with a combined weight of 9.42 grams are forfeited
in favor of the Government. Let the custody thereof be turned over to the
Philippine Drug Enforcement Agency (PDEA) for its appropriate disposition.
2. In Criminal Case No. 04-2433, the accused Jesusa Figueroa y Coronado alias
"Baby" is found guilty beyond reasonable doubt of the offense of violation of
Sec. 26, Art. II, RA 9165 and is sentenced to suffer life imprisonment and to
pay a fine of Five Hundred Thousand (₱500,000.00).
Let the one plastic bag labeled Chowking containing one (1) heat sealed plastic sachet
with 4.60 grams of Methylamphetamine Hydrochloride be turned over to the PDEA
for its appropriate disposition.
The period during which the accused is detained at the City Jail of Makati shall be
considered in her favor pursuant to existing rules.6
Alleging that the foregoing decision was contrary to law and unsupported by the
evidentiary records, accused-appellant sought a review of the same with this Court
through a Notice of Appeal, which the RTC gave due course. However, in accordance
with our ruling in People v. Mateo, 7 we remanded the case to the Court of Appeals for
intermediate review.
On October 25, 2007, the Court of Appeals issued the assailed Decision affirming the
conviction of accused-appellant. The dispositive portion of the Decision states:
WHEREFORE, premises considered, appeal is hereby DISMISSED and the assailed
Decision, dated May 18, 2006, in Criminal Case Nos. 04-2432 and 04-2433, of the
Regional Trial Court of Makati City, Branch 64, is hereby AFFIRMED.
Pursuant to Section 13 (c), Rule 124 of the 2000 Rules of Criminal Procedure as
amended by A.M. No. 00-5-03-SC dated September 28, 2004, which became effective
on October 15, 2004, this judgment of the Court of Appeals may be appealed to the
Supreme Court by notice of appeal filed with the Clerk of Court of the Court of
Appeals.8
Accused-appellant appealed to this Court anew. Accused-appellant filed a
Supplemental Brief,9 wherein she highlighted the fact that the Court of Appeals did not
discuss the first error assigned in her Brief with said appellate court. In the
aforementioned Brief10 with the Court of Appeals, accused-appellant submitted the
following assignment of errors:
First
THE TRIAL COURT ERRED IN NOT HOLDING THAT THE ALLEGED BUY-BUST
OPERATION CONDUCTED BY THE SPECIAL OPERATION UNIT 1 OF THE PHILIPPINE
NATIONAL POLICE ANTI-ILLEGAL DRUGS SPECIAL OPERATIONS TASK FORCE WAS
IRREGULAR BECAUSE OF LACK OF PRIOR COORDINATION WITH THE PHILIPPINE
DRUG ENFORCEMENT AGENCY (PDEA).
Second
THE TRIAL COURT SERIOUSLY ERRED IN HOLDING THAT THERE WAS A PRIOR
AGREEMENT BETWEEN PO3 JOSEFINO CALLORA AND ACCUSED REGARDING THE
ALLEGED SALE OF SHABU.
Third
THE TRIAL COURT SERIOUSLY ERRED IN GIVING WEIGHT AND CREDENCE TO THE
CONFLICTING AND CONTRADICTORY TESTIMONIES OF PO3 JOSEFINO CALLORA
AND P/INSP. PEPITO GARCIA THAT HAVE DIRECT BEARING ON THE ELEMENTS OF
THE OFFENSE CHARGED.
Fourth
THE TRIAL COURT SERIOUSLY ERRED IN FINDING ACCUSED GUILTY OF THE
OFFENSE OF ATTEMPT TO SELL SHABU AS PROVIDED UNDER SECTION 26, ART. II
OF R.A. 9165.11
Lack of Prior Coordination with the PDEA
In both the Appellant’s Brief with the Court of Appeals and accused-appellant’s
Supplemental Brief before this Court, the main defense proffered by accused-
appellant was the alleged violation of Section 86 12 of Republic Act No. 9165, requiring
that the Philippine National Police (PNP) maintain close coordination with the
Philippine Drug Enforcement Agency (PDEA) on all drug related matters.
Accused-appellant’s contention is unmeritorious. It is settled that Section 86 of
Republic Act No. 9165 does not invalidate operations on account of the the law
enforcers’ failure to maintain close coordination with the PDEA. Thus, in People v.
Berdadero,13 the Court noted that Section 86, as well as the Internal Rules and
Regulations implementing the same, is silent as to the consequences of the failure on
the part of the law enforcers to seek the authority of the PDEA prior to conducting a
buy-bust operation. This Court consequently held that "this silence [cannot] be
interpreted as a legislative intent to make an arrest without the participation of PDEA
illegal or evidence obtained pursuant to such an arrest inadmissible." 14 The same
conclusion was reached by this Court in People v. Roa, 15 People v. Mantalaba16 and
People v. Sabadlab.17
Alleged lack of prior agreement between accused-appellant and PO3 Callora.
Accused-appellant argues that the alleged sale transaction borne out by the evidence
of the prosecution was not between Police Officer 3 (PO3) Josefino Callora and
accused-appellant Figueroa, but was instead between the latter and the unnamed
informant. Accused-appellant concludes that the testimony of PO3 Callora regarding
the alleged sale transaction is purely hearsay, and therefore inadmissible and without
probative value, as it was the informant which is competent to testify on the alleged
agreement to sell drugs.18
We disagree. Under the doctrine of independently relevant statements, we have held
that the hearsay rule does not apply where only the fact that such statements were
made is relevant, and the truth or falsity thereof is immaterial. 19 In the case at bar, the
testimony of PO3 Callora as regards the conversations between the informant and
accused-appellant is admissible insofar as it established that said information led the
police officers to prepare for and proceed with the buy-bust operation. The
conversation between the informant and the accused-appellant was not necessary to
prove the attempted sale of shabu, as said attempt to sell was already clear from
accused-appellant’s actuations on July 2, 2004, which were all within the personal
knowledge of PO3 Callora and testified to by him, to wit: (1) when accused-appellant
arrived at the scene, she waived at the informant and PO3 Callora and approached
them while driving her Toyota Revo;20 (2) upon reaching PO3 Callora and the
informant, accused-appellant asked PO3 Callora where the money was, while the
latter asked for the shabu; 21 (3) accused-appellant showed PO3 Callora a Chowking
plastic bag containing a sachet of white crystalline substance; 22 (4) when PO3 Callora
was about to give her the money, accused-appellant sensed that there were police
officers around the area, and drove away; 23 (5) PO3 Callora and the informant
boarded the car of PS/Insp. Garcia, and they chased her to C-5 Road corner Kalayaan
Avenue.24
Under the Revised Penal Code, there is an attempt to commit a crime when the
offender commences its commission directly by overt acts but 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. 25 This definition has essentially
been adopted by this Court in interpreting Section 26 of Republic Act No. 9165. Thus
in People v. Laylo,26 we affirmed the conviction of the appellant therein and held that
the attempt to sell shabu was shown by the overt act of appellant therein of showing
the substance to the poseur-buyer. In said case, the sale was aborted when the police
officers identified themselves and placed appellant under arrest.
The identity of the white crystalline substance was furthermore established by the
testimony of PS/Insp. Garcia, who likewise testified as to the following matters based
on his own personal knowledge: (1) after the chase, PS/Insp. Garcia saw a boy (later
identified as Christian Salceda) alight from the vehicle and threw a Chowking plastic
bag two to three meters from the vehicle; 27 (2) PS/Insp. Garcia picked up the
Chowking plastic bag from the sidewalk ad found a sachet of shabu inside the
same;28 (3) PS/Insp. Garcia later proceeded with the other police officers to their
office, where they requested for a laboratory examination of the white crystalline
substance;29 PS/Insp. Garcia identified the Chowking plastic bag and the sachet
containing white crystalline substance in court. He identified the mark "PEG-1" on the
sachet as his initial and testified that he was the one who marked the same. 30
The prosecution presented as its Exhibit "B" an Initial Laboratory Report.1âwphi1 The
report states that the heat-sealed transparent plastic bag with the marking "PEG-1"
inside a Chowking plastic bag was found to contain 4.60 grams of white crystalline
substance. The latter specimen was found positive for methylamphetamine
hydrochloride.31
In light of the foregoing testimonial and documentary evidence, which were found
credible by both the trial court and the Court of Appeals, the crime of attempt to sell a
dangerous drug under Section 26 of Republic Act No. 9165 was sufficiently proven
beyond reasonable doubt.
As for the purported inconsistencies in the testimonies of the prosecution witnesses,
we agree with the pronouncement of the Court of Appeals that discrepancies
"referring to minor details, and not in actuality touching upon the central fact of the
crime, do not impair [the witnesses’] credibility" 32 nor do they overcome the
presumption that the arresting officers have regularly performed their official
duties.33
In sum, this Court finds no cogent reason to disturb the rulings of the lower courts in
the instant case.
WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals in CA-G.R.
CR.-H.C. No. 02348 dated October 25, 2007 affirming the conviction of accused-
appellant Jesusa Figueroa in Criminal Case No. 04-2433 for violation of Section 26,
Article II of Republic Act No. 9165 is hereby AFFIRMED.
SO ORDERED.
G.R. No. L-14128, December 10, 1918
THE UNITED STATES, plaintiff-appellee,
vs.
SEVERINO VALDES Y GUILGAN, defendant-appellant.
This cause was instituted by a complaint filed by the prosecuting attorney before the
Court of First Instance of this city, charging Severino Valdes y Guilgan and Hugo
Labarro y Bunaladi, alias Hugo Navarro y Bunadia, with the crime of arson, and, on
the 20th of May of the present year, judgment was rendered whereby Severino or
Faustino Valdes u Guilgan was sentenced to six years and one day of presidio
mayor and to pay one-half of the costs. From this judgment this defendant appealed.
With respect to Hugo Labarro or Navarro, the proceedings were dismissed with the
other half of the costs de officio.
Between 8 and 9 o'clock in the morning of April 28th of this year, when M. D. Lewin
was absent from the house in which he was living his family, at No. 328, San Rafael
Street, San Miguel, Mrs. Auckback, who appears to have been a resident of the
neighborhood, called Mrs. Lewin and told her that much smoke was issuing from the
lower floor of the latter's house, for until then Mrs. Lewin had not noticed it, and as
soon as her attention was brought to the fact she ordered the servant Paulino Banal to
look for the fire, as he did and he found, so asked with kerosene oil and placed
between a post of the house and a partition of the entresol, a piece of a jute sack and a
rag which were burning. At that moment the defendant Valdes was in the entresol,
engaged in his work of cleaning, while, the other defendant Hugo Labarro was
cleaning the horses kept at the place.
On the same morning of the occurrence, the police arrested the defendants, having
been called for the purpose by telephone. Severino Valdes, after his arrest, according
to the statement, Exhibit C, drawn up in the police station, admitted before several
policemen that it was he who had set the fire to the sack and the rag, which had been
noticed on the date mentioned. and he also who had started the several other fires
which had occurred in said house on previous days; that he had performed such acts
through the inducement of the other prisoner, Hugo Labarro, for they felt resentment
against, or had trouble with, their masters, and that, as he and his coaccused were
friends, he acted as he did under the promise on Labarro's part to give him a peso for
each such fire that he should start. lawphi1.net
The defendant Severino Valdes admitted, in an affidavit, that he made declarations in
the police station, although he denied having placed the rag and piece of jute sack,
soaked with kerosene, in the place where they were found, and stated, that it was the
servant Paulino who had done so. He alleged that, on being arraigned, he stated that
he had set fire to a pile of dry mango leaves that he had gathered together, which is
contrary to the statement he made in the police station, to wit, that he had set the fire
to the said rag and piece of sack under the house.
For lack of evidence and on his counsel's petition, the case was dismissed with respect
to the other defendant Hugo Labarro.
Owing to the repeated attempts made for about a month past, since Severino Valdes
Began to serve the Lewin family, to burn the house above mentioned. occupied by the
latter and in which this defendant was employed, some policemen were watching the
building and one of them, Antonio Garcia del Cid., one morning prior to the
commission of the crime, according to his testimony, saw the defendant Valdes
climbing up the wall of the warehouse behind the dwelling house, in which
warehouse there was some straw that had previously been burned, and that, when
the defendant noticed the presence of the policeman, he desisted from climbing the
wall and entering the warehouse.
The fact of setting fire to a jute sack and a rag, soaked with kerosene oil and placed
beside an upright of the house and a partition of the entresol of the building, thus
endangering the burning of the latter, constitutes the crime of frustrated arson of an
inhabited house, on an occasion when some of its inmates were inside of it.. This
crime of provided for and punished by article 549, in connection with articles 3,
paragraph 2, and 65 of the Penal Code, and the sole proven perpetrator of the same by
direct participation is the defendant Severino Valdes, for, notwithstanding his denial
and unsubstantiated exculpations, the record discloses conclusive proof that it was he
who committed the said unlawful act, as it was also he who was guilty of having set
the other fires that occurred in said house. In an affidavit the defendant admitted
having made declarations in the police station, and though at the trial he denied that
he set fire to the sacks and the rag which were found soaked in kerosene and burning,
and, without proof whatever, laid the blame unto his codefendant, the fact is that
confessed to having set fire to a pile of dry leaves whereby much smoke arose from
the lower part of the house, but which, however, did not forewarn his mistress, Mrs.
Lewin, though she should have noticed it, and he allowed the sack and the rag to
continue burning until Mrs. Auckback noticing a large volume of smoke in the house,
gave the alarm. No proof was submitted to substantiate the accusation he made
against the servant Paulino, who apparently is the same persons as the driver Hugo
Labarro.

The crime is classified only as frustrated arson, inasmuch as the defendant performed
all the acts conceive to the burning of said house, but nevertheless., owing to causes
independent of his will, the criminal act which he intended was not produced. The
offense committed cannot be classified as consummated arson by the burning of said
inhabited house, for the reason that no part of the building had yet commenced to
burn, although, as the piece of sack and the rag, soaked in kerosene oil, had been
placed near partition of the entresol, the partition might have started to burn, had the
fire not been put out on time.

There is no extenuating or aggravating circumstance to be considered in a connection

with the commission of the crime, and therefore the penalty of presidio
mayor immediately inferior in degree to that specified in article 549 of the Penal
Code, should be imposed in its medium degree.

For the foregoing reasons the judgment appealed from should be affirmed, with the
modification however, that the penalty imposed upon the defendant shall be given
eight years and one day of presidio mayor, with the accessory penalties prescribed in
article 57 of the Code. The defendant shall also pay the costs of both instances. So
ordered.

G.R. No. 100699, July 5, 1996
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDGAR GUTIERREZ y CORTEZ, accused-appellant.
The accused, Edgar Gutierrez y Cortez, appeals from the 28th February 1991
judgment of the Regional Trial Court (Special Criminal Court) of Kalookan City,
Branch 131, convicting him of arson under Presidential Decree No. 1613, amending
the Revised Penal Code, and imposing on him the penalty of reclusion
perpetua (Criminal Case No. C-34173[89]), in an information, dated 16 December
1989, that reads:
That on or about the 14th day of December 1989 in Kalookan City,
Metro Manila and within the jurisdiction of this Honorable Court, the
above-named accused, motivated by a desire for revenge, with
deliberate intent to cause damage, did then and there wilfully,
unlawfully and feloniously set fire to the house of one JOSEFA
ARROYO y ALANO, thereby causing damage to the front wooden-
made walling located at the groundfloor thereof in the amount of
P500.00, to the damage and prejudice of the latter in the amount of
P500.00.
Contrary to law. 1
The accused pleaded "not guilty" to the charge.
The evidence for the prosecution, briefly, is to the following effect:
In the evening of 14 December 1989, at around eight o'clock, while Felipe Enriquez,
a barangay tanod, was in front of his house in Makabalo Street, Kalookan City, he
noticed a commotion at a distance. Repairing to the place, he saw appellant, bloodied,
being embraced by his mother Corazon Gutierrez. His neighbor Paul Polinga, a
policeman of Valenzuela, was, by the time Enriquez arrived at the scene, already
attending to appellant. Enriquez was told by some people around him that there had
been a "fight" between appellant and a son of one Mario Alano.
Later that evening, at about 11:30, while Enriquez and appellant's brother Eric and
sister Bolet, were conversing at the corner of Rajah Soliman and Makabalo Streets
about the incident, appellant passed by carrying a bag containing what seemed to be
"gasoline" ("parang gasolina" 2). Enriquez followed appellant. A few meters away, he
saw appellant throw the bag at the house of Mario Alano and then lit it. The plea of
appellant's mother, who screamed "Egay, Egay, huwag," 3 was ignored by the son.
Enriquez yelled '"Mang Mario, Mang Mario, nagliliyab ang bahay ninyo!" 4 Forthwith,
Enriquez saw Mario Alano pouring water on the ablaze portion of the house.
Neighbors rushed in to help put the fire under control.
Mario Alano, testifying, said that he was at home in 104 Rajah Soliman Street,
Kalookan City, watching the television program "Tell the People," 5 when he heard
appellant, whose voice he was familiar with, shouting that he (appellant) would blow-
up the house. Mario then heard a sound resembling that of a piece of wet cloth
("basahan" 6) being hurled at the wall of the house. Instantly, the wall was aflame.
The following morning, at approximately 8:30, Pat. Celerino Bertes, the desk officer of
the Kalookan City's 6th Avenue police detachment, received a call on the "arson"
incident in Makabalo Street. Police officer Nelson Ombao, together with Pfc. Briccio
Fernando and Pat. Bertes, were dispatched to the place. The group was met by Mario
Alano who pointed to appellant as being the author of the arson. The police officers
invited appellant to the police headquarters. He was accompanied by his mother and
an uncle.
P/Sgt. Reyes later conducted an ocular inspection. He took some fragments from the
burnt portion of the house and referred them to the PC Crime Laboratory for
examination.
The house, made of light wooden materials and galvanized iron, was owned by Mario
Alano's sister, Josefa Arroyo, an overseas worker. According to Joselito Arroyo,
Josefa's son, it was his eldest sister, Carolina, who lodged the complaint with the
police. Carolina informed the witness that a carpenter placed the cost for the repair of
the house at P500.00.
The defense interposed alibi.
Democrito Real, an optician and a member of the Lupong Tagapamayapa, residing at
Barangay 36, testified that while he was on his way home at around 11:15 p.m. on 14
December 1989, he saw appellant with a bandaged head, contusions on his face and a
shut eye. Appellant requested Real to allow him (appellant) to spend the night at the
Real residence so as not to alarm appellant's ailing mother considering his physical
condition at the time. Real agreed. Appellant thus stayed overnight with the Reals.
Attempting to narrate the events that took place during the evening of 14 December
1989, appellant said that, between 8:00 to 9:00, while he was on his way home, he
lighted a "five-star" firecracker near the place where his brother and two friends were
having a drinking spree. Apparently angered, appellant's brother stood up, raised his
arm and took aim at appellant. Appellant tried to move away. In the process, he hit the
table of the group of young Alano. The table was toppled and bottles of liquor and the
finger food fell to the ground. Alano and company started hitting appellant on the
head and face until his mother succeeded in freeing him away from the group. Paul
Polinga, a policeman, brought appellant to the Jose Reyes Hospital for treatment.
From the hospital, he boarded a tricycle and alighted at Bayani Street. He requested
Real to allow him to pass the night in Real's house. The following morning, at around
7:15, he left the house to look for his brother. Instead, he met Mario Alano who asked
him to admit having been responsible for setting the latter's house on fire. Later, at
the police station, he wanted to relate what had happened but the police took only the
statement of Mario Alano. He was detained until noon when he was escorted to the
office of Fiscal Villalon before whom he admitted having committed the offense.
In its 28th February 1991 decision, the trial court 7 found the accused guilty beyond
reasonable doubt of the offense charged; it concluded:
WHEREFORE, the Court renders judgment CONVICTING the herein
accused EDGAR GUTIERREZ y CORTEZ for the crime of Arson
punishable under the Revised Penal Code, as amended by
Presidential Decree 1613 and sentences him to suffer the maximum
penalty of RECLUSION PERPETUA; to pay the owner of the house
Josefa Arroyo the sum of Five Hundred (P500.00) Pesos as actual
damages and to pay the costs.
SO ORDERED. 8
In this appeal, appellant contends that the corpus delicti of the crime of arson has not
been established. 9
Proof of the corpus delicti, indeed, is indispensable in the prosecution of arson 10 as in
all kinds of criminal offenses as well. Corpus delicti means the substance of the crime;
it is the fact that a crime has actually been committed. 11 In arson, the corpus delicti
rule rule is generally satisfied by proof of the bare occurrence of the fire and of its
having been intentionally caused. 12 Even the uncorroborated testimony of a single
eyewitness, if credible, may be enough to prove the corpus delicti and to warrant
conviction. 13
In this case, the charge against appellant was amply supported in evidence by the
eyewitness accounts of Felipe Enriquez and Mario Alano. Also offered in evidence
were copies of the police "blotters" of two barangays 14 reflecting the report that
appellant had thrown a bag of gasoline at the house of Mario Alano, then lit it and,
after setting a portion of the house on fire, fled. As regards appellant's identity,
Enriquez testified that he and appellant's brother and sister were near a Meralco post
when appellant went past them 15 Enriquez followed appellant and saw how the latter
threw the substance he was carrying at Alano's house. The conditions of visibility
were favorable. 16 Indeed, even the recognition by Mario Alano of appellant's voice
could have sufficed 17 to pin down culpability.
The evidence against appellant is simply too overwhelming for it to be easily
overcome by an invocation of alibi. Besides, the essential requirements of distance
and the impossibility of an accused being at the scene of the crime at the crucial time
must be attendant so as to give this defense any serious consideration.
Appellant assails the credibility of Enriquez by an assertion that his testimony is "ill-
motivated." 18 The Court itself has reviewed Enriquez's testimony, and it is satisfied
that his statements disclose frankness, cohesiveness, and an absence of any serious
dissemblance or inconsistency. 19 Moreover, the trial court's assessment on the
credibility of the witnesses, which has had the opportunity of observing how they
have comported themselves at the witness stand, cannot just be ignored.
The information charges appellant with "'violation of P.D. 1613" without specifying
the particular provision breached. The information having failed to allege whether or
not the burnt house is inhabited, 20 and not having been established that the house is
situated in a populated or congested area, 21 appellant should be deemed to have only
been charged with plain arson under Section 1 of the decree. Kalookan City might be a
densely populated part of the metropolis but its entire territory cannot be said to be
congested. Although the whole 2-storey wood and galvanized iron house has not been
completely gutted by the fire, the crime committed is still consummated arson. 22 It is
enough that a portion thereof is shown to have been destroyed. 23 Under Section 1 of
the decree, the offense of simple arson committed is punishable by prision mayor. The
Court feels that the trial court should not have appreciated the "special" aggravating
circumstance, under Section 4(3) of the decree, of the offender having been
"motivated by spite or hatred towards the owner or occupant of the property
burned." The prosecution does not dispute the mauling of appellant by a son of Mario
Alano just a few hours before the incident. It would appear to us to be more of
impulse, heat of anger or risen temper, rather than real spite or hatred, that has
impelled appellant to give vent to his wounded ego.

The prosecution tried to establish the actual amount of damage caused to the house
through the testimony of Joselito Arroyo, the owner's son, who apparently was only
told by his sister that, according to a carpenter, the repair of the house would cost
some P500.00. The evidence, being clearly hearsay, 24 may not be a basis for an award.

There being neither aggravating nor mitigating circumstances to consider, the

prescribed penalty is the medium period of prision mayor or from 8 years and 1 day
to 10 years. Applying the Indeterminate Sentence Law, the prison term that may be
imposed on appellant is anywhere within the range of prision correccional from 6
months and 1 day to 6 years, as minimum. up to anywhere within the medium period
of prision mayor from 8 years and 1 day to 10 years, as maximum.

WHEREFORE, the questioned decision finding appellant Edgar Gutierrez y Cortez

guilty beyond reasonable doubt of the crime of arson is AFFIRMED; however, the
sentence imposed on him by the court a quo is MODIFIED in that appellant should
now instead suffer the indeterminate penalty of imprisonment from a minimum of 2
years, 4 months and 1 day of prision correccional to a maximum of 8 years and 1 day
of prision mayor. The award made by the trial court of P500 by way of actual damage
in favor of Mario and/or Josefa Arroyo is deleted. Costs against appellant.

SO ORDERED.

