Republic of the Philippines

SUPREME COURT
Manila
EN BANC
DECISION
April 17, 1959
G.R. No. L-11166
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EUGENIO OLAES, accused-appellant.
Acting Solicitor General Guillermo Torres and Solicitor Antonio M. Consing for appellee.
Pedro Magsalin for appellant.
Montemayor, J .:
Defendant-appellant Eugenio Olaes, together with Cosme Isip and Bienvenido Dayuta, who where then at large and five other men,
unidentified and also at large, were accused of the crime of attempted robbery with homicide and frustrated homicide before the
Court of First Instance of Rizal. Olaes was the only one who stood trial, after which he was found guilty of robbery with homicide
and frustrated homicide and sentenced as follows:
WHEREFORE, the accused Eugenio Olaes is hereby declared guilty of robbery with homicide and frustrated homicide defined and
penalized in Article 294, Case No. 1, Revised Penal Code. Although the crime was attended by the aggravating circumstances of
nocturnity and in band, in view of the attitude of the Chief Executive on death penalty, the accused is hereby sentenced to life
imprisonment, to indemnify the heirs of Maria Argame in the sum P6,000 without subsidiary imprisonment in case of insolvency,
and to pay the costs. In the service of his sentence, the accused should be credited with one-half of the period of preventive
imprisonment suffered by him January 24, 1955.
Because of the penalty imposed, the appeal of Olaes was taken directly to this Court.
The facts in this case as established by the evidence and found by the trial court are the following; Between 4:00 and 4:30 a. m.
of November 9, 1954, Bus No. 64 of the Laguna Transportation Company, driven by one Feliciano Limosnero, with one
conductor, left the town plaza of Bian Laguna, bound for Manila. Among the passengers were Mariano Inobio, a
resident of Bo. Almanza, Las Pias, Rizal, Maria Argame and Elena Loyola. When the bus reached the curve in Bo.
Almanza, Las Pias, a man later identified by passenger Inobio as Cosme Isip, holding a rifle or carbine, suddenly
appeared on the right side of the road and signalled the bus to stop. Limosnero, taking him for a prospective
passenger, applied his brakes and slowed down, but before the vehicle could come to a complete stop, seven other
men, also carrying guns, such as, garands or carbines, emerged from the left side of the road. Isip shouted, Para,
pasok! The appearance of these armed men on both sides of the road must have affected the equanimity of
Limosnero on the wheel, and he must have forgotten to press the clutch with his foot, resulting in the engine stalling
or stopping. Probably convinced that the eight men were not passengers but were bent on holding-up the bus and
robbing the passengers, Limosnero started the engine and sped away from the place despite the shouts of the men on
both sides of the road for him to stop. Those men immediately commenced firing at the bus which was riddled with
bullets.
One of the shots grazed the head of Limosnero. Another shot hit the passenger Maria Argame on the back, the slug penetrating the
abdominal wall and entering the abdominal cavity. Still another shot struck passenger Elena Loyola on the shoulder, fracturing her
right clavicle. When the bus was out of range of the guns of the eight men on the road and they had ceased firing, passenger
Inobio on rising from his prone position in the bus, saw driver Limosneros wound on the head, which was bleeding profusely, the
blood dimming his vision, and so he took over the wheel. On reaching Zapote, an inspector of the Laguna Transportation Company
took over the wheel from Inobio and drove the bus straight to the Las Pias Municipal Building where the incident and shooting was
reported to the police. Thereafter, the same bus, with a police officer, drove straight to Manila and to the Philippine General
Hospital. Maria Argame was pronounced dead on arrival. The fracture of the right clavicle of Elena Loyola necessitated an operation,
which was performed, and she was confined in the hospital for about twenty days, after which she was discharged, though she was
not completely recovered, to continue treatment at home. The expert testimony on her condition is that if she had not been gi ven
prompt medical attention, she would have died from her wound. Driver Limosnero was treated at the same hospital for his head
would and was released, but treatment was continued by the bus company for about a month.
During the trial, passenger Inobio, star witness for the Government, told the court that he clearly identified the person standing on
the right side of the road, who signalled the bus to stop and who cried out Para, pasok! as Cosme Isip. Inobio also said that
among the seven armed men who emerged from the left side of the road and who fired at the bus when it sped away, he saw and
clearly identified defendant-appellant Olaes, because he is a barriomate, both of them being residents of Barrio Almanza, Las Pias,
and that Olaes was then carrying a gun, either a garand or a carbine.
Appellant Olaes at the trial insisted that he was not in the group of men that supposedly tried to hold up the bus, much less was he
seen by Inobio because in the course of the investigation made by the municipal police and the Philippine Constabulary, on two
occasions when he was present, and while Inobio was making statements to the authorities, Inobio never mentioned his name
much less pointed to him. The evidence, however, shows that the failure of Inobio to point to appellant as one of the supposed
hold-uppers and who stopped the bus was because of fear of reprisal, believing that Olaes was a dangerous character. Appellant
also tried to establish a motive or reason for Inobios accusing him. We quote with favor the pertinent portions of the decision of the
trial court on this point:
He (Olaes) further averred that a policeman from Las Pias investigated the holdup at 7:30 oclock in the morning of November 9;
that during the questioning of Inobio, Inobio never implicated him, although he was present for some twenty minutes; that at
around 1:00 p.m. while on his way home, he met a PC team investigating the crime headed by then Lt. Ver, whom he led to the
house of Mariano Inobio; that in the course of the questioning of Inobio which lasted for about half an hour, Inobio never made
mention of his (accuseds) name and told the PC that he did not recognize the persons who attempted to waylay the bus and hold-
up its passengers. When asked for a possible motive why Inobio should testify against him the way he did, the accused narrated
that in May, 1954, he tried to pacify and separate Inobio and Dayuta who were quarreling; that as Inobio struggled against him, he
encircled Inobios neck with the arm; that Inobio resented this and accused him for siding with Dayuta; that shortly, Inobio left
muttering, Your day reckoning will come; you will pay for this; that from that time on, he and Inobio had strained relations.
x x x x x x x x x
Much stress is laid on Inobios failure to pinpoint Olaes during the investigation conducted by Lt. Ver of the PC at 2:00 p.m.,
November 9, 1954. But as explained by Inobio, he did not point to Olaes who was there present as he was afraid of reprisal against
himself and members of his family. Indeed, two hours later, and feeling secure in the municipal building, he revealed the names of
Eugenio Olaes, Bienvenido Dayuta and Cosme Isip to the chief of police of Las Pias.
Moreover, PC Capt. Ver testifying on rebuttal declared that when he questioned Inobio in his house, in the presence of Olaes, Inobio
appeared nervous; that he took him upstairs and during the interrogation, a PC detachment commander investigating the same
offense came and advised him (Ver) that Inobio already revealed to him that morning that Olaes was among the hold-uppers; that
at this juncture, Inobio informed him (Ver) that the man was his guide and companion who remained downstairs; that when they
looked at the place where they had left Olaes, the latter was nowhere to be found, having slipped away unnoticed.
Defendant-appellant also interposed the defense of alibi. We also reproduce that portion of the decision of the trial court on this
point.
The defense of alibi must be clearly and satisfactorily proven (People vs. Limbo, 49 Phil. 94). The testimony of the accused that he
slept in the house of his father or brother on the night of November 8 does not preclude the possibility that he woke up at, say 3:00
or 4:00 oclock in the early morning of the next day and joined the band of armed men who at 4:30 were frustrated in there
nefarious plan to waylay the bus and rob its passengers, considering the fact that the houses of his father and brother are situated
in the same barrio where the crime was committed (See People vs. Palamos, 49 Phil. 601). Moreover, the father and/or brother of
the accused were available to him at all times to testify in his behalf and corroborate his alibi that he slept in his house that night.
This was not done and no plausible explanation given why these corroborative witnesses were not presented (People vs. Pili, 52
Phil. 965).
After a careful study of the case, we fully agree with the trial court that defendant Eugenio Olaes is guilty. However, it will be
remembered that the charge against him was for attempted robbery with homicide and frustrated homicide. Under this charge, as
the Solicitor General well said, he may not be convicted of consummated robbery with homicide as the trial court did. Moreover, we
agree with the prosecution that inasmuch as no overt acts pointing to robbery or even an attempt thereof have been established,
the killing of one passenger and the wounding of two others should be considered as plain murder, frustrated murder, and physical
injuries respectively.
The trial court found that the aggravating circumstances of nocturnity and in band, there being more than three armed men in the
group of malefactors, attended the commission of the crimes. The aggravating circumstance of in band may be considered to
qualify the act of killing of Maria as murder, and the wounding of Elena as frustrated murder. The evidence for the defense was to
the effect that appellant surrendered to the authorities when he found out that he was wanted by the constabulary. This was not
refuted by the prosecution and so, it can be regarded as a fact. This mitigating circumstance will compensate the other aggravating
circumstance of nocturnity. The penalty for murder which is reclusion temporal in its maximum degree to death, should therefore be
imposed in its medium period, namely reclusion perpetua, so that in the result, we agree with the trial court as to the penalty imposed
by it.
However, we disagree with the lower court as to the reason given by it in imposing the penalty in its medium degree, namely, that
although the crime was attended by the aggravating circumstances of nocturnity and in band, in view of the attitude of the Chief
Executive on death penalty, the accused was sentenced only to life imprisonment. Without attempting, even desiring to ascertain
the veracity or trueness of the alleged attitude of the Chief Executive on the application of the death penalty, the courts of the
land will interpret and apply the laws as they find them on the statute books, regardless of the manner their
judgments are executed and implemented by the executive department. By doing so, the courts will have complied with
their solemn duty to administer justice. Until the Legislature sees fit to repeal or modify the imposition of the extreme penalty, the
courts will continue to impose the same when the facts and circumstances in a case so warrant.
For the crime of frustrated murder, appellant is hereby sentenced to not less than six (6) years ofprision correccional and not more
than fourteen (14) years of reclusion temporal, with the accessories of the law.
As to the physical injuries, the evidence shows that the period within which the injuries on the head of Limosnero were treated was
less than 30 days, for which reason, the offense as to him should be considered as less serious physical injuries. For this, appellant
is hereby sentenced to three (3) months of arresto mayor.
In view of the foregoing, with the modifications above indicated, the appealed decision is hereby affirmed, with costs.
Paras, C.J., Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion and Endencia, JJ., concur.




Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 141066 February 17, 2005
EVANGELINE LADONGA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
D E C I S I O N
AUSTRIA-MARTINEZ, J .:
Petitioner Evangeline Ladonga seeks a review of the Decision,
1
dated May 17, 1999, of the Court of Appeals in CA-G.R. CR No.
20443, affirming the Decision dated August 24, 1996, of the Regional Trial Court (RTC), Branch 3 of Bohol, in Criminal Case Nos.
7068, 7069 and 7070 convicting her of violation of B.P. Blg. 22, otherwise known as The Bouncing Checks Law.
The factual background of the case is as follows:
On March 27, 1991, three Informations for violation of B.P. Blg. 22 were filed with the RTC, docketed as Criminal Case Nos. 7068 -
7070. The Information in Criminal Case No. 7068 alleges as follows:
That, sometime in May or June 1990, in the City of Tagbilaran, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating, and mutually helping with one another, knowing fully well that they did not have
sufficient funds deposited with the United Coconut Planters Bank (UCPB), Tagbilaran Branch, did then and there willfully, unlawfully,
and feloniously, draw and issue UCPB Check No. 284743 postdated July 7, 1990 in the amount of NINE THOUSAND SEVENTY-
FIVE PESOS AND FIFTY-FIVE CENTAVOS (P9,075.55), payable to Alfredo Oculam, and thereafter, without informing the latter
that they did not have sufficient funds deposited with the bank to cover up the amount of the check, did then and there willfully,
unlawfully and feloniously pass on, indorse, give and deliver the said check to Alfredo Oculam by way of rediscounting of the
aforementioned checks; however, upon presentation of the check to the drawee bank for encashment, the same was dishonored for
the reason that the account of the accused with the United Coconut Planters Bank, Tagbilaran Branch, had already been closed, to
the damage and prejudice of the said Alfredo Oculam in the aforestated amount.
Acts committed contrary to the provisions of Batas Pambansa Bilang 22.
2

The accusatory portions of the Informations in Criminal Case Nos. 7069 and 7070 are similarly worded, except for the allegations
concerning the number, date and amount of each check, that is:
(a) Criminal Case No. 7069 - UCPB Check No. 284744 dated July 22, 1990 in the amount of P12,730.00;
3

(b) Criminal Case No. 7070 UCPB Check No. 106136 dated July 22, 1990 in the amount of P8,496.55.
4

The cases were consolidated and jointly tried. When arraigned on June 26, 1991, the two accused pleaded not guilty to the crimes
charged.
5

