The Ruling of the MTC In its Joint Order of 16 January 1997

("Joint Order"), the MTC12 initially deferred ruling on

petitioners motion for lack of "indubitable ground for the
quashing of the [I]nformations x x x." The MTC scheduled
petitioners arraignment in February 1997. However, on
petitioners motion, the MTC issued a Consolidated Order on
28 April 1997 ("Consolidated Order"), granting partial
reconsideration to its Joint Order and quashing the
Informations for violation of PD 1067 and PD 984. The MTC
maintained the Informations for violation of RA 7942 and
Article 365 of the RPC. The MTC held: [T]he 12 Informations
have common allegations of pollutants pointing to "mine
tailings" which were precipitately discharged into the
Makulapnit and Boac Rivers due to breach caused on the
Tapian drainage/tunnel due to negligence or failure to
institute adequate measures to prevent pollution and siltation
of the Makulapnit and Boac River systems, the very term
and condition required to be undertaken under the
Environmental Compliance Certificate issued on April
1,1990.
The allegations in the informations point to same set [sic] of
evidence required to prove the single fact of pollution
constituting violation of the Water Code and the Pollution
Law which are the same set of evidence necessary to prove
the same single fact of pollution, in proving the elements
constituting violation of the conditions of ECC, issued
pursuant to the Philippine Mining Act. In both instances, the
terms and conditions of the Environmental Compliance
Certificate were allegedly violated. In other words, the same
set of evidence is required in proving violations of the three
(3) special laws. After carefully analyzing and weighing the
contending arguments of the parties and after taking into
consideration the applicable laws and jurisprudence, the
Court is convinced that as far as the three (3) aforesaid laws
are concerned, only the Information for [v]iolation of
Philippine Mining Act should be maintained. In other words,
the Informations for [v]iolation of Anti-Pollution Law (PD 984)
and
the
Water
Code
(PD
1067)
should
be
dismissed/quashed because the elements constituting the
aforesaid violations are absorbed by the same elements
which constitute violation of the Philippine Mining Act (RA
7942). Therefore, x x x Criminal Case[] Nos. 96-44, 96-45
and 96-46 for [v]iolation of the Water Code; and Criminal
Case[] Nos. 96-47, 96-48 and 96-49 for [v]iolation of the AntiPollution Law x x x are hereby DISMISSED or QUASHED
and Criminal Case[] Nos. 96-50, 96-51 and 96-52 for
[v]iolation of the Philippine Mining Act are hereby retained to
be tried on the merits. The Information for [v]iolation of
Article 365 of the Revised Penal Code should also be
maintained and heard in a full blown trial because the
common accusation therein is reckless imprudence resulting
to [sic] damage to property. It is the damage to property
which the law punishes not the negligent act of polluting the
water system. The prosecution for the [v]iolation of Philippine
Mining Act is not a bar to the prosecution for reckless
imprudence resulting to [sic] damage to property.13The MTC
re-scheduled petitioners arraignment on the remaining
charges on 28 and 29 May 1997. In the hearing of 28 May
1997, petitioners manifested that they were willing to be
arraigned on the charge for violation of Article 365 of the
RPC but not on the charge for violation of RA 7942 as they
intended to appeal the Consolidated Order in so far as it
maintained the Informations for that offense. After making of
record petitioners manifestation, the MTC proceeded with
the arraignment and ordered the entry of "not guilty" pleas
on the charges for violation of RA 7942 and Article 365 of the
RPC. Petitioners subsequently filed a petition for certiorari
with the Regional Trial Court, Boac, Marinduque, assailing
that portion of the Consolidated Order maintaining the

Informations for violation of RA 7942. Petitioners petition

was raffled to Branch 94. For its part, public respondent filed
an ordinary appeal with the same court assailing that portion
of the Consolidated Order quashing the Informations for
violation of PD 1067 and PD 984. Public respondents
appeal was raffled to Branch 38. On public respondents
motion, Branch 38 ordered public respondents appeal
consolidated with petitioners petition in Branch 94. The
Ruling of Branch 94 In its Resolution14 of 20 March 1998,
Branch 94 granted public respondents appeal but denied
petitioners petition. Branch 94 set aside the Consolidated
Order in so far as it quashed the Informations for violation of
PD 1067 and PD 984 and ordered those charges reinstated.
Branch 94 affirmed the Consolidated Order in all other
respects. Branch 94 held:After a careful perusal of the laws
concerned, this court is of the opinion that there can be no
absorption by one offense of the three other offenses, as
[the] acts penalized by these laws are separate and distinct
from each other. The elements of proving each violation are
not the same with each other. Concededly, the single act of
dumping mine tailings which resulted in the pollution of the
Makulapnit and Boac rivers was the basis for the
information[s] filed against the accused each charging a
distinct offense. But it is also a well-established rule in this
jurisdiction that "A single act may offend against two or
more entirely distinct and unrelated provisions of law, and if
one provision requires proof of an additional fact or element
which the other does not, an acquittal or conviction or a
dismissal of the information under one does not bar
prosecution under the other. x x x." x x x x [T]he different
laws involve cannot absorb one another as the elements of
each crime are different from one another. Each of these
laws require [sic] proof of an additional fact or element which
the other does not although they stemmed from a single
act.15
Petitioners filed a petition for certiorari with the Court of
Appeals alleging that Branch 94 acted with grave abuse of
discretion because (1) the Informations for violation of PD
1067, PD 984, RA 7942 and the Article 365 of the RPC
"proceed from and are based on a single act or incident of
polluting the Boac and Makalupnit rivers thru dumping of
mine tailings" and (2) the duplicitous nature of the
Informations contravenes the ruling in People v.
Relova.16Petitioners further contended that since the acts
complained of in the charges for violation of PD 1067, PD
984, and RA 7942 are "the very same acts complained of" in
the charge for violation of Article 365 of the RPC, the latter
absorbs the former. Hence, petitioners should only be
prosecuted for violation of Article 365 of the RPC.17The
Ruling of the Court of Appeals In its Decision of 5 November
2001, the Court of Appeals affirmed Branch 94s ruling. The
appellate court held: The records of the case disclose that
petitioners filed a motion to quash the aforementioned
Informations for being duplicitous in nature. Section 3 of
Rule 117 of the Revised Rules of Court specifically provides
the grounds upon which an information may be quashed. x x
x x x x x [D]uplicity of Informations is not among those
included in x x x [Section 3, Rule 117]. x x x x We now go to
petitioners claim that the resolution of the public respondent
contravened the doctrine laid down in People vs. Relova for
being violative of their right against multiple prosecutions. In
the said case, the Supreme Court found the Peoples
argument with respect to the variances in the mens rea of
the two offenses being charged to be correct. The Court,
however, decided the case in the context of the second
sentence of Article IV (22) of the 1973 Constitution (now
under Section 21 of Article III of the 1987 Constitution),
rather than the first sentence of the same section. x x x x x x
x [T]he doctrine laid down in the Relova case does not