G.R. No. L-62439, October 23, 1984
GREGORY JAMES POZAR, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, respondent.
In an Information dated July 22, 1980 and filed with the City Court of Angeles City,
Branch I, docketed thereat as Criminal Case No. CAT-326, petitioner, an American
citizen and a permanent resident of the Philippines, was charged with the crime of
Corruption of a Public Official, allegedly committed as follows: têñ.£îhqwâ£
That on or about the 17th day of December, 1979, in the City of
Angeles, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, being then an applicant for
probation after he was convicted of an offense by a competent court,
did then and there willfully, unlawfully, and feloniously give to the
complainant, Mr. Danilo Ocampo, the City Probation Officer, the sum
of P100.00 in a paper bill with Serial Nos. BC530309, under
circumstances that would make the said City Probation Officer Mr.
Danilo Ocampo liable for bribery.
ALL CONTRARY TO LAW.
Upon arraignment, petitioner pleaded not guilty to the said information and, after
trial, the City Court inits decision of May 15, 1981 found the petitioner guilty of the
crime of corruption of a public official, the dispositive portion of which reads:  têñ.
£îhqwâ£
WHEREFORE, the Court finds the accused Gregory Pozar guilty of the
offense of Corruption of a Public Official as charged in the
Information, and the Court pursuant to Article 212, in relation to
Article 211 of the Revised Penal Code, hereby sentences the accused
Gregory James Pozar to an imprisonment of three (3) months and
one (1) day of Arresto Mayor, and hereby censures him for his
actuation in this matter, with costs against the accused.
The one hundred peso bill is hereby forfeited in favor of the Republic
of the Philippines.
SO ORDERED.1äwphï1.ñët
The decision was appealed to the Court of Appeals (now In termediate Appellate
Court) and subsequently, the appellate court affirmed the same in toto. Petitioner's
motion for reconsideration was denied on October 19, 1982 and on December 21,
1982, petitioner filed the instant petition for review of the decision of the respondent
court, relying on the constitutional precept that "In all criminal prosecutions, the
accused shall be presumed innocent until the contrary is proved." (Article IV, Sec. 19),
and that the State, having the burden of establishing all the elements of the crime with
which the accused is charged, must prove the guilt of the accused beyond reasonable
doubt, has failed to present and establish the required quantum of proof against the
accused petitioner, hence he is entitled to an acquittal. .
The evidence for the prosecution are stated in the decision of the respondent court,
thus: têñ.£îhqwâ£
The prosecution presented as its witnesses Mr. Ricardo Manalo, Mrs.
Primitiva Francisco and Mr. Danilo Ocampo. Upon the other hand,
the defense placed on the witness stand appellant himself and his
counsel Atty. Reynaldo Suarez.
Ricardo Manalo, Clerk at the Probation Office of Angeles City,
declared that he started working at the Probation Office since May 2,
1978 and came to know appellant because the latter had gone to said
office in connection with his application for probation; that at about
noontime of December 17, 1979, appellant came to the office looking
for Probation Officer Danilo Ocampo and since the latter was out at
the time, appellant gave him a closed envelope bearing the name of
Ocampo for delivery to the latter; that two days later, he gave the
envelope to Ocampo who opened the same in his presence; that the
envelope contained some official papers connected with appellant's
application for probation and attached thereto was a hundred peso
bill; that Ocampo then remarked: 'This s something bad that the
opening of the envelope was done on December 19, 1979; that
Ocampo kept the envelope and its contents, including the one
hundred peso bill, but within a week's time gave them to him with
instructions to give the same to appellant but the latter never came
to the office and so he returned them to Ocampo; that although he
later saw appellant about two weeks after December 17, 1979, when
the latter came to the office to sign some papers, he never mentioned
to appellant the one hundred peso bill (pp. 2-16, t.s.n., September 16,
1980)
Manalo further declared that at the nine the envelope with the one
hundred peso bill was given to him by appellant for delivery to
Ocampo, he already had an inkling or knowledge that the Probation
Office will recommend for the grant of appellant's application for
probation because he was the one who makes the final typing of a
post, sentence investigation report and before said final typing
Ocampo usually talks to him, so that he knows whether the
recommendation was for a grant or denial of an application (pp. 16-
19, t.s.n., September 16, 1980).
Mrs. Primitiva Francisco, Assistant Probation Officer of the Angeles
City Probation Office, declared that she knows appellant because the
latter was one of the applicants for probation in 1979 and she was
the one assigned to investigate appellant's case; that as Assistant
Probation Officer in the Investigation of applications for probation
and in the case of appellant, she requested him to submit certain
pertinent documents required by their office, such as barangay,
police and court clearances, residence certificate, etc.; that she
prepared appellant's post-sentence Investigation Report (Exhs. "B"
to "B-5") that she first saw appellant on December 7, 1979, when she
interviewed him on his social and personal history and his version of
the offense, among others; that she gave the list of documents which
are to be submitted to the office; that the second time she saw
appellant was on December 21, 1979 but appellant was out at the
time and when she saw that he was in his car that broke down in
front of the Pampaguena she tried to can him but the car left as she
was about to reach the place (pp. 2-21, tsn, January 26, 1981).
Mrs. Francisco further declared that at the time she saw appellant on
December 21, 1979, the latter was asking person to leave for Baguio
City but she told him to talk with Probation Officer, Mr. Ocampo,
anent the matter; that she then prepared a draft of the Post-Sentence
Investigation report and thereafter had a conference with Ocampo
who told him not to delete the bribery incident from the report; that
it was first from Manalo and later from Ocampo that she became
aware of the bribery or more accurately corruption of a public
official committed by appellant (pp. 21-25, t.s.n., January 26, 1981).
The third prosecution witness was complaint himself Danilo
Ocampo, who declared that he has been the Probation Officer of an
Angeles City, Probation Office since 1977 and that his employees
thereat were Ricardo Manalo, Primitiva Francisco and Ramon de
Leon; that at about 9:00 o'clock in the morning of December 19,
1979, he received a closed letter envelope from his clerk. Manalo, at
the Probation Office at Merlan Building, Angeles City, Manalo
informing him that the same came from appellant; that he opened
the envelope on the presence of Manalo and found that the same
contained xerox copies of the passport (Exh. "D") and visa (Exh. "D-
1") of appellant and inserted with said documents. was a hundred
peso bill with Serial No. BC530309 (Exh. "A-l"); that the envelope
given him by Manalo was addressed to him Mr. Danilo Ocampo,
Probation Officer, in handwritten for that he could not, however,
produce said envelope the same having been misplaced that he kept
the one hundred peso bill as the same was an evidence against
appellant; that when he met Atty. Reynaldo Suarez, appellant's
counsel at the Angeles City Court on January 14, 1980, he told the
latter about the envelope received from appellant containing the
passport, visa and the one hundred peso bill inserted with said
documents and intimated to the lawyer that the client should not
have inserted said one hundred peso bill (pp. 46-57, t.s.n. September
16, 1980).
 Ocampo further declared that the Post-Sentence Investigation Report
was prepared by Mrs. Francisco who conducted the investigation;
that the first time he saw appellant was on December 10, 1979, when
the latter was seeking permission to go to Baguio City and being a
foreigner, he required him to submit to his office copies of the latter's
passport and visa; that the second time he met appellant was in
March, 1980, when the hearing of appellant's application for
probation was conducted at Branch I of the Angeles City Court; that
he never required appellant to give money, so that when he saw the
one hundred peso bill (Exh. "A") in the envelope handed him by
Manalo, he was very much surprised; that he intended to confront
appellant but was unable to do so but was able to inform Atty.
Suarez, appellant's lawyer, about the matter when he met him at the
City Court; that at the time the envelope containing the documents
and money was handed to him on, December 19, 1979, the Post-
Sentence Investigation Report was not yet finished and that the same
was submitted to the City Court by Mrs. Francisco on February 5,
1980; that the fact that appellant enclosed a one hundred peso bill in
the envelope was mentioned in said report (pp. 60-73, t.s.n.,
September 16, 1980).
Ocampo further testified that at the time of the hearing of appellant's
application or petition for probation, the Presiding Judge of Branch I
of the City Court held a conference in the court's chamber with
appellant's counsel the trial fiscal and himself, during which they
discussed the bribery incident mentioned in the report; that the
presiding judge of Branch I, after some clarifications regarding the
incident in question, suggested that coplainant should lodge a
complaint against appellant and the all should conduct the
corresponding preliminary investigation to determine whether there
was a prima facie case (pp. 75-76, 82-86, t.s.n., September 16, 1980).
Finally, Ocampo declared that he approved the Post-Sentence
Investigation Report recommending the granting of appellant's
application for probation, notwithstanding the bribery or corruption
incident mentioned in said report, because appellant's act was not
yet a disqualification under the law, as he was still presumed
innocent until he is found guilty by the court (pp. 90-91, t.s.n.
December 8, 1980).
The appealed decision tersely cited the evidence for the defense in the following
manner: têñ.£îhqwâ£
The evidence for the defense is that the one hundred peso bill the
accused-appellant placed in the envelope delivered to the Probation
Officer was allegedly intended to take care of the expenses in the
xerox copying or reproduction of documents that may be needed by
the Probation Office. (p. 7, CA Decision).
Considering that the findings of fact in the decision of the respondent court which
affirmed the decision of the trial court, do not mention nor indicate the circumstances
surrounding the incident and the filing of the information against the petitioner other
than the admitted fact that the one hundred peso bill was placed in the envelope
together with the visa and passport of the petitioner which he handed on December
17, 1979 to Mr. Ricardo Manalo and which the latter in turn handed on December 19,
1979 to Probation Officer Danilo Ocampo, in fairness to the petitioner, We quote
hereunder the decision of the trial court which recited the said circumstances that led
to the filing of the Information against the petitioner, to wit: têñ.£îhqwâ£
From the evidence presented, the following facts appear to the court
to be indubitable; That the accused was convicted of the crime of less
Serious Physical Injuries, and the crime of Oral Defamation of the
City Court of Angeles City, Branch 1, and the said accused was
sentenced to an imprisonment of 15 days of Arresto Menor and to
pay a fine of P50.00 and to pay the complaining witness the amount
of P500.00 as moral and exempt damages. After he was sentenced,
he, on November 28, 1979 filed an Application for Probation. That
after filing the application for Probation, the accused, together with
his lawyer Atty. Reynaldo Suarez, went to the Probation Office
purposely to inquire for the requirements need for his client's
petition for probation. Unfortunately, Atty. Suarez and his client did
not reach the Probation Officer Mr. Danilo Ocampo. It was Mr.
Manalo, a clerk of the Probation Office, whom they reached, and they
were re. requested to come back to the office regarding their inquiry
inasmuch as the Probation Officer was not in the office. Later, Atty.
Suarez called through the telephone the Probation Office, and, on
that occasion he was able to talk with the Probation Inspector, Mrs.
Primitiva Francisco. He was inquiring from Mrs. Francisco the
necessary documents regarding the application for probation of his
client and Mrs. Francisco suggested that he would come over the
office in order to give him all the necessary information. The lawyer
just instructed Mrs. Francisco to give a list of the requirements to Mr.
Pozar, the accused, who was then in the, Office of the Probation
Officer, and accordingly, Mrs. Francisco handed to Mr. Pozar a list of
the documents needed in his probation (see Exhibit E for the
prosecution, and Exhibit 3 for the defense). It also appears that all
the re. requirements listed in the list given by Mrs, Francisco were
 given to Mrs. Francisco, and at times to Mr. Manalo. The person who
conducted the investigation was actually Mrs. Francisco. On
December 10, 1979, Pozar had an occasion to see the Probation
Officer, Mr. Danilo Ocampo, and in that meeting, aside from the fact
that he was asking permission from the Probation Officer to go to
Baguio, the Probation Officer required him to furnish the Probation
Office the xerox copy of his visa, and his I.D. picture, inasmuch as it
was explained to him these were needed, he being a foreigner. On
December 17, 1979 Mr. Pozar went to the Probation Office looking
for the Probation Officer, and when the Probation Officer was not
there, he handed to Mr. Manalo an envelope address to the Probation
Of officer and asked and requested Mr. Manalo to give the same to
Mr. Ocampo. It was on December 19,1979 when Mr. Manalo handed
the envelope given by Mr. Pozar to Mr. Danilo Ocampo, and when
Danilo Ocampo opened it in the presence of Mr. Manalo, he found
enclose in the envelope a xerox copy of the applicant's passport,
xerox copy of his visa, and attached also with the same document
was a one hundred peso bill It would seem that Mr. Ocampo asked
Mr. Manalo to keep the one hundred peso bill and return it to Mr.
Pozar, but when Mr. Pozar did not arrive to the office, Mr. Manalo
gave it back to Mr. Ocampo Mr. Danilo Ocampo kept the one hundred
peso bill but made it a point that this incident regarding the receiving
of the one hundred peso being be included in the post-sentence
investigation report which was being prepared by Mrs. Francisco. At
that time when the one hundred peso bill was given, the post-
sentence investigation report was not yet finished. The record shows
that the same was submitted to the court only on February 8, 1980.
At the hearing of the application for probation in March 1980, when
the Presiding Judge of City Court of Angeles City, Branch 1, noted and
saw from the report the alleged incident of the accused's giving the
one hundred peso bill he called for a conference and in that
conference, he suggested that the manner should be investigated by
the Office of the City F'iscal Acting upon such suggestion Danilo
Ocampo formally filed an Information Sheet against the accused
Gregory Pozar (Exhibit 2). It is also a fact admitted by the defense
that after the one hundred peso bill was handed and the Probation
Officer was not able to return the same, he informed Atty. Suarez at
the sala of City Court Branch II sometime on January 14, 1980. (pages
8-9)
As stated earlier, petitioner was found guilty of the offense of Corruption of Public
Official as defined and penalized in the Revised Penn Code as follows: têñ.£îhqwâ£
Art. 212. Corruption of Public Officials. — The same penalties
imposed upon the officer corrupted, except those of disqualification
and suspension, shall be imposed upon any person who shall have
made the offers or promises or given the gifts or presents as
described in the preceding articles.
The preceding Articles of the Revised Penal Code are Articles 210 and 211 which
define and penalize the offenses of direct bribery and indirect bribery, and they
provide as follows: têñ.£îhqwâ£
Art. 210. Direct Bribery. — Any public officer who will agree to
perform an act constituting a crime, in connection with the
performance of his official duties, in consideration of any offer,
promise, gift or present received by such officer, personally or
through the mediation of another, shag suffer the penalty of prision
correccional in its minimum and medium periods and a fine of not
less than the value of the gift and not more than three times such
value, in addition to the penalty corresponding to the crime agreed
upon, ff the same shall have been committed.
If the gift was accepted by the officer in consideration of the
execution of an act which does not constitute a crime, and the officer
executed said act, he shall suffer the same penalty provided in the
preceding paragraph, and if said shall not have been accomplished,
the officer shall suffer the penalties of arresto mayor in its maximum
period and a fine of not less than the value of the gift and not more
than twice such value,
If the object for which the gift was received or promised was to make
the public officer refrain from doing something which it was his
official duty to do, he shall suffer the penalties of arresto mayor in its
medium and maximum periods and a fine not less than the value of
the gift and not more than three times such value.
In addition to the penalties provided in the preceding paragraphs,
the culprit shall suffer the penalty of special temporary
disqualification.
The provisions contained in the preceding paragraphs shall be made
applicable to assessors, arbitrators, appraisal and claim
commissioners, experts, or any other persons performing public
duties.
 Art. 211. Indirect Bribery. — The penalties of arresto mayor,
suspension in its minimum and medium periods, and public censure
shall be imposed upon any public officer who shall accept gifts
offered to him by reason of his office.
It is well to note and distinguish direct bribery from indirect bribery. In both crimes,
the public officer receives gift. While in direct bribery, there is an agreement between
the public officer and the giver of the gift or present, in indirect bribery, usually no
such agreement exist. In direct bribery, the offender agrees to perform or performs an
act or refrains from doing something, because of the gift or promise in indirect
bribery, it is not necessary that the officer should do any particular act or even
promise to do an act, as it is enough that he accepts gifts offered to him by reason of
his office. (The Revised Penal Code by Luis P. Reyes, 1975 Ed., p. 332).
In the case at bar, We find that the Information against the petitioner charged that the
accused "did then and there willfully, unlawfully, and feloniously give to the
complainant, Mr. Danilo Ocampo, the City Probation Officer, the sum of one hundred
(P100.00) pesos in a paper bill with serial No. BC530309, under circumstances that
would make the said City Probation Officer, Mr. Danilo Ocampo, liable for bribery.
The trial court found the accused guilty of the offense of Corruption of a Public Official
as charged in the Information and pursuant to Article 212, in relation to Article 211 of
the Revised Penal Code, sentenced the accused to an imprisonment of three (3)
months and one (1) day of arresto mayor and public censure. This is erroneous. The
trial court erred in finding the accused guilty of the crime of Corruption of Public
Official as consummated offense (which is affirmed by the respondent appellant
court) for it is clear from the evidence of the prosecution as recited in both decisions
of the trial and appellate courts, that the complainant Probation Officer did not accept
the one hundred peso bill Hence, the crime would be attempted corruption of a public
official. (See The Revised Penal Code by Justice Ramon Aquino, 1976 Ed., Vol. II, p.
1168, citing the cases of Uy Matiao, 1 Phil. 487; Camacan 7 Phil. 329; Tan Gee, 7 Phil.
738; SyGuikao 18 Phil. 482; Te Tong, 26 Phil. 453; Ng Pek 81 Phil. 562; Ching, CA-G.R.
No. 439-R, July 31, 1947). Attempted corruption of a public official is punished
with destierro and is cognizable by inferior courts (See Revised Penal Code by justice
Aquino, Vol. II, 1976 Ed., citing the cases of Uy Chin Hua v. Dinglasan, 86 Phil. 617;
Santos y Bautista, 87 PhiL 687; Dalao v. Geronimo, 92 Phil. 1942; Ng Pek 81 Phil. 562).
Be that as it may, the crucial point is whether the prosecution has established beyond
reasonable doubt that the one hundred peso bill was given to bribe and corrupt the
City Probation Officer or that it will be used to defray expenses in xeroxing or copying
of whatever documents needed by the Probation Office in connection with
petitioner's application for probation then pending in said office.
The evidence on record disclose that the petitioner was required by the Assistant
Probation Officer, Primitive Francisco, to submit in connection with his probation
application the Court Information ( complaint) Court decision, Custody Status
(recognizance or bail bond), clearances from the Police, the Court, Barangay
Certificate, I.D. pictures (3 copies), residence certificate, and told to report once a
week on Mondays. (Exhibit "E"). This was on December 7, 1979.
Aside from these documents, the Probation Officer required of the petitioner on
December 10, 1979 when the latter was asking permission to go to Baguio to submit
to the office a copy of his visa and passport. Mrs. Francisco to testified that the
petitioner was asking permission from her to leave for Baguio. And according to the
petitioner, "during all the time he was applying for probation, he made more or less
12 visits in the office as he was directed to report every Monday at 10:00 o'clock in
the morning. He reported for 6 to 7 consecutive weeks and there were times that he
went there unscheduled for conference and clarification of the various re.
requirements he needed. During all the time he went there, he met Manalo, Mrs.
Francisco and Mr. Ocampo himself. Mrs. Francisco and Mr. Ocampo interviewed him
He submitted all the requirements to the Probation Officer; at times, he submitted
them directly to Mrs. Francisco, and at other times to Mr. Manalo, and also to Mr.
Ocampo. Other than those listed in the list given by Mrs. Francisco, he was required to
submit xerox copy of his passport, his visa and his pictures. He explained that he gave
the requirements to the person who was interviewing him, primarily Mrs. Francisco,
of the documents needed. Later, he submitted to the office xerox copy of the original
He likewise submitted his two passports, and later xerox copy of his passports. When
Mrs. Francisco was asking for the original, which documents are in the possession of
his lawyer at his office, he had to return to get the originals." (Decision of Trial Court,
p. 5). Petitioner's travail is, therefore, quite evident.
From the foregoing, We can fairly deduce that the procedure for processing
petitioner's application for probation in the Probation Office at Angeles City was not
precise, explicit and clear cut And since the accused petitioner is a foreigner and quite
unfamiliar with probation rules and procedures, there is reason to conclude that
petitioner was befuddled, if not confused so that his act of providing and advancing
the expenses for whatever documentation was needed further to complete and thus
hasten his probation application, was understandably innocent and not criminal.
In fine, the facts and circumstances on record amply justify and support the claim of
the defense as against the conjectures, speculation and supposition recited in the
decision of the trial court and quoted with approval in the appealed decision under
review. The Government's own evidence as indicated in the Post-Sentence
Investigation Report that the giving of the one hundred pesos ( P100.00) was done in
good faith, is vital for it belies petitioner's criminal intent. There being no criminal
intent to corrupt the Probation Officer, the accused petitioner is entitled to acquittal
of the crime charged. We hold and rule that the prosecution has not proved the guilt
of the accused beyond reasonable doubt. There is not that moral certainty required to
convict him. Even the complainant himself, the Probation Officer, filed the complaint
only on the suggestion of the presiding judge of the Angeles City Court during the
hearing on petitioner's application for probation, the complaint having been filed in
the City Fiscal's Office on June 10, 1980 after a lapse and delay of six (6) months.
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment appealed from is
hereby REVERSED. The accused petitioner is hereby ACQUITTED. No costs.
SO ORDERED.1äwphï1.ñët
G.R. No. 213792, June 22, 2015
GUILLERMO WACOY y BITOL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent,
DECISION
Assailed in these consolidated petitions for review on certiorari 1 are the
Decision2 dated December 6, 2013 and the Resolution 3 dated July 21, 2014 of the
Court of Appeals (CA) in CA-G.R. CR No. 34078, which, inter alia, found petitioners
Guillermo Wacoy y Bitol (Wacoy) and James Quibac Rafael (Quibac) guilty beyond
reasonable doubt of the crime of Homicide.
The Facts
In an Information dated June 10, 2004, Wacoy and Quibac were charged with the
crime of Homicide, defined and penalized under Article 249 of the Revised Penal Code
(RPC), before the Regional Trial Court of Benguet, Branch 10 (RTC), as follows:
That on or about the 11th day of April 2004, at Ambongdolan, Municipality of Tublay,
Province of Benguet, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating and mutually aiding each other,
with intent to kill, did then and there willfully, unlawfully and feloniously attack,
assault, maul and kick the stomach of one ELNER ARO y LARUAN, thereby inflicting
upon him blunt traumatic injuries which directly caused his death thereafter.
That the offense committed was attended by the aggravating circumstance of superior
strength. CONTRARY TO LAW.4
According to prosecution witness Edward Benito (Benito), at around 3 o'clock in the
afternoon of April 11, 2004, he was eating corn at a sari-sari store located at Bungis
Ambongdolan, Tublay, Benguet, when he heard a commotion at a nearby
establishment. Upon checking what the ruckus was all about, he saw his cousin, Elner
Aro (Aro), already sprawled on the ground. While in that position, he saw Wacoy kick
Aro's stomach twice, after which, Wacoy picked up a rock to throw at Aro but was
restrained from doing so. As Aro stood up, Quibac punched him on the stomach,
causing him to collapse and cry in pain. Thereafter, Aro was taken to the hospital. 5
At the hospital, Aro was diagnosed to be suffering from "blunt abdominal trauma with
injury to the jejunum" and was set for operation. It was then discovered that he
sustained a perforation on his ileum, i.e., the point where the small and large
intestines meet, that caused intestinal bleeding, and that his entire abdominal
peritoneum was filled with air and fluid contents from the bile. However, Aro suffered
cardiac arrest during the operation, and while he was revived through
cardiopulmonary resuscitation, he lapsed into a coma after the operation. 6
Due to financial constraints, Aro was taken out of the hospital against the doctor's
orders and eventually, died the next day. While Aro's death certificate indicated that
the cause of his
death was "cardiopulmonary arrest antecedent to a perforated ileum and generalized
peritonitis secondary to mauling," an autopsy performed on his remains revealed that
the cause of his death was "rupture of the aorta secondary to blunt traumatic
injuries."7
In their defense, herein petitioners, Wacoy and Quibac, denied the charge against
them. They averred that while playing pool, they saw Aro drunk and lying down.
Suddenly, Aro became unruly and kicked the leg of the pool table, causing Wacoy to
shout and pick up a stone to throw at Aro but Quibac pacified him. They also claimed
that Aro almost hit Wacoy with a 2x3 piece of wood if not for Quibac' s intervention.
Wacoy ran but Aro chased him and then tripped and fell to the ground. Quiniquin
Carias (Kinikin), Aro's companion, followed Wacoy to the waiting shed nearby,
cornered and kicked the latter, and the two engaged in a fist fight. Quibac came over
to pacify the two and told Wacoy to go home.8
The RTC Ruling In a Judgment 9 dated February 28, 2011, the RTC found Wacoy and
Quibac guilty beyond reasonable doubt of the crime of Death Caused in a Tumultuous
Affray under Article 251 of the RPC and, accordingly, sentenced them to suffer the
penalty of imprisonment for an indeterminate period of six (6) months and one (1)
day of prision correccional, as minimum, to eight (8) years and one (1) day of prision
mayor , as maximum, and ordered them to pay Aro's heirs the amounts of ₱25,000.00
as temperate damages, ₱50,000.00 as civil indemnity ex delicto, and ₱50,000.00 as
moral damages.10
The RTC found that Benito's testimony on the mauling incident does not firmly
establish that Wacoy and Quibac conspired in the killing of Aro, and that the medical
reports were neither categorical in stating that the injuries Aro sustained from the
mauling directly contributed to his death. 11
In this relation, it opined that "[a]s conspiracy was not proven and the prosecution
has failed to show the extent and effect of injury [that Wacoy and Quibac] personally
inflicted on [Aro] that led to his death xx x," Wacoy and Quibac should be held
criminally liable for the crime of Death Caused in a Tumultuous Affray and not for
Homicide.12
Aggrieved, Wacoy and Quibac appealed to the CA.13
The CA Ruling
In a Decision14 dated December 6, 2013, the CA modified Wacoy and Quibac's
conviction to that of Homicide under A1iicle 249 of the RPC with the mitigating
circumstance of lack of intent to commit so grave a wrong, and accordingly adjusted
their prison term to an indeterminate period of six (6) years and one (1) day of
prision mayor, as minimum, to twelve (12) years and one ( 1) day of reclusion
temporal, as maximum. Further, the CA also imposed a legal interest of six percent
( 6%) per annum on the damages awarded by the RTC pursuant to prevailing
jurisprudence.15
In so ruling, the CA gave credence to Benito's simple, direct, and straightforward
testimony. In this relation, it observed that the mere fact that Benito is Aro's cousin
should not militate against his credibility since there was no proof that his testimony
was driven by any ill motive. 16 However, contrary to the RTC's findings, the CA ruled
that Wacoy and Quibac should not be convicted of the crime of Death Caused in a
Tumultuous Affray since there were only (2) persons who inflicted harm on the
victim, and that there was no tumultuous affray involving several persons. Instead,
they were convicted of the crime of Homicide, with the mitigating circumstance of
lack of intent to commit so grave a wrong appreciated as it was shown that the
purpose of their assault on Aro was only to maltreat or inflict physical harm on him. 17
Aggrieved, Wacoy and Quibac separately moved for reconsideration. 18 In a
Resolution19 dated July 21, 2014, the CA denied Quibac's motions for
reconsideration;20 hence, the instant petitions.
The Issue Before the Court
The core issue for the Court's resolution is whether or not the CA correctly found
Wacoy and Quibac guilty beyond reasonable doubt of the crime of Homicide.
The Court's Ruling
The petition is without merit.
At the outset, it must be stressed that in criminal cases, an appeal throws the entire
case wide open for review and the reviewing tribunal can correct errors, though
unassigned in the appealed judgment, or even reverse the trial court's decision based
on grounds other than those that the parties raised as errors. The appeal confers upon
the appellate court full jurisdiction over the case and renders such court competent to
examine records, revise the judgment appealed from, increase the penalty, and cite
the proper provision of the penal law.21
Proceeding from the foregoing, the Court agrees with the CA's ruling modifying
Wacoy and Quibac' s conviction from Death Caused in a Tumultuous Affray to that of
Homicide, as will be explained hereunder.
Article 251 of the RPC defines and penalizes the crime of Death Caused in a
Tumultuous Affray as follows:
Art. 251. Death caused in a tumultuous affray. - When, while several persons, not
composing groups organized for the common purpose of assaulting and attacking
each other reciprocally, quarrel and assault each other in a confused and tumultuous
manner, and in the course of the affray someone is killed, and it cannot be ascertained
who actually killed the deceased, but the person or persons who inflicted serious
physical injuries can be identified, such person or persons shall be punished by
prision mayor.
If it cannot be determined who inflicted the serious physical injuries on the deceased,
the penalty of prision correccional in its medium and maximum periods shall be
imposed upon all those who shall have used violence upon the person of the victim.
The elements of Death Caused in a Tumultuous Affray are as follows: (a) that there be
several persons; (b) that they did not compose groups organized for the common
purpose of assaulting and attacking each other reciprocally; (c) that these several
persons quarrelled and assaulted one another in a confused and tumultuous manner;
(d) that someone was killed in the course of the affray; (e) that it cannot be
ascertained who actually killed the deceased; and (j) that the person or persons who
inflicted serious physical injuries or who used violence can be identified. 22 Based on
case law, a tumultuous affray takes place when a quarrel occurs between several
persons and they engage in a confused and tumultuous affray, in the course of which
some person is killed or wounded and the author thereof cannot be ascertained. 23
On the other hand, the crime of Homicide is defined and penalized under Article 249
of the RPC, which reads:
Art. 249. Homicide. - Any person who, not falling within the provisions of Article 246,
shall kill another, without the attendance of any of the circumstances enumerated in
the next preceding article, shall be deemed guilty of homicide and be punished by
reclusion temporal. The elements of Homicide are the following: (a) a person was
killed; (b) the accused killed him without any justifying circumstance; (c) the accused
had the intention to kill, which is presumed; and (d) the killing was not attended by
any of the qualifying circumstances of Murder, or by that of Parricide or Infanticide. 24
In the instant case, there was no tumultuous affray between groups of persons in the
course of which Aro died.1âwphi1 On the contrary, the evidence clearly established
that there were only two (2) persons, Wacoy and Quibac, who picked on one
defenseless individual, Aro, and attacked him repeatedly, taking turns in inflicting
punches and kicks on the poor victim. There was no confusion and tumultuous
quarrel or affray, nor was there a reciprocal aggression in that fateful incident. 25 Since
Wacoy and Quibac were even identified as the ones who assaulted Aro, the latter's
death cannot be said to have been caused in a tumultuous affray. 26 Therefore, the CA
correctly held that Wacoy and Quibac' s act of mauling Aro was the proximate
cause27 of the latter's death; and as such, they must be held criminally liable therefore,
specifically for the crime of Homicide.
On this note, the Court does not find merit in Wacoy's contention that in view of their
intent only to inflict slight physical injuries on Aro, they should only be meted the
corresponding penalty therefore in its maximum period, 28 pursuant to Article 49 of
the RPC. The said provision reads:
Art. 49. Penalty to be imposed upon the principals when the crime committed is
different from that intended. - In cases in which the felony committed is different from
that which the offender intended to commit, the following rules shall be observed.
1. If the penalty prescribed for the felony committed be higher than that
corresponding to the offense which the accused intended to commit, the
penalty corresponding to the latter shall be imposed in its maximum period.
2. If the penalty prescribed for the felony committed be lower than that
corresponding to the one which the accused intended to commit, the penalty
for the former shall be imposed in its maximum period.
3. The rule established by the next preceding paragraph shall not be
applicable if the acts committed by the guilty person shall also constitute an
attempt or frustration of another crime, if the law prescribes a higher penalty
for either of the latter offenses, in which case the penalty provided for the
attempt or the frustrated crime shall be imposed in the maximum period.
Jurisprudence instructs that such provision should only apply where the crime
committed is different from that intended and where the felony committed befalls a
different person (error in personae); and not to cases where more serious
consequences not intended by the offender result from his felonious act (praeter
intentionem),29
as in this case. It is well-settled that if the victim dies because of a deliberate act of the
malefactors, intent to kill is conclusively presumed. 30 In such case, even if there is no
intent to kill, the crime is Homicide because with respect to crimes of personal
violence, the penal law looks particularly to the material results following the
unlawful act and holds the aggressor responsible for all the consequences thereof. 31
Be that as it may, the penalty for the crime of Homicide must be imposed in its
minimum period due to the presence of the mitigating circumstance of lack of
intention to commit so grave a wrong under Article 13 (3) of the RPC in favor of
Wacoy and Quibac, as correctly appreciated by the CA. In determining the presence of
this circumstance, it must be considered that since intention is a mental process and
is an internal state of mind, the accused's intention must be judged by his conduct and
external overt acts.32 In this case, the aforesaid mitigating circumstance is available to
Wacoy and Quibac, given the absence of evidence showing that, apart from kicking
and punching Aro on the stomach, something else had been done; thus, evincing the
purpose of merely maltreating or inflicting physical harm, and not to end the life of
Aro.
Anent the proper penalty to be imposed on Wacoy and Quibac, the CA correctly
imposed the penalty of imprisonment for an indeterminate period of six ( 6) years
and one ( 1) day of prision mayor, as minimum, to twelve (12) years and one (1) day
of reclusion temporal, as maximum, taking into consideration the provisions of the
Indeterminate Sentence Law.
Finally, the awards of civil indemnity and moral damages in the original amount of
₱50,000.00 each are increased to ₱75,000.00 each in order to conform with prevailing
jurisprudence.33 All other awards, as well as the imposition of interest at the rate of six
percent ( 6%) per annum on all the monetary awards from the date of finality of
judgment until the same are fully paid, are retained.
WHEREFORE, the petition is DENIED. The Decision dated December 6, 2013 and the
Resolution dated July 21, 2014 of the Court of Appeals in CA-G.R. CR No. 34078 are
hereby AFFIRMED with MODIFICATION. Accordingly, petitioners Guillermo Wacoy y
Bitol and James Quibac y Rafael are found GUILTY beyond reasonable doubt of the
crime of Homicide defined and penalized under Article 249 of the Revised Penal Code
with the mitigating circumstance of lack of intent to commit so grave a wrong under
Article 13 (3) of the same Code. They are sentenced to suffer the penalty of
imprisonment for an indeterminate period of six ( 6) years and one (1) day of prision
mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as
maximum, and ordered to pay the heirs of Elner Aro the amounts of ₱25,000.00 as
temperate damages, ₱75,000.00 as civil indemnity ex delicto, and ₱75,000.00 as moral
damages, all with interest at the rate of six percent (6%) per annum from the finality
of this Decision until fully paid.
SO ORDERED.
G.R. No. 205228, July 15, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff and Appellee,
vs.
ROLLY ADRIANO y SAMSON, LEAN ADRIANO @ DENDEN, ABBA SANTIAGO y
ADRIANO, JOHN DOE AND PETER DOE, Accused,
ROLLY ADRIANO y SAMSON, Accused-Appellant.
DECISION
This is an appeal of the Decision 1 of the Court of Appeals dated 30 May 2011 in CA-
G.R. CR-HC No. 04028, which affirmed the Decision 2 of the Regional Trial Court dated
7 April 2009, convicting accused-appellant Rolly Adriano y Santos (Adriano) for the
crime of Homicide (Crim. Case No. 13159-07) for the killing of Ofelia Bulanan
(Bulanan) and for the crime of Murder (Crim. Case No. 13160-07) for the killing of
Danilo Cabiedes (Cabiedes) in "People of the Philippines v. Rolly Adriano y Sales."
Adriano was charged with two (2) counts of Murder. The two (2) sets of Information
read:
Crim. Case No. 13159-07
On or about March 13, 2007, around 8:00 o'clock (sic) in the morning, in Malapit, San
Isidro, Nueva Ecija, within the jurisdiction of this Honorable Court, the above-named
accused, conniving together, with intent to kill, treachery and abuse of superior
strength, willfully shot several times with assorted firearms Ofelia Bulanan, hitting
her on the different parts of her body, resulting in her death to the damage of her
heirs.3
Crim. Case No. 13160-07
On or about March 13, 2007, around 8:00 o'clock (sic) in the morning, in Malapit, San
Isidro, Nueva Ecija, within the jurisdiction of this Honorable Court, the above-named
accused, conniving together, with intent to kill, treachery and abuse of superior
strength, willfully shot several times with assorted firearms Danilo Cabiedes, hitting
him on the different parts of his body, resulting in his death to the damage of his
heirs.4
Version of the Prosecution:
On 13 March 2007, at around 8:00 a.m., Police Officer 1 Matthew Garabiles (POI
Garabiles) and P02 Alejandro Santos (P02 Santos), in civilian clothes, were on their
way to Camp Olivas, Pampanga, riding a motorcycle along Olongapo-Gapan National
Road.5
While they were at Barangay Malapit San Isidro, Nueva Ecija, a speeding blue Toyota
Corolla (Corolla) with plate no. WHK 635, heading towards the same direction,
overtook them and the car in front of them, a maroon Honda CRV (CRY) with plate no.
CTL 957.6
When the Corolla reached alongside the CRV, the passenger on the front seat of the
Corolla shot the CRV and caused the CRV to swerve and fall in the canal in the road
embankment. Four (4) armed men then suddenly alighted the Corolla and started
shooting at the driver of the CRV, who was later identified as Cabiedes. During the
shooting, a bystander, Bulanan, who was standing near the road embankment, was hit
by a stray bullet. The four armed men hurried back to the Corolla and immediately left
the crime scene. PO 1 Garabiles and P02 Santos followed the Corolla but lost track of
the latter.7
Later, both Cabiedes and Bulanan died from fatal gunshot wounds: Cabiedes was
pronounced dead on arrival (DOA) at the Good Samaritan General Hospital due to
three (3) gunshot wounds on the left side of his chest while Bulanan died on the spot
after being shot in the head.
During the investigation, the police learned that the Corolla was registered under the
name of Antonio V. Rivera (Rivera). Upon inquiry, Rivera admitted that he is the
owner of the Corolla but clarified that the Corolla is one of the several cars he owns in
his car rental business, which he leased to Adriano. Later that day, Adriano arrived at
Rivera's shop with the Corolla, where he was identified by P02 Santos and PO 1
Garabiles as one of the four assailants who alighted from the passenger's seat beside
the driver of the Corolla and shot Cabiedes. He was immediately arrested and brought
to the Provincial Special Operations Group (PSOG) headquarters in Cabanatuan City. 8
In examining the crime scene, the Nueva Ecija Provincial Crime Laboratory Office
recovered one (1) deformed fired bullet from a .45 caliber firearm and five (5)
cartridges from a .45 caliber firearm.9
Version of the Defense
Adriano testified that on 13 March 2007, at about 6:00 a.m., at the time of the incident,
he was at his house in Dolores, Magalang, Pampanga, washing the clothes of his child.
After doing the laundry, he took his motorcycle to a repair shop and left it there. 10
At about 8:00 a.m., Adriano went to the house of his friend, Ruben Mallari (Mallari), to
ask for a lighter spring needed to repair his motorcycle. After having coffee in Mallari'
s house, Adriano went home and brought his child to his mother. On his way to his
mother's house, he met his brother-in-law, Felix Aguilar Sunga (Sunga). After leaving
his child at his mother's house, Adriano went to the cockpit arena to watch cockfights,
where he saw his friend, Danilo Dizon (Dizon). After the fights, he left the cockpit at
about 2:00 p.m. and went home and took a rest.11
After resting, Adriano picked-up his motorcycle and proceeded to a store and stayed
there. At around 5 :00 p.m., he went back home. After a while, he received a call from a
certain Boyet Garcia (Garcia), who borrowed the Corolla from him, which he rented
from Rivera.12
At 8:00 p.m., he met with Garcia to get the Corolla back. After dropping Garcia off,
Adriano went to Rivera to return the Corolla, where he was arrested by police officers,
thrown inside the Corolla's trunk, and brought to a place where he was tortured. 13
The other defense's witnesses, Lucita Tapnio (Tapnio), Mallari, Sunga, and Dizon
corroborated Adriano's testimony.14
When arraigned, Adriano pleaded not guilty. The other accused, Lean Adriano alias
"Denden," Abba Santiago y Adriano, John Doe, and Peter Doe remained at large.
During trial, the prosecution presented eight (8) witnesses: (1) PO1 Garabiles, (2) P02
Santos, (3) Police Senior Inspector Roger V. Sebastian, (4) SP02 Alejandro Eduardo,
(5) P02 Jay Cabrera, (6) P03 Antonio dela Cruz, (7) Adelaida Cabiedes, widow of
Cabiedes, and (8) Ricky Flores.
On the other hand, the defense presented Adriano, Tapnio, Sunga, Mallari, and Dizon
as witnesses.
Ruling of the Lower Courts
After trial, the RTC convicted Adriano. The RTC rejected Adriano's defense of alibi on
the ground that it was not supported by clear and convincing evidence. According to
the RTC, Adriano's alibi cannot prevail over the testimonies of credible witnesses,
who positively identified Adriano as one of the perpetrators of the crime. Also,
contrary to the allegations of the defense, the RTC gave full credence to the testimony
of prosecution witnesses, POI Garabiles and P02 Santos. The RTC determined that the
defense failed to show proof that will show or indicate that PO1 Garabiles and P02
Santos were impelled by improper motives to testify against Adriano. The RTC found
as proven the assessment of damages against the accused. Thus did the RTC order
Adriano to pay the heirs of Cabiedes the amount of ₱222,482.00 based on the
following: (1) One Hundred Thousand Pesos (Pl00,000.00) as funeral expenses; (2)
Sixty Thousand Pesos (₱60,000.00) as expenses for the food served during the burial;
(3) Twelve Thousand Four Hundred Eighty Two Pesos (1!12,482.00) as groceries
used and served during the wake; and Sixty Thousand Pesos (₱60,000.00) for the
parts and service repair of the CRV.15
The dispositive portion of the R TC Decision dated 7 April 2009 reads:
WHEREFORE, finding accused ROLLY ADRIANO guilty beyond reasonable doubt of
Murder, as charged, for the death of Danilo Cabiedes, there being no aggravating or
mitigating circumstance that attended the commission of the crime, he is hereby
sentenced to suffer the penalty of reclusion perpetua. Accused Rolly Adriano is also
ordered to indemnify the heirs of Danilo Cabiedes in the amount of Php 50,000.00 and
to pay the sum of Php 222,482.00 as actual damages.
And finding ROLLY ADRIANO also guilty beyond reasonable doubt of Homicide, as
charged, for the death of Ofelia Bulanan, likewise, there being no aggravating or
mitigating circumstance that attended the commission of the offense, he is further
sentenced to suffer an indeterminate penalty of imprisonment from Eight (8) years
and One (1) day of prision mayor medium, as minimum, to Seventeen (17) years and
Four (4) months of reclusion temporal medium, as maximum, and to indemnify the
heirs of Ofelia Bulanan in the amount of Php 50,000.00. 16
On appeal to the Court of Appeals, Adriano alleged that the R TC erred when it failed
to appreciate his defense of alibi, as well as the testimonies of the other defense's
witnesses. Adriano contended that the RTC erred when it gave credence to the
testimony of the prosecution witnesses which are inconsistent and contradictory. In
detail, Adriano referred to the following particulars: 1) whether the culprits started
shooting when the victim's vehicle was still in motion; 2) which side of the vehicle did
the shooters alight from; 3) the identity of the culprit who triggered the fatal shot; 4)
whether the trip of PO1 Garabiles and P02 Santos going to Camp Olivas, Pampanga
was official business; 5) the precise distance of the assailants' vehicle from that of the
two (2) eyewitnesses; and 6) the precise minutes of the shooting incident.
The Court of Appeals rejected Adriano's attempt to becloud the testimony of the
prosecution witnesses. According to the Court of Appeals, the prosecution witnesses'
positive identification of Adriano as one of the perpetrators of the crime cannot be
overcome by minor inconsistencies in their testimony. The Court of Appeals ruled
that these trivial differences in fact constitute signs of veracity.
On the defense of alibi, the Court of Appeals affirmed the ruling of the R TC that
Adriano's claim that he was in Dolores, Magalang, Pampanga at the time of the
incident does not convince because it was not impossible for Adriano to be physically
present at the crime scene, in Barangay Malapit, San Isidro, Nueva Ecija, which can be
reached by car in less than an hour. 17 The dispositive portion of the Court of Appeals
Decision reads:
WHEREFORE, the appeal is DENIED. The decision of the Regional Trial Court of Gapan
City, Nueva Ecija, Br. 36, in Crim. Case Nos. 13159-07 and 13160-07 is AFFIRMED
subject to the Modification that the award of Fifty Thousand Pesos (Php50,000.00) as
civil indemnity to the heirs of Danilo Cabiedes is INCREASED to Seventy-Five
Thousand Pesos (Php75,000.00). In addition, the Accused-Appellant is ORDERED to
pay the heirs of Danilo Cabiedes the amount of Seventy-Five Thousand Pesos
(Php75,000.00) as moral damages; and the heirs of Ofelia Bulanan the amount of Fifty
Thousand Pesos (Php50,000.00) as moral damages.
SO ORDERED.18
Our Ruling
In cases of murder, the prosecution must establish the presence of the following
elements:
1. That a person was killed.
2. That the accused killed him.
3. That the killing was attended by any of the qualifying circumstances
mentioned in Art. 248.
4. The killing is not parricide or infanticide.
In the case at bar, the prosecution has established the concurrence of the elements of
murder: (1) the fact of death of Cabiedes and Bulanan; (2) the positive identification
of Adriano as one of perpetrators of the crime; and (3) the attendance of treachery as
a qualifying aggravating circumstance and use of firearms and abuse of superior
strength as generic aggravating circumstances.
Death of Cabiedes
The present case is a case of murder by ambush. In ambush, the crime is carried out to
ensure that the victim is killed and at the same time, to eliminate any risk from any
possible defenses or retaliation from the victim— 19 ambush exemplifies the nature of
treachery.
Paragraph 16 of Article 14 of the Revised Penal Code (RPC) defines treachery as the
direct employment of means, methods, or forms in the execution of the crime against
persons which tend directly and specially to insure its execution, without risk to the
offender arising from the defense which the offended party might make. In order for
treachery to be properly appreciated, two elements must be present: (1) at the time of
the attack, the victim was not in a position to defend himself; and (2) the accused
consciously and deliberately adopted the particular means, methods or forms of
attack employed by him.20 The "essence of treachery is the sudden and unexpected
attack by an aggressor on the unsuspecting victim, depriving the latter of any chance
to defend himself and thereby ensuring its commission without risk of himself." 21
Clearly, treachery is present in the case at bar as the victims were indeed defenseless
at the time of the attack. Adriano, together with the other accused, ambushed
Cabiedes by following the unsuspecting victim along the national highway and by
surprise, fired multiple shots at Cabiedes and then immediately fled the crime scene,
causing Cabiedes to die of multiple gunshot wounds. When the Corolla swerved into
the CRV's lane, Cabiedes was forced to swiftly turn to the right and on to the road
embankment, finally falling into the canal where his CRY was trapped, precluding all
possible means of defense. There is no other logical conclusion, but that the
orchestrated ambush committed by Adriano, together with his co-accused, who are
still on the loose, was in conspiracy with each other to ensure the death of Cabiedes
and their safety. The means of execution employed was deliberately and consciously
adopted by Adriano so as to give Cabiedes no opportunity to defend himself or to
retaliate.22
All these circumstances indicate that the orchestrated crime was committed with the
presence of the aggravating circumstances of treachery, which absorbs the
aggravating circumstance of abuse of superior strength, and use of firearms. Indeed,
Cabiedes had no way of escaping or defending himself.
Death of Bulanan
We refer back to the settled facts of the case. Bulanan, who was merely a bystander,
was killed by a stray bullet. He was at the wrong place at the wrong time.
Stray bullets, obviously, kill indiscriminately and often without warning, precluding
the unknowing victim from repelling the attack or defending himself. At the outset,
Adriano had no intention to kill Bulanan, much less, employ any particular means of
attack. Logically, Bulanan's death was random and unintentional and the method used
to kill her, as she was killed by a stray a bullet, was, by no means, deliberate.
Nonetheless, Adriano is guilty of the death of Bulanan under Article 4 of the Revised
Penal Code,23 pursuant to the doctrine of aberratio ictus, which imposes criminal
liability for the acts committed in violation of law and for all the natural and logical
consequences resulting therefrom. While it may not have been Adriano's intention to
shoot Bulanan, this fact will not exculpate him. Bulanan' s death caused by the bullet
fired by Adriano was the natural and direct consequence of Adriano's felonious
deadly assault against Cabiedes.
As we already held in People v. Herrera 24 citing People v. Hilario,25 "[t]he fact that
accused killed a person other than their intended victim is of no moment." Evidently,
Adriano's original intent was to kill Cabiedes. However, during the commission of the
crime of murder, a stray bullet hit and killed Bulanan. Adriano is responsible for the
consequences of his act of shooting Cabiedes. This is the import of Article 4 of the
Revised Penal Code. As held in People v. Herrera citing People v. Ural:
Criminal liability is incurred by any person committing a felony although the wrongful
act be different from that which is intended. One who commits an intentional felony is
responsible for all the consequences which may naturally or logically result
therefrom, whether foreseen or intended or not. The rationale of the rule is found in
the doctrine, 'el que es causa de la causa es causa del mal causado ', or he who is the
cause of the cause is the cause of the evil caused.26
As regards the crime(s) committed, we reiterate our ruling in People v. Nelmida. 27 In
the aforesaid case, we ruled that accused-appellants should be convicted not of a
complex crime but of separate crimes of two counts of murder and seven counts of
attempted murder as the killing and wounding of the victims were not the result of a
single act but of several acts.28 The doctrine in Nelmida here is apt and applicable.
In Nelmida, we distinguished the two kinds of complex crime: compound crime, when
a single act constitutes two or more grave or less grave felonies, and complex crime
proper, when an offense is a necessary means for committing the other. Moreover, we
also made a distinction that "when various victims expire from separate shots, such
acts constitute separate and distinct crimes,"29 not a complex crime.
As borne by the records, the Nueva Ecija Provincial Crime Laboratory Office
recovered six (6) cartridges of bullets from a .45 caliber firearm. This does not
indicate discharge by a single burst. Rather, separate shots are evidenced. One or
more of which, though fired to kill Cabiedes, killed Bulanan instead. There is thus no
complex crime. The felonious acts resulted in two separate and distinct crimes.
Finally, we ask, may treachery be appreciated in aberratio ictus?
Although Bulanan's death was by no means deliberate, we shall adhere to the
prevailing jurisprudence pronounced in People v. Flora, 30 where the Court ruled that
treachery may be appreciated in aberratio ictus. In Flora, the accused was convicted
of two separate counts of murder: for the killing of two victims, Emerita, the intended
victim, and Ireneo, the victim killed by a stray bullet. The Court, due to the presence of
the aggravating circumstance of treachery, qualified both killings to murder. The
material facts in Flora are similar in the case at bar. Thus, we follow the Flora
doctrine.
Also, contrary to the defense's allegation that Bulanan' s death was not established, a
perusal of the records would reveal that Bulanan's fact of death was duly established
as the prosecution offered in evidence Bulanan's death certificate. 31
ROLL Y ADRIANO y SAMSON is found GUILTY beyond reasonable doubt of MURDER
(Criminal Case No. 13160-07) for the killing of DANILO CABIEDES and is hereby
sentenced to suffer the penalty of reclusion perpetua. Accused-appellant ROLLY
ADRIANO y SAMSON is ordered to pay the heirs of DANILO CABIEDES the amount of
Seventy Five Thousand Pesos (₱75,000.00) as civil indemnity, Seventy Five Thousand
Pesos (₱75,000.00) as moral damages, Thirty Thousand Pesos (₱30,000.00) as
exemplary damages, and Two Hundred Thirty Two Thousand Four Hundred Eighty
Two Pesos {₱232,482.00) as actual damages.

