+G.R. No.

166326 January 25, 2006

ESMERALDO RIVERA, ISMAEL RIVERA, EDGARDO RIVERA, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CALLEJO, SR., J.:

This is a petition for review of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No.
27215 affirming, with modification, the Decision2 of the Regional Trial Court (RTC) of Cavite,
Branch 90, in Criminal Case No. 6962-99, entitled People of the Philippines. v. Esmeraldo
Rivera, et al.

On April 12, 1999, an Information was filed in the RTC of Imus, Cavite, charging Esmeraldo,
Ismael and Edgardo, all surnamed Rivera, of attempted murder. The accusatory portion of
the Information reads:

That on or about the 3rd day of May 1998, in the Municipality of Dasmariñas, Province of
Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another, with intent to kill,
with treachery and evident premeditation, did then and there, wilfully, unlawfully, and
feloniously attack, assault and hit with a piece of hollow block, one RUBEN RODIL who
thereby sustained a non-mortal injury on his head and on the different parts of his body, the
accused thus commenced the commission of the felony directly by overt acts, but failed to
perform all the acts of execution which would produce the crime of Murder by reason of
some causes other than their own spontaneous desistance, that is, the said Ruben Rodil was
able to ran (sic) away and the timely response of the policemen, to his damage and
prejudice.

CONTRARY TO LAW.3

Ruben Rodil testified that he used to work as a taxi driver. He stopped driving in April 1998
after a would-be rapist threatened his life. He was even given a citation as a Bayaning
Pilipino by the television network ABS-CBN for saving the would-be victim. His wife eked out
a living as a manicurist. They and their three children resided in Barangay San Isidro
Labrador II, Dasmariñas, Cavite, near the house of Esmeraldo Rivera and his brothers Ismael
and Edgardo.

At noon of May 2, 1998, Ruben went to a nearby store to buy food. Edgardo mocked him for
being jobless and dependent on his wife for support. Ruben resented the rebuke and hurled
invectives at Edgardo. A heated exchange of words ensued.

At about 7:30 p.m. the next day, a Sunday, Ruben went to the store to buy food and to look
for his wife. His three-year-old daughter was with him. Momentarily, Esmeraldo and his two
brothers, Ismael and Edgardo, emerged from their house and ganged up on Ruben.
Esmeraldo and Ismael mauled Ruben with fist blows and he fell to the ground. In that
helpless position, Edgardo hit Ruben three times with a hollow block on the parietal area.
Esmeraldo and Ismael continued mauling Ruben. People who saw the incident shouted:
"Awatin sila! Awatin sila!" Ruben felt dizzy but managed to stand up. Ismael threw a stone
at him, hitting him at the back. When policemen on board a mobile car arrived, Esmeraldo,
Ismael and Edgardo fled to their house.

Ruben was brought to the hospital. His attending physician, Dr. Lamberto Cagingin, Jr.,
signed a medical certificate in which he declared that Ruben sustained lacerated wounds on
the parietal area, cerebral concussion or contusion, hematoma on the left upper buttocks,
multiple abrasions on the left shoulder and hematoma periorbital left.4 The doctor declared
that the lacerated wound in the parietal area was slight and superficial and would heal from
one to seven days.5 The doctor prescribed medicine for Ruben’s back pain, which he had to
take for one month.6

Esmeraldo testified that at around 1:00 p.m. on May 3, 1998, Ruben arrived at his house and
banged the gate. Ruben challenged him and his brothers to come out and fight. When he
went out of the house and talked to Ruben, the latter punched him. They wrestled with
each other. He fell to the ground. Edgardo arrived and pushed Ruben aside. His wife arrived,
and he was pulled away and brought to their house.

For his part, Ismael testified that he tried to pacify Ruben and his brother Esmeraldo, but
Ruben grabbed him by the hair. He managed to free himself from Ruben and the latter fled.
He went home afterwards. He did not see his brother Edgardo at the scene.

Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was throwing garbage in front
of their house. Ruben arrived and he went inside the house to avoid a confrontation. Ruben
banged the gate and ordered him to get out of their house and even threatened to shoot
him. His brother Esmeraldo went out of their house and asked Ruben what the problem
was. A fist fight ensued. Edgardo rushed out of the house and pushed Ruben aside. Ruben
fell to the ground. When he stood up, he pulled at Edgardo’s shirt and hair, and, in the
process, Ruben’s head hit the lamp post.7

On August 30, 2002, the trial court rendered judgment finding all the accused guilty beyond
reasonable doubt of frustrated murder. The dispositive portion of the decision reads:

WHEREFORE, premises considered, all the accused are found GUILTY beyond reasonable
doubt and are sentenced to an imprisonment of six (6) years and one (1) day to eight (8)
years of prision mayor as the prosecution has proved beyond reasonable doubt the
culpability of the accused. Likewise, the accused are to pay, jointly and severally, civil
indemnity to the private complainant in the amount of P30,000.00.

SO ORDERED.8

The trial court gave no credence to the collective testimonies of the accused and their
witnesses. The accused appealed to the CA, which rendered judgment on June 8, 2004
affirming, with modification, the appealed decision. The dispositive portion of the CA
decision reads:

WHEREFORE, the Decision of the Regional Trial Court of Imus, Cavite, Branch 90, is
MODIFIED in that the appellants are convicted of ATTEMPTED MURDER and sentenced to an
indeterminate penalty of 2 years of prision correccional as minimum to 6 years and 1 day of
prision mayor as maximum. In all other respects, the decision appealed from is AFFIRMED.

SO ORDERED.9

The accused, now petitioners, filed the instant petition for review on certiorari, alleging that
the CA erred in affirming the RTC decision. They insist that the prosecution failed to prove
that they had the intention to kill Ruben when they mauled and hit him with a hollow block.
Petitioners aver that, based on the testimony of Dr. Cagingin, Ruben sustained only a
superficial wound in the parietal area; hence, they should be held criminally liable for
physical injuries only. Even if petitioners had the intent to kill Ruben, the prosecution failed
to prove treachery; hence, they should be held guilty only of attempted homicide.
On the other hand, the CA held that the prosecution was able to prove petitioners’ intent to
kill Ruben:

On the first assigned error, intent to kill may be deduced from the nature of the wound
inflicted and the kind of weapon used. Intent to kill was established by victim Ruben Rodil in
his testimony as follows:

Q: And while you were being boxed by Esmeraldo and Bong, what happened next?

A: When I was already lying [down] xxx, Dagol Rivera showed up with a piece of hollow
block xxx and hit me thrice on the head, Sir.

Q: And what about the two (2), what were they doing when you were hit with a hollow
block by Dagol?

A: I was already lying on the ground and they kept on boxing me while Dagol was hitting, Sir.

As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow
block directly hit his head, and had the police not promptly intervened so that the brothers
scampered away. When a wound is not sufficient to cause death, but intent to kill is evident,
the crime is attempted. Intent to kill was shown by the fact that the (3) brothers helped
each other maul the defenseless victim, and even after he had already fallen to the ground;
that one of them even picked up a cement hollow block and proceeded to hit the victim on
the head with it three times; and that it was only the arrival of the policemen that made the
appellants desist from their concerted act of trying to kill Ruben Rodil.10

The Office of the Solicitor General (OSG), for its part, asserts that the decision of the CA is
correct, thus:

The evidence and testimonies of the prosecution witnesses defeat the presumption of
innocence raised by petitioners. The crime has been clearly established with petitioners as
the perpetrators. Their intent to kill is very evident and was established beyond reasonable
doubt.
Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly and categorically
declared that the victim Ruben Rodil was walking along St. Peter Avenue when he was
suddenly boxed by Esmeraldo "Baby" Rivera. They further narrated that, soon thereafter, his
two brothers Ismael and Edgardo "Dagul" Rivera, coming from St. Peter II, ganged up on the
victim. Both Alicia Vera Cruz and Lucita Villejo recounted that they saw Edgardo "Dagul"
Rivera pick up a hollow block and hit Ruben Rodil with it three (3) times. A careful review of
their testimonies revealed the suddenness and unexpectedness of the attack of petitioners.
In this case, the victim did not even have the slightest warning of the danger that lay ahead
as he was carrying his three-year old daughter. He was caught off-guard by the assault of
Esmeraldo "Baby" Rivera and the simultaneous attack of the two other petitioners. It was
also established that the victim was hit by Edgardo "Dagul" Rivera, while he was lying on the
ground and being mauled by the other petitioners. Petitioners could have killed the victim
had he not managed to escape and had the police not promptly intervened.

Petitioners also draw attention to the fact that the injury sustained by the victim was
superficial and, thus, not life threatening. The nature of the injury does not negate the
intent to kill. The Court of Appeals held:

As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow
block directly hit his head, and had the police not promptly intervened so that the brothers
scampered away. When a wound is not sufficient to cause death, but intent to kill is evident,
the crime is attempted. Intent to kill was shown by the fact that the three (3) brothers
helped each other maul the defenseless victim, and even after he had already fallen to the
ground; that one of them picked up a cement hollow block and proceeded to hit the victim
on the head with it three times; and that it was only the arrival of the policemen that made
the appellants desist from their concerted act of trying to kill Ruben Rodil.11

The petition is denied for lack of merit.

An essential element of murder and homicide, whether in their consummated, frustrated or

attempted stage, is intent of the offenders to kill the victim immediately before or
simultaneously with the infliction of injuries. Intent to kill is a specific intent which the
prosecution must prove by direct or circumstantial evidence, while general criminal intent is
presumed from the commission of a felony by dolo.

In People v. Delim,12 the Court declared that evidence to prove intent to kill in crimes
against persons may consist, inter alia, in the means used by the malefactors, the nature,
location and number of wounds sustained by the victim, the conduct of the malefactors
before, at the time, or immediately after the killing of the victim, the circumstances under
which the crime was committed and the motives of the accused. If the victim dies as a result
of a deliberate act of the malefactors, intent to kill is presumed.

In the present case, the prosecution mustered the requisite quantum of evidence to prove
the intent of petitioners to kill Ruben. Esmeraldo and Ismael pummeled the victim with fist
blows. Even as Ruben fell to the ground, unable to defend himself against the sudden and
sustained assault of petitioners, Edgardo hit him three times with a hollow block. Edgardo
tried to hit Ruben on the head, missed, but still managed to hit the victim only in the
parietal area, resulting in a lacerated wound and cerebral contusions.

That the head wounds sustained by the victim were merely superficial and could not have
produced his death does not negate petitioners’ criminal liability for attempted murder.
Even if Edgardo did not hit the victim squarely on the head, petitioners are still criminally
liable for attempted murder.

The last paragraph of Article 6 of the Revised Penal Code defines an attempt to commit a
felony, thus:

There is an attempt when the offender commences the commission of a felony directly by
overt acts, and does not perform all the acts of execution which should produce the felony
by reason of some cause or accident other than his own spontaneous desistance.

The essential elements of an attempted felony are as follows:

1. The offender commences the commission of the felony directly by overt acts;

2. He does not perform all the acts of execution which should produce the felony;

3. The offender’s act be not stopped by his own spontaneous desistance;

4. The non-performance of all acts of execution was due to cause or accident other than his
spontaneous desistance.13

The first requisite of an attempted felony consists of two elements, namely:

(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended to be committed.14

The Court in People v. Lizada15 elaborated on the concept of an overt or external act, thus:

An overt or external act is defined as some physical activity or deed, indicating the intention
to commit a particular crime, more than a mere planning or preparation, which if carried out
to its complete termination following its natural course, without being frustrated by
external obstacles nor by the spontaneous desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense. The raison d’etre for the law requiring a direct
overt act is that, in a majority of cases, the conduct of the accused consisting merely of acts
of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of
his declared intent. It is that quality of being equivocal that must be lacking before the act
becomes one which may be said to be a commencement of the commission of the crime, or
an overt act or before any fragment of the crime itself has been committed, and this is so for
the reason that so long as the equivocal quality remains, no one can say with certainty what
the intent of the accused is. It is necessary that the overt act should have been the ultimate
step towards the consummation of the design. It is sufficient if it was the "first or some
subsequent step in a direct movement towards the commission of the offense after the
preparations are made." The act done need not constitute the last proximate one for
completion. It is necessary, however, that the attempt must have a causal relation to the
intended crime. In the words of Viada, the overt acts must have an immediate and
necessary relation to the offense.16

In the case at bar, petitioners, who acted in concert, commenced the felony of murder by
mauling the victim and hitting him three times with a hollow block; they narrowly missed
hitting the middle portion of his head. If Edgardo had done so, Ruben would surely have
died.

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

The appellate court sentenced petitioners to suffer an indeterminate penalty of two (2)
years of prision correccional in its minimum period, as minimum, to six years and one day of
prision mayor in its maximum period, as maximum. This is erroneous. Under Article 248 of
the Revised Penal Code, as amended by Republic Act No. 7659, the penalty for murder is
reclusion perpetua to death. Since petitioners are guilty only of attempted murder, the
penalty should be reduced by two degrees, conformably to Article 51 of the Revised Penal
Code. Under paragraph 2 of Article 61, in relation to Article 71 of the Revised Penal Code,
such a penalty is prision mayor. In the absence of any modifying circumstance in the
commission of the felony (other than the qualifying circumstance of treachery), the
maximum of the indeterminate penalty shall be taken from the medium period of prision
mayor which has a range of from eight (8) years and one (1) day to ten (10) years. To
determine the minimum of the indeterminate penalty, the penalty of prision mayor should
be reduced by one degree, prision correccional, which has a range of six (6) months and one
(1) day to six (6) years.

Hence, petitioners should be sentenced to suffer an indeterminate penalty of from two (2)
years of prision correccional in its minimum period, as minimum, to nine (9) years and four
(4) months of prision mayor in its medium period, as maximum.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The Decision of
the Court of Appeals is AFFIRMED WITH THE MODIFICATION that petitioners are sentenced
to suffer an indeterminate penalty of from two (2) years of prision correccional in its
minimum period, as minimum, to nine (9) years and four (4) months of prision mayor in its
medium period, as maximum. No costs.

================
G.R. No. 138033 February 22, 2006

RENATO BALEROS, JR., Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION

GARCIA, J.:

In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the
reversal of the January 13, 1999 decision1 of the Court of Appeals (CA) in CA-G.R. CR No.
17271 as reiterated in its March 31, 1999 resolution2 denying petitioner’s motion for
reconsideration.

The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila,
Branch 2, in Criminal Case No. 91-101642 finding petitioner Renato Baleros, Jr. y David
(CHITO) guilty of attempted rape.3

The accusatory portion of the information4 dated December 17, 1991 charging petitioner
with attempted rape reads as follow:

That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and
within the jurisdiction of this Honorable Court, the above-named accused, by forcefully
covering the face of Martina Lourdes T. Albano with a piece of cloth soaked in chemical with
dizzying effects, did then and there willfully, unlawfully and feloniously commenced the
commission of rape by lying on top of her with the intention to have carnal knowledge with
her but was unable to perform all the acts of execution by reason of some cause or accident
other than his own spontaneous desistance, said acts being committed against her will and
consent to her damage and prejudice.

Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not

Guilty."5 Thereafter, trial on the merits ensued.

To prove its case, the prosecution presented thirteen (13) witnesses. Among them were
private complainant Martina Lourdes Albano (Malou), and her classmates, Joseph Bernard
Africa, Rommel Montes, Renato Alagadan and Christian Alcala. Their testimonies, as
narrated in some detail in the decision of the CA, established the following facts:

Like most of the tenants of the Celestial Marie Building (hereafter "Building", …) along A.H.
Lacson Street, Sampaloc, Manila, MALOU, occupying Room 307 with her maid, Marvilou
Bebania (Marvilou), was a medical student of the University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside,
right in front of her bedroom door, her maid, Marvilou, slept on a folding bed.

Early morning of the following day, MALOU was awakened by the smell of chemical on a
piece of cloth pressed on her face. She struggled but could not move. Somebody was
pinning her down on the bed, holding her tightly. She wanted to scream for help but the
hands covering her mouth with cloth wet with chemicals were very tight (TSN, July 5, 1993,
p. 33). Still, MALOU continued fighting off her attacker by kicking him until at last her right
hand got free. With this …the opportunity presented itself when she was able to grab hold
of his sex organ which she then squeezed.

The man let her go and MALOU went straight to the bedroom door and roused Marvilou.
xxx. Over the intercom, MALOU told S/G Ferolin that: "may pumasok sa kuarto ko
pinagtangkaan ako" (Ibid., p. 8). Who it was she did not, however, know. The only thing she
had made out during their struggle was the feel of her attacker’s clothes and weight. His
upper garment was of cotton material while that at the lower portion felt smooth and satin-
like (Ibid, p. 17). He … was wearing a t-shirt and shorts … Original Records, p. 355).

To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista,
Lutgardo Acosta and Rommel Montes were staying, MALOU then proceeded to seek help.
xxx.

It was then when MALOU saw her bed … topsy-turvy. Her nightdress was stained with blue
… (TSN, July 5, 1993, pp. 13-14). Aside from the window with grills which she had originally
left opened, another window inside her bedroom was now open. Her attacker had fled from
her room going through the left bedroom window (Ibid, Answers to Question number 5; Id),
the one without iron grills which leads to Room 306 of the Building (TSN, July 5, 1993, p.6).

xxx xxx xxx

Further, MALOU testified that her relation with CHITO, who was her classmate …, was
friendly until a week prior to the attack. CHITO confided his feelings for her, telling her:
"Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she rejected him. …. (TSN, July 5, 1993,
p. 22).
Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at
1:30 in the early morning of December 13, 1991, wearing a white t-shirt with “‘…a marking
on the front of the T-shirt T M and a Greek letter (sic) ΣΦ’ and below the quoted letters the
word ‘1946’ ‘UST Medicine and Surgery’” (TSN, October 9, 1992, p. 9) and black shorts with
the brand name “Adidas” (TSN, October 16, 1992, p.7) and requested permission to go up to
Room 306. This Unit was being leased by Ansbert Co and at that time when CHITO was
asking permission to enter, only Joseph Bernard Africa was in the room.

He asked CHITO to produce the required written authorization and when CHITO could not,
S/G Ferolin initially refused [but later, relented] …. S/G Ferolin made the following entry in
the security guard’s logbook …:

"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter
from our tenant of Unit #-306 Ansbert, but still I let him inter (sic) for the reason that he will
be our tenant this coming summer break as he said so I let him sign it here

(Sgd.) Baleros Renato Jr."

(Exhibit "A-2")

That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by
Joseph Bernard Africa (Joseph), ….

xxx xxx xxx

Joseph was already inside Room 306 at 9 o’clock in the evening of December 12, 1991. xxx
by the time CHITO’s knocking on the door woke him up, …. He was able to fix the time of
CHITO’s arrival at 1:30 A.M. because he glanced at the alarm clock beside the bed when he
was awakened by the knock at the door ….

Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23)
when he let the latter in. …. It was at around 3 o’clock in the morning of December 13, 1991
when he woke up again later to the sound of knocking at the door, this time, by Bernard
Baptista (Bernard), ….
xxx. With Bernard, Joseph then went to MALOU’s room and thereat was shown by Bernard
the open window through which the intruder supposedly passed.

xxx xxx xxx

Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to
talk to CHITO …. He mentioned to the latter that something had happened and that they
were not being allowed to get out of the building. Joseph also told CHITO to follow him to
Room 310.

CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None
was in Room 310 so Joseph went to their yet another classmate, Renato Alagadan at Room
401 to see if the others were there. xxx.

People from the CIS came by before 8 o’clock that same morning …. They likewise invited
CHITO and Joseph to go with them to Camp Crame where the two (2) were questioned ….

An occupant of Room 310 … Christian Alcala (Christian) recalled in Court that in the
afternoon of December 13, 1991, after their 3:30 class, he and his roommates, Bernard
Baptista and Lutgardo Acosta (Gary) were called to the Building and were asked by the CIS
people to look for anything not belonging to them in their Unit. While they were outside
Room 310 talking with the authorities, Rommel Montes (Loyloy), another roommate of his,
went inside to search the Unit. Loyloy found (TSN, January 12, 1993, p. 6) a gray
"Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their unit which they did not know
was there and surrender the same to the investigators. When he saw the gray bag, Christian
knew right away that it belonged to CHITO (Ibid, p. 55) as he had seen the latter usually
bringing it to school inside the classroom (Ibid, p. 45).

In their presence, the CIS opened the bag and pulled out its contents, among others, a white
t-shirt with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a
handkerchief , three (3) white T-shirts, an underwear, and socks (Ibid).

Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and
the handkerchief (Exhibit "D-3) to be CHITO’s because CHITO had lent the very same one to
him …. The t-shirt with CHITO’s fraternity symbol, CHITO used to wear on weekends, and the
handkerchief he saw CHITO used at least once in December.
That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what
consisted mainly of Renato R. Alagadan’s testimony.

xxx xxx xxx.

The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and
appeared to be full but was closed with a zipper when Renato saw it then (Ibid, pp. 19-20).
At that time Christian, Gary, Bernard, and Renato went back to Room 310 at around 3 to 4
o’clock that afternoon along with some CIS agents, they saw the bag at the same place
inside the bedroom where Renato had seen CHITO leave it. Not until later that night at past
9 o’clock in Camp Crame, however, did Renato know what the contents of the bag were.

xxx xxx xxx.

The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in
Camp Crame, having acted in response to the written request of PNP Superintendent Lucas
M. Managuelod dated December 13, 1991, (Exhibit "C"; Original Records, p. 109.) conducted
laboratory examination on the specimen collated and submitted…. Her Chemistry Report
No. C-487-91 (Exhibit "E"; Ibid., p. 112) reads in part, thus:

"SPECIMEN SUBMITTED:

xxx xxx xxx:

1) One (1) small white plastic bag marked ‘UNIMART’ with the following:

xxx xxx xxx

Exh ‘C’ – One (1) night dress colored salmon pink.

2) One (1) small white pl astic bag marked ‘JONAS’ with the following:
Exh. ‘D’ – One (1) printed handkerchief.

Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.

Exh. ‘F’ – One (1) black short (sic) marked ‘ADIDAS’.

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of volatime (sic), non-volatile and/or metallic poison on the
above stated specimens.

FINDINGS:

Toxicological examination conducted on the above stated specimens gave the following
results:

Exhs. ‘C’ and ‘D’ – POSITIVE to the test for chloroform, a volatile poison.

Exhs. ‘A’, ‘B’, ‘E’ and ‘F’ are insufficient for further analysis.

CONCLUSION:

Exhs. ‘C’ and ‘D’ contain chloroform, a volatile poison."6 (Words in bracket added)

For its part, the defense presented, as its main witness, the petitioner himself. He denied
committing the crime imputed to him or making at any time amorous advances on Malou.
Unfolding a different version of the incident, the defense sought to establish the following,
as culled from the same decision of the appellate court:

In December of 1991, CHITO was a medical student of … (UST). With Robert Chan and
Alberto Leonardo, he was likewise a member of the Tau Sigma Phi Fraternity …. MALOU, …,
was known to him being also a medical student at the UST at the time.
From Room 306 of the Celestial Marie Building …, CHITO, wearing the prescribed barong
tagalog over dark pants and leather shoes, arrived at their Fraternity house located at … Dos
Castillas, Sampaloc, Manila at about 7 o’clock in the evening of December 12, 1991. He was
included in the entourage of some fifty (50) fraternity members scheduled for a Christmas
gathering at the house of their senior fraternity brother, Dr. Jose Duran, at No. 3 John
Street, North Greenhills, San Juan. xxx.

The party was conducted at the garden beside [the] swimming pool …. Soon after, … the
four (4) presidential nominees of the Fraternity, CHITO included, were being dunked one by
one into the pool. xxx.

xxx CHITO had anticipated his turn … and was thus wearing his t-shirt and long pants when
he was dunked. Perla Duran, …, offered each … dry clothes to change into and CHITO put on
the white t-shirt with the Fraternity’s symbol and a pair of black shorts with stripes. xxx .

Again riding on Alberto’s car and wearing "barong tagalog over a white t-shirt with the
symbol TAU Sigma Phi, black short pants with stripe, socks and shoes" (TSN, April 25, 1994,
p. 15), CHITO left the party with Robert Chan and Alberto at more or less past 1 A.M. of
December 13, 1991 and proceeded to the Building which they reached at about 1:30 A.M.
(Ibid., p. 19). He had left his gray traveling bag containing "white t-shirt, sando, underwear,
socks, and toothbrush (Ibid., pp. 17-18) at room 306 in the afternoon of the previous day ….

At the gate of the Building, CHITO knocked and …, S/G Ferolin, looking at his watch,
approached. Because of this, CHITO also looked at his own watch and saw that the time was
1:30 (Ibid., p. 26). S/G Ferolin initially refused CHITO entry …. xxx.

