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NICANOR NAPOLIS, petitioner,


vs.
COURT OF APPEALS, and THE PEOPLE OF THE PHILIPPINES, respondents.
Victor Arichea for petitioner.
Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G. Ibarra
and Solicitor Conrado T. Limcaoco for respondents.

CONCEPCION, C.J.:p
Appeal taken by Nicanor Napolis from a decision of the Court of Appeals affirming that of the
Court of First Instance of Bataan, the dispositive part of which reads as follows:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court hereby finds the
accused Bonifacio Malana, Nicanor Napolis and Apolinario Satimbre guilty
beyond reasonable doubt of the crime of robbery in band and sentences
Bonifacio Malanaas an accessory after the fact to suffer imprisonment of from
six (6) months, arresto mayor, as minimum to six (6) years, prision
correccional, as maximum and to indemnify the offended party, Ignacio
Peaflor in the sum of P80.00 with subsidiary imprisonment in case of
insolvency but not to exceed one-third (1/3)of the principal penalty and the
accused Nicanor Napolis and Apolinario Satimbre to suffer imprisonment of
from ten (10) years and one (1) day, prision mayor, as minimum, to
seventeen (17) years, four (4) months and one (1) day,reclusion
temporal, as maximum, both to indemnify the spouses Ignacio Peaflor and
Casimira Lagman in the sum of Two Thousand Five Hundred Fifty-Seven
Pesos (P2,557.00) without subsidiary imprisonment in case of insolvency and
all three to pay the proportionate part of the costs.
The main facts, on which there is no dispute, are set forth in the decision of the Court of
Appeals, from which We quote:
At about 1:00 o'clock in the early morning of October 1, 1956, Mrs. Casimira
Lagman Peaflor , 47-year old wife of Ignacio Peaflor , the owner of a store
located at the new highway, Hermosa, Bataan, after answering a minor call
of nature, heard the barkings of the dog nearby indicating the presence of
strangers around the vicinity. Acting on instinct, she woke up husband
Ignacio Peaflor who, after getting his flashlight and .38 caliber revolver,
went down the store to take a look. As he approached the door of the store,
it suddenly gave way having been forcibly pushed and opened by 4 men, one
of them holding and pointing a machinegun. Confronted by this peril, Ignacio
Peaflor fired his revolver but missed. Upon receiving from someone a
stunning blow on the head, Ignacio fell down but he pretended to be dead.
He was hogtied by the men. The fact, however, was that he did not lose
consciousness (tsn. 5, I). The men then went up the house. One of the
robbers asked Mrs. Casimira L. Peaflor for money saying that they are
people from the mountain. Mrs. Casimira L. Peaflor , realizing the danger,
took from under the mat the bag containing P2,000.00 in cash and two rings
worth P350.00 and delivered them to the robber. Thereupon, that robber
opened and ransacked the wardrobe. Then they tied the hands of Mrs.
Casimira L. Peaflor and those of her two sons. After telling them to lie down,
the robbers covered them with blankets and left. The revolver of Ignacio,
valued at P150.00, was taken by the robbers. The spouses thereafter called
for help and Councilor Almario, a neighbor, came and untied Ignacio Peaflor
. The robbery was reported to the Chief of Police of Hermosa and to the
Philippine Constabulary.
Chief of Police Delfin Lapid testified that he went to the premises upon
receiving the report of Councilor Almario and found owner Ignacio Peaflor
with a wound on the head (tsn. 23, I). The wardrobe was ransacked and
things scattered around. It appears that the robbers bore a hole on the
sidewall of the ground floor of the store and passed through it to gain
entrance. According to Chief of Police Delfin Lapid, "they removed the adobe
stone and that is the place where they passed through" (tsn. 24, I). In that
same morning, policeman Melquiades Samaniego reported seeing suspicious
characters passing through a nearby field and when the field was inspected,
the authorities were able to locate a greasegun with 5 bullets and a pistol
with 3 bullets (tsn. 24, I, testimony of Chief of Police)...
It appears that, shortly after the occurrence, a criminal complaint for robbery in band was filed
with the Justice of the Peace Court of Hermosa, Bataan. Named as defendants in the complaint,
as subsequently amended, were Nicanor Napolis, Bonifacio Malana, Ben de la Cruz, Mauricio
Anila, alias Mori, Jose Escabel, alias Pepe, Antonio Bededia, alias Toning, John Doe, alias Sommy
Casimiro, Apolinario Satimbre, Paul Doe, et al. Napolis, Malana, Anila and Casimiro having
waived their right to a preliminary investigation, the case, insofar as they are concerned, was
forwarded to the Court of First Instance of Bataan, where the corresponding information was
filed. As subsequently amended, by the inclusion, as defendants therein, of Antonio Bededia
alias Toning, Domingo Flores alias Eko, Ben de la Cruz, Jose Escabel alias Pepe, Apolinario
Satimbre, Carlito Veloso and Paul Doe, it is alleged in said information: .
That on or about 1:00 o'clock in the early morning of October 1, 1956, in the
Municipality of Hermosa, Province of Bataan, Philippines, and within the
jurisdiction of this Honorable Court, the herein accused Bonifacio Malana,
Nicanor Napolis, Ben de la Cruz, Mauricio Anila, Alias Mori, Jose Escabel, Alias
Pepe, Antonio Bededia, alias Toning, John Doe, Alias Sommy Casimiro,
Apolinario Satimbre, Carlito Veloso, Domingo Flores, Alias Eko and Paul Doe,
by conspiring, confederating and helping one another, with the intent to gain
and armed with a Grease Gun, Three (3) caliber .45 pistols and two (2)
revolvers, did then and there willfully, unlawfully and feloniously, entered the
dwelling of the spouses IGNACIO PEAFLOR and CASIMIRA L. PEAFLOR by
boring a hole under the sidewall of the ground floor of the house and once
inside, attack, assault and hit Ignacio Peaflor with the handle of the Grease
Gun causing him to fall on the ground and rendering him unconscious, tied
his hands and feet and then leave him; that the same accused approached
Casimira L. Peaflor , threatened her at gun point and demanded money;
that the same accused while inside the said house searched and ransacked
the place and take and carry away the following cash money and articles
belonging to said spouses Ignacio Peaflor and Casimira L. Peaflor , to wit:
P2,000.00 in cash, Philippine Currency, One (1) ring (Brillante) valued at
P350.00, One (1) licensed Commando Colt Revolver, Serial No. 532132 and
One (1) Flashlight, valued at P7.00, to the damage and prejudice of said
spouses in the total sum of TWO THOUSAND FIVE HUNDRED FIFTY-SEVEN
PESOS, (P2,557.00) Philippine Currency.".
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At the trial of Malana, Napolis, Satimbre, De la Cruz, Anila, Casimiro and
Flores,
1
the evidence for the prosecution consisted of the testimony of the offended parties,
Ignacio Peaflor and his wife Casimira Lagman Peaflor , Provincial Fiscal Eleno L. Kahayon,
Clerk of Court Pedro Aldea, Deputy Clerk of Court Eulogio C. Mina, Delfin Lapid, the Chief of
Police of Hermosa, Bataan, and Lt. Luis Sacramento of the Constabulary and the affidavits,
Exhibits A, B and C of defendants Napolis, Satimbre and Malana, respectively, admitting their
participation in the commission of the crime charged.
Mr. and Mrs. Peaflor testified mainly on the robbery involved in the charge, whereas Fiscal
Kahayon narrated the circumstances under which the affidavit Exhibit A was subscribed and
sworn to before him by appellant Napolis; Police Chief Lapid and Lt. Sacramento dwelt on the
investigations conducted by them and the circumstances under which said defendants made
their aforementioned affidavits; and Clerk of Court Pedro Aldea and Deputy Clerk of Court
Eulogio C. Mina explained how Exhibits B and C were subscribed and sworn to before them by
defendants Satimbre and Malana, respectively.
Upon the other hand, Napolis tried to establish an alibi. Testifying in his own defense, he would
have Us believe that on October 1, 1956, he was in his house in Olongapo, Zambales, because
of a tooth extracted from him by one Dr. Maginas.
Defendant Satimbre, in turn, introduced his own testimony and that of his wife Engracia
Mendoza. Satimbre claimed to be innocent of the crime charged and said that, although
reluctant to sign Exhibit B, he eventually signed thereon, upon the advice of his wife Engracia
Mendoza who sought to corroborate him and Mayor Guillermo Arcenas of Hermosa, in
order that he may not be implicated in a robbery that took place in Balanga, Bataan, and that
he could be sent back to his hometown, Hermosa, Bataan.
Before the conclusion of the trial, the court of first instance of Bataan dismissed the case as
against defendants Flores, Anila, Casimiro and De la Cruz.
In due course, said court convicted Nicanor Napolis, Bonifacio Malana and Apolinario Satimbre,
as above indicated. Said defendants appealed to the Court of Appeals which, however,
dismissed Malana's appeal, and affirmed the decision of the Court of First Instance, insofar as
Napolis and Satimbre are concerned. Satimbre did not appeal from said decision of the Court of
Appeals, whereas Napolis alleges that said court has erred .
I. In affirming in toto the conviction of petitioner herein, of the crime charged
based upon a lurking error of identity.
II. In affirming the conviction of petitioner based upon an extra-judicial
confession extracted through duress.
III. In affirming the decision of the court a quo based upon the evidence on
record adduced during the trial.
IV. In deciding the case not in accordance with the provision of law and
jurisprudence on the matter.
Under the first assignment of error, it is urged that appellant has not been sufficiently identified
as one of those who perpetrated the crime charged. In support of this contention, it is argued
that the identification made by Mrs. Peaflor was due to a picture of appellant taken by Lt.
Sacramento from the files of the police in Olongapo, Zambales, and then shown to her, before
he (appellant) was apprehended and then brought to her presence for identification. It is thus
implied that Mrs. Peaflor identified him in consequence of the suggestion resulting from the
picture she had seen before he was taken to her for said purpose. The defense further alleges
that she could not have recognized appellant herein, in the evening of the occurrence, because
the same was dark, and the flashlight used by the malefactors was then focused downward.
Appellant's pretense is, however, devoid of factual basis. The record shows that the authorities
were notified immediately after the occurrence; that, soon after, peace officers Police Chief
Lapid and PC Lt. Sacramento repaired to the house of Mr. and Mrs. Peaflor and investigated
them; that based upon the description given by Mrs. Peaflor , one individual was apprehended
and then presented to Mrs. Peaflor , who said that he was not one of the thieves; that another
person subsequently arrested and taken to Mrs. Peaflor was, similarly, exonerated by her; that
in the course of the investigation conducted by the Philippine Constabulary, Lt. Sacramento later
brought Mrs. Peaflor to the offices of the police force in Olongapo and showed her the pictures
of police characters on file therein; that among those pictures, she noticed that of appellant
herein, who, she believed, was one of the culprits; and that appellant was, therefore, arrested
and brought to Mrs. Peaflor , who positively identified him as one of the malefactors.
In other words, Lt. Sacramento did not suggest to Mrs. Peaflor , through the aforementioned
picture of appellant, that he was one of the thieves. It was she who told Lt. Sacramento that
said picture was that of one of the thieves. Besides, the fact that Mrs. Peaflor readily
exonerated the first two suspects, arrested by the authorities, shows that appellant herein
would not have been identified by her if she were not reasonably certain about it.
Then, again, she had ample opportunity to recognize appellant herein because it was he who
demanded money from her and to whom she delivered P2,000 in cash and two (2) rings worth
P350; it was, also, he who opened and ransacked her wardrobe; and it was he who tied her
hands and those of her two sons. These series of acts, performed in her presence, consumed
sufficient time from 10 to 20 minutes to allow her eyesight to be adjusted to existing
conditions, and, hence, to recognize some of the robbers. The night was dark; but, there were
two flashlights switched on, namely, that of her husband, and the one used by the thieves.
Although the latter was, at times, focused downward, it had to be aimed, sometimes, in another
direction, particularly when the money and rings were delivered to appellant herein, and when
he opened and ransacked the wardrobe of Mrs. Peaflor . Lastly, her testimony was confirmed
by other circumstances presently to be mentioned, in connection with the consideration of the
other alleged errors pointed out by appellant herein.
The second assignment of error is based upon a wrong premise that appellant's conviction
was based upon his extra-judicial confession and that the same had been made under duress.
Said extra-judicial confession was merely one of the factors considered by His Honor, the trial
Judge, and the Court of Appeals in concluding that the evidence for the defense cannot be relied
upon and that the witnesses for the prosecution had told the truth. Besides, appellant's
confession was not tainted with duress. In this connection, the Court of Appeals had the
following to say: .
Apart from the reliability of Mrs. Casimira Lagman Peaflor 's identification,
we have the extra-judicial confession of appellant Nicanor Napolis, marked
Exh. A, subscribed and sworn to by said accused on October 26, 1956, 25
days after the occurrence, before Provincial Fiscal Eleno L. Kahayon, the 64-
year old prosecutor who, since July 18, 1946, was the Provincial Fiscal of
Bataan up to the present. His testimony shows that he read the confession,
Exh. A, to said accused in the Tagalog dialect; asked him whether he
understood it to which appellant Napolis answered "yes"; inquired whether he
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was coerced to which he replied "No"; and then, required him to raise his
hand in affirmation which he did (tsn. 14-15, I). Thereupon, appellant
Napolis signed the confession in his (Fiscal's) presence. Provincial Fiscal Eleno
L. Kahayon further testified that he saw no signs of physical violence on the
person of the appellant who appeared normal in his appearance (tsn. 15, I).
In this confession, Exh. A, appellant Napolis related that it was co-accused
Antonio Bededia (still-at-large) who pointed the greasegun to husband
Ignacio Peaflor and who hit him (Peaflor ) on the head and that it was co-
accused Ben de la Cruz (whose case was dismissed) who wrested Peaflor 's
revolver. For his part, appellant Napolis admitted that it was he who talked to
Mrs. Casimira L. Peaflor and it was he who got the money bag. The loot,
according to him, was split from which he received a share of P237.00
(Answer to Q. A, Exh. A). Among others, he mentioned appellant Bonifacio
Malana as the owner of the greasegun and the one who got Peaflor 's
revolver from the hands of co-accused Ben de la Cruz. ... .
It may not be amiss to advert to the fact that, on appeal from a decision of the Court of
Appeals, the findings of fact made in said decision are final, except .
(1) When the conclusion is a finding grounded entirely on speculations,
surmises or conjectures; (2) when the inference is manifestly mistaken,
absurd or impossible; (3) when there is a grave abuse of discretion; (4)
when the judgment is based on a misapprehension of facts; (5) when the
findings of fact are conflicting; (6) when the Court of Appeals, in making its
findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee.
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and that the case at bar does not fall under any of the foregoing exceptions.
The third assignment of error is predicated upon the theory that the evidence for the
prosecution is contradictory and, hence, unworthy of credence. Counsel for the defense alleges
that, whereas Ignacio Peaflor said that the thieves had entered his house by forcing its door
open, Mrs. Peaflor testified that their entry was effected through an excavation by the side of
the house, and the chief of police affirmed that the malefactors had removed a piece of wood
and an adobe stone to get into said house. No such contradictions, however, exist. The house of
Mr. and Mrs. Peaflor consisted of two (2) parts, one of which was a store and the other the
dwelling proper, adjoining the store, which had a door leading thereto (to the dwelling proper).
Mrs. Peaflor testified that the culprits had entered the store by removing an adobe stone from
a wall thereof, and this was corroborated by the chief of police, although he added that the
malefactors had, also, removed a piece of wood from said wall. Upon the other hand, the
testimony of Mr. Peaflor referred to a door, inside the store, leading to the dwelling proper, as
distinguished from the store.
In the light of the foregoing, and considering that the findings of fact made by the Court of
Appeals are supported by those of His Honor, the trial Judge, who had observed the behaviour
of the witnesses during the trial, it is clear to Us that the first three (3) assignments of error are
untenable.
The fourth assignment of error refers to the characterization of the crime committed and the
proper penalty therefor. It should be noted that the Court of Appeals affirmed the decision of
the trial court convicting Napolis, Malana and Satimbre of the crime of robbery committed by
armed persons, in an inhabited house, entry therein having been made by breaking a wall, as
provided in Article 299 (a) of the Revised Penal Code, and, accordingly, sentencing Napolis and
Satimbre to an indeterminate penalty ranging from ten (10) years and one (1) day of prision
mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal, as maximum, which is in accordance with said legal provision.
In addition, however, to performing said acts, the malefactors had, also, used violence against
Ignacio Peaflor , and intimidation against his wife, thereby infringing Article 294 of the same
Code, under conditions falling under sub-paragraph (5) of said article, which prescribes the
penalty of prision correccional in its maximum period to prision mayor in its medium period,
which is lighter than that prescribed in said Article 299, although, factually, the crime committed
is more serious than that covered by the latter provision. This Court had previously ruled .
... that where robbery, though committed in an inhabited house, is
characterized by intimidation, this factor "supplies the controlling
qualification," so that the law to apply is article 294 and not article 299 of the
Revised Penal Code. This is on the theory that "robbery which is
characterized by violence or intimidation against the person is evidently
graver than ordinary robbery committed by force upon things, because where
violence or intimidation against the person is present there is greater
disturbance of the order of society and the security of the individual." (U.S.
vs. Turla, 38 Phil. 346; People vs. Baluyot, 40 Phil. 89.) And this view is
followed even where, as in the present case, the penalty to be applied under
article 294 is lighter than that which would result from the application of
article 299. ... .
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Upon mature deliberation, We find ourselves unable to share the foregoing view. Indeed, one
who, by breaking a wall, enters, with a deadly weapon, an inhabited house and steals therefrom
valuable effects, without violence against or intimidation upon persons, is punishable under Art.
299 of the Revised Penal Code with reclusion temporal.
4
Pursuant to the above view, adhered to
in previous decision,
5
if, aside from performing said acts, the thief lays hand upon any person,
without committing any of the crimes or inflicting any of the injuries mentioned in
subparagraphs (1) to (4) of Art. 294 of the same Code, the imposable penalty -- under
paragraph (5) thereof -- shall be much lighter.
6
To our mind, this result and the process of
reasoning that has brought it about, defy logic and reason.
The argument to the effect that the violence against or intimidation of a person supplies the
"controlling qualification," is far from sufficient to justify said result. We agree with the
proposition that robbery with "violence or intimidation against the person is
evidently graver than ordinary robbery committed by force upon things," but,precisely, for this
reason, We cannot accept the conclusion deduced therefrom in the cases above cited
reduction of the penalty for the latter offense owing to the concurrence of violence or
intimidation which made it amore serious one. It is, to our mind, more plausible to believe that
Art. 294 applies only where robbery with violence against or intimidation of person takes
place without entering an inhabited house, under the conditions set forth in Art. 299 of the
Revised Penal Code.
We deem it more logical and reasonable to hold, as We do, when the elements
of both provisions are present, that the crime is a complex one, calling for the imposition -- as
provided in Art. 48 of said Code -- of the penalty for the most serious offense, in its maximum
period, which, in the case at bar, is reclusion temporal in its maximum period. This penalty
should, in turn, be imposed in its maximum period -- from nineteen (19) years, one (1) month
and eleven (11) days to twenty (20) years of reclusion temporal owing to the presence of the
aggravating circumstances of nighttime. In short, the doctrine adopted in U.S. v. De los
Santos
7
and applied in U.S. v. Manansala,
8
U.S. v. Turla,
9
People v. Baluyot,
10
Manahan v.
People,
11
and People v. Sebastian,
12
is hereby abandoned and appellant herein should be
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sentenced to an indeterminate penalty ranging from ten (10) years, and one (1) day of prision
mayor to nineteen (19) years, one (1) month and eleven (11) days of reclusion temporal.
Thus modified as to the penalty, the decision of the Court of Appeals is hereby affirmed in all
other respects, with costs against herein appellant, Nicanor Napolis. It is so ordered.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ONTING BIRUAR, EUGENE RUSLIN, ABRAHAM LIM alias Titing Lim, ANGEL DY alias Baba Isa,
CEFERINO CATURAN alias Fred, EDGARDO SEERES alias Broke, ROMUALDO RABOY alias
Romy, and SATURNINO GALLIANO, defendants, ABRAHAM LIM alias Titing Lim, CEFERINO
CATURAN alias Fred, ROMUALDO RABOY alias Romy, and SATURNINO GALLIANO, defendants-
appellants.
The Solicitor General for plaintiff-appellee.
Sycip, Salazar, Luna, Manalo & Feliciano for defendants-appellants.

CONCEPCION, JR., J.:
REVIEW of the decision of the Court of First Instance of Davao finding the accused Abraham
Lim, alias Titing Lim, Angel Dy, alias Baba Isa, Ceferino Caturan, alias Fred, Edgardo
Seeres alias Broke, Romualdo Raboy, aliasRomy, and Saturnino Galliano guilty of the crimes of
Robbery in Band, Arson, and Robbery with Homicide and Physical Injuries, and sentencing each
of them, in (1) Crim. Case No. 9987, for Robbery in Band, to suffer an indeterminate penalty
ranging from TWO (2) YEARS and FOUR (4) MONTHS of prision correccional as minimum, to
EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as maximum, with the accessory penalties
of the law, and to indemnify, jointly and severally, Gorgonio Mosende in the amount of P720.00,
without subsidiary imprisonment in case of insolvency, and to pay the costs; (2) Crim. Case No.
9988, for Arson, to suffer the penalty of reclusion perpetua, with the accessory penalties of the
law, to pay, jointly and severally, the heirs of the deceased George Kalitas the amount of
P20,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs; (3)
Crim. Case No. 9989, for Robbery with Homicide and Physical Injuries, to suffer the death
penalty, and to indemnify, jointly and severally, the heirs of the deceased George Kalitas in the
amount of P12,000.00, without subsidiary imprisonment in case of insolvency.
The inculpatory facts are as follows: At about 10:00 o'clock in the evening of July 2, 1966, while
Gorgonio Mosende and his wife, Fausta, were preparing to go to sleep in their house in Sitio
Suapit, Barrio Limot, Mati, Davao, several persons arrived and called: "Good evening, tiyo. "
Thinking that they were relatives of his wife, Mosende invited the callers to come up. Two men,
armed with .45 cal. pistols, later ientified as the accused Romualdo Raboy and Edgardo Seeres
came up and demanded: "hain na ang iyong armas "where is your firearm? Mosende denied
having a firearm, but his wife was so frightened that she told the armed menn: "Do not kill my
husband, if you want the arm, the shotgun is here," and raised the mosquito net covering their
sleeping mat and pointed to the shotgun. The accused Edgardo Seeres took the gun and asked
the couple for money. Fausta, in fear, opened theiraparador which the accused Edgardo Seeres
then ransacked, taking therefrom P170.00 in coins and paper bills. The two accused then left,
taking with them the shotgun of Mosende valued at P550.00. Not long thereafter, Mosende
heard gunshots coming from the direction of the house of George Kalitas, about 25 meters
away. Mosende and his wife went down their house and sought cover behind a coconut tree. A
few minutes later, Mosende saw a blaze start from the house of George Kalitas which spread
rapidly until the entire house was engulfed in flames and completely burned down. 1
All the inmates of the house of George Kalitas were fast asleep when the firing started and were
awakened by the gunfire. George Kalitas, a 70-year old paraplegic, was sleeping inside their
bedroom with his wife, Sylvia Mingming, his grandchildren Jessie Renopal and "Bebot", and their
maid's son, Fortunato "Ato" Malapong.
2
Narciso Bauyot, a nephew of George Kalitas, slept in
the dining room, while the maid Babbadon Odal slept in the kitchen.
3

Upon hearing the fusillade, Babbadon Odal rushed to the master's bedroom to get her son,
"Ato." But, as she was about to raise the mosquito net covering her son, she was hit by a bullet
on the left wrist and immediately lost consciousness, regaining the same only at the Mati Baptist
Hospital, where she was brought for treatment of her injury.
4

Jessie Renopal, the 11-year old granddaughter of George Kalitas, was also grazed by a bullet in
the head when she stood up upon hearing the volley.
5
She felt pain, but she did not lose
consciousness, thus enabling her to see five robbers enter the house while two others remained
by the door.
6

Narciso Bauyot who was sleeping in the dining room, ran to the kitchen upon hearing the gunfire
and hid in anaparador. But, when the toilet of the main house of George Kalitas was set on fire,
he left his hiding place and went out of the house, passing through a small window in the
kitchen. He landed safely on the ground only to fall into the hands of the accused Romualdo
Raboy who pointed a gun at his abdomen telling him: "you surrender, if you will not surrender, I
will kill you." The accused Edgardo Seeres also told Narciso to surrender and raise his hands,
which Narciso did. Seeres then continued firing at the house of George Kalitas. Another armed
man, later Identified as the accused Saturnino Galliano, also approached Narciso and threatened
to pour a can of kerosene on him. But, Narciso pleaded: "Don't pour it on me because I might
be burned," and was spared. The accused Saturnino Galliano, instead, poured the can of
kerosene on the walls of the kitchen of the house and ignited it with some dried fronds.
7

The robbers then started to break open the main door of the house with an axe.
8
After the
robbers had broken the door and gained access to the sala, George Kalitas fired at them with his
"Stevens" 12-gauge shotgun,
9
hitting one of them. 10 George Kalitas had crawled with his wife
and grandchildren after Jessie Renopal and Babbadon Odal were hit by bullets. 11 The armed
men fired back, hitting George Kalitas, who dropped his shotgun. His grandson, Bebot, picked
up the shotgun, but, when the robbers shouted: "surrender, surrender, throw that gun to us;
throw the gun below, by the stairs," he panicked and threw the shotgun to them. 12
Immediately, thereafter, four (4) armed men, later Identified as the accused Angel Dy,
Romualdo Raboy, Saturnino Galliano, and Abraham Lim rushed them. Angel Dy held Mrs. Kalitas
by the neck and kicked the wounded George Kalitas, while the others went inside the bedroom
of George Kalitas and forcibly opened a trunk placed under the bed which contained the amount
of P40,000.00, in cash, at the last counting two months before the incident. They also took
some old coins which Mrs. Kalitas had kept in a container inside the trunk. Saturnino Galliano
and Angel Dy also got the money of Jessie Renopal. 13
After getting the money, the robbers left.
14
The inmates of the house also went out because of
the fire and brought the wounded to the hospital. But, George Kalitas died before they could
reach the hospital in Mati. 15
5

Meanwhile, the fire continued to spread until the main house of George Kalitas and his bodega,
including their contents, and a truck parked in between the buildings, all valued at P34,545.00.
were completely destroyed. 16
The crime was reported to the police authorities immediately thereafter and Sgt. Jose Biones of
the 433rd PC Company stationed at Mati, Davao, conducted an investigation. He learned that a
light green Buick Electra 225 Sedan, 1964 model, with Plate No. H-6357-Manila-'65, had
refueled at a Caltex gasoline station in the poblacion of Mati and then proceeded towards Barrio
Limot at about 9:00 o'clock in the evening of July 2, 1966, and was seen again parked at some
distance from the house of George Kalitas. PC Sgt. Blones also went to the still smouldering
house of George Kalitas and recovered twenty-nine (29) spent cartridges of various calibers and
a mutilatedqqq slug, which he turned over to the PC Company investigator. An alarm was,
likewise, flashed to intercept the Buick car and apprehend its occupants. 17
At about 3:00 o'clock in the afternoon of July 3, 1966, Pat. Bonifacio Dao of the Davao City
Police Department, received a telephone call from the Sasa Police Precinct that the wanted car
was spotted going towards Davao City. Pat. Dao and two (2) companions boarded a jeep to
intercept the car, and at Bajada, near the EMCOR, they saw the car stop and a man with a sack
alighted therefrom. They gave chase, but the car sped away. They then tried to run after the
man with the sack, but the man threw the sack away and disappeared in the tall cogon grasses.
They recovered the abandoned sack and found it to contain a pistolized carbine, a .45 cal. pistol,
with several rounds of ammunition, a barong tagalog, four (4) flashlights, and a pair of gloves.
The next day, July 4, 1966, a police team saw the wanted car parked in the corner of
Monteverde and Guerrero Streets, in front of the Cosmopolitan Funeral Parlor, in Davao City.
They found the accused Angel Dy inside the car who, when asked who the owner of the car was,
pointed to Onting Biruar at the Kingston Hotel. The policemen went to the hotel and found
Onting Biruar together with Romualdo Raboy and Edgardo Seeres whom they brought to the
police headquarters for investigation. Upon questioning, Angel Dy informed the police
investigators that the car was driven by Abraham Lim on the night of July 2, 1966, and led a
police posse to Barrios Obrero and Piapi, both in Davao City, in an effort to catch the said
Abraham Lim. But, they failed to find him. Instead, they found the accused Ceferino Caturan in
Barrio Piapi, who was nursing a bullet wound on his left upper leg. From Piapi, Angel Dy brought
the police team to a house in Toril, Davao City, where they finally found Abraham Lim in the
company of Eugene Ruslin. The policemen found a .45 cal. pistol, with seven rounds of
ammunition under the pillow used by Abraham Lim. 18
Later, the police team arrested the accused Saturnino Galliano who was implicated in the
crime. 19
The Buick sedan was turned over to the PC detachment and PC Sgt. Diomedes Cagas, upon
inspection of the said car, recovered a .45 cal. pistol, with seven rounds of ammunition, hidden
under the floor mat, near the gas pedal of the said car.
20

As a consequence, Onting Biruar, Abraham Lim alias Titing Lim, Angel Dy alias Fred, Edgardo
Seeres alias Broke, Romualdo Raboy alias Romy, Eugene Ruslin, and Saturnino Galliano were
charged with Robbery in Band, Arson, and Robbery with Homicide and Physical Injuries before
the Court of First Instance of Davao, in three (3) separate informations docketed therein as
Crim. Case Nos. 9987, 9988, and 9989, respectively.
All the accused denied the commission of the crimes charged and, except for the accused
Abraham Lim, interposed the defense of alibi. The trial court summarized the evidence of the
defendants, which they claim to be substantially correct, as follows:
1. TESTIMONY OF ACCUSED ONTING BIRUAR
Defendant Onting Biruar testified that on June 28, 1966 he came to Davao
City to renew the coastwise license of motor boat; that he rode on his Buick
(Electra) car; that he registered in a room at Kingston Hotel, Davao City and
did not go out until the following day; that on June 29, and 30, 1966, he
went to the Customs office to renew his license, but he failed to obtain his
purpose; that on July 1, 1966 Abraham Lim came to his hotel to borrow his
car for the purpose of bringing his wife to a hospital to deliver; that he
consented and gave his car; that as the car was not returned he became
apprehensive and he began looking for it; that on the same day, he met
Romualdo Raboy y alias Romy and Edgardo Seeres alias Broke and one
Sammy, driver of the Provincial Governor of Cotabato and asked them to
help him find his car to which they acceded; that from that day they began
the search and continued until the next day but in vain; that on July 3, he
(Onting Biruar) was apprehended by the D.C.P.D. Commando Unit in his
hotel on a charge that his car was used in the commission of the crimes
charged herein at Limot, Mati. Later, he corrected a mistake that it was on
July 4 when he was arrested and not July 3. It was explained to him that his
involvement with other accused lies solely in his being the owner of the car
subject of the present inquiry; that he admitted that he was taken at the P.C.
barracks where he was investigated by Sgt. Abalayan.
2. TESTIMONY OF BERNARDINO SAMSON:
Bernardino Samson, driver of the Provincial Governor of Cotabato
corroborated the statement of Onting Biruar referring to his having joined the
party to search for Onting's car.
3. TESTIMONY OF ABRAHAM LIM:
Accused Abraham Lim testified that he came from Cotabato City and arrived
at Davao City in the afternoon of June 29, 1966 in response to a telegram
that he received from accused, Angel Dy alias Baba Isa; that he took a
Minrapo bus and he met his wife in the house of his uncle, Candido Ramos at
Piapi, Davao City; that he brought her to San Pedro Hospital on the following
day (June 30) where she delivered; that on July 1st morning at about 7:00
he was able to borrow the car of defendant, Onting Biruar after assuring the
latter that he would use it only for service of his wife who delivered in the
hospital; that from that time the car was under his exclusive control until July
2, 1966. On July 4, 1966 he was arrested by the Davao City Commando Unit
at Toril, Davao City together with Eugene Ruslin, one of the accused herein.
Abraham Lim admitted that he used the said car in going to Limot, Mati,
Davao Oriental without the knowledge and permission of the owner; that on
July 2, 1966, he left Davao City in company with Ceferino Caturan, Cesar Go
and another unidentified man and arrived at Mati at about ten o'clock at
night; that he proceeded to the house of George Kalitas with his men, but as
no one was familiar with the road and the place, he needed a guide; that he
passed at the house of Saturnino Galliano which was about 5 kilometers from
the house of Kalitas and invited him to be his guide; that the latter accepted
although that was the first time that Lim met him in Betty's store; that the
purpose of accused Abraham Lim in going to Kalitas house is to collect
accounts, an alleged indebtedness of George Kalitas in the amount of
6