The prosecution presented as its lone witness complainant Alfredo Oculam. He testified that: in 1989, spouses Adronico
6
and
Evangeline Ladonga became his regular customers in his pawnshop business in Tagbilaran City, Bohol;
7
sometime in May 1990,
the Ladonga spouses obtained a P9,075.55 loan from him, guaranteed by United Coconut Planters Bank (UCPB) Check No.
284743, post dated to dated July 7, 1990 issued by Adronico;
8
sometime in the last week of April 1990 and during the first week of
May 1990, the Ladonga spouses obtained an additional loan of P12,730.00, guaranteed by UCPB Check No. 284744, post dated to
dated July 26, 1990 issued by Adronico;
9
between May and June 1990, the Ladonga spouses obtained a third loan in the amount
ofP8,496.55, guaranteed by UCPB Check No. 106136, post dated to July 22, 1990 issued by Adronico;
10
the three checks bounced
upon presentment for the reason "CLOSED ACCOUNT";
11
when the Ladonga spouses failed to redeem the check, despite repeated
demands, he filed a criminal complaint against them.
12

While admitting that the checks issued by Adronico bounced because there was no sufficient deposit or the account was closed, the
Ladonga spouses claimed that the checks were issued only to guarantee the obligation, with an agreement that Oculam should not
encash the checks when they mature;
13
and, that petitioner is not a signatory of the checks and had no participation in the issuance
thereof.
14

On August 24, 1996, the RTC rendered a joint decision finding the Ladonga spouses guilty beyond reasonable doubt of violating
B.P. Blg. 22, the dispositive portion of which reads:
Premises considered, this Court hereby renders judgment finding accused Adronico Ladonga, alias Ronie, and Evangeline Ladonga
guilty beyond reasonable doubt in the aforesaid three (3) criminal cases, for which they stand charged before this Court, and
accordingly, sentences them to imprisonment and fine, as follows:
1. In Criminal Case No. 7068, for (sic) an imprisonment of one (1) year for each of them, and a fine in the amount
of P9,075.55, equivalent to the amount of UCPB Check No. 284743;
2. In Criminal Case No. 7069, for (sic) an imprisonment for each of them to one (1) year and a fine of P12, 730.00,
equivalent to the amount of UCPB Check No. 284744; and,
3. In Criminal Case No. 7070, with (sic) an imprisonment of one year for each of them and a fine ofP8,496.55 equivalent
to the amount of UCPB Check No. 106136;
4. That both accused are further ordered to jointly and solidarily pay and reimburse the complainant, Mr. Alfredo Oculam,
the sum of P15,000.00 representing actual expenses incurred in prosecuting the instant cases; P10,000.00 as attorneys
fee; and the amount of P30,302.10 which is the total value of the three (3) subject checks which bounced; but without
subsidiary imprisonment in case of insolvency.
With Costs against the accused.
SO ORDERED.
15

Adronico applied for probation which was granted.
16
On the other hand, petitioner brought the case to the Court of Appeals, arguing
that the RTC erred in finding her criminally liable for conspiring with her husband as the principle of conspiracy is inapplicable
to B.P. Blg. 22 which is a special law; moreover, she is not a signatory of the checks and had no participation in the issuance
thereof.
17

On May 17, 1999, the Court of Appeals affirmed the conviction of petitioner.
18
It held that the provisions of the penal code were
made applicable to special penal laws in the decisions of this Court in People vs. Parel,
19
U.S. vs. Ponte,
20
and U.S. vs. Bruhez.
21
It
noted that Article 10 of the Revised Penal Code itself provides that its provisions shall be supplementary to special laws unless the
latter provide the contrary. The Court of Appeals stressed that since B.P. Blg. 22 does not prohibit the applicability in a suppletory
character of the provisions of the Revised Penal Code (RPC), the principle of conspiracy may be applied to cases involving
violations of B.P. Blg. 22. Lastly, it ruled that the fact that petitioner did not make and issue or sign the checks did not exculpate her
from criminal liability as it is not indispensable that a co-conspirator takes a direct part in every act and knows the part which
everyone performed. The Court of Appeals underscored that in conspiracy the act of one conspirator could be held to be the act of
the other.
Petitioner sought reconsideration of the decision but the Court of Appeals denied the same in a Resolution dated November 16,
1999.
22

Hence, the present petition.
Petitioner presents to the Court the following issues for resolution:
1. WHETHER OR NOT THE PETITIONER WHO WAS NOT THE DRAWER OR ISSUER OF THE THREE CHECKS
THAT BOUNCED BUT HER CO-ACCUSED HUSBAND UNDER THE LATTERS ACCOUNT COULD BE HELD LIABLE
FOR VIOLATIONS OF BATAS PAMBANSA BILANG 22 AS CONSPIRATOR.
2. ANCILLARY TO THE MAIN ISSUE ARE THE FOLLOWING ISSUES:
A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN VIOLATIONS OF BATAS PAMBANSA BILANG 22 BY INVOKING THE
LAST SENTENCE OF ARTICLE 10 OF THE REVISED PENAL CODE WHICH STATES:
Art. 10. Offenses not subject of the provisions of this Code. Offenses which are or in the future may be punished under special
laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially
provide the contrary.
B. WHETHER OR NOT THE CASES CITED BY THE HONORABLE COURT OF APPEALS IN AFFIRMING IN TOTO THE
CONVICTION OF PETITIONER AS CONSPIRATOR APPLYING THE SUPPLETORY CHARACTER OF THE REVISED PENAL
CODE TO SPECIAL LAWS LIKE B.P. BLG. 22 IS APPLICABLE.
23

Petitioner staunchly insists that she cannot be held criminally liable for violation of B.P. Blg. 22 because she had no participation in
the drawing and issuance of the three checks subject of the three criminal cases, a fact proven by the checks themselves. She
contends that the Court of Appeals gravely erred in applying the principle of conspiracy, as defined under the RPC, to violations
of B.P. Blg. 22. She posits that the application of the principle of conspiracy would enlarge the scope of the statute and include
situations not provided for or intended by the lawmakers, such as penalizing a person, like petitioner, who had no participation in the
drawing or issuance of checks.
The Office of the Solicitor General disagrees with petitioner and echoes the declaration of the Court of Appeals that some provisions
of the Revised Penal Code, especially with the addition of the second sentence in Article 10, are applicable to special laws. It
submits that B.P. Blg. 22 does not provide any prohibition regarding the applicability in a suppletory character of the provisions of
the Revised Penal Code to it.
Article 10 of the RPC reads as follows:
ART. 10. Offenses not subject to the provisions of this Code. Offenses which are or in the future may be punishable under special
laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially
provide the contrary.
The article is composed of two clauses. The first provides that offenses which in the future are made punishable under special laws
are not subject to the provisions of the RPC, while the second makes the RPC supplementary to such laws. While it seems that the
two clauses are contradictory, a sensible interpretation will show that they can perfectly be reconciled.
The first clause should be understood to mean only that the special penal laws are controlling with regard to offenses therein
specifically punished. Said clause only restates the elemental rule of statutory construction that special legal provisions prevail over
general ones.
24
Lex specialis derogant generali. In fact, the clause can be considered as a superfluity, and could have been
eliminated altogether. The second clause contains the soul of the article. The main idea and purpose of the article is embodied in
the provision that the "code shall be supplementary" to special laws, unless the latter should specifically provide the contrary.
The appellate courts reliance on the cases of People vs. Parel,
25
U.S. vs. Ponte,
26
and U.S. vs. Bruhez
27
rests on a firm basis.
These cases involved the suppletory application of principles under the then Penal Code to special laws. People vs. Parel is
concerned with the application of Article 22
28
of the Code to violations of Act No. 3030, the Election Law, with reference to the
retroactive effect of penal laws if they favor the accused. U.S. vs. Ponte involved the application of Article 17
29
of the same Penal
Code, with reference to the participation of principals in the commission of the crime of misappropriation of public funds as defined
and penalized by Act No. 1740. U.S. vs. Bruhez covered Article 45
30
of the same Code, with reference to the confiscation of the
instruments used in violation of Act No. 1461, the Opium Law.
B.P. Blg. 22 does not expressly proscribe the suppletory application of the provisions of the RPC. Thus, in the absence of contrary
provision in B.P. Blg. 22, the general provisions of the RPC which, by their nature, are necessarily applicable, may be applied
suppletorily. Indeed, in the recent case of Yu vs. People,
31
the Court applied suppletorily the provisions on subsidiary imprisonment
under Article 39
32
of the RPC to B.P. Blg. 22.
The suppletory application of the principle of conspiracy in this case is analogous to the application of the provision on principals
under Article 17 in U.S. vs. Ponte. For once conspiracy or action in concert to achieve a criminal design is shown, the act of one is
the act of all the conspirators, and the precise extent or modality of participation of each of them becomes secondary, since all the
conspirators are principals.
33

All these notwithstanding, the conviction of the petitioner must be set aside.
Article 8 of the RPC provides that "a conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it." To be held guilty as a co-principal by reason of conspiracy, the accused must be
shown to have performed an overt act in pursuance or furtherance of the complicity.
34
The overt act or acts of the accused may
consist of active participation in the actual commission of the crime itself or may consist of moral assistance to his co-conspirators
by moving them to execute or implement the criminal plan.
35

In the present case, the prosecution failed to prove that petitioner performed any overt act in furtherance of the alleged conspiracy.
As testified to by the lone prosecution witness, complainant Alfredo Oculam, petitioner was merely present when her husband,
Adronico, signed the check subject of Criminal Case No. 7068.
36
With respect to Criminal Case Nos. 7069-7070, Oculam also did
not describe the details of petitioners participation. He did not specify the nature of petitioners involvement in the commission of the
crime, either by a direct act of participation, a direct inducement of her co-conspirator, or cooperating in the commission of the
offense by another act without which it would not have been accomplished. Apparently, the only semblance of overt act that may be
attributed to petitioner is that she was present when the first check was issued. However, this inference cannot be stretched to mean
concurrence with the criminal design.
Conspiracy must be established, not by conjectures, but by positive and conclusive evidence.
37
Conspiracy transcends mere
companionship and mere presence at the scene of the crime does not in itself amount to conspiracy.
38
Even knowledge,
acquiescence in or agreement to cooperate, is not enough to constitute one as a party to a conspiracy, absent any active
participation in the commission of the crime with a view to the furtherance of the common design and purpose.
39

As the Court eloquently pronounced in a case of recent vintage, People vs. Mandao:
40

To be sure, conspiracy is not a harmless innuendo to be taken lightly or accepted at every turn. It is a legal concept that imputes
culpability under specific circumstances; as such, it must be established as clearly as any element of the crime. Evidence to prove it
must be positive and convincing, considering that it is a convenient and simplistic device by which the accused may be ensnared
and kept within the penal fold.
Criminal liability cannot be based on a general allegation of conspiracy, and a judgment of conviction must always be founded on
the strength of the prosecutions evidence. The Court ruled thus in People v. Legaspi, from which we quote:
At most, the prosecution, realizing the weakness of its evidence against accused-appellant Franco, merely relied and pegged the
latters criminal liability on its sweeping theory of conspiracy, which to us, was not attendant in the commission of the crime.
The rule is firmly entrenched that a judgment of conviction must be predicated on the strength of the evidence for the prosecution
and not on the weakness of the evidence for the defense. The proof against him must survive the test of reason; the strongest
suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defense could be laid the
responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then is
moral certainty.
Verily, it is the role of the prosecution to prove the guilt of the appellant beyond reasonable doubt in order to overcome the
constitutional presumption of innocence.
In sum, conviction must rest on hard evidence showing that the accused is guilty beyond reasonable doubt of the crime charged. In
criminal cases, moral certainty -- not mere possibility -- determines the guilt or the innocence of the accused. Even when the
evidence for the defense is weak, the accused must be acquitted when the prosecution has not proven guilt with the requisite
quantum of proof required in all criminal cases. (Citations omitted)
41

All told, the prosecution failed to establish the guilt of the petitioner with moral certainty. Its evidence falls short of the quantum of
proof required for conviction. Accordingly, the constitutional presumption of the petitioners innocence must be upheld and she must
be acquitted.1a\^/phi1.net
WHEREFORE, the instant petition is GRANTED. The assailed Decision, dated May 17, 1999, of the Court of Appeals in CA-G.R.
CR No. 20443 affirming the Decision, dated August 24, 1996, of the Regional Trial Court (Branch 3), Bohol, in Criminal Case Nos.
7068, 7069 and 7070 convicting the petitioner of violation of B.P. Blg. 22is hereby REVERSED and SET ASIDE. Petitioner
Evangeline Ladonga is ACQUITTED of the charges against her under B.P. Blg. 22 for failure of the prosecution to prove her guilt
beyond reasonable doubt. No pronouncement as to costs.
SO ORDERED.
Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.