On the alibi as defense, time and again, we have ruled alibis like denials, are
inherently weak and unreliable because they can easily be fabricated. 32 For alibi to
prosper, the accused must convincingly prove that he was somewhere else at the time
when the crime was committed and that it was physically impossible for him to be at
the crime scene.33 In the case at bar, Adriano claimed he was in Dolores, Magalang,
Pampanga at the time of incident. Adriano's claim failed to persuade. As admitted,
Dolores, Magalang, Pampanga was only less than an hour away from the crime scene,
Barangay Malapit, San Isidro, Nueva Ecija. Hence, it was not physically impossible for
Adriano to be at the crime scene at the time of the incident.
It is likewise uniform holding that denial and alibi will not prevail when corroborated
not by credible witnesses but by the accused's relatives and
friends.1âwphi1 Therefore, the defense's evidence which is composed of Adriano's
relatives and friends cannot prevail over the prosecution's positive identification of
Adriano as one of the perpetrators of the crime.
Accused-appellant ROLLY ADRIANO y SAMSON is also found guilty beyond reasonable
doubt of the crime of MURDER (Criminal Case No. 13159-07) for the killing of OFELIA
BULANAN and is hereby sentenced to suffer the penalty of reclusion perpetua.
Accused-appellant ROLLY ADRIANO y SAMSON is ordered to pay the heirs of OFELIA
BULANAN in the amount of the amount of Seventy Five Thousand Pesos (₱75,000.00)
as civil indemnity, Seventy Five Thousand Pesos (₱75,000.00) as moral damages,
Thirty Thousand Pesos (₱30,000.00) as exemplary damages, and Twenty Five
Thousand Pesos (₱25,000.00) as temperate damages in lieu of actual damages.
All monetary awards shall earn interest at the rate of 6o/o per annum from the date
of finality until fully paid.
SO ORDERED.

The penalty for murder under Article 248 of the Revised Penal Code is reclusion
perpetua to death. In the case at bar, as the circumstance of abuse of superior strength
concurs with treachery, the former is absorbed in the latter. There being no
aggravating or mitigating circumstance present, the lower penalty should be imposed,
which is reclusion perpetua, in accordance with Article 63, paragraph 2 of the Revised
Penal Code.

To recover actual or compensatory damages, basic is the rule that the claimant must
establish with a reasonable degree of certainty, the actual amount of loss by means of
competent proof or the best evidence obtainable. 34 Documentary evidence support
the award of actual damages in this case. The RTC computed the amount of actual
damages as ₱222,482.00. However, a perusal of the records reveals that the amount of
award of actual damages should be ₱232,482.00 as duly supported by official
receipts.35 Therefore, we hereby increase the award of actual damages from
₱222,482.00 to ₱232,482.00.

WHEREFORE, the appeal is DISMISSED. The assailed Decision of the Court of Appeals
in CA-G.R. CR-HC No. 04028 is AFFIRMED with MODIFICATIONS. Appellant-appellant
G.R. No. 206227, August 31, 2016
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee
vs.
STANLEY BUENAMER STANLEY BUENAMER y MANDANE, Accused-Appellant

DECISION

This is an appeal from the June 7, 2012 Decision 1 of the Court of Appeals (CA) in CA-
GR CR-H.C. No. 04881, which affirmed with modification the May 18, 2010
Decision2 of the Regitnal Trial Court (RTC) of Manila, Branch 33, in Criminal Case No.
09-272017, finding appellant Stanley Buenamer y Mandane (Buenamer) guilty
beyond reasonable doubt of the crime of robbery with homicide, as defined and
penalized in Article 294, paragraph 1 of the Revised Penal Code (RPC), and sentencing
him to suffer the penalty of reclusion perpetua.

Proceedings before the Regional. Trial Court

Buenamer and his co-accused Jerome Lambada y Landero (Lambada) were indicted
for the felony of f()bbery with homicide for staging an anned robbery inside a
passenger FX taxi and causing the death of one of the passengers therein. The
indictment against them alleged

The undersigned accuses STANLEY BUENAMERy MANDANE an JEROME LAMBADA y

LANDERO of the crime of Robbery with Homicide committed as follows:

That on or about October 20, 2009 in the City of Manila, Philippines, the said accused,
conspiring and confederating together and mutually helping each other, with intent to
gain and by means of force, violence, and intimidation, to wit: by boarding a passenger
FX taxi going to Espana Blvd., Sampaloc, this City, announcing a hold up then pointing
their guns to its passengers and FERRARIE TAN y OALLESMA and divesting from him
his black bag containing a Sony PSP colored black with casing and one q) brown
envelope with cash money in the amount of ₱5,460.00, did then and there, willfully,
unlawfully and feloniously take, rob and carry away the same, against his will, to the
damage arid prejudice of the said FERRARIE TAN y OALLESMA in the amount of more
than ₱5,460.00, Philippine Currency; that on occasion of or by reason of the said
robbery and for the purpose of enabling themselves to take, rob and carry away the
personal properties of the passengers, attack, assault and use personal violence upon
said FERRARIE TAN y OALLESMA when he chased the said accused who boarded a
passenger jeepney in order to escape, but was boxed when he held on the handle bar
of the jeepney causing him to [lose] his grip and [fall] from the jeepney and thereafter
was ran over by the rear tire of said jeepney, thereby inflicting upon him physical
injuries which were the direct and immediate cause of his death thereafter.
CONTRARY TO LAW.3
Arraigned on December 17, 2009 both accused, assisted by counsel, entered a
negative plea to the crime chluged. After the pre.trial conference, trial on the merits
followed.
During the trial, the prosecution presented the following witnesses: Manila Traffic
and Parking Bureau (MTPB) Enforcers Peter Paul de Jesus (De Jesus), Raymond
Buaron (Buaron), anq James Mendez y Dones (Mendez), Police Officer 3 Jay Santos
(P03 Santos), Diana David y Del Pilar (David), Carolyn Tan (Carolyn), and Dr. Romeo
Salen (Dr. Salen). Their collective testimonies tended to establish the following facts:
On October 20, 2009, at around 5:00 o'clock in the afternoon, David was on board a
passenger FX taxi on her way home from Quezon City to Sampaloc, Manila, when
along Espana Boulevard, comer Maceda Street in Sampaloc, Manila, a hold-up was
announced by Buenamer and Lambada. The armed duo demanded for the wallets,
cellphones, and other valuables of the FX passengers. The two threatened to shoot
and blow up the brains of anyone who resisted them (''pasabugin ang ulo namin").'
David heard the now deceased Ferrarie Tan (Ferrarie), who was then wearing a
nurse's uniform, crying and pleading to robbers that he had already given to them his
cellphone, a Sony PSP, and that he was only a student. Nevertheless, the armed
robbers proceeded to divest, as indeed they divested, the passengers of their personal
effects, including David's own Nokia cellphone and coin purse.
When the FX stopped at an intersection along Maceda Street and Espana Boulevard in
Sampaloc, Manila, David quickly got off the FX and shouted for help. Traffic enforcers
and bystanders heard her shout and plea for assistance, and at once chased after
Buenamer; and Lambada who were trying to flee from the scene of the crime. Not long
after this, David saw the lifeless Ferrarie lying along Espania Boulevard in Sampaloc.
De Jesus was an MTPB traffic enforcer on duty along Espania Boulevard when the
incident took place. De Jesus testified that he responded to David's call for help, along
with another MTPB traffic enforcer, Mendez. David told the traffic enforcers that the
fleeing suspects had boarded a red jeepney. So De Jesus quickly rode his motorcycle
and went after the red jeepney which was carrying the robbers. One of the robbers
got off at Florentino Street in Sampaloc, Manila. Here, De Jesus was able to apprehend
BuenameI'i after a tricycle accidentally ran over the latter. Buenamer was beaten up
by the by-standers, and then brought to the barangay hall nearby, where people there
were able to recover from him a bag containing a Sony PSP, cellphone, a gun with
several bullets, a pay slip with brown envelope, and money.
Another MTPB employee, traffic enforcer Mendez, also heard David's shout for help,
and when David pointed to the jeepney where the hold-uppers were, he (Mendez)
went near the jeepney, just in time to see a person in white uniform holding on to the
estribo (the handle bar) of the jeepney. Mendez testified that he saw this person's
hands teaching inside the front seat of the jeepney, trying to regain possession of his
Sony PSP, cellphone and other valuables from Buenamer who was then sitting in front
of the jeepney, near the driver; that he then saw Buenamer strike or box that other
person (who turned out to be Ferrarie), causing Ferrarie to fall off; and that after
Ferrarie fell off, the jeepney's rear tire ran over Ferrarie. After this Mendez mounted
his motorcycle and went after Buenamer who fled the crime scene.
Still another MTPB tratfic enforcer presented by the prosecution was Buaron. This
traffic enforcer testified that he was the one who apprehended Lambada somewhere
near the vicinity of the North Cemetery along Bonifacio Avenue; tilld that he then
brought Lambada to Police Station No. 1 in Quezon City because the police authorities
of Quezon City ilisisted on asserting jurisdiction over his case.
P03 Santos of the Manila Police Department was the police investigator who prepared
the Crime Report, Booking Sheet, and Arrest Report for Buenamer and Lambada. It
was also P03 Santos who took the sworn statements of David, Mendez, and De Jesus.
P03 Santos testified that it was he who recovered a Sony PSP, black cellphone, a
brown envelope with the name "Tan, Ferrarie," a pay slip containing ₱5,460.00, and
a .38 caliber revolver with seven live bullets.
Carolyn was the mother of the victim. She identified her son Ferrarie at the Universal
Funeral Parlor, despite his broken face.1âwphi1 She testified that her son was a
registered nurse at the Ospital ;ng Makati and was earning ₱6,000.00 every 15 days.
She claimed that she spent P2 million for the interment and burial of Ferrarie.
Dr. Salen, the Medico-Uegal Officer of the Manila Police District Crime Laboratory,
conducted the post-mortem examination on the corpse of Ferrarie. Dr. Salen testified
that the victim's corpse was already in a state of rigor mortis when he examined it;
that he found a 10 x 3 cm. lacerated wound on Ferrarie's forehead, abrasions from the
right and left side of the following: nose; chest; knees; feet; thighs; and from the
victim's abdomen; and two lacerated wounds at the lower lip and on the chin.
According to Dr. Salen, Ferrarie's ribs were fractured and his lungs macerated.
The accused waived their right to present their defense.
Ruling of the Regional Trial Court
On May 18, 2010, the RTC rendered judgment finding Buenamer guilty beyond
reasonable doubt of the crime of robbery with homicide. The RTC however found
Lambada guilty merely of simple robbery. The RTC disposed thus
- RPC, the CA held that this plea was unavailing. The CA ruled that all the elements of
WHEREFORE, judgment is hereby rendered finding the accused STANLEY BUENAMER
guilty beyond reasonable doubt of the. crime of Robbery with Homicide under Article
294 of the Revised Penal Code as principal and is hereby sentenced to suffer the
penalty of reclusion perpetua.
As for the accused JEROME LAMBADA, judgment is hereby rendered finding him
guilty pf the crime of Robbery with violence against or intimidation of persons under
Article 294 of the Revised Penal Code as principal and is hereby sentenced to suffer an
indeterminate penalty of Two (2) years, Ten (10) months and Eleven (11) days of
prision correccional as minimum TO Six (6) years, One (1) month and Eleven (11)
days of prision mayor medium, as maximum.
The accused are likewise directed to pay the amount of ₱5,460.00 and the value of the
Sony PSP taken from Ferrarie Tan.
Accused Stanley Buenamer is also ordered to pay the amount of ₱50,000.00 as civil
indemnity and ₱50,000.00 as moral damages.
xxxx
SO ORDERED.4
Dissatisfied with the RTC's disposition, Buenamer appealed to the CA, arguing that the
prosecution failed to prove his guilt beyond reasonable doubt since his' identity as the
alleged perpetrator of the crime was not sufficiently established. Buenamer also
cqutended that the mitigating circumstance under Article 13(3) of the RPC
should/have been appreciated in his favor because he had no intention to commit so
gravel a wrong as that he committed. Buenamer insisted that when he hit or boxed
Ferrat/ie on the arm, he had no intention of killing him at all.
Ruling of the Court of Appeals
On June 7, 2012, the CA affirmed the RTC and ruled that Buenamer's appeal was
without merit. The1 CA found that the prosecution was able to prove the identity of
Buenamer through the testimonies of David and Mendez, both of whom were
eyewitnesses to'thelcrime. The CA noted in particular that David was able to see the
face of Buenamer inside the passenger FX taxi because David was herself a passenger
in that vehicle.
As to Buenamer's invocation of the mitigating circumstance under Article 13(3) of the
the crime of ro~bel)' were present when Buenamer and Lambada held up the,
passengers of the F4 taxi. The CA stressed that the felony of robbery I with homicide
is committed once it is clearly shown that the criminal intention of the felon is to rob,
and that there is a killing which occurs before, during, or after the robbery.
The CA thus disposed as follows:
WHEREFORE, premises considered, the assailed Decision dated May 18, 2010 of the
Regional Trial Court (RTC), Branch 33, Manila in Criminal Case No. 09-272017 is
hereby AFFIRMED with MODIFICATION. Accused-appellant is found GUILTY BEYOND
REASONABLE DOUBT of the crime of Robbery with Homicide and is hereby sentenced
to suffer reclusion perpetua, and is ordered to pay ₱75,000.00 as civil damages and
1150,000.00 as moral damages.
SO ORDERED.5
From that Decision, Buenamer took the present appeal and in support thereof now
contends that.the CA's Decision was contrary to the evidence, the law, and
jurisprudence.
Buenamer insists that the prosecution was not able to positively identify the
perpetrators of the crime since the alleged eyewitness, David, was not in a position to
recognize them; that when the traffic enforcers heeded David's call for help and ran
after the suspects, they did not know who to pursue; and that in any event, the
mitigating circumstance under Article 13, paragraph 3 of the RPC should benefit him
because he did not interid tq kill Ferrarie when he hit the latter's right arm that
caused the latter to fall off the p~senger jeepney and be run over by the jeepney's
rear tire.
Our Ruling
The appeal will not prosper.
We hold that both the RTC and the CA correctly found the appellant guilty beyond
reasonable doubt of the felony of robbery with homicide. Indeed, we are satisfied that
in this case the prosecution was able to satisfactorily establish the elements of
robbery with homicide, to wit:
(1) The taking of personal property is committed with violence or intimidation
against persons;
(2) The property taken belongs to another;
(3) The taking is with animo lucrandi; and
(4) By reason of the robbery, or on the occasion thereof, homicide is committed. 6
All the elements mentioned above are present in this case.1âwphi1 In point of fact, the
prosecution succeeded in showing that the primary aim or objective of the
malefactors Buenamer and Lambada was to rob the passengers of the FX taxi.
Prosecution witness David, a passenger of the FX taxi in which the two robbers staged
the heinous felony, was herself a victim of the robbery that was staged by the
malefactors that afternoon of October 20, · 2009 along Espana Boulevard in Sampaloc,
Manila. David positively identified Buenamer as the very perpetrator of the crime
together with his co-accused Lambada. David testified that she saw the faces of these
two malefactors when these two boarded the FX taxi at the Pantranco terminal in
Quezon Avenue, Quezon City; that Buenamer and Lambada, then armed with firearms,
declared a hold-up on board the moving vehicle, after which these two divested the
passengers of their personal belongings, while threatening the passengers that they
would blow off their heads (''pasabugin ang ulo namin") should the passengers resist
the robbery. By taking the personal belongings and valuables of the passengers,
employing force, violence, and intimidation, and motivated moreover by animus
lucrandi or intent to gain or profit, and thereafter hitting Ferrarie causing him to fall
from the passenger jeepney resulting to his death, there can be no question that
Buenamer did commit robbery with homicide.
Traffic enforcer Mendez saw Buenamer box or strike Ferrarie who, in consequence of
such a blo, lost his grip on the estribo (or the handle bar) of the moving vehicle, and
fell off that vehicle, and at once ran over by the vehicles right rear tire, resulting in
Ferrarie’s sustaining lacerated wounds, and numerous abrasions in various parts of
his body that ultimately led to his death. In the face of these actual, incontrovertible
facts, there can be no doubt that all the elements of robbery with homecide are
present in this case.
Buenamer insists that his identity as the perpetrator of the crime was clearly
established because David was not in a position to recognize him.
We are not persuaded. David , who was a co-passenger of the now deceased Ferrarie
that fateful afternoon of October 20, 2009, categorically declared that it was
Buenamer and Lambada who perpetrated the hold-up:
[Prvate Prosecutor] Atty. ARNULFO PEAGIO
Q Now, you said that there were two male persons who boarded the FX, what about
the other one, would you able to recognize him also?
THE WITNESS:
A Yes, sir.
Q Again, will you please look inside the Courtroom and tell the Honorable Court if he
is inside the Courtroom?
Note: At this point the Witness is pointing to accused Stanley Buenamer y Mandane.
Q Now, after this male person who was seated at the middle seat announced the hold
up and pointed the gun to the driver, what happened next, Madam Witness?
A He told [us] to bring out the cellphones and wallet, sir. And then he [threatened] to
kill us if we will not give our belongings to them and if ever we will fight back then he
will [blast] our heads away [pasabugin ang ulo namin], he will fire at our heads.7
And, no less clear and convincing, is the testimony of traffic enforcer Mendez about
the identity of Buenamer. Mendez was one of the traffic enforcers who immediately
responded to David's plea for help about the robbery hold-up; in fact, this witness
boarded the very vehicle where the robbery hold-up took place. And, as his testimony
attests, there can be no doubt or question that Buenamer was one of the perpetrators
of this heinous crime:
Q Could you tell .us that incident, Mr. Witness?
A Because that hour is a rush hour, we were directing traffic at that time at our
jurisdiction Sir when all of a sudden we heard a voice from a woman coming from my
right side asking for assistance.
Q Could you recall the words that you heard from the woman?
A "Tulungan nyo po kami hinohold-up kami."
Q Upon hearing those 'Words from that woman, what did you do Mr. Witness?
A I approached her and she pointed to the jeepney where the hold-uppers boarded.
Q Could you please describe to us, Mr. Witness, the jeepney?
A It is a red jeepney.
Q After x x x Diana pointed to you the jeepney where the hold-uppers transferred,
what did Jou do?
A I approached the jeepney and I saw a person wearing white clothes was holding at
the "estribo" in the passenger side of the jeepney and that person cannot ride at the
front portion because [sic] of the jeepney and so he was being drag [sic] by
thejeepney.
Q You said that the person weaiing white uniform [was] holding at the bar or the
"estribo" of the jeepney at the right side, could you tell us which hand was x x x
holding on to the bar?
A His right hand, Sir.
Q What about his left arm?
A What I saw [Was] that that person wearing white uniform [was] getting something
from [the] person seated inside the jeepney.
Q After you saw this incident, what happened next after that?
A I saw the person holding the iron bar was hit on his arm so he fell down and he was
r[a]n over by the last tire of the jeepney, Sir.
Q Could you tell us who was that person which you said bit the arm of the person
wearing white uniform while he was holding at the iron bar or "estribo''?
A Yes, Sir. Because I was near them.
Q Could you tell us who _is that?
A Stanley Buenamer, Sir.8
Anent appellant's claim that the CA erred in not appreciating in his favor the
mitigating circumstance of lack of intent to commit so grave a wrong as that
committed, this Court agrees with the CA that this mitigating circumstance cannot be
invoked by the appellant. "This mitigating circumstance addresses itself to the
intention of the offender at the particular moment when the offender executes or
commits the criminal act"9 - an intention that must comport, amongst others, with the
weapon’s used by the: offender and the mode of attack adopted by the latter, vis-a-vis
the injuries sustained by his victim. Thus, in People v. Gonzalez, Jr.,10 we explained- ,
[t]his mitigating circumstances is obtaining when there is a notable disparity between
the means employed by the accused to commit a wrong and the resulting crime
committed. The intention of the accused at the time of the commission of the
crime is manifested from the weapon used, the mode of attack employed, and
the injury sustained by the victim. x x x
Here, the records showed that Buenamer boxed or struck Ferrarie with such force
that the latter lost his grip on the estribo or handle bar of the vehicle, fell off and run
over by the vehicle's rear tire. He subsequently died. The legal postulate enshrined
under Article 3 of the RPC decrees that every person shall be held responsible for all
the natural and logical consequences of his felonious act And, complementing this
Article 3 is Article 4 of the same RPC, which provides that "criminal liability shall be
incurred (1) by any person committing a felony, although the wrongful act done be
different from that which he intended." These two articles of the RPC must thus apply
with implacable force against appellant; he must be called to account for all the
natural and logical consequences of his felonious act; and hence must be deemed to
have incurred criminal liability, although the felonious act he committed might have
been different from that which he intended.
Nonetheless, the CA's award of moral damages in the amount of ₱50,000.00 is hereby
upgraded to ₱75,000.00 in conformity with recent jurisprudence. In addition,
appellant must pay exemplary damages in the amount of ₱75,000.00.
WHEREFORE, the appeal is DISMISSED. The Decision of the Court of Appeals dated
June 7, 2012 in CA-GRCR-H.C. No. 04881, is AFFIRMED subject to the
MODIFICATION that the appellant Stanley Buenamer y Mandane is condemned to
pay the heirs of Ferrarie Tan moral damages in the increased amount of ₱75,000.00
and exemplary damages of ₱75,000.00. The award of civil damages, also in the
amount of ₱75,000.00, is maintained. These monetary awards shall earn interest at
the rate of 6% per anum, reckoned from the date of finality of this Decision until fully
paid.
SO ORDERED.
G.R. No. 116524, January 18, 1996
PEOPLE OF THE PHILIPPINES plaintiff-appellee,
vs.
LYNDON FLORES y MALARAYAP, accused-appellant.

DECISION

Charged with murder in an Information reading as follows:

That on or about the 20th day of June 1993, at around 12:00 o'clock noon, in
barangay Malusak, Municipality of Boac, Province of Marinduque, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there, wilfully, unlawfully and feloniously, with
deliberate intent to kill, and with treachery, assault, attack, maim and
violently kick the vital parts of the body of one Manuel Lazarte y Malvar,
while he was lying dead-drunk and unconscious on the pavement, inflicting
upon him the following fatal injuries:

Ruptured Small Intestine (jejunum) with spillage of the Intestinal

content Intraperitoneally

Cause of Death:

Ruptured Viscus, allegedly secondary to mauling

(p. 3, Rollo.)
Lyndon Flores, upon arraignment, entered a plea of not guilty, and after trial on the
merits, he was found guilty by the court a quo in a decision which accordingly
disposed:
In view of the above observations and findings, this Court found Lyndon
Flores y Malarayap guilty beyond reasonable doubt of the crime of Murder
without any mitigating nor aggravating circumstance attendant to its
commission.
Under the rule on application of penalty and as enunciated in People vs.
Muñ oz, et al., G.R. No. L-38969-70, February 9, 1989, 170 SCRA 107,
reiterated in People vs. Sadia, Jr., G.R. No. 92633, Oct. 17, 1991, 203 SCRA 62-
71, the proper penalty imposable is reclusion perpetua. Hence, Lyndon Flores
y Malarayap is hereby sentenced to suffer the penalty of RECLUSION
PERPETUA together with the accessory penalty thereof (People vs. Penilles, et
al., G.R. No. 65673, 30 Jan. 1992; People vs. Catubig, G.R. No. 89732, Jan. 31,
1992).
The accused shall be credited with the full extent of his preventive
imprisonment in accordance with the provision of the Revised Penal Code.
The accused is hereby ordered to pay the heirs of the victim the surn of
P50,000.00 as and for death indemnity; the further sum of P30,000.00 for
hospitalization and medicines and for the coffin and burial of Manuel Lazarte.
The body of the accused is hereby committed to the custody of the Director of
Prisons, National Penitentiary, Muntinlupa, Metro Manila, thru the Provincial
Jail Warden of Marinduque.
Let the mittimus be prepared for the accused's immediate commitment.
(p. 25, Rollo.)
From said decision, the instant present appeal has been interposed, with accused-
appellant putting up the general allegations or, shot-gun type of arguments that the
trial court erred in finding him guilty of murder instead of simple homicide. In
consequence, accused-appellant submits that the trial court erred when it imposed
the penalty of reclusion perpetua. We find no merit in the first argument. With regard
to the second argument, we sustain accused-appellant but on the basis of grounds
other than those he proffers. But first to the background facts which were capsulized
by the trial court in this wise:
Cesar Lanot pointed to the accused who is in court and declared that at 12:00
noon of June 20, 1993, while he was at the ground floor of their residence he
saw Manuel Lazarte alias Ato being kicked by Lyndon Flores alias Jojo
(accused). Ato was then opposite Rustico Malvar's house lying on the
pavement seven arms length from him dead drunk. Thereafter, Ato Lazarte
was brought to the hospital.
He explained that the accused hit Ato Lazarte at his stomach twice with the
use of the right foot with Topsider leather shoes.
He relayed that on that noon Ato's mother Emperatriz Lazarte had an
altercation with the accused due to a cassette belonging to the former. He was
attracted by a commotion outside prompting him to go out so he saw Lyndon
kicking Manuel Lazarte who had been lying on the pavement five (5) minutes
before the kicking.
Of the persons present around he can remember only Popong Mendoza, Taba,
whose exact name he does not know and Lydia Vargas. Thereafter, Ato
Lazarte was brought to the hospital where he died two days after the
incident. He even dissuaded Jojo, saying "that is enough because Manuel will
not fight back as he remained lying", thereafter Flores left Ato.
Dr. Dante Osmillo of the Marinduque Provincial Hospital attended to Manuel
Lazarte on June 20, 1993 identifying Exh. B, explaining that there was no
swelling nor abrasion but found tenderness at the epigastric area. The
exploration of the intestine was done by Dr. Edgardo Marquez (Exh. B-2)
without his assistance.
That at the time of admission the patient Manuel Lazarte was positive of
alcoholic breath complaining of epigastric pain. He did not see any abnormal
physical appearance and no sign of external illness. The whole body appeared
to be normal However, in the afternoon of June 21, the victim complained of
epigastric pain such that believing it to be merely gas pain he gave medicine
for such. He endorsed the patient normally to another physician (Dr. Sevilla)
there being no alarming sign and symptom.
Alfredo Alvarez declared that at 12:00 noon of June 20, 1993 after hearing a
commotion outside their residence at Malvar and Madrigal Streets, Boac,
Marinduque he went out and found Emperatriz Lazarte arguing with Lyndon
Flores. Later he saw Lyndon kick Manuel Lazarte who was lying on the
pavement dead drunk in front of Malvar's residence about 4 armslenght away
from him. Flores hit Lazarte three times at the breast and stomach with
Lyndon's left and right feet wearing leather shoes. Chic-Chic, Lyndon's
companion, held Manuel's breast shirt, slapped Manuel and dropped him.
That it was Cesar Lanot who first pacified Lyndon while Chic-Chic was just
looking. Police arrived and together with others carried (inusong) Ato
upstairs of their residence, after which he went to the cockpit and did not
know anything that transpired.
He described that the kicking was by dropping the feet on the stomach, first
by the right foot which landed on the chest while the second and third at the
stomach. He did not hear anything from Manuel Lazarte.
Emperatriz Lazarte, mother of the victim, claimed that at 12:00 noon on 20
June 1993 while watering her plants she saw people outside their residence
with her son lying prostrate on the pavement but did not know why. She saw
the accused Lyndon looking straight to her rubbing his hands. She recalled
having lost her cassette and was able to trace it at Salvo's Pawnshop pawned
by the accused in his name. When Mrs. Salvo refused to give it back she
redeemed it for P20.00 and instructed Mrs. Salvo to inform anybody who will
complain to see her. Confronting the accused, exchange of words ensued
which made Lyndon mad. Accused Lyndon turned to her son and lacked him
three times then pulled him by the shirt lifting his son then left him fall. She
got nervous because she heard the head hit the pavement. The accused was
with other man, one of whom was a certain Chic-Chic. That the accused was
pacified by Cesar Lanot up to the time her son was brought to her residence.
Ato Lazarte was brought to the hospital that Sunday afternoon and died in
the evening of the following day, Monday.
However, the ruptures appeared to be about 2 or 3 days but there was no
abscess.
(pp. 1-5, Decision; pp. 14-18, Rollo.)
Accused-appellant denies having kicked the victim. He asserts that he merely touched,
with his right foot, the victim who was lying dead drunk on the pavement to wake him
up so that the victim could explain the circumstances of the loss of Emperatriz
Lazarte's cassette recorder. Emperatriz imputed to accused-appellant the loss of her
cassette recorder which she eventually found in a pawnshop from where she
redeemed it. Accused-appellant insists that it was the victim Manuel Lazarte who
pawned the cassette recorder and so he was trying to wake up the victim so that the
latter could inform his mother that it was he who pawned the cassette recorder.
Accused-appellant's denial that he kicked the victim runs counter to the evidence on
record. Prosecution witness Cesar Lanot categorically testified that accused-appellant
kicked the victim in the belly, thusly:
Q.       What happened to Manuel Lazarte when he was kicked by the accused
Lyndon Flores alias "Jojo"?
A.       He was brought to the hospital, sir.
Q.       When the accused kicked Manuel Lazarte, do you know if he was hit?