squarely apply to the case at Bench since the Informations

filed against the petitioners are for violation of four separate
and distinct laws which are national in character. x x x x This
Court firmly agrees in the public respondents understanding
that the laws by which the petitioners have been [charged]
could not possibly absorb one another as the elements of
each crime are different. Each of these laws require [sic]
proof of an additional fact or element which the other does
not, although they stemmed from a single act. x x x x x x x
[T]his Court finds that there is not even the slightest indicia
of evidence that would give rise to any suspicion that public
respondent acted with grave abuse of discretion amounting
to excess or lack of jurisdiction in reversing the Municipal
Trial Courts quashal of the Informations against the
petitioners for violation of P.D. 1067 and P.D. 984. This Court
equally finds no error in the trial courts denial of the
petitioners motion to quash R.A. 7942 and Article 365 of the
Revised Penal Code.18Petitioners sought reconsideration
but the Court of Appeals denied their motion in its Resolution
of 14 March 2002. Petitioners raise the following alleged
errors of the Court of Appeals: I. THE COURT OF APPEALS
COMMITTED A R[E]VERSIBLE ERROR IN MAINTAINING
THE CHARGES FOR VIOLATION OF THE PHILIPPINE
MINING ACT (R.A. 7942) AND REINSTATING THE
CHARGES FOR VIOLATION OF THE WATER CODE (P.D.
1067) AND POLLUTION CONTROL LAW (P.D. 984),
CONSIDERING THAT:
A. THE INFORMATIONS FOR VIOLATION OF THE WATER
CODE (P.D. 1067), THE POLLUTION CONTROL LAW (P.D.
984), THE PHILIPPINE MINING ACT (R.A. 7942) AND
ARTICLE 365 OF THE REVISED PENAL CODE PROCEED
FROM AND ARE BASED ON A SINGLE ACT OR INCIDENT
OF POLLUTING THE BOAC AND MAKULAPNIT RIVERS
THRU DUMPING OF MINE TAILINGS. B. THE
PROSECUTION OF PETITIONERS FOR DUPLICITOUS
AND MULTIPLE CHARGES CONTRAVENES THE
DOCTRINE LAID DOWN IN PEOPLE VS. RELOVA, 148
SCRA 292 [1986 THAT "AN ACCUSED SHOULD NOT BE
HARASSED BY MULTIPLE PROSECUTIONS FOR
OFFENSES WHICH THOUGH DIFFERENT FROM ONE
ANOTHER ARE NONETHELESS EACH CONSTITUTED BY
A COMMON SET OR OVERLAPPING SETS OF
TECHNICAL ELEMENTS." II. THE COURT OF APPEALS
COMMITTED A REVERSIBLE ERROR IN RULING THAT
THE ELEMENT OF LACK OF NECESSARY OR
ADEQUATE
PRECAUTION,
NEGLIGENCE,
RECKLESSNESS AND IMPRUDENCE UNDER ARTICLE
356 [sic] OF THE REVISED PENAL CODE DOES NOT
FALL WITHIN THE AMBIT OF ANY OF THE ELEMENTS OF
THE PERTINENT PROVISIONS OF THE WATER CODE,
POLLUTION CONTROL LAW AND PHILIPPINE MINING
ACT CHARGED AGAINST PETITIONERS[.]19The Issues
The petition raises these issues: (1) Whether all the charges
filed against petitioners except one should be quashed for
duplicity of charges and only the charge for Reckless
Imprudence Resulting in Damage to Property should stand;
and (2) Whether Branch 94s ruling, as affirmed by the Court
of Appeals, contravenes People v. Relova. The Ruling of the
Court The petition has no merit. No Duplicity of Charges in
the Present Case Duplicity of charges simply means a single
complaint or information charges more than one offense, as
Section 13 of Rule 11020 of the 1985 Rules of Criminal
Procedure clearly states:Duplicity of offense. A complaint
or information must charge but one offense, except only in
those cases in which existing laws prescribe a single
punishment for various offenses. In short, there is duplicity
(or multiplicity) of charges when a single Information charges
more than one offense.21Under Section 3(e), Rule 11722 of
the 1985 Rules of Criminal Procedure, duplicity of offenses

in a single information is a ground to quash the Information.

The Rules prohibit the filing of such Information to avoid
confusing the accused in preparing his defense.23 Here,
however, the prosecution charged each petitioner with four
offenses, with each Information charging only one offense.
Thus, petitioners erroneously invoke duplicity of charges as
a ground to quash the Informations. On this score alone, the
petition deserves outright denial. The Filing of Several
Charges is Proper Petitioners contend that they should be
charged with one offense only Reckless Imprudence
Resulting in Damage to Property because (1) all the
charges filed against them "proceed from and are based on
a single act or incident of polluting the Boac and Makalupnit
rivers thru dumping of mine tailings" and (2) the charge for
violation of Article 365 of the RPC "absorbs" the other
charges since the element of "lack of necessary or adequate
protection, negligence, recklessness and imprudence" is
common among them. The contention has no merit. As early
as the start of the last century, this Court had ruled that a
single act or incident might offend against two or more
entirely distinct and unrelated provisions of law thus
justifying the prosecution of the accused for more than one
offense.24
The only limit to this rule is the Constitutional prohibition that
no person shall be twice put in jeopardy of punishment for
"the same offense."25 In People v. Doriquez,26 we held that
two (or more) offenses arising from the same act are not "the
same" x x x if one provision [of law] requires proof of an
additional fact or element which the other does not, x x x.
Phrased elsewise, where two different laws (or articles of the
same code) define two crimes, prior jeopardy as to one of
them is no obstacle to a prosecution of the other, although
both offenses arise from the same facts, if each crime
involves some important act which is not an essential
element of the other.27 (Emphasis supplied) Here, double
jeopardy is not at issue because not all of its elements are
present.28 However, for the limited purpose of controverting
petitioners claim that they should be charged with one
offense only, we quote with approval Branch 94s
comparative analysis of PD 1067, PD 984, RA 7942, and
Article 365 of the RPC showing that in each of these laws on
which petitioners were charged, there is one essential
element not required of the others, thus: In P.D. 1067
(Philippines Water Code), the additional element to be
established is the dumping of mine tailings into the
Makulapnit River and the entire Boac River System without
prior permit from the authorities concerned. The gravamen
ofthe offense here is the absence of the proper permit to
dump said mine tailings. This element is not indispensable in
the prosecution for violation of PD 984 (Anti-Pollution Law),
[RA] 7942 (Philippine Mining Act) and Art. 365 of the Revised
Penal Code. One can be validly prosecuted for violating the
Water Code even in the absence of actual pollution, or even
[if] it has complied with the terms of its Environmental
Compliance Certificate, or further, even [if] it did take the
necessary precautions to prevent damage to property. In
P.D. 984 (Anti-Pollution Law), the additional fact that must be
proved is the existence of actual pollution. The gravamen is
the pollution itself. In the absence of any pollution, the
accused must be exonerated under this law although there
was unauthorized dumping of mine tailings or lack of
precaution on its part to prevent damage to property. In R.A.
7942 (Philippine Mining Act), the additional fact that must be
established is the willful violation and gross neglect on the
part of the accused to abide by the terms and conditions of
the Environmental Compliance Certificate, particularly that
the Marcopper should ensure the containment of run-off and
silt materials from reaching the Mogpog and Boac Rivers. If
there was no violation or neglect, and that the accused