Footnotes
1
Penned by Justice Buenaventura J. Guerrero (now retired) and concurred in by Justices Portia Alino-Hormachuelos and
Eloy R. Bello (now retired).
2
Original Records, pp. 1-2.
3
Id., p. 3.
4
Id., p. 5.
5
Id., pp. 29-31.
6
Also known as Ronie.
7
TSN of December 3, 1991, Testimony of Alfredo Oculam, pp. 4-7.
8
Id., pp. 16-21.
9
TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2-3.
10
TSN of January 28, 1992, Testimony of Alfredo Oculam, pp. 1-2.
11
TSN of December 3, 1991, Testimony of Alfredo Oculam, p. 19; TSN of December 4, 1991, Testimony of Alfredo
Oculam, pp. 1 and 3; TSN of January 28, 1992, Testimony of Alfredo Oculam, p. 1; Original Records, p. 128.
12
TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2 and 4; TSN of January 28, 1992, Testimony of Alfredo
Oculam, p. 2; Original Records, p. 125.
13
TSN of August 23, 1993, Testimony of Evangeline Ladonga, pp. 7-8, 11-12 and 15; TSN of December 20, 1993,
Testimony of Adronico Ladonga, p. 18.
14
TSN of August 23, 1993, Testimony of Evangeline Ladonga, p. 10; TSN of December 20, 1993, Testimony of Adronico
Ladonga, pp. 24-26.
15
Original Records, p. 124.
16
Id., p. 126.
17
Court of Appeals (CA) Rollo, p. 28.
18
Rollo, p. 133.
19
No. 18260, January 27, 1923, 44 Phil. 437.
20
No. 5952, October 24, 1911, 20 Phil. 379.
21
No. 9268, November 4, 1914, 28 Phil. 305.
22
Rollo, p. 39.
23
Rollo, pp. 69-70.
24
Bayan (Bagong Alyansang Makabayan) vs. Zamora, G.R. No. 138570, October 10, 2000, 342 SCRA 449, 483.
25
Note No. 19, supra.
26
Note No. 20, supra.
27
Note No. 21, supra.
28
ART. 22. Retroactive effect of penal laws. Penal laws shall have a retroactive effect insofar as they favor the person
guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the
time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.
29
ART. 17. Principals. The following are considered principals:
1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense by another act without which it would not have been
accomplished.
30
ART. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. Every penalty imposed for the
commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the instruments or tools with which
it was committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless
they be the property of a third person not liable for the offense, but those articles which are not subject of lawful
commerce shall be destroyed.
31
G.R. No. 134172, September 20, 2004.
32
ART. 39. Subsidiary penalty. If the convict has no property with which to meet the fine mentioned in paragraph 3 of
the next preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each eight pesos,
subject to the following rules:
1. If the principal penalty imposed be prision correccional or arresto and fine, he shall remain under confinement
until his fine referred in the preceding paragraph is satisfied, but his subsidiary imprisonment shall not exceed
one-third of the term of the sentence, and in no case shall it continue for more than one year, and no fraction or
part of a day shall be counted against the prisoner.
2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not exceed six months,
if the culprit shall have been prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if for
a light felony.
3. When the principal penalty imposed is higher than prision correccional no subsidiary imprisonment shall be
imposed upon the culprit.
4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but such penalty is
of fixed duration, the convict, during the period of time established in the preceding rules, shall continue to
suffer the same deprivation as those of which the principal penalty consists.
5. The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall not
relieve him from the fine in case his financial circumstances should improve.
33
People vs. Felipe, G.R. No. 142505, December 11, 2003, 418 SCRA 146, 176; People vs. Julianda, Jr., G.R. No.
128886, November 23, 2001, 370 SCRA 448, 469; People vs. Quinicio, G.R. No. 142430, September 13, 2001, 365
SCRA 252, 266.
34
People vs. Pickrell, G.R. No. 120409, October 23, 2003, 414 SCRA 19, 33; People vs. Bisda, G.R. No. 140895, July 17,
2003, 406 SCRA 454, 473; People vs. Pagalasan, G.R. Nos. 131926 & 138991, June 18, 2003, 404 SCRA 275, 291.
35
People vs. Caballero, G.R. Nos. 149028-30, April 2, 2003, 400 SCRA 424, 437; People vs. Ponce, G.R. No. 126254,
September 29, 2000, 341 SCRA 352, 359-360.
36
TSN of December 3, 1991, Testimony of Alfredo Oculam, p. 20.
37
People vs. Tamayo, G.R. No. 138608, September 24, 2002, SCRA 540, 553; People vs. Melencion, G.R. No. 121902,
March 26, 2001, 355 SCRA 113, 123.
38
People vs. Leao, G.R. No. 138886, October 9, 2001, 366 SCRA 774; People vs. Compo, G.R. No. 112990, May 28,
2001, 358 SCRA 266, 272.
39
People vs. Natividad, G.R. No. 151072, September 23, 2003, 411 SCRA 587, 595.
40
People vs. Mandao, G.R. No. 135048, December 3, 2002, 393 SCRA 292.
41
Id., pp. 304-305.



Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 33463 December 18, 1930
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
BASILIO BORINAGA, defendant-appellant.
Paulo Jaro for appellant.
Attorney-General Jaranilla for appellee.

MALCOM, J .:
Sometime prior to March 4, 1929, an American by the name of Harry H. Mooney, a resident of the municipality of Calubian, Leyte,
contracted with one Juan Lawaan for the construction of a fish corral. Basilio Borinaga was associated with Lawaan in the
construction of the corral. On the morning of March 4, 1929, Lawaan, with some of his men, went to Mooney's shop and tried to
collect from him the whole amount fixed by the contract, notwithstanding that only about two-thirds of the fish corral had been
finished. As was to be expected, Mooney refused to pay the price agreed upon at that time. On hearing this reply of Mooney,
Lawaan warned him that if he did not pay, something would happen to him, to which Mooney answered that if they wanted to do
something to him they should wait until after breakfast, Lawaan then left with his men, and Mooney, after partaking of his morning
meal, returned to his shop.
On the evening of the same day, Mooney was in the store of a neighbor by the name of Perpetua Najarro. He had taken a seat on a
chair in front of the Perpetua, his back being to the window. Mooney had not been there long when Perpetua saw Basilio Borinaga
from the window strike with a knife at Mooney, but fortunately for the latter, the knife lodged in the back of the chair on which
Mooney was seated. Mooney fell from the chair as a result of the force of the blow, but was not injured. Borinaga ran away towards
the market place. Before this occurred, it should be stated that Borinaga had been heard to tell a companion: "I will stab this
Mooney, who is an American brute." After the attack, Borinaga was also heard to say that he did not hit the back of Mooney but only
the back of the chair. But Borinaga was persistent in his endeavor, and hardly ten minutes after the first attack, he returned, knife in
hand, to renew it, but was unable to do so because Mooney and Perpetua were then on their guard and turned a flashlight on
Borinaga, frightening him away. Again the same night, Borinaga was overheard stating that he had missed his mark and was unable
to give another blow because of the flashlight. The point of the knife was subsequently, on examination of the chair, found
embedded in it.
The foregoing occurrences gave rise to the prosecution of Basilio Borinaga in the Court of First Instance of Leyte for the crime of
frustrated murder. The defense was alibi, which was not given credence. The accused was convicted as charged, by Judge Ortiz,
who sentenced him to fourteen years, eight months, and one day of imprisonment, reclusion temporal, with the accessory penalties
and the costs.
The homicidal intent of the accused was plainly evidenced. The attendant circumstances conclusively establish that murder was in
the heart and mind of the accused. More than mere menaces took place. The aggressor stated his purpose, which was to kill, and
apologized to his friends for not accomplishing that purpose. A deadly weapon was used. The blow was directed treacherously
toward vital organs of the victim. The means used were entirely suitable for accomplishment. The crime should, therefore, be
qualified as murder because of the presence of the circumstance of treachery.
The only debatable question, not referred to in the briefs, but which must be decided in order to dispose of the appeal, is: Do the
facts constitute frustrated murder or attempted murder within the meaning of article 3 of the Penal Code? Although no exact
counterpart to the facts at bar has been found either in Spanish or Philippine jurisprudence, a majority of the court answer the
question propounded by stating that the crime committed was that of frustrated murder. This is true notwithstanding the admitted
fact that Mooney was not injured in the least.
The essential condition of a frustrated crime, that the author perform all the acts of execution, attended the attack. Nothing remained
to be done to accomplish the work of the assailant completely. The cause resulting in the failure of the attack arose by reason of
forces independent of the will of the perpetrator. The assailant voluntarily desisted from further acts. What is known as the
subjective phase of the criminal act was passed. (U. S. vs. Eduave [1917], 36 Phil., 209; People vs. Mabugat [1926], 51 Phil., 967.)
No superfine distinctions need be drawn in favor of that accused to establish a lesser crime than that of frustrated murder, for the
facts disclose a wanton disregard of the sanctity of human life fully meriting the penalty imposed in the trial court.
Based on foregoing considerations, the judgment appealed from will be affirmed, with the costs of this instance against the
appellant.
Avancea, C.J., Villamor, Ostrand, Johns and Romualdez, JJ., concur.lawphi1>net



Separate Opinions

VILLA-REAL, J ., dissenting:
We dissent from the opinion of the majority in so far as it finds the defendant-appellant guilty of the crime of frustrated murder
instead of that of an attempt to commit murder.
Article 3 of the Penal Code provides as follows:
ART. 3. Frustrated felonies and attempts to commit felonies are punishable, as well as those which are consummated.
A felony is frustrated when the offender performs all the acts of execution which should produce the felony as a
consequence, but which, nevertheless, do no produce it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of the felony directly by overt acts, and does not
perform all the acts of execution which constitute the felony by reason of some cause or accident other than his own
voluntary desistance.
The pertinent facts as found by the court below and by this court are the following:
On the evening of the same day, Mooney was in the store of a neighbor by the name of Perpetua Najarro. He had taken a seat on a
chair in front of Perpetua, his back being to the window. Mooney had not been there long when Perpetua saw Basilio Borinaga from
the window strike with a knife at Mooney, but fortunately for the latter, the knife lodged in the back of the chair on which Mooney was
seated. Mooney fell from the chair as a result of the force of the blow, but was not injured. Borinaga ran away towards the market
place. Before this occurred, it should be stated that Borinaga had been heard to tell a companion: "I will stab this Mooney, who is an
American brute." After the attack, Borinaga was also heard to say that he did not hit the back of Mooney but only the back of the
chair. But Borinaga was persistent in his endeavor, and hardly ten minutes after the first attack, he returned, knife in hand, to renew
it, but was unable to do so because Mooney and Perpetua were then on their guard and turned a flashlight on Borinaga, frightening
him away. Again that same night, Borinaga was overheard stating that he had missed his mark and was unable to give another blow
because of the flashlight. The point of the knife was subsequently, on examination of the chair, found embedded in it.
Since the facts constituting frustrated felony and those constituting an attempt to commit felony are integral parts of those
constituting consummated felony, it becomes important to know what facts would have been necessary in order that the case at bar
might have been a consummated murder, so that we may determine whether the facts proved during the trial constitute frustrated
murder or simply an attempt to commit murder.
In order that the crime committed by the defendant-appellant might have been a consummated murder it would have been
necessary for him to have inflicted a deadly wound upon a vital spot of the body of Mooney, with treachery, as a result of which he
should have died.
Since according to the definition given by the Code a frustrated felony is committed "when the offender performs all the acts of
execution which should produce the felony as a consequence, but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator" let us examine the facts of record to find out whether the said defendant-appellant has
performed all the acts of execution which should produce the murder of Mooney as a consequence. The prisoner at bar, intending to
kill Mooney, approached him stealthily from behind and made movement with his right hand to strike him in the back with a deadly
knife, but the blow, instead of reaching the spot intended, landed on the frame of the back of the chair on which Mooney was sitting
at the time and did not cause the slightest physical injury on the latter. The acts of execution performed by the defendant-appellant
did not produce the death of Mooney as a consequence nor could they have produced it because the blow did not reach his body;
therefore the culprit did not perform all the acts of execution which should produce the felony. There was lacking the infliction of the
deadly wound upon a vital spot of the body of Mooney.
It is true that the frame of the back of the chair stood between the deadly knife and the back of Mooney; but what it prevented was
the wounding of said Mooney in the back and not his death, had he been wounded. It is the preventing of death by causes
independent of the will of the perpetrator, after all the acts of execution which should produce the felony as a consequence had
been performed, that constitutes frustrated felony, according to the law, and not the preventing of the performance of all the acts of
execution which constitute the felony, as in the present case. The interference of the frame of the back of the chair which prevented
the defendant-appellant from wounding Mooney in the back with a deadly knife, made his acts constitute an attempt to commit
murder; for he had commenced the commission of the felony directly by overt acts, and did not perform all the acts of execution
which constitute the felony by reason of a cause or accident other than his own voluntary desistance.
The foregoing considerations force us to the conclusion that the facts alleged in the information and proved during the trial are not
sufficient to constitute the crime of frustrated murder, but simply the crime of an attempt to commit murder.
Johnson and Street, JJ., concur.