P15,000.00 which was advanced by him for the purchase of coprax; that on
demand, Kalitas refused to pay; that Lim pressed him more and asked him to
pay in kind particularly pointing to the coprax store in Kalitas bodega; that
this must have irked Kalitas and he commanded his nephew, Narciso Bauyot
to get his carbine from his bed, but he was calmed down and promised to
pay him on the first week of July; that as he insisted on his demand, Kalitas
drew his pistol which was timely grabbed by him and at the same time he
drew his own 22 caliber magnum pistol and pointed at the back of Kalitas
head and dragged him towards the main door; that upon reaching the stairs
they were fired upon by some people whom Lim suspected to be the
neighbors of Kalitas; that the old man was hit in the upper part of his body
and he (Lim) saw blood streaming down from his wound; that although
wounded and under his (Lim) control, Kalitas shouted at his men to
surrender which was heeded; that Aguedo, Mosende and four other
neighbors came and surrendered their firearm to Lim which consists of one
carbine and 5 pistols and were ientified by Lim.
Aguedo surrendered his 45 cal. pistol, Mosende his 45 cal. pistol; confiscated
from George Kalitas, is a nickel plated pistol marked Exh. "B", one carbine
from Narciso Bauyot and another 45 caliber pistol (Exh. "C") from Mosende,
one barong-tagalog, Exh. "BB" which is his own (Lim) dress; that after the
surrender of these firearm they went back to Davao City; that he saw
Saturnino Galliano grab the carbine from Narciso Bauyot which he fired at the
latter in order to scare the men of Kalitas, but his intention was only to shoot
Narciso's shirt; that Galliano was with him and Kalitas when they were
seeking shelter in the pile of lumber near the kitchen of Kalitas' house while
there was shooting directed at them,
Accused Lim also admitted that he was investigated by the Davao City Police
Commando and subsequently by the P.C. (Exhs. "O", "O-1" to "O-4"); that he
signed both affidavits taken by these investigators only under compulsion of
force and duress; that he was kicked by his probers on his knees and pellets
were inserted between his fingers and pressed so strong that it caused him
pain, in order to make him confess.
Lim also admitted that he was convicted by final judgment rendered by the
City Court of Davao City for illegal possession of firearm filed against him in
Crim. Case No. 2490-C; that he was arrested at Toril, Davao City on July 4,
1966; that he explained that his appearance there was due to his purpose to
see his friend, Joselito Ambrosio from whom he would borrow money to
defray the hospital expenses of his wife, but he failed; that before the
incident in question, he (Lim) was engaged in the business of buying and
selling coprax corn, rice and other agricultural products covering the coastal
towns of Cotabato and the eastern old province of Davao; that he did not
have license in his name, but he borrowed the license of his cousin, Felipe
Uy; that pursuance to the operation of his business he came to know the
deceased, George Kalitas since 1965; that they have a deal-Kalitas would be
his agent to buy coprax and grains in his neighborhood; that on August 1965
he happened to meet Kalitas in a bus while on his way to Mati, that being an
old man he could trust him; that he advanced to him P15,000.00 as capital
for their business; that this money was given to Kalitas in his house at Limot
in the presence of Saturnino Galliano and Kalitas' family; that Kalitas signed
a receipt for said amount but he lost it during that scuffle incident in Kalitas'
house including a notebook containing an entry of their business transaction;
that Kalitas delivered to him a truckload of coprax worth P5,000.00; that he
does not know how much additional cash advances he gave Kalitas; that he
was investigated by the municipal judge of Mati on July 12, 1966; that during
the investigation he did not tell the truth that he was kicked and maltreated
by the Davao City Police and by the P.C. agents for fear of revenge.
4. TESTIMONY OF ANGEL DY:
Accused Angel Dy testified that he left Dadiangas, Cotabato on June 29, 1966
at about 7:00 AM together with the wife of accused Abraham Lim and a
maid; that upon arrival in Davao City in the afternoon they proceeded to
Piapi in the house of an uncle of Abraham Lim; that he met the latter in the
CBC terminal on June 30, 1966 at about five o'clock in the afternoon; that on
July 1, 1966 they went out to see accused Onting Biruar, to borrow his car
for the purpose of bringing Lim's wife to the hospital; that Lim's wife was
brought to the hospital only on July 2 in the afternoon on Onting's car
escorted by him and Abraham Lim and a housemaid and Caturan (t.s.n.,
674-675 Barlaan); that on July 1 they spotted the car of Onting parked in a
gasoline station; that accused Abraham Lim borrowed it and had full control
thereof from that day; that from that time he was taking care of the car, that
while he was watching it in the premises of the Cosmopolitan Funeral Parlor
the Davao City Police Commando came and seized the car, telling him (Dy) it
was used in committing the crime of robbery and homicide in Mati, that he
told them he did not go to Mati, however, he was brought to Agdao where he
was maltreated, then he was transferred in the office of the Police Detective
Division boxed and manhandled by the police; that on July 4, 1966 he guided
the police to locate the accused, Abraham Lim at Toril, Davao City; that
Abraham was found there and was arrested together with Eugene Ruslin;
that they were brought to the P.C. barracks and were jailed there; that he
did not sign any state judgment; that he admitted he is also known as Baba
Isa and he is the uncle of Abraham Lim; that he rode in Onting's car together
with Abraham and hi4 wife on July 1, 1966 in going to Talomo and back to
Piapi.
On cross examination this witness (Dy) incurred in self-contradiction. He
declared that he went to meet accused Abraham Lim in the CBC terminal
after lunch on June 29, 1966 and testifying further he said that he arrived in
Davao City from Cotabato at about 4:00 same day; that on July 1 at 8:00
A.M. Lim brought his wife to a clinic at San Pedro Street riding in Onting's
car; that he slept in the hospital until July 4, 1966; that on that day from the
hospital he brought the car to the premises of the Cosmopolitan Funeral
Parlor where it was taken by the police.
5. TESTIMONY OF ROMUALDO RABOY:
Accused Raboy alias Romy testified that on June 22, 1966 he came for the
first time from Cotabato City to take vacation in Davao City; that he was
accompanied by his cousin, Nelly Agravante; that he lodged in her house at
Talomo, Davao City, from June 22 to July 2, 1966; that he stayed in said
house without going to any other place outside Davao City; that on July 2,
1966 he took permission from his cousin to go to CBC terminal to make
arrangement for him to take the last trip to Cotabato; that on his way at
Acacia at about 7:30 A.M. he saw accused, Onting Biruar in Kingston Hotel,
Onting whistled and called him and asked him to help him find his car to
which he agreed; that he desisted from continuing his plan to go to
7

Cotabato; that they searched the car during the whole day of July 2, but in
vain; that he slept with Onting Biruar in Kingston Hotel; that on the following
day (July 3) they failed again to see the car; that on July 4, 1966 they were
arrested in Kingston Hotel by the D.C.P.D. Commando, he, Onting Biruar and
Edgardo Seeres that he was brought to the office of the Police Detective
Division; that he denied that he was in the house of the latter George Kalitas
on July 2 and 3, 1966; that he does not know, nor met Silvia Kalitas; neither
Narciso Bauyot, nor Gorgonio Mosende.
On cross examination he declared that his nickname is Romy, that he did not
know Abraham Lim, Ceferino Caturan, Angel Dy and Eugene Ruslin; that he
first met accused Onting Biruar for the first time at P.C. barracks at Davao
City before he was brought to Mati by the P.C. that he did not register his
name in Kingston Hotel; that he was arrested in said hotel together with
Onting Biruar and Edgar do Seeres that from the Detective Division he was
transferred to the PC barracks; that he was not investigated there; that the
car finally arrived at 5:30 on July 3 according to what Onting Biruar informed
him.
6. TESTIMONY OF NELLY AGRAVANTE:
Nelly Agravante, cousin of accused Romualdo Raboy has corqqq
roboratedqqq the statement of the latter covering that portion, from the time
he arrived in Davao City on June 22, 1966 until he took permission from her
to go back to Cotabato on July 2, 1966.
7. TESTIMONY OF SATURNINO GALLIANO:
Saturnino Galliano testified that he is 37 years old; that he is a resident of
Waywayan, Mati, Davao Oriental; that since 1960 he cultivated a farm about
four hectares with two cousins; that he was arrested on July 5, 1966, in the
same place by the Mati Police; that he does not know the defendants Onting
Biruar, Edgardo Seeres, Romualdo Raboy, Ceferino Caturan, Eugene Ruslin
and Abraham Lim; that he met them only on July 12, 1966 at Mati when they
were investigated; that he denied having robbed, the houses of Gorgonio
Mosende and the late George Kalitas on July 2 late at night and in early
morning of July 3, 1966; that he denied having poured petroleum and set on
fire the house of the latter; that he just met for the first time Silvia Kalitas,
Narciso Bauyot, Mosende and others on July 12, 1966 in the Municipal Court
of Mati; that it is not true that he participated in the commission of robbery,
killing and arson as charged in the information; that he resembled the
accused Ceferino Caturan.
8. TESTIMON OF CEFERINO CATURAN:
Ceferino Caturan declared that on the second week of June he was brought
to Davao City by his employer, co-accused Abraham Lim to assist the latter's
wife to deliver in the hospital- that they came in Davao City in a PU car
together with the wife of Abraham Lim, a maid and himself; that upon arrival
they proceeded to the house of his uncle at Piapi, Davao City; that for about
six months he was employed as a checker of Lim in his motor launch; that
before the incident in question his master, Abraham Lim was engaged in the
business of buying and selling coprax corn and rice; that Lim returned to
Cotabato and came back on June 29, 1966 and rejoined his wife at Piapi;
that on June 30, he brought Lim's wife to the hospital: that they rode on a
hired taxi because he was not able to borrow Onting Biruar's car; that Lim's
wife delivered on June 30, 1966 at night; that on the following morning he,
Abraham Lim and Angel Dy took their breakfast in a restaurant; that on the
afternoon of July 2, 1966 at about one o'clock he was brought by Abraham
Lim to Mati; that they have started from a restaurant with three (3)
companions; that along the way they picked up six other persons at Bajada;
that he cannot see any of them in the Courtroom; that at the start he did not
know the purpose of Lim in going to Mati, now he knows that it is to rob a
certain house in Mati; that upon reaching Mati they refueled in a gasoline
station and went to eat in a restaurant; that they met one Angelo Montero
there who invited Lim to go inside; that after eating they left with Montero
guiding them until they reached a certain place where the car could no longer
proceed due to bad road; that he received instruction to guard the car; that
all the riders left and went towards certain direction, that after some time he
heard successive shots coming from some distance; that at about two o'clock
the following morning (July 3) two of his companions returned; that one of
them is wounded; that one of them shot him hitting his thigh; that half-hour
later the bigger group with Abraham Lim arrived; that they started for Mati
and from there they proceeded to Davao City passing at Kingking bridge
where two or five of their companions got off the car; that they arrived at
Davao City on July 3, 1966 at about 3:00 p.m.; that on July 4, 1966 he was
apprehended by the Commando Police and brought to the P.C. barracks,
Davao City where his affidavit (Exh. 'HH') was taken by Sgt. Almazar; that he
did not sign it after it was typewritten but only on the following day after his
wound was operated in the Davao General Hospital; that while he was
confined in said hospital, Fiscal Angel Matondo arrived, but before he came
he has already signed it; that he was weak and not feeling well when he
signed his affidavit before it was explained to him.
On cross examination he declared that one of those 6 men who joined them
in the car brought a sack wrapped in Manila paper; that Abraham Lim is the
one who drove the car going to Mati; that he did not talk with him during the
trip in going to and on return.
This witness (Caturan) was confronted with his answer to question 17 of his
affidavit (Exh. "HH")wherein he stated that he saw six of his companions
being armed with pistol of different calibers and one carrying carbine and
Abraham Lim carried his own 45 caliber pistol. Caturan explained that it is
true that he saw his companions carry firearms, but it was during that time
when they returned to the car from the place where they went. (t.s.n., p.
735, Barlaan)
This statement refers to that incident when the car stopped to a certain place
when it could no longer proceed due to bad road, where all the riders except
Caturan went off the car and came back later after 4 or 5 hours covering a
period from July 2 at about 10:00 at night to 2 or 3 o'clock early morning of
July 3, 1966.
9. TESTIMONY OF EDGARDO SERERES:
Defendant Edgardo Seeres testified that he came from Cotabato City and
arrived at Davao City on June 28, 1966 riding on a CBC bus; that he had no
8

companion; that his purpose in coming to Davao City is to deliver shrimps for
sale in a place near the public market at Bankerohan; that upon arriving he
proceeded to his aunt's house at Washington Street and stayed there
continuously for 5 or 6 days; that he knew accused Onting Biruar, but not
Romualdo Raboy, Eugene Ruslin, Ceferino Caturan; Angel Dy and Saturnino
Galliano; that on his way to CBC station on July 2, 1966, Onting Biruar saw
him passing his hotel and called him; that he asked him to help in looking for
his car which was borrowed by someone and was not returned; that he
agreed; that they have started the search but they could not find it on that
day; that from that time he lodged in Kingston Hotel with Onting and
Romualdo Raboy; that on July 4, 1966 in the morning he was apprehended
by the Davao City Police together with Onting Biruar and Romualdo Raboy;
that he did not know the cause of his arrest; that they were brought to
Agdao, then transferred to the office of the detective division and finally to
the P.C. barracks; that he was investigated there; that he was maltreated by
the P.C. soldiers at the time he signed his affidavit; that he just met Ceferino
Caturan; Angel Dy and Abraham Lim there; that he met Galliano at Mati; that
he was detained together with others at the P.C. barracks at Mati on July 6, 7
and 8, 1966; that he did not go to Limot, Mati on July 2 or July 3, 1966; that
he always was in Davao City during those days; that he denied statements of
Narciso Bauyot; that he was seen in the house of Kalitas on the night of July
2, 1966, that he denied the statement of Mosende that he was one of the two
men who robbed his house on the same day; that the first occasion he met
Romualdo Raboy was in P.C. barracks, so also Ceferino Caturan, Angel Dy
and Eugene Ruslin; that he is known as Broke; that he knows Onting Biruar
for he used to deliver crabs to him; that he does not know Fiscal Matondo;
that his affidavit taken by the P.C. (Exh. 'N') has been extracted by force and
duress.
The trial court, however, rejected the denials and excuses of the defendants and found that an
of them, except Onting Biruar, the owner of the Buick car used in the commission of the crimes,
and Eugene Ruslin, who was found sleeping with Abraham Lim in Toril, Davao City, when the
said Lim was arrested by a police team, did, in fact, actively participate in the commission of the
crimes complained of, and that their claims that they were elsewhere when the crimes were
committed are unavailing against their positive Identification by the witnesses for the
prosecution who testified in a natural and straightforward manner and had no motive or reason
to pervert or suppress the truth or testify falsely against them.
We have examined the record of the cases with great care and found no convincing reason to
disturb the findings of the trial court that the accused were the perpetrators of the offenses
charged. The claim of Abraham Lim that he went to the house of George Kalitas to collect what
the latter allegedly owned him is improbable and not worthy of belief. The following
observations of the trial judge is more logical and consistent with human conduct:
(3) Referring to improbabilities and inconsistencies of the defendants'
statements, Abraham Lim declared that his purpose in going to the late
Kalitas' house that night in question was to collect accounts from the
deceased. if this is true, why did he bring along no less than four armed men
with him and made demand at about midnight in the dwelling of Kalitas? He
admitted in cross examination that by chance he met Kalitas in a bus while
he was on his way for Mati in 1965; that being an old man he could trust
Kalitas and he advanced to him P15,600.00 as capital for their business.
If he could trust the late Kalitas with such big amount, why did he make that
demand in the presence of armed men who made use of force and terror to
attain their aim?
Again he related that on demanding payment of the debts, Kalitas was irked
and he drew his pistol and aimed at Abraham Lim but the latter in turn
grabbed it and drew his own 22 caliber magnum pistol and grazed it at the
back of Kalitas head and then dragged him outside. In the ensuing scuffle he
lost the receipt of the said loan of P15,600.00 and also a notebook containing
an entry of their transaction.
This is another brand of Lim's statements which is not only improbable and
unnatural but is outright incredible. Kalitas was an old, sickly man who was
alone facing a menacing group of armed men who shot their way to his
bedroom. Would he, in his senses dare to provoke them in that manner?
At least two inmates of the house declared that he was already shot during
the first burst of gunfire coming from outside the house and before the
defendants came up. This seem to be true because he was carried by two of
them towards the main door and Lim admitted that they dragged him
outside. How could Kalitas drew his pistol when he was severely wounded
and could not even talk.
Abraham Lim continued his story by stating that when Kalitas was brought
outside, he was shot at the upper part of his body by others whom he
suspected to be Kalitas' neighbors and yet he was able to shout at his men
calling them to surrender and in fact, Mosende, Aguedo and four others
surrendered to Abraham their respective firearms consisting of one carbine
and five pistols which he Identified in the courtroom. If his story is true, then
no other logical conclusion can be drawn therefrom except that Abraham Lim
and his men went to Kalitas' house on that night in question to fight, plunder
and subdue Kalitas and his neighbors and in fact, according to him, they
succeeded in forcing them to surrender thru Kalitas not only their persons
but also their arms, but the Court would prefer to believe that a sham story
of this nature is rather false, exaggerated and unbelievable because if Kalitas
was really shot at a vital part of his body he could not have talked and
moved, how then could he shout? Granting arguendo that Kalitas shouted at
his men to surrender, the latter following the natural instinct of self-
preservation would flee from the scene of the crime and would not give up
their arms and persons to such ruthless and dangerous foe under that
horrible circumstances of firing, killing and burning of a house. There is no
evidence that they were cornered or trapped in such a tight situation that no
other remedy could be availed of except to surrender . . . If Lim's story is to
be accepted the Court cannot find good reasons to justify him to capture
Kalitas and his neighbors if his purpose is only to collect debts.
Besides, the attack on the credibility of the witnesses for the prosecution is based upon trial
matters. Thus, counsel for the accused claims that the testimony of the prosecution witness
Alfredo Matiga is not credible since the said witness even failed to recall, during his cross-
examination, the number of the house where he was living and his birthdate. It should be noted,
however, that the said witness testified to only one detail, and that is, the fact that he saw the
Buick car of Onting Biruar refueling at a gasoline station in the poblacion of Mati on the night of
July 2, 1966, which fact is admitted by the accused Abraham Lim and Ceferino Caturan.
9

The testimony of Narciso Bauyot is also assailed on the ground that he signed his sworn
statement before the Municipal Judge during the preliminary investigation without reading its
contents, or without having then read and explained to his. The conviction of the accused,
however, was not based upon the sworn statement of the witness, but, on the collective
testimony of Narciso Bauyot and the other prosecution witnesses who were subjected to a rigid
cross-examination by the defense counsel during the trial of the case. Besides, counsel failed to
point out how the failure of this witness to understand the substance of his affidavit could have
cast serious doubt on the guilt of the defendants,
The testimony of Gorgonio Mosende regarding the robbery in his house is also impugned as
improbable because the said Mosende had testified that the accused Romualdo Raboy and
Edgardo Seeres had announced their presence to Mosende before coming to the house, which
they need not have done in order to rob the couple. While it may be true that the accused had
made known their presence to Mosende and that the latter had invited them to come up his
house, Mosende did so because he thought that the callers were relatives of his wife. It may
have been unwise for Mosende to do so, but that does not render his story improbable
considering that the incident happened in the rural areas where the people are generally more
hospitable. Besides, Mosende is a poor man and he had no reason to expect that he would be
robbed. At any rate, the accused failed to impeach the testimony of the said Gorgonio Mosende.
Defense counsel also claims that no robbery was committed in the house of George Kalitas since
there is no positive evidence presented to show the existence of the money allegedly taken from
George Kalitas as well as the act of taking the same. To support his contention that no money
was taken from George Kalitas, counsel quoted a portion of the testimony of Silvia Mingming
Kalitas, the wife of George Kalitas, which shows that the trunk where the money was kept was
burned without its being opened. Counsel further stated that the accused were apprehended
within 48 hours after the commission of the crime and yet the money stolen or a part thereof
was not traced to, nor recovered from the accused, much less presented in court.
The contention is devoid of merit. It had been positively established that the late George Kalitas
had kept money in a trunk placed under his bed which the accused took on the night in
question. Martillana Kalitas categorically stated in court that her father, George Kalitas, had
money, amounting to P65,000.00, which he kept in a trunk placed under his bed, because he
had no trust in banks.
21
Jessie Renopal testified that the accused broke open the said trunk
with an axe on the night of July 2, 1966 and took the money placed inside.
22
Her testimony is
corroborated by Silvia Mingming Kalitas, the wife of George Kalitas. Silvia Mingming Kalitas
declared, however, that the money kept by her husband amounted to only P40,560.00 at the
last counting.
23

The testimony of Silvia Mingming Kalitas which was quoted by counsel for the accused, does not
support his contention that no money was taken from George Kalitas on the night in question.
The testimony, adverted to, reads, as follows:
COURT:
Q Now, the Court wants to know whether that trunk which
you have mentioned from which they got the P40,560.00
cash was taken before or after the house was set on fire.
Which is which?
A The fire was beginning, when it was advancing, that the
time when the robbers came up.
Q Was that trunk from which the money was taken
burned?
A It was burned; nothing is left, including the clothes.
Q Before it was burned, was it already opened?
A Before it was burned, it was not yet opened. It was they
themselves who opened it.
24

It is clear therefrom that the accused opened the trunk and took the money placed inside before
it was burned.
The argument of counsel that the amount stolen, or a portion thereof, should have been
presented in evidence in order to make the transportation credible, is untenable. Where the
property stolen was not recovered, it would be impossible to present it in evidence. Besides,
there is no law nor jurisprudence which requires the presentation of the thing stolen in order to
prove that it had been taken away. It appears of record that there were other persons who
participated in the commission of the offenses, but have not been charged. Ceferino Caturan
stated that there were 9 of them inside the car when they went to the house of George, Kalitas
on the night in question, and Abraham Lim testified that one of his companions in going to the
house of George Kalitas on the said night was one Cesar Go.
25
However, only 8 persons have
been Identified and charged and Cesar Go is not one of them. The money could be with him.
Moreover, the accused were not apprehended immediately after the commission of the crimes,
but a day later, or on July 4, 1966. The accused could have disposed of the money before their
arrest. The failure of the prosecution to present in evidence the money stolen does not give rise
to a reasonable doubt as to the guilt of the accused.
It is also contended by the accused that only one offense was committed since the robbery in
the houses of Gorgonio Mosende and George Kalitas is one continuing offense, committed at the
same time and on one occasion, and arising out of one criminal resolution, and the burning of
the house of George Kalitas was the means to commit the crime of robbery. Counsel cites the
case of People vs. De Leon
26
in support of his contention.
The contention is without merit. In the case cited by counsel the defendant entered the yard of
a house where he found two fighting cocks belonging to different persons and took them. In this
case, however, the accused, after committing the crime of robbery in band in the house of
Gorgonio Mosende, went to the neighboring house of George Kalitas where they committed the
crimes of Arson and Robbery with Homicide and Physical Injuries. Obviously, the rule enunciated
in the cited case cannot be made applicable since the herein accused performed different acts
with distinct purposes which resulted in juridically independent crimes. The Court also rejected
the applicability of the cited case of People vs. De Leon in the case of People vs.
Enguerro,
27
and found the accused therein guilty of three (3) separate crimes of Robbery in
Band, where the said accused, after committing a robbery in band in a store, went to another
house where they committed a second robbery, and after committing it proceeded to another
house where they committed a third robbery, and in the same barrio during the period from
7:00 p.m. to 11:00 p.m. of the same day.
The burning of the house of George Kalitas was not the means in committing the robbery. The
evidence shows that the accused gained entry into the house of George Kalitas by breaking
down the door with an axe and not by burning the same.
28

10

Finally, the accused Abraham Lim pleads that he had been denied the right to be present and
defend in person and by attorney at every stage of the proceedings against him, that is, from
the arraignment to the promulgation of the judgment. He claims that the trial court proceeded
with the trial of the cases despite his absence therefrom although he was charged with a capital
offense.
The contention is devoid of merit. The provisions of the Rules of Court
29
Securing to an accused
person the right to be present in all criminal prosecutions against him must be understood as
securing to him merely the right to be present during every stage of his own trial and not at the
trial of another. Since the accused Abraham Lim was present during his arraignment and
jumped bail after giving his testimony in court and was absent only when his co-accused were
presenting their evidence, none of which are prejudicial to the interest of the accused Abraham
Lim his attorney was present during this time, and also present when the sentence was read to
him, there was no infringement of the said defendant's right to be present at every stage of the
proceedings against him.
The trial court, therefore, did not err in finding the defendants Abraham Lim alias Titing Lim,
Ceferino Caturan aliasFred, Romualdo Raboy alias Romy, and Saturnino Galliano guilty of the
crimes of Robbery in Band, Arson, and Robbery with Homicide and Physical Injuries.
The trial court found that the commission of the offenses charged was attended by the
aggravating circumstances of nighttime, dwelling, use of motor vehicle, use of unlicensed
firearm, and with the aid of armed men to ensure or afford impunity. The use of unlicensed
firearm, however, cannot be appreciated as an aggravating circumstance in Crim. Case Nos.
9988 (Arson) and 9989 (Robbery with Homicide and Physical Injuries) since the special
aggravating circumstance of use of unlicensed firearm is solely applicable to robbery in band
under Art. 295 of the Revised Penal Code.
30

This, notwithstanding, the death penalty imposed upon the accused Abraham Lim alias Titing
Lim, Ceferino Caturanalias Fred, Romualdo Raboy alias Romy, and Saturnino Galliano in Crim.
Case No. 9989, for Robbery with Homicide and Physical Injuries, is within the range of the
penalty provided for by law. However, for lack of the necessary affirmatory votes, the penalty
imposed upon them by the trial court is hereby reduced to reclusion perpetua.
We also find that the trial court had inadvertently ordered the defendants to indemnify, jointly
and severally, the heirs of the deceased George Kalitas the amount of P20,000.00 for the money
stolen from him and not recovered in Crime Case No. 9988, and the amount of P12,000.00 for
the death of the said deceased in Crim. Case No. 9989. Crim. Case No. 9988, however, is a
prosecution for Arson, for the illegal burning of the property of George Kalitas valued at
P34,545.00, while Crim. Case No. 9989 is one for Robbery with Homicide and Physical injuries
where the evidenced showed that the amount of P40,000.00 was taken from the house of
George Kalitas. The Solicitor General recommends that the defendants be ordered to indemnify
the heirs of the late George Kalitas the amount of P34,545.00 in Crim. Case No. 9988, and the
amounts of P12,000.00, for the death of the said deceased and P40,000.00, for the money
stolen from him.
We further note that the penalty imposed upon the defendants in Crim. Case No. 9987 is less
than what the law prescribes for the offense committed. In said case, the defendants were
found guilty of Robbery in Band, attended, among others, by the aggravating circumstance of
use of unlicensed firearms and sentenced to suffer an indeterminate penalty of from two (2)
years and four (4) months of prision correccional as minimum, to eight (8) years and one (1)
day of prision mayor, as maximum. However, Article 295 of the Revised Penal Code, as
amended, provides that if the robbery mentioned in pars. 3, 4 and 5 is committed by a band,
the offenders shall be punished by the maximum period of the proper penalties, and Article 296
of same Code, as amended, also states that when any of the arms used in the commission of
the offense be an unlicensed firearm, the penalty to be imposed upon the malefactors shall be
the maximum of the corresponding penalty provided for by law. Hence, the penalty to be
imposed upon the defendants should be the maximum of the maximum period of the penalty,
even without the concurrence of any other aggravating circumstance,
31
or an indeterminate
penalty of from four (4) years and two (2) months of prision correccional as minimum, to ten
(10) years of prision mayor, as maximum.
WHEREFORE, the judgment appealed from should be, as it is hereby AFFIRMED, with the
modification that the defendants Abraham Lim alias Titing Lim, Ceferino Caturan alias Fred,
Romualdo Raboy alias Romy, and Saturnine Galliano are sentenced: (1) to suffer an
indeterminate penalty of from four (4) years and two (2) months of prision correccional as
minimum, to ten (10) years of prision mayor, as maximum in Crim. Case No. 9987; (2) to suffer
the penalty of reclusion perpetua in Crim. Case No. 9989; and (3) to indemnify, jointly and
severally, the heirs of the deceased George Kalitas the amount of P34,545.00 in Crim. Case No.
9988, and the amount of P40,000.00 in Crim. Case No. 9989, for the money stolen from the
said deceased. The indemnity for the death of George Kalitas is hereby increased to
P30,000.00.
32
With costs against the accused Abraham Lain alias Titing Lim, Ceferino
Caturanalias Fred, Romualdo Raboy alias Romy, and Saturnino Galliano in this instance.
Separate Opinions
AQUINO, J., concurring:
Appellant Lim was tried properly because his absence at the trial was unjustified (Sec. 19, Art.
II, Constitution). The minimum of the penalty in Case No. 9987 should be taken from prision
mayor minimum.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PEDRING CALIXTRO, CELSO FERRER and LOUIE FERRER, accused, PEDRING
CALIXTRO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Eliseo A. Mendoza for accused-appellant.