satisfactorily proved [sic] that Marcopper had done

everything to ensure containment of the run-off and silt
materials, they will not be liable. It does not follow, however,
that they cannot be prosecuted under the Water Code, AntiPollution Law and the Revised Penal Code because violation
of the Environmental Compliance Certificate is not an
essential element of these laws. On the other hand, the
additional element that must be established in Art. 365 of the
Revised Penal Code is the lack of necessary or adequate
precaution, negligence, recklessness and imprudence on the
part of the accused to prevent damage to property. This
element is not required under the previous laws.
Unquestionably, it is different from dumping of mine tailings
without permit, or causing pollution to the Boac river system,
much more from violation or neglect to abide by the terms of
the Environmental Compliance Certificate. Moreover, the
offenses punished by special law are mal[a] prohibita in
contrast with those punished by the Revised Penal Code
which are mala in se.29Consequently, the filing of the
multiple charges against petitioners, although based on the
same incident, is consistent with settled doctrine. On
petitioners claim that the charge for violation of Article 365 of
the RPC "absorbs" the charges for violation of PD 1067, PD
984, and RA 7942, suffice it to say that a mala in se felony
(such as Reckless Imprudence Resulting in Damage to
Property) cannot absorb mala prohibita crimes (such as
those violating PD 1067, PD 984, and RA 7942). What
makes the former a felony is criminal intent (dolo) or
negligence (culpa); what makes the latter crimes are the
special laws enacting them. People v. Relova not in Point
Petitioners reiterate their contention in the Court of Appeals
that their prosecution contravenes this Courts ruling in
People v. Relova. In particular, petitioners cite the Courts
statement in Relova that the law seeks to prevent
harassment of the accused by "multiple prosecutions for
offenses which though different from one another are
nonetheless eachconstituted by a common set or
overlapping sets of technical elements." This contention is
also without merit.1avvphil.net
The issue in Relova is whether the act of the Batangas
Acting City Fiscal in charging one Manuel Opulencia
("Opulencia") with theft of electric power under the RPC,
after the latter had been acquitted of violating a City
Ordinance penalizing the unauthorized installation of
electrical wiring, violated Opulencias right against double
jeopardy. We held that it did, not because the offenses
punished by those two laws were the same but because the
act giving rise to the charges was punished by an ordinance
and a national statute, thus falling within the proscription
against multiple prosecutions for the same act under the
second sentence in Section 22, Article IV of the 1973
Constitution, now Section 21, Article III of the 1987
Constitution. We held: The petitioner concludes that: "The
unauthorized installation punished by the ordinance [of
Batangas City] is not the same as theft of electricity [under
the Revised Penal Code]; that the second offense is not an
attempt to commit the first or a frustration thereof and that
the second offense is notnecessarily included in the offense
charged in the first information."The above argument[ ] made
by the petitioner [is] of course correct. This is clear both from
the express terms of the constitutional provision involved
which reads as follows: "No person shall be twice put in
jeopardy of punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or acquittal
under either shall constitute a bar to another prosecution for
the same act." x x x and from our case law on this point. The
basic difficulty with the petitioners position is that it must be
examined, not under the terms of the first sentence of Article

IV (22) of the 1973 Constitution, but rather under the second

sentence of the same section. The first sentence of Article IV
(22) sets forth the general rule: the constitutional protection
against double jeopardy is not available where the second
prosecution is for an offense that is different from the offense
charged in the first or prior prosecution, although both the
first and second offenses may be based upon the same act
or set of acts. The second sentence of Article IV (22)
embodies an exception to the general proposition: the
constitutional protection, against double jeopardy is available
although the prior offense charged under an ordinance be
different from the offense charged subsequently under a
national statute such as the Revised Penal Code, provided
that both offenses spring from the same act or set of acts. x
x x30 (Italicization in the original; boldfacing supplied)Thus,
Relova is no authority for petitioners claim against multiple
prosecutions based on a single act not only because the
question of double jeopardy is not at issue here, but also
because, as the Court of Appeals held, petitioners are being
prosecuted for an act or incident punished by four national
statutes and not by an ordinance and a national statute. In
short, petitioners, if ever, fall under the first sentence of
Section 21, Article III which prohibits multiple prosecution for
the same offense, and not, as in Relova, for offenses arising
from the same incident. WHEREFORE, we DENY the
petition. We AFFIRM the Decision dated 5 November 2001
and the Resolution dated 14 March 2002 of the Court of
Appeals. SO ORDERED.
ARSENIA B. GARCIA, Petitioner, vs. HON. COURT OF
APPEALS and the PEOPLE OF THE PHILIPPINES,
Respondents D E C I S I O N QUISUMBING, J.:This petition
seeks the review of the judgment of the Court of Appeals in
CA-G.R. CR No. 245471that affirmed the conviction of
petitioner by the Regional Trial Court2of Alaminos City,
Pangasinan, Branch 54, for violation of Section 27(b) of
Republic Act No. 6646.3Based on the complaint-affidavit of
Aquilino Q. Pimentel, Jr., who ran in the 1995 senatorial
elections, an information dated March 30, 1998, was filed in
the Regional Trial Court of Alaminos, charging Herminio R.
Romero, Renato R. Viray, Rachel Palisoc and Francisca de
Vera, and petitioner, with violation of Section 27(b). The
information reads: That on or about May 11, 1995, which
was within the canvassing period during the May 8, 1995
elections, in the Municipality of Alaminos, Province of
Pangasinan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, Election
Officer Arsenia B. Garcia, Municipal Treasurer Herminio R.
Romero, Public School District Supervisor Renato R. Viray,
Chairman,
Vice-Chairman,
and
Member-Secretary,
respectively, of the Municipal Board of Canvassers of
Alaminos, Pangasinan, tabulators Rachel Palisoc and
Francisca de Vera, conspiring with, confederating together
and mutually helping each other, did, then and there, willfully,
and unlawfully decrease[d] the votes received by senatorial
candidate Aquilino Q. Pimentel, Jr. from six thousand nine
hundred ninety-eight (6,998) votes, as clearly disclosed in
the total number of votes in the one hundred fifty-nine (159)
precincts of the Statement of Votes by Precincts of said
municipality, with Serial Nos. 008417, 008418, 008419,
008420, 008421, 008422 and 008423 to one thousand nine
hundred twenty-one (1,921) votes as reflected in the
Statement of Votes by Precincts with Serial No. 008423 and
Certificate of Canvass with Serial No. 436156 with a
difference of five thousand seventy-seven (5,077) votes.
CONTRARY TO LAW.4In a Decision dated September 11,
2000, the RTC acquitted all the accused for insufficiency of
evidence, except petitioner who was convicted as follows: x
x x 5. And finally, on the person of Arsenia B. Garcia, the

Court pronounces her GUILTY beyond reasonable doubt, of

thecrime defined under Republic Act 6646, Section 27 (b) for
decreasing the votes of Senator Pimentel in the total of
5,034 and in relation to BP Blg. 881, considering that this
finding is a violation of Election Offense, she is thus
sentenced to suffer an imprisonment of SIX (6) YEARS as
maximum, but applying the INDETERMINATE SENTENCE
LAW, the minimum penalty is the next degree lower which is
SIX (6) MONTHS; however, accused Arsenia B. Garcia is
not entitled to probation; further, she is sentenced to suffer
disqualification to hold public office and she is also deprived
of her right of suffrage. The bailbond posted by her is hereby
ordered cancelled, and the Provincial Warden is ordered to
commit her person to the Bureau of Correctional Institution
for Women, at Metro Manila, until further orders from the
court. No pronouncement as to costs. IT IS SO
ORDERED.5Petitioner appealed before the Court of Appeals
which affirmed with modification the RTC Decision, thus,
WHEREFORE, foregoing considered, the appealed decision
is hereby affirmed with modification, increasing the minimum
penalty imposed by the trial court from six (6) months to one
(1) year. SO ORDERED.6The Court of Appeals likewise
denied the motion for reconsideration. Hence, this appeal
assigning the following as errors of the appellate court: I ON
THE FIRST AND SECOND GROUNDS RELIED UPON BY
THE RESPONDENT COURT, NAMELY, THAT IT COULD
NOT HAVE BEEN SECRETARY VIRAY WHO DECREASED
THE VOTES OF COMPLAINANT PIMENTEL SINCE HE
MERELY RELIED ON WHAT THE PETITIONER DICTATED,
AND THAT IT COULD NOT HAVE ALSO BEEN THE
TABULATORS BECAUSE PETITIONER WAS THE ONE
WHO READ THE ADDING [MACHINE] TAPE. IION THE
THIRD GROUND, NAMELY, THAT PETITIONER DID NOT
PRODUCE THE TAPES DURING THE TRIAL BECAUSE IF
PRODUCED, IT IS GOING TO BE ADVERSE TO HER.
IIION THE FOURTH GROUND, NAMELY, THAT THE
PETITIONER WAS THE ONE WHO ENTERED THE
REDUCED FIGURE OF 1,921 IN THE CERTIFICATE OF
CANVASS (COC), Exh. "7", WHEN THE DUTY WAS THAT
OF THE SECRETARY OF THE BOARD. IVTHE
REDUCTION OF THE VOTES OF CANDIDATE PIMENTEL
WAS
CLEARLY
NOT
WILLFUL
OR
INTENTIONAL.7Petitioner contends that (1) the Court of
Appeals judgment is erroneous, based on speculations,
surmises and conjectures, instead of substantial evidence;
and (2) there was no motive on her part to reduce the votes
of private complainant. Respondent on the other hand
contends that good faith is not a defense in the violation of
an election law, which falls under the class of mala prohibita.
The main issue is, Is a violation of Section 27(b) of Rep. Act
No. 6646, classified under mala in se ormala prohibita?
Could good faith and lack of criminal intent be valid
defenses? Generally, mala in se felonies are defined and
penalized in the Revised Penal Code. When the acts
complained of are inherently immoral, they are deemed mala
in se, even if they are punished by a special
law.8Accordingly, criminal intent must be clearly established
with the other elements of the crime; otherwise, no crime is
committed. On the other hand, in crimes that are mala
prohibita, the criminal acts are not inherently immoral but
become punishable only because the law says they are
forbidden. With these crimes, the sole issue is whether the
law has been violated.9Criminal intent is not necessary
where the acts are prohibited for reasons of public
policy.10Section 27(b) of Republic Act No. 664611provides:
SEC. 27. Election Offenses.- In addition to the prohibited
acts and election offenses enumerated in Sections 261 and
262 of Batas Pambansa Blg. 881, as amended, the following
shall be guilty of an election offense: x x x (b) Any member of