S/G Ferolin called Unit 306 …. xxx. When S/G Ferolin finally let him in, already about ten (10)
minutes had lapsed since CHITO first arrived (Ibid., p. 25).

CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie
window and for five (5) minutes vainly tried to open the door until Rommel Montes, …
approached him and even commented: "Okey ang suot mo ha, di mo mabuksan ang pinto
(Ibid., pp. 26-29). Rommel tried to open the door of Unit 306 … but was likewise
unsuccessful. CHITO then decided to just call out to Joseph while knocking at the door.
It took another (5) minutes of calling out and knocking before Joseph, …, at last answered
the door. Telling him, "Ikaw na ang bahala diyan" Joseph immediately turned his back on
CHITO and went inside the bedroom. CHITO , …changed to a thinner shirt and went to bed.
He still had on the same short pants given by Perla Duran from the fraternity party (TSN,
June 16, 1994, p. 20).

At 6 o’clock in the morning of December 13, 1991, CHITO woke up …. He was already in his
school uniform when, around 6:30 A.M, Joseph came to the room not yet dressed up. He
asked the latter why this was so and, without elaborating on it, Joseph told him that
something had happened and to just go to Room 310 which CHITO did.

At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not
able to identify, went to the room of MALOU and tried to rape her (TSN, April 25, 1994, p.
36). xxx.

Joseph told him that the security guard was not letting anybody out of the Building …. When
two (2) CIS men came to the unit asking for Renato Baleros, CHITO presented himself.
Congressman Rodolfo B. Albano, father of MALOU, then asked him for the key to Room
306….

xxx xxx xxx

The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up
and the two (2) of them, CHITO and Joseph, were brought to Camp Crame.

When they arrived at Camp Crame …, Col. Managuelod asked Joseph inside his room and
talked to him for 30 minutes. xxx. No one interviewed CHITO to ask his side.

xxx xxx xxx

Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to
undergo physical examination at the Camp Crame Hospital ….. At the hospital, … CHITO and
Joseph were physically examined by a certain Dr. de Guzman who told them to strip ….

xxx xxx xxx

CHITO had left his gray bag containing, among others, the black striped short pants lent to
him by Perla Duran (Exhibit "8-A", Original Records, p. 345), inside Room 310 at more/less
6:30 to 7 o’clock in the morning of December 13, 1991. The next time that he saw it was
between 8 to 9 P.M. when he and Joseph were brought before Fiscal Abesamis for inquest.
One of the CIS agents had taken it there and it was not opened up in his presence but the
contents of the bag were already laid out on the table of Fiscal Abesamis who, however,
made no effort to ask CHITO if the items thereat were his.

The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray
bag which he had left at Room 306 in the early evening of December 12, 1991 before going
to the fraternity house. He likewise disavowed placing said black Adidas short pants in his
gray bag when he returned to the apartment at past 1:00 o’clock in the early morning of
December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he dressed up at about 6 o’clock
in the morning to go to school and brought his gray bag to Room 310 (Ibid. 25). In fact, at
any time on December 13, 1991, he was not aware that his gray bag ever contained any
black short Adidas pants (Ibid). He only found out for the first time that the black Adidas
short pants was alluded to be among the items inside his gray bag late in the afternoon,
when he was in Camp Crame.

Also taking the witness stand for the defense were petitioner’s fraternity brothers, Alberto
Leonardo and Robert Chan, who both testified being with CHITO in the December 12, 1991
party held in Dr. Duran’s place at Greenhills, riding on the same car going to and coming
from the party and dropping the petitioner off the Celestial Marie building after the party.
Both were one in saying that CHITO was wearing a barong tagalog, with t-shirt inside, with
short pants and leather shoes at the time they parted after the party.7 Rommel Montes, a
tenant of Room 310 of the said building, also testified seeing CHITO between the hours of
1:30 and 2:00 A.M. of December 13, 1991 trying to open the door of Room 306 while clad in
dark short pants and white barong tagalog.

On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with
stripes after the dunking party held in her father’s house.8 Presented as defense expert
witness was Carmelita Vargas, a forensic chemistry instructor whose actual demonstration
in open court showed that chloroform, being volatile, evaporates in thirty (30) seconds
without tearing nor staining the cloth on which it is applied.9

On December 14, 1994, the trial court rendered its decision10 convicting petitioner of
attempted rape and accordingly sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the
accused Renato D. Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of the crime of
attempted rape as principal and as charged in the information and hereby sentences him to
suffer an imprisonment ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY
of Prision Correctional, as Minimum to TEN (10) YEARS of Prision Mayor as Maximum, with
all the accessory penalties provided by law, and for the accused to pay the offended party
Martina Lourdes T. Albano, the sum of P50,000.00 by way of Moral and exemplary damages,
plus reasonable Attorney’s fees of P30,000.00, without subsidiary imprisonment in case of
insolvency, and to pay the costs.

SO ORDERED.

Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-
G.R. CR No. 17271.

As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999,
affirmed the trial court’s judgment of conviction, to wit:

WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a
quo, the decision appealed from is hereby AFFIRMED in toto. Costs against appellant.

SO ORDERED.11

Petitioner moved for reconsideration, but his motion was denied by the CA in its equally
assailed resolution of March 31, 1999.12

Petitioner is now with this Court, on the contention that the CA erred -

1. In not finding that it is improbable for petitioner to have committed the attempted rape
imputed to him, absent sufficient, competent and convincing evidence to prove the offense
charged.

2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence

since the prosecution failed to satisfy all the requisites for conviction based thereon.
3. In not finding that the circumstances it relied on to convict the petitioner are unreliable,
inconclusive and contradictory.

4. In not finding that proof of motive is miserably wanting in his case.

5. In awarding damages in favor of the complainant despite the fact that the award was
improper and unjustified absent any evidence to prove the same.

6. In failing to appreciate in his favor the constitutional presumption of innocence and that
moral certainty has not been met, hence, he should be acquitted on the ground that the
offense charged against him has not been proved beyond reasonable doubt.

Otherwise stated, the basic issue in this case turns on the question on whether or not the
CA erred in affirming the ruling of the RTC finding petitioner guilty beyond reasonable doubt
of the crime of attempted rape.

After a careful review of the facts and evidence on record in the light of applicable
jurisprudence, the Court is disposed to rule for petitioner’s acquittal, but not necessarily
because there is no direct evidence pointing to him as the intruder holding a chemical-
soaked cloth who pinned Malou down on the bed in the early morning of December 13,
1991.

Positive identification pertains essentially to proof of identity and not per se to that of being
an eyewitness to the very act of commission of the crime. There are two types of positive
identification. A witness may identify a suspect or accused as the offender as an eyewitness
to the very act of the commission of the crime. This constitutes direct evidence. There may,
however, be instances where, although a witness may not have actually witnessed the very
act of commission of a crime, he may still be able to positively identify a suspect or accused
as the perpetrator of a crime as when, for instance, the latter is the person or one of the
persons last seen with the victim immediately before and right after the commission of the
crime. This is the second type of positive identification, which forms part of circumstantial
evidence.13 In the absence of direct evidence, the prosecution may resort to adducing
circumstantial evidence to discharge its burden. Crimes are usually committed in secret and
under condition where concealment is highly probable. If direct evidence is insisted under
all circumstances, the prosecution of vicious felons who committed heinous crimes in secret
or secluded places will be hard, if not well-nigh impossible, to prove.14
Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial
evidence may be sufficient for conviction. The provision reads:

Sec. 4. Circumstantial evidence, when sufficient – Circumstantial evidence is sufficient for

conviction if –

a) There is more than one circumstance;

b) The facts from which the inferences are derived are proven; and

c) The combination of all the circumstances is such as to produce a conviction beyond

reasonable doubt.

In the present case, the positive identification of the petitioner forms part of circumstantial
evidence, which, when taken together with the other pieces of evidence constituting an
unbroken chain, leads to only fair and reasonable conclusion, which is that petitioner was
the intruder in question.

We quote with approval the CA’s finding of the circumstantial evidence that led to the
identity of the petitioner as such intruder:

Chito was in the Building when the attack on MALOU took place. He had access to the room
of MALOU as Room 307 where he slept the night over had a window which allowed ingress
and egress to Room 306 where MALOU stayed. Not only the Building security guard, S/G
Ferolin, but Joseph Bernard Africa as well confirmed that CHITO was wearing a black
"Adidas" shorts and fraternity T-shirt when he arrived at the Building/Unit 307 at 1:30 in the
morning of December 13, 1991. Though it was dark during their struggle, MALOU had made
out the feel of her intruder’s apparel to be something made of cotton material on top and
shorts that felt satin-smooth on the bottom.

From CHITO’s bag which was found inside Room 310 at the very spot where witness Renato
Alagadan saw CHITO leave it, were discovered the most incriminating evidence: the
handkerchief stained with blue and wet with some kind of chemicals; a black "Adidas" satin
short pants; and a white fraternity T-shirt, also stained with blue. A different witness, this
time, Christian Alcala, identified these garments as belonging to CHITO. As it turned out,
laboratory examination on these items and on the beddings and clothes worn by MALOU
during the incident revealed that the handkerchief and MALOU’s night dress both contained
chloroform, a volatile poison which causes first degree burn exactly like what MALOU
sustained on that part of her face where the chemical-soaked cloth had been pressed.

This brings the Court to the issue on whether the evidence adduced by the prosecution has
established beyond reasonable doubt the guilt of the petitioner for the crime of attempted
rape.

The Solicitor General maintained that petitioner, by pressing on Malou’s face the piece of
cloth soaked in chemical while holding her body tightly under the weight of his own, had
commenced the performance of an act indicative of an intent or attempt to rape the victim.
It is argued that petitioner’s actuation thus described is an overt act contemplated under
the law, for there can not be any other logical conclusion other than that the petitioner
intended to ravish Malou after he attempted to put her to an induced sleep. The Solicitor
General, echoing what the CA said, adds that if petitioner’s intention was otherwise, he
would not have lain on top of the victim.15

Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal
knowledge or intercourse with a woman under any of the following circumstances: (1) By
using force or intimidation; (2) When the woman is deprived of reason or otherwise
unconscious; and (3) When the woman is under twelve years of age or is demented. Under
Article 6, in relation to the aforementioned article of the same code, rape is attempted
when the offender commences the commission of rape directly by overt acts and does not
perform all the acts of execution which should produce the crime of rape by reason of some
cause or accident other than his own spontaneous desistance.16

Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M.
Recto in People vs. Lamahang,17 stated that "the attempt which the Penal Code punishes is
that which has a logical connection to a particular, concrete offense; that which is the
beginning of the execution of the offense by overt acts of the perpetrator, leading directly
to its realization and consummation." Absent the unavoidable connection, like the logical
and natural relation of the cause and its effect, as where the purpose of the offender in
performing an act is not certain, meaning the nature of the act in relation to its objective is
ambiguous, then what obtains is an attempt to commit an indeterminate offense, which is
not a juridical fact from the standpoint of the Penal Code.18
There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge
in the present case. The next question that thus comes to the fore is whether or not the act
of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou,
constitutes an overt act of rape.1avvphil.net

Overt or external act has been defined as some physical activity or deed, indicating the
intention to commit a particular crime, more than a mere planning or preparation, which if
carried out to its complete termination following its natural course, without being frustrated
by external obstacles nor by the voluntary desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense.19

Harmonizing the above definition to the facts of this case, it would be too strained to
construe petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which
would induce her to sleep as an overt act that will logically and necessarily ripen into rape.
As it were, petitioner did not commence at all the performance of any act indicative of an
intent or attempt to rape Malou. It cannot be overemphasized that petitioner was fully
clothed and that there was no attempt on his part to undress Malou, let alone touch her
private part. For what reason petitioner wanted the complainant unconscious, if that was
really his immediate intention, is anybody’s guess. The CA maintained that if the petitioner
had no intention to rape, he would not have lain on top of the complainant. Plodding on,
the appellate court even anticipated the next step that the petitioner would have taken if
the victim had been rendered unconscious. Wrote the CA:

The shedding of the clothes, both of the attacker and his victim, will have to come later. His
sexual organ is not yet exposed because his intended victim is still struggling. Where the
intended victim is an educated woman already mature in age, it is very unlikely that a rapist
would be in his naked glory before even starting his attack on her. He has to make her lose
her guard first, or as in this case, her unconsciousness.20

At bottom then, the appellate court indulges in plain speculation, a practice disfavored
under the rule on evidence in criminal cases. For, mere speculations and probabilities
cannot substitute for proof required to establish the guilt of an accused beyond reasonable
doubt.21

In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of
attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution to produce the felony.
Thus, for there to be an attempted rape, the accused must have commenced the act of
penetrating his sexual organ to the vagina of the victim but for some cause or accident other
than his own spontaneous desistance, the penetration, however, slight, is not completed.

xxx xxx xxx

Petitioner’s act of lying on top of the complainant, embracing and kissing her, mashing her
breasts, inserting his hand inside her panty and touching her sexual organ, while admittedly
obscene and detestable acts, do not constitute attempted rape absent any showing that
petitioner actually commenced to force his penis into the complainant’s sexual organ. xxx.

Likewise in People vs. Pancho,23 the Court held:

xxx, appellant was merely holding complainant’s feet when his Tito Onio arrived at the
alleged locus criminis. Thus, it would be stretching to the extreme our credulity if we were
to conclude that mere holding of the feet is attempted rape.

Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the
premises, of any wrongdoing whatsoever. The information filed against petitioner contained
an allegation that he forcefully covered the face of Malou with a piece of cloth soaked in
chemical. And during the trial, Malou testified about the pressing against her face of the
chemical-soaked cloth and having struggled after petitioner held her tightly and pinned her
down. Verily, while the series of acts committed by the petitioner do not determine
attempted rape, as earlier discussed, they constitute unjust vexation punishable as light
coercion under the second paragraph of Article 287 of the Revised Penal Code. In the
context of the constitutional provision assuring an accused of a crime the right to be
informed of the nature and cause of the accusation,24 it cannot be said that petitioner was
kept in the dark of the inculpatory acts for which he was proceeded against. To be sure, the
information against petitioner contains sufficient details to enable him to make his defense.
As aptly observed by then Justice Ramon C. Aquino, there is no need to allege malice,
restraint or compulsion in an information for unjust vexation. As it were, unjust vexation
exists even without the element of restraint or compulsion for the reason that this term is
broad enough to include any human conduct which, although not productive of some
physical or material harm, would unjustly annoy or irritate an innocent person.25 The
paramount question is whether the offender’s act causes annoyance, irritation, torment,
distress or disturbance to the mind of the person to whom it is directed.26 That Malou, after
the incident in question, cried while relating to her classmates what she perceived to be a
sexual attack and the fact that she filed a case for attempted rape proved beyond cavil that
she was disturbed, if not distressed by the acts of petitioner.

The penalty for coercion falling under the second paragraph of Article 287 of the Revised
Penal Code is arresto menor or a fine ranging from ₱5.00 to ₱200.00 or both.

===============

PEOPLE VS. KALALO

G. R. Nos. 39303-39305, March 17, 1934 THE PEOPLE OF THE PHILIPPINE ISLANDS,
PLAINTIFF AND APPELLEE, VS. FELIPE KALALO ET AL., DEFENDANTS. FELIPE KALALO,
MARCELO KALALO, JUAN KALALO, AND GREGORIO RAMOS, APPELLANTS.

DECISION

DIAZ, J.:

On November 10, 1932, the herein appellants Felipe Kalalo, Marcelo Kalalo, Juan Kalalo and
Gregorio Ramos, were tried in the Court of First Instance of Batangas jointly with Alejandro
Garcia, Fausta Abrenica and Alipia Abrenica in criminal cases Nos. 6858, 6859 and 6860, the
first two for murder, and the last for frustrated murder. Upon agreement of the parties said
three cases were tried together and after the presentation of their respective evidence, the
said court acquitted Alejandro Garcia, Fausta Abrenica and Alipia Abrenica, and sentenced
the appellants as follows:
In case No. 6858, for the alleged murder of Marcelino Panaligan, to seventeen years, four
months and one day of reclusion temporal, with the corresponding accessory penalties, and
to indemnify the heirs of the said deceased Marcelino Panaligan in the sum of P1,000, with
the costs.

In case No. 6859, for the alleged murder of Arcadio Holgado, to seventeen years, four
months and one day of reclusion temporal, with the corresponding accessory penalties, and
to indemnify the heirs of the aforesaid victim, the deceased Arcadio Holgado, in the sum of
P1,000, with the costs.
In the third case, that is, No. 6860, wherein the court a quo held that the crime committed
was simply that of discharge of firearms, not frustrated murder, the appellant Marcelo
Kalalo was sentenced to one year, eight months and twenty-one days of prision correccional
and to pay the proportionate part of the costs of the proceedings. Felipe Kalalo and Juan
Kalalo, as well as their co-accused Fausta and Alipia Abrenica, Gregorio Ramos and
Alejandro Garcia, were acquitted of the charges therein.

A careful study and examination of the evidence presented disclose the following facts:
Prior to October 1,1932, the date of the commission of the three crimes alleged in the three
informations which gave rise to the aforesaid three cases Nos. 6858, 6859 and 6860, the
appellant Marcelo Kalalo or Calalo and Isabela Holgado or Olgado, the latter being the sister
of the deceased Arcadio Holgado and a cousin of the other deceased Marcelino Panaligan,
had a litigation over a parcel of land situated in the barrio of Calumpang of the municipality
of San Luis, Province of Batangas. On September 28, 1931, and again on December 8th of
the same year, Marcelo Kalalo filed a complaint against the said woman in the Court of First
Instance of Batangas. By virtue of a motion filed by his opponent Isabela Holgado, his first
complaint was dismissed on December 7, 1931, and his second complaint was likewise
dismissed on February 5, 1932. Marcelo Kalalo cultivated the land in question during the
agricultural years 1931 and 1932, but when harvest time came Isabela Holgado reaped all
that had been planted thereon.

On October 1, 1932, Isabela Holgado and her brother Arcadio Holgado, one of the deceased,
decided to order the aforesaid land plowed, and employed several laborers for that
purpose. These men, together with Arcadio Holgado, went to the said land early that day,
but Marcelo Kalalo, who had been informed thereof, proceeded to the place accompanied
by his brothers Felipe and Juan Kalalo, his brother-in-law Gregorio Ramos and by Alejandro
Garcia, who were later followed by Fausta Abrenica and Alipia Abrenica, mother and aunt,
respectively, of the first three.

The first five were all armed with bolos. Upon their arrival at the said land, they ordered
those who were plowing it by request of Isabela and Arcadio Holgado, to stop, which they
did in view of the threatening attitude of those who gave them said order.

Shortly after nine o'clock on the morning of the same day, Isabela Holgado, Maria Gutierrez
and Hilarion Holgado arrived at the place with food for the laborers. Before the men
resumed their work, they were given their food and not long after they had finished eating,
Marcelino Panaligan, cousin of said Isabela and Arcadio, likewise arrived. Having been
informed of the cause of the suspension of the work, Marcelino Panaligan ordered said
Arcadio and the other laborers to again hitch their respective carabaos to continue the work
already began. At this juncture, the appellant Marcelo Kalalo approached Arcadio, while the
appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos, in turn, approached Marcelino
Panaligan. At a remark from Fausta Abrenica, mother of the Kalalos, about as follows, "what
is detaining you?" they all simultaneously struck with their bolos, the appellant Marcelo
Kalalo slashing Arcadio Holgado, while the appellants Felipe Kalalo, Juan Kalalo and Gregorio
Ramos slashed Marcelino Panaligan, inflicting upon them the wounds enumerated and
described in the medical certificates Exhibits I and H. Arcadio Holgado and Marcelino
Panaligan died instantly from the wounds received by them in the presence of Isabela
Holgado and Maria Gutierrez, not to mention the accused. The plowmen hired by Arcadio
and Isabela all ran away.

Arcadio Holgado's body bore the following six wounds, to wit:

"1. A cut wound on the ulnar side of right arm near the wrist, cutting the ulnar bone
completely and, the radius partially.

"2. A cut wound on the anterior upper portion of the left arm measuring about 7 cm. long
and 5 cm. wide extending to the bone and cutting the deltoid muscle across.

"3. A penetrating wound on the left chest just below the clavicle going thru the first
intercostal space measuring about 3 cm. long and 2 cm. wide.

"4. A wound on the left side of the back about 20 cm. long following the 10th intercostal
space and injuring the lung, diaphragm, stomach and large intestine.

"5. A small superficial cut wound about 2 cm. long and 1/2 cm. wide situated on the inner
side of the right scapula.

"6. A superficial wound barely cutting the skin, about 4 cm. long in the lumbar region just to
the right of the spinal column." (Exhibit I.)

Marcelino Panaligan's body, in turn, bore the following fourteen wounds, to wit:

"1. A penetrating cut wound in the epigastric region of the abdomen measuring about 7 cm.
long and 3 cm. wide cutting the omentum and injuring the lower portion of the stomach and
a portion of the transverse colon, but no actual perforation of either one of the two organs.
"2. A cut wound on the head just above the forehead about 6 cm. long and 4 cm. wide lifting
a portion of scalp as a flap.

"3. A cut wound on the left side of the head measuring about 7 cm. long and 2 cm. wide.

"4. A cut wound about 12 cm, long across the face just below the eyes extending from one
cheek bone to the other, perforating the left antrum and cutting the nasal bone.

"5. A cut wound on the anterior portion of the left forearm extending to the bone with a
flap of skin and muscle which measures about 12 cm. long and 6 cm. wide.

"6. A cut wound across the dorsal side of the right hand about 5 cm. long and 2 cm. wide
cutting the bones of the hand.

"7. A superficial wound about 6 cm. long and 4 cm. wide and 2 cm. deep situated in the left
axilla.

"8. A cut wound about 6 cm. long and 2 cm. wide situated over the left scapula.

"9. A cut wound on the right shoulder about 6 cm. long passing near the inner angle of the
scapula cutting the muscles of the shoulder.

"10. A cut wound about 7 cm. long and 3 cm. wide situated near and almost parallel to the
inner border of the right scapula.

"11. A wound on the back of the head, oval in shape, about 10 cm. long and 5 cm. wide from
which a flap of scalp was removed.

"12. A wound across the back and left side of the neck about 12 cm. long and 7 cm. deep
cutting the vertebral column together with the great arteries and veins on the left side of
the neck.
"13. A wound about 15 cm. long and 4 cm. wide on the left side of the back.

"14. A small wound on the left thumb from which a portion of the bone and other tissues
were removed." (Exhibit H.)

The above detailed description of the wounds just enumerated disclosesand there is nothing
of record to contradict itthat all of them were caused by a sharp instrument or instruments.

After Arcadio Holgado and Marcelino Panaligan had fallen to the ground dead, the appellant
Marcelo Kalalo took from its holster on the belt of Panaligan's body, the revolver which the
deceased carried, and fired four shots at Hilarion Holgado who was then fleeing from the
scene in order to save his own life.

The appellants attempted to prove that the fight, which resulted in the death of the two
deceased, was provoked by Marcelino Panaligan who fired a shot at Marcelo Kalalo upon
seeing the latter's determination to prevent Arcadio Holgado and his men from plowing the
land in question. No such firing, however, can be taken into consideration, in the first place,
because of the existence of competent evidence such as the testimony of Maria Gutierrez,
who is a disinterested witness, which corroborates that of Isabela Holgado in all its details,
showing that the said deceased was already lying prostrate and lifeless on the ground when
the appellant Marcelo Kalalo approached him to take his revolver for the purpose of using it,
as he in fact did, against Hilarion Holgado; in the second place, because the assault and
aggression of the said appellant were not directed against said Marcelino Panaligan but
exclusively against Arcadio Holgado, the evidence of record on this point being
overwhelming, and if his claim were true, he naturally should have directed his attack at the
person who openly made an attempt against his life; in the third place, because the
evidence shows without question that Panaligan was an expert shot with a revolver, and
among the eight wounds that the appellant Marcelo Kalalo received (Exhibit 3), not one
appears to have been caused by bullet, and similarly, none of the other appellants received
any wound that might, in any way, suggest the possibility of having been caused by bullet;
and finally, because the fact that he and his co-appellants, together with those who had
been charged jointly with them, had gone to the place of the crime armed with bolos,
determined at any cost to prevent the Holgados from plowing the land in dispute, cannot
but disclose not only their determination to resort to violence or something worse, but that
they did not need any provocation in order to carry out their intent.