That the victim was married with six children. She allegedly spent P30,000.00 A.       Yes, sir.
for the hospital, coffin, church and medicines.
COURT:
Her son has no permanent occupation but earns. That the victim was not
suffering from any illness before the death but did not know why he was Q.       In what part of the body was he hit?
lying on the pavement that day.
A.       On the stomach, sir.
Dr. Edgardo Marquez was consulted on June 21, 1993 to evaluate Manuels'
condition whose abdomen was distended and tender There was no clear Q.       How many times?
hematoma on the abdomen. X-ray showed presence of air intra-abdominally.
Suspecting that there was ruptured viscus, they operated on and found A.       Two (2) times, sir.
ruptured intestines, duodenum, with two (2) ruptured areas intra-
abdominally with the abdomen body (chocolate color) with alcoholic
Q.       With what foot?
contents. He opined that it must have been caused by a strong blow, like
repeated kicking on the abdomen. Before the surgery the patient can
communicate. The proximate cause of loss of fluid was intestinal infection. He A.       Right foot, sir.
did not find any ulcer on the small intestines since there was no perforation.
 FISCAL, OPIZ: Q.       Was he wearing anything?

Q.       What was the appearance of the accused at the time he kicked Manuel A.       Shoes, sir.
Lazarte?
xxx       xxx       xxx
A.       He was wearing shoes, sir.
Q.       Aside from kicking Manuel Lazarte what happened before the accused
Q.       What kind of shoes? left the scene?

A.       He was wearing a topsider leather shoes, sir.
(p. 5, tsn., Oct. 5, 1993)
Cesar Lanots' testimony was corroborated by Alfredo Azaula who testified as follows:
Q.       Who kicked Manuel Lazarte?
A.       Lyndon Flores, sir.
Q.       Who is this Lyndon Flores?
A.       The accused, sir.
Q.       Where was Manuel Lazarte when he was kicked by Lyndon Flores?
A.       He was lying on the pavement in front of the house of the Malvars, sir.
Q.       How far were you from Manuel Lazarte at that time?
A.       More or less four arms length, sir.
Q.       Where was Manuel Lazarte hit by the kicks of Lyndon Flores?
A.       On the chest and stomach, sir.
Q.       Did you observe the appearance of the feet of the accused which he
used in kicking Manual Lazarte?
A.       Yes, sir.
A.       He held the collar of Manuel Lazarte and delivered a slapping blow on
the face and then dropped Manuel Lazarte on the cemented pavement, sir.
Q.       How many times did the accused kick Manuel Lazarte?
A.       Three times, sir.
(pp. 14-16, tsn., Oct. 7, 1993)
(pp. 10-12, Appellee's Brief; p. 70, Rollo.)
There is no reason to doubt the credibility of these prosecution witness and the
veracity of their testimony. Their statements are not tainted with any contradiction,
inconsistency, or prevarication. As the trial court observed, witnesses testified in a
candid, categorical, and consistent manner, lending much credibility to their
declarations and making their testimony deserving of full faith and credit (People vs.
Barte, 230 SCRA 401 [1994]).
Likewise, there being nothing on the record to show that said witnesses were
actuated by any improper motive, their testimony shall be entitled to full faith and
credit (People vs. Dela Cruz, 229 SCRA 754 [1994]). Moreover, it is settled that when
the credibility of witnesses is at issue, appellate courts will not disturb the findings of
the trial court, the latter being in a better position to decide the question, having
heard the witnesses and observed their deportment and manner of testifying during
the trial, unless certain facts of substance and value had been overlooked which, if
considered, might affect the result of the case (People vs. Gomes, 230 SCRA 270
[1994]). Much as one way may scour the record, no such fact of substance or value
seems to surface. Accused-appellant's denial is a feeble defense which cannot stand
against the positive testimony of the eyewitnesses to the crime (People vs. Gomes,
229 SCRA 138 [1994]). The findings of fact of the trial court, therefore, stands.
The testimony of accused-appellant that he merely touched or nudged with his foot
the victim as the victim was lying dead drunk on the pavement in order to wake him
up so that he may explain to his mother the circumstances concerning the pawning of
a cassette recorder is totally negated by the extent of the injuries suffered by the
victim. Had accused-appellant merely poked or nudged the victim with his foot, the
latter would not have suffered any injury, much less deadly damage to internal
organs. Verily, the foot jabs delivered by accused-appellant to the victim were more
than nudges, but severe kicks which ruptured the intestines of the victim, later
resulting in his death. Dr. Edgardo Marquez, the attending physician, had this to say
on the point:
Q.       Did you make any surgery?
A.       We had an impression that there is rupture of the viscus pre-
operatively so, we did an emergency surgery, exploratory laparatomy on the
patient.
Q.       What step was done next?
A.       We did an exploratory laparatomy and the operative findings are the
following:
There is ruptured small intestines in particular the jejunum with two
ruptured areas intra abdominally. The abdomen was filled with bloody
chocolate colored fluid with alcoholic scent. The whole intestines are soaked
with spilled intestinal contents.
Q.       What could have caused the ruptures viscus, Doctor?
A.       This was possibly caused by a very strong blow.
Q.       Could repeated kicks to the abdomen have caused the injuries?
A.       Possible, sir.
(p. 4, tsn., Dec. 3, 1993)
(pp. 12-13, Appellee's Brief; p. 70, Rollo.)
Accused-appellant's finally contends that the crime he committed is homicide and not
murder.
Such contention is devoid of merit. The evidence clearly establishes the fact that the
victim was totally unconscious, dead drunk, lying on the pavement, when accused-
appellant administered strong, vicious, and as borne out later, killing kicks at the belly
of the victim. Totally unconscious at the time of the attack, the victim could not have
put up any defense whatsoever against the sudden assault by the accused-appellant.
Unquestionably, the attack was characterized by treachery. An attack upon an
unconscious victim who could not have put up any defense whatsoever is
treacherous. There was absolutely no risk to accused-appellant from any defense that
the victim might have make. There is treachery when the offender commits any of the
crimes against the person, employing means, methods or forms in the execution
thereof which tends directly and specially to insure its execution, without risk to
himself arising from the defense which the offended party may make (No. 16, Article
14, Revised Penal Code).
Nonetheless. we believe the trial court erred when it imposed the penalty of reclusion
perpetua on accused-appellant.
Under Paragraph 1, Article 4 of the Revised Penal Code, criminal liability is incurred
by any person committing a felony (delito) although the wrongful act done be
different from that which he intended. Thus, anyone who inflicts injuries voluntarily
and with intent is liable for all the consequences of his criminal act, such as death that
supervenes as a consequence of the injuries. Here, accused-appellant is liable for the
demise of the victim for such was caused by the violent kicks which he inflicted on the
vital parts of the victim's body. And, as earlier discussed, since the assault was
qualified by treachery the crime committed is murder and not homicide as suggested
by accused-appellant.
However, the mitigating circumstance of lack of intent to commit so grave a wrong as
that committed (Paragraph 3, Article 13, Revised Penal Code) should be appreciated in
favor of accused-appellant for he had no intent to kill when he attacked the victim. His
intention was merely to inflict injuries on the victim.
Thus, the trial court erred in imposing the penalty of reclusion perpetua for it failed to
appreciate the mitigating circumstance of lack of intent to commit so grave a wrong as
that committed in favor of the accused-appellant. Under Article 248 of the Revised
Penal Code, the penalty for the crime of murder is reclusion temporal in its maximum
period to death. There being no aggravating circumstance to offset the mitigating
circumstance of lack of intent to commit so grave a wrong as that committed, the
imposable penalty is reclusion temporal in its maximum period, or 17 years, 4 months,
and 1 day, to 20 years, the minimum of the penalty provided for by law (Paragraph 2,
Article 64, Revised Penal Code). Applying the Indeterminate Sentence Law, the penalty
next lower in degree is prision mayor in its maximum period to reclusion temporal in
its medium period or 10 years and 1 day of prision mayor to 17 years and 4 months
of reclusion temporal (People vs. Espinosa, 243 SCRA 7 [1995] citing People vs. Roel
Ponayo Y Villanueva, G. R. No. 111523, August 10, 1994).
The Court is not unaware of the New Death Penalty Law (Republic Act No. 7659)
which took effect on December 31, 1993 (People vs. David, 235 SCRA 366 [1994]),
amending Article 248 of the Revised Penal Code by increasing the imposable penalty
for murder to reclusion perpetua to death. But such amendment cannot be applied to
the present case for the crime was committed on June 20, 1993, before the effectivity
of the Republic Act No. 7659.

WHEREFORE, the decision appealed from is HEREBY AFFIRMED with the

modification that accused-appellant IS HEREBY SENTENCED to an indeterminate
prison term of ten (10) years and one (1) day of prision mayor, as minimum, to
seventeen (17) years and four (4) months, and one (1) day of reclusion
temporal (People vs. Sarol, 139 SCRA 125 [1985]), as maximum.

No special pronouncement is made as to costs.

SO ORDERED.

G.R. No. 235071, January 07, 2019

EVANGELINE PATULOT Y GALIA, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.

DECISION

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court seeking to reverse and set aside the Decision 1 dated July 13, 2017 and the
Resolution2 dated September 25, 2017 of the Court of Appeals (CA) in CA-G.R. CR No.
37385 which affirmed with modification the Decision 3 dated November 19, 2014 of
the Regional Trial Court (RTC) of Pasig City, Branch 163, Taguig City Station, finding
Evangeline Patulot y Galia guilty beyond reasonable doubt of two (2) charges of child
abuse.

The antecedent facts are as follows.

In two (2) separate Informations, Patulot was charged with child abuse, defined and
penalized under Republic Act (R.A.) No. 7610, otherwise known as the Special
Protection of Children Against Abuse, Exploitation and Discrimination Act, 4 the
accusatory portions of which read:

(Criminal Case No. 149971)


That on or about the 14 th day of November 2012 in the City of Taguig, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, did, then
and there wilfully, unlawfully, and feloniously commit acts of child abuse upon one
AAA,5 a three (3) year old minor, by throwing on him a boiling oil, thereby inflicting
upon said victim-minor physical injuries, which acts are inimical and prejudicial to
the child's normal growth and development.
CONTRARY TO LAW.
(Criminal Case No. 149972)
That on or about the 14th day of November 2012, in the City of Taguig, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, did, then
and there wilfully, unlawfully and feloniously commit acts of child abuse upon one
BBB, a two (2) month old baby, by throwing on her a boiling oil, thereby inflicting
upon said victim-minor physical injuries, which acts are inimical and prejudicial to
the child's normal growth and development.
CONTRARY TO LAW.6
During arraignment, Patulot, assisted by counsel, pleaded not guilty to the charges.
Subsequently, trial on the merits ensued wherein the prosecution presented CCC,
mother of minors AAA and BBB, three (3) years old and two (2) months old,
respectively; DDD, father of the minors; and Dr. Francis Jerome Vitales as its
witnesses and offered documentary evidence7 to establish the following facts:
At around 2:00 p.m. of November 14, 2012, CCC gathered clothes from the clothesline
outside her house. As she was about to enter the house, she was surprised to see
Patulot who was holding a casserole. Without warning, Patulot poured the contents of
the casserole - hot cooking oil - on her. CCC tried to dodge, but to no avail. AAA and
BBB, who were nearby, suddenly cried because they were likewise hit by the hot
cooking oil. CCC hurriedly brought AAA and BBB to her three neighbors who
volunteered to bring the children to the Polyclinic at South Signal, Taguig City, for
treatment. She then went to the barangay hall also at South Signal, Taguig City, to
report the incident. Accompanied by barangay personnel, she went to Patulot's house,
but Patulot was not there. She instead returned to her children at the Polyclinic. While
there, she learned from a neighbor that Patulot had been arrested. Consequently,
having been assured that her children were all right and that medication had already
been given, they returned to the barangay hall, where DDD met them. At the barangay
hall, CCC noticed that her children were shivering. Thus, she asked her neighbors to
bring them to Pateros-Taguig District Hospital while she stayed behind to give her
statement. Afterwards, she proceeded to the hospital where she was likewise treated
for injuries. While she and BBB were able to go home, AAA needed to be confined but
was discharged the next morning. Before going home, however, CCC proceeded to the
Taguig Police Station where she executed her Sinumpaang Salaysay.8
Subsequently, Dr. Vitales of the Pateros-Taguig District Hospital, who examined and
treated CCC and her children, testified that the injuries suffered by AAA and BBB
would heal for an average period of thirty (30) days. Next, DDD testified that he
incurred P7,440.00 in medical expenses for his wife and children. 9
Solely testifying in her defense, Patulot denied the allegations against her. She
recounted that prior to the alleged incident, she was on her way to the market to sell
her merchandise when CCC bumped her on the arm, uttering foul words against her.
Due to the impact, Patulot's merchandise fell. Because of this, she cursed CCC back
who, in turn, merely laughed and repeated the invectives as she moved away. Then,
from 11:00 a.m. to 2:30 p.m. on November 14, 2012, she was repacking black pepper
at her house when she heard CCC taunt her in a loud voice, "Bakit hindi ka pa sumama
sa asawa mo? Dapat sumama ka na para pareha kayong paglamayan." Because of this,
Patulot proceeded to Barangay Central Signal, Taguig City, to file a complaint against
CCC, but she was ignored. So she went instead to the Barangay South Signal, Taguig
City. But upon reaching said location, she was apprehended by the Barangay Tanod
and brought to the Barangay Hall of South Signal, Taguig City for questioning. 10
On November 19, 2014, the RTC found Patulot guilty of child abuse and disposed of
the case as follows:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1) In Criminal Case No. 149971, the Court finds accused Evangeline Patulot y Galia
GUILTY beyond reasonable doubt of the offense charged and hereby sentences
her to suffer the indeterminate penalty of six (6) years and one (1) day
of pris[i]on mayor, as minimum, to seven (7) years and four (4) months
of pris[i]on mayor, as maximum. Accused is further ordered to pay the offended
party the amount of Three Thousand Seven Hundred Two Pesos (P3,702), as
actual damages, and Ten Thousand Pesos (P10,000) by way of moral damages;
2) In Criminal Case No. 149972, the Court finds accused Evangeline Patulot y Galia
GUILTY beyond reasonable doubt of the offense charged and hereby sentences
her to suffer the indeterminate penalty of six (6) years and one (1) day
of pris[i]on mayor, as minimum, to seven (7) years and four (4) months
of pris[i]on mayor, as maximum. Accused is further ordered to pay the offended
party the amount of Three Thousand Seven Hundred Two Pesos (P3,702), as
actual damages, and Ten Thousand Pesos (P10,000) by way of moral damages;
and
3) Finally, accused is ordered to pay a fine of Five Thousand Pesos (P5,000) in each
case, conformably with section 31 (f) of R.A. 7610.

SO ORDERED.11 (Italics supplied.)
The RTC found that while Patulot may not have intended to cause harm on AAA and
BBB, her negligence nonetheless caused injury on them, which left visible scars that
are most likely to stay on their faces and bodies for the rest of their lives. Besides, the
trial court added that R.A. No. 7610 is a special law such that intent is not necessary
for its violator to be liable.12
In a Decision dated July 13, 2017, the CA affirmed Patulot's conviction, but modified
the penalty imposed by the RTC in the following wise:
WHEREFORE, the 19 November 2014 Decision of the Regional Trial Court of Pasig
City, Branch 163 (Taguig City Station) is AFFIRMED with the MODIFICATION that:
1) in Criminal Case No. 149971, Evangeline Patulot y Ga1ia is SENTENCED to suffer
the indeterminate penalty of four (4) years, nine (9) months, and eleven (11)
days of prision correccional, as minimum[,] to seven (7) years and four (4)
months of prision mayor, as maximum; and
2) in Criminal Case No. 149972, Evangeline Patulot y Galia is SENTENCED to suffer
the indeterminate penalty of four (4) years, nine (9) months, and eleven (11)
days of prision correccional, as minimum[,] to seven (7) years and four (4)
months of prision mayor, as maximum.
SO ORDERED.13 (Italics supplied, underscoring in the original.)
According to the appellate court, there was no reason to deviate from the trial court's
findings of guilt for it had the unique opportunity to observe the demeanor of the
witnesses and their deportment on the witness stand. It, however, ruled that the RTC
was amiss in finding it unnecessary to determine intent merely because the act for
which Patulot stood charged is punishable by a special law. The CA clarified that the
index of whether a crime is malum prohibitum is not its form, that is, whether or not it
is found in the Revised Penal Code (RPC) or in a special penal statute, but the
legislative intent. Nevertheless, this reasoning still cannot help Patulot's case because
even if she did not intend on inflicting harm on the children, there was still intent to
harm CCC. Thus, criminal liability is incurred although the wrongful act done be
different from that which Patulot intended. For the same reason, the mitigating
circumstance of "no intention to commit so grave a wrong as that committed" cannot
be appreciated in Patulot's favor. Thus, Patulot must still be held guilty of the offense
charged.14
Aggrieved by the CA's denial of her Motion for Reconsideration, Patulot filed the
instant petition on January 4, 2018, invoking the following arguments:
I.
WHETHER THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE
PETITIONER'S CONVICTION OF VIOLATING SEC. 10(A) R.A. 7610 DESPITE THE FACT
THAT SHE HAD NO INTENT TO DEGRADE AND DEMEAN THE INTRINSIC WORTH
AND DIGNITY OF THE PRIVATE COMPLAINANT'S CHILDREN.
II.
WHETHER THE COURT OF APPEALS GRAVELY ERRED IN FAILING TO APPLY
ARTICLE 49 OF THE REVISED PENAL CODE WITH REGARD TO THE IMPOSITION OF
THE PENALTY.15
According to Patulot, she can only be convicted of physical injuries and not child
abuse. Citing our pronouncement in Bongalon v. People,16 she submits that not every
instance of laying hands on a child constitutes the crime of child abuse under Section
10(a) of R.A. No. 7610. Only when the laying of hands is shown to be intended to
debase, degrade, or demean the intrinsic worth and dignity of the child as a human
being should it be punished as child abuse. Otherwise, it is punished under the RPC.
Thus, in the absence of such intention on the part of Patulot, her true intention being
to pour hot oil only on CCC with AAA and BBB being merely accidentally hit, she
cannot be convicted of child abuse.
Patulot adds that even considering her to have committed child abuse, the CA erred in
determining the imposable penalty for failing to apply Article 49 17 of the RPC.
According to Patulot, there was error in personae as the oil that was intended for CCC
accidentally hit the children. She intended to commit physical injuries, but ended up
committing child abuse. Applying Article 49, since the penalty of the intended crime
(physical injuries) is less than the crime committed (child abuse), the imposable
penalty is that which refers to physical injuries, in its maximum period. As to the
extent of the physical injuries intended, based on the finding of Dr. Vitales that the
injuries suffered by AAA and BBB would heal for an average period of thirty (30) days,
the offense Patulot intended to commit is only Less Serious Physical Injuries under
the first paragraph of Article 265 18 of the RPC. Thus, the proper penalty should only
be arresto mayor in its maximum or four (4) months and one (1) day to six (6) months
for each count.19
We deny the petition.
Under Section 3(b) of R.A. No. 7610, "child abuse" refers to the maltreatment, whether
habitual or not, of the child which includes any of the following: (1) psychological
and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment; (2) any
act by deeds or words which debases, degrades or demeans the intrinsic worth and
dignity of a child as a human being; (3) unreasonable deprivation of his basic needs
for survival, such as food and shelter; or (4) failure to immediately give medical
treatment to an injured child resulting in serious impairment of his growth and
development or in his permanent incapacity or death.

In conjunction with this, Section 10(a) of the same Act provides:
SECTION 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other
Conditions Prejudicial to the Child's Development. –
(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation
or to be responsible for other conditions prejudicial to the child's development
including those covered by Article 59 of Presidential Decree No. 603, as amended, but
not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision
mayor in its minimum period. (Italics supplied.)
Corollarily, Section 2 of the Rules and Regulations on the Reporting and Investigation
of Child Abuse Cases defines the term "child abuse" as the infliction of physical or
psychological injury, cruelty to, or neglect, sexual abuse or exploitation of a child. In
turn, the same Section defines "physical injury" as those that include but are not
limited to lacerations, fractured bones, burns, internal injuries, severe injury or
serious bodily harm suffered by a child.
In view of these provisions, the Court, in Araneta v. People,20 discussed the distinct
acts punishable under R.A. No. 7610, to wit:
As gleaned from the foregoing, the provision punishes not only those enumerated
under Article 59 of Presidential Decree No. 603, but also four distinct acts, i.e., (a)
child abuse, (b) child cruelty, (c) child exploitation and (d) being responsible for
conditions prejudicial to the child's development. The Rules and Regulations of the
questioned statute distinctly and separately defined child abuse, cruelty and
exploitation just to show that these three acts are different from one another and
from the act prejudicial to the child's development. Contrary to petitioner's assertion,
an accused can be prosecuted and be convicted under Section 10(a), Article VI of
Republic Act No. 7610 if he commits any of the four acts therein. The prosecution
need not prove that the acts of child abuse, child cruelty and child exploitation have
resulted in the prejudice of the child because an act prejudicial to the development of
the child is different from the former acts.
Moreover, it is a rule in statutory construction that the word "or" is a disjunctive term
signifying dissociation and independence of one thing from other things enumerated.
It should, as a rule, be construed in the sense which it ordinarily implies. Hence, the
use of "or" in Section 10(a) of Republic Act No. 7610 before the phrase "be
responsible for other conditions prejudicial to the child's development" supposes that
there are four punishable acts therein. First, the act of child abuse; second, child
cruelty; third, child exploitation; and fourth, being responsible for conditions
prejudicial to the child's development. The fourth penalized act cannot be interpreted,
as petitioner suggests, as a qualifying condition for the three other acts, because an
analysis of the entire context of the questioned provision does not warrant such
construal.21 (Italics supplied, citations omitted.)
It is, therefore, clear from the foregoing that when a child is subjected to physical
abuse or injury, the person responsible therefor can be held liable under R.A. No.
7610 by establishing the essential facts above. Here, the prosecution duly proved the
following allegations in the Information charging Patulot of child abuse: (1) the
minority of both AAA and BBB; (2) the acts committed by Patulot constituting
physical abuse against AAA and BBB; and (3) the fact that said acts are punishable
under R.A. No. 7610. In particular, it was clearly established that at the time of the
incident, AAA and BBB were merely three (3) years old and two (2) months old,
respectively; that Patulot consciously poured hot cooking oil from a casserole on CCC,
consequently injuring AAA and BBB; and that said act constitutes physical abuse
specified in Section 3(b)(1) of R.A. No. 7610.
On this score, Patulot contends that on the basis of our pronouncement in Bongalon,
she cannot be convicted of child abuse because it was not proven that she intended to
debase, degrade, or demean the intrinsic worth and dignity of AAA and BBB as human
beings. Her reliance on said ruling, however, is misplaced. In Bongalon, the
Information specifically charged George Bongalon, petitioner therein, of committing
acts which "are prejudicial to the child's development and which demean the intrinsic
worth and dignity of the said child as a human being." 22 Thus, we ruled that he can
only be held liable for slight physical injuries instead of child abuse in the absence of
proof that he intended to humiliate or "debase the 'intrinsic worth and dignity'" 23 of
the victim.
A cursory review of the Informations in the instant case, however, reveals no similar
allegation that Patulot's acts debased, degraded, or demeaned the intrinsic worth and
dignity of AAA and BBB as human beings. Instead, they charged Patulot for willfully
committing acts of child abuse on AAA and BBB "by throwing on [them] a (sic) boiling
oil, thereby inflicting upon said victim-minor physical injuries, which acts are inimical
and prejudicial to the child's normal growth and development." 24 Accordingly, the
RTC and the CA duly found that this allegation in the Informations was adequately
established by the prosecution. It bears stressing that Patulot did not even deny the
fact that she threw boiling oil on CCC which likewise fell on AAA and BBB. Clearly, her
actuations causing physical injuries on babies, who were merely three (3) years old
and two (2) months old at the time, are undeniably prejudicial to their development.
In the words of the trial court, Patulot's acts, which practically burned the skin of AAA
and BBB, left visible scars that are most likely to stay on their faces and bodies for the
rest of their lives. She cannot, therefore, be allowed to escape liability arising from her
actions.
Neither can Patulot argue that in the absence of intention on her part to harm AAA
and BBB, she cannot be convicted of child abuse because she merely intended on
committing physical injuries against CCC. Our pronouncement in Mabunot v.
People25 is squarely on point. There, petitioner Jester Mabunot accidentally shoved a
female minor child consequently fracturing her rib while he was engaged in a fistfight
with another boy. But he points out that the injury sustained by the minor victim was is a measure geared towards the implementation of a national comprehensive
unintentional. Thus, according to Mabunot, this single and unintended act of shoving program for the survival of the most vulnerable members of the population, the
the child while trading punches with another can hardly be considered as within the Filipino children, in keeping with the Constitutional mandate under Article XV,
definition of child abuse under Section 10(a) of R.A. No. 7610. Assuming, therefore, Section 3, paragraph 2, that "[t]he State shall defend the right of the children to
that he was the cause of the injury, Mabunot insists that he should only be held liable assistance, including proper care and nutrition, and special protection from all forms
for slight physical injuries under Section 265 of the RPC. The Court, however, rejected of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their
Mabunot's contention and held him liable not for slight physical injuries, but for child development."27 This piece of legislation supplies the inadequacies of existing laws
abuse. We explained: treating crimes committed against children, namely, the RPC and Presidential Decree
The petitioner also posits that since he and Dennis were exchanging punches then, he No. 603 or The Child and Youth Welfare Code. As a statute that provides for a
could not have made a deliberate design to injure Shiva. Without intent to harm Shiva, mechanism for strong deterrence against the commission of child abuse and
the petitioner insists that he deserves an acquittal. exploitation, the law has stiffer penalties for their commission, and a means by which
child traffickers could easily be prosecuted and penalized. Also, the definition of child
The foregoing argument is untenable. abuse is expanded to encompass not only those specific acts of child abuse under
existing laws but includes also "other acts of neglect, abuse, cruelty or exploitation
"When the acts complained of are inherently immoral, they are deemed mala in se,
and other conditions prejudicial to the child's development." 28
even if they are punished by a special law. Accordingly, criminal intent must be clearly
established with the other elements of the crime; otherwise, no crime is committed."
As regards the penalties imposed by the courts a quo, we find no compelling reason to
modify the same for being within the allowable range. To conform to recent
The petitioner was convicted of violation of Section 10(a), Article VI of R.A. No. 7610,
jurisprudence, however, the Court deems it proper to impose an interest of six
a special law. However, physical abuse of a child is inherently wrong, rendering
percent (6%) per annum on the actual damages in the amount of Three Thousand
material the existence of a criminal intent on the part of the offender.
Seven Hundred Two Pesos (P3,702) and moral damages in the amount of Ten
Thousand Pesos (P10,000), to be computed from the date of the finality of this
In the petitioner's case, criminal intent is not wanting. Even if the Court were to
Decision until fully paid.29
consider for argument's sake the petitioner's claim that he had no design to harm
Shiva, when he swang his arms, he was not performing a lawful act. He clearly
WHEREFORE, premises considered, the instant petition is DENIED. The assailed
intended to injure another person. However, it was not Dennis but Shiva, who ended
Decision dated July 13, 2017 and Resolution dated September 25, 2017 of the Court of
up with a fractured rib. Nonetheless, the petitioner cannot escape liability for his
Appeals in CA-G.R. CR No. 37385 are AFFIRMED with MODIFICATION that the
error. Indeed, criminal liability shall be incurred by any person committing a felony
P3,702.00 actual damages and P10,000.00 moral damages awarded in each Criminal
(delito) although the wrongful act done be different from that which he
Case No. 149971 and Criminal Case No. 149972 shall be subject to an interest of six
intended.26 (Citations omitted.)
percent (6%) per annum reckoned from the finality of this Decision until full
Similarly, in the instant case, Patulot's criminal intent is not wanting for as she payment.
expressly admitted, she intended on pouring hot cooking oil on CCC. As such, even
granting that it was not her intention to harm AAA and BBB, she was performing an SO ORDERED.
unlawful act when she threw the hot oil from her casserole on CCC. She cannot,
therefore, escape liability from the same in view of the settled doctrine mentioned
in Mabunot that a person incurs criminal liability although the wrongful act done be
different from that which he intended. As defined in the law, child abuse charged
against Patulot is physical abuse of the child, whether the same is habitual or not. To
the Court, her act of pouring hot oil on AAA and BBB falls squarely within this
definition. Thus, in view of the fact that her acts were proven to constitute child abuse
under the pertinent provisions of the law, she must be held liable therefor.

Indeed, it cannot be denied that AAA and BBB are children entitled to protection
extended by R.A. No. 7610. Time and again, the Court has stressed that R.A. No. 7610
G.R. Nos. 120744-46, June 25, 2012
SALVADOR YAPYUCO y ENRIQUEZ, Petitioner,
vs.
HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE
PHILIPPINES, Respondents.