the board of election inspectors or board of canvassers who

tampers, increases, or decreases the votes received by a
candidate in any election or any member of the board who
refuses, after proper verification and hearing, to credit the
correct votes or deduct such tampered votes.
x x x Clearly, the acts prohibited in Section 27(b) are mala in
se.12For otherwise, even errors and mistakes committed
due to overwork and fatigue would be punishable. Given the
volume of votes to be counted and canvassed within a
limited amount of time, errors and miscalculations are bound
to happen. And it could not be the intent of the law to punish
unintentional election canvass errors. However, intentionally
increasing or decreasing the number of votes received by a
candidate is inherently immoral, since it is done with malice
and intent to injure another. Criminal intent is presumed to
exist on the part of the person who executes an act which
the law punishes, unless the contrary shall appear.13Thus,
whoever invokes good faith as a defense has the burden of
proving its existence. Records show that the canvassing of
votes on May 11, 1995 before the Board of Canvassers of
the Municipality of Alaminos, Pangasinan was conducted as
follows: 1. After the votes in the 159 precincts of the
municipality of Alaminos were tallied, the results thereof
were sealed and forwarded to the Municipal Board of
Canvassers for canvassing; 2. The number of votes received
by each candidate in each precinct was then recorded in the
Statement of Votes with appellant, in her capacity as
Chairman, reading the figures appearing in the results from
the precincts and accused Viray, in his capacity as secretary
of the Board, entering the number in the Statements of Votes
as read by the appellant. Six Statements of Votes were filled
up to reflect the votes received by each candidate in the 159
precincts of the Municipality of Alaminos, Pangasinan. 3.
After the number of votes received by each candidate for
each precincts were entered by accused Viray in the
Statements of Votes, these votes were added by the
accused Palisoc and de Vera with the use of electrical
adding machines. 4. After the tabulation by accused Palisoc
and de Vera, the corresponding machine tapes were handed
to appellant who reads the subtotal of votes received by
each candidate in the precincts listed in each Statement of
Votes. Accused Viray [then] records the subtotal in the
proper column in the Statement of Votes. 5. After the
subtotals had been entered by accused Viray, tabulators
accused Palisoc and de Vera added all the subtotals
appearing in all Statement of Votes. 6. After the computation,
the corresponding machine tape on which the grand total
was reflected was handed to appellant who reads the same
and accused Viray enters the figure read by appellant in the
column for grand totalin the Statement of Votes.14Neither
the correctness of the number of votes entered in the
Statement of Votes (SOV) for each precinct, nor of the
number of votes entered as subtotals of votes received in
the precincts listed in SOV Nos. 008417 to 008422 was
raised as an issue. At first glance, however, there is a
noticeable discrepancy in the addition of the subtotals to
arrive at the grand total of votes received by each candidate
for all 159 precincts in SOV No. 008423.15The grand total of
the votes for private complainant, Senator Aquilino Pimentel,
was only 1,921 instead of 6,921, or 5,000 votes less than the
number of votes private complainant actually received. This
error is also evident in the Certificate of Canvass (COC) No.
436156 signed by petitioner, Viray and Romero.16During
trial of this case, petitioner admitted that she was indeed the
one who announced the figure of 1,921, which was
subsequently entered by then accused Viray in his capacity
as secretary of the board.17Petitioner likewise admitted that
she was the one who prepared the COC (Exhibit A-7),
though it was not her duty. To our mind, preparing the COC

even if it was not her task, manifests an intention to

perpetuate the erroneous entry in the COC.18Neither can
this Court accept petitioners explanation that the Board of
Canvassers had no idea how the SOV (Exhibit "6") and the
COC reflected that private complainant had only 1,921 votes
instead of 6,921 votes. As chairman of the Municipal Board
of Canvassers, petitioners concern was to assure accurate,
correct and authentic entry of the votes. Her failure to
exercise maximum efficiency and fidelity to her trust
deserves not only censure but also the concomitant
sanctions as a matter of criminal responsibility pursuant to
the dictates of the law.19
The fact that the number of votes deducted from the actual
votes received by private complainant, Sen. Aquilino
Pimentel, Jr. was not added to any senatorial candidate does
not relieve petitioner of liability under Section 27(b) of Rep.
Act No. 6646. The mere decreasing of the votes received by
a candidate in an election is already punishable under the
said provision.20At this point, we see no valid reason to
disturb the factual conclusions of the appellate court. The
Court has consistently held that factual findings of the trial
court, as well as of the Court of Appeals are final and
conclusive and may not be reviewed on appeal, particularly
where the findings of both the trial court and the appellate
court on the matter coincide.21Public policy dictates that
extraordinary diligence should be exercised by the members
of the board of canvassers incanvassing the results of the
elections. Any error on their part would result in the
disenfranchisement of the voters. The Certificate of Canvass
for senatorial candidates and its supporting statements of
votes prepared by the municipal board of canvassers are
sensitive election documents whose entries must be
thoroughly scrutinized.22In our review, the votes in the SOV
should total 6,998.23As between the grand total of votes
alleged to have been received by private complainant of
6,921 votes and statement of his actual votes received of
6,998 is a difference of 77 votes. The discrepancy may be
validly attributed to mistake or error due to fatigue. However,
a decrease of 5,000 votes as reflected in the Statement of
Votes and Certificate of Canvass is substantial, it cannot be
allowed to remain on record unchallenged, especially when
the error results from the meretransfer of totals from one
document to another. WHEREFORE, the instant petition is
DENIED. The assailed Decision of the Court of Appeals
sustaining petitioners conviction but increasing the minimum
penalty in her sentence to one year instead of six months
isAFFIRMED. SO ORDERED
AMADO ALVARADO GARCIA, Petitioner, vs. PEOPLE OF
THE PHILIPPINES, Respondent. D E C I S I O N
QUISUMBING, J.:For review on certiorari is the Decision1
dated December 20, 2005 of the Court of Appeals in CAG.R.-CR No. 27544 affirming the Decision2 dated July 2,
2003 of the Regional Trial Court (RTC), Branch 9, Aparri,
Cagayan, which found petitioner Amado Garcia guilty
beyond reasonable doubt of homicide. Contested as well is
the appellate courts Resolution3 dated March 13, 2006
denying petitioners Motion for Reconsideration.4On
February 10, 2000, petitioner was charged with murder in an
Information that alleges as follows: The undersigned,
Provincial Prosecutor accuses AMADO GARCIA @ Manding
of the crime of Murder, defined and penalized under Article
[248] of the Revised Penal Code, as amended by Republic
Act No. 7659, committed as follows: That on or about
September 29, 1999, in the municipality of Aparri, province
of Cagayan, and within the jurisdiction of this Honorable
Court, the above-named accused, armed with a bottle, with
intent to kill, with evident premeditation and with treachery,