They likewise attempted to prove that the appellant Marcelo Kalalo alone fought against the
deceased Marcelino Panaligan and Arcadio Holgado and inflicted upon them the wounds
which resulted in their death, said appellant testifying that, he was compelled to do so in
defense of his own life because both of the deceased attacked him first, the former with a
revolver, firing three shots at him, and the latter with a bolo. For the same reasons
hereinbefore stated, such defense of the appellants cannot be given credit. One man alone
could not have inflicted on the two deceased their multiple wounds, particularly when it is
borne in mind that one of them was better armed, because he carried a revolver, and that
he was furthermore an expert shot and scarcely two arm-lengths from Kalalo, according to
the latter's own testimony. The two witnesses for the defense, who witnessed the crime
very closely, refuted such allegation saying that Marcelo Kalalo alone fought the deceased
Arcadio Holgado and that the other three appellants went after the other deceased. It is
true that Arcadio Holgado also used his bolo to defend himself from Marcelo Kalalo's
aggression but it is no less true that five of the principal wounds of the other deceased
Marcelino Panaligan were inflicted on him from behind, inasmuch as according to Exhibit H
they were all found at the back of the head, on the neck and on his back. Neither is it less
true that all the wounds of the appellant Marcelo Kalalo were inflicted on him from the
front, which fact shows that it was not he alone who inflicted the wounds on the two
deceased because had he been alone Panaligan would not have exposed his back to be thus
attacked from behind, inasmuch as he was armed with a revolver, which circumstance
undoubtedly allowed him to keep at a distance from Kalalo; and in connection with the
testimony of Isabela Holgado and Maria Gutierrez, said circumstance shows furthermore
that the three appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos attacked said
Panaligan with their respective bolos at the same time that Marcelo Kalalo attacked Arcadio
Holgado, in order that all might act simultaneously in conformity with the common intent of
the four and of their co-accused to eliminate through violence and at any cost, without
much risk to them, all those who wanted to plow the land which was the cause of the
dispute between the two parties. And it is not strange that the three appellants, who
inflicted the wounds upon Marcelino Panaligan, should act as they did, because they knew
that the latter carried a revolver in a holster on his belt.

Although it may seem a repetition or redundancy, it should be stated that Marcelo Kalalo's
allegation that he acted in self-defense is absolutely unfounded on the ground that, were it
true that the deceased Marcelino Panaligan succeeded in using his revolver, he would have
wounded if not the said appellant, at least the other appellants.

The trial court has acted correctly in not giving credit to the testimony of the appellants Juan
and Felipe Kalalo and Gregorio Ramos that they proceeded to the scene of the crime
completely unarmed, with the exception that one of them had a brush in his hand and the
other a plane, after Marcelino Panaligan and Arcadio Holgado had already expired, which is
incredible and improbable under the circumstances, knowing, as in fact they then knew,
that their brother Marcelo Kalalo had been attacked by armed men. This court cannot help
but agree with the decision of the lower court where it states:
"It is improbable that after having been informed that their brother was engaged in a fight,
they went to the scene of the crime, one merely armed with a plane and the other with a
brush. It is improbable that Felipe Kalalo also went to that place simply to follow Juan Kalalo
and Gregorio Ramos upon seeing them run unarmed in that direction. These improbabilities
of the defenses of the accused, in the face of the positive and clear testimony of the
eyewitnesses pointing to the said accused as the aggressors of the deceased Marcelino
Panaligan and Arcadio Holgado, cannot, of course, prevail against nor detract from the
weight of the evidence of the prosecution, particularly taking into consideration the
numerous wounds of each of the deceased and the positions thereof, which show that the
said deceased were attacked by several persons and that those several persons were the
defendants. Furthermore, the established fact that after the commission of the crime the
said defendants had been in hiding in order to avoid arrest, is corroborative evidence of
their guilt."

It certainly is a fact of record that the said three appellants Felipe Kalalo, Juan Kalalo and
Gregorio Ramos were not arrested until after several days, because they had been hiding or,
at least, absenting themselves from their homes.

That the four appellants should all be held liable for the death of the two deceased leaves
no room for doubt. All of them, in going to the land where the killing took place, were
actuated by the same motive which was to get rid of all those who might insist on plowing
the land which they believed belonged to one of them, that is, to Marcelo Kalalo, a fact
naturally inferable from the circumstance that all of them went there fully armed and that
they simultaneously acted after they had been instigated by their mother with the words
hereinbefore stated, to wit: "What is detaining you ?"

The question now to be decided is whether the appellants are guilty of murder or of simple
homicide in each of cases G. R. No. 39303 and G. R. No. 39304. The Attorney-General
maintains that they are guilty of murder in view of the presence of the qualifying
circumstance of abuse of superior strength in the commission of the acts to which the said
two cases particularly refer. The trial court was of the opinion that they are guilty of simple
homicide but with the aggravating circumstance of abuse of superior strength.

It is true that under article 248 of the Revised Penal Code, which defines murder, the
circumstance of "abuse of superior strength", if proven to have been present, raises
homicide to the category of murder; but this court is of the opinion that said circumstance
may not properly be taken into consideration in the two cases at bar, either as a qualifying
or as a generic circumstance, if it is borne in mind that the deceased were also armed, one
of them with a bolo, and the other with a revolver. The risk was even for the contending
parties and their strength was almost balanced because there is no doubt but that, under
circumstances similar to those of the present case, a revolver is as effective as, if not more
so than three bolos. For this reason, this court is of the opinion that the acts established in
cases Nos. 6858 and 6859 (G. R. Nos. 39303 and 39304, respectively), merely constitute two
homicides, with no modifying circumstance to be taken into consideration because none has
been proved.

As to case No. 6860 (G. R. No. 39305), the evidence shows that Marcelo Kalalo fired four
successive shots at Hilarion Holgado while the latter was fleeing from the scene of the crime
in order to be out of reach of the appellants and their companions and save his own life. The
fact that the said appellant, not having contented himself with firing only once, fired said
successive shots at Hilarion Holgado, added to the circumstance that immediately before
doing so he and his co-appellants had already killed Arcadio Holgado and Marcelino
Panaligan, cousin and brother-in-law, respectively, of the former, shows that he was then
bent on killing said Hilarion Holgado. He performed everything necessary on his part to
commit the crime that he determined to commit but he failed by reason of causes
independent of his will, either because of his poor aim or because his intended victim
succeeded in dodging the shots, none of which found its mark. The acts thus committed by
the said appellant Marcelo Kalalo constitute attempted homicide with no modifying
circumstance to be taken into consideration, because none has been established.

Wherefore, the three appealed sentences are hereby modified as follows:

In case No. 6858, or G. R. No. 39303, the court finds that the crime committed by the
appellants is homicide and they are hereby sentenced to fourteen years, eight months and
one day of reclusion temporal each, to jointly and severally indemnify the heirs of Marcelino
Panaligan in the sum of P1,000 and to pay the proportionate part of the costs of the
proceedings of both instances; and by virtue of the provisions of Act No. 4103, the minimum
of the said penalty of reclusion temporal is hereby fixed at nine years;

In case No. 6859, or G. R. No. 39304, the court likewise finds that the crime committed by
the appellants is homicide, and they are hereby sentenced to fourteen years, eight months
and one day of reclusion temporal each, to jointly and severally indemnify the heirs of
Arcadio Holgado in the sum of P1,000 and to pay the proportionate part of the costs of both
instances; and in conformity with the provisions of Act No. 4103, the minimum of the
penalty of reclusion temporal herein imposed upon them is hereby fixed at nine years;

In case No. 6860, or G. R. No. 39305, the court finds that the crime committed by the
appellant Marcelo Kalalo is attempted homicide, and he is hereby sentenced to two years,
four months and one day of prision correccional, it being understood that by virtue of the
provisions of said Act No. 4103, the minimum of this penalty is six months, and he is
furthermore sentenced to pay the costs of the appeal in this case.

In all other respects, the appealed sentences in the said three cases are hereby affirmed
without prejudice to crediting the appellants therein with one-half of the time during which
they have undergone preventive imprisonment, in accordance with article 29 of the Revised
Penal Code. So ordered.

Street, Abad Santos, Hull, and Butte, JJ., concur.

=================
WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional
Trial Court of Manila, is hereby REVERSED and SET ASIDE and a new one entered
ACQUITTING petitioner Renato D. Baleros, Jr. of the charge for attempted rape. Petitioner,
however, is adjudged GUILTY of light coercion and is accordingly sentenced to 30 days of
arresto menor and to pay a fine of ₱200.00, with the accessory penalties thereof and to pay
the costs.

============

G.R. No. 33463 December 18, 1930

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
BASILIO BORINAGA, defendant-appellant.
Paulo Jaro for appellant.
Attorney-General Jaranilla for appellee.
MALCOM, J.:

Sometime prior to March 4, 1929, an American by the name of Harry H. Mooney, a resident
of the municipality of Calubian, Leyte, contracted with one Juan Lawaan for the construction
of a fish corral. Basilio Borinaga was associated with Lawaan in the construction of the
corral. On the morning of March 4, 1929, Lawaan, with some of his men, went to Mooney's
shop and tried to collect from him the whole amount fixed by the contract, notwithstanding
that only about two-thirds of the fish corral had been finished. As was to be expected,
Mooney refused to pay the price agreed upon at that time. On hearing this reply of Mooney,
Lawaan warned him that if he did not pay, something would happen to him, to which
Mooney answered that if they wanted to do something to him they should wait until after
breakfast, Lawaan then left with his men, and Mooney, after partaking of his morning meal,
returned to his shop.

On the evening of the same day, Mooney was in the store of a neighbor by the name of
Perpetua Najarro. He had taken a seat on a chair in front of the Perpetua, his back being to
the window. Mooney had not been there long when Perpetua saw Basilio Borinaga from the
window strike with a knife at Mooney, but fortunately for the latter, the knife lodged in the
back of the chair on which Mooney was seated. Mooney fell from the chair as a result of the
force of the blow, but was not injured. Borinaga ran away towards the market place. Before
this occurred, it should be stated that Borinaga had been heard to tell a companion: "I will
stab this Mooney, who is an American brute." After the attack, Borinaga was also heard to
say that he did not hit the back of Mooney but only the back of the chair. But Borinaga was
persistent in his endeavor, and hardly ten minutes after the first attack, he returned, knife in
hand, to renew it, but was unable to do so because Mooney and Perpetua were then on
their guard and turned a flashlight on Borinaga, frightening him away. Again the same night,
Borinaga was overheard stating that he had missed his mark and was unable to give another
blow because of the flashlight. The point of the knife was subsequently, on examination of
the chair, found embedded in it.

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

The homicidal intent of the accused was plainly evidenced. The attendant circumstances
conclusively establish that murder was in the heart and mind of the accused. More than
mere menaces took place. The aggressor stated his purpose, which was to kill, and
apologized to his friends for not accomplishing that purpose. A deadly weapon was used.
The blow was directed treacherously toward vital organs of the victim. The means used
were entirely suitable for accomplishment. The crime should, therefore, be qualified as
murder because of the presence of the circumstance of treachery.

The only debatable question, not referred to in the briefs, but which must be decided in
order to dispose of the appeal, is: Do the facts constitute frustrated murder or attempted
murder within the meaning of article 3 of the Penal Code? Although no exact counterpart to
the facts at bar has been found either in Spanish or Philippine jurisprudence, a majority of
the court answer the question propounded by stating that the crime committed was that of
frustrated murder. This is true notwithstanding the admitted fact that Mooney was not
injured in the least.

The essential condition of a frustrated crime, that the author perform all the acts of
execution, attended the attack. Nothing remained to be done to accomplish the work of the
assailant completely. The cause resulting in the failure of the attack arose by reason of
forces independent of the will of the perpetrator. The assailant voluntarily desisted from
further acts. What is known as the subjective phase of the criminal act was passed. (U. S. vs.
Eduave [1917], 36 Phil., 209; People vs. Mabugat [1926], 51 Phil., 967.)

No superfine distinctions need be drawn in favor of that accused to establish a lesser crime
than that of frustrated murder, for the facts disclose a wanton disregard of the sanctity of
human life fully meriting the penalty imposed in the trial court.

Based on foregoing considerations, the judgment appealed from will be affirmed, with the
costs of this instance against the appellant.

Avanceña, C.J., Villamor, Ostrand, Johns and Romualdez, JJ., concur.lawphi1>net

Separate Opinions

VILLA-REAL, J., dissenting:

We dissent from the opinion of the majority in so far as it finds the defendant-appellant
guilty of the crime of frustrated murder instead of that of an attempt to commit murder.

Article 3 of the Penal Code provides as follows:

ART. 3. Frustrated felonies and attempts to commit felonies are punishable, as well as those
which are consummated.
A felony is frustrated when the offender performs all the acts of execution which should
produce the felony as a consequence, but which, nevertheless, do no produce it by reason
of causes independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of the felony directly by
overt acts, and does not perform all the acts of execution which constitute the felony by
reason of some cause or accident other than his own voluntary desistance.

The pertinent facts as found by the court below and by this court are the following:

On the evening of the same day, Mooney was in the store of a neighbor by the name of
Perpetua Najarro. He had taken a seat on a chair in front of Perpetua, his back being to the
window. Mooney had not been there long when Perpetua saw Basilio Borinaga from the
window strike with a knife at Mooney, but fortunately for the latter, the knife lodged in the
back of the chair on which Mooney was seated. Mooney fell from the chair as a result of the
force of the blow, but was not injured. Borinaga ran away towards the market place. Before
this occurred, it should be stated that Borinaga had been heard to tell a companion: "I will
stab this Mooney, who is an American brute." After the attack, Borinaga was also heard to
say that he did not hit the back of Mooney but only the back of the chair. But Borinaga was
persistent in his endeavor, and hardly ten minutes after the first attack, he returned, knife in
hand, to renew it, but was unable to do so because Mooney and Perpetua were then on
their guard and turned a flashlight on Borinaga, frightening him away. Again that same
night, Borinaga was overheard stating that he had missed his mark and was unable to give
another blow because of the flashlight. The point of the knife was subsequently, on
examination of the chair, found embedded in it.

Since the facts constituting frustrated felony and those constituting an attempt to commit
felony are integral parts of those constituting consummated felony, it becomes important to
know what facts would have been necessary in order that the case at bar might have been a
consummated murder, so that we may determine whether the facts proved during the trial
constitute frustrated murder or simply an attempt to commit murder.

In order that the crime committed by the defendant-appellant might have been a
consummated murder it would have been necessary for him to have inflicted a deadly
wound upon a vital spot of the body of Mooney, with treachery, as a result of which he
should have died.
Since according to the definition given by the Code a frustrated felony is committed "when
the offender performs all the acts of execution which should produce the felony as a
consequence, but which, nevertheless, do not produce it by reason of causes independent
of the will of the perpetrator" let us examine the facts of record to find out whether the said
defendant-appellant has performed all the acts of execution which should produce the
murder of Mooney as a consequence. The prisoner at bar, intending to kill Mooney,
approached him stealthily from behind and made movement with his right hand to strike
him in the back with a deadly knife, but the blow, instead of reaching the spot intended,
landed on the frame of the back of the chair on which Mooney was sitting at the time and
did not cause the slightest physical injury on the latter. The acts of execution performed by
the defendant-appellant did not produce the death of Mooney as a consequence nor could
they have produced it because the blow did not reach his body; therefore the culprit did not
perform all the acts of execution which should produce the felony. There was lacking the
infliction of the deadly wound upon a vital spot of the body of Mooney.

It is true that the frame of the back of the chair stood between the deadly knife and the
back of Mooney; but what it prevented was the wounding of said Mooney in the back and
not his death, had he been wounded. It is the preventing of death by causes independent of
the will of the perpetrator, after all the acts of execution which should produce the felony as
a consequence had been performed, that constitutes frustrated felony, according to the
law, and not the preventing of the performance of all the acts of execution which constitute
the felony, as in the present case. The interference of the frame of the back of the chair
which prevented the defendant-appellant from wounding Mooney in the back with a deadly
knife, made his acts constitute an attempt to commit murder; for he had commenced the
commission of the felony directly by overt acts, and did not perform all the acts of execution
which constitute the felony by reason of a cause or accident other than his own voluntary
desistance.

The foregoing considerations force us to the conclusion that the facts alleged in the
information and proved during the trial are not sufficient to constitute the crime of
frustrated murder, but simply the crime of an attempt to commit murder.

===========

G.R. No. 79123-25 January 9, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EMELIANO TRINIDAD, accused-appellant.

The Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for accused-appellant.

MELENCIO-HERRERA, J.:

On the sole issue that the adduced evidence is insufficient to prove his guilt beyond
reasonable doubt of two crimes of Murder and one of Frustrated Murder with which he has
been charged, accused Emeliano Trinidad appeals from the judgment of the Regional Trial
Court, Branch 7, Bayugan, Agusan del Sur.

From the testimony of the principal witness, Ricardo TAN, the prosecution presents the
following factual version:

The deceased victim, Lolito Soriano, was a fish dealer based in Davao City. His helpers were
TAN, a driver, and the other deceased victim Marcial LAROA. On 19 January 1983, using a
Ford Fiera, they arrived at Butuan City to sell fish. In the morning of 20 January 1983
SORIANO drove the Fiera to Buenavista, Agusan del Norte, together with LAROA and a
helper of one Samuel Comendador. TAN was left behind in Butuan City to dispose of the fish
left at the Langihan market. He followed SORIANO and LAROA, however, to Buenavista later
in the morning.

While at Buenavista, accused Emeliano TRINIDAD, a member of the Integrated National

Police, assigned at Nasipit Police Station, and residing at Baan, Butuan City, asked for a ride
to Bayugan, Agusan del Sur, which is on the way to Davao City. TRINIDAD was in uniform
and had two firearms, a carbine, and the other, a side-arm .38 caliber revolver. SORIANO,
LAROA, TAN, and TRINIDAD then left Butuan on 20 January 1983 at about 5:20 P.M. bound
for Davao City. TAN was driving the Fiera. Seated to his right was SORIANO, LAROA and the
accused TRINIDAD, in that order. When they reached the stretch between El Rio and Afga,
TRINIDAD advised them to drive slowly because, according to him, the place was dangerous.
All of a sudden, TAN heard two gunshots. SORIANO and LAROA slumped dead. TAN did not
actually see the shooting of LAROA but he witnessed the shooting of SORIANO having been
alerted by the sound of the first gunfire. Both were hit on the head. TRINIDAD had used his
carbine in killing the two victims.

TAN then hurriedly got off the Fiera, ran towards the direction of Butuan City and hid
himself in the bushes. The Fiera was still running slowly then but after about seven (7) to ten
(10) meters it came to a halt after hitting the muddy side of the road. TAN heard a shot
emanating from the Fiera while he was hiding in the bushes.

After about twenty (20) to thirty (30) minutes, when a passenger jeep passed by, TAN hailed
it and rode on the front seat. After a short interval of time, he noticed that TRINIDAD was
seated at the back. Apparently noticing TAN as well, TRINIDAD ordered him to get out and
to approach him (TRINIDAD) but, instead, TAN moved backward and ran around the jeep
followed by TRINIDAD. When the jeep started to drive away, TAN clung to its side. TRINIDAD
fired two shots, one of which hit TAN on his right thigh. As another passenger jeep passed
by, TAN jumped from the first jeep and ran to the second. However, the passengers in the
latter jeep told him to get out not wanting to get involved in the affray. Pushed out, TAN
crawled until a member of the P.C. chanced upon him and helped him board a bus for
Butuan City.

TRINIDAD's defense revolved around denial and alibi. He contended that he was in Cagayan
de Oro City on the date of the incident, 20 January 1983. At that time, he was assigned as a
policeman at Nasipit Police Station, Agusan del Norte. He reported to his post on 19 January
1983 but asked permission from his Station Commander to be relieved from work the next
day, 20 January, as it was his birthday. He left Baan, his Butuan City residence, at about 3:00
P.M. on 20 January 1983 and took a bus bound for Cagayan de Oro City. He arrived at
Cagayan de Oro at around 8:00 P.M. and proceeded to his sister's house at Camp Alagar to
get his subsistence allowance, as his sister was working thereat in the Finance Section.

At his sister's house he saw Sgt. Caalim, Mrs. Andoy, one Paelmo, in addition to his sister.
Sgt. Caalim corroborated having seen TRINIDAD then.

Continuing, TRINIDAD claimed that he left Cagayan de Oro for Butuan at lunch time on 21
January 1983 arriving at the latter place around 6:00 P.M., and went to his house directly to
get his service carbine. He was on his way to Nasipit to report for duty on 21 January 1983
when he was arrested at around 6:00 P.M. at Buenavista, Agusan del Norte.

After joint trial on the merits and unimpressed by the defense by the Trial Court**
sentenced the accused in an "Omnibus Decision", thus:
WHEREFORE PREMISES CONSIDERED, this Court finds Emeliano Trinidad GUILTY beyond
reasonable doubt of the crimes of Murder and Frustrated Murder.

In the Frustrated Murder, there being no mitigating circumstance, and taking into account
the provisions of the Indeterminate Sentence Law, accused Trinidad is meted out a penalty
of:

1) 8 years and 1 day to 12 years of prision mayor medium;

2) to indemnify the complainant the amount of P 5,000.00; and

3) to pay the costs.

Likewise, in the two murder cases, Trinidad is accordingly sentenced:

1) to a penalty of Reclusion Perpetua in each case;

2) to indemnify the heirs of Marcial Laroa and Lolito Soriano the amount of P30,000.00
each; and

3) to pay the cost. (p. 14, RTC Decision, p. 28, Rollo).

Before us now, TRINIDAD claims that the Trial Court erred in giving full faith and credit to
TAN's testimony who, TRINIDAD alleges, was an unreliable witness. That is not so.

We find no variance in the statement made by TAN before the NAPOLCOM Hearing Officer
that when TRINIDAD boarded the Fiera in Buenavista, he (TAN) was not in the vehicle, and
that made in open Court when he said that he was with TRINIDAD going to Butuan City on
board the Fiera. For the facts disclose that when TRINIDAD boarded the Fiera in Buenavista,
TAN was still in Langihan distributing fish. The Fiera left for Buenavista, driven by SORIANO
between 6:00 to 7:00 A.M., while TAN followed only at 11:00, A.M. in another vehicle. So
that when TRINIDAD boarded the Fiera in Buenavista, TAN was not yet in that vehicle
although on the return trip from Butuan City to Davao City, TAN was already on board. In
fact, TAN was the one driving. TAN's testimony clarifying this point reads:

Q Did you not say in your direct examination that you went to Buenavista, Agusan del
Norte?

A We were in Langihan and since our fishes were not consumed there, we went to
Buenavista.

Q Now, what time did you leave for Buenavista from Langihan?

A It was more or less at 6:00 to 7:00 o'clock.

Q You were riding the fish car which you said?

A I was not able to take the fish car in going to Buenavista because they left me fishes to be
dispatched yet.

Q In other words, you did not go to Buenavista on January 20, 1983?

A I was able to go to Buenavista after the fishes were consumed.

Q What time did you go to Buenavista?

A It was more or less from 11:00 o'clock noon.

Q What transportation did you take?

A I just took a ride with another fish car because they were also going to dispatch fishes in
Buenavista.
Q Now, who then went to Buenavista with the fish car at about 7:00 o'clock in the morning
of January 20, 1983?

A Lolito Soriano and Marcia Laroa with his helper.

xxxxxx

Q Now, when this fish car returned to Butuan City who drove it?

A Lolito Soriano.

Q Were you with the fish car in going back to Langihan?

A Yes, sir. (T.S.N., December 6, 1985, pp. 53-54).

Felimon Comendador, also a fish vendor, and a resident of Butuan City, testified that he saw
TRINIDAD riding in the Fiera on the front seat in the company of TAN, SORIANO and LAROA,
when the Fiera stopped by his house at Butuan City (TSN, November 5, 1985, pp. 32-33).

The other inconsistencies TRINIDAD makes much of, such as, that TAN was unsure before
the NAPOLCOM Hearing Officer whether TRINIDAD was wearing khaki or fatigue uniform
but, in open Court, he testified positively that TRINIDAD was in khaki uniform; and that
while TAN declared that TRINIDAD was wearing a cap, prosecution witness Felimon
Comendador said that he was not but was in complete fatigue uniform, are actually trivial
details that do not affect the positive identification of TRINIDAD that TAN has made nor
detract from the latter's overall credibility.

Nor is there basis for TRINIDAD to contend that the absence of gunpowder burns on the
deceased victims negates TAN's claim that they were shot "point-blank." Actually, this term
refers merely to the "aim directed straight toward a target" (Webster's Third New
International Dictionary) and has no reference to the distance between the gun and the
target. And in point of fact, it matters not how far the assailant was at the time he shot the
victims, the crucial factor being whether he did shoot the victim or not.
TRINIDAD's defense of alibi is inherently weak and cannot prevail over the straightforward
and detailed descriptive narration of TAN, thus:

Q Now, from Butuan City, where did you proceed?