PARAS, J.:p
This is an appeal from the decision of the Regional Trial Court, Branch 33, Guimba, Nueva Ecija,
in Criminal Case No. 536-G1 entitled "People of the Philippines v. Pedring Calixtro, Celso Ferrer
and Louie Ferrer", convicting the accused-appellant, Pedring Calixtro, of the crime of rape
(Rollo, pp. 22-26).
The accused Pedring Calixtro, Celso Ferrer and Louie Ferrer were charged with the crime of
Robbery with Rape under the following information:
11

That on or about the 24th day of April, 1989 in Barangay Faigal, Municipality
of Guimba, Province of Nueva Ecija, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused being then armed with
sharp-pointed instrument (patalim), conspiring, confederating and helping
one another, and with intent to gain and by means of force and violence and
intimidation upon person, did then and there willfully, unlawfully and
feloniously take, steal and carry away one (1) gold ring with three (3) stones
of diamond and one (1) pair of earrings with one stone diamond with a total
value of TEN THOUSAND PESOS (P10,000.00) Philippine Currency, more or
less, belonging to EDELIZA ASTELERO to the damage and prejudice of the
latter in the said amount; and that during or on the occasion of the robbery,
the said three (3) accused conspiring, confederating and helping one another
did then and there willfully, unlawfully and feloniously have sexual
intercourse one after the other with said EDELIZA ASTELERO against her will.
That the crime was committed with the aggravating circumstance of
nighttime which was taken advantage of by the said accused and as a
consequence of which the complaining witness suffered actual, moral and
consequential damages which could be estimated in the total sum of
P100,000.00.
CONTRARY TO LAW. (p. 7, Rollo)
The pertinent facts of the case as gathered from the records are as follows:
Edeliza Astelero, her husband Gonzalo Astelero, and an 11 year old son are residents of
Barangay Faigal, Guimba, Nueva Ecija. Pedring Calixtro had been a resident of the same
barangay for a year before the incident occurred.
At about 10:00 o'clock in the night of April 24, 1989, while the Astelero family were peacefully
resting in their abode, Edeliza heard the barking of dogs; she peeped thru the hole of their
window and she saw three male persons. She went to her husband on the bed and awakened
him. Both peeped through the hole of the window where they saw three men calling from
outside, "Manang, Manang, buksan mo ang pintuan." She went near the door of their hut. One
of the three persons threatened her that if she would not open the door, they would blast the
house with a hand grenade. She was about to open the door but they continued kicking the door
to open the same (p. 8, TSN, Oct. 10, 1989). Then they hacked the wall of their house and the
same fell down. She was afraid that her family would be killed, so she decided to open the door.
As she was opening the door, Celso Ferrer pulled her outside of the house and threatened her
not to ask for help. Then they dragged her out to the middle of the fields (pp. 9-10, TSN, Ibid.).
In the middle of the field, Celso Ferrer and Louie Ferrer took hold of her arms and pointed a
bladed weapon at her neck. At that very moment, accused Pedring Calixtro told her that if she
would not give her womanhood she would be killed. She pleaded for mercy but accused Pedring
Calixtro succeeded in removing her duster and short pants. She struggled but the accused
started hurting her thighs (p. 11, TSN, Ibid.). Pedring Calixtro succeeded in having sexual
intercourse with the victim, while Celso Ferrer took off her ring and earrings. Celso Ferrer and
Louie Ferrer took turns in abusing her. After the heinous acts, the three accused debated
whether to kill Edeliza Astelero or not. Edeliza took the opportunity to flee while the three were
discussing. She ran as fast as she could until she saw a jeep, which she later found to be
carrying her husband. Thereafter, she was brought to the hacienda of Bebang Adriano (pp. 12-
14, TSN, Ibid.).
The testimony of complainant witness is corroborated by Rogelio de la Cruz, a barangay tanod
and neighbor of the Asteleros. He testified that in the evening of April 24, 1989 at around 10:00
o'clock, more or less, the accused Pedring Calixtro, Celso Ferrer and Louie Ferrer arrived in his
house, and asked him for chicken, which they told him to cook and prepare as "pulutan" but he
refused. The three consumed a bottle of wine in his house. When the three left, he followed
them secretly towards the house of complainant. He saw them kicking the house and ordering
the occupants to open the door. Moments later, he saw them dragging the complainant away
from her house towards the field. He reported the incident to the Barangay Captain (pp. 3-8,
TSN, Nov. 14, 1989).
Police Corporal Juanito Villaba testified that in the evening of April 24, 1989, while in the office
of the Integrated National Police, Guimba, Nueva Ecija, Barangay Captain Marina Quitallas and
companions arrived and reported that a certain Edeliza Astelero had forcibly been taken from
her house by three male persons. Officer-in-charge, Lt. Soriano, dispatched Sgt. Mendoza and
other policemen to respond to the call (pp. 5-6, TSN, Nov. 21, 1989).
Dr. Diosdado Barawid testified that the victim was brought to him for examination sometime on
April 25, 1989 and he made the following observation: "light blackish discoloration right hip
lower portion, inner aspect; several abrasion upper portion and inner aspect, and laboratory
examination of vaginal smear-positive (+) for sperm cell, 3 counted." He further testified that
the abrasions or injuries sustained by Edeliza Astelero were caused by a blow and there were
signs of struggle (pp. 3-7, TSN, Nov. 27,1989).
Pedro Calixtro testified on his behald that at 5:00 p.m. on April 24, 1989 he was tendering
water in his ricefield. And about 5:30 of the same afternoon he was invited by Celso Ferrer and
Louie Ferrer to the house of Rogelio de la Cruz to buy chicken. He proceeded back to the ranch
after 30 minutes and attended to the water pump. That during the hours of 10:00 and 11:00
p.m. of the same night he heard shouts. He proceeded to the direction of the shouts and saw a
naked woman being forced and brought away by Celso Ferrer and Louie Ferrer. Then he heard
from Celso Ferrer the words "papatayin kita", being addressed to Edeliza. Witness gave to
Edeliza the dress which he noticed behind her. A fist fight ensued between him and Celso. After
the fight, he noticed that Edeliza ran away, whereas, he went to the watering pump.
At about 6:00 o'clock the following morning, he was apprehended by Sgt. Soriano (pp. 3-11,
TSN, November 28, 1989; pp. 7-9, Brief for the Accused-Appellant; Rollo, pp. 43-45).
Of the three accused, only Pedring Calixtro was apprehended. Pedring Calixtro pleaded "not
guilty" to the crime charged, thereafter, trial on the merits ensued. After trial, the court a
quo rendered a decision, the dispositive portion of which reads as follows:
WHEREFORE, the Court finds the accused Pedring Calixtro guilty beyond
reasonable doubt of the crime of Rape as described under Art. 335 of the
Revised Penal Code, as amended, and hereby sentences him to suffer the
penalty of reclusion perpetua and to indemnify the complainant in the
amount of P30,000.00, without subsidiary imprisonment in case of
insolvency.
SO ORDERED. (pp. 26, Rollo)
Dissatisfied, Pedring Calixtro appealed and assigned the following errors, to wit:
I
12

THE LOWER COURT ERRED IN CATEGORICALLY PRONOUNCING THAT THE
TESTIMONIES OF THE COMPLAINANT EDELIZA ASTELERO DURING THE
TRIAL OF THE CASE CLEARLY ESTABLISHED THE GUILT OF ACCUSED-
APPELLANT BEYOND REASONABLE DOUBT, AS NARRATED BY SAID COURT IN
THE THIRD AND LONGEST PARAGRAPH OF PAGE 2 OF THE DECISION IN
QUESTION.
II
THE LOWER COURT ERRED IN: STATING THAT THE ACCUSED-APPELLANT'S
DEFENSE CONSISTED OF MERE DENIALS OF THE CRIME CHARGED AND
ALIBI; AND IN RE-STATING THE TESTIMONIES OF SAID ACCUSED-
APPELLANT IN SHORT FIRST PARAGRAPH OF PAGE 4 OF SAID DECISION.
III
THE LOWER COURT ERRED IN FINDING THAT THE COMPLAINANT HAD
POSITIVELY IDENTIFIED ACCUSED-APPELLANT AS ONE OF THE PERSONS
WHO SEXUALLY MOLESTED HER.
IV
THE LOWER COURT ERRED IN DISCREDITING THE TESTIMONIES OF THE
ACCUSED-APPELLANT AS THE SAME WERE NOT CORROBORATED BY OTHER
EVIDENCE.
V
THE LOWER COURT ERRED IN NOT FINDING COGENT REASON WHY THE
COMPLAINANT SHOULD FALSELY CHARGE THE ACCUSED-APPELLANT OF THE
SERIOUS CRIME OR ROBBERY WITH RAPE.
VI
THE LOWER COURT ERRED IN NOT DISCREDITING THE TESTIMONIES OF
ROGELIO DE LA CRUZ.
VII
THE LOWER COURT ERRED IN ALLOWING THE COMPLAINANT TO TESTIFY IN
STORY-TELLING MANNER OVER THE OBJECTION OF THE UNDERSIGNED
COUNSEL; and
VIII
THE LOWER COURT ERRED IN NOT TAKING INTO CONSIDERATION IN
MAKING ITS DECISION, THE ACCUSED-APPELLANT'S MEMORANDUM FILED
ON JANUARY 2,1990, PURSUANT TO THE VERBAL ORDER DATED DECEMBER
11, 1989 AND IN NOT INCLUDING SAID MEMORANDUM AND THE NOTICE OF
APPEAL IN THE RECORDS OF THE CASE REMANDED TO THIS HONORABLE
SUPREME COURT. (pp. 37-38, Rollo)
Under Article 335 of the Revised Penal Code, rape is committed if the accused had carnal
knowledge of a woman and such act is accomplished under 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 is present.
There are three settled principles to guide an appellate court in reviewing the evidence in rape
cases: (1) an accusation for rape can be made with facility; it is difficult to prove it but more
difficult for the person accused, though innocent, to disprove it (People v. Aldana, G.R. No.
81817, July 27, 1989); (2) in view of the intrinsic nature of the crime of rape where two persons
are usually involved, the testimony of the complainant must be scrutinized with extreme
caution; and (3) the evidence for the prosecution must stand or fall on its own merits, and
cannot be allowed to draw strength from the weakness of the evidence for the defense (People
v. Villapana, 161 SCRA 72). What is decisive in the rape charged is complainant's positive
identification of the accused-appellant as the malefactor (People v. Mustacisa, 159 SCRA 227;
People v. Ramilo, 146 SCRA 258).
In the case at bar, the defense depended heavily on supposed inconsistencies pervading
complainant's testimony at the trial court below. Appellant pointed out alleged inconsistencies
and improbabilities in the testimony of the rape victim Edeliza Astelero which allegedly cast
reasonable doubt on his guilt. The most notable of these were: (a) although she testified on
direct that she was alone when she peeped through the hole of their window and saw three (3)
male persons, on cross, she claimed that it was she and her husband who peeped through the
hole of their window (b) while, on direct, she testified that she heard the barking of the dogs at
around 10:00 p.m., on cross, she stated that she heard the barking of the dogs at around 7:00
p.m.; (c) on direct, she did not state that her assailants wore masks and that she herself was
blindfolded which she mentioned only on cross; (d) she could not have recognized her
assaillants because they wore masks and she was blindfolded.
We find the alleged inconsistencies as too trivial, insignificant and inconsequential to merit the
reversal of the trial court's decision. The inconsistencies pointed out by appellant can hardly
affect the complainant's credibility. They refer to minor details or to the precise sequence of
events that do not detract from the central fact of rape, on which complainant had consistently
and candidly testified. A witness who is in a state of flight cannot be expected to recall with
accuracy or uniformity matters connected with the main overt act (People v. Ramilo, supra). The
testimonial discrepancies could have also been caused by the natural fickleness of memory,
which tend to strengthen, rather than weaken, credibility as they erase any suspicion of
rehearsed testimony (People v. Cayago; 158 SCRA 586). These discrepancies on minor details
serve to add credence and veracity to her categorical, straightforward, and spontaneous
testimony (People v. Ramilo, supra).
Minor discrepancies indicate that the witness was not previously rehearsed, and consequently
strengthen her credibility. It would, perhaps, have been more suspicious if complainant had
been able to pinpoint with clarity or described with precision the exact sequence of events
(People v. Cayago, supra; People v. Alfonso, 153 SCRA 487). The rape victim should not be
expected to keep an accurate account of the traumatic and horrifying experience she went
through.
Needless to say, when the issue is one of credibility of witnesses, the findings of the trial court
are generally accorded a high degree of respect, the court having observed the demeanor and
deportment of witness. We find no compelling reason to deviate from this settled rule.
13

Appellant alleged that it was improbable for Edeliza to have recognized him when she herself
was blindfolded and her assaillants wore masks. Such contention is devoid of merit.
Although Edeliza was blindfolded and her assaillants wore masks, she was positive in her
testimony that she recognized the appellant as one of her attackers through the latter's voice.
Edeliza could recognize appellant through his voice inasmuch as they are barriomates. In fact,
appellant even admitted that they were friends, thus:
Q Mr. Witness, how long have you been in Faigal, Guimba,
Nueva Ecija, in the ranch of Mrs. Bebang Adriano prior to
April 24,1989?
A About one (1) year, sir, that I had been staying there.
Q And during that length of time you came to know
Edeliza Astelero and her husband who are also from
Faigal, Guimba, Nueva Ecija, is it not?
A Yes, sir.
Q And they used to go to that ranch. In fact considering
the length of time that you have known Edeliza Astelero
and her husband you alleged that you are their friend and
the same way that they also were your friends?
A Yes, sir. (p. 16, TSN, Nov. 18,1989)
In People vs. Inot, 150 SCRA 322 (1987), We ruled:
. . . complainant's identification of the appellant was not based solely on the
latter's physical defect, but by his voice as well, when he warned
complainant, "Flor, keep quiet." Although complainant did not see appellant's
face during the sexual act because the house was dark, nevertheless, no
error could have been committed by the complainant in identifying the voice
of the accused, inasmuch as complainant and appellant were neighbors. . . .
This is corroborated by the testimony of Rogelio de la Cruz who saw Pedring Calixtro, Celso
Ferrer and Louie Ferrer dragged Edeliza Astelero out of her house.
Appellant put up the defense of alibi that he was looking after his irrigation task when he heard
shouts, and went back after having a fist fight with Celso Ferrer.
Defense of alibi is inherently weak and cannot prevail over the positive identification of the
accused (People v. Cayago, 158 SCRA 586). For the defense of alibi to succeed, the accused
must establish physical impossibility and improper motive of the prosecution witnesses, which
matters the accused failed to prove (People v. Alfonso, 153 SCRA 487).
Edeliza Astelero had positively identified the accused Pedring Calixtro as one of the persons who
had raped her in the middle of the fields. His alibi, that he was at the ranch during the hours of
10:00 and 11:00 p.m. of April 24, 1989 and while he was looking after his farm he heard
shouts, and he was the one who saved and rescued Edeliza Astelero, can only be taken with a
grain of salt. Such a statement could easily be fabricated, more so when it is not corroborated
by testimonies of other impartial witnesses. The accused was the lone witness for his defense.
The accused could have had his testimony corroborated by presenting other persons who could
well testify on what he had been doing in the evening of April 24, 1989. Mere denial of the
commission of a crime cannot prevail over the positive identification made by the complaining
witness.
Appellant stresses the prosecution's failure to present the husband and son of Edeliza. The
expected testimony of husband and son had already been dealt upon by Edeliza Astelero and
Rogelio de la Cruz. There is no cogent reason for them to corroborate what had been testified
on. Besides it is the prerogative of the prosecution to choose its witnesses (People v. Quebral,
134 SCRA 425; People v. Martinez, 127 SCRA 260).
In rape, the prosecution need not, present testimonies of people other than the offended party
herself if the same is accurate and credible (People v. Robles, G.R. No. 53569, February 23,
1989).
Appellant questions the credibility of Rogelio de la Cruz as a witness. The former argues that
being a barangay tanod, de la Cruz should have apprehended the malefactors and should have
prevented the heinous crime. De la Cruz reasoned out that he was afraid that they might kill
him; the malefactors were, then, armed with deadly bladed weapons. His only weapon was a
stick, which was not a match against bladed weapons. He feared for his life, such is not contrary
to human nature. Thus, de la Cruz should not foolhardily attempt to stop the malefactors in his
state of physical disavantage and stake his life in the process.
The allegation that Pedring Calixtro was implicated because the real perpetrators were not
arrested defies human reason.
It is hard to believe that a woman, a simple housewife and mother, would fabricate a rape
charge and subject herself and family to shame, humiliation and embarrassment of a public
trial. We have oftentimes ruled that a woman would not undergo the expense, trouble and
inconvenience of a public trial, not to mention the scandal, embarrassment and humiliation such
action inevitably invites, as well as allow an examination of her private parts, if her motive is not
to bring to justice the persons who had abused her (People v. Muoz, 163 SCRA 730; People v.
Cayago, 158 SCRA 586; People v. Viray 164 SCRA 135; People v. Magdaraog, 160 SCRA 153;
People v. Bulosan, 160 SCRA 492; People v. Hacbang, 164 SCRA 441).
Appellant further contends that the trial court erred in allowing the complainant-witness to
testify in narrative form.
This contention is likewise devoid of merit.
Usually in criminal cases, the material facts within the knowledge of a witness are elicited by
questions put to him by the counsel calling him. By this means, the evidence is readily limited
and confined within the issue for the reason that the relevancy of the answer can in most cases
be ascertained from the character of the question (Underhill's Criminal Evidence, Sec. 387, p.
742). While this is the general rule, it still rests within the sound discretion of the trial judge to
determine whether a witness will be required to testify by question and answer, or will be
permitted to testify in a narrative form (98 C.J.S., Sec. 325, p. 26). There is no legal principle
which prevents a witness from giving his testimony in a narrative form if he is requested to do
so by counsel. A witness may be allowed to testify by narration if it would be the best way of
getting at what he knew or could state concerning the matter at issue. It would expedite the
14

trial and would perhaps furnish the court a clearer understanding of the matters related as they
occurred. Moreover, narrative testimony may be allowed if material parts of his evidence cannot
be easily obtained through piecemeal testimonies. But if, in giving such testimony, the witness
states matters irrelevant or immaterial or incompetent, it is the right and duty of counsel
objecting to such testimony to interpose and arrest the narration by calling the attention of the
court particularly to the objectionable matter and, by a motion to strike it out, obtain a ruling of
the court excluding such testimony from the case (98 C.J.S., Ibid.). While a witness may be
permitted in the discretion of the court to narrate his knowledge of material facts bearing upon
the case without specifically being interrogated in detail, it is also within the discretion of the
court to prohibit a witness from volunteering unsought information in connection with the case
(5 Jones on Evidence, Sec. 2312).
Appellant takes notice of the fact that the trial court did not consider his memorandum. We find
that the contents of the memorandum were passed upon in the judgment of the trial court. The
arguments therein were discussed by it. The arguments presented did not raise new issues;
hence, the memorandum deserves scant consideration.
We find, as the trial court found, that appellant successively raped the offended party while the
other two accused held down the victim, showing that conspiracy existed. Said other two also
took turns in raping. In a conspiracy, the act of one is the act of all. There are three (3) crimes
of rape, appellant, having conspired with the two others, should be convicted on three counts of
rape. Thus, Pedring Calixtro is also responsible for the acts of Celso Ferrer and Louie Ferrer. The
case of People v. Cayago, (158 SCRA 586) is applicable in the case at bar:
The trial court found as a fact that appellant and others, having conspired
with each other, successively raped the offended party while the other held
down the victim. This is adequate basis for convicting appellant Cayago of
three (3) crimes of rape. The judgment of the trial court does not purport to
convict Macaraeg and Capitle and would not, of course, bind them should
they ever be arrested and brought to trial; they may plead any defense to
which they might feel entitled, such as insanity or mistaken identity, etc.
We find the accused's guilt to have been proved beyond reasonable doubt.
ACCORDINGLY, the judgment of conviction is hereby AFFIRMED, INCREASING the penalty
imposed on the appellant to three (3) penalties of RECLUSION PERPETUA, and for him to
indemnify the offended party in the sum of P30,000.00 in each case for a total of P90,000.00
and to pay the costs.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ADOLFO QUIONES, RONILO CANABA, AMADO CONDA, JR., ZALDY CIVICO and ALFREDO
ABAN, accused-appellants.
The Office of the Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellants.

CRUZ, J.:
On June 30, 1986, the bodies of three men were found in a wooded area in barangay Tuaco,
Basud, Camarines Norte. The corpses were in a state of decomposition and bore various
contusions, stab and bullet wounds, and other injuries indicating foul play. The victims were
later positively identified as Alexander Sy, Augusto Gabo and Frisco Marcellana.

In due time, an information for robbery with multiple homicide was filed against Adolfo
Quiones, Alfredo Aban, Zaldy Civico, Ronilo Canaba, Amado Conda, Jr., Santiago Solarte,
Armando Buitre and one John Doe.
1

On their arraignment on November 13, 1986, Quiones, Canaba, Aban, Civico and Conda
pleaded not guilty. On November 20, 1986, Conda, Canaba, and Quiones withdrew their plea of
not guilty and entered a plea of guilty.
2
On April 1, 1986, Conda was allowed to withdraw his
former plea of guilty and substitute the same With not guilty.
3
Solarte escaped and is presently
at large while Buitre was killed in an encounter with the Manila police.
4

Judge Luis D. Dictado of the Regional Trial Court of Daet, Camarines Norte directed the
prosecution to present evidence also against Quiones and Canaba despite their plea of guilty,
which they maintained even after being informed of its possible consequences, including the
death penalty. After trial, judgment was rendered convicting all the accused (except Solarte,
who had not yet been arrested, and Buitre).
5

The evidence for the prosecution established that the three victims were riding in a dark blue
Mitsubishi car at about seven o'clock in the evening of June 27 or 28, 1986, when they were
intercepted along the Maharlika Highway in the above-named barangay by the accused, who
had placed sacks on the road to block the way. The three were taken to the nearby woods
where they were killed.
6
According to his brother, Napoleon, Alexander Sy was at that time
carrying P300,000.00, representing the weekly collections of his business, a necklace with
pendant worth P20,000.00, a P10,000.00 diamond ring, and a licensed .22 caliber
handgun.
7
All this, together with the other articles belonging to the victims, were taken by the
accused, who also used the car in fleeing to Sapang Palay, where it was recovered without the
stereo and the spare tire.
8

The first to be picked up for questioning was Conda, who implicated the other accused and led a
police team to the house of Sonny Tabalan, where Solarte was hiding, Inexplicably, Conda and
Solarte both escaped. However, the police found in Tabalan's house one live grenade, one .38
caliber pistol, a defective air rifle with magazine, and a wooden rifle which he said had been
brought there by Solarte and Quiones. In separate extra-judicial statements,
9
both Quiones
and Canaba identified these weapons as the ones used in the commission of the crime.
10

Testifying for the prosecution, Francisco Bariuan declared that on July 7, 1986, Solarte came to
his house and asked him to pawn a watch for P300.00. Solarte returned the following day with
Canaba and Conda. They were carrying guns and a grenade. Solarte informed him that they
were the ones who, together with Buitre, Quiones and Aban, had killed Sy and his companions.
He and Solarte left later to hire jeep and Canaba and Conda stayed behind, warning him that
they would blow up his house if he squealed on them.
11

But the case for the prosecution really depended on the statements of the accused themselves,
principally Quiones and Canaba. Both were informed of their constitutional rights before their
15

investigation and were actually assisted by Atty. Santiago Ceneta when they gave their separate
confessions.
12
Both confessed to the crime charged and narrated in detail their participation in
its commission.
Quiones later testified that he had been subjected to torture to force him to admit the killing
and robbery,
13
but as the trial judge noted, no proof of such coercion was ever presented in
court. Moreover, the witness' narration of the commission of the offense substantially jibed with
the testimony of the other accused, thus negating the suspicion that it had been merely
concocted. Understandably, Quiones sought to minimize his participation in this crime by
claiming that he stayed in the car when the three victims were forcibly taken to the woods
where they were robbed and slain.
14
This is another indication that the had not been
manhandled into signing the confession.
lt is important to note that when asked at the trial if he was affirming his extra-judicial
statement, he categorically said he was,
15
thus in effect reiterating his detailed account of the
conduct of the several accused, including their escape to Manila in the stolen car and their
distribution of the loot among themselves. This was now a judicial confession. Interestingly,
Quiones also admitted to two other hold-ups and his membership in another gang of robbers
headed by one Kapitan Mitra, an unnecessary embellishment that lent further credence to his
confession.
16

Canaba's own statement corroborated Quiones' confession and provided more elaboration. Like
Quiones, he admitted that they had placed sacks on the load and forced the three victims to go
with them to the parke where they were unclothed and killed, two by Buitre and the third by
Solarte. Quiones remained in the car. Afterwards, the accused distributed the cash among
themselves, each receiving P10,000.00, with Solarte and Buitre getting the weapons also. Using
Sy's car, they proceeded to Sapang Palay after leaving the weapons with Sonny Tabalan in his
house in Tigbinan.
17

Conda also gave an extra-judicial confession, but this was not made with the assistance of
counsel and so must be rejected. It is totally worthless and inadmissible against him. Such a
confession is anathema in a free society. It was not recognized even during the era of martial
law under the 1973 Constitution as interpreted by the Court in People v. Galit.
18
And it is also
scorned under the present Constitution, which is more deeply committed to the protection of the
rights of the accused.
Civico also gave an extra-judicial confession, likewise without the assistance of counsel.
19
But
testifying on his behalf, he purged it of invalidity when he freely affirmed it on the stand in the
presence of the judge himself and with the assistance of defense counsel.
20
By so testifying, he
in effect reiterated but validly this time his earlier narration, replete with all the damming
details, of the commission of the crime.
The Court is satisfied that the evidence against the accused is sufficient to justify their
conviction. The declarations of the prosecution witnesses and more so of defendants
Quiones and Canaba, both of whom had pleaded guilty are telling enough to toll their guilt.
The seized weapons and the other exhibits offer strong corroboration that has not been refuted.
The state of the cadavers of the swollen scrotums and the protruding tongues tell a tale of
their own of the defendants' perverted ruthlessness.
By contrast, the defense was practically one of mere denial. Even the claimed maltreatment of
Quiones has not been established.
It is clear from the evidence on record that there was a conspiracy among the perpetrators of
the crime to rob and slay. A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. This need not be established by
direct evidence but may be proven through the series of acts done by each of the accused in
pursuance of the common unlawful purpose.
21

Proof of conspiracy in the case at bar was supplied, paradoxically enough, mainly by defendants
Quiones and Canaba themselves. From the time they blocked the road to waylay their prey to
the killing and robbing in the woods, to the distribution of the loot and their escape in the stolen
car, all the accused were acting in concert and in accordance with their common plan.
It is argued that Civico and Aban were not part of the conspiracy and that Quiones himself
categorically said so in answer to a question from the prosecution. Interpreting this merely as a
gesture of loyalty or perhaps goodwill or charity toward his fellow criminals, we dismiss it as a
falsity. On the other hand, Civico himself admitted his own participation in the offense, and in
his sworn confession (which he affirmed in court) also implicated Aban. And there is also
Bariuan's testimony that Aban was one of the armed group, including the other accused, that
went to his house on July 8, 1986, and talked of their commission of the crime. These
declarations are enough to place the two defendants within the conspiracy together with the
other defendants.
In a conspiracy, the act of one is the act of all and every one of the conspirators is guilty with
the others in equal degree. Hence, every member of the group that perpetrated the killing and
robbery of the three victims must suffer the same penalty prescribed by law even if they had
different modes of participation in the commission of the crime.
22

The trial judge found all the accused guilty as charged and sentenced each of them to serve
the triplepenalty of reclusion perpetua and to pay actual and compensatory damages in the
amount of P380,000.00 to the heirs of Alexander Sy, P50,000.00 to the heirs of Augusta Gabo,
and P50,000.00 to the heirs of Frisco Marcellana. The firearms were also confiscated in favor of
the State.
The Court finds that the accused were incorrectly charged with robbery with multiple homicide
and so were also incorrectly sentenced by the trial court. The reason is that there is no crime of
robbery with multiple homicide under the Revised Penal Code. The charge should have been for
robbery with homicide only regardless of the fact that three persons were killed in the
commission of the robbery. In this special complex crime, the number of persons killed is
immaterial and does not increase the penalty prescribed in Article 294 of the said Code. As held
in People v. Cabuena:
23

But it was error to sentence the appellants to three life imprisonments each
as if 3 separate crimes had been committed. The complex crime of robbery
with homicide is not to be multiplied with the number of persons killed. As
was said by this Court in People vs. Madrid (88 Phil. 1), "the general concept
of this crime does not limit the taking of human life to one single victim
making the slaying of human being in excess of that number punishable as
separate individual offense or offenses. All the homicides or murders are
merged in the composite, integrated whole that is robbery with homicide so
long as the killings were perpetrated by reason or on the occasion of the
robbery.
The penalty prescribed for the crime of robbery with homicide is reclusion perpetua, to be
imposed onlyonce even if multiple killings accompanied the robbery. Furthermore, the
16

discussion by the trial court of the attendant circumstances was unnecessary because Article 63
of the Code provides that when the law prescribes a single indivisible penalty, it shall be applied
without regard to the mitigating or aggravating circumstances that may have attended the
commission of the crime.
The civil indemnity for each of the three victims is reduced to P30,000.00, to be paid to their
respective heirs. The heirs of Alexander Sy are also awarded the additional sum P330,000.00,
representing the value of the articles taken from him by the accused.
WHEREFORE, the conviction of all the accused-appellants is AFFIRMED, but each of them is
sentenced to only one term of reclusion perpetua for the crime of robbery with homicide. The
monetary awards are also modified in accordance with the preceding paragraph. It is so
ordered.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EMETERIO DINOLA, accused-appellant.
The Office of the Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellant.