THIRD DIVISION
[G.R. No. 122487. December 12, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SUPT.
REYNALDO BERROYA, SPO4 JOSE VIENES and FRANCISCO
MATEO,accused-appellants.
D E C I S I O N
ROMERO, J .:
On May 11, 1993, Chou Cheung Yih, alias Jack Chou, a Taiwanese national, was
kidnapped in Multinational Village, Paraaque, Metro Manila. He was kept captive for
seven days until his family paid a ransom of P10 Million. Only then was he set free.
Thereafter, accused-appellants Reynaldo Berroya, SPO4 Jose Vienes, Francisco
Kit Mateo and thirteen (13) others, were charged with the crime of kidnapping in an
Information dated September 22, 1993 which reads as follows:
That on or about 11 May 1993 at about 12:30 o clock in the afternoon and
until 17 May 1993 along Sucat Road near Multinational Village, Paraaque,
Metro Manila and within the jurisdiction of this Honorable Court, the above
named accused conspiring, confederating, mutually helping one another and
grouping themselves together, did then and there, by force, intimidation and
the use of firearms, wilfully, unlawfully and feloniously take, carry away,
kidnap and deprive Chou Chu (sic) Yih alias Jack Chou, a Taiwanese
investor, of his liberty and thereafter brought and detained him in a safehouse
in Paraaque, Metro Manila, Philippines, against his will and consent for the
purpose of extorting ransom for his release which was effected after payment
of the amount of HK$ 2,963,962.00 or its equivalent of P10 M thereafter
divided by and among the accused themselves; to the loss, damage and
prejudice of said Chou Chu (sic) Yih alias Jack Chou.
CONTRARY TO LAW. (Record, p.1)
On July 28, 1993, Branch 148 of the Regional Trial Court of Makati, presided over
by the Honorable Oscar B. Pimentel, rendered judgment in this wise, convicting
accused-appellants Berroya, Vienes, and Mateo:
WHEREFORE, premises considered:
1. With respect to accused Chief Superintendent Dictador Alqueza for
insufficiency of evidence and serious doubt as to his guilt he is hereby
ACQUITTED and his release from confinement is hereby ordered unless he
is being detained for some other legal cause or causes or by virtue of a legal
order.
2. With respect to Lt. Col. Danilo Sta. Clara likewise for insufficiency of
evidence and for reasons of reasonable doubt he is likewise ACQUITTED.
His immediate release from confinement is hereby ordered unless he is being
detained for some other legal cause or causes or by virtue of a legal order.
3. With respect to accused Lavinia Mateo, for insufficiency of evidence and
for reasons of reasonable doubt, she is hereby ACQUITTED and her
immediate release from confinement is hereby ordered unless she is being
detained for some other legal cause or causes or by virtue of a legal order.
The acquittal of these three (3) accused does not necessarily mean that before
their God and their conscience, they have not committed the crime. Only,
there is lacking in evidence (sic) to support their convictions. Had there been
sufficient evidence against them, they will be convicted.
4. AND FINDING SENIOR SUPERINTENDENT REYNALDO
BERROYA, SPO4 JOSE VIENES AND FRANCISCO MATEO guilty
beyond reasonable doubt of the crime of kidnapping defined and penalized
under Art. 267 of the Revised Penal Code and as the crime was committed
prior to the effectivity of Republic Act 7659, the aforesaid accused Senior
Superintendent Reynaldo Berroya, SPO4 Jose Vienes and Francisco Mateo
alias Kit are hereby sentenced to suffer the penalty of Reclusion
Perpetua with all the accessories of the law.
Further, the three (3) accused are hereby ordered to pay Chou Cheng Yih alias Jack
Chou, a Taiwanese businessman, jointly and severally
1. TEN MILLION PESOS (P10,000,000.00) which is the unrecovered ransom
money.
2. ONE MILLION PESOS (P1,000,000.00) for actual damages.
3. TWO MILLION PESOS (P2,000,000.00) for and as moral damages.
4. The amount of ONE MILLION PESOS (P1,000,000.00) for exemplary damages,
and;
5. The amount of P400,000.00 for and as attorneys fees.
No civil liability is incurred by accused Chief Superintendent Dictador Alqueza, Lt.
Col. Danilo Sta. Clara and Lavinia Mateo.
With costs against Senior Superintendent Reynaldo Berroya, SPO4 Jose Vienes and
Francisco Kit Mateo.
The immediate confinement of Senior Superintendent Reynaldo Berroya, SPO4 Jose
Vienes and Francisco Kit Mateo to the Bureau of Corrections, Muntinlupa, Metro
Manila is hereby ordered.
SO ORDERED.
[1]

Parenthetically, not one of the prosecution witnesses saw the actual abduction. All
the evidence concerning accused-appellants participation in the crime is circumstantial.
The main issue in this appeal is therefore: Whether or not the circumstantial evidence
linking the accused-appellants to the kidnapping is sufficient to sustain a judgment of
conviction beyond reasonable doubt.
The facts, as culled from the record, are as follows:
Chou Cheung Yih, a Taiwanese national, was abducted by four (4) men in
Multinational Village, Paraaque, Metro Manila on May 11, 1993. His abductors seized
his cellular phone (No. 3061859) and other personal effects. The following day, his
father, Chou Cheng Fu, who was in Taipei City, was reached via telephone by the
kidnappers. They demanded a ransom of US$ 5 Million, but after several phone calls
and a protracted negotiation, they agreed upon P10 Million. The money was to be
remitted to the Fu Wa San Company, a Hongkong firm, through a jewelry store in
Taiwan.
On May 17, 1993, Chou Cheng Fu remitted the money, using a check, to Hongkong
through the aforesaid jewelry store. Chou Cheung Yih was consequently released in the
afternoon of that same day. When presented on the witness stand, Chou Cheung Yih
failed to identify anyone of the accused.
Prescinding from the foregoing, the prosecution presented Chief Inspector Wilfredo
Reyes, who testified that on April 21, 1993, an informer of his, a certain Michael
Evasco,
[2]
approached him and informed him of Francisco Kit Mateos invitation to join
a kidnap for ransom operation. Reyes knew Kit as an acquaintance of Col. Berroya, as
the former used to visit the latter at his office in 1992 and 1993. Reyes and Berroya
were then assigned to Task Force Gemini and Task Force Lawin. Reyes signifying
willingness to join the operation, asked for the name of the possible victim, but Evasco
declined.
The next morning, Reyes went to Col. Panfilo Lacson to inform him about the
kidnapping scheme. Thereupon, he was designated to go undercover to infiltrate the
group of Kit Mateo.
On April 30, 1993, C/Insp. Reyes was introduced by Evasco to Kit Mateo. Kit Mateo
told him, Okey, tutal Sir, pare-pareho naman tayong mga bata ni Berro saka ni Barako,
okey lang, sige puwede kang sumama. It was understood by Reyes that Berro referred
to accused-appellant while Barako referred to General Alqueza. Doubtful of Kit Mateos
sincerity, Evasco told the former, Pare, itong sa atin ay pera-pera lang, wala tayong
hulugan dito. Kit Mateo responded: Hindi, totoo ito. Totoo itong gagawin natin. Ang
mga taong kasama natin dito ay si Colonel Berroya, si General Alqueza, ang classmate
ni Col. Berroya na si Colonel Danilo Sta. Clara Again the subject of the kidnap
operation remained undivulged.
On May 7, 1993, Reyes together with Evasco, met with Kit Mateo at the latters
office, Le France, Jovan Condominium, Shaw Boulevard, Mandaluyong, Metro Manila.
Several other persons, including appellant Jose Vienes and William Teng, a criminal
known to Reyes, were present thereat. Kit Mateo held a meeting were they were given
their respective assignments. Michael Evasco was to lead the group who would conduct
the actual abduction. Two back-up teams were designated, with SPO4 Vienes heading
one of the two teams. Reyes was tasked to remain at Camp Crame to monitor the
activities of the operating units. As Evasco still evinced some signs of apprehension,
Mateo instructed his wife, Vinia Mateo, to call accused-appellant Berroya. She, in turn,
passed it on to Lenny Pagtakhan, one of the persons present, who later informed Kit
that wala pa si Berro, pero nagpapa return call ako. Moments later, Pagtakhan
advised Kit Mateo that Berroya was already on the line. Kit Mateo talked over the phone
and afterwards gave a thumbs up sign saying Okey na pare, at ito pala ay may
clearance na kay Barako.
On May 10, 1993, Reyes again went to the office of Kit Mateo. It was then that he
met and was introduced to accused-appellant Berroya, with Kit Mateo saying to Berroya
Sir,ang bata nyo ni Barako, kasama rin natin yan. In response, Berroya said:
Willy, pagbutihin nyo lang, ito naman ay alam ni Barako. Thereafter, they talked of
other things, allegedly because Reyes was ashamed to discuss the kidnap operation
with Berroya, who was his superior.
It was only on May 20, 1993 when Reyes came to know of the Chou kidnapping,
when Col. Lacson told him about it and ordered him to verify whether Kit Mateos group
was responsible. That evening, he met with Evasco, who made known to him how the
group kidnapped Chou. Evasco also told him that Berroya sent Kit Mateo and William
Teng to Hongkong to collect the ransom money. He was given a black paper bag
containing money. That same night, he turned over the money to Sr./Supt. Basilio
Lucero, who issued to him an unofficial handwritten receipt for P50,000.00.
In addition to C/Insp. Reyes testimony, the prosecution also presented Lenny
Pagtakhan, a comadre of Kit Mateo and his wife. Pagtakhan testified that she was
present the whole day of May 7, 1993 at Kit Mateos office. There were several persons
present, including appellant Vienes and William Teng. With Kit Mateo presiding, the
group had a meeting regarding the intended abduction of a Taiwanese
national. Michael Evasco was charged with taking the Taiwanese while SPO4 Jose
Vienes and Kit Mateo were to act as back-up. During the meeting, Kit told his wife, Vinia
Mateo, to call Berro, referring to Sr/Supt. Reynaldo Berroya. She in turn instructed
Pagtakhan to call Berro. She called Berro up but as he was not there at his office,
she paged him through his beeper. After a time, Berroya returned the call. Receiving
the call, she informed Mateo that Berro was on the line. As the two conversed, she
listened through the extension line, thus she overheard Mateo say Sir, I have already
given instructions to the group. Accused-appellant Berroya told Mateo to call him the
next day or that they should meet on Monday. Mateo replied in the affirmative.
On May 10, 1993, the whole group, including Mateo, Vienes and Teng, held another
meeting to discuss the plan to kidnap a Taiwanese national. Kit Mateo initially presided
over the meeting. However, accused-appellant Berroya took over when he arrived. He
was accompanied by C/Insp. Wilfredo Reyes. The meeting lasted until midnight. She
overheard Berroya say: O sige kailangan malinis ang pagkuha ng tao.
Pagtakhan further testified that in the afternoon of May 11, 1993, Kit Mateo and his
group, including appellant Vienes and Teng, but without accused-appellant Berroya and
Reyes, arrived at the office. They were excited, with Vinia Mateo telling her that the
Taiwanese was already downstairs. She, however, did not get to see the victim.
A week or two later, she was with appellants Mateo and Vienes when the latter
distributed the ransom money. They went to an undisclosed motor shop in Quezon City
where Mateo and Vienes, after conversing with Berroya, gave several bundles of money
to the latter (which as far as she knew was P1 Million).
On the other hand, after the kidnapping incident, an investigation was conducted by
the Presidential Anti-Crime Commission, through Col. Panfilo Lacson and C/Insp.
Michael Aquino, in coordination with Taiwanese and Hongkong authorities, Piltel and
the Philippine Long Distance Telephone Company. Based on the record of phone calls
provided by Piltel and the Royal Hongkong Police, a phone call was placed on May 11,
1993 from Chou Cheung Yihs cellular phone (No. 3061859) to Telephone No. 79-37-
85, the telephone number of Mateos Le France office. Then, on May 14, 1993, another
call was made from the same cellular phone to Telephone No. 78-35-72, a telephone
registered under the name of Samuel Abellera, a neighbor of accused-appellant at
Masbate Street, Project 4, Quezon City.
On the same day, Telephone No. 882-27-70 (Hongkong), registered under the
name of Lee Kim Jok, called 817-20-39, the direct line to the Office of the Chief of
Special Operations Group, Southern Police District Command, Fort Bonifacio, Makati,
Metro Manila. At that time, the Chief of said office was accused-appellant. On the same
day, Cellular Phone No. 305-44-65 registered under accused-appellant Berroyas name
placed a call to Telephone No. 79-37-85, the number of Kit Mateos office.
On the other hand, the aforesaid Tel. No. 79-37-85 made nine calls to Tel. No. 882-
27-70 (Hongkong); one on May 14; one on May 15; four on May 17; and another three
on May 18, 1993 during the ransom negotiations for the release of Chou Cheung Yih
and one day after his release.
Conversely, Tel. No. 882-27-70 (Hongkong) called appellant Mateos office on May
14, 15 and 16, 1993 also during the period of ransom negotiation.
Tel. No. 882-27-70 (Hongkong) also made four calls on May 15, 1993, and three
calls on May 17, 1993 to Chou Cheng Fu, father of the kidnap victim.
Tel. No. 882-27-70 (Hongkong) was traced to Flat B, 8
th
Floor, Hyde Park Mansion,
53 Peterson Street, Hongkong, which apartment was found to be registered in the name
of Lee Kim Jok and Emil Ong alias William Teng or Reynaldo Manio.
On May 14, 1993, appellant Mateo and William Teng went to Hongkong.
On May 17, 1993, William Teng collected in Hongkong the ransom money paid by
Chou Cheng Fu. This was evidenced by the fax message of Hung Chee Co. in Taipei,
to the Fu Wa San Co. dated May 17, 1993, as well as the check stub dated May 17,
1993 in the name of Reynaldo Manio. The check amounted to HK$ 2,962,963.00.
Against this factual backdrop, the Court a quo found accused-appellants Berroya,
Vienes, and Mateo guilty, as conspirators in the kidnapping of Chou.
Hence, accused-appellants recourse to this Court, wherein they raise several errors
of the lower court, summarized as follows:
1. THAT THE LOWER COURT ERRED IN ACCEPTING THE VERSION OF
PROSECUTION WITNESSES LENNY PAGTAKHAN AND CHIEF INSPECTOR
WILFREDO REYES, DESPITE THE CLEAR SHOWING THAT THESE WITNESSES
ARE NOT POSSESSED OF THE REQUIRED CREDIBILITY AND
TRUSTWORTHINESS TO OVERCOME THE CONSTITUTIONAL PRESUMPTION OF
INNOCENCE IN FAVOR OF ACCUSED-APPELLANTS.
2. THAT THE LOWER COURT ERRED IN HOLDING THAT THERE WAS
CONSPIRACY BETWEEN ACCUSED-APPELLANTS.
3. THAT THE LOWER COURT ERRED IN CONVICTING ACCUSED-APPELLANTS
DESPITE THE ABSENCE OF SUFFICIENT CIRCUMSTANTIAL EVIDENCE TO
ESTABLISH PROOF BEYOND REASONABLE DOUBT OF THE GUILT OF THE
ACCUSED-APPELLANTS.
We find the petition to be impressed with merit.
Section 14(2), Article III of the 1987 Constitution provides that (i)n all criminal
prosecutions, the accused shall be presumed innocent until the contrary is proved
Given this presumption, the State must thus prove the guilt of the accused beyond
reasonable doubt, and this presumption prevails unless overturned by competent and
credible proof. The State is required, in the discharge of the burden imposed upon it, to
establish by proof all the essential elements of the crime with which the defendant is
charged in the indictment, and to establish beyond a reasonable doubt that the accused
is guilty of said crime. In the absence of such a degree of proof of the defendants guilt,
he is entitled to an acquittal, regardless of whether his moral character is good or bad. It
is not sufficient that the preponderance or the weight of the evidence points to the guilt
of the accused, x x x as evidence showing a mere possibility of guilt is insufficient to
warrant a conviction.
[3]