A We proceeded to Davao.

Q Did you in fact reach Davao on that date?

A No, sir.

Q Could you tell the Court why you failed to reach Davao?

A Because we were held-up.

Q Who held-up you?

A Emeliano Trinidad, sir.

Q Are you referring to accused Emeliano Trinidad whom you pointed to the court awhile
ago?

A Yes, sir.

Q Will you tell the Court how did Emeliano Trinidad holdup you?

A When we reach between El Rio and Afga, Trinidad advised us to run slowly because this
place is dangerous. Then suddenly there were two gun bursts.

Q Now, you heard two gun bursts. What happened? What did you see if there was any?
A I have found out that Lolito Soriano and Marcial Laroa already fall.

Q Fall dead?

A They were dead because they were hit at the head.

Q You mean to inform the Court that these two died because of that gun shot bursts?

A Yes, sir.

Q Did you actually see Trinidad shooting the two?

A I did not see that it was really Trinidad who shot Laroa but since I was already alerted by
the first burst, I have seen that it was Trinidad who shot Soriano.

Q What was the firearm used?

A Carbine, sir.

xxxxxx

Q Now, after you saw that the two fell dead, what did you do?

A I got out from the Ford Fiera while it was running.

xxxxxx

Q From the place where you were because you said you ran, what transpired next?
A I hid myself at the side of the jeep, at the bushes.

Q While hiding yourself at the bushes, what transpired?

A I heard one gun burst.

Q From what direction was that gun bursts you heard?

A From the Ford Fiera, sir.

Q After that, what happened?

A At around 20 to 30 minutes, I moved out from the place where I hid myself because I
wanted to go back to Butuan, Then, I boarded the jeep and sat at the front seat but I found
out that Emeliano Trinidad was at the back seat.

Q When you found out that Trinidad was at the back, what happened?

A He ordered me to get out.

Q Now, when you got down, what happened?

A When I got out from the jeep, Trinidad also got out.

Q Tell the Court, what happened after you and Trinidad got out from the jeep?

A He called me because he wanted me to get near him.

Q What did you do?

A I moved backward.

'Q Now, what did Trinidad do?

A He followed me.

Q While Trinidad followed you, what happened?

A I ran away around the jeep.

Q Now, while you were running around the jeep, what happened?

A The driver drove the jeep.

Q Now, after that, what did you do?

A I ran after the jeep and then I was able to take the jeep at the side of it.

Q How about Trinidad, where was he at that time?

A He also ran, sir.

Q Now, when Trinidad ran after you what happened?

A Trinidad was able to catchup with the jeep and fired his gun.

Q Were you hit?

A At that time I did not know that I was hit because it was sudden.
Q When for the first time did you notice that you were hit?

A At the second jeep.

Q You mean to inform the Court that the jeep you first rode is not the very same jeep that
you took for the second time?

A No, sir.

Q Now, when you have notice that you were hit, what did you do?

A At the first jeep that I took I was hit, so I got out from it and stood-up at the middle of the
road so that I can catch up the other jeep.' (TSN, December 6, 1985, pp. 44-49)

TAN's testimony remained unshaken even during cross- examination. No ill motive has been
attributed to him to prevaricate the truth. He was in the vehicle where the killing transpired
was a witness to the actual happening, and was a victim himself who managed narrowly to
escape death despite the weaponry with which TRINIDAD was equipped.

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

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

WHEREFORE, the guilt of the accused Emeliano Trinidad for the crimes of Murder (on two
counts) and Attempted Murder, having been proven beyond reasonable doubt, his
conviction is hereby AFFIRMED and he is hereby sentenced as follows:

1) In each of Criminal Cases Nos. 79123-24 (Nos. 96 and 99 below) for Murder, he shall
suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as
minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal, as
maximum; to indemnify the heirs of Marcial Laroa and Lolito Soriano, respectively, in the
amount of P30,000.00 each; and to pay the costs.

2) In Criminal Case No. 79125 (No. 100 below) for Frustrated Murder, he is hereby found
guilty only of Attempted Murder and sentenced to an indeterminate penalty of six (6)
months and one (1) day of prision correccional, as minimum, to six (6) years and one (1) day
of prision mayor, as maximum; to indemnify Ricardo Tan in the sum of P5,000,00; and to
pay the costs.

SO ORDERED.

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

================
G.R. No. 168827 April 13, 2007

BENJAMIN P. MARTINEZ, Petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.
DECISION

CALLEJO, SR., J.:

This is a Petition for Review on Certiorari of the Decision1 and the Resolution2 of the Court
of Appeals (CA) in CA-G.R. CR No. 25436, affirming with modification the trial court’s
judgment finding Benjamin P. Martinez guilty beyond reasonable doubt of frustrated
homicide.

The Antecedents

Dean Dongui-is was a teacher at the Tubao National High School, La Union. Petitioner
Benjamin Martinez was the husband of Dean’s co-teacher, Lilibeth Martinez. Petitioner eked
out a living as a tricycle driver.

On October 28, 1998, Dean and his wife Freda filed a complaint for damages against the
spouses Martinez in the Municipal Circuit Trial Court (MCTC) of Tubao, La Union. They
alleged that in March 1998, petitioner, a suitor of Elvisa Basallo, had been peddling false
reports that Dean and Elvisa had illicit relations; he even told Freda that Elvisa was Dean’s
mistress. This led to a quarrel between Dean and Freda, and the latter was hospitalized for
her heart ailment. Dean requested Lilibeth to stop her husband from spreading lies, and she
replied that Elvisa had been her husband’s mistress. They prayed that they be awarded
moral and exemplary damages and litigation fees in the total amount of ₱100,000.00.3 The
case was docketed as Civil Case No. 226.

For her part, Elvisa also filed a complaint against the spouses Martinez in the MCTC of Tubao
for damages anchored on Article 26 of the New Civil Code. She alleged that on several
occasions, petitioner went to the Shaltene Pawnshop and Pharmacy where she was
employed and accused her of having an illicit affair with Dean; on one occasion, he held her
hand and forcibly pulled her outside, which caused her to scratch his face and run after him
with a knife; he also told her husband’s cousin, Willy Ordanza, that she had an illicit affair
with Dean; Willy, in turn, told her mother-in-law about it; petitioner relayed the same
rumors to her co-worker, Melba Dacanay, and his wife spread to people in the Municipality,
including Ramil Basallo, her brother-in-law. Elvisa also prayed for damages in the total
amount of ₱100,000.00. The case was docketed as Civil Case No. 227.4
The spouses Martinez filed a motion to dismiss the complaint in Civil Case No. 226 which
was heard in the morning of February 3, 1999. The court denied the motion.

At about 1:40 p.m. that day, Dean went to the Tubao Credit Cooperative (TCC) office to pick
up the dividend certificate of his wife who was a member of the cooperative. He left the
building and walked to his car which was parked in front. As he did, he read the dividend
certificate of his wife. Dean was about a step away from an L-300 van which was parked in
front of the building when petitioner, armed with a bolo, suddenly emerged from behind
the vehicle and stabbed him on the left breast. Dean instantly moved backward and saw his
assailant. Dean fled to the bank office and was able to gain entry into the bank. Petitioner
ran after him and upon cornering him, tried to stab him again. Dean was able to parry the
blow with his right hand, and the bolo hit him on the right elbow. Dean fell to the floor and
tried to stand up, but petitioner stabbed him anew on his left breast.5 Dean managed to run
to the counter which was partitioned by a glass. Unable to get inside the counter, petitioner
shouted at Dean: "Agparentomeng ka tatta ta talaga nga patayen ka tatta nga aldawen (You
kneel down because I will really kill you now this day)."6

Meantime, SPO1 Henry Sulatre was at the Tubao Police Station, about 100 meters away. He
was informed that a fight was going on in the bank. He rushed to the place on board the
police car. When he arrived at the scene, he saw Barangay Captain Rodolfo Oller and his son
Nicky Oller.7 Nicky handed to him the bolo which petitioner had used to stab Dean.8 He and
Rodolfo brought petitioner to the police station. On the way, they passed by the loading
area of tricycles, about 40 meters away from the police station. Petitioner shouted:
"Sinaksak kon pare, sangsangaili laeng isuna saan isuna to agari ditoy Tubao (I stabbed him,
he is just a visitor so he should not act like a king here in Tubao)." SPO1 Sulatre placed
Benjamin in jail. Benjamin kept on shouting: "Napatay kon, napatay kon (I killed him, I killed
him)."9

In the meantime, PO3 Valenzuela brought Dean to the Doña Gregoria Memorial Hospital in
Agoo, La Union. The victim was transferred to the Ilocos Regional Hospital (IRH) in San
Fernando, La Union where Dean was examined and operated on by Dr. Nathaniel Rimando,
with the assistance of Dr. Darius Pariñas.10 Dean sustained two stab wounds in the anterior
chest, left, and a lacerated wound in the right elbow, forearm. Had it not been for the blood
clot that formed in the stab wound on the left ventricle that prevented the heart from
bleeding excessively, Dean would have died from profuse bleeding.11

On February 7, 1999, Dean gave a sworn statement to SPO1 Sulatre.12 However, he

deferred swearing to the truth of his statement before the Public Prosecution because SPO1
Sulatre was waiting for the permanent medical certificate to be issued by the hospital. SPO1
Sulatre deferred the execution and submission of an arrest report also pending the issuance
of the medical certificate.

Instead of issuing a permanent medical certificate, the IRH issued on February 8, 1999 the
following Temporary Certificate:

TO WHOM IT MAY CONCERN:

According to hospital record, DEAN N. DONGUI-IS, 30 years old, male, married, a resident of
Francia West, Tubao, La Union, was examined/treated/confined in this hospital on/from
February 3-20, 1999.

WITH THE FOLLOWING FINDINGS AND DIAGNOSIS:

– Stab Wound (L) Chest with Hemothorax (L), (L) Ventricular Perforation;

OPERATIONS:

– Exploratory Thoracotomy (L); Evacuation of Retained Blood Clots; Ventriculorrhaphy

Decortication 2/11/99

and would need medical attendance for more than thirty (30) days barring complications.13

On March 10, 1999, SPO1 Sulatre filed a criminal complaint for frustrated murder against
petitioner in the MCTC.14 The MCTC opted not to act on the crime pending the arrest report
and SPO1 Sulatre’s submission of Dean’s sworn statement.

The IRH issued a medical certificate on February 28, 1999, stating that Dean’s wounds would
need medical attendance of more than 30 days.15 Barangay Captain Oller and SPO1 Sulatre
executed an affidavit on petitioner’s arrest.16 Dean had his affidavit sworn before the Public
Prosecutor on March 30, 1999.
On September 13, 2000 the Provincial Prosecutor of La Union indicted Benjamin for
frustrated murder before the Regional Trial Court (RTC), Branch 31, of the same province.
The accusatory portion of the Information reads:

That on or about the 3rd day of February 1999, in the Municipality of Tubao, Province of La
Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to kill, and with treachery and evident premeditation, being then
armed with a small pointed bolo, did then and there willfully, unlawfully and feloniously
attack, assault and stab one DEAN DONGUI-IS y Manalo, hitting him on his left breast and
right elbow, and thereby inflicting on him injuries that would have produced the crime of
Murder as a consequence but which nevertheless, did not produce it by reason of causes
independent of the will of the accused, mainly the timely rendition of medical assistance of
on the said offended party, which prevented his death, to his damage and prejudice.

CONTRARY TO LAW.17

On October 13, 2000, the accused, assisted by counsel, was arraigned and entered a plea of
not guilty.

The Case for Petitioner

Petitioner declared that he merely defended himself against Dean’s assault. Dean was so
jealous of him because his mistress, Elvisa, had also been his mistress. Unknown to Dean, he
had already terminated his relation with Elvisa sometime in March 1997 when his wife
Lilibeth discovered the illicit relationship.18 Dean also suspected that he (petitioner) had
been sending letters to his (Dean’s) wife relative to the illicit relationship with Elvisa. Dean
also suspected that he was responsible for the raid conducted by the Criminal Investigation
Service (CIS) of his house for possession of a gun.19 As a result, Dean filed a civil complaint
against him for damages, docketed as Civil Case No. 266. Before and after the filing of the
civil case, Dean had hurled invectives at him in the presence of Joselito Madriaga and other
tricycle drivers.20 Dean even attempted to sideswipe him with his car.21

Petitioner declared that the criminal charge against him was Dean’s concoction, and
intended solely to harass him. He narrated that he went to the TCC office at about 1:30 p.m.
on February 3, 1999. His wife had earlier received a note from the cooperative to get the
interest on her deposit.22 He parked his tricycle in front of the building on the left side of
the railing going to the entrance of the cooperative.23 Dean’s car was parked on the right
side of the railing.24 On his way, he met his 82-year-old uncle, Godofredo Sarmiento, who
was also on his way to the cooperative to update his passbook because he was intending to
apply for a loan.25 He told Godofredo that they could go to the TCC together. When they
were about to pass through the entrance door, Dean was about to exit from the
cooperative. Dean thought that he was blocking his way and shouted invectives at him and
his uncle; Dean also spat on his breast and face; and threw a punch which he was able to
parry with his left elbow.26 Dean kept attacking him, forcing him to move backward through
the railing and towards his tricycle. Dean punched him again but he managed to parry the
blow with his bolo which he took from his tricycle. He stabbed Dean on his right elbow.27
He swung his bolo at Dean which forced the latter to run back into the office. He entered
the office and stood by the entrance door to see if Dean would get a weapon. Dean
continued hurling invectives at him but was later pacified by Patricio Alterado, an employee
of the cooperative.28 When Barangay Captain Oller arrived, he surrendered, along with his
bolo.29 He never boasted on the way to the police station that he had killed Dean.30

Godofredo partially corroborated the testimony of petitioner. He declared that Dean spat
on the face of petitioner.31 By the time Dean and petitioner reached the place where the
latter’s tricycle was parked, he had left; he was afraid of being involved.32 He did not report
the incident to the police authorities.

Joselito Madriaga testified that he and petitioner were bosom buddies with a long history of
friendship. Dean had an axe to grind against petitioner because the two maintained a
common mistress, Elvisa.33

The Trial Court’s Decision

On April 30, 2001, the trial court rendered judgment34 convicting petitioner of frustrated
homicide. The fallo of the decision reads –

WHEREFORE, this Court, after a consideration of the evidence adduced in this case, finds
accused BENJAMIN MARTINEZ guilty of the crime of Frustrated Homicide as principal.
Neither aggravating circumstance nor mitigating circumstance has been appreciated.
Applying the Indeterminate Sentence Law, accused Benjamin Martinez is sentenced to
suffer the penalty of imprisonment ranging from FOUR (4) YEARS OF PRISION
CORRECTIONAL MEDIUM as minimum to EIGHT (8) YEARS and ONE (1) DAY OF PRISION
MAYOR MEDIUM as maximum. He is also ordered to pay DEAN DONGUI-IS the amount of
ONE HUNDRED FIFTY THOUSAND (₱150,000.00) PESOS, broken into the following:

(a) Ninety-Two Thousand (₱92,000.00) Pesos for medical expenses;

(b) Twenty-Six Thousand (₱26,000.00) Pesos, representing his salaries for two (2) months
when he could not attend to teach due to his injuries;

(c) Twenty-Two Thousand (₱22,000.00) Pesos as moral damages; and

(d) Ten Thousand (₱10,000.00) Pesos as complainant’s attorney’s fees.

SO ORDERED.35

The trial court gave credence and full probative weight to the testimony of Dean, Dr.
Rimando, SPO1 Sulatre, and the documentary evidence of the prosecution. The court
rejected petitioner’s twin defenses of denial and self-defense. It declared that his version
lacked strong corroboration, and that his witnesses (a close relative and a friend) were
biased.

Finding that the prosecution failed to prove the qualifying circumstances of treachery, the
trial court convicted petitioner of frustrated homicide. The court declared that the crime
involved a "love triangle,"36 and considered the protagonists’ history of personal animosity.
There was no evident premeditation because Dean had been "forewarned" of the attack.37

On appeal before the CA, petitioner raised the following issues:

I. THE TRIAL COURT COMMITTED SERIOUS ERRORS WHEN IT WRONGFULLY GAVE CREDENCE
TO THE FABRICATED CLAIMS OF THE SOLE WITNESS FOR THE PROSECUTION.

II. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT WRONGFULLY GAVE CREDENCE
TO THE FALSE AND SPECIOUS TESTIMONY OF THE COMPLAINANT.

III. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT CONVICTED THE ACCUSED FOR
FRUSTRATED HOMICIDE FOR INJURIES NOT ATTESTED BY ANY COMPETENT MEDICAL
CERTIFICATE.
IV. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT CONVICTED THE ACCUSED FOR
FRUSTRATED HOMICIDE WITHOUT ANY PROOF BEYOND REASONABLE DOUBT.

V. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT DISREGARDED THE CONCLUSIVE
EVIDENCE FOR THE DEFENSE WHICH COMPLETELY NEGATED ANY PROOF FOR THE
PROSECUTION AND WHICH DEFINITELY WARRANTED THE ACQUITTAL OF THE ACCUSED.38

Maintaining his innocence, petitioner claimed that he had merely acted in self-defense
when Dean insulted him, spat on his face and assaulted him with fist blows on a mere
suspicion that he (petitioner) was blocking Dean’s way through the exit door of the
cooperative.

The Decision of the Court of Appeals

On February 21, 2005, the CA rendered judgment affirming the assailed decision of the RTC
with modification. The fallo reads –

WHEREFORE, the appealed Decision dated April 30, 2001 of the trial court is affirmed,
subject to the afforested modification of the minimum period of the sentence. Loss of
earnings in the amount of ₱26,000.00 and attorney’s fees in the amount of ₱10,000.00 are
deleted, and the award of actual damages is increased to ₱92,715.68.

SO ORDERED.39

The CA ruled that the case is more of a "retaliation" rather than a case of self-defense. It
declared that Dean sustained two fatal stab wounds in his left chest, a fact which belied
petitioner’s defense and confirmed the prosecution’s theory that he purposely and
vigorously attacked the victim. The CA ruled that when an unlawful aggression which has
begun no longer exists, the one making the defense has no more right to kill or even wound
the aggressor. The appellate court pointed out that in the case before it, the supposed
unlawful aggression of Dean ceased from the moment he retreated inside the cooperative
building; there was no need for petitioner to follow Dean inside the building and stab him
with his bolo. Petitioner should have simply stood his ground and walked away.

In discounting the qualifying circumstances of treachery and evident premeditation, the CA

simply adverted to the stipulation of facts contained in the Pre-Trial Order dated December
20, 2000 issued by the RTC, stating "[t]hat the accused stabbed the private complainant
when the latter assaulted and boxed him (accused)."40 Petitioner’s plea of voluntary
surrender was not appreciated in his favor. However, the appellate court modified the
minimum sentence imposed by the trial court to four (4) years and two (2) months of
prision correctional, as minimum.

As to damages, the CA deleted the RTC’s award of loss of earning capacity and attorney fees,
holding that they lack factual and legal basis. It, however, increased the award of actual
damages from ₱92,000.00 to ₱92,715.68 reasoning that latter amount was duly receipted.
The CA denied the appellant’s motion for reconsideration.41

Before this Court, petitioner assigns the following errors allegedly committed by the CA –

I. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THEY AROSE FROM
MISAPPREHENSION OF FACTS THAT PROVE THAT THE PROCEEDINGS AND THE FINDINGS
MADE IN THE DECISION OF THE TRIAL COURT AS WELL AS IN THE ASSAILED DECISION ITSELF,
WERE BASED ON A FALSE CHARGE WHICH IS PATENTLY FABRICATED BY A POLICE
INVESTIGATOR AND WHICH COMPRISES MALICIOUS PROSECUTION.

II. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THEY ARE BASED
ON THE FABRICATED STATEMENT AS WELL AS ON THE SOLE, SELF-SERVING,
CONTRADICTORY AND UNCORROBORATED TESTIMONY OF THE COMPLAINANT, WHICH ARE
MANIFESTLY CONCOCTED AND CANNOT ESTABLISH THE GUILT OF THE ACCUSED BEYOND
REASONABLE DOUBT.

III. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SE[T] ASIDE, AS THERE IS TOTAL
ABSENCE OF EVIDENCE TO PROVE THE VACUOS CHARGE AS WELL AS THE SAID DECISION
AND RESOLUTION, FOR WHICH REASON THE GUILT OF THE ACCUSED WAS NOT DULY
PROVED BEYOND REASONABLE DOUBT[.]

IV. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THE SAME WERE
RENDERED IN ALL GRAVE ABUSE OF DISCRETION AND IN TOTAL DISREGARD OF THE
COMPETENT AND UNREBUTTED TESTIMONY FOR THE DEFENSE, WHICH NEGATE ANY
REASONABLE DOUBT ON THE GUILT OF THE ACCUSED.
V. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THE INFERENCES
MADE ON THE UNDISPUTED FACTS ARE CONTRARY TO LAW AND JURISPRUDENCE AND
CANNOT JUSTIFY ANY FINDING OF ANY PROOF BEYOND REASONABLE DOUBT.42

Petitioner insists that the criminal complaint filed by SPO1 Sulatre was a fabrication because
the latter never conducted a formal investigation of the stabbing incident or of any witness
to the incident. The police officer filed the criminal complaint against petitioner on the basis
of a sworn statement by Dean which was taken only on March 10, 1999, long after the
criminal complaint was filed in the MCTC. Worse, when he testified on cross-examination,
Dean admitted that he did not see the questions prepared by SPO1 Sulatre at the hospital,
nor his answers to the policeman’s questions. The affidavit dated March 10, 1999 was not
typewritten in the hospital, and he was not present when the affidavit was typewritten in
the police station. Thus, the testimony of the victim was self-serving and uncorroborated,
tailored solely to support the charge filed by SPO1 Sulatre.

In its comment on the petition, respondent, through the Office of the Solicitor General
(OSG), avers that the issues raised by petitioner are factual, hence, inappropriate in a
petition for review on certiorari in this Court.

The OSG maintains that the Revised Rules of Criminal Procedure does not require that the
affidavit of the offended party or the witnesses to the crime charged be appended to the
criminal complaint filed in court. Moreover, the issue of the validity of the criminal
complaint in the MCTC had became moot and academic after the Information was filed in
the trial court, and when petitioner was arraigned, assisted by counsel, and entered a plea
of not guilty.

It insists that Dean’s testimony, by itself, is sufficient to warrant the conviction of petitioner
for frustrated homicide. Petitioner’s conviction may be anchored on Dean’s testimony since
the trial court found it credible and entitled to full probative weight. Petitioner failed to
prove his plea of self-defense by clear and convincing evidence.

The Court’s Decision

The petition is denied for lack of merit.

Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal Procedure43 provide:
Sec. 3. Procedure. – The preliminary investigation shall be conducted in the following
manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well as other supporting documents to
establish probable cause. They shall be in such number of copies as there are respondents,
plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before
any prosecutor or government official authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of whom must certify that he personally
examined the affiants and that he is satisfied that they voluntarily executed and understood
their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either
dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint and its supporting affidavits and
documents.

It bears stressing that the officer conducting the preliminary investigation has to determine
whether to dismiss the complaint outright based on the averments of the complaint and the
appendages thereof if it finds no ground to continue with the investigation. If he finds
ground to continue with the investigation of the accused, a subpoena should be issued to
the accused, appending thereto a copy of the complaint and the supporting affidavits.
Unless the affidavits of the witnesses named in the complaint and supporting documents
are appended to the complaint, the investigating officer may not be able to determine
whether to dismiss the complaint outright or to conduct an investigation and issue a
subpoena to the accused.44

We agree with petitioner that the criminal complaint filed by SPO1 Sulatre with the MCTC
on March 10, 1999 was defective. As gleaned from the RTC records, the criminal complaint
was not accompanied by any medical certificate showing the nature and number of wounds
sustained by the victim, the affidavits of any of the witnesses listed at the bottom of the
criminal complaint (particularly the victim himself), and the arrest report of SPO1 Sulatre,
Brgy. Capt. Rodolfo Oller, and his son Nicky.