did then and there wilfully, unlawfully and feloniously assault,

attack, box, club and maul one Manuel K. Chy, inflicting
upon the latter fatal injuries which caused his death.
CONTRARY TO LAW.5Upon arraignment, petitioner entered
a not guilty plea. Thereafter, trial on the merits ensued. The
factual antecedents are as follows: At approximately 11:00
a.m. on September 26, 1999, petitioner, Fidel Foz, Jr. and
Armando Foz had a drinking spree at the apartment unit of
Bogie Tacuboy, which was adjacent to the house of Manuel
K. Chy. At around 7:00 p.m., Chy appealed for the group to
quiet down as the noise from the videoke machine was
blaring. It was not until Chy requested a second time that the
group acceded. Unknown to Chy, this left petitioner irate and
petitioner was heard to have said in the Ilocano vernacular,
"Dayta a Manny napangas makaala caniac dayta." (This
Manny is arrogant, I will lay a hand on him.)6On September
28, 1999, the group met again to celebrate the marriage of
Ador Tacuboy not far from Chys apartment. Maya Mabbun
advised the group to stop singing lest they be told off again.
This further infuriated petitioner who remarked, "Talaga a
napangas ni Manny saan ko a pagbayagen daytoy,"
meaning, "This Manny is really arrogant, I will not let him live
long."7Yet again, at around 12:00 p.m. on September 29,
1999, the group convened at the house of Foz and Garcia.
There, petitioner, Foz, Jr. and Fred Rillon mused over the
drinking session on the 26th and 28th of September and the
confrontation with Chy. Enraged at the memory, petitioner
blurted out "Talaga a napangas dayta a day[t]oy a Manny
ikabbut ko ita." (This Manny is really arrogant, I will finish him
off today.)8 Later that afternoon, the group headed to the
store of Adela dela Cruz where they drank until petitioner
proposed that they move to Punta. On their way to Punta,
the group passed by the store of Aurelia Esquibel, Chys
sister, and there, decided to have some drinks. At this
juncture, petitioner ordered Esquibel to call on Chy who,
incidentally, was coming out of his house at the time. Upon
being summoned, the latter approached petitioner who
suddenly punched him in the face. Chy cried out, "Bakit mo
ako sinuntok hindi ka naman [inaano]?" (Why did you box
me[?] Im not doing anything to you.)9But petitioner kept on
assaulting him. Foz attempted to pacify petitioner but was
himself hit on the nose while Chy continued to parry the
blows. Petitioner reached for a bottle of beer, and with it,
struck the lower back portion of Chys head. Then, Foz
shoved Chy causing the latter to fall. When Chy found an
opportunity to escape, he ran towards his house and phoned
his wife Josefina to call the police. Chy told Josefina about
the mauling and complained of difficulty in breathing. Upon
reaching Chys house, the policemen knocked five times but
nobody answered. Josefina arrived minutes later, unlocked
the door and found Chy lying unconscious on the kitchen
floor, salivating. He was pronounced dead on arrival at the
hospital. The autopsy confirmed that Chy died of myocardial
infarction. After trial in due course, the RTC of Aparri,
Cagayan (Branch 9) found petitioner guilty beyond
reasonable doubt of homicide. The dispositive portion of the
RTC decision reads: WHEREFORE, the Court renders
judgment: 1) Finding AMADO GARCIA guilty beyond
reasonable doubt for the crime of HOMICIDE defined and
penalized by Article 249 of the Revised Penal Code and after
applying in his favor the provisions of the Indeterminate
Sentence Law, hereby sentences him to suffer an
indeterminate prison term of TEN (10) YEARS OF PRISION
MAYOR, as minimum, to FOURTEEN (14) YEARS and
EIGHT (8) MONTHS of RECLUSION TEMPORAL as
maximum; 2) Ordering him to pay the heirs of Manuel Chy
the amount of FIFTY THOUSAND (P50,000.00) PESOS, as
death
indemnity;
TWO
HUNDRED
THOUSAND
(P200,000.00) PESOS, representing expenses for the wake

and burial; THREE HUNDRED THOUSAND (P300,000.00)

PESOS, as moral damages; and THREE HUNDRED
THIRTY[-]TWO THOUSAND (P332,000.00] PESOS, as loss
of earning, plus the cost of this suit. SO ORDERED.10On
appeal, the Court of Appeals affirmed the conviction in a
Decision dated December 20, 2005, thus: WHEREFORE,
premises considered, appeal is hereby [DENIED] and the
July 2, 2003 Decision of the Regional Trial Court of Aparri,
Cagayan, Branch [9], in Criminal Case No. 08-1185, is
hereby AFFIRMED IN TOTO. SO ORDERED.11Petitioner
moved for reconsideration but his motion was denied in a
Resolution dated March 13, 2006. Hence, the instant appeal
of petitioner on the following grounds: I.THE APPELLATE
COURT ERRED IN AFFIRMING THE RULING OF THE
TRIAL COURT THAT PETITIONER IS THE ONE
RESPONSIBLE FOR INFLICTING THE SLIGHT PHYSICAL
INJURIES SUSTAINED BY THE DECEASED MANUEL
CHY. II.THE APPELLATE COURT ERRED IN AFFIRMING
THE RULING OF THE TRIAL COURT FINDING
PETITIONER LIABLE FOR THE DEATH OF MANUEL CHY
DESPITE THE FACT THAT THE CAUSE OF DEATH IS
MYOCARDIAL INFARCTION, A NON-VIOLENT RELATED
CAUSE OF DEATH. III. THE APPELLATE COURT ERRED
IN AFFIRMING THE RULING OF THE TRIAL COURT
WHICH CONCLUDED THAT THE HEART FAILURE OF
MANUEL CHY WAS DUE TO "FRIGHT OR SHOCK
CAUSED BY THE MALTREATMENT." IV.
BOTH THE APPELLATE TRIBUNAL AND THE TRIAL
COURT ERRED IN NOT ACQUITTING THE PETITIONER
ON THE GROUND OF REASONABLE DOUBT.12In
essence, the issue is whether or not petitioner is liable for
the death of Manuel Chy. In his undated Memorandum,13
petitioner insists on a review of the factual findings of the trial
court because the judge who penned the decision was not
the same judge who heard the prosecution evidence. He
adds that the Court of Appeals had wrongly inferred from,
misread and overlooked certain relevant and undisputed
facts, which, if properly considered, would justify a different
conclusion.14At the onset, petitioner denies laying a hand on
Manuel Chy. Instead, he implicates Armando Foz as the
author of the victims injuries. Corollarily, he challenges the
credibility of Armandos brother, Fidel, who testified
concerning his sole culpability. Basically, petitioner disowns
responsibility for Chys demise since the latter was found to
have died of myocardial infarction. In support, he amplifies
the testimony of Dr. Cleofas C. Antonio15 that Chys medical
condition could have resulted in his death anytime. Petitioner
asserts that, at most, he could be held liable for slight
physical injuries because none of the blows he inflicted on
Chy was fatal. The Office of the Solicitor General reiterates
the trial courts assessment of the witnesses and its
conclusion that the beating of Chy was the proximate cause
of his death. Upon careful consideration of the evidence
presented by the prosecution as well as the defense in this
case, we are unable to consider the petitioners appeal with
favor. The present petition was brought under Rule 45 of the
Rules of Court, yet, petitioner raises questions of fact.
Indeed, it is opportune to reiterate that this Court is not the
proper forum from which to secure a re-evaluation of factual
issues, save where the factual findings of the trial court do
not find support in the evidence on record or where the
judgment appealed from was based on a misapprehension
of facts.16 Neither exception applies in the instant case as
would justify a departure from the established rule. Further,
petitioner invokes a recognized exception to the rule on noninterference with the determination of the credibility of
witnesses. He points out that the judge who penned the
decision is not the judge who received the evidence and
heard the witnesses. But while the situation obtains in this