The necessity for proof beyond reasonable doubt lies in the fact that (i)n a criminal
prosecution, the State is arrayed against the subject; it enters the contest with a prior
inculpatory finding in its hands; with unlimited means of command; with counsel usually
of authority and capacity, who are regarded as public officers, and therefore as
speaking semi-judicially, and with an attitude of tranquil majesty often in striking contrast
to that of defendant engaged in a perturbed and distracting struggle for liberty if not for
life. These inequalities of position, the law strives to meet by the rule that there is to be
no conviction when there is a reasonable doubt of guilt.
[4]

However, proof beyond reasonable doubt does not mean such a degree of proof as,
excluding possibility of error, produces absolute certainty. Suffice it to say that the law
requires only moral certainty or that degree of proof which produces conviction in an
unprejudiced mind.
[5]

Granted that the evidence adduced by the State to prove the guilt of the accused is
purely circumstantial, would the same amount to such as to prove beyond reasonable
doubt that the accused-appellants committed the crime charged?
The following principles must be borne in mind. First, crimes are not usually
intended to be accomplished under the direct gaze of witnesses; nor is the planning
thereof done in public. Hence, the necessity of circumstantial evidence to prove the
same. But for circumstantial evidence to be sufficient to support a conviction, all the
circumstances must be consistent with the hypothesis that the accused is guilty and at
the same time inconsistent with the hypothesis that he is innocent, and with every other
rational hypothesis except that of guilt.
[6]
Thus, for circumstantial evidence to be
sufficient for conviction, the following requisites must concur: (i) there must be more
than one circumstance to convict; (ii) facts on which the inference of guilt is based must
be proved; and (iii) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.
While it is true that no general rule has been formulated as to the quantity of
circumstantial evidence which will suffice, the Solicitor General believes that in the
instant case the prosecution has failed to overthrow the constitutional presumption of
innocence in favor of appellant Berroya.
We agree. Furthermore, as regards appellant Vienes, we find that the State has
also failed to adduce the quantum of proof necessary to convict him.
We shall discuss the evidence and our findings as the same pertain to each of the
appellants.
With respect to accused-appellant Berroya, the trial court implicated him as a
principal, allegedly through his conspiracy with the group which kidnapped Chou
Cheung Yih. In the words of the trial court:
Now, with respect to Senior Superintendent Reynaldo Berroya:
The Court is convinced that he indeed presided in the meeting held on May 10, 1993
at Le France, Jovan Condominium, Shaw Boulevard, Mandaluyong, Metro Manila.
The act of presiding over a meeting to plan the kidnapping of a person and then the
kidnapping took place and ransom was paid is a very conclusive proof that the chain
of evidence is complete. It is unbroken. This is further bolstered by the fact that the
person tasked to do the actual kidnapping, the back-ups and others who are involved
were present during that meeting.
Another evidence that shows the participation of Senior Superintendent Reynaldo
Berroya is his call to the office of Francisco Mateo on May 14, 1993, after the
kidnapping and the telephone he used is Cellular Phone No. 305-44-65. And also
there were other calls made that will show that he is connected with the kidnapping
because phone no. 8822770, being used by Reynaldo Manio in Hongkong called
Senior Superintendent Reynaldo Berroya at the latters office at SOG, Southern Police
District, Fort Bonifacio, Makati, Metro Manila. This was after the kidnapping and
prior to the payment of ransom. As has been stated the ransom has been taken by
Reynaldo Manio alias William Teng, one of those present during the meeting of May
10, 1993 which was partly presided by Senior Superintendent Reynaldo Berroya.
The defense of Senior Superintendent Reynaldo Berroya are alibis and denials, the
weakest defenses that can be put up by any accused. His defenses failed to overcome
the evidence against him.
The fact of his conspiracy with the group who kidnapped Chou Cheng Yih has been
established beyond reasonable doubt.
If there is a planning with respect to the commission of the crime and there are
subsequent events that will lead to the conclusion that those who attended the meeting
to pursue the crime then they become liable not only as accessory or accomplice but
as principal.
[7]

The evidence taken against him consists of the testimonies of C/Insp. Reyes and
Lenny Pagtakhan, as well as the record of phone calls made from and to him.
However, as regards the testimony of C/Insp. Reyes, a substantial part thereof is
inadmissible. It must be stressed that Reyes never learned the identity of the intended
victim, but only that a kidnap operation was being planned by Kit Mateos group.
Furthermore, he never participated in the actual kidnapping, but was only told the
details thereof by Michael Evasco on May 20, 1993. A witness can testify only to those
facts which he knows of his personal knowledge, that is, which are derived from his own
perception...
[8]
Thus, the same is hearsay which is inadmissible in evidence.
Kit Mateos statement on April 30, 1993 to the effect that Okey, tutal Sir, pare-
pareho naman tayong mga bata ni Berro saka ni Barako, okey lang, sige puwede kang
sumama, as well as Mateos statement to assuage Evascos fears in this wise Hindi,
totoo ito. Totoo itong gagawin natin. Ang mga taong kasama natin dito ay si Colonel
Berroya, si General Alqueza, ang classmate ni Col. Berroya na si Colonel Danilo Sta.
Clara are likewise inadmissible against accused-appellant Berroya as the rights of a
party cannot be prejudiced by an act, declaration, or omission of another...
[9]
Res inter
alios acta.
With reference to the May 7, 1993 telephone conversation, Kit Mateo supposedly
talked to Berroya in this wise: Okey na pare, at ito pala ay may clearance na rin kay
Barako. There is no showing that it was indeed Berroya that Kit was talking to. And
furthermore, even if it was indeed accused-appellant, the same is ambiguous at best.
There is no proof as to the exact conversation between Kit and the accused-appellant,
nor that the statement alluded to refers to the kidnapping of Chou.
The same observation goes for Berroyas alleged statement to Reyes on May 10,
1993 that: Willy, pagbutihin nyo lang, ito naman ay alam ni Barako. Again, the
utterance is equivocal. In fact, according to Reyes, other than said statement, the
kidnapping operation was never discussed by him and accused-appellant on that day.
As to Reyes contention that he was tasked to infiltrate Mateos group, the same is
open to doubt. It is undisputed that he never submitted any report, nor was he
mentioned in the PACC reports. The P50,000.00 allegedly given to him by Evasco was
evidenced only by an unsigned handwritten receipt, and the same was never included
by PACC in its reports to the Department of Justice regarding the matter. Lastly, Reyes
was supposedly invited by Mateo to participate in the kidnapping, yet it was only on May
20 when he learned of the same.
Moreover, it is odd that it was Evasco, the supposed emissary between Mateo and
Reyes, and one of those supposed to be involved in the operation, who showed signs of
apprehension at the outcome of the plan, such that he needed to be given proof of
accused-appellant Berroyas participation in the nefarious plan, while Reyes, the
newcomer, never became wary of the groups bona fides. It can thus be seen from the
above discussion that C/Insp. Reyes testimony is riddled with inconsistencies and
infirmities such that it lacks that degree of conclusiveness required to convict the
appellant.
Similarly, Lenny Pagtakhan, the other principal witness, gave inconclusive
testimony as to appellant Berroyas complicity in the crime charged.
She testified that Kit Mateo and accused-appellant Berroya had a telephone
conversation on May 7, 1993, where she overheard Mateo tell appellant that he had
given instructions to the group. Appellant Berroya then said, All right, call me up
tomorrow or let us meet on Monday. Standing alone, there is nothing incriminatory in
the above statement.
With respect to the May 10, 1993 meeting to kidnap a Taiwanese national, allegedly
presided over by Berroya, the actual name of the victim was never mentioned. In fact,
Pagtakhan admitted that she was not a participant thereof, as the same was held
behind closed doors. On cross-examination, she changed her testimony, saying that the
statement O sige kailangan malinis ang pagkuha ng tao, which she initially imputed to
appellant was not said by Berroya, but actually by Kit Mateo.
Additionally, her version of facts conflicts with that of C/Insp. Reyes. She alleged
that on May 10, 1993, the group discussed the kidnap scheme from 5:00 p.m. until
midnight. Reyes, on the other hand, denies that there was a discussion of the same,
purportedly because he was ashamed to discuss the same with his superior. Her
narration that accused-appellant Berroya arrived at the Le France office accompanied
by Reyes is contradicted as well by Reyes, who said that accused-appellant was
already at the Le France office in the evening of May 10, 1993 when he arrived.
As for the money allegedly given to Berroya by Kit Mateo, there is no proof that it
came from the ransom money paid by Chou Cheng Fu.
Given the above disquisition, the testimony of Lenny Pagtakhan, with regard to
appellant Berroya, cannot likewise be accorded the trustworthiness and credibility
required of a witness in a criminal case.
Finally, as to the matter of the phone calls presented in evidence as allegedly
incriminatory of Berroya, the records only identify the numbers where the calls were
made and received. They do not show who were the actual caller and receiver thereof;
nor do they reveal the matters discussed during the telephone conversations. To inject
sinister meaning to these calls is risky, being fraught with speculation.
As regards the first call, the same was made from Chous cellular phone at the time
that he was already in captivity. However, the call was directed to Samuel Abellera, a
neighbor of accused-appellant. It proves nothing as to the guilt of the accused. Berroya
and his neighbor are two distinct individuals, and absent proof that it was accused-
appellant Berroya who received the call, the same cannot be held against him.
The second call from Hongkong to the Special Operations Group, Southern Police
District Command, Fort Bonifacio, again does not constitute conclusive proof of
Berroyas guilt. Although appellant was the chief of said office, there is no showing that
he was the one who received the call. In fact, said phone was registered in the name of
the government. Moreover, the prosecution witness failed to state under oath that the
same was not being used by other members of the Special Operations Group.
As for the third call made on May 14, 1993, there is no evidence as to the subject
matter of the conversation thereof. Worse, Kit Mateo never went to his office on that
day as he was in Hongkong at the time. Then too, it must be borne in mind that Mateo
and accused-appellant Berroya were longtime acquaintances. A telephone call between
them, if it transpired at all, is not highly improbable or even suspect.
In the words of the Solicitor General, the theory of the prosecution against
appellant Berroya has too many loose ends that it has dismally failed to tie up to the
satisfaction of the constitutional requirement of proof beyond reasonable doubt.
Appellant Berroyas twin defenses of alibi and denial, to be sure, are weak, but the
incurably ambiguous evidence of the prosecution simply cannot justify appellant
Berroyas condemnation for the rest of his life where there are disturbing whispers of
doubt that he is guilty.
[10]