The MCTC had the option not to act one way or the other on the criminal complaint of SPO1
Sulatre because the latter failed to comply with Section 3(a) and (b), Rule 112 of the Revised
Rules of Criminal Procedure; or to order SPO1 Sulatre to comply with the aforequoted rule;
or to dismiss the complaint without prejudice to its refiling with the requisite documents.
However, the MCTC opted not to act on the complaint until after SPO1 Sulatre shall have
submitted the requisite affidavits/medical certificate/arrest report. When SPO1 Sulatre filed
with the MCTC, on March 10, 1999, the permanent medical certificate issued by the IRH, the
affidavit of Dean and his and Brgy. Capt. Oller’s affidavit of arrest of petitioner, the MCTC
forthwith issued a subpoena to petitioner appending thereto the said medical certificate,
affidavit of Dean and the affidavit of arrest of SPO1 Sulatre.45 Hence, SPO1 Sulatre had
complied with Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal Procedure.

Moreover, petitioner submitted his counter-affidavit without any protest. Neither did he
assail the validity of the criminal complaint or the tardy submission by SPO1 Sulatre of the
medical certificate, the affidavit of Dean and the affidavit of arrest of SPO1 Sulatre. Aside
from this, petitioner was arraigned in the RTC, assisted by counsel, and entered a plea of not
guilty.

On the second issue, the rulings of the trial court and the appellate court are correct.
Whether or not petitioner acted in self-defense whether complete or incomplete is a
question of fact,46 the well-entrenched rule is that findings of fact of the trial court in the
ascertainment of the credibility of witnesses and the probative weight of the evidence on
record affirmed, on appeal, by the CA are accorded high respect, if not conclusive effect, by
the Court and in the absence of any justifiable reason to deviate from the said findings.47

In this case, the trial court gave no credence and probative weight to the evidence of
petitioner to prove that he acted in self-defense, complete or incomplete. Petitioner failed
to establish that the trial court and the appellate court misconstrued, misappropriated or
ignored facts and circumstances of substance which, if considered, would warrant a
modification or reversal of the decision of the CA that petitioner failed to establish clear and
convincing evidence that he acted in self-defense, complete or incomplete.

Like alibi, petitioner’s claim of self-defense is weak; it is also settled that self-defense is easy
to fabricate and difficult to disprove. Such a plea is both a confession and avoidance.48 One
who invokes self-defense, complete or incomplete, thereby admits having killed the victim
by inflicting injuries on him. The burden of evidence is shifted on the accused to prove the
confluence of the essential elements for the defense as provided in Article 11, paragraph 1
of the Revised Penal Code:

x x x (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or
repel it; and (3) lack of sufficient provocation on the part of the person defending himself. x
x x49
The accused must rely on the strength of his own evidence and not on the weakness of that
of the prosecution because even if the evidence of the prosecution is weak, the same can no
longer be disbelieved.50 The accused cannot escape conviction if he fails to prove the
essential elements of complete self-defense.

In Garcia v. People,51 the Court defined unlawful aggression:

x x x Unlawful aggression presupposes an actual, sudden and unexpected or imminent

danger on the life and limb of a person – a mere threatening or intimidating attitude is not
sufficient. There must be actual physical force or a threat to inflict physical injury. In case of
a threat, it must be offensive and positively strong so as to display a real, not imagined,
intent to cause injury. Aggression, if not continuous, does not constitute, aggression
warranting self-defense.52

Aggression, if not continuous, does not constitute aggression warranting self-defense.53

When unlawful aggression ceases, the defender no longer has any justification to kill or
wound the original aggressor. The assailant is no longer acting in self-defense but in
retaliation against the original aggressor.54

There can be no self-defense, complete or incomplete, unless the accused proves unlawful
aggression on the part of the victim.55 Unlawful aggression is a sudden and unexpected
attack or an imminent danger thereof, and not merely a threatening or an intimidating
attitude.56

Petitioner failed to discharge his burden.

First. Petitioner failed to surrender himself to the responding authorities who arrived at the
situs criminis, as well as the bolo he used in stabbing the victim. One who acted in self-
defense is expected to surrender, not only himself, but also the weapon he used to kill or
inflict physical injuries on the victim.57

Second. The victim sustained three stab wounds on different parts of his body. Two were
fatal stab wounds at his left chest. The presence of a large number of wounds on the part of
the victim, their nature and location disprove self-defense and instead indicate a
determined effort to kill the victim.58
Third. Petitioner testified that he was punched by the victim. However, there is not a
scintilla of evidence to show that petitioner suffered even a scratch as a result of the alleged
fist blows.

Neither can the RTC nor the CA be faulted for giving credence to the testimony of SPO1
Salutre. No evidence was adduced by the defense to show that he harbored any ill-motive
against petitioner to charge him with such a crime. Absent any proof of improper motive,
the prosecution witness who is law enforcer is presumed to have regularly performed his
duty in arresting and charging petitioner.59 His testimony is thus entitled to full faith and
credit. Moreover, the conviction of petitioner was not based solely on the testimony of the
SPO1 Salutre. The unimpeached testimony of Dean categorically established the crime; this
was corroborated by the testimony of Dr. Nathaniel Rimando.

Petitioner’s argument that he should be acquitted because the criminal complaint against
him was not supported by the victim’s sworn statement or by an affidavit of any witness is
totally untenable. This issue should have been raised during the preliminary investigation. It
is much too late in the day to complain about this issue after a judgment of conviction has
been rendered against him.

Contrary to petitioner’s stance, the testimonies of his corroborating witnesses are

unimpressive. For one, Godofredo’s testimony was limited only to the alleged fact that
happened outside of the cooperative building. He himself admitted that when the
protagonists started fighting each other, for fear for his life, he hurriedly flagged and
boarded a tricycle which revved up to the highway; it was from there that he saw petitioner
slumped on his tricycle. In other words, he did not witness what transpired thereafter or
how the fight ended.

Joselito’s testimony did not fare any better. It was given neither credence nor weight by the
trial court. And even if it had been proved that the victim was rabid against petitioner, such
evidence would only have established a probability that he had indeed started an unlawful
assault on petitioner. This probability cannot, however, overcome the victim’s positive
statement that petitioner waylaid and assaulted him without any provocation. The theory
that Dean may have started the fight since he had a score to settle against petitioner is
flimsy, at best. Furthermore, Joselito admitted that he was petitioner’s best friend; hence,
his bias cannot be discounted.

The Crime Committed by the Petitioner

Petitioner next argues that should he be convicted of any crime, it should be of less serious
physical injuries only, absence the element of intent to kill. He advances the argument that
the single wound suffered by the victim was not life threatening and that the latter was
transferred to undergo operation in another hospital only because the medical staff where
he was first rushed bungled their job. He makes much of the fact that Dr. Darius R. Pariñas
who issued the Medical Certificate never testified for the prosecution.

Again, the Court is not swayed.1a\^/phi1.net

If one inflicts physical injuries on another but the latter survives, the crime committed is
either consummated physical injuries, if the offender had no intention to kill the victim or
frustrated or attempted homicide or frustrated murder or attempted murder if the offender
intends to kill the victim. Intent to kill may be proved by evidence of the following: (a)
motive; (b) the nature or number of weapons used in the commission of the crime; (c) the
nature and number of wounds inflicted on the victim; (d) the manner the crime was
committed; and (e) words uttered by the offender at the time the injuries are inflicted by
him on the victim.60

Petitioner insists that he had no intent to kill Dean. However, the physical evidence belies
petitioner’s pose.

To begin with, as between petitioner and the victim, the former had more hatred to harbor
arising from the fact that the victim filed a lawsuit against him and his wife. Petitioner thus
had more motive to do harm than the victim. By his own account, he and Dean had a history
of personal animosity.

Secondly, petitioner was armed with a deadly 14½-inch bolo.

Thirdly, if it were true that petitioner stabbed Dean merely to defend himself, it defies
reason why he had to stab the victim three times. Petitioner’s claim that Dean suffered only
a single non-life threatening wound is misleading. Dr. Rimando, who attended to and
operated on Dean, testified that the victim sustained three (3) stab wounds, two (2) of
which penetrated his heart and lung, causing massive blood clotting necessitating operation;
the other lacerated Dean’s his right elbow. The presence of these wounds, their location
and their seriousness would not only negate self-defense; they likewise indicate a
determined effort to kill.61 Moreover, physical evidence is evidence of the highest order. It
speaks more eloquently than a hundred witnesses.62

Neither does the non-presentation of Dr. Darius R. Pariñas, the doctor who signed the
medical certificate, would dent a bit the evidence for the prosecution. This is so because Dr.
Pariñas, who assisted Dr. Rimaldo during the operation of Dean, would merely corroborate
Dr. Rimaldo’s testimony. As such, his testimony is not indispensable.

Fourthly, from the manner the crime was committed, there can hardly be any doubt that
intent to kill was present. It has been clearly established that petitioner ambushed Dean and
struck him with a bolo. Dean was defenseless and unarmed, while petitioner was deadly
armed.1ªvvphi1.nét

Lastly, the words of the petitioner while he was assaulting Dean were most revealing:

Atty. Atitiw:

Q : When you were in the counter, what was accused Benjamin doing?

A : When I was inside the counter and he’s outside and between us is a glass and there he
shouting at me telling in Ilocano that AGPARENTONG KA TATTA TA TALAGA NGA PATAYEN
KA TATTA NGA ALDAWEN "You kneel down because I will really kill you now."63

xxxx

Atty. Atitiw:

Q : While passing through the loading area of the tricycle, do you remember anything that
transpired there at the loading area?

A : Yes, Sir.

Q : What is that, Mr. Witness?

A : While Benjamin Martinez, Barangay Captain Oller and I were walking proceeding to our
Police Station and when we were near the area, at the loading area if the tricycle, Benjamin
Martinez shouted and I quote: "SINAKSAK KON PARE, SANGSANGAILI LAENG ISUNA SAAN
NGA ISUNA TI AGARI DITOY TUBAO," that was the utterance, Sir.64

xxxx

Q : After bringing him to the Police Station, what did you do next?

A : We put him in jail, Sir.

Q : And while in jail do you remember whether accused Benjamin Martinez did anything
while in jail?

A : Yes, Sir.

Q : What is that, Mr. Witness?

A : He kept on shouting words, Sir.

Q : What are those words if you can remember?

A : He kept on shouting "NAPATAY KON, NAPATAY KON," Sir.65

Anent the allegation of negligence on the part of the medical staff of Doña Gregoria
Memorial Hospital where Dean was rushed, suffice it to say that this is a new theory being
foisted by petitioner. It was never raised in the two courts below and thus it will not be
entertained here. At any rate, this allegation finds no support in the records of the case.
It cannot be denied that petitioner had the intention to kill Dean. Petitioner performed all
the acts of execution but the crime was not consummated because of the timely medical
intervention applied on the victim.

An appeal in a criminal case opens the entire case for review on any question including one
not raised by the parties.66 In this regard, we find ample evidence to establish treachery.
The CA’s advertence to the stipulation of facts contained in the Pre-Trial Order dated
December 20, 200067 is misplaced. This alleged stipulation was stricken off the record on
motion of the prosecution on the ground that no stipulation of such fact was made.68

There is treachery when the offender commits any of the crimes against the person,
employing means, methods, or forms in the execution thereof which tend directly and
specially to insure its execution without risk to himself arising from the defense which the
offended party might take.69

In the present case, the prosecution had met the requisites for alevosia to be appreciated:
(1) at the time of the attack the victim was not in a position to defend himself; and (2) that
the offender consciously adopted the particular means, method, or form of the attack
employed by him.70 Dean lived to tell about the swiftness of the attempt against his life:

Q : After getting the dividend certificate where did you proceed next?

A : I went out from the bank, sir. I was able to go to school.

Q : Where you able to go to the school?

A : No, Sir.

Q : Why were you not able to reach the school?

A : Because I was suddenly stabbed by Benjamin Martinez.

Q : Where did Benjamin Martinez stab you?

A : In front of the bank, Sir.

Q : And how did Benjamin Martinez stab you?

A : I was about to go to my car, Sir. I was reading the dividend certificate that I got from the
bank but when I was about one step away from the back of the L300 van that was parked in
front of the bank, I was suddenly stabbed by him.

Q : Where was Benjamin Martinez at that time when he was stabbed you?

A : Probably he was hiding at the back of the L300 van, Sir.71

When Dean was attacked he was unarmed. He had just exited the cooperative building and
had no inkling that he would be waylaid as he made his way towards his car. Upon the other
hand, petitioner was armed with a deadly 14½-inch bolo. The attacked on Dean was swift
and unannounced; undeniably, petitioner’s attack was treacherous.

Petitioner is guilty of frustrated murder under Article 248 in relation to Article 6, first
paragraph of the Revised Penal Code which reads:

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.

The essential elements of a frustrated felony are as follows:

1. The offender performs all the acts of execution;

2. All the acts performed would produce the felony as a consequence;

3. But the felony is not produced;

4. By reason of causes independent of the will of the perpetrator.72

A crime is frustrated when the offender has performed all the acts of execution which
should result in the consummation of the crime. The offender has passed the subjective
phase in the commission of the crime. Subjectively, the crime is complete. Nothing
interrupted the offender while passing through the subjective phase. He did all that is
necessary to consummate the crime. However, the crime was not consummated by reason
of the intervention of causes independent of the will of the offender. In homicide cases, the
offender is said to have performed all the acts of execution if the wound inflicted on the
victim is mortal and could cause the death of the victim barring medical intervention or
attendance.73

The penalty for frustrated murder is one degree lower than reclusion perpetua to death,
which is reclusion temporal.74 The latter penalty has a range of 12 years and 1 day to 20
years. Applying the Indeterminate Sentence Law, the maximum of the indeterminate
penalty should be taken from reclusion temporal, the penalty for the crime, taking into
account any modifying circumstances in its commission. The minimum of the indeterminate
penalty shall be taken from the full range of prision mayor which is one degree lower than
reclusion temporal. Since there is no modifying circumstance in the commission of
frustrated murder, the appellants should be meted an indeterminate penalty of from nine
(9) years and four (4) months of prision mayor in its medium period as minimum, to
seventeen (17) years and four (4) months of reclusion temporal in its medium period, as
maximum.

Petitioner, likewise, insists that he voluntarily surrendered to Barangay Captain Rodolfo

Oller. He faults the trial and appellate courts for relying on the prosecution’s Affidavit of
Arrest, arguing that the same is inadmissible as hearsay, the affiants not having testified to
affirm their declarations.

For voluntary surrender to be appreciated, the following requisites should be present: (1)
the offender has not been actually arrested; (2) the offender surrendered himself to a
person in authority or the latter’s agent; and (3) the surrender was voluntary. The surrender
must be spontaneous, made in such a manner that it shows the interest of the accused to
surrender unconditionally to the authorities, either because he acknowledged his guilt or he
wishes to save them the trouble and expenses that would necessarily be incurred in the
search and capture.75
In the case at bar, SPO1 Salutre testified that petitioner did not voluntarily surrender but
was forcibly apprehended by Barangay Captain Oller, and thereafter turned over to him.
Petitioner however insists that said testimony is hearsay inasmuch as SPO1 Salutre was not
the person who actually arrested him. We disagree. During SPO1 Salutre’s testimony,
petitioner failed to object to the questions propounded to SPO1 Salutre regarding his
apprehension. Consequently, he cannot now claim that SPO1 Salutre’s testimony on the
arrest was hearsay. Petitioner’s assertion of having voluntarily surrendered to Barangay
Captain Oller was not corroborated by any competent and reliable evidence. Considering
the damning averments in the Affidavit of Arrest, petitioner should have at least called
Barangay Captain Oller to the witness stand just to shed light on his alleged voluntary
surrender.

We agree with the trial court that the qualifying circumstance of evident premeditation has
not been adequately shown. To properly appreciate the same, it is necessary to establish:
(1) the time when the offender determined to commit the crime; (2) an act manifestly
indicating that the culprit has clung to this determination; and (3) a sufficient lapse of time
between the determination and the execution to allow him to reflect upon the
consequences of his act.76 Since there is dearth of evidence on when petitioner first
conceived of killing Dean and that he was afforded sufficient time to reflect on the
consequences of his contemplated crime before its final execution, the circumstance of
evident premeditation cannot be appreciated.

Civil Liabilities of Petitioner

The trial court awarded Dean the amount of ₱92,000.00 representing his hospitalization and
medical expenses which was increased by the CA to ₱92,715.68. To be entitled to actual
damages, it is necessary to prove the actual amount of loss with a reasonable degree of
certainty, premised upon competent proof and the best evidence obtainable to the injured
party.77 For Dean’s hospitalization and medical expenses, the receipts submitted to support
said claim amounted only to ₱56,275.48; hence, Dean is entitled only to the said amount.

The Court awards exemplary damages in the amount of ₱25,000.00, inasmuch as the
qualifying circumstance of treachery attended the commission of the crime. In People v.
Catubig,78 we emphasized that insofar as the civil aspect of the crime is concerned,
exemplary damages in the amount of ₱25,000.00 is recoverable if there is present an
aggravating circumstance, whether qualifying or ordinary, in the commission of the crime.
The CA is correct in deleting Dean’s claim for lost salary while recuperating, since this was
not supported by evidence. However, the trial court’s award of ₱10,000.00 as attorney’s
fees should be reinstated, Dean having hired a private prosecutor to prosecute his case.

Lastly, for the suffering Dean endured from petitioner’s felonious act, the award of
₱22,000.00 moral damages is increased to ₱25,000.00, in keeping with the latest
jurisprudence.79

IN LIGHT OF ALL THE FOREGOING, the assailed Decision is hereby AFFIRMED WITH
MODIFICATION. Petitioner is hereby found guilty beyond reasonable doubt of Frustrated
Murder under Article 248 in relation to Article 6, first paragraph of the Revised Penal Code
and is hereby sentenced to suffer an indeterminate penalty from nine (9) years and four (4)
months of prision mayor in its medium period, as minimum, to seventeen (17) years and
four (4) months of reclusion temporal in its medium period, as maximum.

Petitioner is ordered to pay Dean Dongui-is the amount of ₱56,275.48 as actual damages;
₱25,000 as moral damages; ₱25,000.00 as exemplary damages; and ₱10,000.00 as
attorney’s fees.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

=======================

G.R. No. L-17666 June 30, 1966

ISIDORO MONDRAGON, petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES, respondent.
Jose Gaton for petitioner.
Assistant Solicitor General E. Umali and Solicitor N. P. Eduardo for respondent.

ZALDIVAR, J.:

The petitioner, Isidoro Mondragon, was prosecuted in the Court of First Instance of Iloilo of
the crime of frustrated homicide. After trial the Court of First Instance of Iloilo found him
guilty of the crime of attempted homicide and sentenced him to an indeterminate prison
term of from 4 months and 21 days of arresto mayor to 2 years, 4 months and 1 day of
prision correccional, with the accessory penalties of the law and the costs. Mondragon
appealed to the Court of Appeals, and the latter court affirmed the decision of the Court of
First Instance of Iloilo in all its parts, with costs. This case is now before us on a petition for
certiorari to review the decision of the Court of Appeals. No brief for the respondent. The
People of the Philippines, was filed by the Solicitor General.

The pertinent portion of the decision of the Court of Appeals, which embody the findings of
fact and conclusion of said court, is as follows:

At about 5:00 in the afternoon of July 11, 1954, while complainant Serapion Nacionales was
opening the dike of his ricefield situated in Antandan, Miagao, Iloilo, to drain the water
therein and prepare the ground for planting the next day, he heard a shout from afar telling
him not to open the dike, Nacionales continued opening the dike, and the same voice
shouted again, "Don't you dare open the dike." When he looked up, he saw Isidoro
Mondragon coming towards him. Nacionales informed appellant that he was opening the
dike because he would plant the next morning. Without much ado, Mondragon tried to hit
the complainant who dodged the blow. Thereupon, appellant drew his bolo and struck
complainant on different parts of his body. Complainant backed out, unsheathed his own
bolo, and hacked appellant on the head and forearm and between the middle and ring
fingers in order to defend himself. The appellant retreated, and the complainant did not
pursue him but went home instead. The following day, the complainant was treated by Dr.
Alfredo Jamandre, Municipal Health Officer of Miagao, Iloilo, for the following lesions
(Exhibit A):

"1. Incised wound about 2-1/2 inches long and 1/3 inches deep cutting diagonally across the
angle of the left jaw.
"2. Incised wound 1-1/2 inches long and cutting the bone underneath (3/4 centimeters
deep) below the right eye.

"3. Incised wound about 1 inch long at the lunar side of the left wrist.

"4. Incised wound about 3-1/2 inches long and 1/2 inch deep at the left side of the lower
part of the left arm.

"5. Incised wound about 1/2 inch long at the back of the left index, middle and ring fingers.

"6. Incised wound about 1 inch long of the palmar side of the left thumb.

"Barring complication the above lesions may heal from 20 to 25 days."

xxx xxx xxx

Also upon the evidence, the offense committed is attempted homicide. Appellant's intention
to kill may be inferred from his admission made in court that he would do everything he
could to stop Nacionales from digging the canal because he needed the water. However, it
was established that the injuries received by the complainant were not necessarily fatal as
to cause the death of said complainant.

The issue raised by the petitioner in the present appeal is that the Court of Appeals erred in
finding him guilty of the crime of attempted homicide and not of the crime of less serious
physical injuries. It is the contention of the petitioner that the facts as found by the Court of
Appeals do not show that the petitioner had the intention to kill the offended
party.1äwphï1.ñët

There is merit in the contention of the petitioner. We have carefully examined the record,
and We find that the intention of the petitioner to kill the offended party has not been
conclusively shown. The finding of the Court of Appeals that the petitioner had the intention
to kill the offended party is simply the result of an inference from an answer made by the
petitioner while testifying in his own behalf. Thus in the decision appealed from, it stated:
x x x Appellant's intention to kill may be inferred from his admission made in Court that he
would do everything he could to stop Nacionales from digging the canal because he needed
the water.

The facts as found by the Court of Appeals, in our opinion, do not establish the intent to kill
on the part of the petitioner. Rather, We gather that what happened was that the petitioner
and the offended party had a quarrel over the matter regarding the opening of the canal
which would drain the water away from the land of the petitioner, and because of this
quarrel a fight between them took place. The fight started with the petitioner first giving
first blows to the offended party and later he drew his bolo and inflicted on the offended
party the injuries which the Court of Appeals found to be not necessarily fatal and which
were certified by a government medical officer that they would heal in less than 30 days.
The facts as found by the Court of Appeals also show that the offended party drew his bolo
and hit the petitioner on different parts of his body, and that the petitioner retreated and
did not insist on hitting the offended party with his bolo. It may be assumed that the
petitioner drew his bolo and hit the offended party with it only when the offended party had
shown a defiant attitude, considering that the offended party himself had a bolo, as in fact
the offended party had also drawn his bolo and hit the petitioner with it, We consider that
under the circumstances surrounding the fight between the petitioner and the offended
party the intention of the petitioner to kill the offended party was not manifest.

The Court of Appeals concluded that the petitioner had the intention to kill the offended
party when the petitioner answered in the affirmative the question as to whether he would
do everything that he could do to stop the offended party from digging the canal because he
needed the water. We reproduce here the transcript of the pertinent testimony:

xxx xxx xxx

ATTY. MORADA:

Q — In other words you want to tell us that you will do everything you could to stop
Nacionales digging the canal, because you need water?

ATTY. CANTO:

I object to the question. It is misleading.

COURT:

Witness may answer.

WITNESS:

Yes, sir, because I need the water.

xxx xxx xxx

The foregoing statement or answer was made by the petitioner during the trial which took
place on January 14, 1959. The incident in question took place on July 11, 1954. The
statement made by the petitioner almost five years after the occurrence of the incident
should not, in our opinion, be considered as an accurate indication of what he had in his
mind at the time of the incident. Besides, that answer of the petitioner is not a categorical
statement of an intention on his part to kill the offended party. The term "will do
everything" has a broad meaning and it should be construed in a manner as to give the
petitioner the benefit of the doubt as to what he really meant to do. At least it cannot be
said that when the petitioner answered "yes", when he was asked whether he would do
everything to stop Nacionales from digging the canal, the only way he had in mind to stop
Nacionales was to kill him. It must be noted that this answer of the petitioner was made to a
qualifying question propounded to him by the private prosecutor over the objection of his
counsel on the ground that the question was misleading. At most, that answer of the
petitioner may only be considered as an expression of opinion of what he would do under a
given circumstance.