DECISION

Law enforcers thrust their lives in unimaginable zones of peril. Yet resort to wanton
violence is never justified when their duty could be performed otherwise. A "shoot
first, think later" disposition occupies no decent place in a civilized society. Never has
homicide or murder been a function of law enforcement. The public peace is never
predicated on the cost of human life.
These are petitions for review on certiorari under Rule 45 of the Rules of Court
assailing the June 30, 1995 Decision 1 of the Sandiganbayan in Criminal Case Nos.
16612, 16613 and 16614 – cases for murder, frustrated murder and multiple counts
of attempted murder, respectively. The cases are predicated on a shooting incident on
April 5, 1988 in Barangay Quebiawan, San Fernando, Pampanga which caused the
death of Leodevince Licup (Licup) and injured Noel Villanueva (Villanueva). Accused
were petitioners Salvador Yapyuco, Jr. (Yapyuco) and Generoso Cunanan, Jr.
(Cunanan) and Ernesto Puno (Puno) who were members of the Integrated National
Police (INP)2 stationed at the Sindalan Substation in San Fernando, Pampanga; Jose
Pamintuan (Pamintuan) and Mario Reyes, who were barangay captains of Quebiawan
and Del Carmen, respectively; Ernesto Puno, Andres Reyes and Virgilio Manguerra
(Manguerra), Carlos David, Ruben Lugtu, Moises Lacson (Lacson), Renato Yu, Jaime
Pabalan (Pabalan) and Carlos David (David), who were either members of the Civil
Home Defense Force (CHDF) or civilian volunteer officers in Barangays Quebiawan,
Del Carmen and Telebastagan. They were all charged with murder, multiple
attempted murder and frustrated murder in three Informations, the inculpatory
portions of which read:
Criminal Case No. 16612:
That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando,
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, all public officers, being then policemen, Brgy. Captains, Brgy. Tanod
and members of the Civil Home Defense Force (CHDF), respectively, confederating
and mutually helping one another, and while responding to information about the
presence of armed men in said barangay and conducting surveillance thereof, thus
committing the offense in relation to their office, did then and there, with treachery
and evident premeditation, willfully, unlawfully and feloniously, and with deliberate
intent to take the life of Leodevince S. Licup, attack the latter with automatic weapons
by firing directly at the green Toyota Tamaraw jitney ridden by Leodevince S. Licup
and inflicting multiple gunshot wounds which are necessarily mortal on the different
parts of the body, thereby causing the direct and immediate death of the latter.
CONTRARY TO LAW.3
Criminal Case No. 16613:
That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando,
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, all public officers, being then policemen, Brgy. Captains, Brgy. Tanod
and members of the Civil Home Defense Force (CHDF), respectively, confederating
and mutually helping one another, and while responding to information about the
presence of armed men in said barangay and conducting surveillance thereof, thus
committing the offense in relation to their office, did then and there, with treachery
and evident premeditation, willfully, unlawfully and feloniously, and with intent to
kill, attack Eduardo S. Flores, Alejandro R. de Vera, Restituto G. Calma and Raul V.
Panlican with automatic weapons by firing directly at the green Toyota Tamaraw
jitney ridden by said Eduardo S. Flores, Alejandro R. de Vera, Restituto G. Calma and
Raul V. Panlican, having commenced the commission of murder directly by overt acts
of execution which should produce the murder by reason of some cause or accident
other than their own spontaneous desistance.
CONTRARY TO LAW.4
Criminal Case No. 16614:
That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando,
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, all public officers, being then policemen, Brgy. Captains, Brgy. Tanod
and members of the Civil Home Defense Force (CHDF), respectively, confederating
and mutually helping one another, and while responding to information about the
presence of armed men in said barangay and conducting surveillance thereof, thus
committing the offense in relation to their office, did then and there, with treachery
and evident premeditation, willfully, unlawfully and feloniously, and with intent of
taking the life of Noel C. Villanueva, attack the latter with automatic weapons by firing
directly at the green Toyota Tamaraw jitney driven by said Noel C. Villanueva and
inflicting multiple gunshot wounds which are necessarily mortal and having
performed all the acts which would have produced the crime of murder, but which did
not, by reason of causes independent of the defendants’ will, namely, the able and
timely medical assistance given to said Noel C. Villanueva, which prevented his death.
CONTRARY TO LAW.5
Hailed to court on April 30, 1991 after having voluntarily surrendered to the
authorities,6 the accused – except Pabalan who died earlier on June 12, 1990, 7 and
Yapyuco who was then allegedly indisposed8 – entered individual pleas of not
guilty.9 A month later, Yapyuco voluntarily surrendered to the authorities, and at his
arraignment likewise entered a negative plea. 10 In the meantime, Mario Reyes, Andres
Reyes, David, Lugtu, Lacson, Yu and Manguerra jointly filed a Motion for Bail relative
to Criminal Case No. 16612.11 Said motion was heard on the premise, as previously
agreed upon by both the prosecution and the defense, that these cases would be
jointly tried and that the evidence adduced at said hearing would automatically
constitute evidence at the trial on the merits. 12 On May 10, 1991, the Sandiganbayan
granted bail in Criminal Case No. 16612. 13 Yapyuco likewise applied for bail on May
15, 1991 and the same was also granted on May 21, 1991. 14 Pamintuan died on
November 21, 1992,15 and accordingly, the charges against him were dismissed.
At the July 4, 1991 pre-trial conference, the remaining accused waived the pre-trial
inquest. 16 Hence, joint trial on the merits ensued and picked up from where the
presentation of evidence left off at the hearing on the bail applications.
The prosecution established that in the evening of April 5, 1988, Villanueva, Flores,
Calma, De Vera, Panlican and Licup were at the residence of Salangsang as guests at
the barrio fiesta celebrations between 5:00 and 7:30 p.m.. The company decided to
leave at around 7:30 p.m., shortly after the religious procession had passed. As they
were all inebriated, Salangsang reminded Villanueva, who was on the wheel, to drive
carefully and watch out for potholes and open canals on the road. With Licup in the
passenger seat and the rest of his companions at the back of his Tamaraw jeepney,
Villanueva allegedly proceeded at 5-10 kph with headlights dimmed. Suddenly, as
they were approaching a curve on the road, they met a burst of gunfire and instantly,
Villanueva and Licup were both wounded and bleeding profusely. 17
Both Flores and Villanueva, contrary to what the defense would claim, allegedly did
not see any one on the road flag them down. 18 In open court, Flores executed a
sketch19 depicting the relative location of the Tamaraw jeepney on the road, the
residence of Salangsang where they had come from and the house situated on the
right side of the road right after the curve where the jeepney had taken a left turn; he
identified said house to be that of a certain Lenlen Naron where the gunmen allegedly
took post and opened fire at him and his companions. He could not tell how many
firearms were used. He recounted that after the shooting, he, unaware that Licup and
Villanueva were wounded, jumped out of the jeepney when he saw from behind them
Pamintuan emerging from the yard of Naron’s house. Frantic and shaken, he
instantaneously introduced himself and his companions to be employees of San
Miguel Corporation but instead, Pamintuan reproved them for not stopping when
flagged. At this point, he was distracted when Villanueva cried out and told him to
summon Salangsang for help as he (Villanueva) and Licup were wounded. He dashed
back to Salangsang’s house as instructed and, returning to the scene, he observed that
petitioner Yu was also there, and Villanueva and Licup were being loaded into a Sarao
jeepney to be taken to the hospital. 20 This was corroborated by Villanueva who stated
that as soon as the firing had ceased, two armed men, together with Pamintuan,
approached them and transferred him and Licup to another jeepney and taken to the
nearby St. Francis Hospital.21
Flores remembered that there were two sudden bursts of gunfire which very rapidly
succeeded each other, and that they were given no warning shot at all contrary to
what the defense would say.22 He professed that he, together with his co-passengers,
were also aboard the Sarao jeepney on its way to the hospital and inside it he
observed two men, each holding long firearms, seated beside the driver. He continued
that as soon as he and his companions had been dropped off at the hospital, the driver
of the Sarao jeepney immediately drove off together with his two armed
companions.23 He further narrated that the day after the shooting, he brought Licup to
the Makati Medical Center where the latter expired on April 7, 1988. 24 He claimed that
all the accused in the case had not been known to him prior to the incident, except for
Pamintuan whom he identified to be his wife’s uncle and with whom he denied having
had any rift nor with the other accused for that matter, which would have otherwise
inspired ill motives. 25 He claimed the bullet holes on the Tamaraw jeepney were on
the passenger side and that there were no other bullet holes at the back or in any
other portion of the vehicle.26
Salangsang, also an electrician at the San Miguel Corporation plant, affirmed the
presence of his companions at his residence on the subject date and time, and
corroborated Villanueva’s and Flores’ narration of the events immediately preceding
the shooting. He recounted that after seeing off his guests shortly after the procession
had passed his house and reminding them to proceed carefully on the pothole-
studded roads, he was alarmed when moments later, he heard a volley of gunfire from
a distance which was shortly followed by Flores’ frantic call for help. He immediately
proceeded to the scene on his bicycle and saw Pamintuan by the lamppost just outside
the gate of Naron’s house where, inside, he noticed a congregation of more or less six
people whom he could not recognize. 27 At this point, he witnessed Licup and
Villanueva being loaded into another jeepney occupied by three men who appeared to
be in uniform. He then retrieved the keys of the Tamaraw jeepney from Villanueva
and decided to deliver it to his mother’s house, but before driving off, he allegedly
caught a glance of Mario Reyes on the wheel of an owner-type jeepney idling in front
of the ill-fated Tamaraw; it was the same jeepney which he remembered to be that
frequently used by Yapyuco in patrolling the barangay. He claimed he spent the night
at his mother’s house and in the morning, a policeman came looking for him with
whom, however, he was not able to talk.28
Salangsang observed that the scene of the incident was dark because the electric post
in front of Naron’s house was strangely not lit when he arrived, and that none of the
neighboring houses was illuminated. He admitted his uncertainty as to whether it was
Yapyuco’s group or the group of Pamintuan that brought his injured companions to
the hospital, but he could tell with certainty that it was the Sarao jeepney previously
identified by Villanueva and Flores that brought his injured companions to the
hospital.29
Daisy Dabor, forensic chemist at the Philippine National Police Crime Laboratory in
Camp Olivas, affirmed that she had previously examined the firearms suspected to
have been used by petitioners in the shooting and found them positive for gunpowder
residue. She could not, however, determine exactly when the firearms were
discharged; neither could she tell how many firearms were discharged that night nor
the relative positions of the gunmen. She admitted having declined to administer
paraffin test on petitioners and on the other accused because the opportunity therefor
came only 72 hours after the incident. She affirmed having also examined the
Tamaraw jeepney and found eleven (11) bullet holes on it, most of which had
punctured the door at the passenger side of the vehicle at oblique and perpendicular
directions. She explained, rather inconclusively, that the bullets that hit at an angle
might have been fired while the jeepney was either at a standstill or moving forward
in a straight line, or gradually making a turn at the curve on the road. 30 Additionally,
Silvestre Lapitan, administrative and supply officer of the INP-Pampanga Provincial
Command tasked with the issuance of firearms and ammunitions to members of the
local police force and CHDF and CVO members, identified in court the memorandum
receipts for the firearms he had issued to Mario Reyes, Andres Reyes, Manguerra,
Pabalan and Yapyuco.31
Dr. Pedro Solis, Jr., medico-legal consultant at the Makati Medical Center, examined
the injuries of Villanueva and Licup on April 6, 1988. He recovered multiple metal
shrapnel from the occipital region of Villanueva’s head as well as from the posterior
aspect of his chest; he noted nothing serious in these wounds in that the incapacity
would last between 10 and 30 days only. He also located a bullet wound on the front
lateral portion of the right thigh, and he theorized that this wound would be caused by
a firearm discharged in front of the victim, assuming the assailant and the victim were
both standing upright on the ground and the firearm was fired from the level of the
assailant’s waist; but if the victim was seated, the position of his thigh must be
horizontal so that with the shot coming from his front, the trajectory of the bullet
would be upward. He hypothesized that if the shot would come behind Villanueva, the
bullet would enter the thigh of the seated victim and exit at a lower level. 32
With respect to Licup, Dr. Solis declared he was still alive when examined. On the
patient, he noted a lacerated wound at the right temporal region of the head – one
consistent with being hit by a hard and blunt object and not a bullet. He noted three
(3) gunshot wounds the locations of which suggested that Licup was upright when
fired upon from the front: one is a through-and-through wound in the middle lateral
aspect of the middle portion of the right leg; another, through-and-through wound at
the middle portion of the right forearm; and third one, a wound in the abdomen which
critically and fatally involved the stomach and the intestines. He hypothesized that if
Licup was seated in the passenger seat as claimed, his right leg must have been
exposed and the assailant must have been in front of him holding the gun slightly
higher than the level of the bullet entry in the leg. He found that the wound in the
abdomen had entered from the left side and crossed over to and exited at the right,
which suggested that the gunman must have been positioned at Licup’s left side. He
explained that if this wound had been inflicted ahead of that in the forearm, then the
former must have been fired after Licup had changed his position as a reaction to the
first bullet that hit him. He said that the wound on the leg must have been caused by a
bullet fired at the victim’s back and hit the jeepney at a downward angle without
hitting any hard surface prior.33
Dr. Solis believed that the wound on Licup’s right forearm must have been caused by a
bullet fired from the front but slightly obliquely to the right of the victim.
Hypothesizing, he held the improbability of Licup being hit on the abdomen,
considering that he might have changed position following the infliction of the other
wounds, unless there was more than one assailant who fired multiple shots from
either side of the Tamaraw jeepney; however, he proceeded to rule out the possibility
of Licup having changed position especially if the gunfire was delivered very rapidly.
He could not tell which of Licup’s three wounds was first inflicted, yet it could be that
the bullet to the abdomen was delivered ahead of the others because it would have
caused Licup to lean forward and stoop down with his head lying low and steady. 34
Finally, Atty. Victor Bartolome, hearing officer at the National Police Commission
(NAPOLCOM) affirmed that the accused police officers Yapyuco, Cunanan and Puno
had been administratively charged with and tried for gross misconduct as a
consequence of the subject shooting incident and that he had in fact conducted
investigations thereon sometime in 1989 and 1990 which culminated in their
dismissal from service.35 Dolly Porqueriñ o, stenographer at the NAPOLCOM, testified
that at the hearing of the administrative case, Yapyuco authenticated the report on the
shooting incident dated April 5, 1988 which he had previously prepared at his office.
This, according to her, together with the sketch showing the relative position of the
responding law enforcers and the Tamaraw jeepney at the scene of the incident, had
been forwarded to the NAPOLCOM Central Office for consideration. 36 The
Sandiganbayan, in fact, subpoenaed these documents together with the joint counter-
affidavits which had been submitted in that case by Yapyuco, Cunanan and Puno.
Of all the accused, only Yapyuco took the stand for the defense. He identified himself
as the commander of the Sindalan Police Substation in San Fernando, Pampanga and
the superior officer of petitioners Cunanan and Puno and of the accused Yu whose
jurisdiction included Barangays Quebiawan and Telebastagan. He narrated that in the
afternoon of April 5, 1988, he and his men were investigating a physical injuries case
when Yu suddenly received a summon for police assistance from David, who
supposedly was instructed by Pamintuan, concerning a reported presence of armed
NPA members in Quebiawan. Yapyuco allegedly called on their main station in San
Fernando for reinforcement but at the time no additional men could be dispatched.
Hence, he decided to respond and instructed his men to put on their uniforms and
bring their M-16 rifles with them.37
Yapyuco continued that at the place appointed, he and his group met with Pamintuan
who told him that he had earlier spotted four (4) men carrying long firearms. As if
sizing up their collective strength, Pamintuan allegedly intimated that he and
barangay captain Mario Reyes of nearby Del Carmen had also brought in a number of
armed men and that there were likewise Cafgu members convened at the residence of
Naron. Moments later, Pamintuan announced the approach of his suspects, hence
Yapyuco, Cunanan and Puno took post in the middle of the road at the curve where
the Tamaraw jeepney conveying the victims would make an inevitable turn. As the
jeepney came much closer, Pamintuan announced that it was the target vehicle, so he,
with Cunanan and Puno behind him, allegedly flagged it down and signaled for it to
stop. He claimed that instead of stopping, the jeepney accelerated and swerved to its
left. This allegedly inspired him, and his fellow police officers Cunanan and Puno, 38 to
fire warning shots but the jeepney continued pacing forward, hence they were
impelled to fire at the tires thereof and instantaneously, gunshots allegedly came
bursting from the direction of Naron’s house directly at the subject jeepney. 39
Yapyuco recalled that one of the occupants of the jeepney then alighted and exclaimed
at Pamintuan that they were San Miguel Corporation employees. Holding their fire,
Yapyuco and his men then immediately searched the vehicle but found no firearms
but instead, two injured passengers whom they loaded into his jeepney and delivered
to nearby St. Francis Hospital. From there he and his men returned to the scene
supposedly to investigate and look for the people who fired directly at the jeepney.
They found no one; the Tamaraw jeepney was likewise gone. 40
Yapyuco explained that the peace and order situation in Barangay Quebiawan at the
time was in bad shape, as in fact there were several law enforcement officers in the
area who had been ambushed supposedly by rebel elements, 41 and that he frequently
patrolled the barangay on account of reported sightings of unidentified armed men
therein.42 That night, he said, his group which responded to the scene were twelve
(12) in all, comprised of Cunanan and Puno from the Sindalan Police Substation,  43 the
team composed of Pamintuan and his men, as well as the team headed by Captain
Mario Reyes. He admitted that all of them, including himself, were armed. 44 He denied
that they had committed an ambuscade because otherwise, all the occupants of the
Tamaraw jeepney would have been killed. 45 He said that the shots which directly hit
the passenger door of the jeepney did not come from him or from his fellow police
officers but rather from Cafgu members assembled in the residence of Naron,
inasmuch as said shots were fired only when the jeepney had gone past the spot on
the road where they were assembled.46
Furthermore, Yapyuco professed that he had not communicated with any one of the
accused after the incident because he was at the time very confused; yet he did know
that his co-accused had already been investigated by the main police station in San
Fernando, but the inquiries did not include himself, Cunanan and Puno. 47 He admitted
an administrative case against him, Cunanan and Puno at the close of which they had
been ordered dismissed from service; yet on appeal, the decision was reversed and
they were exonerated. He likewise alluded to an investigation independently
conducted by their station commander, S/Supt. Rolando Cinco. 48
S/Supt Rolando Cinco, then Station Commander of the INP in San Fernando,
Pampanga acknowledged the volatility of the peace and order situation in his
jurisdiction, where members of the police force had fallen victims of ambuscade by
lawless elements. He said that he himself has actually conducted investigations on the
Pamintuan report that rebel elements had been trying to infiltrate the employment
force of San Miguel Corporation plant, and that he has accordingly conducted
"clearing operations" in sugarcane plantations in the barangay. He intimated that days
prior to the incident, Yapyuco’s team had already been alerted of the presence of NPA
members in the area. Corroborating Yapyuco’s declaration, he confessed having
investigated the shooting incident and making a report on it in which, curiously, was
supposedly attached Pamintuan’s statement referring to Flores as being "married to a
resident of Barangay Quebiawan" and found after surveillance to be "frequently
visited by NPA members." He affirmed having found that guns were indeed fired that
night and that the chief investigator was able to gather bullet shells from the scene. 49
Cunanan and Puno did not take the witness stand but adopted the testimony of
Yapyuco as well as the latter’s documentary evidence. 50 Mario Reyes, Andres Reyes,
Lugtu, Lacson, Yu and Manguera, waived their right to present evidence and
submitted their memorandum as told.51
The Sandiganbayan reduced the basic issue to whether the accused had acted in the
regular and lawful performance of their duties in the maintenance of peace and order
either as barangay officials and as members of the police and the CHDF, and hence,
could take shelter in the justifying circumstance provided in Article 11 (5) of the
Revised Penal Code; or whether they had deliberately ambushed the victims with the
intent of killing them.52 With the evidence in hand, it found Yapyuco, Cunanan, Puno,
Manguera and Mario and Andres Reyes guilty as co-principals in the separate offense
of homicide for the eventual death of Licup (instead of murder as charged in Criminal
Case No. 16612) and of attempted homicide for the injury sustained by Villanueva
(instead of frustrated murder as charged in Criminal Case No. 16614), and acquitted
the rest in those cases. It acquitted all of them of attempted murder charged in
Criminal Case No. 16613 in respect of Flores, Panlican, De Vera and Calma. The
dispositive portion of the June 30, 1995 Joint Decision reads:
WHEREFORE, judgment is hereby rendered as follows:
I. In Crim. Case No. 16612, accused Salvador Yapyuco y Enriquez, Generoso
Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Andres
Reyes y Salangsang and Virgilio Manguerra y Adona are hereby found GUILTY
beyond reasonable doubt as co-principals in the offense of Homicide, as
defined and penalized under Article 249 of the Revised Penal Code, and
crediting all of them with the mitigating circumstance of voluntary surrender,
without any aggravating circumstance present or proven, each of said
 accused is hereby sentenced to suffer an indeterminate penalty ranging from
SIX (6) YEARS and ONE (1) DAY of prision correccional, as the minimum, to
TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal, as the
maximum; to indemnify, jointly and severally, the heirs of the deceased
victim Leodevince Licup in the amounts of ₱77,000.00 as actual damages and
₱600,000.00 as moral/exemplary damages, and to pay their proportionate
shares of the costs of said action.
II. In Crim. Case No. 16613, for insufficiency of evidence, all the accused
charged in the information, namely, Salvador Yapyuco y Enriquez, Generoso
Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Carlos
David y Bañ ez, Ruben Lugtu y Lacson, Moises Lacson y Adona, Renato Yu y
Barrera, Andres Reyes y Salangsang and Virgilio Manguerra y Adona are
hereby acquitted of the offense of Multiple Attempted Murder charged
therein, with costs de oficio.
III. In Crim. Case No. 16614, accused Salvador Yapyuco y Enriquez, Generoso
Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Andres
Reyes y Salangsang and Virgilio Manguerra y Adona are hereby found GUILTY
beyond reasonable doubt as co-principals in the offense Attempted Homicide,
as defined and penalized under Article 249, in relation to Article 6, paragraph
3, both of the Revised Penal Code, and crediting them with the mitigating
circumstance of voluntary surrender, without any aggravating circumstance
present or proven, each of said accused is hereby sentenced to suffer an
indeterminate penalty ranging from SIX (6) MONTHS and ONE (1) DAY
of prision correccional as the minimum, to SIX (6) YEARS and ONE (1) DAY
of prision mayor as the maximum; to indemnify, jointly and severally, the
offended party Noel Villanueva in the amount of ₱51,700.00 as actual and
compensatory damages, plus ₱120,000.00 as moral/exemplary damages, and
to pay their proportionate share of the costs of said action.
SO ORDERED.53
The Sandiganbayan declared that the shootout which caused injuries to Villanueva
and which brought the eventual death of Licup has been committed by petitioners
herein willfully under the guise of maintaining peace and order; 54 that the acts
performed by them preparatory to the shooting, which ensured the execution of their
evil plan without risk to themselves, demonstrate a clear intent to kill the occupants
of the subject vehicle; that the fact they had by collective action deliberately and
consciously intended to inflict harm and injury and had voluntarily performed those
acts negates their defense of lawful performance of official duty; 55 that the theory of
mistaken belief could not likewise benefit petitioners because there was supposedly
no showing that they had sufficient basis or probable cause to rely fully on
Pamintuan’s report that the victims were armed NPA members, and they have not
been able by evidence to preclude ulterior motives or gross inexcusable negligence
when they acted as they did; 56 that there was insufficient or total absence of factual
basis to assume that the occupants of the jeepney were members of the NPA or
criminals for that matter; and that the shooting incident could not have been the
product of a well-planned and well-coordinated police operation but was the result of
either a hidden agenda concocted by Barangay Captains Mario Reyes and Pamintuan,
or a hasty and amateurish attempt to gain commendation. 57
These findings obtain context principally from the open court statements of
prosecution witnesses Villanueva, Flores and Salangsang, particularly on the
circumstances prior to the subject incident. The Sandiganbayan pointed out that the
Tamaraw jeepney would have indeed stopped if it had truly been flagged down as
claimed by Yapyuco especially since – as it turned out after the search of the vehicle –
they had no firearms with them, and hence, they had nothing to be scared of. 58 It
observed that while Salangsang and Flores had been bona fide residents of Barangay
Quebiawan, then it would be impossible for Pamintuan, barangay captain no less, not
to have known them and the location of their houses which were not far from the
scene of the incident; so much so that the presence of the victims and of the Tamaraw
jeepney in Salangsang’s house that evening could not have possibly escaped his
notice. In this regard, it noted that Pamintuan’s Sworn Statement dated April 11, 1988
did not sufficiently explain his suspicions as to the identities of the victims as well as
his apparent certainty on the identity and whereabouts of the subject Tamaraw
jeepney. 59 It surmised how the defense, especially Yapyuco in his testimony, could
have failed to explain why a large group of armed men – which allegedly included
Cafgu members from neighboring barangays – were assembled at the house of Naron
that night, and how petitioners were able to identify the Tamaraw jeepney to be the
target vehicle. From this, it inferred that petitioners had already known that their
suspect vehicle would be coming from the direction of Salangsang’s house – such
knowledge is supposedly evident first, in the manner by which they advantageously
positioned themselves at the scene to afford a direct line of fire at the target vehicle,
and second, in the fact that the house of Naron, the neighboring houses and the
electric post referred to by prosecution witnesses were deliberately not lit that
night.60
The Sandiganbayan also drew information from Flores’ sketch depicting the position
of the Tamaraw jeepney and the assailants on the road, and concluded that judging by
the bullet holes on the right side of the jeepney and by the declarations of Dr. Solis
respecting the trajectory of the bullets that hit Villanueva and Licup, the assailants
were inside the yard of Naron’s residence and the shots were fired at the jeepney
while it was slowly moving past them. It also gave weight to the testimony and the
report of Dabor telling that the service firearms of petitioners had been tested and
found to be positive of gunpowder residue, therefore indicating that they had indeed
been discharged.61
The Sandiganbayan summed up what it found to be overwhelming circumstantial
evidence pointing to the culpability of petitioners: the nature and location of the
bullet holes on the jeepney and the gunshot wounds on the victims, as well as the
trajectory of the bullets that caused such damage and injuries; particularly, the
number, location and trajectory of the bullets that hit the front passenger side of the
jeepney; the strategic placement of the accused on the right side of the street and
inside the front yard of Naron’s house; the deliberate shutting off of the lights in the
nearby houses and the lamp post; and the positive ballistic findings on the firearms of
petitioners. 62
This evidentiary resumé, according to the Sandiganbayan, not only fortified
petitioners’ admission that they did discharge their firearms, but also provided a
predicate to its conclusion that petitioners conspired with one another to achieve a
common purpose, design and objective to harm the unarmed and innocent victims.
Thus, since there was no conclusive proof of who among the several accused had
actually fired the gunshots that injured Villanueva and fatally wounded Licup, the
Sandiganbayan imposed collective responsibility on all those who were shown to
have discharged their firearms that night – petitioners herein. 63 Interestingly, it was
speculated that the manner by which the accused collectively and individually acted
prior or subsequent to or contemporaneously with the shooting indicated that they
were either drunk or that some, if not all of them, had a grudge against the employees
of San Miguel Corporation; 64 and that on the basis of the self-serving evidence
adduced by the defense, there could possibly have been a massive cover-up of the
incident by Philippine Constabulary and INP authorities in Pampanga as well as by the
NAPOLCOM.65 It likewise found very consequential the fact that the other accused had
chosen not to take the witness stand; this, supposedly because it was incumbent upon
them to individually explain their participation in the shooting in view of the weight
of the prosecution evidence, their invocation of the justifying circumstance of lawful
performance of official duty and the declaration of some of them in their affidavits to
the effect that they had been deployed that evening in the front yard of Naron’s
residence from which the volley of gunfire was discharged as admitted by Yapyuco
himself.66
As to the nature of the offenses committed, the Sandiganbayan found that the
qualifying circumstance of treachery has not been proved because first, it was
supposedly not shown how the aggression commenced and how the acts causing
injury to Villanueva and fatally injuring Licup began and developed, and second, this
circumstance must be supported by proof of a deliberate and conscious adoption of
the mode of attack and cannot be drawn from mere suppositions or from
circumstances immediately preceding the aggression. The same finding holds true for
evident premeditation because between the time Yapyuco received the summons for
assistance from Pamintuan through David and the time he and his men responded at
the scene, there was found to be no sufficient time to allow for the materialization of
all the elements of that circumstance.67
Finally as to damages, Villanueva had testified that his injury required leave from
work for 60 days which were all charged against his accumulated leave credits; 68 that
he was earning ₱8,350.00 monthly; 69 and that he had spent ₱35,000.00 for the repair
of his Tamaraw jeepney.70 Also, Teodoro Licup had stated that his family had spent
₱18,000.00 for the funeral of his son, ₱28,000.00 during the wake, ₱11,000.00 for the
funeral plot and ₱20,000.00 in attorney’s fees for the prosecution of these cases. 71 He
also submitted a certification from San Miguel Corporation reflecting the income of
his deceased son.72 On these bases, the Sandiganbayan ordered petitioners, jointly and
severally, to indemnify (a) Villanueva ₱51,700.00 as actual and compensatory
damages and ₱120,000.00 as moral/exemplary damages, plus the proportionate costs
of the action, and (b) the heirs of deceased Licup in the amount of ₱77,000.00 as
actual damages and ₱600,000.00 as moral/exemplary damages, plus the
proportionate costs of the action.
Petitioners’ motion for reconsideration was denied; hence, the present recourse.
In G.R. Nos. 120744-46, Yapyuco disputes the Sandiganbayan’s finding of conspiracy
and labels the same to be conjectural. He points out that the court a quo has not
clearly established that he had by positive acts intended to participate in any criminal
object in common with the other accused, and that his participation in a supposed
common criminal object has not been proved beyond reasonable doubt. He believes
the finding is belied by Flores and Villanueva, who saw him at the scene only after the
shooting incident when the wounded passengers were taken to the hospital on his
jeepney.73 He also points out the uncertainty in the Sandiganbayan’s declaration that
the incident could not have been the product of a well-planned police operation, but
rather was the result of either a hidden agenda concocted against the victims by the
barangay officials involved or an amateurish attempt on their part to earn
commendation. He theorizes that, if it were the latter alternative, then he could hardly
be found guilty of homicide or frustrated homicide but rather of reckless imprudence
resulting in homicide and frustrated homicide. 74 He laments that, assuming arguendo
that the injuries sustained by the victims were caused by his warning shots, he must
nevertheless be exonerated because he responded to the scene of the incident as a
bona fide member of the police force and, hence, his presence at the scene of the
incident was in line with the fulfillment of his duty as he was in fact in the lawful
performance thereof – a fact which has been affirmed by the NAPOLCOM en banc
when it dismissed on appeal the complaint for gross misconduct against him, Cunanan
and Puno.75 He also invokes the concept of mistake of fact and attributes to Pamintuan
the responsibility why he, as well as the other accused in these cases, had entertained
the belief that the suspects were armed rebel elements. 76
In G.R. No. 122677, petitioners Manguerra, Mario Reyes and Andres Reyes claim that
the Sandiganbayan has not proved their guilt beyond reasonable doubt, and the
assailed decision was based on acts the evidence for which has been adduced at a
separate trial but erroneously attributed to them. They explain that there were two
sets of accused, in the case: one, the police officers comprised of Yapyuco, Cunanan
and Puno and, two, the barangay officials and CHDFs comprised of David, Lugtu,
Lacson, Yu and themselves who had waived the presentation of evidence. They
question their conviction of the charges vis-a-vis the acquittal of David, Lugtu, Lacson
and Yu who, like them, were barangay officials and had waived their right to present
evidence in their behalf. They emphasize in this regard that all accused barangay
officials and CHDFs did not participate in the presentation of the evidence by the
accused police officers and, hence, the finding that they too had fired upon the
Tamaraw jeepney is hardly based on an established fact. 77 Also, they believe that the
findings of fact by the Sandiganbayan were based on inadmissible evidence,
specifically on evidence rejected by the court itself and those presented in a separate
trial. They label the assailed decision to be speculative, conjectural and suspicious
and, hence, antithetical to the quantum of evidence required in a criminal
prosecution.78 Finally, they lament that the finding of conspiracy has no basis in
evidence and that the prosecution has not even shown that they were with the other
accused at the scene of the incident or that they were among those who fired at the