CORTES, J.:
Upon complaint by Marilyn Caldosa, the appellant-accused Emeterio Dinola was charged before
the Circuit Criminal Court, 13th Judicial District, Palo, Leyte with the crime of robbery with rape
under the following information:
xxx xxx xxx
That on or about the 21st day of October, 1977 in the Municipality of
Alangalang, Province of Leyte, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a deadly weapon,
and by means of force and intimidation, did then and there wilfully and
feloniously have a carnal knowledge with one Marilyn Caldosa, and that on
the occasion thereof, the said accused, by the use of force upon the same
Marilyn Caldosa, and with intent to gain, did then and there wilfully and
feloniously take and carry away the wrist watch of Marilyn Caldosa, to her
damage and prejudice in the amount of P300.00, the money value of the
watch.
Contrary to law. [Rollo, p. 8.]
Upon arraignment, the accused pleaded "not guilty" [Rollo, p. 10]. After trial, the court a
quo rendered judgment finding the accused guilty beyond reasonable doubt of the crime of
robbery with rape and accordingly sentenced him to suffer the penalty of reclusion perpetua, to
indemnify the victim in the amount of twelve thousand pesos (P12,000.00) and to pay the costs
[Rollo, pp. 11-12].
From the judgment of conviction, the accused filed the present appeal assigning the following as
errors:
1. THE TRIAL COURT ERRED IN NOT CONSIDERING THE IMPROBABILITIES IN THE TESTIMONY
OF COMPLAINANT MARILYN CALDOSA.
2. THE TRIAL COURT ERRED IN PLACING THE BURDEN UPON THE ACCUSED-APPELLANT TO
PROVE HIS INNOCENCE AND IN NOT ANALYZING THE STATE'S EVIDENCE TO ARRIVE AT A
CONCLUSION BEYOND REASONABLE DOUBT. [Rollo, p. 65.]
The evidence for the prosecution consisted primarily of a medico-legal certificate and the
testimonies of complainant Marilyn Caldosa and Dr. Sherlito Siao, the doctor who conducted the
physical examination on Caldosa after the incident allegedly occurred.
The medicolegal certificate of the complainant stated the following findings:
Findings:
No external sign of physical injuries
INTERNAL EXAM:
Introitus:
Admits 2 examining fingers with slight pain.
There is an incomplete laceration of the hymen at 6 o'clock position
There is a contusion 0.5 cm. at the 1 o'clock position of the hymen
Cervix: Negative Sperm Exam: Negative for
spermatozoa
Uterus: Not Enlarged
Discharges: None
xxx xxx xxx
[Exh. "A"; Rollo, p. 5.]
Dr. Sherlito Siao, a resident physician of the Daniel T. Romualdez Memorial Hospital testified to
the following:
xxx xxx xxx
17

. . . [T]hat on October 21, 1977, at about 4:00 o'clock in the afternoon, he
conducted a physical examination of Marilyn Caldosa in connection with an
alleged rape case; that his findings were reduced to writing Exhibit "A" which
witness identified; that there were no signs of external physical injuries; that
there was incomplete laceration [of the hymen] which did not extend to the
base and it is possible that there was sexual contact; that there was injury to
the hymen caused by a blunt instrument, perhaps a male organ, and could
have been caused by forcible insertion; that no spermatozoa was found as
there was perhaps no ejaculation, recent washing or there was no
penetration of the male organ, and that the victim was possibly raped.
xxx xxx xxx
[Trial Court Decision, p. 2; Rollo, p. 23.]
The testimony of complainant Marilyn Caldosa was summarized by the trial court as follows:
xxx xxx xxx
. . . That she knows the accused, . . . and that she has known him for more
than a year as the accused resides in front of their house and had previously
worked for them and they would oftentimes converse as they are friends;
that on October 21, 1977, at about 3:00 o'clock in the morning, she was at
home sleeping [alone] in the house of her aunt, Gertrudes Vda. de Barraza,
who was then in Tacloban . . .; that she was awakened by a voice saying:
"Do not make a noise or I will kill you. If you will not accede to a carnal
knowledge I will count from one to three and I will kill you."; that she noticed
a small bolo pointed towards her breast and she [was] frightened . . .; that
the person then placed himself on top of her and placed his penis inside her
vagina by push and pull; that the first push was not successful and the
person tried many times to put his penis inside [her] vagina until he was able
to do so and [she] felt pain; that while the person was on top of her, she did
not resist as he was (sic) big while she is small and she cannot overcome
him; that after having carnal knowledge [with] her, the person lighted a
candle and when he saw her "Citizen" watch valued at P300.00 he grabbed it
from her; that after the candle was lighted, she saw that the person was
"Eme" whose full name is Emeterio Dinola . . .; that the accused left after
grabbing her watch while she stayed in bed as she was afraid and at about
4:00 o'clock in the morning she went to the bathroom and washed her vagina
as she felt dirty; that at about 5:00 or 6:00 o'clock in the morning, she went
to the house of the son of her aunt in Barrio Binongtuan and they went to the
Provincial Hospital in Tacloban City to have her painful vagina treated,
arriving there at about 8:00 o'clock in the morning; that she was not treated
that morning as the doctor on duty was not there and they were requested to
return in the afternoon; that they were given a prescription for the medicine
which the son of her aunt bought while she went to school; that she went
back to the hospital in the afternoon and she was physically examined by Dr.
Sherlito Siao.
xxx xxx xxx
[Trial Court Decision, pp. 2-4; Rollo, pp. 23-25.]
The accused denied the complainant's allegations and offered the following counter-statement of
facts:
xxx xxx xxx
. . . That on October 21, 1977, at about 3:00 o'clock in the morning, he was
at home in their farm at Barrio Caiguihan, Alangalang, Leyte, about 1
kilometer from the Poblacion of Alangalang; that the house belongs to his
father Inocentes Dinola and living with them were his step-mother and a
half-brother; that he does not know Marilyn Caldosa and her statement that
he raped her and stole her watch is not true as he knows nothing about it;
that it is not true that he lives infront (sic) of the house of the victim in the
poblacion as he lives in the farm; that he does not know Gertrudes Vda. de
Barraza; that he was fetched from the house of Filemon Ramos at Calle
Retana, Alangalang, Leyte on October 21, 1977 by Patrolman Augusto
Salvatierra who told him that the Chief of Police wanted to see him; that he
went with Patrolman Salvatierra to the Municipal Building but the Station
Commander was not there; that it was only "Cocoy" Caples who was there
and who immediately maltreated him; that he was never informed why he
was summoned; that he was boxed, kicked, and maltreated in many other
ways by "Cocoy" Caples, including being thrust at or jabbed with a pistol;
that "Cocoy" Caples boxed his ears with his (Caples) palms and blood came
out and he lost consciousness; that he was maltreated in the office of the
Chief of Police; that while he was in the Municipal Building on October 21
1977, he did not meet Marilyn Caldosa and he did not see her the next day;
that on October 22, 1977 he was inside the jail and during the whole time
that he was in jail in Alangalang he never saw Marilyn Caldosa; that the
charge against him is a mere fabrication.
xxx xxx xxx
[Trial Court Decision, pp. 7-8; Rollo, pp. 28-19.]
The testimony of the accused was corroborated by the only other defense witness Diosdado
Dinola, the accused's half brother.
As in most rape cases where the complainant is the main prosecution witness, the issue boils
down to her credibility.
The accused assails the credibility of complainant Marilyn Caldosa by pointing to the following
factors which, according to the accused, negate the complainant's allegation of the use of force
on her: (1) there were no external signs of injuries on her body; (2) the complainant did not
make any resistance as in fact her hands were just on her sides during the time the forced
intercourse allegedly occurred; and (3) she did not say anything to stop her assailant from
consummating the act.
In the medico-legal certificate prepared by Dr. Sherlito T. Siao, it was stated that Marilyn
Caldosa sustained "[n]o external sign of physical injuries" [Exh. "A"; Rollo, p. 5]. This statement
was confirmed by the doctor when he took the witness stand [TSN, August 1, 1978, p. 3]. But
from this medical finding alone, it can not be concluded that there is no truth in the
complainant's allegation of rape. The Court has already ruled that the absence of external signs
of physical injuries on the complainant does not necessarily negate the commission of the crime
of rape [People v. Malabad, G.R. No. 63219, November 28, 1984, 133 SCRA 392; People v.
18

Monteverde, G.R. No. 60962, July 11, 1986, 142 SCRA 668; People v. Mendoza, G.R. No.
74653, July 26, 1988, 163 SCRA 568].
But the accused, in order to impugn further the credibility of the complainant, relies on the
latter's admission that during the time the accused was on top of her, her hands were on her
sides and that she did not say anything to stop the accused.
It is true that when asked if the complainant resisted the accused while he was on top of her,
she said that she did not [TSN August 1, 1978, p. 10]. She also admitted that during all the
time that the accused was on top of her, her hands were just on her sides [TSN, September 20,
1978, p. 19]. However, it must be remembered that according to the complainant, when she
was roused from sleep by the accused, the latter held a bolo to her chest and threatened to kill
her if she made any noise [TSN, August 31, 1978, p. 9]. Moreover, when asked to explain why
she offered no resistance, she consistently stated both on direct and cross-examination the
following: "I cannot resist him because he is bigger and I am small" [TSN, August 1, 1978, p.
10; "I did not anymore [resist] because he was (sic) big and I was (sic) small" [TSN, September
20, 1978, p. 19].
The Court has already ruled that rape may be committed even if no force was used, intimidation
being sufficient. Intimidation includes the moral kind such as fear caused by threatening the girl
with a knife [People v. Garcines, G.R. No. L-32321, June 28, 1974, 57 SCRA 653]. The Court
has likewise held that the admission of the victim that her hands were on her sides while the
accused was on top of her does not mean that she consented to the act [People v. Modelo, G.R.
No. L-29144, October 30, 1970, 35 SCRA 639]. The complainant in this case, is a seventeen
(17) year old lass while the accused is a thirty four (34) year old laborer. In complainant's
words: "he is bigger and I am small." Considering, the size, age and strength of the accused,
coupled by his use of a bolo to threaten the complainant, the Court rules that the complainant's
failure to resist the accused does not detract from the fact that the latter employed intimidation
in order to have sexual intercourse with the latter. The law does not impose a burden on the
rape victim to prove resistance. What needs only to be proved by the prosecution is the use of
force or intimidation by the accused in having sexual intercourse with the victim.
The accused next takes issue with the statement of the complainant that after he allegedly
raped her, he lighted a candle, enabling the complainant to see his face and recognize him. The
accused finds it incredible for a perpetrator of a crime to give the victim the chance to identify
him. Thus, it is concluded by the accused that the complainant has fabricated a tall tale of rape
involving the two of them.
But in this day and age, it is not uncommon for criminals to be careless about or to even
intentionally reveal their identities to their victims. The failure by a criminal to conceal his
identity would not make the commission of the crime any less credible. Bragadoccio among
criminals is not uncommon. Very often too, they are secure in the thought that they have
instilled sufficient fear in their victims that the latter will not give them away to the authorities.
The complainant in this case was able to identify her assailant with certainty. When asked on
the witness stand who had assaulted her, she replied that it was the accused, Emeterio Dinola
[TSN, August 31, 1978, p. 7]. On being told to identify her rapist and with the permission of the
trial court, she stepped down from the witness stand and tapped the accused on the shoulder
[Id.] The trial court found the complainant to be a credible witness, and with good reason. A
careful reading of the record of the case shows the complainant's testimony regarding the
circumstances of the rape and the identity of the rapist to be direct, lucid forthright and, being
totally untainted by contradictions in any of the material points, deserves credence.
Lending further credence to the testimony of the complainant is the oft-repeated observation of
the Court that no young Filipina of decent repute would publicly admit that she had been
criminally abused and ravished unless that is the truth. It is her natural instinct to protect her
honor [People v. Itano, 109 Phil. 912 (1960); People v. Reyes, G.R. No. 62387, June 19,,1985,
137 SCRA 99; People v. Ramilo, G.R. No. 52230, December 15, 1986, 146 SCRA 258; People v.
Magdaraog, G.R. No. L-40988, April 15, 1988, 160 SCRA 153]. As the trial Court noted:
xxx xxx xxx
. . . [A]t the time of the incident the complaining witness was only 17 years
old, single, and a college student. She was then at the stage of life when an
individual prepares for the future. This Court cannot conceive that such a
person would seemingly jeopardize her future by the filing of the instant case
with its resultant adverse social effects unless the charges were true. She
would not willingly go through the rigors of a public trial wherein she would
have to relate, in detail, the atrocity committed upon her person unless she
was sure that it was the accused who committed such an atrocity.
Further, aside from the allegation that the instant case is a mere fabrication,
no evidence has been adduced by the defense as to why the complaining
witness would fabricate a case against the accused. [Trial Court Decision, p.
11; Rollo, p. 32.]
Finally, the Court finds significance in the fact that the complainant sought medical examination
immediately after the incident [TSN, August 31, 1978, p. 12]. This fact, taken together with the
other circumstances of the case, indicates that the fresh laceration found by the doctor on her
hymen [Exh. "A"; Rollo, p. 5] was inflicted against her will.
In fine, the Court, after a thorough examination of the entire record of the case, finds no
substantial reason to depart from the established rule that the Supreme Court regards with
respect and will generally not disturb the findings of the trial court on the credibility of
witnesses, unless certain facts of substance and value have been overlooked which if
considered, might affect the result of the case [People v. Sinaon, G.R. No. L-15631, May 27,
1966, 17 SCRA 260; People v. Abonada, G.R. No. 50041, January 27, 1989; People v. Pedrosa,
G.R. No. 56457, January 27, 1989].
Having sustained the findings of the trial court on the credibility of the complainant, the defense
put up by the accused, alibi, must necessarily fall. The Court has consistently held that the alibi
of the accused that he was not at the rape scene cannot stand against the positive identification
made by the complainant [People v. Soriano, G.R. No. L-32244, June 24, 1983, 122 SCRA 740;
People v. Deus, G.R. No. 63729, May 31, 1985, 136 SCRA 660; People v. Aragona, G.R. No. L-
43752, September 19, 1985, 138 SCRA 569]. Alibi is inherently a weak defense [People v.
Datahan, G.R. Nos. 77107-08, January 21, 1988, 157 SCRA 215] especially, where as in this
case, the same was corroborated only by a relative of the accused [People v. Manuel, G.R. No.
L-44461, April 15, 1988, 160 SCRA 248; People v. Macabenta, G.R. No. 72476, February 14,
1989].
The accused, in this case, was not satisfied in abusing the complainant. After satisfying his
criminal lust and upon seeing the watch on the girl's wrist, he again threatened to kill the
complainant if she did not hand over the watch. The complainant refused to give it but he
forcibly grabbed it from her. [Sworn Statement of Marilyn Caldosa dated October 22, 1977, p.
1; Rollo, p. 3]. The accused was charged and convicted of the special complex crime of robbery
with rape.
19

However, it does not appear from the record of the case that when the accused entered the
house of the complainant, he already had the intention to rob the complainant. In fact, the
complainant testified that after she was raped by the accused, the latter lit a candle, saw the
watch on her wrist, threatened to kill her if she did not give it to him and forcibly took it from
her [TSN, August 31, 1977, pp. 10-11]. Hence, the taking of the watch by the accused was
more of an afterthought, even accidental. If the intention of the accused was to commit robbery
but rape was also committed even before the robbery, the crime of robbery with rape is
committed [See People v. Canastre, 82 Phil. 480 (1948)]. However, if the original design was to
commit rape but the accused after committing rape also committed robbery because the
opportunity presented itself, the criminal acts should be viewed as two distinct offenses.
ACCORDINGLY, the Court hereby MODIFIES the judgment of the court a quo by finding the
accused guilty of two independent crimes of rape and robbery. The accused is hereby sentenced
to suffer the indeterminate penalty of not less than two (2) years, four (4) months and one (1)
day of prision correccional, to not more than eight (8) years ofprision mayor [Art. 294, par. 5,
RPC in relation to Act No. 4103, as amended] for the crime of robbery and to restore to the
victim the watch which was taken or to pay its value in the amount of three hundred pesos
(P300.00). As for the crime of rape, since it was committed with the use of a deadly weapon,
the accused must suffer the penalty ofreclusion perpetua [Art. 335, Revised Penal Code in
relation to Art. III, Sec. 9 (1) of the 1987 Constitution] and indemnify the victim the amount of
thirty thousand pesos (P30,000.00) [People v. Viray, G.R. No L-41085, August 8, 1988, 164
SCRA 135].
With costs against the accused.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGELIO MORENO y REG, accused-
appellant.
D E C I S I O N
DAVIDE, JR., C.J.:
Before us for automatic review
[1]
is the Decision
[2]
of 9 August 1999 of the Regional Trial
Court, Branch 138, Makati City, in Criminal Case No.99-026 finding accused-appellant Rogelio
Moreno y Reg (hereafter ROGELIO) guilty beyond reasonable doubt of the special complex crime
of robbery with rape and sentencing him to suffer the penalty of death and to pay the amounts
of P200,000 as moral damages and P1,000 representing the value of the personal property
taken from the victim Marites Felix (hereafter MARITES).
The accusatory portion of the Information
[3]
reads as follows:
That on or about the 8th day of January 1999 in the City of Makati, Metro Manila, Philippines, a
place within the jurisdiction of this Honorable Court, the above-named accused, armed with a
bladed weapon, with intent to gain and by means of violence and intimidation, did then and
there willfully, unlawfully rob, take and divestMarites Felix y Tacadena of one (1) gold ring,
black bag containing one (1)ATM card, one (1) white Burger Machine T-shirt, 30 copies of
Burger Machine coupons, one (1) pocket book, a bible, toothbrush, toothpaste and cash money
in the amount of P200.00, all belonging to Marites Felix y Tacadena, to the latters damage and
prejudice and on the occasion of the said robbery and by using force and intimidation, accused
did then and there willfully, unlawfully and feloniously have carnal knowledge of the
complainant Marites Felix y Tacadena against her will and consent.
CONTRARY TO LAW.
Upon arraignment on 25 January 1999, ROGELIO, with the assistance of counsel de oficio,
entered a plea of not guilty.
At the pre-trial, the only fact the parties could agree on was that ROGELIO was wearing a
Burger Machine T-shirt at the time he was arrested. Thereafter trial ensued.
The victim, 20-year-old MARITES, testified that at about 12:45 A.M. of 8 January 1999, as
she was walking along ABC Commercial Complex,Makati, after her duty as service crew of the
Burger Machine outlet located at Guadalupe Nuevo, Makati, she noticed a man behind
her. Suddenly, the man put his arms around her and pointed a fan-knife at her neck. Since the
place was illuminated by streetlights and lights coming from the ABC Commercial Complex,
MARITES noticed the tattoos in his arms and recognized him to be accused-appellant ROGELIO.
Prior to 8 January 1999, ROGELIO would pass by their Burger Machine outlet twice a week, but
there was never an occasion that he bought something from Burger Machine.
[4]

ROGELIO dragged MARITES and at the same time ordered her to follow him to the side of
ABC Complex, which is about five arms-length away from EDSA. MARITES removed her ring
from her bag and gave it to ROGELIO.
[5]
The latter told her, Mamaya na iyan.
[6]
[T]hat will
come later on because I will give it back to you but you have to follow me first.
[7]

ROGELIO grabbed MARITESs long-sleeved shirt, unbuttoned it, and pushed her to the
vacant space behind the car then parked on the side of ABC Complex. He again pointed his
knife at her throat and pulled down her pants. To her plea for mercy, he replied
Huwag kang maingay, kundipapatayin kita. ROGELIO then removed his pants and again
uttered Huwag kang maingay kundi sasaksakin kita. Still, she told him that he could get her
bag if he needed money, but he replied, I do not need money.
[8]

ROGELIO ordered MARITES to open her legs apart or else he would kill her. MARITES was
forced to obey him. ROGELIO then went on top of her with his right hand holding her throat,
inserted his sexual organ into hers, and kept on pumping. After he was through, ROGELIO went
again on top of MARITES and ordered her to put his organ inside her vagina. MARITES said,
Ayoko. At this point, she heard someone nearby running. ROGELIO forthwith put on his
shorts and snatched the shoulder bag of MARITES, which contained her ATM card, P200 cash, a
small Bible, coupons of Burger Machine and T-shirt with Burger Machine markings. He then ran
away towards the direction of the other side of EDSA.
[9]

The vendors who saw MARITES crying as she was walking inquired about what happened
to her. They brought her back to the Burger Machine outlet and called the police. MARITES
joined the police in the search for ROGELIO around the vicinity and to the place where the
incident happened. One of the two policemen saw her ring in said place. They continued to
search the vicinity until they reached Laperal Compound. As they were
approaching Guadalupe Bridge, several persons who were talking to each other scampered away
upon seeing MARITES and the police officers. One of them was ROGELIO, who immediately
went inside a house and turned off its lights. With the assistance of the barangay tanod, the
police went to the back portion of the house and saw ROGELIO, who at the time was wearing a
hat and a blue jacket with his head bowed down.
[10]

Upon seeing ROGELIO, MARITES exclaimed: He is the one. ROGELIO refused to remove
his hat when she tried to remove it. After finally succeeding in removing his hat, MARITES
confirmed: He [was] the one who raped me. She then removed his jacket and saw under it
her T-shirt with Burger Machine prints at the left sleeve and catsup stains in the front and upper
parts of the shirt. This was the shirt she used in working at their Burger Machine outlet.
[11]

The police brought ROGELIO and MARITES to the police station where MARITES was
investigated. At 9:00 A.M. of the following day, MARITES was examined by Dr. Aurea P. Villena,
a medico-legal officer of the National Bureau of Investigation (NBI).
[12]

20

Dr. Aurea P. Villena testified that she conducted an examination on MARITES and found
that MARITES sustained contusions on her breasts. She also noted the following:
2) Hymen, intact but distensible and its orifice wide (2.5 cm in diameter) as to
allow complete penetration of an average-sized adult Filipino male organ in full
erection without producing any genital injury;
3) Semenology - positive for human spermatozoa which is highly indicative of recent
sexual intercourse with [a] man.
[13]

SPO3 Quillano Molmisa of the Makati Police Station corroborated the testimony of
MARITES that upon receiving her complaint for rape, he, together with the latter and SPO4
Alejandro Alisangco, proceeded to the Laperal Compound in Guadalupe, which was known to the
police officers as a hiding place of criminals in that area. ROGELIO ran away upon seeing
MARITES and the police officers. ROGELIO was later found hiding in a kneeling position
in Laperal Compound. MARITES was hysterical as she positively identified ROGELIO.
SPO3 Molmisa brought ROGELIO to theOspital ng Makati for medical examination before
bringing him to the police station.
[14]

Accused-appellant ROGELIO, 19 years old and a resident of Laperal Compound, Guadalupe
Viejo, Makati City, put up the defense of alibi. He testified that on or about 12:45 A.M. of 8
January 1999, he was sleeping in a folding bed located outside the house owned by his uncle,
with whom he had been living. ROGELIO was roused from sleep by the police. MARITES
approached him, took off his hat and was hysterical when she pointed to him saying,
Iyan nga po iyon, iyan nga po iyon. Ikaw ang nangholdap sa akin at nang rape. Then the
policemen tied his hands and brought him to the Ospital ng Makati, together with MARITES.
[15]

ROGELIO did not deny the fact that he was wearing a T-shirt with Burger Machine prints at
the time of his arrest. According to him it had been with him for almost a year prior to the
incident. It was given to him as a souvenir by a friend who worked at the Burger Machine.
[16]

Zaldy Carino, a 17-year-old neighbor and friend of ROGELIO for three years prior to the
incident, testified that between 5:00 and 8:00 P.M. of 7 January 1999 he was playing basketball
with ROGELIO and the latters friends. ROGELIO was wearing a Burger Machine T-shirt the
whole time that they were playing basketball. After winning the game, ROGELIO bought
some merienda for his playmates, since he was the one who placed the bet. They stayed
in ROGELIOs house until about 10:00 P.M. when ROGELIO told them that he was going to
sleep. After Zaldy and his friends left, ROGELIO slept in a folding bed located outside the house
of his uncle.
[17]

Between 2:00 and 3:00 A.M. of the following day, Zaldy was awakened when he heard
noises. He went out of the house and went to the place where the noise was coming from. He
found out that it came from the place where ROGELIO was sleeping, and he saw ROGELIO being
beaten up by four persons, including a barangay tanod. Zaldy also saw MARITES shouting,
crying and claiming that the T-shirt worn by ROGELIO was hers. ROGELIO and another person
by the name of Inteng were taken away.
[18]

After evaluating the evidence offered by the parties, the trial court gave full faith and
credit to the version of the prosecution, convicted ROGELIO of robbery with rape and
appreciated against him the aggravating circumstance of nocturnity. It
disregarded ROGELIOs defenses of denial and alibi in view of his positive identification by
MARITES as her assailant. Accordingly, in its Decision of 9 August 1999, the trial court decreed
as follows:
FOR THE REASONS GIVEN, the Court finds accused Rogelio Moreno y Reg, guilty beyond
reasonable doubt of having committed the special complex crime of robbery with rape, defined
and penalized under Articles 293 and 294 of the Revised Penal Code as amended by Republic
Act No. 7659. Applying Article 63 of the Revised Penal Code, considering the attendance of the
aggravating circumstance of nocturnity and absent any mitigating circumstance, the Court
imposes the penalty of death upon said accused. Accused is ordered to pay the
complainant P200,000.00 as and for moral damages plus P1,000.00 representing the value of
the personal properties taken but not recovered.
[19]

In his Appellants Brief, ROGELIO claims that the trial court committed the following
errors:
I. IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME
CHARGE HAS BEEN PROVEN BEYOND REASONABLE DOUBT.
II. IN NOT DECLARING THAT THE ACCUSED-APPELLANTS CONSTITUTIONAL
RIGHT WAS VIOLATED WHEN HE WAS ARRESTED AND BROUGHT TO THE
POLICE STATION FOR CUSTODIAL INVESTIGATION WITHOUT THE ASSISTANCE
OF AN INDEPENDENT AND COMPETENT COUNSEL OF HIS CHOICE.
III. IN APPRECIATING THE AGGRAVATING CIRCUMSTANCE OF NOCTURNITY IN
THE COMMISSION OF THE CRIME CHARGED.
As to the first assigned error, ROGELIO banks on the alleged absence of resistance and
struggle by MARITES as evidenced by the absence of injuries on her person. He likewise argues
that it was improper to charge him with robbery with rape, since the taking of the victims
property was a mere afterthought and an independent act from the alleged commission of the
crime of rape.
Anent the second assigned error, ROGELIO alleges that when he was arrested, he was not
informed of his right to remain silent, and when he was forced by the policemen to undress and
admit the crime, he was not assisted by an independent and competent counsel.
Finally, on the third assigned error, ROGELIO maintains that the trial court erred in
appreciating against him the aggravating circumstance ofnocturnity because the place where the
rape took place was not covered with darkness, and there is no evidence that nighttime was
deliberately sought after by him to carry out a criminal intent.
In the Appellees Brief, the Office of the Solicitor General (OSG) argues
that ROGELIOs conviction was based on the direct testimony of MARITES and not on his alleged
admission; in fact, no evidence on his alleged admission was presented by the prosecution. The
OSG supports the trial court in convicting him of robbery with rape, as the law does not
differentiate whether rape is committed before, during or after the robbery, it being enough that
rape accompanied robbery.
The OSG also agrees on the existence of the aggravating circumstance of nighttime, since
ROGELIO waited until 12:45 A.M. of the day in question to accomplish his evil design. It further
asserts that even if the rape and robbery were considered independently, ROGELIOs sentence
for the rape would still be death because such crime was committed with the use of deadly
weapon and attended by nocturnity. Hence, it prays that the challenged decision of the trial
court be affirmed. It, however, recommends that compensatory damages in the amount
of P75,000 be awarded to MARITES and the moral damages be reduced to P50,000.
We are convinced beyond any shadow of doubt that ROGELIO succeeded in having carnal
knowledge of MARITES with the use of force and intimidation. When he first put his arms
around her, he had a fan-knife in his possession directed towards her neck. As he was on top of
her, his hand was on her throat and he threatened to stab and kill her should she create a
noise. Fear of further injury overpowered and stifled her attempt to resist the sexual assault.
MARITES might have failed to resist ROGELIOs advances, but such failure was a manifestation
of involuntary submission, not of consent. In any event, force or intimidation itself is sufficient
justification for a womans failure to offer resistance. It is well settled that physical resistance
need not be established in rape when intimidation is exercised upon the victim and the latter
submits herself against her will to the rapists advances because of fear for her life and personal
21

safety.
[20]
Thus, the law does not impose a burden on the rape victim to prove resistance. What
needs only to be proved by the prosecution is the use of force or intimidation by the accused in
having sexual intercourse with the victim.
[21]

This court has frequently held that in rape cases, the conduct of a woman immediately
following the alleged assault is of utmost importance. In this case, MARITES immediately
reported the incident to the police, accompanied them in looking for her assailant, and upon
seeing him she immediately identified him as her rapist. Thereafter, she underwent police
investigation and submitted to a physical examination of her private parts by a medico-legal
officer. Her conduct negated fabrication or prevarication on her part.
[22]

We cannot, however, sustain ROGELIOs conviction of robbery with rape.
The special complex crime of robbery with rape defined in Article 293 in relation to
paragraph 2 of Article 294 of the Revised Penal Code, as amended, employs the clause when
the robbery shall have been accompanied with rape. In other words, to be liable for such
crime, the offender must have the intent to take the personal property of another under
circumstances that makes the taking one of robbery, and such intent must precede the
rape.
[23]
If the original plan was to commit rape, but the accused after committing the rape also
committed robbery when the opportunity presented itself, the robbery should be viewed as a
separate and distinct crime.
[24]

A painstaking assessment of the evidence in this case convinces us that ROGELIO
committed two separate offenses of rape and theft, and not the special complex crime of
robbery with rape. Immediately after ROGELIO put his arms around MARITES and directed the
knife at her neck, he dragged MARITES to the vacant space in ABC Commercial Complex and
removed her clothes. These acts clearly showed that ROGELIO had in mind sexual
gratification. This intent was further established by the fact that when MARITES offered to give
her ring to ROGELIO, the latter did not take it and instead replied, Mamaya na iyan
[25]
; That
will come later on because I will give it back to you but you have to follow me first.
[26]
Again,
when ROGELIO removed his pants, MARITES told him to get her bag if he needed money; but
ROGELIO replied I do not need money.
[27]
After giving vent to his lustful desire, he snatched
the victims shoulder bag, which was then on her right foot, and then he ran away.
[28]
Clearly
then, the taking of personal property was not the original evil plan of ROGELIO. It was an
afterthought following the rape.
Significantly, the constitutive element of violence or intimidation against persons in
robbery was not present at the time of the snatching of the shoulder bag of MARITES. The force
or intimidation exerted by ROGELIO against the victim was for a reason foreign to the fact of the
taking of the bag.
[29]
It was for the purpose of accomplishing his lustful desire. Hence, it cannot
be considered for the purpose of classifying the crime as robbery. Accused-appellant may thus
be held liable for simple theft only, in addition to the crime of rape.
The alibi and denial of ROGELIO cannot prevail over the testimony of MARITES positively
identifying him. MARITES had an adequate look atROGELIOs features during the assault. She
deliberately looked at ROGELIOs face while he was pumping on top of her. She was determined
to never forget his face and to make him pay for the crime he has done. MARITES even
emphasized in her testimony that she had the occasion to see the tattoos in ROGELIOs arms,
his pimpled face and the triple V prints on his shirt, which was later found
in ROGELIOs knapsack. She recognized him as one who would pass by the Burger Machine
outlet in Guadalupe twice a week. Indeed, it is the most natural reaction for victims of criminal
violence to strive to see the looks and faces of their assailants and observe the manner in which
the crime was committed. Most often the face and body movements of the assailant create
lasting impressions which cannot be easily erased from the victims memory.
[30]

It is doctrinally settled that alibi and denial are worthless and cannot prevail over positive
identification that is categorical, consistent and without any showing of ill-motive on the part of
the witness.
[31]
Accuseds bare denial amounted to nothing more than negative and self-serving
evidence unworthy of weight in law.
[32]
His defense of alibi will not prosper either for his failure
to prove that he was at some other place at the time the crime was committed and that it was
physically impossible for him to be at the locus criminis at the time.
[33]
He claimed he was
sleeping in Laperal Compound which is just a 5-minute walk from the locus criminis. It was not
therefore impossible for him to be at the crime scene at the time the crime was committed.
However, the trial court erred in appreciating the aggravating circumstance
of nocturnity or nighttime. For nocturnity to be properly appreciated, it must be shown that it
facilitated the commission of the crime and that it was purposely sought for by the offender. By
and of itself, nighttime is not an aggravating circumstance. In the instant case, no sufficient
evidence was offered to prove that ROGELIO deliberately sought the cover of darkness to
accomplish his criminal design. In fact, the victim testified that there were streetlights and
lights from the ABC Commercial Complex.
[34]
That the crime scene was dark is negated by the
victims testimony that he was able to see the face of the accused and even the marking NFC
and the nos. 555 in his dark shirt.
[35]
Moreover, the aggravating circumstance of nocturnity was
not alleged in the information.
[36]
Section 8 of Rule 110 of the Revised Rules of Criminal
Procedure, which took effect on 1 December 2000, requires that the complaint or information
must specify the qualifying and aggravating circumstances attending the commission of the
crime charged. This provision being favorable to the accused may be given retroactive effect.
[37]

We do not subscribe to the assertion of the OSG that should rape be considered as a
separate offense, it would be qualified by the circumstance of use of a deadly weapon in the
commission thereof. A reading of the information discloses no allegation that the rape was
committed with the use of a deadly weapon. The circumstance armed with a bladed weapon
alleged in the information refers to the robbery. Hence, it cannot serve to qualify the crime of
rape.
The issue of failure by the arresting officers to inform ROGELIO of his constitutional rights
and to afford him the benefit of counsel during the custodial investigation requires strong and
convincing evidence because of the presumption that the law enforcers acted in the regular
performance of their official duties.
[38]
Besides, even granting arguendo that the constitutional
requirements were not observed, the same is of no significance because it does not appear that
ROGELIO executed a statement or confession.
[39]
Then, too, as correctly pointed out by the
OSG, the conviction of ROGELIO was not on the basis of any extrajudicial confession but on the
testimony of MARITES and other evidence.
Now, on the penalty.
For the crime of rape, now punished under Article 266-A of the Revised Penal Code, as
amended by R.A. No. 8353 otherwise known as the Anti-Rape Law, which is the governing law
in this case, the penalty is reclusion perpetua. As to the civil aspect of the case, the trial courts
award ofP200,000 as moral damages should be reduced to P50,000 conformably with the
current jurisprudence. In rape cases, moral damages are awarded without need of proof of the
victims mental, physical, and psychological sufferings, for these are too obvious to still require
their recital at the trial by the victim.
[40]
MARITES is also entitled to an award of P50,000 as
indemnity ex delicto.
For the crime of theft, the penalty shall be based on the value of the thing stolen. Except
for the money in the amount of P200, no evidence was presented by the prosecution as regards
the value of the other stolen personal properties. Hence, the basis of the penalty
is P200.
[41]
Under Article 309(4) of the Revised Penal Code, any person guilty of theft shall be
punished by arresto mayor in its medium period to prision correccional in its minimum period if
the value of the property stolen is over P50 but does not exceed P200. Since there are neither
mitigating nor aggravating circumstance, we shall impose the penalty in its medium
period,
[42]
which is arresto mayor in its maximum period whose duration is four (4) months and
one (1) day to six (6) months. As to the award of P1,000 representing the value of the personal
properties taken from MARITES, the same should be reduced to P200 representing the actual
22

cash contained in the stolen bag MARITES, there being no sufficient proof as regards the actual
value of the other stolen personal properties.
ACCORDINGLY, the 9 August 1999 Decision of the Regional Trial Court of Makati City,
Branch 138, in Criminal Case No. 99-026 is hereby AFFIRMED with MODIFICATIONS. As
modified, accused-appellant ROGELIO MORENO y REG is hereby declared guilty beyond
reasonable doubt of two separate crimes of rape and of theft and is hereby sentenced as
follows:
1. For the crime of rape, to suffer the penalty of reclusion perpetua and pay
complainant MARITES FELIX the amounts of P50,000 as civil indemnity
andP50,000 as moral damages; and
2. For the crime of theft, to suffer the penalty of six (6) months
of arresto mayor and pay the victim the sum of P200.
No costs.
SO ORDERED.
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
23

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. 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
24

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. 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),
25