The intent to kill being an essential element of the offense of frustrated or attempted
homicide, said element must be proved by clear and convincing evidence. That element
must be proved with the same degree of certainty as is required of the other elements of
the crime. The inference of intent to kill should not be drawn in the absence of
circumstances sufficient to prove such intent beyond reasonable doubt (People vs.
Villanueva, 51 Phil. 488).1

We hold that the facts brought out in the decision of the Court of Appeals in the present
case do not justify a finding that the petitioner had the intention to kill the offended party.
On the contrary, there are facts brought out by the decision appealed from which indicates
that the petitioner had no intention to kill, namely: the petitioner started the assault on the
offended party by just giving him fist blows; the wounds inflicted on the offended party
were of slight nature, indicating no homicidal urge on the part of the petitioner; the
petitioner retreated and went away when the offended party started hitting him with a
bolo, thereby indicating that if the petitioner had intended to kill the offended party he
would have held his ground and kept on hitting the offended party with his bolo to kill him.

The element of intent to kill not having been duly established, and considering that the
injuries suffered by the offended party were not necessarily fatal and could be healed in less
than 30 days, We hold that the offense that was committed by the petitioner is only that of
less serious physical injuries.

The offense of less serious physical injuries, as defined in Article 265 of the Revised Penal
Code, is punishable by arresto mayor or imprisonment of from 1 month and 1 day to 6
months. The facts as found by the Court of Appeals do not show any aggravating or
mitigating circumstance that may be considered in the imposition of the penalty on the
petitioner. We, therefore, sentence the petitioner to suffer the penalty of three (3) months
and fifteen (15) days of arresto mayor.

In view of the foregoing, the decision of the Court of Appeals appealed from should be, as it
is hereby, modified in the sense that the petitioner is declared guilty of the offense of less
serious physical injuries and he is sentenced to suffer the penalty of three (3) months and
fifteen (15) days of arresto mayor, with costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Bengzon and Sanchez, JJ., concur.
Barrera and Makalintal, JJ., took no part.

================

G.R. No. L-36461 June 29, 1984

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
HERNANDO DIO, accused-appellant.
The Solicitor General for plaintiff-appellee.

Luis R. Feria for accused-appellant.

ABAD SANTOS, J.:

Automatic review of a decision of the defunct Circuit Criminal Court, 7th Judicial District,
which imposed the death penalty.

An information for robbery with homicide was filed on October 1, 1971, against Danilo
Tobias and a John Doe. The order to arrest Tobias was returned unserved and he is still on
the "Wanted Persons Files."

On December 7, 1971, the information was amended to name Hernando Dio as the John
Doe, the appellant herein. As amended, the information reads:

That on or about the 24th day of July 1971, in Pasay City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused Danilo Tobias @ Danny Kulot
and Hernando Dio @ Way Kaon, conspiring and confederating together and mutually
helping one another, with intent to gain and without the knowledge and consent of the
owner, and with the use of 'balisong', one of the accused was provided with, and by means
of force, threats and intimidation employed upon the latter, did then and there wilfully,
unlawfully and feloniously take, steal and rob away from one Crispulo P. Alega, one Seiko
brand men's wrist watch (recovered); and the said accused in accordance with and pursuant
to their conspiracy, and in order to carry out their avowed purpose, with intent to kill did
then and there wilfully, unlawfully and feloniously attack, assault and stab for several times
Crispulo P. Alega, and which "balisong" was directly aimed at the vital portions of the body
of said Crispulo P. Alega, thus performing all the acts of execution causing his instantaneous
death. (Expediente, p. 68.)

Accused Hernando Dio pleaded not guilty when he was arraigned and after trial the court
rendered the following judgment:
WHEREFORE, finding the accused, Hernando Dio, Guilty, beyond reasonable doubt, of the
crime of Robbery with Homicide as defined under Article 294 of the Revised Penal Code, as
charged in the Amended Information, the Court hereby sentences him to suffer the penalty
of DEATH; to indemnify the heirs of the victim, Crispulo Alega the amount of P12,000.00; to
pay moral damages in the amount of P10,000.00 and another P10,000.00, as exemplary
damages; and to pay the costs. (Id., pp. 105-106.)

The People's version of the facts is as follows:

At about noontime on July 24, 1971, Crispulo Alega, a civil engineer by profession working at
the Sugar Construction Company, with a salary of more than P500.00 a month went to the
Southeastern College, Pasay City to fetch his girlfriend, Remedios Maniti, a third year high
school student thereat (pp. 55, 59, 63-64, 11 1973). They proceeded to the Pasay City Public
Market. As they were going up the stairs leading to the Teresa and Sons Restaurant,
Remedios, who was was about an arms-length ahead of Crispulo suddenly heard the
dropping of her folders and other things, being carried by Crispulo. When she looked back,
she saw a man — later Identified as Danilo Tobias but still at large — twisting the neck of
Crispulo, while the appellant was holding his (Crispulo's) two hands (pp. 56-57, 61, tsn., Id.).
The appellant and his companion tried to divest Crispulo of his "Seiko" wrist watch, but
Crispulo resisted their attempt and fought the robbers. At this juncture, the man who was
twisting the neck of Crispulo stabbed the latter on the left side of his chest. Crispulo ran
down the stairs followed by Remedies who shouted for help. When he reached the front of
the Pasay Commercial Bank he fell down and expired. At the time of his death, the "Seiko"
watch was strapped to his wrist. (pp. 57-61, tsn., Id., pp. 7-9, tsn., Jan. 22, 1973).lwphl@itç

An autopsy conducted on the victim's body by Dr. Ricardo Ibarola medicolegal officer of the
NBI revealed that the cause of death was a stab wound at the region below his left breast
which penetrated the heart. Said doctor opined that judging from the natural appearance of
the stab wound, it must have been caused by a single-bladed pointed instrument (pp. 6, 13-
14, tsn., Jan. 11, 1973; Exh. C and C-1, p. 87, rec.). The necropsy report (Exh. A, p. 85, rec.)
stated that the decease sustained the following injuries:

Abrasions: right zygomatic region, 0.6 x 0.4 infralabial region, right side 1.7 x 1.4 come
forearm right, upper third, posterolateral aspect, 0.6 x 0.4 clean and left, lower third,
posterior aspect, 0.4 x 0.2 come right knee, 0.6 x 0.4 come right leg, upper third, anterior
aspect, 1.4 x 0.8

Incise wounds, neck, left supers-lateral aspect, two in number, 2.5 and 1.2 crime in lengths,
both superficial
Stab wound: left inframammary region, level of the 5th intercostal space along the
parasternal line, 6.0 cm. from the anterior midline, 0.5 crime below the left nipple, elliptical
in shape, 3.0 cm. long extended laterally by 3.0 crime long rising slightly downwards,
medially edges, clean cut, sutured, medial extremity of which is blunt and lateral extremity,
sharp; directed upwards, medially and backwards involving, among others, the soft tissues,
thru the 5th intercostal muscles, grazing the 6th rib superiorly, perforating the left pleural
cavity only, into the middle mediastinum by penetrating the pericardium antero-inferiorly,
perforating the interventricular system and penetrating the left ventricle of the heart at its
apical portions, approximate depth 11.0 cm.

After the appellant's arrest on October 24, 1972, he was investigated at the Detective
Bureau of the Pasay City Police Department and gave a statement (Exh. D, p. 90, rec.) in the
presence of Pat. Arturo Rimorin admitting that on the date and nine of the incident, he and
his co-accused, Danilo Tobias administrative Kardong Kaliwa alias Danny Kulot, held up a
man and a woman; that they did not get the watch of the man; that he held the victim's
hands but the latter was able to free himself; that Danny Kulot stabbed the man, that when
the victim ran, they also ran away; and that he did not know what happened to the victim
(Exhs. D, D-1, D-2, D-3, D-4 and D-5, p. 90, rec.; pp. 27-3 1, tsn., Jan. 11, 1973). (Brief, pp. 2-
6.)

Atty. Luis R. Feria, counsel de oficio of the appellant, states:

After a careful, considered and conscientious examination of the evidence adduced in the
instant case, undersigned counsel is constrained to conclude that the findings of fact of the
trial court, upholding the version of the prosecution as against that of the defense, must
have to be sustained. As against the sole and uncorroborated testimony of appellant merely
denying any participation in the commission of the crime imputed to him (while admitting
that he was present at the scene of the crime), there is a formidable array of evidence
against him consisting of the clear and convincing testimony of Remedios Maniti, who was
in the company of the deceased at the time he was killed and an eyewitness to the entire
incident; the extra-judicial written confession of defendant-appellant (Exhibit D) admitting
participation in the commission of the crime; the testimony of Patrolman Arturo Rimorin
who conducted the investigation of, and before whom Exhibit D was executed and signed
by, defendant- appellant, as well straight the testimony of Sgt. Geronimo de los Santos of
the Pasay Police to whom defendant-appellant orally admitted that he held the victim's
hands although he had no part in the actual stabbing of the deceased.
With respect to the testimony of the eyewitness Remedios Maniti there is absolutely
nothing in the record (except perhaps that she was the sweetheart of the deceased) to
show, or even hint, that she had any reasons to perjure herself by falsely incriminating
defendant-appellant in such a grievous crime, no bias, interest or prejudice against the latter
as would move or induce her to faithlessly accuse him of a crime which he had not
committed. More than ever, the time-honored ruling of this Honorable Court, too elemental
to require citations, that the findings of the trial court on the question of credibility of the
witnesses, having had the advantage of observing their demeanor and manner of testifying,
should not be disturbed in the absence of strong and cogent reasons therefor, applies fully
to the case at bar. No such reasons can be found herein.

The same observations may be made with respect to the testimonies of Patrolman Rimorin
and Sgt. de los Santos. Moreover, as has been held by this Honorable Court, where the
prosecution witnesses, being government employees who testified as to what transpired in
the performance of their duties, were neutral and disinterested and had no reason to falsely
testify against the accused, and did not subject him to any violence, torture or bodily harm,
their testimonies should be given more weight than that of the accused (P. v. Pereto, 21
SCRA 1469: P. v. Del Castillo, 25 SCRA 716.)

Then there is the extrajudicial confession of defendant-appellant, Exhibit D. True it is that,

belatedly during the trial, appellant claimed that his answers appearing in Exhibit D were
given because he was afraid as he was intimidated and struck on the buttock with a long
piece of wood (pp. 32-34, t.s.n. Ses. of January 22, 1973). It is submitted that this last-
minute, desperate and uncorroborated claim falls flat in the face not only of the
presumption of voluntariness in the execution of confessions, but also of the testimony of
Patrolman Rimorin to the effect that Exhibit D was executed voluntarily and that defendant-
appellant was never maltreated (pp. 26, 31-32, t.s.n. Ses. of January 11, 1973), and the
latter's own admission that before he signed Exhibit D, its contents were first read to him in
Tagalog and that he fully understood the same (pp. 24, t.s.n. Ses. of January 22, 1973), and
his further admission that he has not filed any case against those who had allegedly
maltreated him (p. 33, t.s.n, Id.). Moreover, where the alleged confession reveals
spontaneity of the declarations belying the claim that they were concocted or dictated by
the police, the court win reject the case that the confession was involuntary (P. v. Castro, 11
SCRA 699).lwphl@itç (Brief, pp. 3-5.)

Notwithstanding the foregoing factual admission, Atty. Feria makes the following
assignment of errors:
1. THE TRIAL COURT ERRED IN CONVICTING DEFENDANT- APPELLANT OF THE SPECIAL
COMPLEX CRIME OF ROBBERY WITH HOMICIDE AS DEFINED AND PENALIZED UNDER ART.
294, PAR. 1, OF THE REVISED PENAL CODE.

2. EVEN ASSUMING THAT THE CRIME COMMITTED BY DEFENDANT-APPELLANT IS ROBBERY

WITH HOMICIDE, THE TRIAL COURT ERRED IN SENTENCING HIM TO SUFFER THE DEATH
PENALTY.

We have scrutinized the record, particularly the testimonial evidence, and indeed there is no
doubt that the appellant had a hand in the death of Crispulo Alega. There remains to be
considered, however, the claims of the appellant which are made in the assignment of
errors.

The appellant claims in his first assignment of error that he should not have been convicted
of the special complex crime of robbery with homicide because the robbery was not
consummated. He states that there was only an attempted robbery.

The Solicitor General states:

... We are constrained to agree with defense' contention. The evidence adduced show that
the appellant and his companion were unsuccessful in their criminal venture of divesting the
victim of his wrist watch so as to constitute the consummated crime of robbery. Indeed, as
adverted to earlier, when the victim expired, the 'Seiko' watch was still securely strapped to
his wrist (p. 59, t.s.n., Jan. 11, 1973). The killing of Crispulo Alega may be considered as
merely incidental to and an offshoot of the plan to carry out the robbery, which however
was not consummated because of the resistance offered by the deceased. Consequently,
this case would properly come under the provision of Art. 297 of the Revised Penal Code
which states that —

When by reason or on occasion of an attempted or frustrated robbery a homicide is

committed, the person guilty of such offenses shall be punished by reclusion temporal in its
maximum period to reclusion perpetua, unless the homicide committed shall deserve a
higher penalty under the provisions of this Code. (Brief, pp. 5-6.)

In his second assignment of error the appellant claims that the information does not allege
any aggravating circumstance nor was any proved during the trial.
Again the Solicitor General states:

We likewise agree with the contention of counsel in his second assigned error that the
evidence presented by the prosecution did not show the attendance of any aggravating
circumstance in the commands of the crime and neither did the court a quo make any
finding in this respect (pp. 7-8, appellant's brief). (Id, p. 6.)

The crime committed by the appellant is attempted robbery with homicide and the penalty
prescribed by law is reclusion temporal in its maximum period to reclusion perpetua. Since
there was no attendant mitigating nor aggravating circumstance, the penalty should be
applied in its medium period, i.e. 18 years, 8 months and 1 day to 20 years. The
Indeterminate Sentence Law has also to be applied.

WHEREFORE, the judgment of the trial court is hereby modified; the appellant is found
guilty beyond reasonable doubt of the special complex crime of attempted robbery with
homicide and he is sentenced to suffer an indeterminate penalty of 10 years and 1 day of
prision mayor as minimum to 20 years of reclusion temporal as maximum, to indemnify the
heirs of Crispulo Alega in the amount of P30,000.00, and to pay one-half of the costs. SO
ORDERED.

============

G.R. No. 86163 April 26, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, and SIMPLICIO
CANASARES, BIENVENIDO SALVILLA, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Resurreccion S. Salvilla for defendant-appellant.
MELENCIO-HERRERA, J.:

Accused Bienvenido Salvilla alone appeals from the Decision of the Regional Trial Court,
Branch 28, Iloilo City, * dated 29 August 1988, in Criminal Case No. 20092, finding him and
his co-accused Reynaldo, Ronaldo and Simplicio, all surnamed Canasares, guilty beyond
reasonable doubt of the crime of "Robbery with Serious Physical Injuries and Serious Illegal
Detention" and sentencing them to suffer the penalty of reclusion perpetua.

The Information filed against them reads:

The undersigned City Fiscal accuses BIENVENIDO SALVILLA, REYNALDO CANASARES,

RONALDO CANASARES, and SIMPLICIO CANASARES, whose maternal surnames, dated and
places of birth cannot be ascertained of the crime of ROBBERY WITH SERIOUS PHYSICAL
INJURIES AND SERIOUS ILLEGAL DETENTION (Art, 294, paragraph 3, in conjunction with
Article 267 of the Revised Penal Code), committed as follows:

That on or about the 12th day of April, 1986, in the City of Iloilo, Philippines and within the
jurisdiction of this Court, said accused, conspiring and confederating among themselves,
working together and helping one another, armed with guns and handgrenade and with the
use of violence or intimidation employed on the person of Severino Choco, Mary Choco,
Mimie Choco and Rodita Hablero did then and there wilfully, unlawfully and criminally take
and carry away, with intent of gain, cash in the amount of P20,000.00, two (2) Men's wrist
watches, one (1) Lady's Seiko quartz wrist watch and one (1) Lady's Citizen wrist watch and
assorted jewelries, all valued at P50,000.00; that on the occasion and by reason of said
robbery, Mary Choco suffered serious physical injuries under paragraph 2 of Article 263,
Bienvenido Salvilla likewise suffered serious physical injuries and Reynaldo Canasares also
suffered physical injuries; that the said accused also illegally detained, at the compound of
the New Iloilo Lumber Company, Iznart Street, Iloilo City, Severino Choco, owner/proprietor
of said Lumber Company, Mary Choco, Mimie Choco, who is a minor, being 15 years of age,
and Rodita Hablero, who is a salesgirl at said Company; that likewise on the occasion of the
robbery, the accused also asked and were given a ransom money of P50,000.00; that the
said crime was attended by aggravating circumstances of band, and illegal possession of
firearms and explosives; that the amount of P20,000.00, the ransom money of P50,000.00,
two (2) Men's wrist watches, two (2) lady's wrist watches, one (1) .38 caliber revolver and
one (1) live grenade were recovered from the accused; to the damage and prejudice of the
New Iloilo Lumber Company in the amount of P120,000.00.

The evidence for the prosecution may be re-stated as follows:

On 12 April 1986, a robbery was staged by the four accused at the New Iloilo Lumber Yard at
about noon time. The plan was hatched about two days before. The accused were armed
with homemade guns and a hand grenade. When they entered the establishment, they met
Rodita Hablero an employee thereat who was on her way out for her meal break and
announced to her that it was a hold-up. She was made to go back to the office and there
Appellant Salvilla pointed his gun at the owner, Severino Choco, and his two daughters,
Mary and Mimie the latter being a minor 15 years of age, and told the former that all they
needed was money. Hearing this, Severino told his daughter, Mary, to get a paper bag
wherein he placed P20,000.00 cash (P5,000.00, according to the defense) and handed it to
Appellant. Thereafter, Severino pleaded with the four accused to leave the premises as they
already had the money but they paid no heed. Instead, accused Simplicio Canasares took
the wallet and wristwatch of Severino after which the latter, his two daughters, and Rodita,
were herded to the office and kept there as hostages.

At about 2:00 o'clock of the same day, the hostages were allowed to eat. The four accused
also took turns eating while the others stood guard. Then, Appellant told Severino to
produce P100,000.00 so he and the other hostages could be released. Severino answered
that he could not do so because it was a Saturday and the banks were closed.

In the meantime, police and military authorities had surrounded the premises of the lumber
yard. Major Melquiades B. Sequio Station Commander of the INP of Iloilo City, negotiated
with the accused using a loud speaker and appealed to them to surrender with the
assurance that no harm would befall them as he would accompany them personally to the
police station. The accused refused to surrender or to release the hostages.

Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the negotiations. In her
dialogue with the accused, which lasted for about four hours, Appellant demanded
P100,000.00, a coaster, and some raincoats. She offered them P50,000.00 instead,
explaining the difficulty of raising more as it was a Saturday. Later, the accused agreed to
receive the same and to release Rodita to be accompanied by Mary Choco in going out of
the office. When they were out of the door, one of the accused whose face was covered by
a handkerchief, gave a key to Mayor Caram. With this, Mayor Caram unlocked the
padlocked door and handed to Rodita the P50,000.00, which the latter, in turn, gave to one
of the accused. Rodita was later set free but Mary was herded back to the office.

Mayor Caram, Major Sequio and even volunteer radio newscasters continued to appeal to
the accused to surrender peacefully but they refused.1âwphi1 UItimatums were given but
the accused did not budge. Finally, the police and military authorities decided to launch an
offensive and assault the place. This resulted in injuries to the girls, Mimie and Mary Choco
as well as to the accused Ronaldo and Reynaldo Canasares. Mary suffered a "macerated
right lower extremity just below the knee" so that her right leg had to be amputated. The
medical certificate described her condition as "in a state of hemorrhagic shock when she
was brought in to the hospital and had to undergo several major operations during the
course of her confinement from April 13, 1986 to May 30, 1986."

For his part, Appellant Salvilla confirmed that at about noon time of 12 April 1986 he and his
co-accused entered the lumber yard and demanded money from the owner Severino Choco
He demanded P100,000.00 but was given only P5,000.00, which he placed on the counter of
the office of the lumber yard. He admitted that he and his co-accused kept Severino, his
daughters, and Rodita inside the office. He maintained, however, that he stopped his co-
accused from getting the wallet and wristwatch of Severino and, like the P5,000.00 were all
left on the counter, and were never touched by them. He claimed further that they had
never fired on the military because they intended to surrender. Appellant's version also was
that during the gunfire, Severino's daughter stood up and went outside; he wanted to stop
her but he himself was hit by a bullet and could not prevent her. Appellant also admitted
the appeals directed to them to surrender but that they gave themselves up only much
later.

After trial, the Court a quo meted out a judgment of conviction and sentenced each of the
accused "to suffer the penalty of reclusion perpetua, with the accessory penalties provided
by law and to pay the costs."

Appellant Salvilla's present appeal is predicated on the following Assignments of Error:

1. The lower court erred in holding that the crime charged was consummated and in not
holding that the same was merely attempted.

2. The lower court erred in not appreciating the mitigating circumstance of voluntary
surrender."

Upon the facts and the evidence, we affirm.

The defense contends that "The complete crime of larceny (theft/robbery) as distinguished
from an attempt requires asportation or carrying away, in addition to the taking, In other
words, the crime of robbery/theft has three consecutive stages: 1) the giving 2) the taking
and 3) the carrying away or asportation And without asportation the crime committed is
only attempted" (Memorandum for Appellant Salvilla, Records, p. 317).

There is no question that in robbery, it is required that there be a taking of personal

property belonging to another. This is known as the element of asportation the essence of
which is the taking of a thing out of the possession of the owner without his privity and
consent and without the animus revertendi (Aquino, Revised Penal Code, p. 97, citing 5 C.J.
607). In fact, if there is no actual taking, there can be no robbery. Unlawful taking of
personal property of another is an essential part of the crime of robbery.

Appellant insists that while the "giving" has been proven, the "taking" has not. And this is
because neither he nor his three co-accused touched the P5,000.00 given by Severino nor
the latter's wallet or watch during the entire incident; proof of which is that none of those
items were recovered from their persons.

Those factual allegations are contradicted by the evidence. Rodita, the lumberyard
employee, testified that upon demand by Appellant, Severino put P20,000.00 inside a paper
bag and subsequently handed it to Appellant. In turn, accused Simplicio Canasares took the
wallet and wristwatch of Severino. In respect of the P50,000.00 from Mayor Caram, Rodita
declared that the Mayor handed the amount to her after she (the Mayor) had opened the
padlocked door and that she thereafter gave the amount to one of the holduppers. The
"taking" was, therefore, sufficiently proved (TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The
money demanded, and the wallet and wristwatch were within the dominion and control of
the Appellant and his co-accused and completed the taking.

The State established a "taking" sufficient to support a conviction of robbery even though
the perpetrators were interrupted by police and so did not pick up the money offered by the
victim, where the defendant and an accomplice, armed with a knife and a club respectively,
had demanded the money from the female clerk of a convenience store, and the clerk had
complied with their instructions and placed money from the register in a paper bag and
then placed the bag on the counter in front of the two men; these actions brought the
money within the dominion and control of defendant and completed the taking. (Johnson
vs. State, 432 So 2d 758).

"Severance of the goods from the possession of the owner and absolute control of the
property by the taker, even for an instant, constitutes asportation (Adams vs.
Commonwealth, 154 SW 381; State vs. Murray, 280 SW 2d 809; Mason vs. Commonwealth,
105 SE 2d 149) [Emphasis supplied].
It is no defense either that Appellant and his co-accused had no opportunity to dispose of
the personalities taken. That fact does not affect the nature of the crime, From the moment
the offender gained possession of the thing, even if the culprit had no opportunity to
dispose of the same, the unlawful taking is complete (Reyes, Revised Penal Code Annotated,
Book II, 1981 ed., p. 594).

The crime is consummated when the robber acquires possession of the property, even if for
a short time, and it is not necessary that the property be taken into the hands of the robber,
or that he should have actually carried the property away, out of the physical presence of
the lawful possessor, or that he should have made his escape with it" (People vs. Quinn, 176
P 2d 404; Woods vs. State, 220 SW 2d 644; People vs. Beal, 39 P 2d 504; People vs. Clark,
160 P 2d 553).

Contrary to Appellant's submission, therefore, a conviction for consummated and not

merely attempted Robbery is in order.

It is the contention of Appellant that Rodita could not have seen the taking because the
place was dark since the doors were closed and there were no windows. It will be recalled,
however, that Rodita was one of the hostages herself and could observe the unfolding of
events. Her failure to mention the taking in her sworn statement would not militate against
her credibility, it being settled that an affidavit is almost always incomplete and inaccurate
and does not disclose the complete facts for want of inquiries or suggestions (People vs.
Andaya, G.R. No. L-63862, 31 July 1987, 152 SCRA 570; People vs. Tan, et al., 89 Phil. 337
[1951]).

The fact, too, that Rodita was an employee of Severino would not lessen her credibility. The
defense has not proven that she was actuated by any improper motive in testifying against
the accused.