As to appellant Jose Vienes, the evidence presented against him by the State only
establishes his presence at the May 7, 1993 and the May 10, 1993 meeting at the Le
France office in Mandaluyong. During those meetings, a kidnapping scheme, with an
undisclosed Taiwanese national as victim, was hatched. Appellant Vienes was to serve
as backup during the actual kidnapping. Additionally, Vienes is said to have been
present on May 11, 1993 at the Le France office when the group allegedly had the
kidnap victim at the basement thereof.
Again, it must be emphasized that not one of the prosecution witnesses saw the
actual kidnapping. No one saw appellant Vienes participate therein. Even the victim
failed to identify him as one of the perpetrators thereof. In point of fact, the trial court
convicted him as a principal largely due to his alleged conspiracy with Mateo. The
finding of conspiracy was based on his close friendship with Mateo and his presence in
those two crucial meetings. As the trial court found it:
With respect to SPO4 Vienes, said accused was present during the meetings of May
7 and 10, 1993 at Le France, Jovan Condominium, Shaw Boulevard, Mandaluyong,
Metro Manila. He was given task allocation (sic) as a back up of Michael Evasco and
that on May 11, 1993, SPO4 Jose Vienes was present at Jovan Condominium at Le
France Office, Mandaluyong, Metro Manila after the kidnapping of the Taiwanese
Chou Cheung Yih. He is a close friend of Francisco Kit Mateo and he even
recommended to Kit Mateo a friend to become a janitor in the office of Francisco
Kit Mateo.
SPO4 Jose Vienes cannot impute any evil motive, such as revenge, spite or whatever
that will prompt Lenny Pagtakhan and Chief Inspector Wilfredo Reyes to testify
against him.
His defense consisting of mere denials and alibi are so weak compared to the positive
identification against him. His having been at Le France, Jovan Condominium, Shaw
Boulevard, Mandaluyong, Metro Manila together with those who actually kidnapped
Chou Cheung Yih is a proof that indeed he complied with the plan for him to be a
back up.
[11]

It must be kept in mind that conspiracy must be established by positive and
conclusive evidence. It cannot be based on mere conjectures but must be established
as a fact. The same degree of proof required to establish the crime is necessary to
support a finding of the presence of conspiracy, that is, it must be shown to exist as
clearly and convincingly as the commission of the offense itself.
[12]
An assumed intimacy
is of no legal bearing inasmuch as conspiracy transcends companionship.
[13]

Furthermore, in order to hold an accused liable as co-principal by reason of
conspiracy, he must be shown to have performed an overt act in pursuance or
furtherance of the conspiracy. That overt act may consist of active participation in the
actual commission of the crime itself, or it may consist of moral assistance to his co-
conspirators by being present at the time of the commission of the crime, or by exerting
moral ascendancy over the other co-conspirators by moving them to execute or
implement the conspiracy.
[14]
Hence, the mere presence of an accused at the discussion
of a conspiracy, even approval of it without any active participation in the same, is not
enough for purposes of conviction.
[15]
Thus, assuming Vienes was a participant in the
planning to abduct a Taiwanese national, in the absence of eyewitnesses to the actual
abduction, there is a paucity of evidence as to whether or not Vienes carried out his part
of the plan.
Given the above, it becomes painfully apparent that Vienes presence at the May 7
and May 10 meetings is insufficient to convict him. In fact, even the evidence as to his
presence in the May 10, 1993 meeting is inconclusive. While both Reyes and
Pagtakhan pinpoint appellant Vienes as present in the May 7 meeting, Reyes does not
say that he was present on May 10. Pagtakhan, on the other hand, says he was. His
presence at Le France on May 11, 1993, when the victim was said to be downstairs,
cannot be held against him, as the same is belied by the prosecution itself, which claims
that the victim was never brought to Le France.
Consequently, without proof that appellant Vienes personally took part in the
execution of the kidnapping, there is only at most, a conspiracy with the other accused.
Conspiracy alone, without the execution of its purpose, is not a crime punishable by law
except in special cases,
[16]
none of which is present in the case at bar; hence, appellant
Vienes cannot be held criminally liable.
However, accused-appellant Kit Mateo tells of an altogether different story. The
facts on record as regards him constitute an unbroken chain leading to the fair and
reasonable conclusion that he is guilty of kidnapping.
While the testimonies of prosecution witnesses C/Insp. Wilfredo Reyes and Lenny
Pagtakhan may not have produced the moral certainty necessary to convict appellants
Berroya and Vienes, the same, coupled with the other pieces of evidence gathered by
the prosecution, are more than sufficient to overthrow the presumption of his innocence
and establish his culpability beyond reasonable doubt.
Consider the following antecedents. It has been proved that indeed there was a
plot to kidnap a Taiwanese national, albeit his identity was unknown. The same was
formulated on May 7 and May 10, 1993. Appellant Mateo was present at the aforesaid
meetings; in fact, he presided over the same. William Teng was present at these
meetings.
In the afternoon of Chou Cheung Yihs abduction, his cellular phone was used by
his abductors to call Mateos Le France office. During the ransom negotiations, there
was an exchange of phone calls between appellant Mateos telephone and William
Tengs place in Hongkong. During the same period, William Tengs telephone called up
the victims father seven times. Appellant Mateo presented not a single shred of
evidence to rebut or explain the reason for such calls. Certainly, such exchange of
phone calls cannot be considered merely coincidental.
On May 14, 1993, appellant Mateo went to Hongkong with William Teng, allegedly
to buy spare parts for a Volkswagen used for racing. Appellant never presented any
proof of his purchase of said spare parts, nor that such spare parts were unavailable in
the Philippines. His reason for going to Hongkong is vague and tenuous.
The above-mentioned circumstances further bolster the inculpatory link between
appellant Mateo and William Teng, the person who personally collected in Hongkong
the ransom money remitted by Chou Cheung Yihs father on May 17, 1993.
Taken altogether, the unequivocal testimonies of the principal witnesses pointing to
appellant Mateo as the one who presided over the May 7 and May 10 meeting at Le
France; William Tengs presence at the aforesaid meetings; appellants close
association with William Teng; appellants trip to Hongkong together with William Teng;
the series of calls between Mateos office and Tengs flat in Hongkong; the calls from
Tengs flat to the victims father during the same period; and William Tengs collection
and receipt of the ransom money all collectively and ineluctably constitute an
unbroken chain leading to a single conclusion that there was a consummated
conspiracy between appellant Mateo and Teng to kidnap Chou Cheung Yih for ransom.
Appellant Mateo assails the credibility of prosecution witnesses Reyes and
Pagtakhan. Although the same cannot be relied upon to convict appellants Berroya and
Vienes, the same does not hold true as regards appellant Mateo. The testimony of a
witness may be believed in part and disbelieved in part, as the corroborative evidence
or the lack thereof and the probabilities and improbabilities of the case may
require.
[17]
We find appellant Mateo guilty of the crime charged.
Now for a final point that needs must be stressed lest it be misconstrued that the
ruling of this Court is a categorical declaration as to the innocence of accused-
appellants Berroya and Vienes. It is the law that requires proof beyond reasonable
doubt. This, the prosecution has failed to even approximate. It does not mean that
accused-appellants are lily-white or as pure as driven snow. To be sure, if the
inculpatory facts and circumstances are capable of two or more explanations, one of
which is consistent with the innocence of the accused of the crime charged and the
other consistent with their guilt, then the evidence does not fulfill the test of moral
certainty and is not sufficient to support a conviction. This, from the beginning, has been
the lodestar of our accusatorial system of criminal justice.
We call to mind what Alfonso El Sabio was reputed to have said a long time ago:
Mas vale que queden sin castigar diez reos presuntos, que se castigue uno
inocente.
[18]

WHEREFORE, premises considered, the decision appealed from with respect to
accused-appellant REYNALDO BERROYA and SPO4 JOSE VIENES is hereby
REVERSED and ASIDE. Accused-appellants Berroya and Vienes are acquitted of the
charge of kidnapping on grounds of reasonable doubt and their immediate release from
custody is ordered unless they are being held on other legal grounds.
As for accused-appellant FRANCISCO KIT MATEO, the decision appealed from is
hereby AFFIRMED.
SO ORDERED.
Narvasa, C.J., (Chairman), Melo, and Francisco, JJ., concur.
Panganiban, J., in the result.



[1]
Decision, pp. 331-332.
[2]
Michael Evasco, a criminal with a P250,000.00 price on his head, was killed during an armed encounter
in Cebu City on January 17, 1994.
[3]
Francisco, Evidence, 3
rd
Ed., p. 576, citing State vs. Postal Tel. Cable Co., 53 Mont. 104.
[4]
Id., p. 577, citing Whartons Criminal Evidence.
[5]
People vs. Gapasan, 243 SCRA 53 [1995].
[6]
People vs. Casingal, 243 SCRA 37 [1995] citing People vs. Jara, 144 SCRA 517.
[7]
Decision, pp. 327-328.
[8]
Sec. 36, Rule 130, Rules of Court.
[9]
Sec. 28, Rule 130, Rules of Court.
[10]
Solicitor Generals Manifestation and Motion, pp. 37-38.
[11]
Decision, p. 329.
[12]
Pareo vs. Sandiganbayan, 256 SCRA 242 (1996), citing Macadangdang vs. Hon. Sandiganbayan,
170 SCRA 308 (1989).
[13]
People vs. Paguntalan, 242 SCRA 753 (1995).
[14]
People vs. Tami, 244 SCRA 1 (1995).
[15]
People vs. Cortez, 57 SCRA 508 (1974).
[16]
See Art. 8, Revised Penal Code.
[17]
People vs. Somooc, 244 SCRA 731 (1995).
[18]
People vs. Cunanan, 19 SCRA 769 (1967), citing Frases, Ideas y Pensamientos de Varios Autores
recopilados por Pablo Buill, p. 112.


SECOND DIVISION

[G.R. No. 100198, July 01, 1992]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. CHARLIE VILLORENTE AND TERESITA VILLORENTE,
ACCUSED-APPELLANTS.

D E C I S I O N

PARAS, J.:

This is an appeal from the decision* of the Regional Trial Court of Kalibo, Aklan, Branch I, convicting accused-appellants Charlie Villorente
and Teresita Villorente of the complex crime of abduction with rape and imposing on them the penalty ofreclusion perpetua and the
indemnification of the offended party in the amount of P50,000.00.
Appellants were charged with abduction with rape in an information which reads as follows:
"That on or about the 25th day of March, 1986, in the Municipality of Kalibo, Province of Aklan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with deceit and abuse of confidence, did then and there, willfully, unlawfully and feloniously,
abduct one JONA NERON, a woman of tender age from the house of Claire Tioco at New Buswang, Kalibo, Aklan, where said JONA NERON was
working as domestic servant, to Ogsip, Libacao, Aklan and once there in the house of the accused, the above-named accused CHARLIE
VILLORENTE, in conspiracy with the other accused TERESITA VILLORENTE, by force and intimidation employed upon the person of the
offended party, have sexual intercourse with JONA NERON against her will.
"That as a result of the criminal acts of the accused, the offended party suffered moral damages in the amount of FIFTY THOUSAND PESOS
(P50,000.00). (Rollo, p. 18; Original Record, p. 98).
Upon arraignment, both appellants entered a plea of not guilty (Original Records, p. 41).
At the trial, the prosecution presented five (5) witnesses, namely: Claire Tioco, Jona Neron, Sofia Neron, Giovanni Roma and Dr. Emily
Bacolod.
CLAIRE TIOCO, a teacher and employer of Jona Neron, testified that on March 15, 1986, a man whom she later identified as accused Charlie
Villorente came to her house at New Buswang, Kalibo, Aklan, to fetch Jona Neron on the pretext that Jona's father was sick. She did not,
however, allow Jona to go with the man as she was suspicious of the latter (TSN, Hearing of Nov. 9, 1989, pp. 3-5).
On March 25, 1986, a woman who claimed to be Jona's mother and who later turned out to be accused Teresita Villorente, the mother of
Charlie Villorente, came to her house. This woman identified herself as the mother of Jona and she asked permission from her (Claire Tioco)
to bring along Jona with her. Jona likewise asked her permission to go home to Balete for several days. The two left the Tioco house at
around 3:00 o'clock in the afternoon of that day. At a certain distance from her house waited a man whom she later identified as accused
Charlie Villorente (Ibid., pp. 4-5, 9). On March 29, 1986, however, another woman who claimed to be the real mother of Jona, came to her
house (Ibid., p. 4).
JONA NERON testified that on March 25, 1986, she was employed as a helper in the house of Claire Tioco at the Ati-Atihan Compound, New
Buswang, Kalibo, Aklan. On that day, Teresita Villorente, allegedly her aunt, told her that she had to go home with her because her father
was sick (Ibid., Hearing of November 13, 1989, pp. 14, 16). Charlie Villorente was with Teresita at that time. The three of them took a jeep
from Kalibo reaching the poblacion of Balete at about 4:00 o'clock in the afternoon (Ibid., p. 6; Hearing of January 5, 1990, p. 11). From the
poblacion, they took a tricycle to Bgy. Morales instead of Bgy. Arcangel where Jona's family lived (Ibid., Hearing of Nov. 13, 1989, pp. 5-6).
From Bgy. Morales, they proceeded to Bgy. Ogsip where accused Teresita and Charlie Villorente lived. (Ibid., p. 7).
On their way to Bgy. Ogsip, both accused kept on threatening her not to run away. Charlie had a bolo which he took from a house in the
poblacion of Balete (Ibid., Hearing of Jan. 5, 1990, pp. 11-12, 14). His hand was on its handle all the way to Bgy. Ogsip and he kept on
unsheathing it. She was "not in (her) mind at that time because they (Charlie and Teresita) put a handkerchief over (her) head" (Ibid., p.
15), but along the way, she complained to them why they were proceeding to Bgy. Morales instead of Bgy. Arcangel (Ibid., pp. 7-8).
They reached the house of the accused at about 6:30 p.m. (Ibid., p. 15). Teresita's family prepared supper, but she did not eat because of
her headache. She was directed by Charlie's parents to a room with two beds and on the wider one, she and the two sisters of Charlie slept
(Ibid., pp. 15-17; Hearing of Jan. 10, 1990, pp. 16 & 19).
Sometime during the night, she was awakened when Charlie started molesting her. He so held her feet and her hands that she could not
move. (Ibid., Hearing of January 5, 1990, p. 19). Charlie dragged her to the smaller bed. She kicked and punched him and struggled, but
Charlie was much stronger than she was (Ibid., Hearing of Jan. 10, 1990, pp. 20-21). He also threatened to cut off her head should she shout
or run away (Ibid., Hearing of Jan. 5, 1990, p. 23). In fact, he was holding the bolo with his right hand, while his left hand was pressing her
down (Ibid., Hearing of January 5, 1990, pp. 22-23). After removing her panty, Charlie had sexual intercourse with her. She felt pain because
it was her first sexual intercourse. Although she did not cry out loud, she knew Charlie's parents heard her (Ibid., Hearing of Jan. 10, 1990,
pp. 18-19). She did not call for help from Rosemarie and Jovita, Charlie's sisters, who had gone outside the room while she was sleeping
(Ibid., Hearing of Jan. 5, 1990, p. 20).
After she had been abused twice that night, she transferred to the sala, but Charlie also followed her. She lay down on the floor, but Charlie
remained seated. She did not think of going home because it was only about 3:00 a.m. and it was very dark. She was also afraid of Charlie
(Ibid., pp. 78-80). She was abused two times a night for three nights (Ibid., Hearing of Jan. 5, 1990, pp. 21-22; Hearing of Jan. 10, 1990, p.
3).
At about 6:00 o'clock in the morning on the second day of her abduction, she was brought to the house of Jerry, Charlie's older brother, so
that her parents would not find her. She was also brought to the house of the Barangay Captain of Ogsip who told her that she would be
married to Charlie if her parents would consent thereto, but she refused saying that she was not yet of age and she had no love for Charlie.
She did not tell the Barangay Captain that she had been abused by Charlie because she was ashamed about what happened to her. Instead,
she told the Barangay Captain that she wanted to go home, but Teresita, Charlie and the latter's father Leopoldo, prevented her from doing
so. Despite his knowledge about her predicament, the Barangay Captain just told her that the Villorente couple wanted her to be their
daughter-in-law (Ibid., Hearing of Jan. 10, 1990, pp. 4-9).
On the 26th of March, her father went to the house of Charlie and stayed there for ten minutes. Her father told the father of Charlie that he
would not consent to her marriage as he wanted her to continue with her studies. She could not talk to her father because Charlie's mother
and two sisters were always by her side. They kept a watch on her even if she would go to the toilet. She was finally able to go home when
she was fetched by her uncle from the house of the Villorentes. Her uncle told the father of Charlie that they should go to their (Neron's)
place if Charlie was determined to marry her. However, she refused to marry him and opted to file this case (Ibid., pp. 10-17).
According to Jona, she learned from her grandmother that Teresita, Charlie's mother, was their distant relative. However, it was only while
she was studying in Balete that she first saw Charlie. He used to stay in the house of her grandmother where she also stayed or that of his
sister-in-law which adjoined the house of her grandmother. He would look at her, but he never talked to her although he told other people
that he wanted to court her. He was always in Balete because of her, but during the only chance that he talked to her, she ignored him (Ibid.,
Hearing of Jan. 5, 1990, pp. 28-30).
SOFIA NERON, mother of Jona, testified that in March, 1986, Jona worked in the house of Claire Tioco as a domestic helper (Ibid., Hearing of
Jan. 4, 1990, p. 5). On March 26, 1986 at about 9:00 o'clock in the morning, she was informed by her brother, Revico Dominguez, that her
daughter Jona was in the house of the Villorentes at Bgy. Ogsip. She and her husband went to the house of Bgy. Councilor Blas Ruiz in Ogsip,
who informed them that the father of Charlie came to his house early in the morning, informing him that Jona was in their house. Jona,
Charlie and the latter's parents were present at the time (Ibid., p. 44). She was asked by Ruiz if she was amenable to the wedding of Jona
and Charlie, to which she replied in the negative. She then manifested her intention to bring home Jona with them, but the Villorentes would
not allow Jona (Ibid., pp. 6-10). On Friday, she, her husband and Bgy. Councilor Giovannie Roma of Arcangel went to the house of the
Villorentes in Ogsip and they were finally able to get Jona from the Villorentes. Because Jona told her that she was sexually abused by
Charlie, she sought the advice of the Barangay Captain of Arcangel. He told her to report the matter to the police station of Balete (Ibid., pp.
10-13).
Sofia testified further that she was angered by the fact that the Villorentes filed a "complaint" before the Barangay Captain against her and
her husband, alleging that Jona was staying with the Villorentes when in fact she was the aggrieved party (TSN, Hearing of Jan. 11, 1990, p.
9). At the house of Ruiz, she was prevented by Ruiz from conversing with Jona, notwithstanding the fact that her daughter was only two
meters away from her. When she saw Jona, she noticed that she was in a state of shock with her head "hanging" (Ibid., pp. 13-14). At home,
after they had finally taken Jona from the Villorentes, her daughter narrated to her how, in Balete, while she was struggling to go home,
Teresita took out a smelly white handkerchief from her pocket, put it over Jona's head and Jona "lost her senses" and that, when they arrived
at the Villorentes house, Leopoldo, Charlie's father, put some pounded ginger on Jona's head and stomach causing her to fall asleep (Ibid., p.
16). Jona also related to her that Charlie sexually "used" her by force for three nights (Ibid., pp. 17-18).
GIOVANNIE ROMA, Bgy. Councilor of Arcangel Sur, Balete, Aklan, testified that sometime in the latter part of March, 1986, Sofia Neron
sought his help in getting Jona from the Villorentes in Bgy. Ogsip. He first asked permission from the Libacao police to summon Teresita
Villorente and Charlie Villorente. His request not having been acted upon, he personally went to the house of the Villorentes in Bgy. Ogsip,
together with Jona's parents, to fetch Jona. Charlie and his parents were angry with him for taking Jona and even threatened to file a
complaint for hold-up against him (Ibid., Hearing of Jan. 4, 1990, pp. 14-20). In fact, after Jona had requested him to take her home, he
heard Charlie screaming loudly inside the room (Ibid., Hearing of Jan. 10, 1990, p. 24). He tried to facilitate the marriage of Charlie to Jona,
but the latter refused to marry Charlie and opted instead to file this case (Ibid., p. 28).
DR. EMILY T. BACOLOD, a senior resident physician of Mr. Rafael S. Tumbokon Memorial Hospital, examined Jona at 2:00 p.m. on April 2,
1986 (Ibid., Hearing of June 27, 1990, p. 140). Her findings, as indicated in the medico-legal report, were: "No hematoma nor abrasion
appreciated. Hymen - old laceration at 5:00 o'clock 7:00 o'clock. Admits 1 finger easily, admits 2 fingers with difficulty" (Exh. "D"). She
testified that a hematoma or an abrasion may disappear between 24 to 48 hours from the time it was inflicted and that the laceration in the
victim's sexual organ could have been due to sexual intercourse on March 25, 1986 (TSN, Hearing of June 27, 1990, pp. 8-9).
On its part, the defense presented only appellant Teresita Villorente as the lone witness. Appellant Charlie Villorente, although given several
opportunities by the lower court, failed to testify in his own behalf.
TERESITA VILLORENTE merely swore that she was in Manila on March 25, 1986, and that she did not know Claire Tioco. She was however,
ambivalent as to whether she went to Manila in 1986 or 1989 (Ibid., Hearing of September 27, 1990, p. 151).
On January 29, 1991, as stated at the outset, a judgment of conviction was rendered by the trial court. The dispositive portion of the decision
reads as follows:
"WHEREFORE, judgment is hereby rendered finding accused Charlie Villorente and Teresita Villorente guilty beyond reasonable doubt of the
crime of Abduction with Rape and sentencing each accused to suffer the penalty of Reclusion Perpetua, to indemnify the offended party the
amount of P50,000.00, to suffer the accessory penalties prescribed by law and to pay the costs." (Rollo, p. 50).
In this appeal, the appellants insist in their innocence and claim that the evidence of the prosecution does not warrant their conviction. They
argue that the failure of the complainant to shout for help while in the presence of several people in Kalibo and also while at the parking lot in
Balete when she was brought there by the appellants, or to make an outcry or protest when she was allegedly raped inside the room where
the two (2) sisters of appellant Charlie Villorente were also sleeping, rendered her testimony incredible. The appellants likewise argue that
complainant's claim that appellant Charlie Villorente was holding a bolo in his right hand and her mouth with his left hand, while said
appellant was in the process of raping her, is unbelievable and unnatural. Finally, it is the contention of the appellants that the lacerations
found in the private part of complainant upon examination by Dr. Emily Bacolod showed that the same may have been older by ten (10) days
prior to March 25, 1986, when the offense in question was committed.
Clearly then, this appeal is primarily on the issue of credibility of the prosecution witnesses. As the Court has time and again ruled, the
findings of the trial court on the matter of credibility of witnesses will not be disturbed on appeal in the absence of any showing that the trial
court overlooked, misunderstood or misapplied some facts or circumstances of weight and substance that would have affected the result of
the case (People v. Baduya, 182 SCRA 57 [1990]). In this case, such findings should be accorded much respect if not conclusive effect
(People v. Caldito, 182 Phil. 66 [1990]; People v. Dinola, 183 SCRA 493 [1990]) in view of the appellants failure to show convincingly that
they should be disregarded.
As in most rape cases, the testimony of the victim seals the culpability of the accused and therefore it should be subjected to close scrutiny.
On this issue, worth quoting are the trial court's observations on Jona Neron's demeanor and credibility:
"At the time of her abduction and rape, Jona Neron was only fifteen (15) years old. When she first took the witness stand on November 13,
1989, she was already eighteen (18) years old, a married woman who has borne a child. Yet her comeliness is very evident. Complainant is
petite, fair complexioned and with a fresh, innocent expression. She is quite a pretty girl. Four (4) years ago when the offense complained of
was committed, she must have looked really attractive so much so that accused Charlie Villorente, ten (10) years her senior was attracted to
her.
"x x x x x x x x x.
"The Court had observed Jona as she testified. Her testimony had been straightforward and without any inconsistencies on material points.
She did not hem and haw under the rigid cross-examination of the defense counsel. Her whole declaration was characterized by candor and
lack of guile. Furthermore, all the testimonies of the prosecution witnesses corroborated each other. (Decision, p. 5; Rollo, p. 46).
Indeed the simplicity of the testimony of Jona convincingly shows that she was telling the truth about her having been taken by appellants
and later sexually abused by appellant Charlie Villorente.
"x x x
Q. When you left the house of Claire Tioco, you were accompanied by Teresita Villorente and Charlie Villorente on the pretext (sic) that your
father was sick, am I correct?
A. Yes, sir.
x x x
Q. Why did you go with them at (sic) the house of Charlie Villorente when you know very well that your father according to them was sick
then at Arcangel, Balete, Aklan?
A. Because according to them, my mother is taking care of my father and they were the ones who knew the house where I was staying here
in Kalibo.
x x x
Q. Now, what time did you arrive at the house of Charlie Villorente on March 25, 1986?
A. About 6:30 in the evening.
Q. After you arrived in the house of Charlie Villorente what did you do?
A. I was surprised why they brought me in their house, I was rather naive.
x x x
Q. What time did you sleep?
A. I do not know what time.
Q. Where did you sleep, in what portion of the house did you sleep?
A. In their room.
Q. Who was your companion in the room?
A. His brothers and sisters.
Q. You have stated here in your sworn statement and I quote: On March 25, 1986, at about 8:00, I was forced by Charlie Villorente to have
sexual intercourse in the house of Teresita Villorente, now, do you still affirm to the correctness of this statement?