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.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
APOLONIO APDUHAN, JR. alias JUNIOR, ET AL., defendants,
APOLONIO APDUHAN, JR. alias JUNIOR, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Alberto M. Meer for defendant-appellant.
CASTRO, J.:
This is an automatic review of the judgment rendered on August 30, 1961 by the Court of First
Instance of Bohol (Judge Hipolito Alo presiding) convicting Apolonio Apduhan, Jr. of robbery with
homicide and sentencing him to death and "to idemnify the heirs of the deceased Geronimo
Miano in the amount of P6,000.00, to indemnify the heirs of the other deceased Norberto Aton
in the same amount of P6,000.00 ..."
On August 2, 1961 the accused Apduhan, then represented by Atty. David Ocangas, together
with his co-accused Rodulfo Huiso and Felipe Quimson, both represented by Atty. David Tirol,
pleaded not guilty to a second amended information which recites:.
The undersigned Provincial Fiscal accuses Apolonio Apduhan, Jr., alias Junior, Rodulfo
Huiso and Felipe Quimson of the crime of Robbery with Homicide, committed as
follows:
That on or about the 23rd day of May, 1961, at about 7:00 o'clock in the evening, in
the Municipality of Mabini, Province of Bohol, Philippines, the above-named accused
and five (5) other persons whose true names are not yet known (they are presently
known only with their aliases of Bernabe Miano, Rudy, Angel-Angi, Romeo and Tony)
and who are still at large (they will be charged in separate information or informations
as soon as they are arrested and preliminary proceedings in Crim. Case No. 176
completed before the Justice of the Peace Court), all of them armed with different
unlicensed firearms, daggers, and other deadly weapons, conspiring, confederating
and helping one another, with intent of gain, did then and there willfully, unlawfully
and feloniously enter, by means of violence, the dwelling house of the spouses
Honorato Miano and Antonia Miano, which was also the dwelling house of their
children, the spouses Geronimo Miano and Herminigilda de Miano; and, once inside the
said dwelling house, the above-named accused with their five (5) other companions,
did attack, hack and shoot Geronimo Miano and another person by the name of
Norberto Aton, who happened to be also in the said dwelling house, thereby inflicting
upon the said two (2) persons physical injuries which caused their death; and
thereafter the same accused and their five (5) other companions, did take and carry
way from said dwelling house cash money amounting to Three Hundred Twenty-two
Pesos (P322.00), Philippine Currency, belonging to Honorato Miano and Geronimo
Miano, to the damage and prejudice of the said Honorato Miano and the heirs of the
deceased Geronimo Miano in the sum of Three Hundred Twenty-two Pesos (P322.00)
with respect to the amount robbed, and also to the damage and prejudice of the heirs
of deceased Geronimo Miano and Norberto Aton by reason of the death of these two
persons.
Act committed contrary to the provisions of Art. 294, par. 1, of the Revised Penal Code
with the special aggravating circumstance that the crime was committed by a band
with the use of unlicensed firearms (Art. 296, Rev. Penal Code), and other aggravating
circumstances, as follows:
1. That the crime was committed in the dwelling of the offended parties without any
provocation from the latter;
2. That nighttime was purposely sought to facilitate the commission of the crime; and.
3. That advantage was taken of superior strength, accused and their companions, who
were fully armed, being numerically superior to the offended parties who were
unarmed and defenseless.
When the case was called for trial on August 9, 1961, Atty. Tirol informed the court a quo that
he was appearing also for Apduhan, but only as counsel de oficio. In view of this manifestation,
the trial court appointed Atty. Tirol as counsel de oficio for the said accused. Forthwith, Atty.
Tirol manifested that Apduhan would change his former plea of not guilty to a plea of guilty. The
record discloses that after the trial, judge had repeatedly apprised Apduhan of the severity of
the offense for which he was indicted and the strong possibility that the capital penalty might be
imposed upon him despite a plea of guilty, Apduhan persisted in his intention to plead guilty
with the request, however, that the death penalty be not imposed. Then after hearing the
arguments of Provincial Fiscal Jesus N. Borromeo and Atty. Tirol on the effect of articles 295 and
296 of the Revised Penal Code on the case at bar, the trial judge advised the herein accused
anew that he could be sentenced to death notwithstanding his projected plea of guilty, but the
latter reiterated his desire to confess his guilt on the specific condition that he be sentenced to
life imprisonment. Eventually, however, Apduhan desisted from pleading guilty and let his
previous plea stand on record after further warnings that he faced the grave danger of being
sentenced to death in view of the circumstances of his case. But the aforesaid desistance was
merely momentary as it did not end the accused's equivocation on the matter of his plea. After
a five-minute recess requested by Atty. Tirol in order to confer with the accused, the former
informed the court a quo that his client would insist on entering a plea of guilty. The following
appears on record:
Atty. D. TIROL:
Your Honor, please, I had a conference with the accused and I apprised him with the
situation of the case and after hearing our apprisal he manifested that he will insist on
his entering a plea of guilty, Your Honor. I made it clear to him that we are not forcing
him to enter the plea of guilty.
COURT (To accused Apolonio Apduhan, Jr.)
Q. Is it true that you are withdrawing your plea of not guilty?
26

A. I will just enter the plea of guilty.
Q. Have you been forced to enter the plea of guilty by your lawyer?.
A. No, Sir.
Q. And why do you said "I will JUST enter the plea of not guilty"?
A. I have proposed to enter the plea of guilty even before.
Q. Now the Court warns you again. Are you conscious of the fact that notwithstanding
your plea of guilty the Court may impose upon you the penalty of death?
A. I will just enter the plea of guilty, at the discretion of the Court.
Q. Even with all those dangers mentioned by the Court to you? .
A. Yes, Sir. (t.s.n. pp. 23-25).
Subsequently the prosecuting fiscal and the counsel de oficio resumed their oral arguments
regarding the effect on the instant case of articles 295 and 296, particularly the use of
unlicensed firearm as a special aggravating circumstance under the latter article. Also discuss
were the existence and effect of the alleged mitigating and aggravating circumstances. All of
these points will be later analyzed.
When the lower court subsequently reviewed the proceedings, it found that the accused's plea of
guilty was ambiguous. Hence, on August 30, 1961, the case was reopened with respect to
Apduhan, and on said date the latter entered a categorical plea of guilty, as evidenced by the
record:
COURT (To Accused Apduhan, Jr.):
The Court reopened this case because after a review of the proceedings it found that your plea
was not definite. In answer to a question of the Court you simply said "I will just enter the plea
of guilty". The Court wants to know whether you enter the plea of guilty of the crime charged in
the second amended information.
ACCUSED APDUHAN:.
I enter the plea of guilty.
COURT (To same accused Apduhan):
Q. Therefore, you admit that you have committed the crime charged in the second
information?
A. Yes, Your Honor.
Q. Is it necessary for you that the second amended information be read again?
A. No more; it is not necessary.
Q. Do you want that the second amended information be read to you again?
A. No more, Your Honor. (t.s.n. pp. 50-51).
On the same day, the court a quo rendered its decision, the pertinent dispositive portion of
which reads:.
PREMISES CONSIDERED, the Court renders judgment finding accused Apolonio
Apduhan, Jr., alias Junior guilty of the complex crime of robbery with homicide,
punished by Article 294 of the Revised Penal Code, in relation to Article 296 of the
game Code, as amended, and sentences him to suffer the penalty of death.
Considering that Apduhan had voluntarily confessed his guilt in open court, then the only aspect
of the case properly subject to review is the correctness of the penalty imposed by the court a
quo. In this respect, the appreciation of the use of unlicensed firearm as a special aggravating
circumstance (art. 296) in fixing the appropriate penalty for robbery with homicide (Art, 294
[1]) committed by a band with the use of unlicensed firearms, and the interplay and counter-
balancing of the attendant mitigating and aggravating circumstances, would determine the
severity of the penalty imposable.
The disposition of the question at hand necessitates a discussion of the interrelation among
articles 294, 295 and 296 of the Revised Penal Code. For this purpose the said articles are
hereunder quoted:
ART. 294. Robbery with violence against or intimidation of persons Penalties. Any
person guilty of robbery with the use of violence against or intimidation of any person
shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion
of the robbery, the crime of homicide shall have been committed.
2. The penalty of reclusion temporal in its medium period to reclusion
perpetua, when the robbery shall have been accompanied by rape or
intentional mutilation, or if by reason or on occasion of such robbery, any of
the physical injuries penalized in subdivision 1 of article 263 shall have been
inflicted.
3. The penalty of reclusion temporal, when by reason or on occasion of the
robbery, any of the physical injuries penalized in subdivision 2 of the article
mentioned in the next preceding paragraph, shall have been inflicted.
4. The penalty of prision mayor in its maximum period to reclusion
temporal in its medium period, if the violence or intimidation employed in the
commission of the robbery shall have been carried to a degree clearly
unnecessary for the commission of the crime, or when in the course of the
execution, the offender shall have inflicted upon any person not responsible
27

for its commission any of the physical injuries covered by subdivisions 3 and
4 of said article 263.
5. The penalty of prision correccional in its maximum period to prision
mayor in its medium period in other cases. (As amended by Rep. Act 18.).
ART 295. Robbery with physical injuries, committed in an uninhabited place and by a
band, or with the use of firearm on a street, road or alley. If the offenses mentioned
in subdivisions three, four, and five of the next preceding article shall have been
committed in an uninhabited place or by a band, or by attacking a moving train, street
car, motor vehicle or airship, or by entering the passengers' compartments in a train
or, in any manner, taking the passengers thereof by surprise in the respective
conveyances, or on a street, road highway, or alley, and the intimidation is made with
the use of a firearm, the offender shall be punished by the maximum period of the
proper penalties. (As amended by Rep. Acts Nos. 12 and 373.) (Emphasis supplied) .
ART. 296. Definition of a band and penalty incurred by the members thereof. When
more than three armed malefactors take part in the commission of a robbery, it shall
be deemed to have been committed by a band. When any of the arms used in the
commission of the offense be an unlicensed firearm the penalty to be imposed upon all
the malefactors shall be the maximum of the corresponding penalty provided by
law,without prejudice to the criminal liability for illegal possession of such unlicensed
firearm.
Any member of a band who is present at the commission of a robbery by the band,
shall be punished as principal of any of the assaults committed by the band, unless it
be shown that he attempted to prevent the same. (As amended by Rep. Act No. 12).
(Emphasis supplied).
The afore-quoted art. 294 enumerates five classes of robbery with violence against or
intimidation of persons and prescribes the corresponding penalties. The case at bar
falls under art. 294(1) which defines robbery with homicide and fixes the penalty
from reclusion perpetua to death.
Article 295 provides, inter alia, that when the offenses described in subdivisions 3, 4 and 5 of
art. 294 are committed by a band, the proper penalties must be imposed in the maximum
periods. The circumstance of band is therefore qualifying only in robbery punished by
subdivisions 3, 4, and 5 of art. 294. Consequently, art. 295 is inapplicable to robbery with
homicide, rape, intentional mutilation, and lesiones graves resulting in insanity, imbecility,
impotency or blindness. If the foregoing classes of robbery which are described in art. 294(1)
and (2) are perpetrated by a band, they would not be punishable under art. 295, but
then cuadrilla would be a generic aggravating under Art. 14 of the Code.
1
Hence, with the
present wording of art. 295
2
there is no crime as "robbery with homicide in band." If robbery
with homicide is committed by a band, the indictable offense would still be denominated as
"robbery with homicide" under art. 294(1), but the element of band, as stated above, would be
appreciated as an ordinary aggravating circumstance.
Article 296, as quoted above, defines "band", creates the special aggravating circumstance of
use of unlicensed firearm, and provides the criminal liability incurred by the members of the
band. The ascertainment of the definite function and range of applicability of this article in
relation to articles 294 and 295 is essential in the disposition of the case at bar.
In imposing the death penalty, the trial court appears to have accorded validity to the Provincial
Fiscal's contention that in robbery with homicide committed by a band, the use of unlicensed
firearm must be appreciated as a special aggravating circumstance pursuant to art. 296. Thus
convinced, the trial judge stressed in his decision that "under the express mandate of the law,
we cannot escape the arduous task of imposing the death penalty." Subscribing to the said
position, the Solicitor General adds that the "penalty for robbery under the circumstances
mentioned in Articles 294, paragraph 1, and 296 of the Code is the maximum of reclusion
perpetua to death, or the supreme penalty of death. This is mandatory." .
On the other hand, Atty. Alberto M. Meer, the accused's counsel de oficio in the present review,
contends that the use of unlicensed firearm, if ever appreciated in the case at bar, must be
considered a generic aggravating factor which "may be off-set by the existence of mitigating
circumstances so that the penalty to be imposed should be the penalty of reclusion perpetua." .
Both the foregoing contentions are untenable.
After a perceptive analysis of the provisions of art. 296, we reach the considered opinion that
the said article is exclusively linked and singularly applicable to the immediately antecedent
provision of art. 295 on robbery in band, as the latter article, in turn, is explicitly limited in
scope to subdivisions 3, 4, and 5 of art. 294. Consequently, although the use of unlicensed
firearm is a special aggravating circumstance under art. 296, as amended by Rep. Act 12, 3 it
cannot be appreciated as such in relation to robbery with homicide, described and penalized
under paragraph 1 of art. 294.
As previously stated, art. 295 provides that if any of the classes of robbery described in
subdivisions 3, 4, and 5 of art. 294 is committed by a band, the offender shall be punished by
the maximum period of the proper penalty. Correspondingly, the immediately following
provisions of art. 296 define the term "band", prescribe the collective liability of the members of
the band, and state that "when any of the arms used in the commission of the offense be in
unlicensed firearm, the penalty to be imposed upon all the malefactors shall be the maximum of
the corresponding penalty provided by law." Viewed from the contextual relation of articles 295
and 296, the word "offense" mentioned in the above-quoted portion of the latter article logically
means the crime of robbery committed by a band, as the phrase "all the malefactors"
indubitably refers to the members of the band and the phrase "the corresponding penalty
provided by law" relates to the offenses of robbery described in the last three subdivisions of
art. 294 which are all encompassed within the ambit of art. 295. Evidently, therefore, art. 296 in
its entirety is designed to amplify and modify the provision on robbery in band which is nowhere
to be found but in art. 295 in relation to subdivisions 3, 4, and 5 of art. 294. Verily, in order that
the aforesaid special aggravating circumstance of use of unlicensed firearm may be appreciated
to justify the imposition of the maximum period of the proper penalty it is a condition sine qua
non that the offense charged be robbery committed by a band within the contemplation of art.
295. To reiterate, since art. 295, does not apply to subdivision 1 and 2 of art. 294, then the
special aggravating factor in question, which is solely applicable to robbery in band under art.
295, cannot be considered in fixing the penalty imposable for robbery with homicide under art.
294(1), even if the said crime was committed by a band with the use of unlicensed firearms.
The legislative intent of making art. 296 corollary to art. 295 with respect to robbery in band
was unmistakably articulated by Congressman Albano in his sponsorship speech on H. B. No.
124 (subsequently enacted as Rep. Act No. 12, amending, among others, articles 295 and 296
of the Revised Penal Code). Said Congressman Albano: "Article 296 as a corollary of Article 295
would change the definition heretofore known of the term "band" under the law. The purpose of
this amendment is to inject therein the element of aggravation, when any member of the band
carries an unlicensed firearm . ." 4.
28

The special aggravating circumstance of use of unlicensed firearm, however, was initially
applicable to all the subdivisions of art. 294 since the said Rep. Act No. 12 also amended art.
295 to include within its scope all the classes of robbery described in art. 294. With the then
enlarged coverage of art. 295, art. 296, being corollary to the former, was perforce made
applicable to robbery with homicide (art. 294[1]). Thus, in People vs. Bersamin, 5 this Court, in
passing, opined: "The use of unlicensed firearm is a special aggravating circumstanceapplicable
only in cases of robbery in band (Art. 296, Revised Penal Code, as amended by Section 3,
Republic Act No. 12)." .
In the said case, this Court declared in effect that in robo con homicidio the use of unlicensed
firearm is not a special aggravating circumstance when the said offense is not committed by a
band. Inferentially, had the robbery with homicide in Bersamin been perpetrated by a band, the
use of unlicensed firearm would have been appreciated. This implied pronouncement would have
been justified under art. 296 in relation to art. 295, as amended by Rep. Act 12. But the
aforesaid inference lost all legal moorings in 1949 with the enactment of Rep. Act 373 which
excluded subdivisions 1 and 2 of art. 294 from the coverage of art. 295. Since art. 296, as
repeatedly emphasized above, is corollary to art. 295, the diminution of the latter's scope
correspondingly reduced the former's extent of applicability. In other words, the passage of the
foregoing amendment did not only jettison the first two subdivisions of art. 294 from the
periphery of art. 295 but also removed the said subdivisions (which pertain, inter alia, to the
offense of robbery with homicide) from the effective range of art. 296.
Notwithstanding that the special aggravating circumstance of use of unlicensed firearm cannot
be appreciated in the instant case, we are constrained, in the final analysis, to observe that the
imposition of the death penalty on the accused Apduhan would appear to be a logical legal
consequence, because as against the attendant mitigating circumstances the aggravating
circumstances numerically and qualitatively preponderate.
After Apduhan had pleaded guilty, the defense counsel offered for consideration three mitigating
circumstances, namely, plea of guilty, intoxication, and lack of intent to commit so grave a
wrong. Subsequently, however, the defense withdrew the last mentioned mitigating
circumstance after the prosecution had withdrawn the aggravating circumstance of abuse of
superior strength. The following manifestations appear on record: .
"FISCAL BORROMEO: .
"In fairness to the accused, because the crime charged is robbery in band (the case at
bar is actually robbery with homicide), it is natural that in robbery in band there is
already abuse of superior strength, so we will just withdraw that superior strength.
"COURT (To Atty. D. Tirol): .
"What do you say now? .
"ATTY. D. TIROL: .
"Such being the case, we will not insist on presenting evidence in support of our
contention that the accused did not intend to commit so grave a wrong.
"COURT: .
"Moreover by the mere use of firearm the accused cannot claim that he did not intend
to commit so grave a wrong as that committed. So now you withdraw your petition
that you be allowed to present evidence to that effect? .
"ATTY. D. TIROL: .
"Yes, Your Honor." (t.s.n. pp. 47-48).
Thus, only two alleged mitigating circumstances remain for consideration.
Anent the plea of guilty, we believe that under art. 13 (7) its appreciation in the case
at bar is beyond controversion.
However, apropos the alternative circumstance of intoxication, we find no evidence on
record to support the defense's claim that it should be considered as a mitigating
factor. This absence of proof can be attributed to the defense's erroneous belief that it
was not anymore its burden to establish the state of intoxication of the accused when
he committed the offense charged since anyway the prosecution had already admitted
the attendance of the said mitigating circumstance on the ground that the State did
not have strong evidence to overthrow the accused's claim of non-habituality to
drinking. The record discloses the following pertinent discussion: .
"COURT (To Fiscal Borromeo):.
"Do you agree, Mr. Fiscal, that the non-habitual intoxication of the accused be also
taken into account in his favor as a mitigating circumstance? "FISCAL BORROMEO: .
"We have no evidence exactly to know at this time that the accused was intoxicated,
but his affidavit states that before the commission of the crime they took young
coconuts and there is no mention about the taking of any liquor, so that, as it is now,
we are constrained to object.
"COURT (To the Fiscal): .
"But do you have evidence to counteract that allegation? .
"FISCAL BORROMEO: .
"We do not have any evidence to counteract that.
"COURT (To the Fiscal): .
"But do you not admit the attendance of that circumstance? .
"FISCAL BORROMEO: With that manifestation we submit because actually we do not
have evidence to counteract that he was a habitual drinker. "COURT (To the Fiscal): .
29

"But do you prefer to admit that mitigating circumstance or you need that evidence be
presented to that effect? "FISCAL BORROMEO: .
"Inasmuch as we do not have strong evidence to contradict that circumstance in
fairness to the accused, we would rather submit.
"COURT (To the Fiscal): .
"The attendance of the mitigating circumstance of non-habitual intoxication? .
"FISCAL BORROMEO: .
"Yes, Your Honor." (t.s.n. pp. 7-9) (Emphasis supplied) .
From the above proceedings in the trial court, it would appear that what the prosecution actually
intended to admit was the non-habituality of the accused to drinking liquor, not as a matter of
fact, but due to the State's inability to disprove the same. The prosecution apparently did not
concede the actual intoxication of the accused. We are of the firm conviction that, under the
environmental circumstances, the defense was not relieved of its burden to prove the accused's
actual state of intoxication. Otherwise, to appreciate the attendance of a mitigating factor on the
mere allegation of the accused, coupled with the dubious acquiescence of the prosecution, would
open wide the avenue for unscrupulous and deceitful collusion between defense and prosecution
in order to unduly and unjustly minimize the penalty imposable upon the accused.
The last paragraph of art. 15 of the Code provides:.
"The intoxication of the offender shall be taken into consideration as a mitigating circumstance
when the offender has committed a felony in a state of intoxication, if the same is not habitual
or subsequent to the plan to commit said felony but when the intoxication is habitual or
intentional it shall be considered as an aggravating circumstance. (Emphasis supplied).
Under the foregoing provision, intoxication is mitigating when it is not habitual or intentional,
that is, not subsequent to the plan to commit the crime. However, to be mitigating the
accused's state of intoxication must be proved. 6 Once intoxication is established by satisfactory
evidence, 7 then in the absence of proof to the contrary" it is presumed to be non-habitual or
unintentional. 8 .
In People vs. Noble 9 the defendant testified that before the murder he took a bottle of wine and
drank little by little until he got drunk. The policeman who arrested the accused testified that
the latter smelled wine and vomited. The Court held that the evidence presented was not
satisfactory to warrant a mitigation of the penalty. Intoxication was likewise not competently
proved in a case 10 where the only evidence was that the defendant had a gallon of tuba with
him at the time he committed the crime.
In the case at bar the accused merely alleged that when he committed the offense charged he
was intoxicated although he was "not used to be drunk," 11This self-serving statement stands
uncorroborated. Obviously, it is devoid of any probative value.
To recapitulate, the accused has in his favor only one mitigating circumstance: plea of guilty. As
aforementioned, the defense withdrew its claim of "lack of intent to commit so grave a wrong"
and failed to substantiate its contention that intoxication should be considered mitigating.
While an unqualified plea of guilty is mitigating, it at the same time constitutes an admission of
all the material facts alleged in the information, including the aggravating circumstances therein
recited. 12 The four aggravating circumstances are (1) band; (2) dwelling; (3) nighttime; and
(4) abuse of superior strength. The circumstance of abuse of superiority was, however,
withdrawn by the prosecution on the ground that since the offense of robbery with homicide was
committed by a band, the element of cuadrilla necessarily absorbs the circumstance of abuse of
superior strength. We believe that said withdrawal was ill-advised since the circumstances of
band and abuse of superiority are separate and distinct legal concepts. The element of band is
appreciated when the offense is committed by more than three armed malefactors regardless of
the comparative strength of the victim or victims. Hence, the indispensable components of
cuadrilla are (1) at least four malefactors and (2) all of the four malefactors are armed. On the
other hand, the gravamen of abuse of superiority is the taking advantage by the culprits of their
collective strength to overpower their relatively weaker victim or victims. Hence, in the latter
aggravating factor, what is taken into account is not the number of aggressors nor the fact that
they are armed, but their relative physical might vis-a-vis the offended party.
Granting, however, that the said withdrawal was valid, there still remain three aggravating
circumstances which render inutile the solitary extenuating circumstance of plea of guilty. The
prosecution does not need to prove the said three circumstances (all alleged in the second
amended information) since the accused by his plea of guilty, has supplied the requisite proof.
13 Hence, we will not belabor our discussion of the attendance aggravating circumstances.
The settled rule is that dwelling is aggravating in robbery with violence or intimidation of
persons, 14 like the offense at bar. The rationale behind this pronouncement is that this class of
robbery could be committed without the necessity of transgressing the sanctity of the home.
Morada is inherent only in crimes which could be committed in no other place than in the house
of another, such as trespass and robbery in an inhabited house. 15 This Court in People vs.
Pinca, 16 citing People vs. Valdez, 17 ruled that the "circumstances (of dwelling and scaling)
were certainly not inherent in the crime committed, because, the crime being robbery with
violence or intimidation against persons (specifically, robbery with homicide) the authors thereof
could have committed it without the necessity of violating or scaling the domicile of their
victim." Cuello Calon opines that the commission of the crime in another's dwelling shows
greater perversity in the accused and produces greater alarm. 18.
Nocturnity is aggravating when it is purposely and deliberately sought by the accused to
facilitate the commission of the crime 19 or to prevent their being recognized or to insure
unmolested escape. 20 Nocturnidad must concur with the intent and design of the offender to
capitalize on the intrinsic impunity afforded by the darkness of night. 21 In the case at bar, the
affidavit (exh. I-1) of the accused Apduhan shows that he and his co-malefactors took
advantage of the nighttime in the perpetration of the offense as they waited until it was dark
before they came out of their hiding place to consummate their criminal designs.
In his decision, the trial judge recommends to, the President of the Republic the commutation of
the death sentence which he imposed on the accused to life imprisonment. The Solicitor General
supports this recommendation for executive clemency.
We find no compelling reason to justify such recommendation. Contrary to the trial judge's
observation, the accused's plea of guilty was far from "spontaneous" and "insistent". It will be
recalled that his initial plea was one of not guilty. Later, he changed his plea but with the
persistent condition that he be sentenced to life imprisonment, not death. It was only after
30

much equivocation that he finally decided to "just" plead guilty. Because his plea was still
ambiguous, the court a quo had to reopen the case to ascertain its real nature. Conceding,
however, that his plea was "spontaneous" and "insistent," such manifestation of sincere
repentance cannot serve to obliterate the attendant aggravating circumstances which patently
reveal the accused's criminal perversity.
It appears from a cursory reading of the decision under review that the trial judge also anchored
his recommendation on the ground that there is "the possibility that the firearm was used in
order to counteract the resistance of the deceased." This is no justification at all for executive
clemency. Firstly, the above observation is a mere conjecture - in the language of the presiding
judge, a "possibility." Secondly, even granting that the said observation relates to the actual
happening, to employ a firearm in subduing the lawful resistance of innocent persons is a
criminal act by any standard.
Even as we purge the decision under review of its errors, we must hasten to commend the trial
judge, the Hon. Hipolito Alo, for his earnest and patient efforts to forestall the entry of an
improvident plea of guilty by the accused Apduhan, notwithstanding that the latter was already
represented by a counsel de oficio and hence presumed to have been advised properly. Judge
Alo made sure that the accused clearly and fully understood the seriousness of the offense
charged and the severity of the penalty attached to it. When the accused proposed to confess
his guilt, Judge Alo repeatedly warned him that the death penalty might be imposed despite his
plea of guilty. As aforementioned, when it appeared that Apduhan's plea of guilty was
ambiguous, Judge Alo reopened the case to determine with definitiveness the nature of his plea.
The virtue of Judge Alo's efforts in ascertaining whether Apduhan pleaded guilty with full
knowledge of the significance and consequences of his act, recommends itself to all trial judges
who must refrain from accepting with alacrity an accused's plea of guilty, for while justice
demands a speedy administration, judges are duty bound to be extra solicitous in seeing to it
that when an accused pleads guilty he understands fully the meaning of his plea and the import
of an inevitable conviction.
As a final commentary on the criminal conduct of the accused herein, it must be emphasized
that the instant review was delayed for several years because he escaped from the New Bilibid
Prisons on June 17, 1963, less than six months after he was committed to the said penitentiary.
He was recommitted on July 10, 1964 with a new mittimus from the Court of First Instance of
Leyte for robbery in band in criminal case 10099, for which he was sentenced to serve a prison
term of from 8 years and 1 day to 12 years and 1 day commencing on October 31, 1963. 22 His
recommitment was reported to this Court only on July 5, 1966.
Notwithstanding the foregoing disquisition, for failure to secure the required number of votes,
the penalty of death cannot be legally imposed. The penalty next lower in degree - reclusion
perpetua - should consequently be imposed on the accused.
ACCORDINGLY, with the modification that the death sentence imposed upon Apolonio Apduhan,
Jr. by the court a quo is reduced to reclusion perpetua, the judgment a quo is affirmed in all
other respects, without pronouncement as to costs.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ELIAS JARANILLA, RICARDO SUYO, FRANCO BRILLANTES and HEMAN GORRICETA, accused.
ELIAS JARANILLA, RICARDO SUYO, and FRANCO BRILLANTES, defendants-appellants.
Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Felicisimo R. Rosete
and Solicitor Antonio M. Martinez for plaintiff-appellee.
Sixto P. Dimaisip for defendants-appellants.