In the last analysis, the basic consideration centers around the credibility of witnesses in
respect of which the findings of the Trial Court are entitled to great weight as it was in a
superior position to assess the same in the course of the trial (see People vs. Ornoza G.R.
No. L-56283, 30 June 1987, 151 SCRA 495; People vs. Alcantara, G.R. No. L-38042, 30 June
1987, 151 SCRA 326).
Anent the second assignment of error, the "surrender" of the Appellant and his co-accused
cannot be considered in their favor to mitigate their liability. To be mitigating, a surrender
must have the following requisites: (a) that the offender had not been actually arrested; (b)
that the offender surrendered himself to a person in authority or to his agent; and (c) that
the surrender was voluntary (People vs. Canamo, G.R. No. L-62043, 13 August 1985, 138
SCRA 141).

The "surrender" by the Appellant and his co-accused hardly meets these requirements. They
were, indeed, asked to surrender by the police and military authorities but they refused
until only much later when they could no longer do otherwise by force of circumstances
when they knew they were completely surrounded and there was no chance of escape. The
surrender of the accused was held not to be mitigating as when he gave up only after he
was surrounded by the constabulary and police forces (People vs. Sigayan et al., G.R. Nos. L-
18523-26, 30 April 1966, 16 SCRA 839; People vs. Mationg G.R. No. L-33488, 29 March 1982,
113 SCRA 167). Their surrender was not spontaneous as it was motivated more by an intent
to insure their safety. And while it is claimed that they intended to surrender, the fact is that
they did not despite several opportunities to do so. There is no voluntary surrender to speak
of (People vs. Dimdiman 106 Phil. 391 [1959]).

All told, the assigned errors remain unsubstantiated and we find the guilt of the accused-
appellant, Bienvenido Salvilla, established beyond reasonable doubt.

Although unassigned as an error, we deem it necessary to turn now to the nature of the
linked offenses involved and the penalty imposed by the Trial Court.

Appellant and his co-accused were charged in the Information with "Robbery with Serious
Physical Injuries and Serious Illegal Detention ("Art. 295, par. 3, in conjunction with Art. 267,
RPC )and sentenced to reclusion perpetua. We agree with the Trial Court that a complex
crime under Article 48 of the Revised Penal Code has been committed such that the penalty
for the more serious offense of Serious Illegal Detention (Art. 267, Revised Penal Code), or
"reclusion perpetua to death," is to be imposed instead of the penalty prescribed for
Robbery with Serious Physical Injuries (Art. 294 (3), which is reclusion temporal.

Under Article 48, a complex crime arises "when an offense is a necessary means for
committing the other." The term "necessary means" does not connote indispensable means
for if it did then the offense as a "necessary means" to commit another would be an
indispensable element of the latter and would be an ingredient thereof. The phrase
"necessary means" merely signifies that one crime is committed to facilitate and insure the
commission of the other (Aquino, Revised Penal Code, Vol. I, 1987 ed., p. 624, citing Dissent,
Montemayor, J., Amado Hernandez, 99 Phil. 515). In this case, the crime of Serious Illegal
Detention was such a "necessary means" as it was selected by Appellant and his co-accused
to facilitate and carry out more effectively their evil design to stage a robbery.

The facts of this case differ from those in People vs. Astor, et al. (G.R. Nos. L-71765-66, 29
April 1987, 149 SCRA 325) where the accused were convicted of Robbery but acquitted in
the case for Serious Illegal Detention and where it was held that "the detention is absorbed
in the crime of robbery." For one, in Astor, there were two (2) separate Informations filed,
one for Robbery and another for Serious Illegal Detention. In the present case, only one
Information was filed charging the complex offense. For another, in Astor, the robbery had
already been consummated and the detention was merely to forestall the capture of the
robbers by the police. Not so in this case, where the detention was availed of as a means of
insuring the consummation of the robbery. Further, in Astor, the detention was only
incidental to the main crime of robbery so that it was held therein:

. . . were appellants themselves not trapped by the early arrival of the police at the scene of
the crime, they would have not anymore detained the people inside since they have already
completed their job. Obviously, appellants were left with no choice but to resort to
detention of these people as security, until arrangements for their safe passage were made.
This is not the crime of illegal detention punishable under the penal laws but an act of
restraint in order to delay the pursuit of the criminals by peace officers (People v. Sol, 9 Phil.
265; People v. Uday 55 Phil. 167, cited in the Revised Penal Code, Aquino, Vol. 3, 1976 ed.,
p. 1337). Where the victims in a robbery case were detained in the course of robbery, the
detention is absorbed by the crime of robbery (P. v. Baysa, 92 Phil. 1008, id.). In the case at
bar, the detention was only incidental to the main crime of robbery, and although in the
course thereof women and children were also held, that threats to kill were made, the act
should not be considered as a separate offense. Appellants should only be held guilty of
robbery.

In contract, the detention in the case at bar was not only incidental to the robbery but was a
necessary means to commit the same.1âwphi1 After the amount of P20,000.00 was handed
to Appellant, the latter and his co-accused still refused to leave. The victims were then taken
as hostages and the demand to produce an additional P100,000.00 was made as a
prerequisite for their release. The detention was not because the accused were trapped by
the police nor were the victims held as security against the latter. The detention was not
merely a matter of restraint to enable the malefactors to escape, but deliberate as a means
of extortion for an additional amount. The police and other authorities arrived only much
later after several hours of detention had already passed. And, despite appeals to appellant
and his co-accused to surrender, they adamantly refused until the amount of P100,000.00
they demanded could be turned over to them. They even considered P50,000.00, the
amount being handed to them, as inadequate.
The foregoing features also distinguish this case from those of U.S. v. Sol, 9 Phil. 265 [1907]
where the restraint was for no other purpose than to prevent the victims from reporting the
crime to the authorities; from People v. Gamboa, 92 Phil. 1085 [1953] where the victims
were taken to a place one kilometer away and shot in order to liquidate the witnesses to the
robbery; from People v. Baysa, 92 Phil. 1008 [1953]; People v. Manzanilla, 43 Phil. 167
[1922], all of which cases were cited in Astor and where the victims were only incidentally
detained so that the detention was deemed absorbed in robbery.

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

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

WHEREFORE, the judgment appealed from is hereby AFFIRMED. Proportionate costs.

SO ORDERED.

Paras, Padilla Sarmiento and Regalado JJ., concur.

===========

G.R. No. 88724 April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
C. Manalo for defendant-appellant.

MEDIALDEA, J.:

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.
xxx xxx xxx

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. Eriña 50 Phil.
998 [1927] where We found the offender guilty of frustrated rape there being no conclusive
evidence of penetration of the genital organ of the offended party. However, it appears that
this is a "stray" decision inasmuch as it has not been reiterated in Our subsequent decisions.
Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic
Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29,
1965) which provides, in its penultimate paragraph, for the penalty of death when the rape
is attempted or frustrated and a homicide is committed by reason or on the occasion
thereof. We are of the opinion that this particular provision on frustrated rape is a dead
provision. The Eriña case, supra, might have prompted the law-making body to include the
crime of frustrated rape in the amendments introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the genital organ of the
victim, the trial court relied on the testimony of Dr. Zamora when he "categorically declared
that the findings in the vulva does not give a concrete disclosure of penetration. As a matter
of fact, he tossed back to the offended party the answer as to whether or not there actually
was penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo):

. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as

interpreted by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty
whether there was penetration or not. It is true, and the Court is not oblivious, that
conviction for rape could proceed from the uncorroborated testimony of the offended party
and that a medical certificate is not necessary (People v. Royeras People v. Orteza, 6 SCRA
109, 113). But the citations the people relied upon cannot be applicable to the instant case.
The testimony of the offended party is at variance with the medical certificate. As such, a
very disturbing doubt has surfaced in the mind of the court. It should be stressed that in
cases of rape where there is a positive testimony and a medical certificate, both should in all
respect, compliment each other, for otherwise to rely on the testimony alone in utter
disregard of the manifest variance in the medical certificate, would be productive of
mischievous results.

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.

xxx xxx xxx

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.
===========

G.R. No. 129433 March 30, 2000

PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
PRIMO CAMPUHAN Y BELLO accused.

BELLOSILLO, J.:

On 3 April 1990 this Court in People v. Orita 1 finally did away with frustrated rape 2 and
allowed only attempted rape and consummated rape to remain in our statute books. The
instant case lurks at the threshold of another emasculation of the stages of execution of
rape by considering almost every attempt at sexual violation of a woman as consummated
rape, that is, if the contrary view were to be adopted. The danger there is that that concept
may send the wrong signal to every roaming lothario, whenever the opportunity bares itself,
to better intrude with climactic gusto, sans any restraint, since after all any attempted
fornication would be considered consummated rape and punished as such. A mere strafing
of the citadel of passion would then be considered a deadly fait accompli, which is absurd.

In Orita we held that rape was consummated from the moment the offender had carnal
knowledge of the victim since by it he attained his objective. All the elements of the offense
were already present and nothing more was left for the offender to do, having performed all
the acts necessary to produce the crime and accomplish it. We ruled then that perfect
penetration was not essential; any penetration of the female organ by the male organ,
however slight, was sufficient. The Court further held that entry of the labia or lips of the
female organ, even without rupture of the hymen or laceration of the vagina, was sufficient
to warrant conviction for consummated rape. We distinguished consummated rape from
attempted rape where there was no penetration of the female organ because not all acts of
execution were performed as the offender merely commenced the commission of a felony
directly by overt acts. 3 The inference that may be derived therefrom is that complete or full
penetration of the vagina is not required for rape to be consummated. Any penetration, in
whatever degree, is enough to raise the crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by requiring entry into the
labia or lips of the female organ, even if there be no rupture of the hymen or laceration of
the vagina, to warrant a conviction for consummated rape. While the entry of the penis into
the lips of the female organ was considered synonymous with mere touching of the external
genitalia, e.g., labia majora, labia minora, etc.,4 the crucial doctrinal bottom line is that
touching must be inextricably viewed in light of, in relation to, or as an essential part of, the
process of penile penetration, and not just mere touching in the ordinary sense. In other
words, the touching must be tacked to the penetration itself. The importance of the
requirement of penetration, however slight, cannot be gainsaid because where entry into
the labia or the lips of the female genitalia has not been established, the crime committed
amounts merely to attempted rape.

Verily, this should be the indicium of the Court in determining whether rape has been
committed either in its attempted or in its consummated stage; otherwise, no substantial
distinction would exist between the two, despite the fact that penalty-wise, this distinction,
threadbare as it may seem, irrevocably spells the difference between life and death for the
accused — a reclusive life that is not even perpetua but only temporal on one hand, and the
ultimate extermination of life on the other. And, arguing on another level, if the case at bar
cannot be deemed attempted but consummated rape, what then would constitute
attempted rape? Must our field of choice be thus limited only to consummated rape and
acts of lasciviousness since attempted rape would no longer be possible in light of the view
of those who disagree with this ponencia?

On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced
by the court a quo to the extreme penalty of death, 5 hence this case before us on
automatic review under Art. 335 of the Revised Penal Code as amended by RA 7659. 6

As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in the
afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went
down from the second floor of their house to prepare Milo chocolate drinks for her two (2)
children. At the ground floor she met Primo Campuhan who was then busy filling small
plastic bags with water to be frozen into ice in the freezer located at the second floor. Primo
was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the
drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!" 7 prompting Corazon to rush
upstairs. Thereupon, she saw Primo Campuhan inside her children's room kneeling before
Crysthel whose pajamas or "jogging pants" and panty were already removed, while his short
pants were down to his knees.

According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified, she
cursed the accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He
evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to block
his path. Corazon then ran out and shouted for help thus prompting her brother, a cousin
and an uncle who were living within their compound, to chase the accused. 8 Seconds later,
Primo was apprehended by those who answered Corazon's call for help. They held the
accused at the back of their compound until they were advised by their neighbors to call the
barangay officials instead of detaining him for his misdeed. Physical examination of the
victim yielded negative results. No evident sign of extra-genital physical injury was noted by
the medico-legal officer on Crysthel's body as her hymen was intact and its orifice was only
0.5 cm. in diameter.

Primo Campuhan had only himself for a witness in his defense. He maintained his innocence
and assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill
will against him for his refusal to run an errand for her. 9 He asserted that in truth Crysthel
was in a playing mood and wanted to ride on his back when she suddenly pulled him down
causing both of them to fall down on the floor. It was in this fallen position that Corazon
chanced upon them and became hysterical. Corazon slapped him and accused him of raping
her child. He got mad but restrained himself from hitting back when he realized she was a
woman. Corazon called for help from her brothers to stop him as he ran down from the
second floor.

Vicente, Corazon's brother, timely responded to her call for help and accosted Primo.
Vicente punched him and threatened to kill him. Upon hearing the threat, Primo
immediately ran towards the house of Conrado Plata but Vicente followed him there. Primo
pleaded for a chance to explain as he reasoned out that the accusation was not true. But
Vicente kicked him instead. When Primo saw Vicente holding a piece of lead pipe, Primo
raised his hands and turned his back to avoid the blow. At this moment, the relatives and
neighbors of Vicente prevailed upon him to take Primo to the barangay hall instead, and not
to maul or possibly kill him.

Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found
him guilty of statutory rape, sentenced him to the extreme penalty of death, and ordered
him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary damages,
and the costs.

The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He
argues that her narration should not be given any weight or credence since it was punctured
with implausible statements and improbabilities so inconsistent with human nature and
experience. He claims that it was truly inconceivable for him to commit the rape considering
that Crysthel's younger sister was also in the room playing while Corazon was just
downstairs preparing Milo drinks for her daughters. Their presence alone as possible
eyewitnesses and the fact that the episode happened within the family compound where a
call for assistance could easily be heard and responded to, would have been enough to
deter him from committing the crime. Besides, the door of the room was wide open for
anybody to see what could be taking place inside. Primo insists that it was almost
inconceivable that Corazon could give such a vivid description of the alleged sexual contact
when from where she stood she could not have possibly seen the alleged touching of the
sexual organs of the accused and his victim. He asserts that the absence of any external
signs of physical injuries or of penetration of Crysthel's private parts more than bolsters his
innocence.

In convicting the accused, the trial court relied quite heavily on the testimony of Corazon
that she saw Primo with his short pants down to his knees kneeling before Crysthel whose
pajamas and panty were supposedly "already removed" and that Primo was "forcing his
penis into Crysthel's vagina." The gravamen of the offense of statutory rape is carnal
knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of the Revised
Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising the
penalty, from reclusion perpetua to death, to the single indivisible penalty of death under
RA 7659, Sec. 11, the offended party being below seven (7) years old. We have said often
enough that in concluding that carnal knowledge took place, full penetration of the vaginal
orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere
touching of the external genitalia by the penis capable of consummating the sexual act is
sufficient to constitute carnal knowledge. 10 But the act of touching should be understood
here as inherently part of the entry of the penis into the labias of the female organ and not
mere touching alone of the mons pubis or the pudendum.

In People v. De la Peña 11 we clarified that the decisions finding a case for rape even if the
attacker's penis merely touched the external portions of the female genitalia were made in
the context of the presence or existence of an erect penis capable of full penetration.
Where the accused failed to achieve an erection, had a limp or flaccid penis, or an oversized
penis which could not fit into the victim's vagina, the Court nonetheless held that rape was
consummated on the basis of the victim's testimony that the accused repeatedly tried, but
in vain, to insert his penis into her vagina and in all likelihood reached the labia of her
pudendum as the victim felt his organ on the lips of her vulva, 12 or that the penis of the
accused touched the middle part of her vagina. 13 Thus, touching when applied to rape
cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight
brush or a scrape of the penis on the external layer of the victim's vagina, or the mons pubis,
as in this case. There must be sufficient and convincing proof that the penis indeed touched
the labias or slid into the female organ, and not merely stroked the external surface thereof,
for an accused to be convicted of consummated rape. 14 As the labias, which are required
to be "touched" by the penis, are by their natural situs or location beneath the mons pubis
or the vaginal surface, to touch them with the penis is to attain some degree of penetration
beneath the surface, hence, the conclusion that touching the labia majora or the labia
minora of the pudendum constitutes consummated rape.

The pudendum or vulva is the collective term for the female genital organs that are visible in
the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the
vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after
puberty, and is instantly visible within the surface. The next layer is the labia majora or the
outer lips of the female organ composed of the outer convex surface and the inner surface.
The skin of the outer convex surface is covered with hair follicles and is pigmented, while
the inner surface is a thin skin which does not have any hair but has many sebaceous glands.
Directly beneath the labia majora is the labia minora. 15 Jurisprudence dictates that the
labia majora must be entered for rape to be consummated, 16 and not merely for the penis
to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ
or touching the mons pubis of the pudendum is not sufficient to constitute consummated
rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of
either labia of the pudendum by the penis, there can be no consummated rape; at most, it
can only be attempted rape, if not acts of lasciviousness.

Judicial depiction of consummated rape has not been confined to the oft-quoted "touching
of the female organ," 17 but has also progressed into being described as "the introduction
of the male organ into the labia of the pudendum," 18 or "the bombardment of the
drawbridge." 19 But, to our mild, the case at bar merely constitutes a "shelling of the castle
of orgasmic potency," or as earlier stated, a "strafing of the citadel of passion.

A review of the records clearly discloses that the prosecution utterly failed to discharge its
onus of proving that Primo's penis was able to penetrate Crysthel's vagina however slight.
Even if we grant arguendo that Corazon witnessed Primo in the act of sexually molesting her
daughter, we seriously doubt the veracity of her claim that she saw the inter-genital contact
between Primo and Crysthel. When asked what she saw upon entering her children's room
Corazon plunged into saying that she saw Primo poking his penis on the vagina of Crysthel
without explaining her relative position to them as to enable her to see clearly and
sufficiently, in automotive lingo, the contact point. It should be recalled that when Corazon
chanced upon Primo and Crysthel, the former was allegedly in a kneeling position, which
Corazon described thus:

Q: How was Primo holding your daughter?

A: (The witness is demonstrating in such a way that the chest of the accused is pinning down
the victim, while his right hand is holding his penis and his left hand is spreading the legs of
the victim).

It can reasonably be drawn from the foregoing narration that Primo's kneeling position
rendered an unbridled observation impossible. Not even a vantage point from the side of
the accused and the victim would have provided Corazon an unobstructed view of Primo's
penis supposedly reaching Crysthel's external genitalia, i.e., labia majora, labia minora,
hymen, clitoris, etc., since the legs and arms of Primo would have hidden his movements
from Corazon's sight, not to discount the fact that Primo's right hand was allegedly holding
his penis thereby blocking it from Corazon's view. It is the burden of the prosecution to
establish how Corazon could have seen the sexual contact and to shove her account into the
permissive sphere of credibility. It is not enough that she claims that she saw what was done
to her daughter. It is required that her claim be properly demonstrated to inspire belief. The
prosecution failed in this respect, thus we cannot conclude without any taint of serious
doubt that inter-genital contact was at all achieved. To hold otherwise would be to resolve
the doubt in favor of the prosecution but to run roughshod over the constitutional right of
the accused to be presumed innocent.

Corazon insists that Primo did not restrain himself from pursuing his wicked intention
despite her timely appearance, thus giving her the opportunity to fully witness his beastly
act.

We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain

where he is and persist in satisfying his lust even when he knows fully well that his dastardly
acts have already been discovered or witnessed by no less than the mother of his victim.
For, the normal behavior or reaction of Primo upon learning of Corazon's presence would
have been to pull his pants up to avoid being caught literally with his pants down. The
interval, although relatively short, provided more than enough opportunity for Primo not
only to desist from but even to conceal his evil design.

What appears to be the basis of the conviction of the accused was Crysthel's answer to the
question of the court —

Q: Did the penis of Primo touch your organ?

A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No." Thus
—

Q: But did his penis penetrate your organ?

A: No, sir. 20

This testimony alone should dissipate the mist of confusion that enshrouds the question of
whether rape in this case was consummated. It has foreclosed the possibility of Primo's
penis penetrating her vagina, however slight. Crysthel made a categorical statement
denying penetration, 27 obviously induced by a question propounded to her who could not
have been aware of the finer distinctions between touching and penetration. Consequently,
it is improper and unfair to attach to this reply of a four (4)-year old child, whose vocabulary
is yet as underdeveloped as her sex and whose language is bereft of worldly sophistication,
an adult interpretation that because the penis of the accused touched her organ there was
sexual entry. Nor can it be deduced that in trying to penetrate the victim's organ the penis
of the accused touched the middle portion of her vagina and entered the labia of her
pudendum as the prosecution failed to establish sufficiently that Primo made efforts to
penetrate Crysthel. 22 Corazon did not say, nay, not even hint that Primo's penis was erect
or that he responded with an erection. 23 On the contrary, Corazon even narrated that
Primo had to hold his penis with his right hand, thus showing that he had yet to attain an
erection to be able to penetrate his victim.

Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied by
the child's own assertion that she resisted Primo's advances by putting her legs close
together; 24 consequently, she did not feel any intense pain but just felt "not happy" about
what Primo did to her. 25 Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!"
In cases where penetration was not fully established, the Court had anchored its conclusion
that rape nevertheless was consummated on the victim's testimony that she felt pain, or the
medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora was
already gaping with redness, or the hymenal tags were no longer visible. 26 None was
shown in this case. Although a child's testimony must be received with due consideration on
account of her tender age, the Court endeavors at the same time to harness only what in
her story appears to be true, acutely aware of the equally guaranteed rights of the accused.
Thus, we have to conclude that even on the basis of the testimony of Crysthel alone the
accused cannot be held liable for consummated rape; worse, be sentenced to
death.1âwphi1
Lastly, it is pertinent to mention the medico legal officer's finding in this case that there
were no external signs of physical injuries on complaining witness' body to conclude from a
medical perspective that penetration had taken place. As Dr. Aurea P. Villena explained,
although the absence of complete penetration of the hymen does not negate the possibility
of contact, she clarified that there was no medical basis to hold that there was sexual
contact between the accused and the victim. 27

In cases of rape where there is a positive testimony and a medical certificate, both should in
all respects complement each other; otherwise, to rely on the testimonial evidence alone, in
utter disregard of the manifest variance in the medical certificate, would be productive of
unwarranted or even mischievous results. It is necessary to carefully ascertain whether the
penis of the accused in reality entered the labial threshold of the female organ to accurately
conclude that rape was consummated. Failing in this, the thin line that separates attempted
rape from consummated rape will significantly disappear.

Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the
offender commences the commission of rape directly by overt acts, and does not perform
all the acts of execution which should produce the crime of rape by reason of some cause or
accident other than his own spontaneous desistance. All the elements of attempted rape —
and only of attempted rape — are present in the instant case, hence, the accused should be
punished only for it.

The penalty for attempted rape is two (2) degrees lower than the imposable penalty of
death for the offense charged, which is statutory rape of a minor below seven (7) years. Two
(2) degrees lower is reclusion temporal, the range of which is twelve (12) years and one (1)
day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of
any mitigating or aggravating circumstance, the maximum of the penalty to be imposed
upon the accused shall be taken from the medium period of reclusion temporal, the range
of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and
four (4) months, while the minimum shall be taken from the penalty next lower in degree,
which is prision mayor, the range of which is from six (6) years and one (1) day to twelve
(12) years, in any of its periods.

WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN
Y BELLO guilty of statutory rape and sentencing him to death and to pay damages is
MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an
indeterminate prison term of eight (8) years four (4) months and ten (10) days of prision
mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20) days of
reclusion temporal medium as maximum. Costs de oficio.
SO ORDERED.1âwphi1.nêt

Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo,
Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
Pnganiban, J., in the result.

================

G.R. No. 121828 June 27, 2003

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
EDMAR AGUILOS, ODILON LAGLIBA Y ABREGON and RENE GAYOT PILOLA, accused, RENE
GAYOT PILOLA, Appellant.

DECISION

CALLEJO, SR., J.:

Before us is the appeal of appellant Rene Gayot Pilola for the reversal of the Decision1 of
the Regional Trial Court (RTC) of Pasig City, Branch 164, convicting him of murder,
sentencing him to suffer reclusion perpetua and ordering him to indemnify the heirs of the
victim Joselito Capa y Rulloda in the amount of ₱50,000 for the latter’s death.