case, the exception does not. The records reveal that Judge
Conrado F. Manauis inhibited from the proceedings upon
motion of no less than the petitioner himself. Consequently,
petitioner cannot seek protection from the alleged adverse
consequence his own doing might have caused. For us to
allow petitioner relief based on this argument would be to
sanction a travesty of the Rules which was designed to
further, rather than subdue, the ends of justice. We reiterate,
the efficacy of a decision is not necessarily impaired by the
fact that the ponente only took over from a colleague who
had earlier presided over the trial. It does not follow that the
judge who was not present during the trial, or a fraction
thereof, cannot render a valid and just decision.17 Here,
Judge Andres Q. Cipriano took over the case after Judge
Manauis recused himself from the proceedings. Even so,
Judge Cipriano not only heard the evidence for the defense,
he also had an opportunity to observe Dr. Cleofas Antonio
who was recalled to clarify certain points in his testimony.
Worth mentioning, too, is the fact that Judge Cipriano
presided during the taking of the testimonies of Fidel Foz, Jr.
and Alvin Pascua on rebuttal. In any case, it is not unusual
for a judge who did not try a case in its entirety to decide it
on the basis of the records on hand.18 He can rely on the
transcripts of stenographic notes and calibrate the
testimonies of witnesses in accordance with their conformity
to common experience, knowledge and observation of
ordinary men. Such reliance does not violate substantive
and procedural due process of law.19The Autopsy Report on
the body of Manuel Chy disclosed the following injuries:
POSTMORTEM FINDINGS Body embalmed, well preserved.
Cyanotic lips and nailbeds.
Contusions, dark bluish red: 4.5 x 3.0 cms., lower portion of
the left ear; 4.0 x 2.8 cms., left inferior mastoid region; 2.5 x
1.1 cms., upper lip; 2.7 x 1.0 cms., lower lip; 5.8 x 5.5 cms.,
dorsum of left hand. Lacerated wound, 0.8 cm., involving
mucosal surface of the upper lip on the right side.No
fractures noted. Brain with tortuous vessels. Cut sections
show congestion. No hemorrhage noted. Heart, with
abundant fat adherent on its epicardial surface. Cut sections
show a reddish brown myocardium with an area of
hyperemia on the whole posterior wall, the lower portion of
the anterior wall and the inferior portion of the septum.
Coronary arteries, gritty, with the caliber of the lumen
reduced
by
approximately
thirty
(30%)
percent.
Histopathological findings show mild fibrosis of the
myocardium. Lungs, pleural surfaces, shiny; with color
ranging from dark red to dark purple. Cut sections show a
gray periphery with reddish brown central portion with fluid
oozing on pressure with some reddish frothy materials
noted. Histopathological examinations show pulmonary
edema and hemorrhages. Kidneys, purplish with glistening
capsule. Cut sections show congestion. Histopathological
examinations
show
mild
lymphocytic
infiltration.1avvphi1Stomach, one-half (1/2) full with brownish
and whitish materials and other partially digested food
particles. CAUSE OF DEATH: - Myocardial Infarction.
(Emphasis supplied.)20At first, petitioner denied employing
violence against Chy. In his undated Memorandum,
however, he admitted inflicting injuries on the deceased,
albeit, limited his liability to slight physical injuries. He argues
that the superficial wounds sustained by Chy did not cause
his death.21 Quite the opposite, however, a conscientious
analysis of the records would acquaint us with the causal
connection between the death of the victim and the mauling
that preceded it. In open court, Dr. Antonio identified the
immediate cause of Chys myocardial infarction: ATTY.
TUMARU: Q: You diagnose[d] the cause of death to be
myocardial infarction that is because there was an occlusion
in the artery that prevented the flowing of blood into the

heart? A: That was not exactly seen at the autopsy table but
it changes, the hyperemic changes [in] the heart muscle
were the one[s] that made us [think] or gave strong
conclusion that it was myocardial infarction, and most likely
the cause is occlusion of the blood vessels itself. (Emphasis
supplied.)22By definition, coronary occlusion23 is the
complete obstruction of an artery of the heart, usually from
progressive arteriosclerosis24 or the thickening and loss of
elasticity of the arterial walls. This can result from sudden
emotion in a person with an existing arteriosclerosis;
otherwise, a heart attack will not occur.25 Dr. Jessica
Romero testified on direct examination relative to this point:
ATTY. CALASAN: Q: Could an excitement trigger a
myocardial infarction? A: Excitement, I cannot say that if the
patient is normal[;] that is[,] considering that the patient
[does] not have any previous [illness] of hypertension, no
previous history of myocardial [ischemia], no previous
[arteriosis] or hardening of the arteries, then excitement
[cannot]
cause
myocardial
infarction.
(Emphasis
supplied.)26The Autopsy Report bears out that Chy has a
mild fibrosis of the myocardium27 caused by a previous
heart attack. Said fibrosis28 or formation of fibrous tissue or
scar tissue rendered the middle and thickest layer of the
victims heart less elastic and vulnerable to coronary
occlusion from sudden emotion. This causation is elucidated
by the testimony of Dr. Antonio:
ATTY. CALASAN: Q: You said that the physical injuries will
cause no crisis on the part of the victim, Doctor? A: Yes, sir.
Q: And [these] physical injuries [were] caused by the [boxing]
on the mouth and[/]or hitting on the nape by a bottle? A: Yes,
sir. Q: On the part of the deceased, that [was] caused
definitely by emotional crisis, Doctor? A: Yes, sir. Q: And
because of this emotional crisis the heart palpitated so fast,
so much so, that there was less oxygen being pumped by
the heart? A: Yes, sir. Q: And definitely that caused his
death, Doctor? A: Yes, sir, it could be.29In concurrence, Dr.
Antonio A. Paguirigan also testified as follows: ATTY.
CALASAN: Q: I will repeat the question... Dr. Antonio
testified that the deceased died because of the blow that
was inflicted, it triggered the death of the deceased, do you
agree with his findings, Doctor? A: Not probably the blow but
the reaction sir. Q: So you agree with him, Doctor? A: It
could be, sir. Q: You agree with him on that point, Doctor? A:
Yes, sir.30It can be reasonably inferred from the foregoing
statements that the emotional strain from the beating
aggravated Chys delicate constitution and led to his death.
The inevitable conclusion then surfaces that the myocardial
infarction suffered by the victim was the direct, natural and
logical consequence of the felony that petitioner had
intended to commit. Article 4(1) of the Revised Penal Code
states that criminal liability shall be incurred "by any person
committing a felony (delito) although the wrongful act done
be different from that which he intended." The essential
requisites for the application of this provision are: (a) the
intended act is felonious; (b) the resulting act is likewise a
felony; and (c) the unintended albeit graver wrong was
primarily caused by the actors wrongful acts.31lawph!lIn this
case, petitioner was committing a felony when he boxed the
victim and hit him with a bottle. Hence, the fact that Chy was
previously afflicted with a heart ailment does not alter
petitioners liability for his death. Ingrained in our
jurisprudence is the doctrine laid down in the case of United
States v. Brobst32 that: x x x where death results as a direct
consequence of the use of illegal violence, the mere fact that
the diseased or weakened condition of the injured person
contributed to his death, does not relieve the illegal
aggressor of criminal responsibility.33