A. Yes, sir.
Q. How did Charlie Villorente force (sic) you to (sic) sexual intercourse with him when you were sleeping inside the room with his brothers
and sisters?
A. I did not agree but still he forced me.
Q. When you said you (sic) not agree, what do you mean by that?
A. He threatened me if (sic) I will make noise, he will use his bolo because he had a bolo on his side.
Q. Did you not shout or make noise so that the other persons who were sleeping inside the room will take note what is happening to you?
A. I was at a loss on what to do.
x x x
Q. Now, you have stated here in your statement that you pushed him. You are referring to Charlie Villorente that it was true (sic) and also
threatening not to shout because if you shout he will use his bolo, do you still confirm to the correctness of your statement?
A. Yes, sir.
Q. And you also stated that he abused you twice in the same evening. When you say abused, sexual intercourse?
A. Yes, sir.
Q. And it was also against your will that he had sexual intercourse with you during the second time?
A. Yes, sir.
x x x
Q. According to your statement where you were sexually abused in the evening of March 26, 1986, that is the following night, is it already
with your consent that he had secually (sic) intercourse with you on that night?
A. At first, I refused but later, consented (sic) him because I was afraid I might, (sic) he always had a bolo on his side.
Q. How long did you stayed (sic) in the house of Charlie Villorente?
A. About five (5) days.
Q. And during the time that you were staying in that house, he sexually abused you during the night?
A. Yes, sir."
(TSN, Hearing of Nov. 13, 1989, pp. 16-21).
Even if Jona's testimony on how she was raped was uncorroborated, it is sufficient to justify a conviction for it is credible and positive as it in
fact satisfied the trial court beyond reasonable doubt (People v. Soliao, 194 SCRA 250 [1991]). Moreover, this Court cannot doubt Jona's
sincerity. It would be hard to believe that a naive barrio girl like Jona would undergo the expense, trouble and inconvenience of a public trial,
not to mention suffer the scandal, embarrassment and humiliation such action inevitably invites, as well as allow an examination of her
private parts if her motive were not to bring to justice the person who had abused her. A victim of rape will not come out in the open if her
motive were not to obtain justice (People v. Rio, 207 SCRA 702 [1991]; People v. Pasco, 181 SCRA 233 [1990]).
On the other hand, Jona's testimony on how appellants used a ruse in enticing her to go with them is corroborated by Claire Tioco's
confirmation in court of her earlier sworn statement to the effect that Teresita Villorente misrepresented herself as the mother of Jona who
wanted her home because of the alleged ailment of her father and that while Teresita conversed with her, Charlie waited at a certain distance
(TSN, Hearing of November 9, 1989, pp. 5-6).
Of course, Teresita Villorente tried to extricate herself from the crime by testifying that she was in Manila on March 25, 1986 and that she did
not know Claire Tioco. Her defense of alibi, however, carries no weight in the face of Jona's positive identification of her as the person who,
pretending to be her mother, took Jona frorm her employer's place. Teresita was also positively identified by Claire Tioco as the same person
who fetched Jona on March 25, 1986. As between the version of said prosecution witnesses and that of appellant Teresita, the former is more
credible because their testimonies are clear and free from contradictions (People v. Bacalzo, 195 SCRA 557 [1991]). It should be noted that
Teresita, inspite of proddings from her counsel, could not definitely state in court whether it was in 1986 or in 1989 that she was in Manila.
The trial court also found her deportment at the witness stand to be wanting as she was hedging and evasive (Decision, p. 7; Rollo, p. 48).
Through counsel, Charlie, who had shunned from the witness stand, claims that it could have been impossible for him to have raped Jona
inside the room where his two sisters were also sleeping. This claim is unfounded. Rape can be committed even in places where people
congregate: in parks, along the road side, within school premises, and even inside a house where there are other occupants. As this court
said in People v. Mangalino, (182 SCRA 329 [1990]), lust is no respecter of time or place (See also: People v. Rafanan, 182 SCRA 811
[1990]; People v. Dolores, 188 SCRA 660 [1990]).
Neither is there merit in Charlie's contention that Jona could not have been raped because she did not shout for help. Jona's testimony on
how the rape was committed which was totally unrebutted by the defense, shows that Charlie had not only rendered her struggles useless by
holding her hands, but he also threatened to cut off her head with his bolo which he always had with him when he slept (TSN, Hearing of Jan.
5, 1990, pp. 80-81).
Since as Jona was only fifteen years old when she agreed to leave her employer's house to go with Charlie and his mother Teresita, the crime
committed was forcible abduction under Art. 342 of the Revised Penal Code. Jona's virginity may be presumed from the fact that she was an
unmarried barrio girl when the crime was committed. The element of lewd design on the part of Charlie may also be inferred from the fact
that while Jona was then a naive fifteen-year old, Charlie was ten years her senior and although unmarried, was much wiser in the ways of
the world than she was (Aquino, The Revised Penal Code, Vol. III, 1988 Ed., p. 454). Charlie's alleged desire to marry Jona is not a defense
considering that no marriage license was presented and parental consent was wanting (Ibid., p. 456). Moreover, had Charlie really intended
to marry her, he could have gone to her parents' house considering that he was invited by Jona's uncle to do just that.
Inasmuch as the abduction was proven to have been perpetrated as a necessary means for the commission of the rape, under Art. 48 of the
Revised Penal Code, appellants committed the complex crime of abduction with rape for which the penalty of reclusion perpetua was correctly
imposed by the lower court on both appellants. Charlie and his mother are equally liable for the crime in view of the conspiracy between them
which was alleged in the information and duly proven at the trial. However, the penalty is too excessive for Teresita Villorente. Unschooled
like her son who also affixed his thumbmark in the documents pertinent to this case, she appears to have acquiesced to cooperate with
Charlie on account of maternal concern. She must have agonized with Charlie who did not know how to court the girl of his dreams. As the
lower court aptly observes, "not knowing how to court (Jona), (Charlie) just looked at her from a distance until he could no longer hold his
desire for Jona Neron and with the complicity of his mother, abducted and raped her." It is therefore, necessary that, under the provision of
Art. 5 of the Revised Penal Code, the attention of the President should be called on the matter.
Significantly, appellants, through their counsel, filed a motion for new trial before this Court on the ground of a new and material evidence
consisting of an Affidavit of Desistance purportedly executed by the complainant and sworn to before the Municipal Mayor of Kalibo, Aklan.
The affidavit states that the case below arose out of a misunderstanding between her and the appellants and that she is no longer interested
in prosecuting this case (Rollo, pp. 60-61).
This Court is not impressed by the said document. After completion of the trial and the rendition of judgment convicting the accused, an
affidavit of desistance of the complaining witness has no probative value and is ineffectual to nullify a judgment. The real aggrieved party in a
criminal prosecution is the People of the Philippines whose collective sense of morality, decency and justice has been outraged. Once filed,
tried, and decided, control of the prosecution for the crime of rape is removed from the victim's hands. To warrant the dismissal of the
complaint, the victim's retraction or pardon should be made prior to the institution of the criminal action (People v. Soliao, supra).
PREMISES CONSIDERED, the decision appealed from is AFFIRMED subject to the modification that executive clemency is recommended
with respect to appellant Teresita Villorente.
SO ORDERED.
Narvasa, C.J., (Chairman), Padilla, Regalado, and Nocon, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-43530 August 3, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto K. Bausa for appellant.
Office of the Solicitor-General Hilado for appellee.
RECTO, J .:
The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of Iloilo, finding him
guilty of attempted robbery and sentencing him to suffer two years and four months of prision correccional and to an additional
penalty of ten years and one day of prision mayor for being an habitual delinquent, with the accessory penalties of the law, and to
pay the costs of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R. Fuentes streets of
the City of Iloilo, caught the accused in the act of making an opening with an iron bar on the wall of a store of cheap goods located
on the last named street. At that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The accused had
only succeeded in breaking one board and in unfastening another from the wall, when the policeman showed up, who instantly
arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and the Solicitor-
General, as constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical relation to a
particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of the perpetrator, leading
directly to its realization and consummation. The attempt to commit an indeterminate offense, inasmuch as its nature in relation to its
objective is ambiguous, is not a juridical fact from the standpoint of the Penal Code. There is no doubt that in the case at bar it was
the intention of the accused to enter Tan Yu's store by means of violence, passing through the opening which he had started to
make on the wall, in order to commit an offense which, due to the timely arrival of policeman Tomambing, did not develop beyond
the first steps of its execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed
constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and natural relation
of the cause and its effect, with the deed which, upon its consummation, will develop into one of the offenses defined and punished
by the Code; it is necessary to prove that said beginning of execution, if carried to its complete termination following its natural
course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense. Thus, in case of robbery, in order that the simple act of entering by means of force or
violence another person's dwelling may be considered an attempt to commit this offense, it must be shown that the offender clearly
intended to take possession, for the purpose of gain, of some personal property belonging to another. In the instant case, there is
nothing in the record from which such purpose of the accused may reasonably be inferred. From the fact established and stated in
the decision, that the accused on the day in question was making an opening by means of an iron bar on the wall of Tan Yu's store,
it may only be inferred as a logical conclusion that his evident intention was to enter by means of force said store against the will of
its owner. That his final objective, once he succeeded in entering the store, was to rob, to cause physical injury to the inmates, or to
commit any other offense, there is nothing in the record to justify a concrete finding.1avvphil.et
It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage is wanting, the
nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the nature of
the acts executed (accion medio). Hence, the necessity that these acts be such that by their very nature, by the facts to
which they are related, by the circumstances of the persons performing the same, and by the things connected therewith,
they must show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible of double
interpretation , that is, in favor as well as against the culprit, and which show an innocent as well as a punishable act,
must not and can not furnish grounds by themselves for attempted nor frustrated crimes. The relation existing between
the facts submitted for appreciation and the offense which said facts are supposed to produce must be direct; the intention
must be ascertained from the facts and therefore it is necessary, in order to avoid regrettable instances of injustice, that
the mind be able to directly infer from them the intention of the perpetrator to cause a particular injury. This must have
been the intention of the legislator in requiring that in order for an attempt to exist, the offender must commence the
commission of the felony directly by overt acts, that is to say, that the acts performed must be such that, without the intent
to commit an offense, they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the offense, are not
punished except when they are aimed directly to its execution, and therefore they must have an immediate and necessary relation
to the offense."
Considering says the Supreme Court of Spain in its decision of March 21, 1892 that in order to declare that such
and such overt acts constitute an attempted offense it is necessary that their objective be known and established, or that
said acts be of such nature that they themselves should obviously disclose the criminal objective necessarily intended,
said objective and finality to serve as ground for the designation of the offense: . . . .
In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not constitute attempted robbery
but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme Court of Spain
therein cited). Under article 280 of the Revised Penal Code, this offense is committed when a private person shall enter the dwelling
of another against the latter's will. The accused may be convicted and sentenced for an attempt to commit this offense in
accordance with the evidence and the following allegation contained in the information: "... the accused armed with an iron bar
forced the wall of said store by breaking a board and unfastening another for the purpose of entering said store ... and that the
accused did not succeed in entering the store due to the presence of the policeman on beat Jose Tomambing, who upon hearing
the noise produced by the breaking of the wall, promptly approached the accused ... ." Under the circumstances of this case the
prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil.,
67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused must be
taken into consideration the aggravating circumstances of nighttime and former convictions, inasmuch as the record shows that
several final judgments for robbery and theft have been rendered against him and in his favor, the mitigating circumstance of lack
of instruction. The breaking of the wall should not be taken into consideration as an aggravating circumstance inasmuch as this is
the very fact which in this case constitutes the offense of attempted trespass to dwelling.
The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed with force,
is prision correccional in its medium and maximum periods and a fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty
corresponding to attempted trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and medium periods.
Because of the presence of two aggravating circumstances and one mitigating circumstance the penalty must be imposed in its
maximum period. Pursuant to article 29 of the same Code, the accused is not entitled to credit for one-half of his preventive
imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to dwelling,
committed by means of force, with the aforesaid aggravating and mitigating circumstances and sentenced to three months and one
day of arresto mayor, with the accessory penalties thereof and to pay the costs.
Avancea, C.J., Abad Santos, Hull, and Vickers, JJ., concur.
CASE DIGEST ON PEOPLE v. LAMAHANG [61 Phil. 703 (1935)]
November 10, 2010
Facts: Aurelio Lamahang was caught opening with an iron bar a wall of a store of cheap goods in Fuentes St. Iloilo. He broke one board and was
unfastening another when a patrolling police caught him. Owners of the store were sleeping inside store as it was early dawn. Convicted of attempt of
robbery
Issue: WON crime is attempted robbery?
Held: No. Attempted trespass to dwelling. Attempt should have logical relation to a particular and concrete offense which would lead directly to
consummation. Necessary to establish unavoidable connection & logical & natural relation of cause and effect. Important to show clear intent to commit
crime. In case at bar, we can only infer that his intent was to enter by force, other inferences are not justified by facts. Groizard: infer only from nature
of acts executed. Acts susceptible of double interpretation cant furnish ground for themselves. Mind should not directly infer intent. Spain SC:
necessary that objectives established or acts themselves obviously disclose criminal objective.