The Indictment

On June 7, 1998, Edmar Aguilos, Odilon Lagliba y Abregon and appellant Rene Gayot Pilola
were charged with murder in an Information which reads:

That on or about the 5th day of February, 1988 in the Municipality of Mandaluyong, Metro
Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together with one Ronnie Diamante who is still at-
large and no fixed address and mutually helping and aiding with one another, armed with
double-bladed knives and a bolo and with intent to kill, treachery and taking advantage of
superior strength, did then and there willfully, unlawfully and feloniously attack, assault
hack and stab one Joselito Capa y Rulloda, as a result of which the latter sustained hack and
stab wounds on the different parts of his body, which directly caused his death.

CONTRARY TO LAW.2

Of the three accused, Odilon Lagliba was the first to be arrested3 and tried, and
subsequently convicted of murder.4 The decision of the trial court became final and
executory. Accused Edmar Aguilos remains at large while accused Ronnie Diamante
reportedly died a month after the incident. Meanwhile, herein appellant Rene Gayot Pilola
was arrested. He was arraigned on March 9, 1994, assisted by counsel, and pleaded not
guilty to the charge.5 Thereafter, trial of the case ensued.

The Evidence of the Prosecution6

On February 5, 1988, at around 11:30 p.m., Elisa Rolan was inside their store at 613 Nueve
de Pebrero Street, Mandaluyong City, waiting for her husband to arrive. Joselito Capa and
Julian Azul, Jr. were drinking beer. Edmar Aguilos and Odilon Lagliba arrived at the store.
Joselito and Julian invited them to join their drinking spree, and although already inebriated,
the two newcomers obliged. In the course of their drinking, the conversation turned into a
heated argument. Edmar nettled Julian, and the latter was peeved. An altercation between
the two ensued. Elisa pacified the protagonists and advised them to go home as she was
already going to close up. Edmar and Odilon left the store. Joselito and Julian were also
about to leave, when Edmar and Odilon returned, blocking their way. Edmar took off his
eyeglasses and punched Julian in the face. Elisa shouted: "Tama na. Tama na." Edmar and
Julian ignored her and traded fist blows until they reached Aling Sotera’s store at the end of
the street, about twelve to fifteen meters away from Elisa’s store. For his part, Odilon
positioned himself on top of a pile of hollow blocks and watched as Edmar and Julian
swapped punches. Joselito tried to placate the protagonists to no avail. Joselito’s
intervention apparently did not sit well with Odilon. He pulled out his knife with his right
hand and stepped down from his perch. He placed his left arm around Joselito’s neck, and
stabbed the latter. Ronnie and the appellant, who were across the street, saw their
gangmate Odilon stabbing the victim and decided to join the fray. They pulled out their
knives, rushed to the scene and stabbed Joselito. Elisa could not tell how many times the
victim was stabbed or what parts of his body were hit by whom. The victim fell in the canal.
Odilon and the appellant fled, while Ronnie went after Julian and tried to stab him. Julian
ran for dear life. When he noticed that Ronnie was no longer running after him, Julian
stopped at E. Rodriguez Road and looked back. He saw Ronnie pick up a piece of hollow
block and with it bashed Joselito’s head. Not content, Ronnie got a piece of broken bottle
and struck Joselito once more. Ronnie then fled from the scene. Joselito died on the spot.
Elisa rushed to Joselito’s house and informed his wife and brother of the incident.7

The next day, Dr. Bienvenido Muñoz, Supervising Medico-Legal Officer of the National
Bureau of Investigation, conducted an autopsy on the cadaver of Joselito and prepared
Autopsy Report No. N-88-375,8 with the following findings:

POSTMORTEM FINDINGS

Pallor, conjunctivae and integument, marked and generalized.

Contused abrasions: temple, right, 3.0 x 3.0 cm.; mandibular region, right, 2.0 x 8.0 cm.;
back, suprascapular region, left, 3.0 x 4.0 cm.; deltoid region, right, 1.0 x 3.0 cm.

Lacerated wound, scalp, occipital region, 4.0 cm.

Incised wounds: forehead, right side, 5.5 cm.; arm, left, upper third, posterior aspect, 1.5
cm.

Stab wounds:

1. Elliptical, 1.8 cm., oriented almost horizontally, edges are clean-cut, medial extremity is
sharp, lateral extremity is blunt; located at the anterior chest wall, level of 3rd intercostal
space, right, 5.0 cm. from anterior median line; directed backward, upward and medially,
non-penetrating, with an approximate depth of 3.0 cm.;

2. Elliptical, 1.5 cm., oriented almost horizontally, edges are clean-cut, one extremity is
sharp and the other is blunt; located at the antero-lateral aspect of chest, level of 3rd
intercostal space, left, 3.0 cm. from anterior median line; directed backward, downward and
medially, into the left thoracic cavity, penetrating the left ventricle of the heart with an
approximate depth of 10.0 cm.;
3. Elliptical, 3.0 cm., oriented almost horizontally, edges are clean-cut, one extremity is
sharp and the other is blunt; located at the antero-lateral aspect of chest, level of 4th
intercostal space, 12.0 cm. from anterior median line; directed backward, downward and
medially, penetrating upper lobe of left lung with an approximate depth of 9.0 cm.;

4. Elliptical, 2.0 cm., oriented almost horizontally, edges are clean-cut, one extremity is
sharp and the other is blunt; located at the antero-lateral aspect of chest, level of 5th
intercostal space, left, 15.0 cm. from anterior median line; directed backward, downward
and medially, penetrating the left thoracic cavity and then lower lobe of left lung and then
penetrating the left ventricle of the heart with an approximate depth of 11.0 cm.;

5. Elliptical, 1.3 cm., oriented almost horizontally, edges are clean-cut, one extremity is
sharp and the other is blunt; located at the lateral chest wall, level of 7th intercostal space,
left, 16.0 cm. from anterior median line; directed backward, upward and medially, into the
left thoracic cavity and then penetrating the lower lobe of left lung with an approximately
depth of 10.0 cm.;

6. Elliptical, 4.0 cm., oriented almost horizontally, edges are clean-cut, one extremity is
sharp and the other is blunt; located at the lumbar region, left, 14.0 cm. from anterior
median line; directed backward, upward and medially, into the abdominal cavity and then
penetrating ileum;

7. Elliptical, 1.5 cm., oriented almost vertically, edges are clean-cut, upper extremity is
sharp, lower extremity is blunt; located at the chest, lateral, level of 9th intercostal space,
left; 14.0 cm. from posterior median line; directed forward, upward and medially, non-
penetrating with an approximate depth of 4.0 cm.;

8. Elliptical, 2.0 cm., oriented almost vertically, edges are clean-cut, upper extremity is blunt,
lower extremity is sharp; located at the abdomen, postero-lateral aspect, 15.0 cm. from
posterior median line; directed forward, upward and laterally, into the abdominal cavity and
then perforating the spleen and pancreas with an approximate depth of 13.0 cm.;

9. Elliptical, 5.0 cm., oriented almost vertically, edges are clean-cut, upper extremity is blunt,
lower extremity is sharp; located at the left arm, upper third, anterior; directed backward,
downward and medially, involving skin and underlying soft tissues with an approximate
depth of 6.0 cm.;
10. Elliptical, 2.3 cm., oriented almost vertically, edges are clean-cut, upper extremity is
sharp, lower extremity is blunt; located at the left forearm, upper third, anterior; directed
backward, upward and medially and communicating with another wound, arm, left, medial
aspect, 2.0 cm.;

11. Elliptical, 2.0 cm., oriented almost vertically, edges are clean-cut, upper extremity blunt,
lower extremity, sharp; located at the left arm, lower third, posterior aspect, directed
forward, downward and medially, communicating with another wound, arm, left, lower
third, posterior aspect, 1.5 cm.

Hemothorax, left – 900 c.c.

Hemopericardium – 300 c.c.

Hemoperitoneum – 750 c.c.

Brain and other visceral organs, pale.

Stomach-filled with rice and other food particles.

CAUSE OF DEATH: Multiple stab wounds.

The Evidence of the Appellant

The appellant denied stabbing the victim and interposed the defense of alibi. He testified
that at around 11:00 p.m. of February 5, 1988, he was in the house of his cousin, Julian
Cadion, at 606 Nueve de Pebrero Street, Mandaluyong City. He suddenly heard a
commotion coming from outside. Julian rushed out of the house to find out what was going
on. The appellant remained inside the house because he was suffering from ulcer and was
experiencing excessive pain in his stomach. The following morning, the appellant learned
from their neighbor, Elisa Rolan, that Joselito had been stabbed to death. The appellant did
not bother to ask who was responsible for the stabbing.9
Julian alias "Buboy" Cadion corroborated the appellant’s testimony. He testified that the
appellant was in their house on the night of February 5, 1988, and was suffering from ulcer.
The appellant stayed home on the night of the incident.10

Agripina Gloria, a female security guard residing at Block 30, Nueve de Pebrero, 612, Int. 4,
Allison St., Mandaluyong City, testified that on February 5, 1988 at around 11:00 p.m., she
heard a commotion outside. Momentarily, she saw Ronnie rush into the kitchen of the
house of her niece Teresita; he took a knife and run towards Nueve de Pebrero Street where
Edmar and Julian were fighting. She then followed Ronnie and saw Joselito trying to pacify
the protagonists. Ronnie grabbed Joselito and instantly stabbed the latter, who for a while
retreated and fell down the canal. Not content, Ronnie repeatedly stabbed Joselito.
Thereafter, Ronnie ran towards the direction of the mental hospital. Agripina did not see
Odilon or the appellant anywhere within the vicinity of the incident.11

On May 3, 1995, the trial court rendered its assailed decision, the dispositive portion of
which reads, to wit:

WHEREFORE, this Court finds RENE GAYOT PILOLA of 606 Nueve de Febrero Street,
Mandaluyong City, GUILTY beyond reasonable doubt of Murder punished under Article 248
of the Revised Penal Code, and there being no mitigating nor aggravating circumstances, he
is hereby sentenced to reclusion perpetua. Pilola is hereby ordered to indemnify the heirs of
deceased Joselito Capa alias Jessie in the amount of FIFTY THOUSAND PESOS (₱50,000.00)
as indemnity for his death jointly and solidarily with Odilon Lagliba who was earlier
convicted herein. With cost against the accused.12

In the case at bar, the appellant assails the decision of the trial court contending that:

THE TRIAL COURT ERRED IN CONCLUDING THAT THERE WAS CONSPIRACY ANENT THE
ASSAILED INCIDENT.

II
THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE UNRELIABLE AND INCONSISTENT
TESTIMONY OF PROSECUTION WITNESS ELISA ROLAN AND IN SETTING ASIDE THE EVIDENCE
PROFFERED BY ACCUSED-APPELLANT.

III

THE TRIAL COURT MANIFESTLY ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME

CHARGED DESPITE THE FACT THAT HIS GUILT WAS NOT PROVED BEYOND REASONABLE
DOUBT.13

The appellant avers that Elisa is not a credible witness and her testimony is barren of
probative weight. This is so because she contradicted herself when she testified on direct
examination that Ronnie struck the head of the victim with a hollow block. However, on
cross-examination, she stated that it was Edmar who struck the victim. The inconsistency in
Elisa’s testimony impaired her credibility.

The contention of the appellant does not hold water.

First. The identity of the person who hit the victim with a hollow block is of de minimis
importance. The victim died because of multiple wounds. The appellant is charged with
murder for the killing of the victim with a knife, in conspiracy with the other accused.

Second. The perceived inconsistency in Elisa’s account of events is a minor and collateral
detail that does not affect the substance of her testimony, as it even serves to strengthen
rather than destroy her credibility.14

Third. Elisa has been consistent in her testimony that the appellant was one of the men who
stabbed the victim, the others being Ronnie and Odilon. Elisa’s testimony is corroborated by
the autopsy report of Dr. Bienvenido Muñoz and his testimony that the victim sustained
eleven stab wounds. The doctor testified that there were two or more assailants:

Q Could you tell the court what instrument could have been used by the perpetrator in
inflicting those two incise wounds?
A Those incise wounds were caused by a sharp instrument like a knife or any similar
instrument.

Q Now you also found out from the body of the victim eleven stab wounds?

A Yes, sir.

Q Now, tell the court in which part of the body of the victim where these eleven stab
wounds [are] located?

A Shall I go one by one, all the eleven stab wounds?

Q All the eleven stab wounds?

A One stab wound was located at the front portion of the chest, right side. Another stab
wound was located also on the chest left side, another stab wound was located at the
antero lateral aspect, it’s the front of the chest almost to the side. And also another one,
also at the chest, another stab wound was at the left side of the chest and another one was
at the lumbar region of the abdomen left side or where the left kidney is located, lumbar
area. Another one at the side of the chest, left side of the chest. Another stab wound in the
abdomen, another stab wound at the left arm. Another one at the left forearm and the last
one in the autopsy report is located at the left arm. These are all the eleven stab wounds
sustained by the victim.

A The instrument used was a sharp pointed edge or a single bladed instrument like a knife,
kitchen knife, balisong or any similar instrument.

Q Considering the number of stab wounds, doctor, will you tell us whether there were
several assailants?
A In my opinion, there were more than one assailants (sic) here because of the presence of
different types of stab wounds and lacerated wounds. This lacerated wound could not have
been inflicted by the one holding the one which inflicted the instrument . . (discontinued)
which inflicted the stab wounds.

Q So there could have been two or three assailants?

A More than one.15

The physical evidence is a mute but eloquent manifestation of the veracity of Elisa’s
testimony.16

Fourth. Even the appellant himself declared on the witness stand that he could not think of
any reason why Elisa pointed to him as one of the assailants. In a litany of cases, we have
ruled that when there is no showing of any improper motive on the part of a witness to
testify falsely against the accused or to falsely implicate the latter in the commission of the
crime, as in the case at bar, the logical conclusion is that no such improper motive exists,
and that the testimony is worthy of full faith and credence.17

Fifth. The trial court gave credence and full probative weight to Elisa’s testimony. Case law
has it that the trial court’s calibration of the testimonial evidence of the parties, its
assessment of the credibility of witnesses and the probative weight thereof is given high
respect, if not conclusive effect, by the appellate court.

The appellant argues that the prosecution failed to prove that he conspired with Ronnie and
Odilon in stabbing the victim to death. He contends that for one to be a conspirator, his
participation in the criminal resolution of another must either precede or be concurrent
with the criminal acts. He asserts that even if it were true that he was present at the situs
criminis and that he stabbed the victim, it was Odilon who had already decided, and in fact
fatally stabbed the victim. He could not have conspired with Odilon as the incident was only
a chance encounter between the victim, the appellant and his co-accused. In the absence of
a conspiracy, the appellant cannot be held liable as a principal by direct participation. Elisa
could not categorically and positively assert as to what part of the victim’s body was hit by
whom, and how many times the victim was stabbed by the appellant. He asserts that he is
merely an accomplice and not a principal by direct participation.
We are not persuaded by the ruminations of the appellant.

There is conspiracy when two or more persons agree to commit a felony and decide to
commit it.18 Conspiracy as a mode of incurring criminal liability must be proved separately
from and with the same quantum of proof as the crime itself. Conspiracy need not be
proven by direct evidence. After all, secrecy and concealment are essential features of a
successful conspiracy. 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.19 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.20 There may be conspiracy even if an offender does not know
the identities of the other offenders,21 and even though he is not aware of all the details of
the plan of operation or was not in on the scheme from the beginning.22 One need only to
knowingly contribute his efforts in furtherance of it.23 One who joins a criminal conspiracy
in effect adopts as his own the criminal designs of his co-conspirators. If conspiracy is
established, all the conspirators are liable as co-principals regardless of the manner and
extent of their participation since in contemplation of law, the act of one would be the act
of all.24 Each of the conspirators is the agent of all the others.25

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 conspiracy.26 The mere
presence of an accused at the situs of the crime will not suffice; mere knowledge,
acquiescence or approval of the act without cooperation or agreement to cooperate on the
part of the accused is not enough to make him a party to a conspiracy. There must be
intentional participation in the transaction with a view to the furtherance of the common
design and purpose.27 Conspiracy to exist does not require an agreement for an appreciable
period prior to the occurrence. From the legal standpoint, conspiracy exists if, at the time of
the commission of the offense, the accused had the same purpose and were united in its
execution.28 As a rule, the concurrence of wills, which is the essence of conspiracy, may be
deduced from the evidence of facts and circumstances, which taken together, indicate that
the parties cooperated and labored to the same end.29

Even if two or more offenders do not conspire to commit homicide or murder, they may be
held criminally liable as principals by direct participation if they perform overt acts which
mediately or immediately cause or accelerate the death of the victim, applying Article 4,
paragraph 1 of the Revised Penal Code:

Art. 4. Criminal liability. – Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act done be different
from that which he intended.

In such a case, it is not necessary that each of the separate injuries is fatal in itself. It is
sufficient if the injuries cooperated in bringing about the victim’s death. Both the offenders
are criminally liable for the same crime by reason of their individual and separate overt
criminal acts.30 Absent conspiracy between two or more offenders, they may be guilty of
homicide or murder for the death of the victim, one as a principal by direct participation,
and the other as an accomplice, under Article 18 of the Revised Penal Code:

Art. 18. Accomplices. – Accomplices are the persons who, not being included in Article 17,
cooperate in the execution of the offense by previous or simultaneous acts.

To hold a person liable as an accomplice, two elements must concur: (a) the community of
criminal design; that is, knowing the criminal design of the principal by direct participation,
he concurs with the latter in his purpose; (b) the performance of previous or simultaneous
acts that are not indispensable to the commission of the crime.31 Accomplices come to
know about the criminal resolution of the principal by direct participation after the principal
has reached the decision to commit the felony and only then does the accomplice agree to
cooperate in its execution. Accomplices do not decide whether the crime should be
committed; they merely assent to the plan of the principal by direct participation and
cooperate in its accomplishment.32 However, where one cooperates in the commission of
the crime by performing overt acts which by themselves are acts of execution, he is a
principal by direct participation, and not merely an accomplice.33

In this case, Odilon all by himself initially decided to stab the victim. The appellant and
Ronnie were on the side of the street. However, while Odilon was stabbing the victim, the
appellant and Ronnie agreed to join in; they rushed to the scene and also stabbed the victim
with their respective knives. The three men simultaneously stabbed the hapless victim.
Odilon and the appellant fled from the scene together, while Ronnie went after Julian.
When he failed to overtake and collar Julian, Ronnie returned to where Joselito fell and hit
him with a hollow block and a broken bottle. Ronnie then hurriedly left. All the overt acts of
Odilon, Ronnie and the appellant before, during, and after the stabbing incident indubitably
show that they conspired to kill the victim.

The victim died because of multiple stab wounds inflicted by two or more persons. There is
no evidence that before the arrival of Ronnie and the appellant at the situs criminis, the
victim was already dead. It cannot thus be argued that by the time the appellant and Ronnie
joined Odilon in stabbing the victim, the crime was already consummated.

All things considered, we rule that Ronnie and the appellant conspired with Odilon to kill the
victim; hence, all of them are criminally liable for the latter’s death. The appellant is not
merely an accomplice but is a principal by direct participation.

Even assuming that the appellant did not conspire with Ronnie and Odilon to kill the victim,
the appellant is nevertheless criminally liable as a principal by direct participation. The stab
wounds inflicted by him cooperated in bringing about and accelerated the death of the
victim or contributed materially thereto.34

The trial court correctly overruled the appellant’s defense of alibi. Alibi is a weak, if not the
weakest of defenses in a criminal prosecution, because it is easy to concoct but hard to
disprove. To serve as basis for acquittal, it must be established by clear and convincing
evidence. For it to prosper, the accused must prove not only that he was absent from the
scene of the crime at the time of its commission, but also that it was physically impossible
for him to have been present then.35 In this case, the appellant avers that at the time of the
stabbing incident, he was resting in the house of his cousin at 606 Nueve de Pebrero Street
as he was suffering from stomach pain due to his ulcer.36 But the appellant failed to adduce
any medical certificate that he was suffering from the ailment. Moreover, Elisa positively
identified the appellant as one of the men who repeatedly stabbed the victim. The
appellant’s defense of alibi cannot prevail over the positive and straightforward
identification of the appellant as one of the victim’s assailants. The appellant himself
admitted that his cousin’s house, the place where he was allegedly resting when the victim
was stabbed, was merely ten to fifteen meters away from the scene of the stabbing. Indeed,
the appellant’s defense of denial and alibi, unsubstantiated by clear and convincing
evidence, are negative and self-serving and cannot be given greater evidentiary weight than
the positive testimony of prosecution eyewitness Elisa Rolan.37

The appellant’s defenses must crumble in the face of evidence that he fled from the situs
criminis and later left his house. The records show that despite being informed that he was
sought after by the authorities as a suspect for the killing of the victim, the appellant
suddenly and inscrutably disappeared from his residence at Nueve de Pebrero. As early as
May 5, 1988, a subpoena for the appellant was returned unserved because he was "out of
town."38 The appellant’s own witness, Julian Cadion, testified that the appellant had left
and was no longer seen at Nueve de Pebrero after the incident, thus:

Q So, how long did you stay at 606 Nueve de Pebrero after February 5, 1988?
A One week only, sir, and then three weeks after, I returned to Nueve de Pebrero.

Q The whole week after February 5, 1988, was Rene Pilola still living at 606 Nueve de
Pebrero?

A I did not see him anymore, sir.

Q And then three weeks thereafter, you went back to Nueve de Pebrero. Is that what you
were then saying?

A Yes, sir.

Q Now, at the time that you went back to 606 Nueve de Pebrero, was Rene Pilola there?

A I did not see him anymore, sir.39

The records show that the appellant knew that he was charged for the stabbing of the
victim. However, instead of surrendering to the police authorities, he adroitly evaded arrest.
The appellant’s flight is evidence of guilt and, from the factual circumstances obtaining in
the case at bar, no reason can be deduced from it other than that he was driven by a strong
sense of guilt and admission that he had no tenable defense.40

The Crime Committed by the Appellant

and the Proper Penalty Therefor

The trial court correctly convicted the appellant of murder qualified by treachery.1âwphi1
Abuse of superior strength likewise attended the commission of the crime. There is
treachery when the offender commits any of the crimes against persons, employing means,
methods or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might
make. The essence of treachery is the swift and unexpected attack on the unarmed victim
without the slightest provocation on his part.41 In this case, the attack on the unarmed
victim was sudden. Odilon, without provocation, suddenly placed his arm around the
victim’s neck and forthwith stabbed the latter. The victim had no inkling that he would be
attacked as he was attempting to pacify Edmar and Julian. Ronnie and the appellant, both
also armed with deadly weapons, rushed to the scene and stabbed the victim, giving no real
opportunity for the latter to defend himself. And even as the victim was already sprawled on
the canal, Ronnie bashed his head with a hollow block. The peacemaker became the victim
of violence.

Unquestionably, the nature and location of the wounds showed that the killing was
executed in a treacherous manner, preventing any means of defense on the part of the
victim. As testified to by Dr. Bienvenido Muñoz, the victim was stabbed, not just once, but
eleven times mostly on the chest and the abdominal area. Six of the stab wounds were fatal,
causing damage to the victim’s vital internal organs.42

The aggravating circumstance of abuse of superior strength is absorbed by treachery.43

There is no mitigating circumstance that attended the commission of the felony. The penalty
for murder under Article 248 of the Revised Penal Code is reclusion perpetua to death. Since
no aggravating and mitigating circumstances attended the commission of the crime, the
proper penalty is reclusion perpetua, conformably to Article 63 of the Revised Penal Code.

Civil Liabilities of the Appellant

The trial court correctly directed the appellant to pay to the heirs of the victim Joselita Capa
the amount of ₱50,000 as civil indemnity ex delicto, in accord with current jurisprudence.44
The said heirs are likewise entitled to moral damages in the amount of ₱50,000, also
conformably to current jurisprudence.45 In addition, the heirs are entitled to exemplary
damages in the amount of ₱25,000.46

WHEREFORE, the Decision, dated May 3, 1995, of Branch 164 of the Regional Trial Court of
Pasig City in Criminal Case No. 73615, finding appellant Rene Gayot Pilola GUILTY beyond
reasonable doubt of the crime of murder is AFFIRMED WITH MODIFICATION. The appellant
is hereby directed to pay to the heirs of the victim Joselito Capa the amount of ₱50,000 as
civil indemnity; the amount of ₱50,000 as moral damages; and the amount of ₱25,000 as
exemplary damages.

SO ORDERED.

Bellosillo, (Chairman), and Quisumbing, JJ., concur.

Austria-Martinez, J., on official leave.

===============

G.R. No. L-14128 December 10, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
SEVERINO VALDES Y GUILGAN, defendant-appellant.

Ariston Estrada for appellant.

Attorney-General Paredes for appellee.

TORRES, J.:

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.

Arellano, C.J., Johnson, Araullo, Street, Malcolm and Avanceña, JJ., concur.