victims, and neither were they identified as among the perpetrators of the crime. 79
In G.R. No. 122776, Cunanan and Puno likewise dispute the finding of conspiracy.
They claim that judging by the uncertainty in the conclusion of the Sandiganbayan as
to whether the incident was the result of a legitimate police operation or a careless
plot designed by the accused to obtain commendation, conspiracy has not been
proved beyond reasonable doubt. This, because they believe the prosecution has not,
as far as both of them are concerned, shown that they had ever been part of such
malicious design to commit an ambuscade as that alluded to in the assailed decision.
They advance that as police officers, they merely followed orders from their
commander, Yapyuco, but were not privy to the conversation among the latter, David
and Pamintuan, moments before the shooting. They posit they could hardly be
assumed to have had community of criminal design with the rest of the
accused.80 They affirm Yapyuco’s statement that they fired warning shots at the
subject jeepney,81 but only after it had passed the place where they were posted and
only after it failed to stop when flagged down as it then became apparent that it was
going to speed away – as supposedly shown by bullet holes on the chassis and not on
the rear portion of the jeepney. They also harp on the absence of proof of ill motives
that would have otherwise urged them to commit the crimes charged, especially since
none of the victims had been personally or even remotely known to either of them.
That they were not intending to commit a crime is, they believe, shown by the fact
that they did not directly aim their rifles at the passengers of the jeepney and that in
fact, they immediately held their fire when Flores identified themselves as employees
of San Miguel Corporation. They conceded that if killing was their intent, then they
could have easily fired at the victims directly. 82
Commenting on these petitions, the Office of the Special Prosecutor stands by the
finding of conspiracy as established by the fact that all accused, some of them armed,
had assembled themselves and awaited the suspect vehicle as though having
previously known that it would be coming from Salangsang’s residence. It posits that
the manner by which the jeepney was fired upon demonstrates a community of
purpose and design to commit the crimes charged. 83 It believes that criminal intent is
discernible from the posts the accused had chosen to take on the road that would give
them a direct line of fire at the target – as shown by the trajectories of the bullets that
hit the Tamaraw jeepney.84 This intent was supposedly realized when after the volley
of gunfire, both Flores and Licup were wounded and the latter died as a supervening
consequence.85 It refutes the invocation of lawful performance of duty, mainly because
there was no factual basis to support the belief of the accused that the occupants were
members of the NPA, as indeed they have not shown that they had previously verified
the whereabouts of the suspect vehicle. But while it recognizes that the accused had
merely responded to the call of duty when summoned by Pamintuan through David, it
is convinced that they had exceeded the performance thereof when they fired upon
the Tamaraw jeepney occupied, as it turned out, by innocent individuals instead. 86
As to the contention of Mario Reyes, Andres Reyes and Manguerra that the evidence
adduced before the Sandiganbayan as well the findings based thereon should not be
binding on them, the OSP explains that said petitioners, together with Pamintuan,
David, Lugtu, Lacson and Yu, had previously withdrawn their motion for separate trial
and as directed later on submitted the case for decision as to them with the filing of
their memorandum. It asserts there was no denial of due process to said petitioners in
view of their agreement for the reproduction of the evidence on the motion for bail at
the trial proper as well as by their manifestation to forego with the presentation of
their own evidence. The right to present witnesses is waivable. Also, where an
accused is jointly tried and testifies in court, the testimony binds the other accused,
especially where the latter has failed to register his objection thereto. 87
The decision on review apparently is laden with conclusions and inferences that seem
to rest on loose predicates. Yet we have pored over the records of the case and found
that evidence nonetheless exists to support the penultimate finding of guilt beyond
reasonable doubt.
I.
It is as much undisputed as it is borne by the records that petitioners were at the situs
of the incident on the date and time alleged in the Informations. Yapyuco, in his
testimony – which was adopted by Cunanan and Puno – as well as Manguerra, Mario
Reyes and Andres Reyes in their affidavits which had been offered in evidence by the
prosecution,88 explained that their presence at the scene was in response to the
information relayed by Pamintuan through David that armed rebel elements on board
a vehicle described to be that occupied by the victims were reportedly spotted in
Barangay Quebiawan. It is on the basis of this suspicion that petitioners now appeal to
justification under Article 11 (5) of the Revised Penal Code and under the concept of
mistake of fact. Petitioners admit that it was not by accident or mistake but by
deliberation that the shooting transpired when it became apparent that the suspect
vehicle was attempting to flee, yet contention arises as to whether or not there was
intention to harm or even kill the passengers aboard, and who among them had
discharged the bullets that caused the eventual death of Licup and injured Villanueva.
The first duty of the prosecution is not to present the crime but to identify the
criminal.89 To this end, the prosecution in these cases offered in evidence the joint
counter-affidavit90 of Andres Reyes and Manguerra; the counter-affidavit 91 of Mario
Reyes; the joint counter-affidavit 92 of Cunanan and Puno; the counter-affidavit 93 of
Yapyuco; and the joint counter-affidavit 94 of Yapyuco, Cunanan and Puno executed
immediately after the incident in question. In brief, Cunanan and Puno stated therein
that "[their] team was forced to fire at the said vehicle" when it accelerated after
warning shots were fired in air and when it ignored Yapyuco’s signal for it to stop; 95 in
their earlier affidavit they, together with Yapyuco, declared that they were
"constrained x x x to fire directly to (sic) the said fleeing vehicle." 96 Yapyuco’s open
court declaration, which was adopted by Cunanan and Puno, is that he twice
discharged his firearm: first, to give warning to the subject jeepney after it allegedly
failed to stop when flagged down and second, at the tires thereof when it came clear
that it was trying to escape. 97 He suggested – substantiating the implication in his
affidavit that it was "the whole team [which fired] at the fleeing vehicle" 98 – that the
bullets which hit the passenger side of the ill-fated jeepney could have come only from
the CHDFs posted inside the yard of Naron where Manguerra, Mario Reyes and
Andres Reyes admitted having taken post while awaiting the arrival of the suspect
vehicle.99
Mario Reyes and Andres Reyes, relying on their affidavits, declared that it was only
Manguerra from their group who discharged a firearm but only into the air to give
warning shots,100 and that it was the "policemen [who] directly fired upon" the
jeepney.101 Manguerra himself shared this statement. 102 Yet these accounts do not sit
well with the physical evidence found in the bullet holes on the passenger door of the
jeepney which Dabor, in both her report and testimony, described to have come from
bullets sprayed from perpendicular and oblique directions. This evidence in fact
supports Yapyuco’s claim that he, Cunanan and Puno did fire directly at the jeepney
after it had made a right turn and had already moved past them such that the line of
fire to the passengers thereof would be at an oblique angle from behind. It also
bolsters his claim that, almost simultaneously, gunshots came bursting after the
jeepney has passed the spot where he, Cunanan and Puno had taken post, and when
the vehicle was already right in front of the yard of Naron’s house sitting on the right
side of the road after the curve and where Manguerra, Mario Reyes and Andres Reyes
were positioned, such that the line of fire would be direct and perpendicular to it. 103
While Dabor’s ballistics findings are open to challenge for being inconclusive as to
who among the accused actually discharged their firearms that night, her report
pertaining to the examination of the ill-fated Tamaraw jeepney affirms the irreducible
fact that the CHDFs posted within the yard of Naron’s house had indeed sprayed
bullets at the said vehicle. Manguerra, Mario Reyes and Andres Reyes seek to insulate
themselves by arguing that such finding cannot be applied to them as it is evidence
adduced in a separate trial. But as the OSP noted, they may not evade the effect of
their having withdrawn their motion for separate trial, their agreement to a joint trial
of the cases, and the binding effect on them of the testimony of their co-accused,
Yapyuco.104
Indeed, the extrajudicial confession or admission of one accused is admissible only
against said accused, but is inadmissible against the other accused. But if the
declarant or admitter repeats in court his extrajudicial admission, as Yapyuco did in
this case, during the trial and the other accused is accorded the opportunity to cross-
examine the admitter, the admission is admissible against both accused because then,
it is transposed into a judicial admission. 105 It is thus perplexing why, despite the
extrajudicial statements of Cunanan, Puno and Yapyuco, as well as the latter’s
testimony implicating them in the incident, they still had chosen to waive their right
to present evidence when, in fact, they could have shown detailed proof of their
participation or non-participation in the offenses charged. We, therefore, reject their
claim that they had been denied due process in this regard, as they opted not to testify
and be cross-examined by the prosecution as to the truthfulness in their affidavits
and, accordingly, disprove the inculpatory admissions of their co-accused.
II.
The availability of the justifying circumstance of fulfillment of duty or lawful exercise
of a right or office under Article 11 (5) of the Revised Penal Code rests on proof that
(a) the accused acted in the performance of his duty or in the lawful exercise of his
right or office, and (b) the injury caused or the offense committed is the necessary
consequence of the due performance of such duty or the lawful exercise of such right
or office.106 The justification is based on the complete absence of intent and negligence
on the part of the accused, inasmuch as guilt of a felony connotes that it was
committed with criminal intent or with fault or negligence. 107 Where invoked, this
ground for non-liability amounts to an acknowledgment that the accused has caused
the injury or has committed the offense charged for which, however, he may not be
penalized because the resulting injury or offense is a necessary consequence of the
due performance of his duty or the lawful exercise of his right or office. Thus, it must
be shown that the acts of the accused relative to the crime charged were indeed
lawfully or duly performed; the burden necessarily shifts on him to prove such
hypothesis.
We find that the requisites for justification under Article 11 (5) of the Revised Penal
Code do not obtain in this case.
The undisputed presence of all the accused at the situs of the incident is a legitimate
law enforcement operation. No objection is strong enough to defeat the claim that all
of them – who were either police and barangay officers or CHDF members tasked with
the maintenance of peace and order – were bound to, as they did, respond to
information of a suspected rebel infiltration in the locality. Theirs, therefore, is the
specific duty to identify the occupants of their suspect vehicle and search for firearms
inside it to validate the information they had received; they may even effect a
bloodless arrest should they find cause to believe that their suspects had just
committed, were committing or were bound to commit a crime. While, it may
certainly be argued that rebellion is a continuing offense, it is interesting that nothing
in the evidence suggests that the accused were acting under an official order to open
fire at or kill the suspects under any and all circumstances. Even more telling is the
absence of reference to the victims having launched such aggression as would
threaten the safety of any one of the accused, or having exhibited such defiance of
authority that would have instigated the accused, particularly those armed, to embark
on a violent attack with their firearms in self-defense. In fact, no material evidence
was presented at the trial to show that the accused were placed in real mortal danger
in the presence of the victims, except maybe their bare suspicion that the suspects
were armed and were probably prepared to conduct hostilities.
But whether or not the passengers of the subject jeepney were NPA members and
whether or not they were at the time armed, are immaterial in the present inquiry
inasmuch as they do not stand as accused in the prosecution at hand. Besides, even
assuming that they were as the accused believed them to be, the actuations of these
responding law enforcers must inevitably be ranged against reasonable expectations
that arise in the legitimate course of performance of policing duties. The rules of
engagement, of which every law enforcer must be thoroughly knowledgeable and for
which he must always exercise the highest caution, do not require that he should
immediately draw or fire his weapon if the person to be accosted does not heed his
call. Pursuit without danger should be his next move, and not vengeance for personal
feelings or a damaged pride. Police work requires nothing more than the lawful
apprehension of suspects, since the completion of the process pertains to other
government officers or agencies.108
A law enforcer in the performance of duty is justified in using such force as is
reasonably necessary to secure and detain the offender, overcome his resistance,
prevent his escape, recapture him if he escapes, and protect himself from bodily
harm.109 United States v. Campo110 has laid down the rule that in the performance of
his duty, an agent of the authorities is not authorized to use force, except in an
extreme case when he is attacked or is the subject of resistance, and finds no other
means to comply with his duty or cause himself to be respected and obeyed by the
offender. In case injury or death results from the exercise of such force, the same
could be justified in inflicting the injury or causing the death of the offender if the
officer had used necessary force. 111 He is, however, never justified in using
unnecessary force or in treating the offender with wanton violence, or in resorting to
dangerous means when the arrest could be effected otherwise. 112 People v.
Ulep113 teaches that –
The right to kill an offender is not absolute, and may be used only as a last resort, and
under circumstances indicating that the offender cannot otherwise be taken without
bloodshed. The law does not clothe police officers with authority to arbitrarily judge
the necessity to kill. It may be true that police officers sometimes find themselves in a
dilemma when pressured by a situation where an immediate and decisive, but legal,
action is needed. However, it must be stressed that the judgment and discretion of
police officers in the performance of their duties must be exercised neither
capriciously nor oppressively, but within reasonable limits. In the absence of a clear
and legal provision to the contrary, they must act in conformity with the dictates of a
sound discretion, and within the spirit and purpose of the law. We cannot
countenance trigger-happy law enforcement officers who indiscriminately employ
force and violence upon the persons they are apprehending. They must always bear in
mind that although they are dealing with criminal elements against whom society
must be protected, these criminals are also human beings with human rights. 114
Thus, in People v. Tabag,115 where members of the Davao CHDF had killed four
members of a family in their home because of suspicions that they were NPA
members, and the accused sought exoneration by invoking among others the
justifying circumstance in Article 11 (5) of the Revised Penal Code, the Court in
dismissing the claim and holding them liable for murder said, thus:
In no way can Sarenas claim the privileges under paragraphs 5 and 6, Article 11 of the
Revised Penal Code, for the massacre of the Magdasals can by no means be considered
as done in the fulfillment of a duty or in the lawful exercise of an office or in obedience
to an order issued by a superior for some lawful purpose. Other than "suspicion,"
there is no evidence that Welbino Magdasal, Sr., his wife Wendelyn, and their children
were members of the NPA. And even if they were members of the NPA, they were
entitled to due process of law. On that fateful night, they were peacefully resting in
their humble home expecting for the dawn of another uncertain day. Clearly,
therefore, nothing justified the sudden and unprovoked attack, at nighttime, on the
Magdasals. The massacre was nothing but a merciless vigilante-style execution. 116
Petitioners rationalize their election to aim their fire directly at the jeepney by
claiming that it failed to heed the first round of warning shots as well as the signal for
it to stop and instead tried to flee. While it is possible that the jeepney had been
flagged down but because it was pacing the dark road with its headlights dimmed
missed petitioners’ signal to stop, and compound to it the admitted fact that the
passengers thereof were drunk from the party they had just been to, 117 still, we find
incomprehensible petitioners’ quick resolve to use their firearms when in fact there
was at least one other vehicle at the scene – the Sarao jeepney owned by Yapyuco –
which they could actually have used to pursue their suspects whom they supposedly
perceived to be in flight.
Lawlessness is to be dealt with according to the law. Only absolute necessity justifies
the use of force, and it is incumbent on herein petitioners to prove such necessity. We
find, however, that petitioners failed in that respect. Although the employment of
powerful firearms does not necessarily connote unnecessary force, petitioners in this
case do not seem to have been confronted with the rational necessity to open fire at
the moving jeepney occupied by the victims. No explanation is offered why they, in
that instant, were inclined for a violent attack at their suspects except perhaps their
over-anxiety or impatience or simply their careless disposition to take no chances.
Clearly, they exceeded the fulfillment of police duties the moment they actualized
such resolve, thereby inflicting Licup with a mortal bullet wound, causing injury to
Villanueva and exposing the rest of the passengers of the jeepney to grave danger to
life and limb – all of which could not have been the necessary consequence of the
fulfillment of their duties.
III.
At this juncture, we find that the invocation of the concept of mistake of fact faces
certain failure. In the context of criminal law, a "mistake of fact" is a misapprehension
of a fact which, if true, would have justified the act or omission which is the subject of
the prosecution.118 Generally, a reasonable mistake of fact is a defense to a charge of
crime where it negates the intent component of the crime. 119 It may be a defense even
if the offense charged requires proof of only general intent. 120 The inquiry is into the
mistaken belief of the defendant,121 and it does not look at all to the belief or state of
mind of any other person. 122 A proper invocation of this defense requires (a) that the
mistake be honest and reasonable; 123 (b) that it be a matter of fact; 124 and (c) that it
negate the culpability required to commit the crime 125 or the existence of the mental
state which the statute prescribes with respect to an element of the offense. 126
The leading authority in mistake of fact as ground for non-liability is found in United
States v. Ah Chong,127 but in that setting, the principle was treated as a function of self-
defense where the physical circumstances of the case had mentally manifested to the
accused an aggression which it was his instinct to repel. There, the accused, fearful of
bad elements, was woken by the sound of his bedroom door being broken open and,
receiving no response from the intruder after having demanded identification,
believed that a robber had broken in. He threatened to kill the intruder but at that
moment he was struck by a chair which he had placed against the door and,
perceiving that he was under attack, seized a knife and fatally stabbed the intruder
who turned out to be his roommate. Charged with homicide, he was acquitted because
of his honest mistake of fact. Finding that the accused had no evil intent to commit the
charge, the Court explained:
x x x The maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact
is, in all cases of supposed offense, a sufficient excuse").
Since evil intent is in general an inseparable element in every crime, any such mistake
of fact as shows the act committed to have proceeded from no sort of evil in the mind
necessarily relieves the actor from criminal liability, provided always there is no fault
or negligence on his part and as laid down by Baron Parke, "The guilt of the accused
must depend on the circumstances as they appear to him." x x x
If, in language not uncommon in the cases, one has reasonable cause to believe the
existence of facts which will justify a killing — or, in terms more nicely in accord with
the principles on which the rule is founded, if without fault or carelessness he does
not believe them — he is legally guiltless of homicide; though he mistook the facts,
and so the life of an innocent person is unfortunately extinguished. In other words,
and with reference to the right of self-defense and the not quite harmonious
authorities, it is the doctrine of reason, and sufficiently sustained in adjudication, that
notwithstanding some decisions apparently adverse, whenever a man undertakes
self-defense, he is justified in acting on the facts as they appear to him. If, without fault
or carelessness, he is misled concerning them, and defends himself correctly
according to what he thus supposes the facts to be, the law will not punish him though
they are in truth otherwise, and he has really no occasion for the extreme measure. x x
x 128
Besides, as held in People v. Oanis 129 and Baxinela v. People,130 the justification of an
act, which is otherwise criminal on the basis of a mistake of fact, must preclude
negligence or bad faith on the part of the accused. 131 Thus, Ah Chong further explained
that –
The question then squarely presents itself, whether in this jurisdiction one can be
held criminally responsible who, by reason of a mistake as to the facts, does an act for
which he would be exempt from criminal liability if the facts were as he supposed
them to be, but which would constitute the crime of homicide or assassination if the
actor had known the true state of the facts at the time when he committed the act. To
this question we think there can be but one answer, and we hold that under such
circumstances there is no criminal liability, provided always that the alleged
ignorance or mistake of fact was not due to negligence or bad faith. 132
IV.
This brings us to whether the guilt of petitioners for homicide and frustrated
homicide has been established beyond cavil of doubt. The precept in all criminal cases
is that the prosecution is bound by the invariable requisite of establishing the guilt of
the accused beyond reasonable doubt. The prosecution must rely on the strength of
its own evidence and not on the evidence of the accused. The weakness of the defense
of the accused does not relieve the prosecution of its responsibility of proving guilt
beyond reasonable doubt.133 By reasonable doubt is meant that doubt engendered by
an investigation of the whole proof and an inability, after such investigation, to let the
mind rest easy upon the certainty of guilt. 134 The overriding consideration is not
whether the court doubts the innocence of the accused, but whether it entertains
reasonable doubt as to his guilt.135
The prosecution is burdened to prove corpus delicti beyond reasonable doubt either
by direct evidence or by circumstantial or presumptive evidence. 136 Corpus delicti
consists of two things: first, the criminal act and second, defendant's agency in the
commission of the act.137 In homicide (by dolo) as well as in murder cases, the
prosecution must prove: (a) the death of the party alleged to be dead; (b) that the
death was produced by the criminal act of some other than the deceased and was not
the result of accident, natural cause or suicide; and (c) that defendant committed the
criminal act or was in some way criminally responsible for the act which produced the
death. In other words, proof of homicide or murder requires incontrovertible
evidence, direct or circumstantial, that the victim was deliberately killed (with
malice), that is, with intent to kill. Such evidence may consist in the use of weapons by
the malefactors, the nature, location and number of wounds sustained by the victim
and the words uttered by the malefactors before, at the time or immediately after the
killing of the victim. If the victim dies because of a deliberate act of the malefactors,
intent to kill is conclusively presumed. 138 In such case, even if there is no intent to kill,
the crime is homicide because with respect to crimes of personal violence, the penal
law looks particularly to the material results following the unlawful act and holds the
aggressor responsible for all the consequences thereof. 139 Evidence of intent to kill is
crucial only to a finding of frustrated and attempted homicide, as the same is an
essential element of these offenses, and thus must be proved with the same degree of
certainty as that required of the other elements of said offenses. 140
The records disclose no ill motives attributed to petitioners by the prosecution. It is
interesting that, in negating the allegation that they had by their acts intended to kill
the occupants of the jeepney, petitioners turn to their co-accused Pamintuan, whose
picture depicted in the defense evidence is certainly an ugly one: petitioners’
affidavits as well as Yapyuco’s testimony are replete with suggestions that it was
Pamintuan alone who harbored the motive to ambush the suspects as it was he who
their (petitioners’) minds that which they later on conceded to be a mistaken belief as
to the identity of the suspects. Cinco, for one, stated in court that Pamintuan had once
reported to him that Flores, a relative of his (Pamintuan), was frequently meeting
with NPA members and that the San Miguel Corporation plant where the victims were
employed was being penetrated by NPA members. He also affirmed Yapyuco’s claim
that there had been a number of ambuscades launched against members of law
enforcement in Quebiawan and in the neighboring areas supposedly by NPA members
at around the time of the incident. But as the Sandiganbayan pointed out, it is
unfortunate that Pamintuan had died during the pendency of these cases even before
his opportunity to testify in court emerged.141
Yet whether such claims suffice to demonstrate ill motives evades relevance and
materiality. Motive is generally held to be immaterial inasmuch as it is not an element
of a crime. It gains significance when the commission of a crime is established by
evidence purely circumstantial or otherwise inconclusive. 142 The question of motive is
important in cases where there is doubt as to whether the defendant is or is not the
person who committed the act, but when there is no doubt that the defendant was the
one who caused the death of the deceased, it is not so important to know the reason
for the deed.143
In the instant case, petitioners, without abandoning their claim that they did not
intend to kill anyone of the victims, admit having willfully discharged their service
firearms; and the manner by which the bullets concentrated on the passenger side of
the jeepney permits no other conclusion than that the shots were intended for the
persons lying along the line of fire. We do not doubt that instances abound where the
discharge of a firearm at another is not in itself sufficient to sustain a finding of
intention to kill, and that there are instances where the attendant circumstances
conclusively establish that the discharge was not in fact animated by intent to kill. Yet
the rule is that in ascertaining the intention with which a specific act is committed, it
is always proper and necessary to look not merely to the act itself but to all the
attendant circumstances so far as they develop in the evidence. 144
The firearms used by petitioners were either M16 rifle, .30 caliber garand rifle and .30
caliber carbine.145 While the use of these weapons does not always amount to
unnecessary force, they are nevertheless inherently lethal in nature. At the level the
bullets were fired and hit the jeepney, it is not difficult to imagine the possibility of the
passengers thereof being hit and even killed. It must be stressed that the subject
jeepney was fired upon while it was pacing the road and at that moment, it is not as
much too difficult to aim and target the tires thereof as it is to imagine the peril to
which its passengers would be exposed even assuming that the gunfire was aimed at
the tires – especially considering that petitioners do not appear to be mere rookie law
enforcers or unskilled neophytes in encounters with lawless elements in the streets.
Thus, judging by the location of the bullet holes on the subject jeepney and the
firearms employed, the likelihood of the passenger next to the driver – and in fact
even the driver himself – of being hit and injured or even killed is great to say the
least, certain to be precise. This, we find to be consistent with the uniform claim of
petitioners that the impulse to fire directly at the jeepney came when it occurred to
them that it was proceeding to evade their authority. And in instances like this, their
natural and logical impulse was to debilitate the vehicle by firing upon the tires
thereof, or to debilitate the driver and hence put the vehicle to a halt. The evidence we
found on the jeepney suggests that petitioners’ actuations leaned towards the latter.
This demonstrates the clear intent of petitioners to bring forth death on Licup who
was seated on the passenger side and to Villanueva who was occupying the wheel,
together with all the consequences arising from their deed. The circumstances of the
shooting breed no other inference than that the firing was deliberate and not
attributable to sheer accident or mere lack of skill. Thus, Cupps v. State146 tells that:
This rule that every person is presumed to contemplate the ordinary and natural
consequences of his own acts, is applied even in capital cases. Because men generally
act deliberately and by the determination of their own will, and not from the impulse
of blind passion, the law presumes that every man always thus acts, until the contrary
appears. Therefore, when one man is found to have killed another, if the
circumstances of the homicide do not of themselves show that it was not intended,
but was accidental, it is presumed that the death of the deceased was designed by the
slayer; and the burden of proof is on him to show that it was otherwise.
V.
Verily, the shooting incident subject of these petitions was actualized with the
deliberate intent of killing Licup and Villanueva, hence we dismiss Yapyuco’s
alternative claim in G.R. No. 120744 that he and his co-petitioners must be found
guilty merely of reckless imprudence resulting in homicide and frustrated homicide.
Here is why:
First, the crimes committed in these cases are not merely criminal negligence, the
killing being intentional and not accidental. In criminal negligence, the injury caused
to another should be unintentional, it being the incident of another act performed
without malice.147 People v. Guillen148 and People v. Nanquil 149 declare that a deliberate
intent to do an unlawful act is essentially inconsistent with the idea of reckless
imprudence. And in People v. Castillo, 150 we held that that there can be no frustrated
homicide through reckless negligence inasmuch as reckless negligence implies lack of
intent to kill, and without intent to kill the crime of frustrated homicide cannot exist.
Second, that petitioners by their acts exhibited conspiracy, as correctly found by the
Sandiganbayan, likewise militates against their claim of reckless imprudence.
Article 8 of the Revised Penal Code provides that there is conspiracy when two or
more persons agree to commit a felony and decide to commit it. Conspiracy need not
be proven by direct evidence. It may be inferred from the conduct of the accused
before, during and after the commission of the crime, showing that they had acted
with a common purpose and design. Conspiracy may be implied 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 combined acts, though apparently
independent of each other were, in fact, connected and cooperative, indicating a
closeness of personal association and a concurrence of sentiment. Conspiracy once
found, continues until the object of it has been accomplished and unless abandoned or
broken up. To hold an accused guilty as a co-principal by reason of conspiracy, he
must be shown to have performed an overt act in pursuance or furtherance of the
complicity. There must be intentional participation in the transaction with a view to
the furtherance of the common design and purpose.151
Conspiracy to exist does not require an agreement for an appreciable period prior to
the occurrence.1a\^/phi1 From the legal viewpoint, conspiracy exists if, at the time of
the commission of the offense, the accused had the same purpose and were united in
its execution.152 The instant case requires no proof of any previous agreement among
petitioners that they were really bent on a violent attack upon their suspects. While it
is far-fetched to conclude that conspiracy arose from the moment petitioners, or all of
the accused for that matter, had converged and strategically posted themselves at the
place appointed by Pamintuan, we nevertheless find that petitioners had been ignited
by the common impulse not to let their suspect jeepney flee and evade their authority
when it suddenly occurred to them that the vehicle was attempting to escape as it
supposedly accelerated despite the signal for it to stop and submit to them. As
aforesaid, at that point, petitioners were confronted with the convenient yet irrational
option to take no chances by preventing the jeepney’s supposed escape even if it
meant killing the driver thereof. It appears that such was their common purpose. And
by their concerted action of almost simultaneously opening fire at the jeepney from
the posts they had deliberately taken around the immediate environment of the
suspects, conveniently affording an opportunity to target the driver, they did achieve
their object as shown by the concentration of bullet entries on the passenger side of
the jeepney at angular and perpendicular trajectories. Indeed, there is no definitive
proof that tells which of all the accused had discharged their weapons that night and
which directly caused the injuries sustained by Villanueva and fatally wounded Licup,
yet we adopt the Sandiganbayan’s conclusion that since only herein petitioners were
shown to have been in possession of their service firearms that night and had fired
the same, they should be held collectively responsible for the consequences of the
subject law enforcement operation which had gone terribly wrong. 153
VI.
The Sandiganbayan correctly found that petitioners are guilty as co-principals in the
crimes of homicide and attempted homicide only, respectively for the death of Licup
and for the non-fatal injuries sustained by Villanueva, and that they deserve an
acquittal together with the other accused, of the charge of attempted murder with
respect to the unharmed victims.154 The allegation of evident premeditation has not
been proved beyond reasonable doubt because the evidence is consistent with the
fact that the urge to kill had materialized in the minds of petitioners as
instantaneously as they perceived their suspects to be attempting flight and evading
arrest. The same is true with treachery, inasmuch as there is no clear and indubitable
proof that the mode of attack was consciously and deliberately adopted by
petitioners.
Homicide, under Article 249 of the Revised Penal Code, is punished by reclusion
temporal whereas an attempt thereof, under Article 250 in relation to Article 51,
warrants a penalty lower by two degrees than that prescribed for principals in a
consummated homicide. Petitioners in these cases are entitled to the ordinary
mitigating circumstance of voluntary surrender, and there being no aggravating
circumstance proved and applying the Indeterminate Sentence Law, the
Sandiganbayan has properly fixed in Criminal Case No. 16612 the range of the penalty
from six (6) years and one (1) day, but should have denominated the same as prision
mayor, not prision correccional, to twelve (12) years and one (1) day of reclusion
temporal.
exemplary damages should be deleted, there being no aggravating circumstance that
attended the commission of the crimes.
WHEREFORE, the instant petitions are DENIED. The joint decision of the
Sandiganbayan in Criminal Case Nos. 16612, 16613 and 16614, dated June 27, 1995,
are hereby AFFIRMED with the following MODIFICATIONS:
(a) In Criminal Case No. 16612, petitioners are sentenced to suffer the
indeterminate penalty of six (6) years and one (1) day of prision mayor, as
the minimum, to twelve (12) years and one (1) day of reclusion temporal, as
the maximum; in Criminal Case No. 16614, the indeterminate sentence is
hereby modified to Two (2) years and four (4) months of prision
correccional, as the maximum, and Six (6) months of arresto mayor, as the
minimum.
(b) Petitioners are DIRECTED to indemnify, jointly and severally, the heirs of
Leodevince Licup in the amount of ₱77,000.00 as actual damages, ₱50,000.00
in moral damages, as well as Noel Villanueva, in the amount of ₱51,700.00 as
actual and compensatory damages, and ₱20,000.00 as moral damages.
SO ORDERED.