AQUINO, J.:p
This is an appeal of defendants Elias Jaranilla, Ricardo Suyo and Franco Brillantes from the
decision of the Court of First Instance of Iloilo, which convicted them of robbery with homicide,
sentenced each of them to reclusion perpetua and ordered them to pay solidarily the sum of six
thousand pesos to the heirs of Ramonito Jabatan and the sum of five hundred pesos to Valentin
Baylon as the value of fighting cocks (Criminal Case No. 11082).
The evidence for the prosecution shows that at around eleven o'clock in the evening of January
9, 1966, Gorriceta, who had just come from Fort San Pedro in Iloilo City, was driving a Ford
pickup truck belonging to his sister, Remia G. Valencia. While he was in front of the Elizalde
Building on J. M. Basa Street, he saw Ricardo Suyo, Elias Jaranilla and Franco Brillantes. They
hailed Gorriceta who stopped the truck. Jaranilla requested to bring them to Mandurriao, a
district in another part of the city. Gorriceta demurred. He told Jaranilla that he (Gorriceta) was
on his way home.
Jaranilla prevailed upon Gorriceta to take them to Mandurriao because Jaranilla ostensibly had
to get something from his uncle's place. So, Jaranilla, Brillantes and Suyo boarded the pickup
truck which Gorriceta drove to Mandurriao.
Upon reaching Mandurriao, Gorriceta parked the truck at a distance of about fifty to seventy
meters from the provincial hospital. Jaranilla, Suyo and Brillantes alighted from the vehicle.
Jaranilla instructed Gorriceta to wait for them. The trio walked in the direction of the plaza. After
an interval of about ten to twenty minutes, they reappeared. Each of them was carrying two
fighting cocks. They ran to the truck.
Jaranilla directed Gorriceta to start the truck because they were being chased. Gorriceta drove
the truck to Jaro (another district of the city) on the same route that they had taken in going to
Mandurriao.
It is important to note the positions of Gorriceta and his three companions on the front seat of
the track. Gorriceta the driver, was on the extreme left. Next to him on his right was Suyo. Next
to Suyo was Brillantes. On the extreme right was Jaranilla.
While the truck was traversing the detour road near the Mandurriao airport, then under
construction, Gorriceta saw in the middle of the road Patrolmen Ramonito Jabatan and Benjamin
Castro running towards them. Gorriceta slowed down the truck after Patrolman Jabatan had
fired a warning shot and was signalling with his flashlight that the truck should stop. Gorriceta
stopped the truck near the policeman. Jabatan approached the right side of the truck near
Jaranilla and ordered all the occupants of the truck to go down. They did not heed the injunction
of the policeman.
Brillantes pulled his revolver but did not fire it. Suyo did nothing. Jaranilla, all of a sudden, shot
Patrolman Jabatan. The shooting frightened Gorriceta. He immediately started the motor of the
31

truck and drove straight home to La Paz, another district of the city. Jaranilla kept on firing
towards Jabatan.
Jaranilla, Suyo and Brillantes alighted in front of Gorriceta's house. Gorriceta parked the truck
inside the garage. Jaranilla warned Gorriceta not to tell anybody about the incident. Gorriceta
went up to his room. After a while, he heard policemen shouting his name and asking him to
come down. Instead of doing so, he hid in the ceiling. It was only at about eight o'clock in the
morning of the following day that he decided to come down. His uncle had counselled him to
surrender to the police. The policemen took Gorriceta to their headquarters. He recounted the
incident to a police investigator.
Victorino Trespeces, whose house was located opposite the house of Valentin Baylon on Taft
Street in Mandurriao, testified that before midnight of January 9, 1966, he conducted a friend in
his car to the housing project in the vicinity of the provincial hospital at Mandurriao. As he
neared his residence, he saw three men emerging from the canal on Taft Street in front of
Baylon's house. He noticed a red Ford pickup truck parked about fifty yards from the place
where he saw the three men. Shortly thereafter, he espied the three men carrying roosters. He
immediately repaired to the police station at Mandurriao. He reported to Patrolmen Jabatan and
Castro what he had just witnessed. The two policemen requested him to take them in his car to
the place where he saw the three suspicious-looking men. Upon arrival thereat, the men and the
truck were not there anymore.
Trespeces and the policemen followed the truck speeding towards Jaro. On reaching the detour
road leading to the airport, the policemen left the car and crossed the runway which was a
shortcut. Their objective was to intercept the truck. Trespeces turned his car around in order to
return to Mandurriao. At that moment he heard gunshots. He stopped and again turned his car
in the direction where shots had emanated. A few moments later, Patrolman Castro came into
view. He was running. He asked Trespeces for help because Jabatan, his comrade, was
wounded. Patrolman Castro and Trespeces lifted Jabatan into the car and brought him to the
hospital. Trespeces learned later that Jabatan was dead.
Doctor Raymundo L. Torres, the chief medico-legal officer of the Iloilo City police department,
conducted an autopsy on the remains of Patrolman Jabatan. He found:
(1) Contusion on left eyebrow.
(2) Bullet wound one centimeter in diameter, penetrating left anterior axilla,
directed diagonally downward to the right, perforating the left upper lobe of
the lungs through and through, bitting the left pulmonary artery and was
recovered at the right thoracic cavity; both thoracic cavity was full of blood.
Cause of death: Shock, hemorrhage, secondary to bullet wound.
Valentin Baylon, the owner of the fighting cocks, returned home at about six o'clock in the
morning of January 10, 1966. He discovered that the door of one of his cock pens or chicken
coops (Exhs. A and A-1) was broken. The feeding vessels were scattered on the ground. Upon
investigation he found that six of his fighting cocks were missing. Each coop contained six cocks.
The coop was made of bamboo and wood with nipa roofing. Each coop had a door which was
locked by means of nails. The coops were located at the side of his house, about two meters
therefrom.
Baylon reported the loss to the police at Mandurriao. At about ten o'clock, a group of detectives
came to his house together with the police photographer who took pictures of the chicken coops.
The six roosters were valued at one hundred pesos each. Two days later, he was summoned to
the police station at Mandurriao to identify a rooster which was recovered somewhere at the
airport. He readily identified it as one of the six roosters which was stolen from his chicken coop
(Exh. B).
Gorriceta, Jaranilla, Suyo and Brillantes were charged with robo con homicidio with the
aggravating circumstances of use of a motor vehicle, nocturnity, band, contempt of or with
insult to the public authorities and recidivism. The fiscal utilized Gorriceta as a state witness.
Hence, the case was dismissed as to him.
On February 2, 1967, after the prosecution had rested its case and before the defense had
commenced the presentation of its evidence, Jaranilla escaped from the provincial jail. The
record does not show that he has been apprehended.
The judgment of conviction was promulgated as to defendants Suyo and Brillantes on October
19, 1967 when it was read to them in court. They signed at the bottom of the last page of the
decision.
There was no promulgation of the judgment as to Jaranilla, who, as already stated, escaped
from jail (See Sec. 6, Rule 120, Rules of Court).
However, the notice of appeal filed by defendants' counsel de oficio erroneously included
Jaranilla. Inasmuch as the judgment has not been promulgated as to Jaranilla, he could not
have appealed. His appeal through counsel cannot be entertained. Only the appeals of
defendants Suyo and Brillantes will be considered.
In convicting Suyo, Jaranilla and Brillantes of robo con homicidio, the trial court assumed that
the taking of the six fighting cocks was robbery and that Patrolman Jabatan was killed "by
reason or on the occasion of the robbery" within the purview of article 294 of the Revised Penal
Code.
In this appeal the appellants contend that the trial court erred in not finding that Gorriceta was
the one who shot the policeman and that Jaranilla was driving the Ford truck because Gorriceta
was allegedly drunk. Through their counsel de oficio, they further contend that the taking of
roosters was theft and, alternatively, that, if it was robbery, the crime could not be robbery with
homicide because the robbery was already consummated when Jabatan was killed.
After evaluating the testimonies of Gorriceta and Brillantes as to who was driving the truck and
who shot policeman, this Court finds that the trial court did not err in giving credence to
Gorriceta's declaration that he was driving the truck at the time that Jaranilla shot Jabatan.
The improbability of appellants' theory is manifest. The truck belonged to Gorriceta's sister. He
was responsible for its preservation. He had the obligation to return it to his sister in the same
condition when he borrowed it. He was driving it when he saw Brillantes, Jaranilla and Suyo and
when he allegedly invited them for a paseo. There is no indubitable proof that Jaranilla knows
how to drive a truck.
The theory of the defense may be viewed from another angle. If, according to the appellants,
Gorriceta asked Jaranilla to drive the truck because he (Gorriceta) was drunk then that
circumstance would be inconsistent with their theory that Gorriceta shot Jabatan. Being
32

supposedly intoxicated, Gorriceta would have been dozing when Jabatan signalled the driver to
stop the truck and he could not have thought of killing Jabatan in his inebriated state. He would
not have been able to shoot accurately at Jabatan. But the fact is that the first shot hit Jabatan.
So, the one who shot him must have been a sober person like Jaranilla.
Moreover, as Jaranilla and his two comrades were interested in concealing the fighting cocks, it
was Jaranilla, not Gorriceta, who would have the motive for shooting Jabatan. Consequently, the
theory that Gorriceta shot Jabatan and that Jaranilla was driving the truck appears to be
plausible.
Was the taking of the roosters robbery or theft? There is no evidence that in taking the six
roosters from their coop or cages in the yard of Baylon's house violence against or intimidation
of persons was employed. Hence, article 294 of the Revised Penal Code cannot be invoked.
Neither could such taking fall under article 299 of the Revised Penal Code which penalizes
robbery in an inhabited house (casa habitada), public building or edifice devoted to worship. The
coop was not inside Baylon's house. Nor was it a dependency thereof within the meaning of
article 301 of the Revised Penal Code.
Having shown the inapplicability of Articles 294 and 299, the next inquiry is whether the taking
of the six roosters is covered by article 302 of the Revised Penal Code which reads:
ART. 302. Robbery in an uninhabited place or in private building.Any robbery committed in an
uninhabited place or in a building other than those mentioned in the first paragraph of article
299, if the value of the property exceeds 250 pesos, shall be punished by prision correccional in
its medium and maximum periods provided that any of the following circumstances is present:
1. If the entrance has been effected through any opening not intended for
entrance or egress.
2. If any wall, roof, floor or outside door or window has been broken.
3. If the entrance has been effected through the use of false keys, picklocks
or other similar tools.
4. If any door, wardrobe, chest, or any sealed or closed furniture or
receptacle has been broken.
5. If any closed or sealed receptacle, as mentioned in the preceding
paragraph, has been removed, even if the same be broken open elsewhere.
xxx xxx xxx
In this connection, it is relevant to note that there is an inaccuracy in the English translation of
article 302. The controlling Spanish original reads:
ART. 302. Robo en lugar no habitado o edificio particular.El robo cometido
en un lugar no habitado o en un edificio que no sea de los comprendidos en
el parrafo primero del articulo 299, ... . (Tomo 26, Leyes Publicas 479).
The term "lugar no habitado" is erroneously translated. as "uninhabited place", a term which
may be confounded with the expression "uninhabited place" in articles 295 and 300 of the
Revised Penal Code, which is the translation ofdespoblado and which is different from the
term lugar no habitado in article 302. The term lugar no habitado is the antonym of casa
habitada (inhabited house) in article 299.
One essential requisite of robbery with force upon things under Articles 299 and 302 is that the
malefactor should enter the building or dependency, where the object to be taken is found.
Articles 299 and 302 clearly contemplate that the malefactor should enter the building (casa
habitada o lugar no habitado o edificio). If the culprit did not enter the building, there would be
no robbery with force upon things. (See Albert, Revised Penal Code, 1932 edition, p. 688).
Thus, where the accused broke the show-window of the Bombay Palace Bazar at Rizal Avenue,
Manila and removed forty watches therefrom, the crime was theft and not robbery because he
did not enter the building. The show-window was outside the store. (People vs. Adorno, CA 40
O. G. 567, per Montemayor, J., who later became a member of this Court). *
In the instant case, the chicken coop where the six roosters were taken cannot be considered a
building within the meaning of article 302. Not being a building, it cannot be said that the
accused entered the same in order to commit the robbery by means of any of the five
circumstances enumerated in article 302.
The term "building" in article 302, formerly 512 of the old Penal Code, was construed as
embracing any structure not mentioned in article 299 (meaning not an "inhabited house or
public building or edifice devoted to worship" or any dependency thereof) used for storage and
safekeeping of personal property. As thus construed, a freight car used for the shipment of
sugar was considered a private building. The unnailing of a strip of cloth nailed over the door,
the customary manner of sealing a freight car, was held to constitute breaking by force within
the meaning of article 512, now article 302. (U.S. vs. Magsino, 2 Phil. 710).
The ruling in the Magsino case is in conflict with the rulings of the Supreme Court of Spain that
a railroad employee who, by force, opens a sealed or locked receptacle deposited in a freight
car, does not commit robbery. He is guilty of theft because a railroad car is neither a house nor
a building within the meaning of article 302 which corresponds to article 525 of the 1870
Spanish Penal Code. Article 302 refers to houses or buildings which, while not actually inhabited,
are habitable. Thus, a pig sty is not a building within the meaning of article 302. The stealing of
hogs from a pig sty is theft and not robbery, although the culprit breaks into it. Article 302
refers to habitable buildings. (Guevara, Revised Penal Code, 1939 Edition, pages 555-6, citing II
Hidalgo Codigo Penal 636-7, 642, which in turn cites the decisions of the Spanish Supreme
Court dated March 2, 1886 and April 25, 1887). **
As may be seen from the photographs (Exhs. A and A-1) Baylon's coop, which is known in the
dialect as tangkal orkulungan, is about five yards long, one yard wide and one yard high. It has
wooden stilts and bamboo strips as bars. The coop barely reaches the shoulder of a person of
average height like Baylon. It is divided into six compartments or cages. A compartment has an
area of less than one cubic yard. A person cannot be accommodated inside the cage or
compartment. It was not intended that a person should go inside that compartment. The taking
was effected by forcibly opening the cage and putting the hands inside it to get the roosters.
Therefore, the taking of the six roosters from their coop should be characterized as theft and not
robbery. The assumption is that the accused were animated by single criminal impulse. The
conduct of the accused reveals that they conspired to steal the roosters. The taking is
punishable as a single offense of theft. Thus, it was held that the taking of two roosters in the
33

same place and on the same occasion cannot give rise to two crimes of theft (People vs. De
Leon, 49 Phil. 437, citing decision of Supreme Court of Spain dated July 13, 1894 and 36 C. J.
799; People vs. Tumlos, 67 Phil. 320; People vs. Villanueva, 49 O.G. 5448, L-10239, August 7,
1953).
Nocturnity and use of a motor vehicle are aggravating. Those circumstances facilitated the
commission of the theft. The accused intentionally sought the cover of night and used a motor
vehicle so as to insure the success of their nefarious enterprise (People vs. Tan, 89 Phil. 647,
660; People vs. Gardon, 104 Phil. 372).
Also to be appreciated against appellants Suyo and Brillantes is the aggravating circumstance of
recidivism which was alleged in the information. They admitted their previous convictions for
theft (130, 132 tsn; Exhs. I and J; Art. 14[9], Revised Penal Code).
The theft of six roosters valued at six hundred pesos is punishable by prision correccional in its
minimum and medium periods (Art. 309[3], Revised Penal Code). That penalty should be
imposed in its maximum period because only aggravating circumstances are present (Art.
64[3], Revised Penal Code).
Although recidivists, appellants Suyo and Brillantes are not habitual delinquents. They are
entitled to an indeterminate sentence (Sec. 2, Act No. 4103).
With respect to the killing of Patrolman Jabatan, it has already been noted that the evidence for
the prosecution points to Jaranilla as the malefactor who shot that unfortunate peace officer.
The killing was homicide because it was made on the spur of the moment. The treacherous
mode of attack was not consciously or deliberately adopted by the offender (U.S. vs. Namit, 38
Phil. 926; People vs. Tumaob, 83 Phil. 738; People vs. Abalos, 84 Phil. 771).
The twenty-four year old Jabatan was an agent of authority on night duty at the time of the
shooting. He was wearing his uniform. The killing should be characterized as a direct assault
(atentado) upon an agent of authority (Art. 148, Revised Penal Code) complexed with homicide.
The two offenses resulted from a single act. (Art. 48, Revised Penal Code; People vs. Guillen, 85
Phil. 307; People vs. Lojo, Jr., 52 Phil. 390).
The evidence for the prosecution does not prove any conspiracy on the part of appellants
Jaranilla, Suyo and Brillantes to kill Jabatan. They conspired to steal the fighting cocks. The
conspiracy is shown by the manner in which they perpetrated the theft. They went to the scene
of the crime together. They left the yard of Baylon's residence, each carrying two roosters. They
all boarded the getaway truck driven by Gorriceta.
The theft was consummated when the culprits were able to take possession of the roosters. It is
not an indispenable element of theft that the thief carry, more or less far away, the thing taken
by him from its owner (People vs. Mercado, 65 Phil. 665; Duran vs. Tan, 85 Phil. 476; U.S vs.
Adiao, 38 Phil. 754).
It is not reasonable to assume that the killing of any peace officer, who would forestall the theft
or frustrate appellants' desire to enjoy the fruits of the crime, was part of their plan. There is no
evidence to link appellants Suyo and Brillantes to the killing of Jabatan, except the circumstance
that they were with Jaranilla in the truck when the latter shot the policeman. Gorriceta testified
that Suyo did not do anything when Jabatan approached the right side of the truck and came in
close proximity to Jaranilla who was on the extreme right. Brillantes pulled his revolver which he
did not fire (47, 53-55 tsn). Mere presence at the scene of the crime does not necessarily make
a person a co-principal thereof.
Jaranilla heard Gorriceta's testimony that he (Jaranilla) shot Jabatan. Instead of taking the
witness stand to refute the testimony of Gorriceta, Jaranilla escaped from jail. That
circumstance is an admission of guilt.
The instant case is different from People vs. Mabassa, 65 Phil. 568 where the victim was killed
on the occasion when the accused took his chickens under the house. It is distinguishable from
the People vs. Gardon, 104 Phil. 372 and People vs. Salamudin No. 1, 52 Phil. 670 (both cited
by the Solicitor General) where the robbery was clearly proven and the homicide was
perpetrated on the occasion of the robbery. As already noted, theft, not robbery, was committed
in this case.
The situation in this case bears some analogy to that found in the People vs. Basisten, 47 Phil.
493 where the homicide committed by a member of the band was not a part of the common
plan to commit robbery. Hence, only the person who perpetrated the killing was liable for
robbery with homicide. The others were convicted of robbery only.
There is a hiatus in the evidence of the prosecution as to the participation of Suyo and Brillantes
in the killing of Jabatan by Jaranilla. As already stated, no robbery with homicide was
committed. Therefore, it cannot be concluded that those two appellants have any responsibility
for Jabatan's death. Their complicity in the homicide committed by Jaranilla has not been
established.
WHEREFORE, the judgment of the trial court convicting appellants Ricardo Suyo and Franco
Brillantes of robbery with homicide is reversed. They are acquitted of homicide on the ground of
reasonable doubt.
As co-principals with Elias Jaranilla in the theft of the six fighting cocks, they are (a) each
sentenced to an indeterminate penalty of six (6) months of arresto mayor as minimum to four
(4) years and two (2) months of prision correccional as maximum and (b) ordered to indemnify
solidarily the complainant, Valentin Baylon, in the sum of five hundred pesos (P500). Each
appellant should pay one-third of the costs.
As to the liability of Elias Jaranilla for theft and homicide, with direct assault upon an agent of
authority, trial court should render a new judgment consistent with this opinion (See Sec. 19,
Art. IV, Constitution).
So ordered.
Zaldivar (Chairman), Fernando, Antonio and Fernandez, JJ., concur.



Separate Opinions
34


BARREDO, J., concurring:
I concur.
I am in full accord with the findings of fact and the legal rationalization and conclusions in the
main opinion very ably written for the Court by Mr. Justice Aquino.
I would like to make the observation, however, that I cannot find any error in the literal
translation of the term "lugar no habitado" used in the controlling Spanish text Article 302 into
"uninhabited place" appearing in the English version. The correct concept of the said term as
used in Article 302 is indeed different from the "uninhabited place" contemplated in Articles 295
and 300, which means "despoblado" or open country referring to a "lugar", meaning place,
site or space where nobody lives or is usually found. And, of course, it is also clear to me that
Article 302 refers to as an "uninhabited place" is really an unoccupied or uninhabited house, the
antonym of the "casa habitada" referred to in Article 299. But I cannot bring self to the thought
that the word "lugar" in Article 302 may literally be translated to anything else than "place, site
space". I simply cannot see in it the specific connotation of house or building. Maybe it is the
wording of the Spanish text that is somewhat inaccurate, unless it can be shown, which I am
afraid cannot be done, that colloquially or somewhere in the Spanish speaking world, said word
means house or building or any structure wherein personal properties may be deposited, stored
or kept.
I would prefer to footnote Article 302 the same way Justice Luis B. Reyes of the Court of
Appeals does, thus:
The "uninhabited place" mentioned in Article 302 is a building, because
paragraphs Nos. 1 and 3 speak of "entrance," which necessarily refers to a
building. (The Revised Penal Code by Luis B. Reyes, Vol. II, 1968, p. 617.)
In that way, I believe the true and correct meaning of the provision is clarified without
attributing any possible misconstruction to faulty literal translation, which I am convinced does
not exist. I reiterate, the error in translation noted in the main opinion is inevitable for while
the literal translation is indubitably accurate, on the other hand, as a matter of construction, the
correct interpretation is different. Evidently, the Spanish text uses "lugar" for house, building or
structure, and, to my mind, that is not the sense that word is usually understood in Spanish. But
I agree that what is contemplated in Article 302 is not "despoblado" but simply an unoccupied or
uninhabited house, building or structure. In other words, it appears that the correct expression
that should be in Article 302 is "uninhabited house," disregarding, consequently, the inaccurate
reference to "lugar" in the Spanish text and sticking, by way of construction, to the correct
concept of the thing really contemplated.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERLINDA DELA CRUZ, LARRY PERIDAS and
GERRY VENTURINA (at large), accused.
ERLINDA DELA CRUZ and LARRY PERIDAS, accused-appellants.
D E C I S I O N
YNARES-SANTIAGO, J.:
Before us is an appeal of the joint decision of the Regional Trial Court of Malolos, Bulacan,
Branch 78, finding accused-appellant Larry Peridas guilty beyond reasonable doubt of homicide
in Criminal Case No. 828-M-98, and finding both accused-appellants Erlinda Dela Cruz and Larry
Peridas guilty beyond reasonable doubt of violation of Republic Act. No. 6539, otherwise known
as the Anti-Carnapping Act of 1972, in Criminal Case No. 829-M-98.
Accused-appellants Erlinda Dela Cruz and Larry Peridas, together with Gerry Venturina,
were charged in the following informations:
Criminal Case No. 828-M-98
That on or about the 15
th
day of January, 1998, in the municipality of Pulilan, province of
Bulacan, Philippines and within the jurisdiction of this Honorable Court, the above named
accused armed with bladed instrument and with intent to kill one Ysmael Mananquil, conspiring,
confederating together and helping one another, did then and there willfully, unlawfully and
feloniously, with evident premeditation, abuse of superior strength and treachery, attack,
assault and stab with the bladed instrument the said Ysmael Mananquil y Aguilar, hitting the
latter on the different parts of his body, thereby causing him serious physical injuries which
directly caused his death.
Contrary to Law.
[1]

Criminal Case No. 829-M-98
That on or about the 15
th
day of January, 1998, in the municipality of Pulilan, province of
Bulacan, Philippines and within the jurisdiction of this Honorable Court, the above named
accused, conspiring, confederating together and helping one another, did then and there
willfully, unlawfully and feloniously, with intent of gain and without the knowledge and consent
of the owner thereof, take steal, and carry away with them one (1) taxi car KIA bearing Plate
No. PVS 468, belonging to one Alvin G. Sanchez, to the damage and prejudice of the said
owner.
Contrary to Law.
[2]

The two cases were consolidated. Upon arraignment, both accused-appellants entered a
plea of not guilty. Accused Gerry Venturina, on the other hand, remained at large. After joint
trial, judgment was rendered against accused-appellants, the dispositive portion
[3]
of which
reads:
WHEREFORE, the foregoing considered,
1. In Crim. Case No. 828-M-98
accused Erlinda dela Cruz y Sanchez is hereby ACQUITTED of the crime charged, while accused
Larry Peridas is hereby found GUILTY beyond reasonable doubt of the crime of Homicide and
sentenced to suffer the indeterminate penalty of 12 years of prision mayor as minimum to 17
years 4 months and 1 day to 20 years of reclusion temporal as maximum and to pay the
bereaved family of victim Ysmael Mananquil the amount of P60,000.00 as compensatory
damages and P75,000.00 as indemnity for the victims death.
2. In Crim. Case No. 829-M-98
35

accused Erlinda dela Cruz y Sanchez and Larry Peridas are hereby found GUILTY beyond
reasonable doubt of Violation of Republic Act 6539 otherwise known as the Anti-Carnapping Act
of 1972, as amended, and sentenced to suffer the penalty of reclusion perpetua will all its
accessory penalties.
The instant cases as against accused Gerry Venturina are hereby ordered sent to the files of
ARCHIVED cases pending the arrest of said accused. Accordingly, let a warrant of arrest be
issued for his immediate apprehension to stand trial before this Court.
With costs.
SO ORDERED.
The facts of the case are as follows:
On January 15, 1998, at about 2:30 in the morning, accused-appellants Erlinda Dela Cruz
and Larry Peridas went to the house of Meliton Estrella in Poblacion, Plaridel, Bulacan on board a
KIA Pride taxicab, which Dela Cruz drove. When they arrived at Estrellas house, Dela Cruz
went inside to invite him to go with them, while Peridas stayed in the taxicab. When Estrella
went out, he saw a man lying on the floor of the taxicab whose head was being pinned down by
Peridas foot. Afraid of being implicated, Estrella refused to go saying, Ilayo ninyo yan at baka
pati ako ay madamay.
[4]
Accused-appellants left and proceeded to the house of accused Gerry
Venturina in Baliuag, Bulacan. There they stripped the taxicab of all its accessories.
[5]

Later that day, at about 7:00 a.m., Peridas returned to Estrellas house. Peridas told
Estrella that he had killed the man and Venturina threw away the body in Pulilan.
[6]
Since his
clothes were covered with bloodstains, he borrowed clothes from Estrella and asked him to burn
his sando and t-shirt. Estrella did not burn the bloodied clothes. Instead, he turned them over
later to the National Bureau of Investigation Office in Pulilan.
Peridas left to fetch the son of Dela Cruz. He returned to Estrellas house at about 10:30 to
11:00 a.m. There, he waited for Dela Cruz, who arrived at past twelve noon driving the same
taxicab Estrella earlier saw. The license plate of the vehicle had been replaced from one bearing
the number: PVS 468 to one with the number: TAU 667.
Accused-appellants, together with Estrella and Dela Cruzs son, boarded the taxicab and
drove to Guimba, Nueva Ecija. Along the way, they were flagged down at a checkpoint set up by
the Traffic Command. Dela Cuz was unable to show her license and the vehicles registration,
but the police officers let them through after she told them that she is the wife of Gerry
Venturina.
They stopped by Laur, Nueva Ecija to borrow money from a friend of Dela Cruz, after
which they proceeded to Peridas house in Guimba. That same night, Dela Cruz drove back to
Plaridel. Before she left, Estrella tried to borrow money from Dela Cruz for his fare back to
Plaridel but she turned him down. So, Estrella had to stay in Guimba for three days until he was
able to borrow money from Peridas on the pretext that he was going to fetch Dela Cruz.
When Estrella arrived in Plaridel, he informed his elder sister about the incident. Together,
they reported the matter to Capt. Ileto and SPO4 Ireneo Mauricio, then to NBI-Pulilan, where he
turned over the sando and t-shirt which Peridas asked him to burn. The investigation led to the
recovery of the corpse of Ysmael Mananquil in Pulilan, Bulacan as well as the taxicab used by
accused-appellants, which was found five meters away from the residence of Dela
Cruz. Eventually, accused-appellants Dela Cruz and Peridas were arrested.
In her defense, accused-appellants Erlinda Dela Cruz alleged that at 2:00 a.m. of January
15, 1998, she was asleep in her house in Ma. Lourdes Subdivision, Tabang, Plaridel, Bulacan,
together with her siblings, children and accused-appellant Larry Peridas. On January 16, 1998,
she stayed home to do her chores. On January 18, 1998, she stayed home in the morning and,
in the evening, went to the Monte Carlo Videoke in Baliuag where she worked. She claimed that
during all this time, she never saw Meliton Estrella.
[7]

Accused-appellant Larry Peridas likewise testified that he was sleeping in the house of Dela
Cruz on January 15, 1998, when the alleged crimes took place. He stayed there for a few days
and helped in the housework.
[8]

One Reynaldo Trinidad corroborated accused-appellants testimonies that they were in
Dela Cruzs house on the date and time of the alleged commission of the crimes.
[9]

After trial, the lower court rendered judgment against accused-appellants. Hence, this
appeal, which raises the following issues:
I
WHETHER OR NOT THE SO-CALLED INVESTIGATION OF THESE TWO CASES HAVE BEEN
IMPROPERLY MADE AND WRONGLY EXECUTED.
II
WHETHER OR NOT THE PRESIDING JUDGE RELIED HEAVILY ON WITNESS MELITON ESTRELLAS
PERJURED TESTIMONY.
III
WHETHER OR NOT CIRCUMSTANTIAL EVIDENCE ARE APPLICABLE IN THESE CASES.
IV
WHETHER OR NOT DEFENSE EVIDENCE HAVE BEEN GLOSSED OVER AND GIVEN SCANT
CONSIDERATION BY THE TRIAL COURT.
In their joint brief, accused-appellants allege that the following irregularities attended the
investigation of the case, to wit: (1) that nothing was done by the authorities from the time
Capt. de Armas of Plaridel called that a cadaver was retrieved from Barangay Agnaya until
January 22, 1998, when Inspector Ileto received information about a carnapping and murder
incident; (2) that Meliton Estrella actually gave himself up for his implication in the murder and
carnapping; (3) that Inspector Ileto and SPO4 Mauricio did not conduct an investigation but
merely relied on the NBI report which was a complete falsehood; (4) that the subject taxicab,
which was parked adjacent to the PNP Crime Laboratory, was not subjected to physical and
forensic investigation; (5) that the NBI and PNP committed shortcuts in pursuing the
investigation; (6) that NBI Agent Serafin Gil is not a lawyer and violated their rights under the
Miranda doctrine; and (7) that Inspector Ileto is a graduate of Bulacan National Agricultural
School with no background in criminal investigation and intelligence.
The above arguments involve factual issues, the resolution of which require our re-
evaluation of the trial courts findings of facts. To do so, however, will be an unnecessary
deviation from the jurisprudential rule that conclusions of the trial court on the credibility of
witnesses are generally not disturbed by appellate courts. Trial courts are in a better position to
decide the issues, having heard the witnesses themselves and observed their deportment and
manner of testifying during the trial.
[10]
The exception to this rule is where there is proof of
some fact or circumstance of weight and influence that might have been overlooked, or its
significance misinterpreted, by the trial court which, if properly considered, could affect the
result of the case.
36

After a meticulous review of the records, we find no compelling reason to depart from such
rule.
The evidence on record show that, contrary to accused-appellants assertion, it was only
on January 22, 1998 that SPO4 Ireneo Mauricio, Capt. Ileto
[11]
and NBI Agent Serafin Gil
[12]
first
came to know, through Meliton Estrella, about the carnapping of the taxicab, the killing of the
driver thereof and the subsequent dumping of the body somewhere in Pulilan. Acting on the
information given by Estrella, they were able to recover the subject vehicle at Dela Cruzs house
in Agnaya, Plaridel, Bulacan, and asked the family of Ysmael Mananquil to identify his
decomposing corpse.
Anent the claim that Dela Cruz was arrested without warrant, forced to sign a document,
and detained for more or less 3 to 4 weeks,
[13]
there is no showing that she objected to the
manner of her arrest and detention before she entered her plea and participated in the trial.
Pertinent hereto is our ruling in People v. Lopez,
[14]
to wit:
[I]t is too late for appellant to raise the question of his arrest without a warrant. When
accused-appellant was arrested and a case was filed against him, he pleaded not guilty upon
arraignment, participated in the trial and presented his evidence. Appellant is thus estopped
from questioning the legality of his arrest. It is well-settled that any objection involving a
warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of
an accused must be made before he enters his plea, otherwise the objection is deemed
waived. Besides, this issue is being raised for the first time by appellant. He did not move for
the quashal of the information before the trial court on this ground. Consequently, any
irregularity attendant to his arrest, if any, was cured when he voluntarily submitted himself to
the jurisdiction of the trial court by entering a plea of not guilty and by participating in the
trial. Moreover, the illegal arrest of an accused is not sufficient cause for setting aside a valid
judgment rendered upon a sufficient complaint after trial free from error.
Coming now to the sufficiency of proof of their guilt, accused-appellants contend that the
testimony of Meliton Estrella was perjured; that the evidence against them consisted of
circumstantial evidence which was not sufficient to establish their guilt; and that the trial court
merely glossed over and gave scant consideration to the evidence they presented.
The contentions lack merit. We agree with the trial courts findings that the testimony of
prosecution witness Meliton Estrella was clear, straightforward and devoid of any signs of
artificiality. Moreover, no improper motive was imputed on Estrella who positively identified
both accused-appellants as the perpetrators of the offense.
[15]

Accused-appellants next assail the trial courts reliance on circumstantial evidence. We
have long held that circumstantial evidence is sufficient for conviction in criminal cases where
there is more than one circumstance derived from the facts duly given and the combination of
all is such as to produce conviction beyond reasonable doubt. The test for accepting
circumstantial evidence as proof of guilt beyond reasonable doubt is: the series of circumstances
duly proved must be consistent with each other and that each and every circumstance must be
consistent with the accuseds guilt and inconsistent with his innocence.
[16]

In the case at bar, the trial court based its judgment of conviction on the following
established facts: that Dela Cruz and Peridas arrived in Plaridel at 2:30 in the morning of
January 15, 1998 on board a taxicab; that the accessories of the taxicab were removed and its
license plate was replaced; that accused-appellants were unable to produce the registration
papers of the vehicle; that the subject vehicle was identified as the one driven by Ysmael
Mananquil before its loss on January 15, 1998; and that the missing taxicab was recovered by
the police from Dela Cruz.
[17]

We find that the foregoing facts constitute an unbroken chain of events that undeniably
point to the culpability of accused-appellants for violation of the Anti-Carnapping Act. The
testimony of Meliton Estrella was corroborated by the testimony of SPO4 Mauricio, NBI Agent
Serafin Gil and Capt. Ileto. The testimony of the police officers carried with it the presumption of
regularity in the performance of official functions.
[18]
Moreover, accused-appellants failed to
overcome the disputable presumption that a person found in possession of a thing taken in the
doing of a recent wrongful act is the taker and the doer of the whole act.
[19]

The trial court convicted accused-appellant Larry Peridas only of homicide based on its
finding of guilt due to Peridas admission to Meliton Estrella that he had disposed
of (tinapos) Manaquil, whose body was dumped in Pulilan, Bulacan, where it was later found by
the police. Prior to that, Estrella saw Peridas stepping on the head of Manaquil on the floor of
the carnapped vehicle. In other words, it was Peridas who was with the victim when the latter
was last seen alive by Estrella.
[20]
However, the allegations of evident premeditation, abuse of
superior strength and treachery as qualifying circumstances were not sufficiently established,
thus the crime committed was only homicide.
[21]

In Aballe v. People,
[22]
we held that the declaration of an accused expressly acknowledging
his guilt of the offense may be given in evidence against him and any person, otherwise
competent to testify as a witness, who heard the confession, is competent to testify as to the
substance of what he heard if he heard and understood it. The said witness need not repeat
verbatim the oral confession; it suffices if he gives its substance.
In the recent case of People v. Zuela,
[23]
we ruled that an admission made to a private
person is admissible in evidence against the declarant pursuant to Rule 130, Section 26 of the
Rules of Court, which states that the act, declaration or omission of a party as to a relevant fact
may be given in evidence against him.
In their defense, accused-appellants can only raise alibi and bare denial. Alibi is the
weakest of all defenses, because it is easy to concoct and difficult to disprove. For alibi to
prosper, it is not enough to prove that the defendant was somewhere else when the crime was
committed; he must likewise demonstrate that it was physically impossible for him to have been
at the scene of the crime at the time. Furthermore, alibi cannot prevail over the positive and
unequivocal identification of accused-appellants. Categorical and consistent positive
identification, absent any showing of ill-motive on the part of the eyewitness testifying on the
matter, prevails over accused-appellant's defense of denial and alibi. Unless substantiated by
clear and convincing proof, such defense is negative, self-serving, and undeserving of any
weight in law.
[24]

The trial court was correct in convicting accused-appellants separately on the charges of
carnapping and homicide, rather than qualified carnappingor aggravated form of
carnapping,
[25]
as defined in Section 14 of Republic Act No. 6539, as amended by Section 20 of
Republic Act No. 7659, which imposes the penalty of reclusion perpetua to death whenever the
owner, driver or occupant of the carnapped motor vehicle is killed in the course of the
commission of the carnapping or on the occasion thereof.
In the case at bar, accused-appellants were charged separately with the crimes of
carnapping and murder. We cannot convict them of the crime of qualified carnapping, which
consists of the two crimes alleged in the two separate information, without impairing their
constitutional right to be informed of the nature and cause of the accusation against them.
[26]

However, the trial court erred in imposing the penalty of reclusion perpetua for the crime
of carnapping, considering that the Information neither alleged that the victim was killed in the
course of the commission of the carnapping or on occasion thereof,
[27]
or that the carnapping
was committed by means of violence against or intimidation of any person. The crime alleged
being only carnapping under the first clause of R.A. 6539, Section 14, as amended, the proper
penalty to be imposed must not be less than fourteen (14) years and eight (8) months and not
more than seventeen (17) years and four (4) months. Under the Indeterminate Sentence
Law
[28]
, if the offense is punished by a special law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by
said law and the minimum term shall not be less than the minimum prescribed by the same.
37

Thus, we hold that the proper penalty to be imposed on each of the accused-appellants is an
indeterminate sentence of fourteen (14) years and eight (8) months, as minimum, to seventeen
(17) years and four (4) months, as maximum.
On the other hand, the penalty for homicide is reclusion temporal, the range of which is
from twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate
Sentence Law, and there being no modifying circumstance, we hereby sentence accused-
appellant Larry Peridas to a prison term of eight (8) years, four (4) months and ten (10) days
of prision mayor, as minimum, to fourteen (14) years, ten (10) months and twenty (20) days
of reclusion temporal, as maximum
[29]

Finally, we reduce the award of Seventy Five Thousand Pesos (P75,000.00) ordered by the
trial court as indemnity for the victims death to Fifty Thousand Pesos (P50,000.00), consistent
with current jurisprudence.
[30]

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch 78,
Malolos, Bulacan, in Criminal Case No. 828-M-98, finding accused-appellant LARRY PERIDAS
guilty beyond reasonable doubt of homicide, is AFFIRMED with the MODIFICATION that he is
sentenced to an indeterminate prison term of eight (8) years, four (4) months and ten (10) days
of prision mayor, as minimum, to fourteen (14) years, ten (10) months and twenty (20) days
of reclusion temporal, as maximum. In addition, said accused-appellant LARRY PERIDAS is
ordered to pay death indemnity to the heirs of Ysmael Mananquil in the amount of P50,000.00.
The decision of the Regional Trial Court, Branch 78, Malolos, Bulacan, in Criminal Case No.
829-M-98, finding accused-appellants LARRY PERIDAS and ERLINDA DELA CRUZ guilty beyond
reasonable doubt of violation of Republic Act No. 6539, as amended, is AFFIRMED with the
MODIFICATION that said accused-appellants are sentenced to an indeterminate prison term of
fourteen (14) years and eight (8) months, as minimum, to seventeen (17) years and four (4)
months, as maximum.
Costs de officio.
SO ORDERED.
AMADO IZON and JIMMY MILLA petitioners,
vs.
PEOPLE OF THE PHILIPPINES, respondent.