However, upon the finding that petitioners in Criminal Case No. 16614 had committed
attempted homicide, a modification of the penalty is in order. The penalty of
attempted homicide is two (2) degrees lower to that of a consummated homicide,
which is prision correccional. Taking into account the mitigating circumstance of
voluntary surrender, the maximum of the indeterminate sentence to be meted out on
petitioners is within the minimum period of prision correccional,  which is six (6)
months and one (1) day to two (2) years and four (4) months of prision
correccional, whereas the minimum of the sentence, which under the Indeterminate
Sentence Law must be within the range of the penalty next lower to that prescribed
for the offense, which is one (1) month and one (1) day to six (6) months of  arresto
mayor.

We likewise modify the award of damages in these cases, in accordance with

prevailing jurisprudence, and order herein petitioners, jointly and severally, to
indemnify the heirs of Leodevince Licup in the amount of ₱77,000.00 as actual
damages and ₱50,000.00 in moral damages. With respect to Noel Villanueva,
petitioners are likewise bound to pay, jointly and severally, the amount of ₱51,700.00
as actual and compensatory damages and ₱20,000.00 as moral damages. The award of

G.R. No. 163927, January 27, 2006
ALFONSO D. GAVIOLA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
Before the Court is a petition for review of the Decision 1 of the Court of Appeals (CA)
in CA-G.R. CR No. 24413 affirming the ruling 2 of the Regional Trial Court (RTC) of
Nava, Biliran, Branch 16, in Criminal Case No. N-1901, where petitioner Alfonso
Gaviola was convicted of qualified theft.
The antecedents are as follows:
On May 25, 1954, Elias Gaviola filed a complaint against Eusebio Mejarito in the then
Court of First Instance of Carigara, Leyte, for quieting of title with a plea for injunctive
relief. The suit involved a 40,500-square-meter parcel of coconut land located in
Barrio Calbani, Maripipi, Leyte, identified as Cadastral Lot 1301 and covered by Tax
Declaration (TD) No. 743.3 The case was docketed as Civil Case No. 111. Eusebio, for
his part, claimed ownership over the property.
On July 29, 1955, the trial court ordered the dismissal of the complaint and declared
Eusebio the lawful owner of the property. The dispositive portion of the decision
reads:
WHEREFORE, for the foregoing, the Court renders judgment dismissing the plaintiffs’
complaint and declaring the defendants the absolute owners and entitled to the
possession of the disputed land. The preliminary injunction which was granted by this
Court through Judge Lorenzo Carlitos is ordered dissolved, with costs against the
plaintiffs.
SO ORDERED.4
The decision became final and executory. On September 3, 1955, the trial court
ordered the sheriff to place Eusebio in possession of the property. 5 The sheriff
complied with the order on December 19, 1958. 6
In the meantime, Eusebio died intestate and was survived by his son, Cleto. Elias
Gaviola also died intestate and was survived by his son, Alfonso.
Almost 30 years thereafter, on October 1985, Cleto filed a complaint against Alfonso
and four others for recovery of possession of a parcel of land and execution of
judgment in Civil Case No. 111. The property involved was located on the north of Lot
1301 and covered by TD No. 1546. The case was docketed as Civil Case No. B-0600.
The plaintiff therein alleged that the houses of the defendants were located in the
property that had been adjudicated to his father, Eusebio Mejarito, in Civil Case No.
111. He prayed that the court issue judgment as follows:
a) Ordering [the] immediate execution of judgment in Civil Case No. 111,
against defendants Segundo Gaviola and Alfonso Gaviola;
b) Ordering all defendants evicted from any portion of the land they
presently occupy as residential;
c) Ordering all defendants to pay rent in favor of the plaintiff with legal
interests imposed reckoned from June 1984 until full payment of what is due
and/or until their complete and absolute eviction from their respective
residences which rent liabilities when computed annually for each of them is
in the sum of PESOS: THREE THOUSAND SIX HUNDRED (P3,600.00),
Philippine Currency;
d) Ordering defendants to pay plaintiff jointly and severally the sum of
PESOS: THIRTY THOUSAND (P30,000.00), Philippine Currency, representing
moral damages;
e) Ordering defendants to pay plaintiff jointly and severally the sum of
PESOS: TWENTY-FIVE THOUSAND (P25,000.00), Philippine Currency,
representing attorney’s fee and litigation expenses.
Plaintiff prays for such relief and other remedies as may be just and equitable in the
premises.7
In their answer to the complaint, the defendants averred that the property in which
their houses were located is different from that which was adjudicated by the court in
Civil Case No. 111 to Eusebio Mejarito.
The parties could not agree on the identification and metes and bounds of the parcel
of land claimed and owned by the plaintiff and those claimed and owned by the
defendants. This impelled the court to appoint Bienvenido Ricafort, the Officer-in-
Charge of the sub-office of the Provincial Assessor, as Commissioner, to resurvey the
property subject of the complaint. A sketch of the property was prepared, indicating
the location of the plaintiff’s lot (Lot 1301) and the parcel of land where the house of
Gaviola stood (Lot 1311). The Commissioner also prepared a report 8 stating that the
property adjudicated to Eusebio Mejarito in Civil Case No. 111 was Cadastral Lot No.
1301, while that which belonged to Elias Gaviola was Cadastral Lot No. 1311; and the
old one-storey house of defendant Alfonso Gaviola was located in the latter lot. The
defendant did not object to the report.9
On May 4, 1990, the court rendered judgment in favor of the defendants in Civil Case
No. B-0600 and ordered the complaint dismissed. The court ruled that the parcels of
land occupied by the defendants, inclusive of Lot 1311, were different from the
property adjudicated to Eusebio Mejarito in Civil Case No. 111, which is actually Lot
1301. The court also ruled that the plaintiff had no cause of action for the execution of
the court’s decision in Civil Case No. 111 because such decision had long been
enforced, per report of the sheriff.10
Eusebio appealed the decision to the CA which rendered judgment on September 18,
1992, affirming the decision of the RTC.11 The appellate court declared that the house
of Alfonso Gaviola was located in Lot 1311 covered by TD 1611 under the name of
Elias Gaviola. Cleto filed a petition for review on certiorari with this Court, which was
denied due course in a Resolution 12 dated March 24, 1993. Thus, the CA decision
became final and executory. The trial court issued a writ of execution, a copy of which
Sheriff Ludenilo S. Ador served on the defendants on August 5, 1993. 13
In the meantime, Cleto Mejarito left the Philippines and stayed in the United States of
America. He entrusted the land to the care of his nephew, Rafael Lozano.
At 7:00 a.m. on September 6, 1997, Jovencio Mejarito, a nephew of Cleto Mejarito, and
a barangay councilman, saw Gavino Gaviola, Rodrigo Gaviola and Domingo Caingcoy
climbing the coconut trees in Lot 1301. Under the supervision of the spouses Alfonso
and Leticia Gaviola, they
14
gathered 1,500 coconuts worth P3,000.00 from the coconut trees.  The Officer-in-
Charge of the Maripipi Police Station then filed a criminal complaint for qualified theft
against the spouses Gaviola and those who gathered the coconuts in the municipal
trial court.15 In the meantime, the coconuts were entrusted to the care of the barangay
captain.
On February 6, 1998, an Information was filed with the RTC of Naval, Biliran, against
the spouses Alfonso and Leticia Gaviola for qualified theft. The accusatory portion of
the decision reads:
That on or about the 6th day of September 1997, at around 9 o’clock in the morning at
Brgy. Calbani, Municipality of Maripipi, Province of Biliran, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating with one another, and with intent to gain, did then and there
unlawfully, feloniously, deliberately took, harvested and gathered one thousand five
hundred (1,500) coconut fruits from the plantation of Cleto Mejarito without the
consent and authority of the latter, to the damage and prejudice of the owner
amounting to P3,000.00.
Contrary to Law.16
Alfonso admitted that the coconuts were taken upon his instructions, but insisted that
the trees from which they were taken were planted on Lot 1311, the property he had
inherited from his father, Elias Gaviola; the property of private complainant Cleto
Mejarito, Lot 1301, was adjacent to his lot. Alfonso testified that the property was
placed in his possession by the sheriff since August 5, 1993, and that since then he had
been gathering coconuts every three months without being confronted or prosecuted
by anybody.17 He insisted that his claim was based on the decision of the RTC in Civil
Case No. B-0600, which was affirmed by the CA.18
On April 13, 2000, the RTC rendered judgment convicting Alfonso of qualified theft.
The fallo of the decision reads:
WHEREFORE, this Court finds the accused Alfonso Gaviola y Dimakiling guilty beyond
reasonable doubt of the crime of qualified theft; hereby imposing upon him the
indeterminate penalty of imprisonment from Five (5) Years, Five (5) Months and Ten
(10) days of prision correccional, maximum period, as the minimum, to Eight (8)
Years and One (1) day of prision mayor, minimum, as the maximum.
The accused shall pay the private complainant Cleto Mejarito, through his duly
authorized representative, exemplary damages in the amount of P20,000.00 and
liquidated damages in the amount of P3,000.00.
SO ORDERED.19
The trial court ruled that the accused took the coconuts from the coconut trees
planted on Cadastral Lot 1301 which was owned by Cleto Mejarito, and not on his
own property, Lot 1311, as he claimed.
Alfonso Gaviola appealed the decision to the CA which rendered judgment, on October
1, 2003, affirming the decision of the RTC. He then filed a motion for reconsideration
of the decision, which the appellate court denied.
Alfonso, now the petitioner, raises the following issues in the instant petition: (1)
whether the prosecution proved beyond reasonable doubt that he had intent to gain
when the coconuts were taken upon his instruction; and (2) whether he is liable for
exemplary and liquidated damages.
On the first issue, petitioner avers that the prosecution failed to prove animus
lucrandi (intent to gain) on his part. He asserts that he had been taking coconuts from
the property in broad daylight three times a year since August 5, 1993 on his honest
belief that he was the owner of the land where the coconut trees were planted. He
points out that it was only after he took coconuts on September 6, 1997 that he was
charged of qualified theft.
Moreover, his honest belief that he owned the land negates intent to steal, an essential
element of the felony of theft. He argues that the RTC in Civil Case No. B-0600
declared him to be the owner of the property where the coconut trees were planted;
the property was placed in his possession by the sheriff and, since then, he had
planted bananas and gathered coconuts from the coconut trees.
In its comment on the petition, the Office of the Solicitor General avers that the
decision of the RTC, which was affirmed by the CA, is in accord with the evidence on
record. The OSG maintains that under the decision of the then CFI in Civil Case No.
111, the RTC in Civil Case No. B-0600 and that of the CA affirming on appeal the RTC
ruling, the owner of Lot 1301, the property from which the coconuts were taken, was
Eusebio Mejarito, the private complainant’s father.
We rule against the petitioner.
Article 308 of the Revised Penal Code defines theft 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 objects of the damage
caused by him; and
3. Any person who shall enter an enclosed 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 fruits, cereals, or other forest
or farm products.20
Thus, the elements of theft 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.21
The provision was taken from Article 530 of the Spanish Penal Code which reads:
1. Los que con á nimo de lucrarse, y sin violencia o intimidació n en las
personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
voluntad, de su dueñ o.
2. Los que encontrá ndose una cosa perdida y sabiendo quién es su dueñ o se
la apropiaren con intencion de lucro.
3. Los dañ adores que sustrajeren o utilizaren los frutos u objeto del dañ o
causado, salvo los casos previstos en los artículos 606, num. 1., 2. y 3; 608,
num. 1; 610, num. 1.; 611;613; segundo pá rrafo del 617 y 618. (Art. 437 del
Cod. Penal de 1850. – Art. 379, Cdo. Franc. – Art. 331, Codigo Brasil. – Art.
151, Cod. Austr. – Arts. 461 y 508, Cod. Belg. – Art. 242, Cod. Alem. – Arts. 422
y 423, Cod. Port. – Art. 402, Cod. Ital.)22
According to Article 310 of the Revised Penal Code, theft is qualified if coconuts are
taken from the premises of a plantation:
Art. 310. Qualified theft. – The crime of theft shall be punished by the penalties next
higher by two degrees than those respectively specified in the next preceding article,
if committed by a domestic servant, or with grave abuse of confidence, or if the
property stolen is motor vehicle, mail matter or large cattle or consists of coconuts
taken from the premises of a plantation, fish taken from a fishpond or fishery or if
property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or
any other calamity, vehicular accident or civil disturbance.
For one to be guilty of theft, the accused must have an intent to steal (animus furandi)
personal property, meaning the intent to deprive another of his ownership/lawful
possession of personal property which intent is apart from, but concurrent with the
general criminal intent which is an essential element of a felony of dolo (dolos malus).
The animo being a state of the mind may be proved by direct or circumstantial
evidence, inclusive of the manner and conduct of the accused before, during and after
the taking of the personal property. General criminal intent is presumed or inferred
from the very fact that the wrongful act is done since one is presumed to have willed
the natural consequences of his own acts. Likewise, animus furandi is presumed from
the taking of personal property without the consent of the owner or lawful possessor
thereof. The same may be rebutted by the accused by evidence that he took the
personal property under a bona fide belief that he owns the property. 23
In Black v. State,24 the State Supreme Court of Alabama ruled that the open and
notorious taking, without any attempt at concealment or denial, but an avowal of the
taking, raises a strong presumption that there is no animus furandi. But, if the claim is
dishonest, a mere pretense, taking the property of another will not protect the taker:
xxx "In all cases where one in good faith takes another’s property under claim of title
in himself, he is exempt from the charge of larceny, however puerile or mistaken the
claim may in fact be. And the same is true where the taking is on behalf of another,
believed to be the true owner. Still, if the claim is dishonest, a mere pretense, it will
not protect the taker."
The gist of the offense is the intent to deprive another of his property in a chattel,
either for gain or out of wantonness or malice to deprive another of his right in the
thing taken. This cannot be where the taker honestly believes the property is his own
or that of another, and that he has a right to take possession of it for himself or for
another, for the protection of the latter.25
In Charles v. State,26 the State Supreme Court of Florida ruled that the belief of the
accused of his ownership over the property must be honest and in good faith and not
a mere sham or pretense.
In the present case, the trial court found the petitioner’s claim of having acted in the
honest belief that he owned Lot 1301 when he ordered the harvesting of the coconuts
barren of probative weight. The trial court ruled that the petitioner even admitted in
Civil Case No. B-0600 that the private complainant’s property was separate from his:
The accused have put up a defense of ownership although from the records of Civil
Case No. B-0600, Alfonso Gaviola, et al., thru their counsel admitted that from the
evidence of Cleto Mejarito especially Exh. "E," Writ of Execution, it appears that the
decision was already executed on December 22, 1958.
Further admitted that:
"The southern boundary of the land of Elias Gaviola (Alfonso) is stated as Melecio
Gaviola. Actually the land of Melecio Gaviola is now owned by plaintiff (Cleto
Mejarito), the land having been adjudicated to his predecessor-in-interest Eusebio
Mejarito by virtue of Civil Case No. 111 (Exh. "A") (See also Exh. "6," Tax Declaration
No. 3437, reverse side).
Alfonso Gaviola could not have made a mistake to extricate themselves from the
ejectment, Cleto Mejarito wanted to pursue in Civil Case No. B-0600.
They submitted a well entrenched analyses as they concluded further; to quote:
"Finally, that these three parcels of lands are separate and distinct from each other is
confirmed by the cadastral survey were the lands of plaintiff (Cleto Mejarito), of Elias
Gaviola (Alfonso) and of Segunda Gaviola, are denominated as Cadastral Lot Nos.
1301, 1311 and 1303, respectively. Not only that, their definite locations and
boundaries are even delineated in the sketch prepared by the court-appointed
commissioner, which sketch is now marked as Exhibits "H" and series"
(Memorandum of defendants Gaviolas dated April 13, 1989, in Civil Case No. B-0600).
The general rule is that a judicial admission is conclusive upon the party making it
and does not require proof; except when it is shown that the admission was made
through palpable mistake and (2) when shown that no such admission was in fact
made. (Atillo III vs. C.A. 266 SCRA 596).27
The findings of the RTC were affirmed by the appellate court. The well-entrenched
rule is that the findings of facts of the trial court, affirmed by the appellate court, are
conclusive on this Court, absent any evidence that the trial court and the appellate
court ignored, misconstrued, or misinterpreted cogent facts and circumstances of
substance which, if considered, would warrant a modification or reversal of the
outcome of the case. We have reviewed the records and find no justification to modify,
much less reverse, the findings of the trial and appellate courts.
The petitioner cannot feign ignorance or even unfamiliarity with the location, identity
and the metes and bounds of the private complainant’s property, Lot 1301, vis-à -vis
that of his own, Lot 1311. Indeed, in his Memorandum in Civil Case No. B-0600,
petitioner as one of the defendants below, categorically stated:
From the above enumeration or statement of boundaries, it is clear that these three
parcels of land are distinct and separate from each other, as the following
observations can be made:
1. land of plaintiff and Elias (Alfonso) Gaviola:
 a. Both have the same northern boundary: Isabela Mejarito. But the
same can be explained by the fact that sometime in 1934 Isabela
Mejarito, through Pastor Armoela, sold the land now owned by Elias
(Alfonso) Gaviola to him. See Ex. "15." In fact, the first time that the
land bought by Elias Gaviola was declared in his name was in 1935 in
Tax Dec. No. 2839 (Exh. "14") which cancelled in part Tax Dec. No.
1942 (Exh. "16") in the name of Isabela Mejarito.
What caused the confusion (identical northern boundary of the lands
of plaintiff and Elias Gaviola) was that the northern boundary
(Isabela Mejarito) of the land of plaintiff was not adjusted
accordingly despite the sale. It should have been changed to Elias
Gaviola to reflect the sale.
b. The southern boundary of the land of Elias Gaviola (Alfonso) is
stated as Melecio Gaviola. Actually the land of Melecio Gaviola is now
owned by plaintiff the land having been adjudicated to his
predecessor-in-interest Eusebio Mejarito by virtue of Civil Case No.
111 (Exhibit "A") (See also Exh. "6," Tax Dec. No. 3437, reverse side)
2. land of plaintiff and Hermenegildo (Segundo) Gaviola:
a. The eastern boundary of the land of plaintiff is stated as
"Hermenegildo Gaviola," father and predecessor-in-interest of
defendant Segundo Gaviola;
b. The western boundary of the land of Hermenegildo Gaviola (Exh.
"31-A") was previously declared as Melecio Gaviola. But after the
case (Civil Case No. 111, Exh. "A"), it was changed to "Eusebio
Mejarito," predecessor-in-interest of plaintiff by virtue of said case.
(Exh. "31-A" and "30-A."
So it is now clear that the land of plaintiff is west of the land of Hermenegildo Gaviola
(now Segundo Gaviola), and that they are two distinct and separate lands.
Indeed, that the lands of plaintiff, of Elias Gaviola (father of defendant Alfonso), and of
defendant Segundo Gaviola (now, but Hermenegildo Gaviola before) are separate and
distinct from each other is shown by the fact that they have been covered by different
sets of tax declarations since as early as 1906. It should be noted that the tax
declarations that cover each land do not merge with, overlap, or cancel, each other .
There appear apparent minor discrepancies but they can easily be explained by two
events: the sale of a portion of the land of Isabela Mejarito to Elias Gaviola and the
decision in Civil Case No. 111. If these two events are considered, these apparent
discrepancies vanish into thin air.
Finally, that these three parcels of lands are separate and distinct from each other is
confirmed by the cadastral survey where the lands of plaintiff, of Elias Gaviola and of
Segundo Gaviola, are denominated as Cadastral Lot Nos. 1301, 1311 and 1303,
respectively. Not only that, their definite locations and boundaries are even
delineated in the sketch prepared by the court-appointed commissioner, which sketch
is now marked as Exhs. "H" and series, of plaintiff. Also, the report to which the sketch
is attached even states that the house of defendant Alfonso Gaviola is located on the
land of Elias Gaviola; and while said report enumerates the houses located on the land
of plaintiff, neither the house of defendant Alfonso Gaviola nor of defendant Segundo
Gaviola nor of the other defendants are among those mentioned therein. 28
Moreover, petitioner’s land is residential, while that of the private complainant is
coconut land. There are no coconut trees in the lot owned by petitioner, nor is there
evidence that he planted coconut trees on private complainant’s property at any time,
believing that it was his own land. Petitioner could thus not have mistaken the
property of the private complainant for that of his own.
We further note that petitioner failed to adduce evidence to corroborate his claim
that, prior to September 6, 1997, he had gathered coconuts from the coconut trees on
the private complainant’s property three times a year, and that the latter or his
caretaker was aware thereof but failed to remonstrate.
In United States v. Villacorta, 29 the Court debunked the claim of the appellant therein
that he should not be held criminally liable for theft (larceny) for honestly believing
that he owned the land from which he took the paddy. That case is on all fours with
the present case, in that there was also a court ruling declaring the private
complainant therein as the owner of the land on which the paddy grew. The Court
therein ratiocinated as follows:
The attorney for the appellant in this court attempts to show that the defendant could
not be guilty of larceny, even though it be admitted that he took and carried away the
paddy in question, for the reason that he claimed to be the owner of the land. That
question had been decided against him by a court of competent jurisdiction and he
made no objection to said decision. After that decision he could no longer claim that
he was the owner of the land from which he took and carried away the paddy, and
moreover, it was shown during the trial of the cause that Domingo Corpus, by his
laborers, had actually planted the paddy upon the land in question. It is difficult to
understand upon what theory the defendant could justify his claim that he was the
owner of the paddy, after a final decision had been rendered against him to the
contrary, and when it was clearly proven that he had not even planted it. The paddy
had been planted by Domingo Corpus upon land which a court of competent
jurisdiction decided belonged to him and had been harvested by him and piled upon
the land at the time the defendant entered the land and took and carried it away. The
defendant neither planted the paddy nor reaped it. The court decided, before he took
and carried away the paddy, that the land belonged to Domingo Corpus. The
defendant must have known that the paddy did not belong to him. In view of the
litigation, he must have known to whom it did belong.30

In fine, we find and so hold that the petitioner’s claim of good faith in taking the
coconuts from the private complainant’s land is a mere pretense to escape criminal
liability.

We rule that there is factual and legal bases for the award of P20,000.00 by way of
exemplary damages. Under Article 223031 of the New Civil Code, exemplary damages
may be awarded when the crime was committed with one or more aggravating
circumstances. In this case, the petitioner is guilty not only of simple theft but of
qualified theft.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. Costs
against the petitioner.

SO ORDERED.

G.R. No. 186412, September 7, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ORLITO VILLACORTA, Accused-Appellant.
DECISION
On appeal is the Decision1 dated July 30, 2008 of the Court of Appeals in CA-G.R. CR.-
H.C. No. 02550, which affirmed the Decision 2 dated September 22, 2006 of the
Regional Trial Court (RTC), Branch 170, of Malabon, in Criminal Case No. 27039-MN,
finding accused-appellant Orlito Villacorta (Villacorta) guilty of murder, and
sentencing him to suffer the penalty of reclusion perpetua and to pay the heirs of
Danilo Cruz (Cruz) the sum of ₱50,000.00 as civil indemnity, plus the costs of suit.
On June 21, 2002, an Information 3 was filed against Villacorta charging him with the
crime of murder, as follows:
That on or about 23rd day of January 2002, in Navotas, Metro Manila, and within the
jurisdiction of this Honorable Court, the above-named accused, armed with a
sharpened bamboo stick, with intent to kill, treachery and evident premeditation, did
then and there willfully, unlawfully and feloniously attack, assault and stab with the
said weapon one DANILO SALVADOR CRUZ, thereby inflicting upon the victim serious
wounds which caused his immediate death.
When arraigned on September 9, 2002, Villacorta pleaded not guilty. 4
During trial, the prosecution presented as witnesses Cristina Mendeja (Mendeja) and
Dr. Domingo Belandres, Jr. (Dr. Belandres).
Mendeja narrated that on January 23, 2002, she was tending her sari-sari store
located at C-4 Road, Bagumbayan, Navotas. Both Cruz and Villacorta were regular
customers at Mendeja’s store. At around two o’clock in the morning, while Cruz was
ordering bread at Mendeja’s store, Villacorta suddenly appeared and, without uttering
a word, stabbed Cruz on the left side of Cruz’s body using a sharpened bamboo stick.
The bamboo stick broke and was left in Cruz’s body. Immediately after the stabbing
incident, Villacorta fled. Mendeja gave chase but failed to catch Villacorta. When
Mendeja returned to her store, she saw her neighbor Aron removing the broken
bamboo stick from Cruz’s body. 5 Mendeja and Aron then brought Cruz to Tondo
Medical Center.6
Dr. Belandres was Head of the Tetanus Department at the San Lazaro Hospital. When
Cruz sustained the stab wound on January 23, 2002, he was taken to the Tondo
Medical Center, where he was treated as an out-patient. Cruz was only brought to the
San Lazaro Hospital on February 14, 2002, where he died the following day, on
February 15, 2002. While admitting that he did not personally treat Cruz, Dr.
Belandres was able to determine, using Cruz’s medical chart and diagnosis, that Cruz
died of tetanus infection secondary to stab wound. 7 Dr. Belandres specifically
described the cause of Cruz’s death in the following manner:
The wound was exposed x x – spurs concerted, the patient developed difficulty of
opening the mouth, spastivity of the body and abdominal pain and the cause of death
is hypoxic encephalopathy – neuro transmitted – due to upper G.I. bleeding x x x.
Diagnosed of Tetanus, Stage III.8
The prosecution also intended to present Dr. Deverni Matias (Dr. Matias), who
attended to Cruz at the San Lazaro Hospital, but the prosecution and defense agreed
to dispense with Dr. Matias’ testimony based on the stipulation that it would only
corroborate Dr. Belandres’ testimony on Cruz dying of tetanus.
For its part, the defense presented Villacorta himself, who denied stabbing Cruz.
Villacorta recounted that he was on his way home from work at around two o’clock in
the morning of January 21, 2002. Upon arriving home, Villacorta drank coffee then
went outside to buy cigarettes at a nearby store. When Villacorta was about to leave
the store, Cruz put his arm around Villacorta’s shoulder. This prompted Villacorta to
box Cruz, after which, Villacorta went home. Villacorta did not notice that Cruz got
hurt. Villacorta only found out about Cruz’s death upon his arrest on July 31, 2002. 9
On September 22, 2006, the RTC rendered a Decision finding Villacorta guilty of
murder, qualified by treachery. The dispositive portion of said Decision reads:
WHEREFORE, in the light of the foregoing, the Court finds accused Orlito Villacorta
guilty beyond reasonable doubt of the crime of Murder and is hereby sentenced to
suffer the penalty of reclusion perpetua and to pay the heirs of Danilo Cruz the sum of
₱50,000.00 as civil indemnity for the death of said victim plus the costs of suit. 10
Villacorta, through his counsel from the Public Attorney’s Office (PAO), filed a notice
of appeal to assail his conviction by the RTC. 11 The Court of Appeals directed the PAO
to file Villacorta’s brief, within thirty days from receipt of notice.
Villacorta filed his Appellant’s Brief12 on May 30, 2007; while the People, through the
Office of the Solicitor General (OSG), filed its Appellee's Brief 13 on October 2, 2007.
On July 30, 2008, the Court of Appeals promulgated its Decision affirming in toto the
RTC judgment of conviction against Villacorta.
Hence, Villacorta comes before this Court via the instant appeal.
Villacorta manifested that he would no longer file a supplemental brief, as he was
adopting the Appellant's Brief he filed before the Court of Appeals. 14 The OSG,
likewise, manifested that it was no longer filing a supplemental brief. 15
In his Appellant’s Brief, Villacorta raised the following assignment of errors:
I appreciate their truthfulness, honesty and candor. 17
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY OF THE CRIME CHARGED DESPITE THE FAILURE OF
THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING
CIRCUMSTANCE OF TREACHERY.
III
ASSUMING ARGUENDO THAT THE ACCUSED COMMITTED A CRIME, HE
COULD ONLY BE HELD LIABLE FOR SLIGHT PHYSICAL INJURIES.16
Villacorta assails the credibility of Mendeja, an eyewitness to the stabbing incident. It
was Mendeja who positively identified Villacorta as the one who stabbed Cruz in the
early morning of January 23, 2002. Villacorta asserts that Mendeja’s account of the
stabbing incident is replete with inconsistencies and incredulities, and is contrary to
normal human experience, such as: (1) instead of shouting or calling for help when
Villacorta allegedly stabbed Cruz, Mendeja attempted to run after and catch Villacorta;
(2) while, by Mendeja’s own account, there were other people who witnessed the
stabbing and could have chased after Villacorta, yet, oddly, only Mendeja did; (3) if
Cruz was stabbed so swiftly and suddenly as Mendeja described, then it would have
been physically improbable for Mendeja to have vividly recognized the perpetrator,
who immediately ran away after the stabbing; (4) after the stabbing, both Villacorta
and Cruz ran in opposite directions; and (5) Mendeja had said that the bamboo stick,
the alleged murder weapon, was left at her store, although she had also stated that the
said bamboo stick was left embedded in Cruz’s body. Villacorta maintains that the
aforementioned inconsistencies are neither trivial nor inconsequential, and should
engender some doubt as to his guilt.
We are not persuaded.
To begin with, it is fundamental that the determination by the trial court of the
credibility of witnesses, when affirmed by the appellate court, is accorded full weight
and credit as well as great respect, if not conclusive effect. Such determination made
by the trial court proceeds from its first-hand opportunity to observe the demeanor of
the witnesses, their conduct and attitude under grilling examination, thereby placing
the trial court in the unique position to assess the witnesses' credibility and to
In this case, both the RTC and the Court of Appeals gave full faith and credence to the
testimony of prosecution witness Mendeja. The Court of Appeals rejected Villacorta’s
attempts to impugn Mendeja’s testimony, thus:
Appellant’s reason for concluding that witness Mendeja’s testimony is incredible
because she did not shout or call for help and instead run after the appellant, fails to
impress the Court because persons who witness crimes react in different ways.
"x x x the makings of a human mind are unpredictable; people react differently and
there is no standard form of behavior when one is confronted by a shocking incident.
Equally lacking in merit is appellant’s second reason which is, other persons could
have run after the appellant after the stabbing incident. As explained by witness
Mendeja, the other person whom she identified as Aron was left to assist the appellant
who was wounded. Further, the stabbing occurred at 2:00 o’clock in the morning, a
time when persons are expected to be asleep in their house, not roaming the streets.
His [Villacorta’s] other argument that the swiftness of the stabbing incident rendered
impossible or incredible the identification of the assailant cannot likewise prosper in
view of his admission that he was in the store of witness Mendeja on January 23, 2002
at 2:00 o’clock in the morning and that he assaulted the victim by boxing him.
Even if his admission is disregarded still the evidence of record cannot support
appellant’s argument. Appellant and the victim were known to witness Mendeja, both
being her friends and regular customers. There was light in front of the store. An
opening in the store measuring 1 and ¼ meters enables the person inside to see
persons outside, particularly those buying articles from the store. The victim was in
front of the store buying bread when attacked. Further, immediately after the
stabbing, witness Mendeja ran after the appellant giving her additional opportunity to
identify the malefactor. Thus, authorship of the attack can be credibly ascertained. 18
Moreover, Villacorta was unable to present any reason or motivation for Mendeja to
fabricate such a lie and falsely accuse Villacorta of stabbing Cruz on January 23, 2002.
We have ruled time and again that where the prosecution eyewitness was familiar
with both the victim and accused, and where the locus criminis afforded good
visibility, and where no improper motive can be attributed to the witness for
testifying against the accused, then her version of the story deserves much weight. 19
The purported inconsistencies in Mendeja’s testimony pointed out by Villacorta are
on matters that have no bearing on the fundamental fact which Mendeja testified on:
that Villacorta stabbed Cruz in the early morning of January 23, 2002, right in front of
Mendeja’s store.
In the face of Mendeja’s positive identification of Villacorta as Cruz’s stabber,
Villacorta could only muster an uncorroborated denial. Denial, like alibi, as an
exonerating justification, is inherently weak and if uncorroborated, regresses to
blatant impotence. Like alibi, it also constitutes self-serving negative evidence which
cannot be accorded greater evidentiary weight than the declaration of credible
witnesses who testify on affirmative matters.20
Hence, we do not deviate from the foregoing factual findings of the RTC, as affirmed
by the Court of Appeals.
Nevertheless, there is merit in the argument proffered by Villacorta that in the event
he is found to have indeed stabbed Cruz, he should only be held liable for slight
physical injuries for the stab wound he inflicted upon Cruz. The proximate cause of
Cruz’s death is the tetanus infection, and not the stab wound.
Proximate cause has been defined as "that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred."21
In this case, immediately after he was stabbed by Villacorta in the early morning of
January 23, 2002, Cruz was rushed to and treated as an out-patient at the Tondo
Medical Center. On February 14, 2002, Cruz was admitted to the San Lazaro Hospital
for symptoms of severe tetanus infection, where he died the following day, on
February 15, 2002. The prosecution did not present evidence of the emergency
medical treatment Cruz received at the Tondo Medical Center, subsequent visits by
Cruz to Tondo Medical Center or any other hospital for follow-up medical treatment
of his stab wound, or Cruz’s activities between January 23 to February 14, 2002.
In Urbano v. Intermediate Appellate Court, 22 the Court was confronted with a case of
very similar factual background as the one at bar. During an altercation on October
23, 1980, Urbano hacked Javier with a bolo, inflicting an incised wound on Javier’s
hand. Javier was treated by Dr. Meneses. On November 14, 1980, Javier was rushed to
the hospital with lockjaw and convulsions. Dr. Exconde, who attended to Javier, found
that Javier’s serious condition was caused by tetanus infection. The next day, on
November 15, 1980, Javier died. An Information was filed against Urbano for
homicide. Both the Circuit Criminal Court and the Intermediate Appellate Court found
Urbano guilty of homicide, because Javier's death was the natural and logical
consequence of Urbano's unlawful act. Urbano appealed before this Court, arguing
that Javier’s own negligence was the proximate cause of his death. Urbano alleged that
when Dr. Meneses examined Javier’s wound, he did not find any tetanus infection and
that Javier could have acquired the tetanus germs when he returned to work on his
farm only two (2) weeks after sustaining his injury. The Court granted Urbano’s
appeal.
We quote extensively from the ratiocination of the Court in Urbano:
The issue, therefore, hinges on whether or not there was an efficient intervening
cause from the time Javier was wounded until his death which would exculpate
Urbano from any liability for Javier's death.
We look into the nature of tetanus-
"The incubation period of tetanus, i.e., the time between injury and the appearance of
unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of patients
become symptomatic within 14 days. A short incubation period indicates severe disease,
and when symptoms occur within 2 or 3 days of injury the mortality rate approaches
100 percent.
"Non-specific premonitory symptoms such as restlessness, irritability, and headache
are encountered occasionally, but the commonest presenting complaints are pain and
stiffness in the jaw, abdomen, or back and difficulty swallowing. As the disease
progresses, stiffness gives way to rigidity, and patients often complain of difficulty
opening their mouths. In fact, trismus is the commonest manifestation of tetanus and
is responsible for the familiar descriptive name of lockjaw. As more muscles are
involved, rigidity becomes generalized, and sustained contractions called risus
sardonicus. The intensity and sequence of muscle involvement is quite variable. In a
small proportion of patients, only local signs and symptoms develop in the region of
the injury. In the vast majority, however, most muscles are involved to some degree,
and the signs and symptoms encountered depend upon the major muscle groups
affected.
"Reflex spasm usually occur within 24 to 72 hours of the first symptoms, an interval
referred to as the onset time. As in the case of the incubation period, a short onset time
is associated with a poor prognosis. Spasms are caused by sudden intensification of
afferent stimuli arising in the periphery, which increases rigidity and causes
simultaneous and excessive contraction of muscles and their antagonists. Spasms may
be both painful and dangerous. As the disease progresses, minimal or inapparent
stimuli produce more intense and longer lasting spasms with increasing frequency.
Respiration may be impaired by laryngospasm or tonic contraction of respiratory
muscles which prevent adequate ventilation. Hypoxia may then lead to irreversible
central nervous system damage and death.
"Mild tetanus is characterized by an incubation period of at least 14 days and an onset
time of more than 6 days. Trismus is usually present, but dysphagia is absent and
generalized spasms are brief and mild. Moderately severe tetanus has a somewhat
shorter incubation period and onset time; trismus is marked, dysphagia and
generalized rigidity are present, but ventilation remains adequate even during
spasms. The criteria for severe tetanus include a short incubation time, and an onset
time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent prolonged,
generalized convulsive spasms. (Harrison's Principle of Internal Medicine, 1983
Edition, pp. 1004-1005; Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found inside a man's body
depends on the incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he
parried the bolo which Urbano used in hacking him. This incident took place on
October 23, 1980. After 22 days, or on November 14, 1980, he suffered the symptoms
of tetanus, like lockjaw and muscle spasms. The following day, November 15, 1980, he
died.
If, therefore, the wound of Javier inflicted by the appellant was already infected by
tetanus germs at the time, it is more medically probable that Javier should have been
infected with only a mild case of tetanus because the symptoms of tetanus appeared
on the 22nd day after the hacking incident or more than 14 days  after the infliction of
the wound. Therefore, the onset time should have been more than six days. Javier,
however, died on the second day from the onset time. The more credible conclusion is
that at the time Javier's wound was inflicted by the appellant, the severe form of
tetanus that killed him was not yet present. Consequently, Javier's wound could have
been infected with tetanus after the hacking incident. Considering the circumstance
surrounding Javier's death, his wound could have been infected by tetanus 2 or 3 or a
few but not 20 to 22 days before he died.23
The incubation period for tetanus infection and the length of time between the
hacking incident and the manifestation of severe tetanus infection created doubts in
the mind of the Court that Javier acquired the severe tetanus infection from the
hacking incident. We explained in Urbano that:
The rule is that the death of the victim must be the direct, natural, and logical
consequence of the wounds inflicted upon him by the accused. (People v. Cardenas,
supra) And since we are dealing with a criminal conviction, the proof that the accused
caused the victim's death must convince a rational mind beyond reasonable doubt. The
medical findings, however, lead us to a distinct possibility that the infection of the
wound by tetanus was an efficient intervening cause later or between the time Javier
was wounded to the time of his death. The infection was, therefore, distinct and
foreign to the crime. (People v. Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was but the remote cause
and its subsequent infection, for failure to take necessary precautions, with tetanus
may have been the proximate cause of Javier's death with which the petitioner had
nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).
"A prior and remote cause cannot be made the basis of an action if such remote cause
did nothing more than furnish the condition or give rise to the occasion by which the
injury was made possible, if there intervened between such prior or remote cause and
the injury a distinct, successive, unrelated, and efficient cause of the injury, even
though such injury would not have happened but for such condition or occasion. If no
danger existed in the condition except because of the independent cause, such
condition was not the proximate cause. And if an independent negligent act or
defective condition sets into operation the instances, which result in injury because of
the prior defective condition, such subsequent act or condition is the proximate
cause." (45 C.J. pp. 931-932). (at p. 125)24
We face the very same doubts in the instant case that compel us to set aside the
conviction of Villacorta for murder. There had been an interval of 22 days between
the date of the stabbing and the date when Cruz was rushed to San Lazaro Hospital,
exhibiting symptoms of severe tetanus infection. If Cruz acquired severe tetanus
infection from the stabbing, then the symptoms would have appeared a lot sooner
than 22 days later. As the Court noted in Urbano, severe tetanus infection has a short
incubation period, less than 14 days; and those that exhibit symptoms with two to
three days from the injury, have one hundred percent (100%) mortality. Ultimately,
we can only deduce that Cruz’s stab wound was merely the remote cause, and its
subsequent infection with tetanus might have been the proximate cause of Cruz's
death. The infection of Cruz’s stab wound by tetanus was an efficient intervening
cause later or between the time Cruz was stabbed to the time of his death.
However, Villacorta is not totally without criminal liability.1âwphi1 Villacorta is guilty
of slight physical injuries under Article 266(1) of the Revised Penal Code for the stab
wound he inflicted upon Cruz. Although the charge in the instant case is for murder, a
finding of guilt for the lesser offense of slight physical injuries may be made
considering that the latter offense is necessarily included in the former since the
essential ingredients of slight physical injuries constitute and form part of those
constituting the offense of murder.25
We cannot hold Villacorta criminally liable for attempted or frustrated murder
because the prosecution was not able to establish Villacorta’s intent to kill. In fact, the
Court of Appeals expressly observed the lack of evidence to prove such an intent
beyond reasonable doubt, to wit:
Appellant stabbed the victim only once using a sharpened bamboo stick, hitting him
on the left side of the body and then immediately fled. The instrument used is not as
lethal as those made of metallic material. The part of the body hit is not delicate in the
sense that instant death can ensue by reason of a single stab wound. The assault was
done only once. Thus, there is doubt as to whether appellant had an intent to kill the
victim, which should be resolved in favor of the appellant. x x x.26
The intent must be proved in a clear and evident manner to exclude every possible
doubt as to the homicidal (or murderous) intent of the aggressor. The onus probandi
lies not on accused-appellant but on the prosecution. The inference that the intent to
kill existed should not be drawn in the absence of circumstances sufficient to prove
this fact beyond reasonable doubt. When such intent is lacking but wounds were
inflicted, the crime is not frustrated murder but physical injuries only. 27
Evidence on record shows that Cruz was brought to Tondo Medical Center for medical
treatment immediately after the stabbing incident.1avvphi1 Right after receiving
medical treatment, Cruz was then released by the Tondo Medical Center as an out-
patient. There was no other evidence to establish that Cruz was incapacitated for
labor and/or required medical attendance for more than nine days. Without such
evidence, the offense is only slight physical injuries. 28
We still appreciate treachery as an aggravating circumstance, it being sufficiently
alleged in the Information and proved during trial.
The Information specified that "accused, armed with a sharpened bamboo stick, with
intent to kill, treachery and evident premeditation, did then and there willfully,
unlawfully and feloniously attack, assault and stab with the said weapon one DANILO
SALVADOR CRUZ x x x."
Treachery exists when an offender commits any of the crimes against persons,
employing means, methods or forms which tend directly or especially to ensure its
execution, without risk to the offender, arising from the defense that the offended
party might make. This definition sets out what must be shown by evidence to
conclude that treachery existed, namely: (1) the employment of such means of
execution as would give the person attacked no opportunity for self-defense or
retaliation; and (2) the deliberate and conscious adoption of the means of execution.
To reiterate, the essence of qualifying circumstance is the suddenness, surprise and
the lack of expectation that the attack will take place, thus, depriving the victim of any
real opportunity for self-defense while ensuring the commission of the crime without
risk to the aggressor. 29 Likewise, even when the victim was forewarned of the danger
to his person, treachery may still be appreciated since what is decisive is that the
execution of the attack made it impossible for the victim to defend himself or to
retaliate.30
Both the RTC and the Court of Appeals found that treachery was duly proven in this
case, and we sustain such finding. Cruz, the victim, was attacked so suddenly,
unexpectedly, and without provocation. It was two o’clock in the morning of January
23, 2002, and Cruz, who was out buying bread at Mendeja’s store, was unarmed. Cruz
had his guard down and was totally unprepared for an attack on his person. Villacorta
suddenly appeared from nowhere, armed with a sharpened bamboo stick, and
without uttering a word, stabbed Cruz at the left side of his body, then swiftly ran
away. Villacorta’s treacherous mode of attack left Cruz with no opportunity at all to
defend himself or retaliate.
Article 266(1) of the Revised Penal Code provides:
ART. 266. Slight physical injuries and maltreatment. – The crime of slight physical
injuries shall be punished:
1. By arresto menor when the offender has inflicted physical injuries which shall
incapacitate the offended party from labor from one to nine days, or shall require
medical attendance during the same period.
The penalty of arresto menor spans from one (1) day to thirty (30) days. 31 The
Indeterminate Sentence Law does not apply since said law excludes from its coverage
cases where the penalty imposed does not exceed one (1) year. 32 With the aggravating
circumstance of treachery, we can sentence Villacorta with imprisonment anywhere
within arresto menor in the maximum period, i.e., twenty-one (21) to thirty (30) days.
Consequently, we impose upon Villacorta a straight sentence of thirty (30) days of
arresto menor; but given that Villacorta has been in jail since July 31, 2002 until
present time, already way beyond his imposed sentence, we order his immediate
release.
Under paragraph (1), Article 2219 of the Civil Code, moral damages may be recovered
in a criminal offense resulting in physical injuries. Moral damages compensate for the
mental anguish, serious anxiety, and moral shock suffered by the victim and his family
as being a proximate result of the wrongful act. An award requires no proof of
pecuniary loss. Pursuant to previous jurisprudence, an award of Five Thousand Pesos
(₱5,000.00) moral damages is appropriate for less serious, as well as slight physical
injuries.33

WHEREFORE, the Decision dated July 30, 2008 of the Court of Appeals in CA-G.R. CR.-
H.C. No. 02550, affirming the Decision dated September 22, 2006 of the Regional Trial
Court, Branch 170, of Malabon, in Criminal Case No. 27039-MN, is REVERSED and SET
ASIDE. A new judgment is entered finding Villacorta GUILTY beyond reasonable doubt
of the crime of slight physical injuries, as defined and punished by Article 266 of the
Revised Penal Code, and sentenced to suffer the penalty of thirty (30) days arresto
menor. Considering that Villacorta has been incarcerated well beyond the period of
the penalty herein imposed, the Director of the Bureau of Prisons is ordered to cause
Villacorta’s immediate release, unless Villacorta is being lawfully held for another
cause, and to inform this Court, within five (5) days from receipt of this Decision, of
the compliance with such order. Villacorta is ordered to pay the heirs of the late
Danilo Cruz moral damages in the sum of Five Thousand Pesos (₱5,000.00).

SO ORDERED.

G.R. No. 103119, October 21, 1992
SULPICIO INTOD, Petitioner,
vs.
HONORABLE COURT OF APPEALS AND PEOPLE OF THE
PHILIPPINES, Respondents.
SYLLABUS
1. CRIMINAL LAW; REVISED PENAL CODE; ARTICLE 4, PARAGRAPH 2 THEREOF AN
INNOVATION; PURPOSE; RATIONALE. — Article 4, paragraph 2 is an innovation of
the Revised Penal Code. This seeks to remedy the void in the Old Penal Code
where: . . . it was necessary that the execution of the act has been commenced, that the
person conceiving the idea should have set about doing the deed, employing
appropriate means in order that his intent might become a reality, and finally, that the
result or end contemplated shall have been physically possible. So long as these
conditions were not present, the law and the courts did not hold him criminally liable.
This legal doctrine left social interests entirely unprotected. The Revised Penal Code,
inspired by the Positivist School, recognizes in the offender his formidability, and now
penalizes an act which were it not aimed at something quite impossible or carried out
with means which prove inadequate, would constitute a felony against person or
against property. The rationale of Article 4(2) is to punish such criminal tendencies.
2. ID.; ID.; ID.; LEGAL IMPOSSIBILITY; EXPLAINED; FACTUAL IMPOSSIBILITY;
EXPLAINED; CASE AT BAR. — Under this article, the act performed by the offender
cannot produce an offense against persons or property because: (1) the commission
of the offense is inherently impossible of accomplishment; or (2) the means employed
is either (a) inadequate or (b) ineffectual. That the offense cannot be produced
because the commission of the offense is inherently impossible of accomplishment is
the focus of this petition. To be impossible under this clause, the act intended by the
offender must be by its nature one impossible of accomplishment. There must be
either (1) legal impossibility, or (2) physical impossibility of accomplishing the
intended act in order to qualify the act as an impossible crime. Legal impossibility
occurs where the intended acts, even if completed, would not amount to a crime.
Thus: Legal impossibility would apply to those circumstances where (1) the motive,
desire and expectation is to perform an act in violation of the law; (2) there is
intention to perform the physical act, (3) there is a performance of the intended
physical act; and (4) the consequence resulting from the intended act does not
amount to a crime. The impossibility of killing a person already dead falls in this
category. On the other hand, factual impossibility occurs when extraneous
circumstances unknown to the actor or beyond his control prevent the consummation
of the intended crime. One example is the man who puts his hand in the coat pocket of
another with the intention to steal the latter’s wallet and finds the pocket empty. The
case at bar belongs to this category. Petitioner shoots the place where he thought his
victim would be, although in reality, the victim was not present in said place and thus,
the petitioner failed to accomplish his end.
3. ID.; DIFFERENCE BETWEEN PHILIPPINE AND AMERICAN LAWS REGARDING
CONCEPT AND APPRECIATION OF IMPOSSIBLE CRIMES; CASE AT BAR. — There is a
difference between the Philippine and the American laws regarding the concept and
appreciation of impossible crimes. In the Philippines, the Revised Penal Code, in
Article 4(2), expressly provided for impossible crimes and made them punishable.
Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent
regarding this matter. What it provided for were attempts of the crimes enumerated
in the said Code. Furthermore, in said jurisdiction, the impossibility of committing the
offense is merely a defense to an attempt charge. In this regard, commentators and
the cases generally divide the impossibility defense into two categories: legal versus
factual impossibility. . . To restate, in the United States, where the offense sought to be
committed is factually impossible of accomplishment, the offender cannot escape
criminal liability. He can be convicted of an attempt to commit the substantive crime
where the elements of attempt are satisfied. It appears, therefore, that the act is
penalized, not as an impossible crime, but as an attempt to commit a crime. On the
other hand, where the offense is legally impossible of accomplishment, the actor
cannot be held liable for any crime — neither for an attempt nor for an impossible
crime. The only reason for this is that in American law, there is no such thing as an
impossible crime. Instead, it only recognizes impossibility as a defense to a crime
charge — that is, attempt. This is not true in the Philippines. In our jurisdiction,
impossible crimes are recognized. The impossibility of accomplishing the criminal
intent is not merely a defense, but an act penalized by itself. Furthermore, the phrase
"inherent impossibility" that is found in Article 4(2) of the Revised Penal Code makes
no distinction between factual or physical impossibility and legal impossibility. Ubi
lex non distinguit nec nos distinguere debemos. The factual situation in the case at bar
presents physical impossibility which rendered the intended crime impossible of
accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is
sufficient to make the act an impossible crime. To uphold the contention of
respondent that the offense was Attempted Murder because the absence of
Palangpangan was a supervening cause independent of the actor’s will, will render
useless the provision in Article 4, which makes a person criminally liable for an act
"which would be an offense against persons or property, were it not for the inherent
impossibility of its accomplishment . . ." In that case, all circumstances which
prevented the consummation of the offense will be treated as an accident provides:chanrob1es virtual 1aw library
independent of the actor’s will which is an element of attempted and frustrated
felonies. ARTICLE 4(2). Criminal Responsibility. — Criminal Responsibility shall be
incurred:chanrob1es virtual 1aw library
DECISION
x        x        x

Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of
Appeals 1 affirming in toto the judgment of the Regional Trial Court, Branch XIV, 2. By any person performing an act which would be an offense against persons or
Oroquieta City, finding him guilty of the crime of attempted property, were it not for the inherent impossibility of its accomplishment or on
murder.chanrobles.com.ph : virtual law library account of the employment of inadequate or ineffectual means.

From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and
Avelino Daligdig went to Salvador Mandaya’s house in Katugasan, Lopez Jaena,
Misamis Occidental and asked him to go with them to the house of Bernardina
Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a
meeting with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to
be killed because of a land dispute between them and that Mandaya should
accompany the four (4) men, otherwise, he would also be killed.
At about 10:00 o’clock in the evening of the game day, Petitioner, Mandaya, Pangasian,
Tubio and Daligdig, all armed with firearms, arrived at Palangpangan’s house in
Katugasan, Lopez Jaena, Misamis Occidental. At the instance of his companions,
Mandaya pointed the location of Palangpangan’s bedroom. Thereafter, Petitioner,
Pangasian, Tubio and Daligdig fired at said room. It turned out, however, that
Palangpangan was in another City and her home was then occupied by her son-in-law
and his family. No one was in the room when the accused fired the shots. No one was
hit by the gun fire.
Petitioner and his companions were positively identified by witnesses. One witness
testified that before the five men left the premises, they shouted: "We will kill you (the
witness) and especially Bernardina Palangpangan and we will come back if (sic) you
were not injured." 2 were not present, the law and the courts did not hold him criminally liable. 5
Petitioner contends that, Palangpangan’s absence from her room on the night he and
his companions riddled it with bullets made the crime inherently impossible.
On the other hand, Respondent People of the Philippines argues that the crime was
not impossible. Instead, the facts were sufficient to constitute an attempt and to
convict Intod for attempted murder. Respondent alleged that there was intent.
Further, in its Comment to the Petition, respondent pointed out that:chanrob1es
virtual 1aw library
. . . The crime of murder was not consummated, not because of the inherent
impossibility of its accomplishment (Art. 4(2), Revised Penal Code), but due to a cause
or accident other than petitioner’s and his co-accused’s own spontaneous desistance
(Art. 3., ibid.) Palangpangan did not sleep at her house at that time. Had it not been for
this fact, the crime is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to
remedy the void in the Old Penal Code where:chanrob1es virtual 1aw library
. . . it was necessary that the execution of the act has been commenced, that the person
conceiving the idea should have set about doing the deed, employing appropriate
means in order that his intent might become a reality, and finally, that the result or
end contemplated shall have been physically possible. So long as these conditions

After trial, the Regional Trial Court convicted Intod of attempted murder. The Court of
Appeals affirmed in toto the trial court’s decision. Hence this
petition.chanrobles.com.ph : virtual law library
This petition questions the decision of the Regional Trial Court (RTC), as affirmed by
the Court of Appeals, holding that Petitioner was guilty of attempted murder.
Petitioner seeks from this Court a modification of the judgment by holding him liable
only for an impossible crime, citing Article 4(2) of the Revised Penal Code which
This legal doctrine left social interests entirely unprotected. 6 The Revised Penal
Code, inspired by the Positivist School, recognizes in the offender his formidability, 7
and now penalizes an act which were it not aimed at something quite impossible or
carried out with means which prove inadequate, would constitute a felony against
person or against property. 8 The rationale of Article 4(2) is to punish such criminal
tendencies. 9
Under this article, the act performed by the offender cannot produce an offense
against persons or property because: (1) the commission of the offense is inherently
impossible of accomplishment; or (2) the means employed is either (a) inadequate or
(b) ineffectual. 10
That the offense cannot be produced because the commission of the offense is
inherently impossible of accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the offender must be by its nature
one impossible of accomplishment. 11 There must be either (1) legal impossibility, or
(2) physical impossibility of accomplishing the intended act 12 in order to qualify the
act as an impossible crime.chanrobles.com:cralaw:red
Legal impossibility occurs where the intended acts, even if completed, would not
amount to a crime. 13 Thus:chanrob1es virtual 1aw library
Legal impossibility would apply to those circumstances where (1) the motive, desire
and expectation is to perform an act in violation of the law; (2) there is intention to
perform the physical act, (3) there is a performance of the intended physical act; and
(4) the consequence resulting from the intended act does not amount to a crime. 14
The impossibility of killing a person already dead 15 falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances
unknown to the actor or beyond his control prevent the consummation of the
intended crime. 16 One example is the man who puts his hand in the coat pocket of
another with the intention to steal the latter’s wallet and finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the place where he thought
his victim would be, although in reality, the victim was not present in said place and
thus, the petitioner failed to accomplish his end.
One American case has facts almost exactly the same as this one. In People v. Lee
Kong, 18 the accused, with intent to kill, aimed and fired at the spot where he thought
the police officer would be. It turned out, however, that the latter was in a different
place. The accused failed to hit him and to achieve his intent. The Court convicted the
accused of an attempt to kill. It held that:chanrob1es virtual 1aw library
The fact that the officer was not at the spot where the attacking party imagined where
he was, and where the bullet pierced the roof, renders it no less an attempt to kill. It is
well settled principle of criminal law in this country that where the criminal result of
an attempt is not accomplished simply because of an obstruction in the way of the
thing to be operated upon, and these facts are unknown to the aggressor at the time,
the criminal attempt is committed.
In the case of Stokes v. State, 19 where the accused failed to accomplish his intent to
kill the victim because the latter did not pass by the place where he was lying-in wait,
the court held him liable for attempted murder. The court explained that:chanrobles
law library
It was no fault of Stokes that the crime was not committed . . . It only became
impossible by reason of the extraneous circumstance that Lane did not go that way;
and further, that he was arrested and prevented from committing the murder. This
rule of the law has application only where it is inherently impossible to commit the
crime. It has no application to a case where it becomes impossible for the crime to be
committed, either by outside interference or because of miscalculation as to a
supposed opportunity to commit the crime which fails to materialize; in short it has
no application to the case when the impossibility grows out of extraneous acts not
within the control of the party.
In the case of Clark v. State, 20 The court held defendant liable for attempted robbery
even if there was nothing to rob. In disposing of the case, the court quoted Mr. Justice
Bishop, to wit:chanrob1es virtual 1aw library
It being an accepted truth that defendant deserves punishment by reason of his
criminal intent, no one can seriously doubt that the protection of the public requires
the punishment to be administered, equally whether in the unseen depths of the
pocket, etc., what was supposed to exist was really present or not. The community
suffers from the mere alarm of crime. Again: ‘Where the thing intended (attempted)
as a crime and what is done is a sort to create alarm, in other words, excite
apprehension that the evil intention will be carried out, the incipient act which the
law of attempt takes cognizance of is in reason committed.
In State v. Mitchell, 21 defendant, with intent to kill, fired at the window of victim’s
room thinking that the latter was inside. However, at that moment, the victim was in
another part of the house. The court convicted the accused of attempted murder.
The aforecited cases are the same cases which have been relied upon by Respondent
to make this Court sustain the judgment of attempted murder against Petitioner.
However, we cannot rely upon these decisions to resolve the issue at hand. There is a
difference between the Philippine and the American laws regarding the concept and
appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for
impossible crimes and made them punishable. Whereas, in the United States, the Code
of Crimes and Criminal Procedure is silent regarding this matter. What it provided for
were attempts of the crimes enumerated in the said Code. Furthermore, in said
jurisdiction, the impossibility of committing the offense is merely a defense to an
attempt charge. In this regard, commentators and the cases generally divide the
impossibility defense into two categories: legal versus factual impossibility. 22 In U.S.
v. Wilson 23 the Court held that:cralawnad
. . . factual impossibility of the commission of the crime is not a defense. If the crime
could have been committed had the circumstances been as the defendant believed
them to be, it is no defense that in reality the crime was impossible of commission.
Legal impossibility, on the other hand, is a defense which can be invoked to avoid
criminal liability for an attempt. In U.S. v. Berrigan, 24 the accused was indicted for
attempting to smuggle letters into and out of prison. The law governing the matter
made the act criminal if done without the knowledge and consent of the warden. In
this case, the offender intended to send a letter without the latter’s knowledge and
consent and the act was performed. However, unknown to him, the transmittal was
achieved with the warden’s knowledge and consent. The lower court held the accused
liable for attempt but the appellate court reversed. It held unacceptable the
contention of the state that "elimination of impossibility as a defense to a charge of
criminal attempt, as suggested by the Model Penal Code and the proposed federal
legislation, is consistent with the overwhelming modern view." In disposing of this
contention, the Court held that the federal statutes did not contain such provision, and
thus, following the principle of legality, no person could be criminally liable for an act
which was not made criminal by law. Further, it said:chanrob1es virtual 1aw library
Congress has not yet enacted a law that provides that intent plus act plus conduct
constitutes the offense of attempt irrespective of legal impossibility until such time as
such legislative changes in the law take place, this court will not fashion a new non-
statutory law of criminal attempt.
the intended crime impossible of accomplishment. And under Article 4, paragraph 2
of the Revised Penal Code, such is sufficient to make the act an impossible
crime.chanrobles.com.ph : virtual law library
To uphold the contention of respondent that the offense was Attempted Murder
because the absence of Palangpangan was a supervening cause independent of the
actor’s will, will render useless the provision in Article 4, which makes a person
criminally liable for an act "which would be an offense against persons or property,
were it not for the inherent impossibility of its accomplishment . . ." In that case, all
circumstances which prevented the consummation of the offense will be treated as an
accident independent of the actor’s will which is an element of attempted and
frustrated felonies.
WHEREFORE, PREMISES CONSIDERED, the petition is hereby GRANTED, the decision
of respondent Court of Appeals holding Petitioner guilty of Attempted Murder is
hereby MODIFIED. WE hereby hold Petitioner guilty of an impossible crime as defined
and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code,
respectively. Having in mind the social danger and degree of criminality shown by
Petitioner, this Court sentences him to suffer the penalty of six (6) months of arresto
mayor, together with the accessory penalties provided by the law, and to pay the
costs.
SO ORDERED.

To restate, in the United States, where the offense sought to be committed is factually
impossible of accomplishment, the offender cannot escape criminal liability. He can be
convicted of an attempt to commit the substantive crime where the elements of
attempt are satisfied. It appears, therefore, that the act is penalized, not as an
impossible crime, but as an attempt to commit a crime. On the other hand, where the
offense is legally impossible of accomplishment, the actor cannot be held liable for any
crime — neither for an attempt nor for an impossible crime. The only reason for this
is that in American law, there is no such thing as an impossible crime. Instead, it only
recognizes impossibility as a defense to a crime charge — that is, attempt.

This is not true in the Philippines. In our jurisdiction, impossible crimes are
recognized. The impossibility of accomplishing the criminal intent is not merely a
defense, but an act penalized by itself. Furthermore, the phrase "inherent
impossibility" that is found in Article 4(2) of the Revised Penal Code makes no
distinction between factual or physical impossibility and legal impossibility. Ubi lex
non distinguit nec nos distinguere debemos.

The factual situation in the case at bar presents physical impossibility which rendered

G.R. No. 162540, July 13, 2009
GEMMA T. JACINTO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto
seeking the reversal of the Decision 1 of the Court of Appeals (CA) in CA-G.R. CR No.
23761 dated December 16, 2003, affirming petitioner's conviction of the crime of
Qualified Theft, and its Resolution2 dated March 5, 2004 denying petitioner's motion
for reconsideration.
Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera
and Jacqueline Capitle, was charged before the Regional Trial Court (RTC) of Caloocan
City, Branch 131, with the crime of Qualified Theft, allegedly committed as follows:
That on or about and sometime in the month of July 1997, in Kalookan City, Metro
Manila, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring together and mutually helping one another, being then all employees of
MEGA FOAM INTERNATIONAL INC., herein represented by JOSEPH DYHENGCO Y CO,
and as such had free access inside the aforesaid establishment, with grave abuse of
trust and confidence reposed upon them with intent to gain and without the
knowledge and consent of the owner thereof, did then and there willfully, unlawfully
and feloniously take, steal and deposited in their own account, Banco De Oro Check
No. 0132649 dated July 14, 1997 in the sum of ₱10,000.00, representing payment
made by customer Baby Aquino to the Mega Foam Int'l. Inc. to the damage and
prejudice of the latter in the aforesaid stated amount of ₱10,000.00.
CONTRARY TO LAW.3
The prosecution's evidence, which both the RTC and the CA found to be more
credible, reveals the events that transpired to be as follows.
In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino,
handed petitioner Banco De Oro (BDO) Check Number 0132649 postdated July 14,
1997 in the amount of ₱10,000.00. The check was payment for Baby Aquino's
purchases from Mega Foam Int'l., Inc., and petitioner was then the collector of Mega
Foam. Somehow, the check was deposited in the Land Bank account of Generoso
Capitle, the husband of Jacqueline Capitle; the latter is the sister of petitioner and the
former pricing, merchandising and inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone
call sometime in the middle of July from one of their customers, Jennifer Sanalila. The
customer wanted to know if she could issue checks payable to the account of Mega
Foam, instead of issuing the checks payable to CASH. Said customer had apparently
been instructed by Jacqueline Capitle to make check payments to Mega Foam payable
to CASH. Around that time, Ricablanca also received a phone call from an employee of
Land Bank, Valenzuela Branch, who was looking for Generoso Capitle. The reason for
the call was to inform Capitle that the subject BDO check deposited in his account had
been dishonored.
Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega
Foam, asking the latter to inform Jacqueline Capitle about the phone call from Land
Bank regarding the bounced check. Ricablanca explained that she had to call and relay
the message through Valencia, because the Capitles did not have a phone; but they
could be reached through Valencia, a neighbor and former co-employee of Jacqueline
Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino, and instructed
Ricablanca to ask Baby Aquino to replace the check with cash. Valencia also told
Ricablanca of a plan to take the cash and divide it equally into four: for herself,
Ricablanca, petitioner Jacinto and Jacqueline Capitle. Ricablanca, upon the advise of
Mega Foam's accountant, reported the matter to the owner of Mega Foam, Joseph
Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the
latter indeed handed petitioner a BDO check for ₱10,000.00 sometime in June 1997 as
payment for her purchases from Mega Foam.4 Baby Aquino further testified that,
sometime in July 1997, petitioner also called her on the phone to tell her that the BDO
check bounced.5 Verification from company records showed that petitioner never
remitted the subject check to Mega Foam. However, Baby Aquino said that she had
already paid Mega Foam ₱10,000.00 cash in August 1997 as replacement for the
dishonored check.6
Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO
check in his bank account, but explained that the check came into his possession when
some unknown woman arrived at his house around the first week of July 1997 to have
the check rediscounted. He parted with his cash in exchange for the check without
even bothering to inquire into the identity of the woman or her address. When he was
informed by the bank that the check bounced, he merely disregarded it as he didn’t
know where to find the woman who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation
(NBI) and worked out an entrapment operation with its agents. Ten pieces of
₱1,000.00 bills provided by Dyhengco were marked and dusted with fluorescent
powder by the NBI. Thereafter, the bills were given to Ricablanca, who was tasked to
pretend that she was going along with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner,
who was then holding the bounced BDO check, handed over said check to Ricablanca.
They originally intended to proceed to Baby Aquino's place to have the check replaced
with cash, but the plan did not push through. However, they agreed to meet again on
August 21, 2007.
On the agreed date, Ricablanca again went to petitioner’s house, where she met
petitioner and Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to the
house of Anita Valencia; Jacqueline Capitle decided not to go with the group because
she decided to go shopping. It was only petitioner, her husband, Ricablanca and
Valencia who then boarded petitioner's jeep and went on to Baby Aquino's factory.
Only Ricablanca alighted from the jeep and entered the premises of Baby Aquino,
pretending that she was getting cash from Baby Aquino. However, the cash she
actually brought out from the premises was the ₱10,000.00 marked money previously
given to her by Dyhengco. Ricablanca divided the money and upon returning to the
jeep, gave ₱5,000.00 each to Valencia and petitioner. Thereafter, petitioner and
Valencia were arrested by NBI agents, who had been watching the whole time.
Petitioner and Valencia were brought to the NBI office where the Forensic Chemist
found fluorescent powder on the palmar and dorsal aspects of both of their hands.
This showed that petitioner and Valencia handled the marked money. The NBI filed a
criminal case for qualified theft against the two and one Jane Doe who was later
identified as Jacqueline Capitle, the wife of Generoso Capitle.
The defense, on the other hand, denied having taken the subject check and presented
the following scenario.
Petitioner admitted that she was a collector for Mega Foam until she resigned on June
30, 1997, but claimed that she had stopped collecting payments from Baby Aquino for
quite some time before her resignation from the company. She further testified that,
on the day of the arrest, Ricablanca came to her mother’s house, where she was
staying at that time, and asked that she accompany her (Ricablanca) to Baby Aquino's
house. Since petitioner was going for a pre-natal check-up at the Chinese General
Hospital, Ricablanca decided to hitch a ride with the former and her husband in their
jeep going to Baby Aquino's place in Caloocan City. She allegedly had no idea why
Ricablanca asked them to wait in their jeep, which they parked outside the house of
Baby Aquino, and was very surprised when Ricablanca placed the money on her lap
and the NBI agents arrested them.
Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned
on June 30, 1997. It was never part of her job to collect payments from customers.
According to her, on the morning of August 21, 1997, Ricablanca called her up on the
phone, asking if she (Valencia) could accompany her (Ricablanca) to the house of
Baby Aquino. Valencia claims that she agreed to do so, despite her admission during
cross-examination that she did not know where Baby Aquino resided, as she had
never been to said house. They then met at the house of petitioner's mother, rode the
jeep of petitioner and her husband, and proceeded to Baby Aquino's place. When they
arrived at said place, Ricablanca alighted, but requested them to wait for her in the
jeep. After ten minutes, Ricablanca came out and, to her surprise, Ricablanca gave her
money and so she even asked, "What is this?" Then, the NBI agents arrested them.
The trial of the three accused went its usual course and, on October 4, 1999, the RTC
rendered its Decision, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De
Jacinto y Latosa, Anita Busog De Valencia y Rivera and Jacqueline
Capitle GUILTY beyond reasonable doubt of the crime of QUALIFIED THEFT and each
of them is hereby sentenced to suffer imprisonment of FIVE (5) YEARS, FIVE (5)
MONTHS AND ELEVEN (11) DAYS, as minimum, to SIX (6) YEARS, EIGHT (8)
MONTHS AND TWENTY (20) DAYS, as maximum.
SO ORDERED.7
The three appealed to the CA and, on December 16, 2003, a Decision was
promulgated, the dispositive portion of which reads, thus:
IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that:
(a) the sentence against accused Gemma Jacinto stands;
 (b) the sentence against accused Anita Valencia is reduced to 4
months arresto mayor  medium.
(c) The accused Jacqueline Capitle is acquitted.
SO ORDERED.
A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for
petitioner Gemma Tubale Jacinto, but the same was denied per Resolution dated
March 5, 2004.
Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing
the Decision and Resolution of the CA. The issues raised in the petition are as follows:
1. Whether or not petitioner can be convicted of a crime not charged in the
information;
2. Whether or not a worthless check can be the object of theft; and
3. Whether or not the prosecution has proved petitioner's guilt beyond
reasonable doubt.8
The petition deserves considerable thought.
The prosecution tried to establish the following pieces of evidence to constitute the
elements of the crime of qualified theft defined under Article 308, in relation to Article
310, both of the Revised Penal Code: (1) the taking of personal property - as shown by
the fact that petitioner, as collector for Mega Foam, did not remit the customer's check
payment to her employer and, instead, appropriated it for herself; (2) said property
belonged to another − the check belonged to Baby Aquino, as it was her payment for
purchases she made; (3) the taking was done with intent to gain – this is presumed
from the act of unlawful taking and further shown by the fact that the check was
deposited to the bank account of petitioner's brother-in-law; (4) it was done without
the owner’s consent – petitioner hid the fact that she had received the check payment
from her employer's customer by not remitting the check to the company; (5) it was
accomplished without the use of violence or intimidation against persons, nor of force
upon things – the check was voluntarily handed to petitioner by the customer, as she
was known to be a collector for the company; and (6) it was done with grave abuse of
confidence – petitioner is admittedly entrusted with the collection of payments from
customers.
However, as may be gleaned from the aforementioned Articles of the Revised Penal
Code, the personal property subject of the theft must have some value, as the
intention of the accused is to gain from the thing stolen. This is further bolstered
by Article 309, where the law provides that the penalty to be imposed on the accused
is dependent on the value of the thing stolen.
In this case, petitioner unlawfully took the postdated check belonging to Mega Foam,
but the same was apparently without value, as it was subsequently dishonored. Thus,
the question arises on whether the crime of qualified theft was actually produced.
The Court must resolve the issue in the negative.
Intod v. Court of Appeals9 is highly instructive and applicable to the present case.
In Intod, the accused, intending to kill a person, peppered the latter’s bedroom with
bullets, but since the intended victim was not home at the time, no harm came to him.
The trial court and the CA held Intod guilty of attempted murder. But upon review by
this Court, he was adjudged guilty only of an impossible crime as defined and
penalized in paragraph 2, Article 4, in relation to Article 59, both of the Revised Penal
Code, because of the factual impossibility of producing the crime. Pertinent portions
of said provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:
xxxx
2. By any person performing an act which would be an offense against persons or
property, were it not for the inherent impossibility of its accomplishment or on
account of the employment of inadequate to ineffectual means. (emphasis supplied)
Article 59. Penalty to be imposed in case of failure to commit the crime because the
means employed or the aims sought are impossible. - When the person intending to
commit an offense has already performed the acts for the execution of the same but
nevertheless the crime was not produced by reason of the fact that the act intended
was by its nature one of impossible accomplishment or because the means employed
by such person are essentially inadequate to produce the result desired by him, the
court, having in mind the social danger and the degree of criminality shown by the
offender, shall impose upon him the penalty of arresto mayor or a fine ranging from
200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act performed would be
an offense against persons or property; (2) that the act was done with evil intent; and
(3) that its accomplishment was inherently impossible, or the means employed was
either inadequate or ineffectual. The aspect of the inherent impossibility of
accomplishing the intended crime under Article 4(2) of the Revised Penal Code was
further explained by the Court in Intod10 in this wise:
Under this article, the act performed by the offender cannot produce an offense
against persons or property because: (1) the commission of the offense is inherently
impossible of accomplishment; or (2) the means employed is either (a) inadequate or
(b) ineffectual.
That the offense cannot be produced because the commission of the offense is
inherently impossible of accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the offender must be by its nature
one impossible of accomplishment. There must be either (1) legal impossibility, or (2)
physical impossibility of accomplishing the intended act in order to qualify the act as
an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not
amount to a crime.
xxxx
The impossibility of killing a person already dead falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances
unknown to the actor or beyond his control prevent the consummation of the
intended crime. x x x 11
In Intod, the Court went on to give an example of an offense that involved factual
impossibility, i.e., a man puts his hand in the coat pocket of another with the intention
to steal the latter's wallet, but gets nothing since the pocket is empty.
Herein petitioner's case is closely akin to the above example of factual impossibility
given in Intod. In this case, petitioner performed all the acts to consummate the crime
of qualified theft, which is a crime against property. Petitioner's evil intent cannot be
denied, as the mere act of unlawfully taking the check meant for Mega Foam showed
her intent to gain or be unjustly enriched. Were it not for the fact that the check
bounced, she would have received the face value thereof, which was not rightfully
hers. Therefore, it was only due to the extraneous circumstance of the check being
unfunded, a fact unknown to petitioner at the time, that prevented the crime from
being produced. The thing unlawfully taken by petitioner turned out to be absolutely
worthless, because the check was eventually dishonored, and Mega Foam had
received the cash to replace the value of said dishonored check.1avvphi1
The fact that petitioner was later entrapped receiving the ₱5,000.00 marked money,
which she thought was the cash replacement for the dishonored check, is of no
moment. The Court held in Valenzuela v. People12 that under the definition of theft in
Article 308 of the Revised Penal Code, "there is only one operative act of execution by
the actor involved in theft ─ the taking of personal property of another." Elucidating
further, the Court held, thus:
x x x Parsing through the statutory definition of theft under Article 308, there is one
apparent answer provided in the language of the law — that theft is already
"produced" upon the "tak[ing of] personal property of another without the latter’s
consent."
xxxx
x x x when is the crime of theft produced? There would be all but certain unanimity in
the position that theft is produced when there is deprivation of personal property due
to its taking by one with intent to gain. Viewed from that perspective, it is immaterial
to the product of the felony that the offender, once having committed all the acts of
execution for theft, is able or unable to freely dispose of the property stolen since the
deprivation from the owner alone has already ensued from such acts of execution. x x
x
xxxx
x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed
complete from the moment the offender gains possession of the thing, even if he has
no opportunity to dispose of the same. x x x
x x x Unlawful taking, which is the deprivation of one’s personal property, is the
element which produces the felony in its consummated stage. x x x 13
From the above discussion, there can be no question that as of the time that
petitioner took possession of the check meant for Mega Foam, she had
performed all the acts to consummate the crime of theft, had it not been
impossible of accomplishment in this case. The circumstance of petitioner
receiving the ₱5,000.00 cash as supposed replacement for the dishonored check was
no longer necessary for the consummation of the crime of qualified theft. Obviously,
the plan to convince Baby Aquino to give cash as replacement for the check was
hatched only after the check had been dishonored by the drawee bank. Since the
crime of theft is not a continuing offense, petitioner's act of receiving the cash
replacement should not be considered as a continuation of the theft. At most, the fact
that petitioner was caught receiving the marked money was merely corroborating
evidence to strengthen proof of her intent to gain.
Moreover, the fact that petitioner further planned to have the dishonored check
replaced with cash by its issuer is a different and separate fraudulent scheme.
Unfortunately, since said scheme was not included or covered by the allegations in the
Information, the Court cannot pronounce judgment on the accused; otherwise, it
would violate the due process clause of the Constitution. If at all, that fraudulent
scheme could have been another possible source of criminal liability.

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of

Appeals, dated December 16, 2003, and its Resolution dated March 5, 2004,
are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE
CRIME as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised
Penal Code, respectively. Petitioner is sentenced to suffer the penalty of six (6)
months of arrresto mayor, and to pay the costs. SO ORDERED.