DE CASTRO*, J.:
Petitioners were charged, together with Pedro Divino, in the Circuit Criminal Court, Third Judicial
District, Olongapo City, with Robbery with Violence Against Person, under an information
reading as follows:
That on or about the 8th day of September, 1977, in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating together and mutually helping one
another and by means of violence and intimidation applied upon the person
of Reynaldo Togorio committed by the accused Jimmy Milla y Castillo and
Pedro Divino y Batero who were armed with bladed weapon which they
pointed to one Reynaldo Togorio and used in stabbing him and the accused
Amado Izon y Bartulo who helped in mauling him thereby inflicting upon said
Reynaldo Togorio the following physical injuries, to wit:
Incised wound 2 cm. long and 2 cm. deep lateral aspect
upper third arm right. Incised wound 2 inches long
between thumb and index finger left Abrasion
sternoclavicular function along 6 rib left. Linear abrasion 3
cm. long level of 7th rib, anterior axillary line right
which injuries shall require medical attendance for a period of less than nine
(9) days, barring complications, did then and there wilfully, unlawfully and
feloniously take, steal and carry away one (1) motorized tricycle with motor
No. B100-25-648 with Chasis No. B120-05589 and Plate No. MCH Q4102 or
with a total value of P11,000.00, Philippine Currency belonging to Reynaldo
Togorio to the damage and prejudice of the latter in the aforementioned
amount of Pll,000.00. However, the motorized tricycle Zukurmi 120, Motor
No. B1OO-25-648 with Chasis No.B-120-05589 was recovered.
1

Pleading guilty upon arraignment, petitioners were sentenced to the penalty provided in
Republic Act No. 6539 known as Anti-Car-napping Act of 1972 which defines motor vehicle as
follows:
Motor vehicle is any vehicle propelled by any power other than muscular
power using the public highways, but excepting road rollers, trolley cars,
street sweepers, sprinklers, lawn mowers, bulldozers, graders, fork-lifts
amphibian trucks, and cranes if not used on public highways, vehicles which
run only on rails or tracks, and tractors, trailers and traction engines of all
kinds used exclusively for agricultural purposes. Trailers having any number
of wheels, when propelled or intended to be propelled by attachment to a
motor vehicle, shall be classified as separate motor vehicle with no power
rating.
2
(Emphasis supplied).
Contending that the court a quo erred in imposing the penalty prescribed in the Anti-Carnapping
Act of 1972 instead of that prescribed in the Revised Penal Code for simple robbery with
violence, because the information did not allege that the motorized tricycle stolen was using
the public highway, so as to make it a motor vehicle as the term is defined in the carnapping
law, and therefore failed to inform them that they were being charged under the cited statute,
in violation of their constitutional right to be informed of the nature and cause of the accusation
against the petitioners came to this Court with the instant petition for review.
The principal issue thus raised is whether a motorized tricycle is a motor vehicle within the
definition given to the term by the Anti-Carnapping Act of 1972.
As a consequence of their contention that the motorized tricycle is not a motor vehicle under the
definition of the aforecited Act, petitioners also claim that they are not properly informed of the
cause and nature of the accusation against them in violation of their constitutional right.
Petitioners maintain that the tricycle in question is not a "motor vehicle" as the anti-carnapping
law defines the term because it is not licensed to operate on the "public highways." The Solicitor
General contends otherwise with the following argument:
The word "public" means "common to all or many; general; open to common
use" (Black's Law Dictionary 1393 [Revised 4th Ed.]. On the other hand,
'highway' refers to a 'free and public road way, or street; one which every
person has the right to use (idem. at p. 862). lt is clear that a street within a
town is a public highway if it is used by the public. To limit the words "public
38

highways" to a national road connecting the various towns, as petitioners'
suggest (Reply dated January 25, 1980) would create a distinction which the
statute itself does not make. Under petitioners' proposition, a distinction
should be made between motor vehicles operating within a town like the
motorized tricycle involved herein, and those using roads connecting towns.
This, however, goes against the well known maxim that where the law does
not distinguish, no distinction should be made (Robles vs. Zambales
Chromite Mining Co., 104 PhiL 688). It is also to be pointed out that to limit
the application of the Act to motor vehicles travelling between different
towns, may lead to absurd results. For example, privately owned motorcycle
used by its owner in travelling from one province to another would be
covered by the law. Upon the other hand, a motorized tricycle (with sidecar)
which is more expensive than the former but operated within towns would
not be protected by the law. No unreasonable intendment should be read into
a statute so that an injustice may be worked or an absurb result produced
(In re Moore's Estate, N.Y.S. 2nd 281, 165 Misc. 683). It can be concluded,
therefore, that the motorized tricycle involves in this case is a 'motor vehicle'
within the ambit of section 2 of the Anti-Carnapping Act of 1972. The lower
court correctly imposed the penalty for violation of said Act on herein
petitioners.
3

We perceive no reason not to accord full validity of the Solicitor General's argument, not even
on the petitioner's submission that a motorized tricycle, not having licensed to use a public
highway, is not a motor, vehicle under the provision of the anti-carnapping act.
From the definition cited by the Government which petitioners admit as authoritative, highways
are always public, free for the use of every person. There is nothing in the law that requires a
license to use a public highway to make the vehicle a "motor vehicle" within the definition given
the anti-carnapping law. If a vehicle uses the streets with or without the required license, same
comes within the protection of the law, for the severity of the offense is not to be measured by
what kind of streets or highway the same is used; but by the very nature of the vehicle itself
and the use to which it is devoted. Otherwise, cars using the streets but still unlicensed or
unregistered as when they have just beet bought from the company, or only on test runs, may
be stolen without the penal sanction of the anti-carnapping statute, but only as simple robbery
punishable under the provision of the Revised Penal Code. This obviously, could not have been
the intention of the anti-carnapping law.
Going over the enumerations of excepted vehicle, it would readily be noted that any vehicle
which is motorized using the streets which are public, not exclusively for private use, comes
within the concept of motor vehicle. A tricycle which is not included in the exception, is thus
deemed to be that kind of motor vehicle as defined in the law the stealing of which comes within
its penal sanction.
In any event, it is a matter of judicial notice that motorized tricycles are running in droves along
highways admittedly public, as those going to the north like Baguio City. Those motorized
tricycles certainly come within the definition of the law, even under the restricted construction
that petitioners would want given to it. If these tricycles are "motor vehicles" then, there is no
cogent reason to treat the tricycle in question differently.
With the foregoing discussion, it would logically follow that the petitioners complaint of not
having been informed of the nature and cause of the accusation against them and for which
they were convicted upon their plea of guilty, is unfounded, legally and factually.
Again, on tills point, We find the observation of the Solicitor General valid, We have no other
course than to sustain it. Thus
A perusal of the information (Annex 1 of respondent People's Comment dated
November 16, 1979) readily shows that petitioners were not thereby
informed that they were being accused for violation of the Revised Penal
Code. The charge merely designated the offense as one for: "ROBBERY WITH
VIOLENCE AGAINST PERSON." The facts alleged in the information make out
a case of "carnapping". This offense is defined in section 2 of Republic Act
No. 6539 as 'the taking, with intent to gain, of a motor vehicle belonging to
another without the latter's consent, or by means of violence against or
intimidation of persons, or by using force upon things The information clearly
specified that what was taken and carried away was "one (1) motorized
tricycle." Herein petitioners cannot claim that they were misled by the
information into pleading guilty. It is not necessary for the protection of the
substantial right of the accused, nor the effective preparation of his defense,
that he be informed of the technical name of the crime of which he stands
charged. He must look to the facts alleged (People vs. Cosare, 95 PhiL 656;
U.S. vs. Lim San 17 Phil. 275).
FOR ALL THE FOREGOING, the petition is hereby dismissed. No costs.
4

SO ORDERED.
G.R. No. 82264-66 December 4, 1989
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ISAGANI GULINAO Y ALZONA, accused-appellant.
Citizens Legal Assistance Office for accused-appellant.

PARAS, J.:
In three (3) separate Informations filed before the Regional Trial Court of Valenzuela, Metro
Manila, Isagani Gulinao was charged with
1. Illegal Possession of Firearm with Murder (Proper designation of the
offense on the basis of the allegations in the Information should be Murder
committed with the use of an unlicensed firearm) Crim Case No. 8016-V-
87;
2. Robbery Crim. Case No. 8017-V-87; and
3. Carnapping Crim. Case No. 8048-V-87
allegedly committed as follows:
39

1. Criminal Case No. 8016-V-87, For Violation of PD 1866 (Illegal Possession of Firearm with
Murder)
That on or about the 4th day of March, 1987, in the municipality of
Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously have in his possession and control one (1) Colt
Caliber .45 pistol with SN C-1039161, without authority and/or permit to do
and with evident premeditation, treachery and intent to kill Samson Chua,
use said firearm to attack, assault and shoot said Samson Chua, hitting the
latter on his body, thereby causing his instantaneous death.
2. Criminal Case No. 8017-V-87, For Robbery
That on or about the 4th day of March, 1987, in the municipality of
Valenzuela, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously, and with violence upon the person of Samson
Chua, with intent to gain take rob and carry away with him one (1) gold
men's ring with twelve (12) diamond stones worth P85,000.00 belonging to
said Samson Chua, to the damage and prejudice of the latter in the sum of
P85,000.00.
3. Criminal Case No. 8048-V-87, For Carnapping
That on or about March 4,1987, in the municipality of Valenzuela, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and
feloniously, with intent to gain and by means of force, violence and
intimidation, to wit: by then and there shooting to death Samson Chua y
Domingo, the person to whom the owner entrustedthe aforementioned motor
vehicle, and intimidating with gunshots Virgilio Caguioa y Dionisio, the
driver/occupant of said motor vehicle, and then did take, steal and carry
away, without the owner's consent, a Toyota Corona Silver Edition, Colored
Blue, bearing plate No. PNB '870 and valued at P250,000.00 to the damage
and prejudice of the owner, Chua Ang Sing, in the aforesaid sum of
P250,000.00 Philippine Currency. (pp. 1-3, Brief for the Appellee; p. 106,
Rollo)
Gulinao pleaded "not guilty" to the "Robbery" and "Carnapping" charges. But, he refused to
enter any plea to the charge of "Illegal Possession of Firearm with Murder", hence, the trial
court entered for him a plea of "not guilty" pursuant to Sec. 1 (c), Rule 116, 1985 Rules of Court
on Criminal Procedure. However, Gulinao moved to quash the Information charging him with
"Illegal Possession of Firearm" on the ground that there was another Criminal Case No. 87-
52928 for "Illegal Possession of Firearm" pending before the Regional Trial Court of Manila. In
an Order dated April 24, 1987, the trial court denied Gulinao's motion to quash. Whereupon,
Gulinao assailed the Order in a petition for certiorari (CA-G.R. SP No. 12412) before the Court of
Appeals. In a Decision dated September 22, 1987, the Court of Appeals dismissed the petition
for lack of merit.
The aforesaid three (3) criminal cases were jointly tried. After the prosecution had completed
the presentation of its evidence, the case was set on October 28, 1987 for the reception of
evidence for the defense. On the said date Gulinao refused to take the witness stand. Atty.
Ricardo Perez, his counsel de oficio who was representing him in the case for "Illegal Possession
of Firearm with Murder", manifested in open court that Gulinao even refused to be interviewed.
On motion of Atty. Perez to give him more time to talk to Gulinao or to withdraw from the case,
the hearing was re-set to Nov. 6, Nov. 16, Nov. 25 and Dec. 2, 1987, with warning that
Gulinao's failure to present evidence in the next hearing without valid grounds would be deemed
a waiver of presentation of evidence for his defense.
Meanwhile, on Nov. 4, 1987, Atty. Reynaldo Garcia, Gulinao's counsel de parte in the cases for
"Robbery" and "Carnapping" withdrew his appearance with the conformity of Gulinao.
In the scheduled hearing on Nov. 6, 1987, Gulinao did not present evidence. In the next hearing
on Nov. 16, 1987, two (2) young men tried to move for postponement, but they were found by
the trial court as not full-pledged lawyers. Gulinao refused to present evidence despite the
willingness of Atty. Perez to assist him. Atty. Perez later filed a motion to withdraw appearance
due to the uncooperativeness of Gulinao.
In view of the previous warning given by the trial court, Gulinao's failure to present evidence
without valid ground was considered as waiver of his right to present evidence. In the Order
dated Nov. 16, 1987, the trial court noted:
Today when these cases were called for hearing the Court's appointed
counsel de oficio, manifested that the accused again did not want to
cooperate and manifested that in fairness to himself as lawyer and in fairness
to the accused he is withdrawing his appearance. The Court commiserates
with the predicament of defense counsel who was much interested to help
the accused and the Court to give due process and to expedite the hearing
but the Court noted that it is the accused who has stubbornly refused to
present his defense evidence. Prior to his having been accused he was a full-
pledged police officer and he used to investigate cases for less than 3 years.
(p. 6, Brief for the Appellee; p. 106, Rollo)
On Nov. 23, 1987, the trial court rendered a Decision, the dispositive portion of which reads-
WHEREFORE, in view of the foregoing the Court finds the accused Isagani
Gulinao guilty beyond reasonable doubt of the following crimes:
1. Illegal Possession of Firearm with Murder and hereby sentences him to
suffer life imprisonment which is one degree lower than the death penalty
considering that the Court can no longer impose the penalty of death as
mandated by the New Constitution.
2. Robbery under Art. 294 par. 5 and hereby sentences him to suffer the
penalty of prision correccionalin its maximum period to prision mayor in its
medium period or four (4) years, two (2) months and one (1) day to six (6)
years one (1) month and ten (10) days.
3. Carnapping and hereby sentences him to suffer imprisonment of fourteen
(14) years and eight (8) months as minimum to seventeen (17) years and
four (4) months as maximum.
4. To indemnify the heirs of the victim Dr. Samson Chua in the sum of
P500,000.00, and to pay the costs. The entire period of the previous
40

imprisonment of accused shall be credited in his favor. (p. 7, Brief for the
Appellee; p. 106, Rollo)
From the aforesaid decision, Gulinao interposed this appeal to this Court on the following
assignment of errors:
I
THE TRIAL COURT GRAVELY ERRED IN NOT ALLOWING THE ACCUSED-
APPELLANT TO PRESENT HIS EVIDENCE.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT OF THE CRIME OF ILLEGAL POSSESSION OF FIREARM WITH
MURDER.
III
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT
GUILTY OF ROBBERY UNDER ARTICLE 294, PARAGRAPH 5, OF THE REVISED
PENAL CODE.
IV
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT OF THE CRIME OF CARNAPPING. (p. 8, Brief for the Appellee; p.
106, Rollo)
As established by the evidence of the prosecution, the facts of the case are as follows-
On March 3, 1987, at about 9:00 P.M., Dr. Chua, appellant Gulinao (driver-
bodyguard of Dr. Chua), Virgilio Caguioa (secretary of Dr. Chua), Vice Mayor
Teofilo Reyes of Malabon, Dante Reyes (nephew of Vice Mayor Reyes), Boy
Salazar and other politicians were having a caucus in the house of a certain
Torre in Acacia, Malabon. After the caucus at about 11:00 P.M., the group of
Dr. Chua boarded Dr. Chua's car and that of Vice Mayor Reyes and proceeded
to the Bar-Bar Disco House along McArthur Highway, Valenzuela, Metro
Manila (pp. 5-10, TSN April 6, 1987)
Upon arriving at the disco house, Gulinao, who had in his possession an
Ingram machine pistol, swapped the same with a .45 caliber pistol in
possession of Dante Reyes. Gulinao then tucked the .45 caliber pistol in his
right waist (pp. 11-13, TSN May 18, 1987).
Inside the disco house, Dr. Chua, Gulinao and companions occupied 2 tables
which were joined together neat, the stage (pp. 14-18, TSN April 6, 1987).
Later, Gulinao went to the comfort room and cocked the .45 caliber pistol. He
then returned to his seat beside Dr. Chua (pp. 14-15 TSN May 18, 1987).
While Dr. Chua was watching the floor show, Gulinao stood up and shot him
on the head at close range with the .45 caliber pistol (pp. 16-17 TSN May 22,
1987). When Gulinao was about to leave the disco house, he turned back to
Dr. Chua and took the latter's gold ring embedded with 12 diamonds (p. 11
TSN October 5, 1987; pp. 28-29 TSN April 6, 1987; Exhs. "H" and "L-1")
Thereupon, Gulinao rushed outside the disco house to the car of Dr. Chua (p.
27 TSN April 6, 1987).
Poking the gun at Caguioa who was inside the car, Gulinao ordered the
former to leave the car. While Caguioa was getting out of the car, Gulinao
fired at him but missed (pp. 27-29 TSN April 6, 1987). On the other hand,
Dante Reyes tried to fire at Gulinao with the Ingram machine pistol, but the
Ingram jammed (pp. 16-17 TSN May 18, 1987).
Gulinao drove the car towards Monumento (p. 29 TSN April 6, 1987).
However, he was constrained to leave the car and take a taxi when the car
he was driving figured in an accident in Malabon (p. 15 TSN July 10, 1987;
Exh. "L-1").
Dr. Chua, who sustained gunshot wounds oil the head, was brought to the
nearby Our Lady of Fatima Hospital where he died on arrival (p. 17 TSN May
18, 1981). (pp. 8-11, Brief for the Appellee; p. 106, Rollo)
The contention of Gulinao in his first assignment of error is false. The record shows that he was
given several opportunities to present his defense but it was he who refused to take the witness
stand or to present any evidence.
Gulinao's second assignment of error raises a question of double jeopardy. It is claimed that
"the indictment for violation of Presidential Decree No. 1866 (Illegal Possession of Firearm)
against the accused-appellant in Crim. Case No. 8016-V-87 after he was already slapped of the
same violation before the Regional Trial Court of Manila (in Crim. Case No. 87-52928) involving
the same firearm and ammunition is a classic case of putting the accused-appellant in jeopardy
(pp. 10-11, appellant's brief).
This issue had already been raised by Gulinao in a petition for certiorari (CA-G.R. SP No. 12412)
before the Court of Appeals. which in a Decision dated September 22, 1987 held that-
Since the incident that spawned Criminal Case No. 87-52928 in Manila
happened on March 5, 1987, while that in Criminal Case No. 8016-V-
87 pending before RTC, Valenzuela, happened on March 4, 1987; and since
in the first case the charge is that of illegal possession of firearms and that in
the second case the commission of murder with the use of an illegally
possessed firearms, it follows that there is no Identity of the crime charged
and hence, no double jeopardy.
xxx xxx xxx
As stated by the court a quo, there is no possibility of double jeopardy, as the possession
thereof had taken place in two separate and distinct places and jurisdiction and the two
informations state different dates of commission. (pp. 164 and 169, Rec.; Emphasis supplied;
See also Lu Hayco vs. Court of Appeals, 138 SCRA 227 [1985]. (pp. 15-16, Brief for the
Appellee; p. 106, Rollo)
41

In respect to his third assignment of error Gulinao should have been convicted of the crime of
theft under Art. 308, Revised Penal Code, not robbery with the use of violence against or
intimidation of a person under par. 5, Art. 294 Revised Penal Code. As the trial court itself
noted, on the basis of Patino's testimony, the taking of the ring of Dr. Chua was merely an
afterthought. The force employed in the killing of Dr. Chua has no bearing on the taking of his
ring.
Gulinao's contention in his fourth assignment of error that there was no proof of intent to gain in
the taking of Dr. Chua's car is bereft of merit. Intent to gain, being an internal act, is presumed
from the unlawful taking of the car. This presumption was unrebutted.
IN VIEW OF THE FOREGOING, the appealed Decision dated Nov. 23,1987, with respect to the
cases for "Illegal Possession of Firearm with Murder" (Crim. Case No. 8016-V-87) and
"Carnapping" (Crim. Case No. 8048-V-87) is AFFIRMED in toto, it being in accordance with the
law and evidence.
With respect to the case for "Robbery" (Crim. Case No. 8017V- 871), par. 2 of the dispositive
portion of the appealed Decision is MODIFIED to the effect that Gulinao is convicted of the crime
of Theft and sentenced to suffer the indeterminate penalty of 3 years, 6 months and 21 days to
4 years, 9 months and 10 days of prision correccional as minimum and 7 years, 4 months and 1
day to 8 years and 8 months of prision mayor, as maximum.
SO ORDERED.

VALENZUELA VS PEOPLE
This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner
effectively concedes having performed the felonious acts imputed against him, but instead
insists that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on a common theory
expounded in two well-known decisions
[1]
rendered decades ago by the Court of Appeals,
upholding the existence of frustrated theft of which the accused in both cases were found guilty.
However, the rationale behind the rulings has never been affirmed by this Court.

As far as can be told,
[2]
the last time this Court extensively considered whether an
accused was guilty of frustrated or consummated theft was in 1918, in People v. Adiao.
[3]
A
more cursory

treatment of the question was followed in 1929, in People v. Sobrevilla,
[4]
and in 1984,
in Empelis v. IAC.
[5]
This petition now gives occasion for us to finally and fully measure if or
how frustrated theft is susceptible to commission under the Revised Penal Code.

I.

The basic facts are no longer disputed before us. The case stems from an
Information
[6]
charging petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon)
with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were
sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex
along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his post at
the open parking area of the supermarket. Lago saw petitioner, who was wearing an
identification card with the mark Receiving Dispatching Unit (RDU), hauling a push cart with
cases of detergent of the well-known Tide brand. Petitioner unloaded these cases in an open
parking space, where Calderon was waiting. Petitioner then returned inside the supermarket,
and after five (5) minutes, emerged with more cartons of Tide Ultramatic and again unloaded
these boxes to the same area in the open parking space.
[7]




Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and
directed it towards the parking space where Calderon was waiting. Calderon loaded the cartons
of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago,
who proceeded to stop the taxi as it was leaving the open parking area. When Lago asked
petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot,
but Lago fired a warning shot to alert his fellow security guards of the incident. Petitioner and
Calderon were apprehended at the scene, and the stolen merchandise recovered.
[8]
The filched
items seized from the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25
grams, and three (3) additional cases of detergent, the goods with an aggregate value
of P12,090.00.
[9]


Petitioner and Calderon were first brought to the SM security office before they were
transferred on the same day to the Baler Station II of the Philippine National Police, Quezon
City, for investigation. It appears from the police investigation records that apart from petitioner
and Calderon, four (4) other persons were apprehended by the security guards at the scene and
delivered to police custody at the Baler PNP Station in connection with the incident. However,
after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and
Calderon were charged with theft by the Assistant City Prosecutor, in Informations prepared
on 20 May 1994, the day after the incident.
[10]


After pleading not guilty on arraignment, at the trial, petitioner and Calderon both
claimed having been innocent bystanders within the vicinity of the Super Sale Club on the
afternoon of 19 May 1994 when they were haled by Lago and his fellow security guards after a
commotion and brought to the Baler PNP Station. Calderon alleged that on the afternoon of the
incident, he was at the Super Sale Club to withdraw from his ATM account, accompanied by his
neighbor, Leoncio Rosulada.
[11]
As the queue for the ATM was long, Calderon and Rosulada
decided to buy snacks inside the supermarket. It was
while they were eating that they heard the gunshot fired by
Lago, leading them to head out of the building to check what was transpiring. As they
were outside, they were suddenly grabbed by a security guard, thus commencing their
detention.
[12]
Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio
Valenzuela,
[13]
had been at the parking lot, walking beside the nearby BLISS complex and
headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot.
The gunshot caused him and the other people at the scene to start running, at which point he
was apprehended by Lago and brought to the security office. Petitioner claimed he was detained
at the security office until around 9:00 p.m., at which time he and the others were brought to
the Baler Police Station. At the station, petitioner denied having stolen the cartons of detergent,
but he was detained overnight, and eventually brought to the prosecutors office where he was
charged with theft.
[14]
During petitioners cross-examination, he admitted that he had been
employed as a bundler of GMS Marketing, assigned at the supermarket though not at SM.
[15]


In a Decision
[16]
promulgated on 1 February 2000, the Regional Trial Court (RTC)
of Quezon City, Branch 90, convicted both petitioner and Calderon of the crime of consummated
theft. They were sentenced to an indeterminate prison term of two (2) years of prision
correccional as minimum to seven (7) years of prision mayor as maximum.
[17]
The RTC found
credible the testimonies of the prosecution witnesses and established the convictions on the
positive identification of the accused as perpetrators of the crime.

Both accused filed their respective Notices of Appeal,
[18]
but only petitioner filed a
brief
[19]
with the Court of Appeals, causing the appellate court to deem Calderons appeal as
abandoned and consequently dismissed. Before the Court of Appeals, petitioner argued that he
should only be convicted of frustrated theft since at the time he was apprehended, he was never
42

placed in a position to freely dispose of the articles stolen.
[20]
However, in its Decision dated 19
June 2003,
[21]
the Court of Appeals rejected this contention and affirmed petitioners
conviction.
[22]
Hence the present Petition for Review,
[23]
which expressly seeks that petitioners
conviction be modified to only of Frustrated Theft.
[24]


Even in his appeal before the Court of Appeals, petitioner effectively conceded both his
felonious intent and his actual participation in the theft of several cases of detergent with a total
value of P12,090.00 of which he was charged.
[25]
As such, there is no cause for the Court to
consider a factual scenario other than that presented by the prosecution, as affirmed by the RTC
and the Court of Appeals. The only question to consider is whether under the given facts, the
theft should be deemed as consummated or merely frustrated.

II.

In arguing that he should only be convicted of frustrated theft, petitioner cites
[26]
two
decisions rendered many years ago by the Court of Appeals: People v. Dio
[27]
and People
v. Flores.
[28]
Both decisions elicit the interest of this Court, as they modified trial court
convictions from consummated to frustrated theft and involve a factual milieu that bears
similarity to the present case. Petitioner invoked the same rulings in his appeal to the Court of
Appeals, yet the appellate court did not expressly consider the import of the rulings when it
affirmed the conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to
the Dio and Flores rulings since they have not yet been expressly adopted as precedents by
this Court. For whatever reasons, the occasion to define or debunk the crime of frustrated theft
has not come to pass before us. Yet despite the silence on our part, Dio andFlores have
attained a level of renown reached by very few other appellate court rulings. They are
comprehensively discussed in the most popular of our criminal law annotations,
[29]
and studied
in criminal law classes as textbook examples of frustrated crimes or even as definitive of
frustrated theft.

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios
that populate criminal law exams more than they actually occur in real life. Indeed, if we finally
say that Dio and Flores are doctrinal, such conclusion could profoundly influence a multitude of
routine theft prosecutions, including commonplace shoplifting. Any scenario that involves the
thief having to exit with the stolen property through a supervised egress, such as a supermarket
checkout counter or a parking area pay booth, may easily call for the application
of Dioand Flores. The fact that lower courts have not hesitated to lay down convictions for
frustrated theft further validates that Dio and Flores and the theories offered therein on
frustrated theft have borne some weight in our jurisprudential system. The time is thus ripe for
us to examine whether those theories are correct and should continue to influence prosecutors
and judges in the future.
III.

To delve into any extended analysis of Dio and Flores, as well as the specific issues
relative to frustrated theft, it is necessary to first refer to the basic rules on the three stages of
crimes under our Revised Penal Code.
[30]


Article 6 defines those three stages, namely the consummated, frustrated and attempted
felonies. A felony is consummated when all the elements necessary for its execution and
accomplishment are present. It is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence but which, nevertheless, do not
produce it by reason of causes independent of the will of the perpetrator. Finally, it is
attempted when the offender commences the commission of a felony directly by overt acts, and
does not perform all the acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance.

Each felony under the Revised Penal Code has a subjective phase, or that portion of the
acts constituting the crime included between the act which begins the commission of the crime
and the last act performed by the offender which, with prior acts, should result in the
consummated crime.
[31]
After that point has been breached, the subjective phase ends and the
objective phase begins.
[32]
It has been held that if the offender never passes the subjective
phase of the offense, the crime is merely attempted.
[33]
On the other hand, the subjective phase
is completely passed in case of frustrated crimes, for in such instances, [s]ubjectively the crime
is complete.
[34]


Truly, an easy distinction lies between consummated and frustrated felonies on one
hand, and attempted felonies on the other. So long as the offender fails to complete all the acts
of execution despite commencing the commission of a felony, the crime is undoubtedly in the
attempted stage. Since the specific acts of execution that define each crime under the Revised
Penal Code are generally enumerated in the code itself, the task of ascertaining whether a crime
is attempted only would need to compare the acts actually performed by the accused as against
the acts that constitute the felony under the Revised Penal Code.

In contrast, the determination of whether a crime is frustrated or consummated
necessitates an initial concession that all of the acts of execution have been performed by the
offender. The critical distinction instead is whether the felony itself was actually produced by the
acts of execution. The determination of whether the felony was produced after all the acts of
execution had been performed hinges on the particular statutory definition of the felony. It is
the statutory definition that generally furnishes the elements of each crime under the Revised
Penal Code, while the elements in turn unravel the particular requisite acts of execution and
accompanying criminal intent.

The long-standing Latin maxim actus non facit reum, nisi mens sit rea supplies an
important characteristic of a crime, that ordinarily, evil intent must unite with an unlawful act
for there to be a crime, and accordingly, there can be no crime when the criminal mind is
wanting.
[35]
Accepted in this jurisdiction as material in crimes mala in se,
[36]
mens rea has been
defined before as a guilty mind, a guilty or wrongful purpose or criminal intent,
[37]
and
essential for criminal liability.
[38]
It follows that the statutory definition of our mala in se crimes
must be able to supply what the mens rea of the crime is, and indeed the U.S. Supreme Court
has comfortably held that a criminal law that contains no mens rea requirement infringes on
constitutionally protected rights.
[39]
The criminal statute must also provide for the overt acts
that constitute the crime. For a crime to exist in our legal law, it is not enough that mens rea be
shown; there must also be an actus reus.
[40]




It is from the actus reus and the mens rea, as they find expression in the criminal
statute, that the felony is produced. As a postulate in the craftsmanship of constitutionally
sound laws, it is extremely preferable that the language of the law expressly provide when the
felony is produced. Without such provision, disputes would inevitably ensue on the elemental
question whether or not a crime was committed, thereby presaging the undesirable and legally
dubious set-up under which the judiciary is assigned the legislative role of defining crimes.
Fortunately, our Revised Penal Code does not suffer from such infirmity. From the statutory
definition of any felony, a decisive passage or term is embedded which attests when the felony
is produced by the acts of execution. For example, the statutory definition of murder or
homicide expressly uses the phrase shall kill another, thus making it clear that the felony is
produced by the death of the victim, and conversely, it is not produced if the victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal
Code, its elements are spelled out as follows:

Art. 308. Who are liable for theft. Theft is committed by any
person who, with intent to gain but without violence against or intimidation of
43

persons nor force upon things, shall take personal property of another
without the latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to
deliver the same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the
property of another, shall remove or make use of the
fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field
where trespass is forbidden or which belongs to another
and without the consent of its owner, shall hunt or fish
upon the same or shall gather cereals, or other forest or
farm products.

Article 308 provides for a general definition of theft, and three alternative and highly
idiosyncratic means by which theft may be committed.
[41]
In the present discussion, we need to
concern ourselves only with the general definition since it was under it that the prosecution of
the accused was undertaken and sustained. On the face of the definition, there is only one
operative act of execution by the actor involved in theft the taking of personal property of
another. It is also clear from the provision that in order that such taking may be qualified as
theft, there must further be present the descriptive circumstances that the taking was with
intent to gain; without force upon things or violence against or intimidation of persons; and it
was without the consent of the owner of the property.

Indeed, we have long recognized the following elements of theft as provided for in
Article 308 of the Revised Penal Code, namely: (1) that there be taking of personal property;
(2) that said property belongs to another; (3) that the taking be done with intent to gain; (4)
that the taking be done without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of persons or force upon
things.
[42]


In his commentaries, Judge Guevarra traces the history of the definition of theft, which
under early Roman law as defined by Gaius, was so broad enough as to encompass any kind of
physical handling of property belonging to another against the will of the owner,
[43]
a definition
similar to that by Paulus that a thief handles (touches, moves) the property of
another.
[44]
However, with the Institutes of Justinian, the idea had taken hold that more than
mere physical handling, there must further be an intent of acquiring gain from the object, thus:
[f]urtum est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus
possessinisve.
[45]
This requirement ofanimo lucrandi, or intent to gain, was maintained in both
the Spanish and Filipino penal laws, even as it has since been abandoned in Great Britain.
[46]




In Spanish law, animo lucrandi was compounded with apoderamiento, or unlawful
taking, to characterize theft. Justice Regalado notes that the concept of apoderamiento once
had a controversial interpretation and application. Spanish law had already discounted the belief
that mere physical taking was constitutive of apoderamiento, finding that it had to be coupled
with the intent to appropriate the object in order to constitute apoderamiento; and to
appropriate means to deprive the lawful owner of the thing.
[47]
However, a conflicting line of
cases decided by the Court of Appeals ruled, alternatively, that there must be permanency in
the taking
[48]
or an intent to permanently deprive the owner of the stolen property;
[49]
or that
there was no need for permanency in the taking or in its intent, as the mere temporary
possession by the offender or disturbance of the proprietary rights of the owner already
constituted apoderamiento.
[50]
Ultimately, as Justice Regalado notes, the Court adopted the
latter thought that there was no need of an intent to permanently deprive the owner of his
property to constitute an unlawful taking.
[51]





So long as the descriptive circumstances that qualify the taking are present,
including animo lucrandi and apoderamiento, the completion of the operative act that is the
taking of personal property of another establishes, at least, that the transgression went beyond
the attempted stage. As applied to the present case, the moment petitioner obtained physical
possession of the cases of detergent and loaded them in the pushcart, such seizure motivated
by intent to gain, completed without need to inflict violence or intimidation against persons nor
force upon things, and accomplished without the consent of the SM Super Sales Club, petitioner
forfeited the extenuating benefit a conviction for only attempted theft would have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are
obliged to apply Article 6 of the Revised Penal Code to ascertain the answer. Following that
provision, the theft would have been frustrated only, once the acts committed by petitioner, if
ordinarily sufficient to produce theft as a consequence, do not produce [such theft] by reason
of causes independent of the will of the perpetrator. There are clearly two determinative factors
to consider: that the felony is not produced, and that such failure is due to causes
independent of the will of the perpetrator. The second factor ultimately depends on the evidence
at hand in each particular case. The first, however, relies primarily on a doctrinal definition
attaching to the individual felonies in the Revised Penal Code
[52]
as to when a particular felony is
not produced, despite the commission of all the acts of execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary
to inquire as to how exactly is the felony of theft produced. Parsing through the statutory
definition of theft under Article 308, there is one apparent answer provided in the language of
the law that theft is already produced upon the tak[ing of] personal property of another
without the latters consent.

U.S. v. Adiao
[53]
apparently supports that notion. Therein, a customs inspector was
charged with theft after he abstracted a leather belt from the baggage of a foreign national and
secreted the item in his desk at the Custom House. At no time was the accused able to get the
merchandise out of the Custom House, and it appears that he was under observation during
the entire transaction.
[54]
Based apparently on those two circumstances, the trial court had
found him guilty, instead, of frustrated theft. The Court reversed, saying that neither
circumstance was decisive, and holding instead that the accused was guilty of consummated
theft, finding that all the elements of the completed crime of theft are present.
[55]
In support
of its conclusion that the theft was consummated, the Court cited three (3) decisions of the
Supreme Court of Spain, the discussion of which we replicate below:


The defendant was charged with the theft of some fruit from the land
of another. As he was in the act of taking the fruit[,] he was seen by a
policeman, yet it did not appear that he was at that moment caught by the
policeman but sometime later. The court said: "[x x x] The trial court did not
err [x x x ] in considering the crime as that of consummated theft instead of
frustrated theft inasmuch as nothing appears in the record showing that the
policemen who saw the accused take the fruit from the adjoining land
arrested him in the act and thus prevented him from taking full possession of
the thing stolen and even its utilization by him for an interval of time."
(Decision of the Supreme Court of Spain, October 14, 1898.)

Defendant picked the pocket of the offended party while the latter
was hearing mass in a church. The latter on account of the solemnity of the
44

act, although noticing the theft, did not do anything to prevent it.
Subsequently, however, while the defendant was still inside the church, the
offended party got back the money from the defendant. The court said that
the defendant had performed all the acts of execution and considered the
theft as consummated. (Decision of the Supreme Court of Spain, December
1, 1897.)

The defendant penetrated into a room of a certain house and by
means of a key opened up a case, and from the case took a small box, which
was also opened with a key, from which in turn he took a purse containing
461 reales and 20 centimos, and then he placed the money over the cover of
the case; just at this moment he was caught by two guards who were
stationed in another room near-by. The court considered this as
consummated robbery, and said: "[x x x] The accused [x x x] having
materially taken possession of the money from the moment he took it from
the place where it had been, and having taken it with his hands with intent to
appropriate the same, he executed all the acts necessary to constitute the
crime which was thereby produced; only the act of making use of the thing
having been frustrated, which, however, does not go to make the elements
of the consummated crime." (Decision of the Supreme Court of Spain, June
13, 1882.)
[56]



It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein,
that the criminal actors in all these cases had been able to obtain full possession of the personal
property prior to their apprehension. The interval between the commission of the acts of theft
and the apprehension of the thieves did vary, from sometime later in the 1898 decision; to the
very moment the thief had just extracted the money in a purse which had been stored as it was
in the 1882 decision; and before the thief had been able to spirit the item stolen from the
building where the theft took place, as had happened in Adiao and the 1897 decision. Still, such
intervals proved of no consequence in those cases, as it was ruled that the thefts in each of
those cases was consummated by the actual possession of the property belonging to another.

In 1929, the Court was again confronted by a claim that an accused was guilty only of
frustrated rather than consummated theft. The case is People v. Sobrevilla,
[57]
where the
accused, while in the midst of a crowd in a public market, was already able to abstract a
pocketbook from the trousers of the victim when the latter, perceiving the theft, caught hold of
the [accused]s shirt-front, at the same time shouting for a policeman; after a struggle, he
recovered his pocket-book and let go of the defendant, who was afterwards caught by a
policeman.
[58]
In rejecting the contention that only frustrated theft was established, the Court
simply said, without further comment or elaboration:

We believe that such a contention is groundless. The [accused]
succeeded in taking the pocket-book, and that determines the crime of
theft. If the pocket-book was afterwards recovered, such recovery does
not affect the [accuseds] criminal liability, which arose from the
[accused] having succeeded in taking the pocket-book.
[59]


If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases
cited in the latter, in that the fact that the offender was able to succeed in obtaining physical
possession of the stolen item, no matter how momentary, was able to consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the
position of petitioner in this case. Yet to simply affirm without further comment would be
disingenuous, as there is another school of thought on when theft is consummated, as reflected
in the Dio and Flores decisions.

Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15
years before Flores. The accused therein, a driver employed by the United States Army, had
driven his truck into the port area of the South Harbor, to unload a truckload of materials to
waiting U.S. Army personnel. After he had finished unloading, accused drove away his truck
from the Port, but as he was approaching a checkpoint of the Military Police, he was stopped by
an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later
contended that he had been stopped by four men who had loaded the boxes with the agreement
that they were to meet him and retrieve the rifles after he had passed the checkpoint. The trial
court convicted accused of consummated theft, but the Court of Appeals modified the
conviction, holding instead that only frustrated theft had been committed.

In doing so, the appellate court pointed out that the evident intent of the accused was
to let the boxes of rifles pass through the checkpoint, perhaps in the belief that as the truck
had already unloaded its cargo inside the depot, it would be allowed to pass through the check
point without further investigation or checking.
[60]
This point was deemed material and
indicative that the theft had not been fully produced, for the Court of Appeals pronounced that
the fact determinative of consummation is the ability of the thief to dispose freely of the
articles stolen, even if it were more or less momentary.
[61]
Support for this proposition was
drawn from a decision of the Supreme Court of Spain dated 24 January 1888 (1888 decision),
which was quoted as follows:

Considerando que para que el apoderamiento de la cosa sustraida sea
determinate de la consumacion del delito de hurto es preciso que so haga en
circunstancias tales que permitan al sustractor la libre disposicion de aquella,
siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el
concepto del delito de hurto, no puede decirse en realidad que se haya producido
en toda su extension, sin materializar demasiado el acto de tomar la cosa
ajena.
[62]


Integrating these considerations, the Court of Appeals then concluded:




This court is of the opinion that in the case at bar, in order to make
the booty subject to the control and disposal of the culprits, the articles
stolen must first be passed through the M.P. check point, but since the
offense was opportunely discovered and the articles seized after all the acts
of execution had been performed, but before the loot came under the final
control and disposal of the looters, the offense can not be said to have been
fully consummated, as it was frustrated by the timely intervention of the
guard. The offense committed, therefore, is that of frustrated theft.
[63]


Dio thus laid down the theory that the ability of the actor to freely dispose of the
items stolen at the time of apprehension is determinative as to whether the theft is
consummated or frustrated. This theory was applied again by the Court of Appeals some 15
years later, in Flores, a case which according to the division of the court that decided it, bore
no substantial variance between the circumstances [herein] and in [Dio].
[64]
Such conclusion
is borne out by the facts in Flores. The accused therein, a checker employed by the Luzon
Stevedoring Company, issued a delivery receipt for one empty sea van to the truck driver who
had loaded the purportedly empty sea van onto his truck at the terminal of the stevedoring
company. The truck driver proceeded to show the delivery receipt to the guard on duty at the
gate of the terminal. However, the guards insisted on inspecting the van, and discovered that
the empty sea van had actually contained other merchandise as well.
[65]
The accused was
prosecuted for theft qualified by abuse of confidence, and found himself convicted of the
consummated crime. Before the Court of Appeals, accused argued in the alternative that he was
guilty only of attempted theft, but the appellate court pointed out that there was no intervening
45

act of spontaneous desistance on the part of the accused that literally frustrated the theft.
However, the Court of Appeals, explicitly relying on Dio, did find that the accused was guilty
only of frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found no substantial variance
between Dio and Flores then before it. The prosecution in Flores had sought to distinguish that
case from Dio, citing a traditional ruling which unfortunately was not identified in the decision
itself. However, the Court of Appeals pointed out that the said traditional ruling was qualified
by the words is placed in a situation where [the actor] could dispose of its contents at
once.
[66]
Pouncing on this qualification, the appellate court noted that [o]bviously, while the
truck and the van were still within the compound, the petitioner could not have disposed of the
goods at once. At the same time, the Court of Appeals conceded that [t]his is entirely
different from the case where a much less bulk and more common thing as money was the
object of the crime, where freedom to dispose of or make use of it is palpably less
restricted,
[67]
though no further qualification was offered what the effect would have been had
that alternative circumstance been present instead.




Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as
to whether the crime of theft was produced is the ability of the actor to freely dispose of the
articles stolen, even if it were only momentary. Such conclusion was drawn from an 1888
decision of the Supreme Court of Spain which had pronounced that in determining whether theft
had been consummated, es preciso que so haga en circunstancias tales que permitan al
sustractor de aquella, siquiera sea mas o menos momentaneamente. The qualifier siquiera sea
mas o menos momentaneamente proves another important consideration, as it implies that if
the actor was in a capacity to freely dispose of the stolen items before apprehension, then the
theft could be deemed consummated. Such circumstance was not present in
either Dio orFlores, as the stolen items in both cases were retrieved from the actor before they
could be physically extracted from the guarded compounds from which the items were filched.
However, as implied in Flores, the character of the item stolen could lead to a different
conclusion as to whether there could have been free disposition, as in the case where the
chattel involved was of much less bulk and more common x x x, [such] as money x x x.
[68]


In his commentaries, Chief Justice Aquino makes the following pointed observation on
the import of the Dio ruling:




There is a ruling of the Court of Appeals that theft is consummated
when the thief is able to freely dispose of the stolen articles even if it were
more or less momentary. Or as stated in another case[
[69]
], theft is
consummated upon the voluntary and malicious taking of property belonging
to another which is realized by the material occupation of the thing whereby
the thief places it under his control and in such a situation that he
could dispose of it at once. This ruling seems to have been based on Viadas
opinion that in order the theft may be consummated, es preciso que se haga
en circumstancias x x x [
[70]
]
[71]


In the same commentaries, Chief Justice Aquino, concluding from Adiao and other
cases, also states that [i]n theft or robbery the crime is consummated after the accused had
material possession of the thing with intent to appropriate the same, although his act of making
use of the thing was frustrated.
[72]


There are at least two other Court of Appeals rulings that are at seeming variance with
the Dio and Flores rulings. People v. Batoon
[73]
involved an accused who filled a container with
gasoline from a petrol pump within view of a police detective, who followed the accused onto a
passenger truck where the arrest was made. While the trial court found the accused guilty of
frustrated qualified theft, the Court of Appeals held that the accused was guilty of consummated
qualified theft, finding that [t]he facts of the cases of U.S. [v.] Adiao x x x andU.S. v.
Sobrevilla x x x indicate that actual taking with intent to gain is enough to consummate the
crime of theft.
[74]


In People v. Espiritu,
[75]
the accused had removed nine pieces of hospital linen from a
supply depot and loaded them onto a truck. However, as the truck passed through the
checkpoint, the stolen items were discovered by the Military Police running the checkpoint. Even
though those facts clearly admit to similarity with those in Dio, the Court of Appeals held that
the accused were guilty of consummated theft, as the accused were able to take or get hold of
the hospital linen and that the only thing that was frustrated, which does not constitute any
element of theft, is the use or benefit that the thieves expected from the commission of the
offense.
[76]


In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that
[w]hen the meaning of an element of a felony is controversial, there is bound to arise different
rulings as to the stage of execution of that felony.
[77]
Indeed, we can discern from this survey
of jurisprudence that the state of the law insofar as frustrated theft is concerned is muddled. It
fact, given the disputed foundational basis of the concept of frustrated theft itself, the question
can even be asked whether there is really such a crime in the first place.


IV.

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and
not consummated, theft. As we undertake this inquiry, we have to reckon with the import of this
Courts 1984 decision in Empelis v. IAC.
[78]


As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons
in the premises of his plantation, in the act of gathering and tying some coconuts. The accused
were surprised by the owner within the plantation as they were carrying with them the coconuts
they had gathered. The accused fled the scene, dropping the coconuts they had seized, and
were subsequently arrested after the owner reported the incident to the police. After trial, the
accused were convicted of qualified theft, and the issue they raised on appeal was that they
were guilty only of simple theft. The Court affirmed that the theft was qualified, following Article
310 of the Revised Penal Code,
[79]
but further held that the accused were guilty only of
frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft was
consummated or frustrated was raised by any of the parties. What does appear, though, is that
the disposition of that issue was contained in only two sentences, which we reproduce in full:

However, the crime committed is only frustrated qualified theft
because petitioners were not able to perform all the acts of execution which
should have produced the felony as a consequence. They were not able to
carry the coconuts away from the plantation due to the timely arrival of the
owner.
[80]


No legal reference or citation was offered for this averment, whether Dio, Flores or the
Spanish authorities who may have bolstered the conclusion. There are indeed evident problems
with this formulation in Empelis.

Empelis held that the crime was only frustrated because the actors were not able to
perform all the acts of execution which should have produced the felon as a
46

consequence.
[81]
However, per Article 6 of the Revised Penal Code, the crime is frustrated
when the offender performs all the acts of execution, though not producing the felony as a
result. If the offender was not able to perform all the acts of execution, the crime is attempted,
provided that the non-performance was by reason of some cause or accident other than
spontaneous desistance. Empelis concludes that the crime was

frustrated because not all of the acts of execution were performed due to the timely arrival of
the owner. However, following Article 6 of the Revised Penal Code, these facts should elicit the
conclusion that the crime was only attempted, especially given that the acts were not performed
because of the timely arrival of the owner, and not because of spontaneous desistance by the
offenders.

For these reasons, we cannot attribute weight to Empelis as we consider the present
petition. Even if the two sentences we had cited actually aligned with the definitions provided in
Article 6 of the Revised Penal Code, such passage bears no reflection that it is the product of the
considered evaluation of the relevant legal or jurisprudential thought. Instead, the passage is
offered as if it were sourced from an indubitable legal premise so settled it required no further
explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority
on theft. Indeed, we cannot see how Empeliscan contribute to our present debate, except for
the bare fact that it proves that the Court had once deliberately found an accused guilty of
frustrated theft. Even if Empelis were considered as a precedent for frustrated theft, its doctrinal
value is extremely compromised by the erroneous legal premises that inform it, and also by the
fact that it has not been entrenched by subsequent reliance.




Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft
is viable in this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated
theft, it cannot present any efficacious argument to persuade us in this case. Insofar
asEmpelis may imply that convictions for frustrated theft are beyond cavil in this jurisdiction,
that decision is subject to reassessment.

V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de
Espaa was then in place. The definition of the crime of theft, as provided then, read as follows:

Son reos de hurto:

1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las
personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
voluntad de su dueo.

2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo
se la apropriaren co intencin de lucro.

3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao
causado, salvo los casos previstos en los artculos 606, nm. 1.0; 607,
nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo
prrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme
Court decisions were handed down. However, the said code would be revised again in 1932, and
several times thereafter. In fact, under the Codigo Penal Espaol de 1995, the crime of theft is
now simply defined as [e]l que, con nimo de lucro, tomare las cosas muebles ajenas sin la
voluntad de su dueo ser castigado
[82]


Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, la libre
disposicion of the property is not an element or a statutory characteristic of the crime. It does
appear that the principle originated and perhaps was fostered in the realm of Spanish
jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his 1926
commentaries on the 1870 Codigo Penal de Espaa. Therein, he raised at least three questions
for the reader whether the crime of frustrated or consummated theft had occurred. The passage
cited in Diowas actually utilized by Viada to answer the question whether frustrated or
consummated theft was committed [e]l que en el momento mismo de apoderarse de la cosa
ajena, vindose sorprendido, la arroja al suelo.
[83]
Even as the answer was as stated in Dio,
and was indeed derived from the 1888 decision of the Supreme Court of Spain, that decisions
factual predicate occasioning the statement was apparently very different from Dio, for it
appears that the 1888 decision involved an accused who was surprised by the employees of a
haberdashery as he was abstracting a layer of clothing off a mannequin, and who then
proceeded to throw away the garment as he fled.
[84]


Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites
decisions of the Supreme Court of Spain that have held to that effect.
[85]
A few decades later,
the esteemed Eugenio Cuello Caln pointed out the inconsistent application by the Spanish
Supreme Court with respect to frustrated theft.

Hay frustracin cuando los reos fueron sorprendidos por las
guardias cuando llevaban los sacos de harino del carro que los conducia a
otro que tenan preparado, 22 febrero 1913; cuando el resultado no tuvo
efecto por la intervencin de la policia situada en el local donde se realiz la
sustraccin que impidi pudieran los reos disponer de lo sustrado, 30 de
octubre 1950. Hay "por lo menos" frustracin, si existe apoderamiento, pero
el culpale no llega a disponer de la cosa, 12 abril 1930; hay frustracin "muy
prxima" cuando el culpable es detenido por el perjudicado acto seguido de
cometer la sustraccin, 28 febrero 1931. Algunos fallos han considerado la
existencia de frustracin cuando, perseguido el culpable o sorprendido en el
momento de llevar los efectos hurtados, los abandona, 29 mayo 1889, 22
febrero 1913, 11 marzo 1921; esta doctrina no es admissible, stos,
conforme a lo antes expuesto, son hurtos consumados.
[86]



Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually
possible:

La doctrina hoy generalmente sustentada considera que el hurto se
consuma cuando la cosa queda de hecho a la disposicin del agente. Con
este criterio coincide la doctrina sentada ltimamente porla jurisprudencia
espaola que generalmente considera consumado el hurto cuando el culpable
coge o aprehende la cosa y sta quede por tiempo ms o menos duradero
bajo su poder. El hecho de que ste pueda aprovecharse o no de lo hurtado
es indiferente. El delito no pierde su carcter de consumado aunque la cosa
hurtada sea devuelta por el culpable o fuere recuperada. No se concibe la
frustracin, pues es muy dificil que el que hace cuanto es necesario para la
consumacin del hurto no lo consume efectivamente, los raros casos que
nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son
verdaderos delitos consumados.
[87]
(Emphasis supplied)


47

Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content
with replicating the Spanish Supreme Court decisions on the matter, Cuello Caln actually set
forth his own thought that questioned whether theft could truly be frustrated, since pues es
muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume
efectivamente. Otherwise put, it would be difficult to foresee how the execution of all the acts
necessary for the completion of the crime would not produce the effect of theft.

This divergence of opinion convinces us, at least, that there is no weighted force in
scholarly thought that obliges us to accept frustrated theft, as proposed in Dio and Flores. A
final ruling by the Court that there is no crime of frustrated theft in this jurisdiction will not lead
to scholastic pariah, for such a submission is hardly heretical in light of Cuello Calns position.

Accordingly, it would not be intellectually disingenuous for the Court to look at the
question from a fresh perspective, as we are not bound by the opinions of the respected Spanish
commentators, conflicting as they are, to accept that theft is capable of commission in its
frustrated stage. Further, if we ask the question whether there is a mandate of statute or
precedent that must compel us to adopt the Dio andFlores doctrines, the answer has to be in
the negative. If we did so, it would arise not out of obeisance to an inexorably higher command,
but from the exercise of the function of statutory interpretation that comes as part and parcel of
judicial review, and a function that allows breathing room for a variety of theorems in
competition until one is ultimately adopted by this Court.
V.

The foremost predicate that guides us as we explore the matter is that it lies in the
province of the legislature, through statute, to define what constitutes a particular crime in this
jurisdiction. It is the legislature, as representatives of the sovereign people, which determines
which acts or combination of acts are criminal in nature. Judicial interpretation of penal laws
should be aligned with what was the evident legislative intent, as expressed primarily in the
language of the law as it defines the crime. It is Congress, not the courts, which is to define a
crime, and ordain its punishment.
[88]
The courts cannot arrogate the power to introduce a new
element of a crime which was unintended by the legislature, or redefine a crime in a manner
that does not hew to the statutory language. Due respect for the prerogative of Congress in
defining crimes/felonies constrains the Court to refrain from a broad interpretation of penal laws
where a narrow interpretation is appropriate. The Court must take heed of language,
legislative history and purpose, in order to strictly determine the wrath and breath of the
conduct the law forbids.
[89]


With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability
of the offender to freely dispose of the property stolen is not a constitutive element of the crime
of theft. It finds no support or extension in Article 308, whether as a descriptive or operative
element of theft or as the mens rea or actus reus of the felony. To restate what this Court has
repeatedly held: the elements of the crime of theft as provided for in Article 308 of the Revised
Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to
another; (3) that the taking be done with intent to gain; (4) that the taking be done without the
consent of the owner; and (5) that the taking be accomplished without the use of violence
against or intimidation of persons or force upon things.
[90]


Such factor runs immaterial to the statutory definition of theft, which is the taking,
with intent to gain, of personal property of another without the latters consent. While
the Dio/Flores dictum is considerate to the mindset of the offender, the statutory definition of
theft considers only the perspective of intent to gain on the part of the offender, compounded by
the deprivation of property on the part of the victim.

For the purpose of ascertaining whether theft is susceptible of commission in the
frustrated stage, the question is again, when is the crime of theft produced? There would be all
but certain unanimity in the position that theft is produced when there is deprivation of personal
property due to its taking by one with intent to gain. Viewed from that perspective, it is
immaterial to the product of the felony that the offender, once having committed all the acts of
execution for theft, is able or unable to freely dispose of the property stolen since the
deprivation from the owner alone has already ensued from such acts of execution. This
conclusion is reflected in Chief Justice Aquinos commentaries, as earlier cited, that [i]n theft or
robbery the crime is consummated after the accused had material possession of the thing with
intent to appropriate the same, although his act of making use of the thing was frustrated.
[91]


It might be argued, that the ability of the offender to freely dispose of the property
stolen delves into the concept of taking itself, in that there could be no true taking until the
actor obtains such degree of control over the stolen item. But even if this were correct, the
effect would be to downgrade the crime to its attempted, and not frustrated stage, for it would
mean that not all the acts of execution have not been completed, the taking not having been
accomplished. Perhaps this point could serve as fertile ground for future discussion, but our
concern now is whether there is indeed a crime of frustrated theft, and such consideration
proves ultimately immaterial to that question. Moreover, such issue will not apply to the facts of
this particular case. We are satisfied beyond reasonable doubt that the taking by the petitioner
was completed in this case. With intent to gain, he acquired physical possession of the stolen
cases of detergent for a considerable period of time that he was able to drop these off at a spot
in the parking lot, and long enough to load these onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed
complete from the moment the offender gains possession of the thing, even if he has no
opportunity to dispose of the same.
[92]
And long ago, we asserted in People v. Avila:
[93]


x x x [T]he most fundamental notion in the crime of theft is the taking of the
thing to be appropriated into the physical power of the thief, which idea is
qualified by other conditions, such as that the taking must be effected animo
lucrandi and without the consent of the owner; and it will be here noted that
the definition does not require that the taking should be effected against the
will of the owner but merely that it should be without his consent, a
distinction of no slight importance.
[94]


Insofar as we consider the present question, unlawful taking is most material in this
respect. Unlawful taking, which is the deprivation of ones personal property, is the element
which produces the felony in its consummated stage. At the same time, without unlawful taking
as an act of execution, the offense could only be attempted theft, if at all.

With these considerations, we can only conclude that under Article 308 of the Revised
Penal Code, theft cannot have a frustrated stage. Theft can only be attempted or consummated.

Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the
offenders therein obtained possession over the stolen items, the effect of the felony has been
produced as there has been deprivation of property. The presumed inability of the offenders to
freely dispose of the stolen property does not negate the fact that the owners have already been
deprived of their right to possession upon the completion of the taking.

Moreover, as is evident in this case, the adoption of the rule that the inability of the
offender to freely dispose of the stolen property frustrates the theft would introduce a
convenient defense for the accused which does not reflect any legislated intent,
[95]
since the
Court would have carved a viable means for offenders to seek a mitigated penalty under applied
circumstances that do not admit of easy classification. It is difficult to formulate definite
standards as to when a stolen item is susceptible to free disposal by the thief. Would this
depend on the psychological belief of the offender at the time of the commission of the crime, as
implied in Dio?



48


Or, more likely, the appreciation of several classes of factual circumstances such as
the size and weight of the property, the location of the property, the number and identity of
people present at the scene of the crime, the number and identity of people whom the offender
is expected to encounter upon fleeing with the stolen property, the manner in which the stolen
item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility or
edibility of the stolen item would come into account, relevant as that would be on whether such
property is capable of free disposal at any stage, even after the taking has been consummated.

All these complications will make us lose sight of the fact that beneath all the colorful
detail, the owner was indeed deprived of property by one who intended to produce such
deprivation for reasons of gain. For such will remain the presumed fact if frustrated theft were
recognized, for therein, all of the acts of execution, including the taking, have been completed.
If the facts establish the non-completion of the taking due to these peculiar circumstances, the
effect could be to downgrade the crime to the attempted stage, as not all of the acts of
execution have been performed. But once all these acts have been executed, the taking has
been completed, causing the unlawful deprivation of property, and ultimately the consummation
of the theft.

Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet
they do not align with the legislated framework of the crime of theft. The Revised Penal Code
provisions on theft have not been designed in such fashion as to accommodate said rulings.
Again, there is no language in Article 308 that expressly or impliedly allows that the free
disposition of the items stolen is in any way determinative of whether the crime of theft has
been produced. Dio itself did not rely on Philippine laws or jurisprudence to bolster its
conclusion, and the later Flores was ultimately content in relying on Dio alone for legal
support. These cases do not enjoy the weight of stare decisis, and even if they did, their
erroneous appreciation of our law on theft leave them susceptible to reversal. The same holds
true of Empilis, a regrettably stray decision which has not since found favor from this Court.

We thus conclude that under the Revised Penal Code, there is no crime of frustrated
theft. As petitioner has latched the success of his appeal on our acceptance of
the Dio and Flores rulings, his petition must be denied, for we decline to adopt said rulings in
our jurisdiction. That it has taken all these years for us to recognize that there can be no
frustrated theft under the Revised Penal Code does not detract from the correctness of this
conclusion. It will take considerable amendments to our Revised Penal Code in order that
frustrated theft may be recognized. Our deference to Viada yields to the higher reverence for
legislative intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.