In the same vein, United States v. Rodriguez34 enunciates

that: x x x although the assaulted party was previously
affected by some internal malady, if, because of a blow given
with the hand or the foot, his death was hastened, beyond
peradventure he is responsible therefor who produced the
cause for such acceleration as the result of a voluntary and
unlawfully inflicted injury. (Emphasis supplied.)35In this
jurisdiction, a person committing a felony is responsible for
all the natural and logical consequences resulting from it
although the unlawful act performed is different from the one
he intended;36 "el que es causa de la causa es causa del
mal causado" (he who is the cause of the cause is the cause
of the evil caused).37 Thus, the circumstance that petitioner
did not intend so grave an evil as the death of the victim
does not exempt him from criminal liability. Since he
deliberately committed an act prohibited by law, said
condition simply mitigates his guilt in accordance with Article
13(3)38 of the Revised Penal Code.39 Nevertheless, we
must appreciate as mitigating circumstance in favor of
petitioner the fact that the physical injuries he inflicted on the
victim, could not have resulted naturally and logically, in the
actual death of the victim, if the latters heart was in good
condition. Considering that the petitioner has in his favor the
mitigating circumstance of lack of intention to commit so
grave a wrong as that committed without any aggravating
circumstance to offset it, the imposable penalty should be in
the minimum period, that is, reclusion temporal in its
minimum period,40or anywhere from twelve (12) years and
one (1) day to fourteen years (14) years and eight (8)
months. Applying the Indeterminate Sentence Law,41 the
trial court properly imposed upon petitioner an indeterminate
penalty of ten (10) years of prisin mayor, as minimum, to
fourteen (14) years and eight (8) months of reclusion
temporal as maximum. We shall, however, modify the award
of damages to the heirs of Manuel Chy for his loss of earning
capacity in the amount of P332,000. In fixing the indemnity,
the victims actual income at the time of death and probable
life expectancy are taken into account. For this purpose, the
Court adopts the formula used in People v. Malinao:42Net
earning capacity = 2/3 x (80-age of x a reasonable portion of
the the victim at the annual net income which time of this
death) would have been received by the heirs for
support.43Branch 9 of the Aparri, Cagayan RTC took judicial
notice of the salary which Manuel Chy was receiving as a
sheriff of the court. At the time of his death, Chy was 51
years old and was earning a gross monthly income
ofP10,600 or a gross annual income of P127,200. But, in
view of the victims delicate condition, the trial court reduced
his life expectancy to 10 years. It also deducted P7,000 from
Chys salary as reasonable living expense. However, the
records are bereft of showing that the heirs of Chy submitted
evidence to substantiate actual living expenses. And in the
absence of proof of living expenses, jurisprudence44
approximates net income to be 50% of the gross income.
Accordingly, by reason of his death, the heirs of Manuel Chy
should be awarded P1,229,600 as loss of earning capacity,
computed as follows: Net earning capacity = 2/3 x (80-51) x
[P127,200 - 1/2 (P127,200)] = 2/3 x (29) x P63,600 = 19 1/3
x P63,600 = P1,229,600 We sustain the trial courts grant of
funerary expense of P200,000 as stipulated by the parties45
and civil indemnity of P50,000.46 Anent moral damages, the
same is mandatory in cases of murder and homicide, without
need of allegation and proof other than the death of the
victim.47 However, in obedience to the controlling case law,
the amount of moral damages should be reduced to
P50,000. WHEREFORE, the Decision dated December 20,
2005 and the Resolution dated March 13, 2006 of the Court
of Appeals in CA-G.R.-CR No. 27544 are AFFIRMED with
MODIFICATION in that the award of moral damages is
reduced to P50,000. Petitioner is further ordered to

indemnify the heirs of Manuel K. Chy P50,000 as civil

indemnity; P200,000, representing expenses for the wake
and burial; and P1,229,600 as loss of earning capacity. No
pronouncement as to costs.
SO ORDERED.
FILOMENO URBANO, petitioner, vs. HON. INTERMEDIATE
APPELLATE
COURT
AND
PEOPLE
OF
THE
PHILIPPINES,respondents. GUTIERREZ, JR.,J.:This is a
petition to review the decision of the then Intermediate
Appellate Court which affirmed the decision of the then
Circuit Criminal Court of Dagupan City finding petitioner
Filomeno Urban guilty beyond reasonable doubt of the crime
of homicide. The records disclose the following facts of the
case. At about 8:00 o'clock in the morning of October 23,
1980, petitioner Filomeno Urbano went to his ricefield at
Barangay Anonang, San Fabian, Pangasinan located at
about 100 meters from the tobacco seedbed of Marcelo
Javier. He found the place where he stored his palay flooded
with water coming from the irrigation canal nearby which had
overflowed. Urbano went to the elevated portion of the canal
to see what happened and there he saw Marcelo Javier and
Emilio Erfe cutting grass. He asked them who was
responsible for the opening of the irrigation canal and Javier
admitted that he was the one. Urbano then got angry and
demanded that Javier pay for his soaked palay. A quarrel
between them ensued. Urbano unsheathed his bolo (about 2
feet long, including the handle, by 2 inches wide) and
hacked Javier hitting him on the right palm of his hand,
which was used in parrying the bolo hack. Javier who was
then unarmed ran away from Urbano but was overtaken by
Urbano who hacked him again hitting Javier on the left leg
with the back portion of said bolo, causing a swelling on said
leg. When Urbano tried to hack and inflict further injury, his
daughter embraced and prevented him from hacking Javier.
Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe
Erfe brought Javier to his house about 50 meters away from
where the incident happened. Emilio then went to the house
of Barangay Captain Menardo Soliven but not finding him
there, Emilio looked for barrio councilman Felipe Solis
instead. Upon the advice of Solis, the Erfes together with
Javier went to the police station of San Fabian to report the
incident. As suggested by Corporal Torio, Javier was brought
to a physician. The group went to Dr. Guillermo Padilla, rural
health physician of San Fabian, who did not attend to Javier
but instead suggested that they go to Dr. Mario Meneses
because Padilla had no available medicine. After Javier was
treated by Dr. Meneses, he and his companions returned to
Dr. Guillermo Padilla who conducted a medico-legal
examination. Dr. Padilla issued a medico-legal certificate
(Exhibit "C" dated September 28, 1981) which reads: TO
WHOM IT MAY CONCERN: This is to certify that I have
examined the wound of Marcelo Javier, 20 years of age,
married, residing at Barangay Anonang, San Fabian,
Pangasinan on October 23, 1980 and found the following: 1
-Incised wound 2 inches in length at the upper portion of the
lesser palmar prominence, right. As to my observation the
incapacitation is from (7-9) days period. This wound was
presented to me only for medico-legal examination, as it was
already treated by the other doctor. (p. 88, Original Records)
Upon the intercession of Councilman Solis, Urbano and
Javier agreed to settle their differences. Urbano promised to
pay P700.00 for the medical expenses of Javier. Hence, on
October 27, 1980, the two accompanied by Solis appeared
before the San Fabian Police to formalize their amicable
settlement. Patrolman Torio recorded the event in the police
blotter (Exhibit A), to wit:

xxx xxx xxx Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592

on page 257 both parties appeared before this Station
accompanied by brgy. councilman Felipe Solis and settled
their case amicably, for they are neighbors and close
relatives to each other. Marcelo Javier accepted and granted
forgiveness to Filomeno Urbano who shoulder (sic) all the
expenses in his medical treatment, and promising to him and
to this Office that this will never be repeated anymore and
not to harbour any grudge against each other. (p. 87,
Original Records.) Urbano advanced P400.00 to Javier at
the police station. On November 3, 1980, the additional
P300.00 was given to Javier at Urbano's house in the
presence of barangay captain Soliven. At about 1:30 a.m. on
November 14, 1980, Javier was rushed to the Nazareth
General Hospital in a very serious condition. When admitted
to the hospital, Javier had lockjaw and was having
convulsions. Dr. Edmundo Exconde who personally attended
to Javier found that the latter's serious condition was caused
by tetanus toxin. He noticed the presence of a healing
wound in Javier's palm which could have been infected by
tetanus. On November 15, 1980 at exactly 4:18 p.m., Javier
died in the hospital. The medical findings of Dr. Exconde are
as follows: Date Diagnosis 11-14-80 ADMITTED due to
trismus adm. at DX TETANUS 1:30 AM Still having frequent
muscle spasm. With diffi-#35, 421 culty opening his mouth.
Restless at times. Febrile 11-15-80 Referred. Novaldin 1
amp. inj. IM. Sudden cessa- tion of respiration and HR after
muscular spasm. 02 inhalation administered. Ambo bag
resuscita- tion and cardiac massage done but to no avail.
Pronounced dead by Dra. Cabugao at 4:18 P.M. PMC done
and cadaver brought home by rela- tives. (p. 100, Original
Records) In an information dated April 10, 1981, Filomeno
Urbano was charged with the crime of homicide before the
then Circuit Criminal Court of Dagupan City, Third Judicial
District. Upon arraignment, Urbano pleaded "not guilty." After
trial, the trial court found Urbano guilty as charged. He was
sentenced to suffer an indeterminate prison term of from
TWELVE (12) YEARS of prision mayor, as minimum to
SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1)
DAY of reclusion temporal, as maximum, together with the
accessories of the law, to indemnify the heirs of the victim,
Marcelo Javier, in the amount of P12,000.00 without
subsidiary imprisonment in case of insolvency, and to pay
the costs. He was ordered confined at the New Bilibid
Prison, in Muntinlupa, Rizal upon finality of the decision, in
view of the nature of his penalty. The then Intermediate
Appellate Court affirmed the conviction of Urbano on appeal
but raised the award of indemnity to the heirs of the
deceased to P30,000.00 with costs against the appellant.
The appellant filed a motion for reconsideration and/or new
trial. The motion for new trial was based on an affidavit of
Barangay Captain Menardo Soliven (Annex "A") which
states: That in 1980, I was the barrio captain of Barrio
Anonang, San Fabian, Pangasinan, and up to the present
having been re-elected to such position in the last barangay
elections on May 17, 1982; That sometime in the first week
of November, 1980, there was a typhoon that swept
Pangasinan and other places of Central Luzon including San
Fabian, a town of said province; That during the typhoon, the
sluice or control gates of the Bued irrigation dam which
irrigates the ricefields of San Fabian were closed and/or
controlled so much so that water and its flow to the canals
and ditches were regulated and reduced; That due to the
locking of the sluice or control gates of the dam leading to
the canals and ditches which will bring water to the ricefields,
the water in said canals and ditches became shallow which
was suitable for catching mudfishes; That after the storm, I
conducted a personal survey in the area affected, with my
secretary Perfecto Jaravata; That on November 5, 1980,

while I was conducting survey, I saw the late Marcelo Javier

catching fish in the shallow irrigation canals with some
companions; That few days there after,or on November l5,
l980, I came to know that said Marcelo Javier died of
tetanus. (p. 33, Rollo) The motion was denied. Hence, this
petition. In a resolution dated July 16, 1986, we gave due
course to the petition. The case involves the application of
Article 4 of the Revised Penal Code which provides that
"Criminal liability shall be incurred: (1) By any person
committing a felony (delito) although the wrongful act done
be different from that which he intended ..." Pursuant to this
provision "an accused is criminally responsible for acts
committed by him in violation of law and for all the natural
and logical consequences resulting therefrom." (People v.
Cardenas, 56 SCRA 631). The record is clear that Marcelo
Javier was hacked by the petitioner who used a bolo as a
result of which Javier suffereda 2-inch incised wound on his
right palm; that on November 14, 1981 which was the 22nd
day after the incident, Javier was rushed to the hospital in a
very serious condition and that on the following day,
November 15, 1981, he died from tetanus. Under these
circumstances, the lower courts ruled that Javier's death was
the natural and logical consequence of Urbano's unlawful
act. Hence, he was declared responsible for Javier's death.
Thus, the appellate court said: The claim of appellant that
there was an efficient cause which supervened from the time
the deceased was wounded to the time of his death, which
covers a period of 23 days does not deserve serious
consideration. True, that the deceased did not die right away
from his wound, but the cause of his death was due to said
wound which was inflicted by the appellant. Said wound
which was in the process of healing got infected with tetanus
which ultimately caused his death.Dr. Edmundo Exconde of
the Nazareth General Hospital testified that the victim
suffered lockjaw because of the infection of the wound with
tetanus. And there is no other way by which he could be
infected with tetanus except through the wound in his palm
(tsn., p. 78, Oct. 5, 1981). Consequently, the proximate
cause of the victim's death was the wound which got infected
with tetanus. And the settled rule in this jurisdiction is that an
accused is liable for all the consequences of his unlawful act.
(Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072;
People v. Cornel 78 Phil. 418). Appellant's allegation that the
proximate cause of the victim's death was due to his own
negligence in going back to work without his wound being
properly healed, and lately, that he went to catch fish in dirty
irrigation canals in the first week of November, 1980, is an
afterthought, and a desperate attempt by
appellant to wiggle out of the predicament he found himself
in. If the wound had not yet healed, it is impossible to
conceive that the deceased would be reckless enough to
work with a disabled hand. (pp. 20-21, Rollo) The petitioner
reiterates his position that the proximate cause of the death
of Marcelo Javier was due to his own negligence, that Dr.
Mario Meneses found no tetanus in the injury, and that
Javier got infected with tetanus when after two weeks he
returned to his farm and tended his tobacco plants with his
bare hands exposing the wound to harmful elements like
tetanus germs. The evidence on record does not clearly
show that the wound inflicted by Urbano was infected with
tetanus at the time of the infliction of the wound. The
evidence merely confirms that the wound, which was already
healing at the time Javier suffered the symptoms of the fatal
ailment, somehow got infected with tetanus However, as to
when the wound was infected is not clear from the record.
InVda. de Bataclan, et al. v. Medina (102 Phil. 1181), we
adopted the following definition of proximate cause: xxx xxx
xxx... A satisfactory definition of proximate cause is found in
Volume 38, pages 695-696 of American Jurisprudence, cited

by plaintiffs-appellants in their brief. It is as follows: ... "that

cause, which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury, and
without which the result would not have occurred."And more
comprehensively, "the proximate legal cause is that acting
first and producing the injury, either immediately or by setting
other events in motion, all constituting a natural and
continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in
the chain immediately effecting the injury as a natural and
probable result of the cause which first acted, under such
circumstances that the person responsible for the first event
should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or
default that an injury to some person might probably result
therefrom." (at pp. 185-186)The issue, therefore, hinges on
whether or not there was an efficient intervening cause from
the time Javier was wounded until his death which would
exculpate Urbano from any liability for Javier's death. We
look into the nature of tetanus- The incubation period of
tetanus, i.e., the time between injury and the appearance of
unmistakable symptoms, ranges from 2 to 56 days.
However, over 80 percent of patients become symptomatic
within 14 days. A short incubation period indicates severe
disease, and when symptoms occur within 2 or 3 days of
injury the mortality rate approaches 100 percent. Nonspecific premonitory symptoms such as restlessness,
irritability, and headache are encountered occasionally, but
the commonest presenting complaints are pain and stiffness
in the jaw, abdomen, or back and difficulty swallowing. As the
progresses, stiffness gives way to rigidity, and patients often
complain of difficulty opening their mouths. In fact, trismus in
the commonest manifestation of tetanus and is responsible
for the familiar descriptive name of lockjaw. As more muscles
are involved, rigidity becomes generalized, and sustained
contractions called risus sardonicus. The intensity and
sequence of muscle involvement is quite variable. In a small
proportion of patients, only local signs and symptoms
develop in the region of the injury. In the vast majority,
however, most muscles are involved to some degree, and
the signs and symptoms encountered depend upon the
major muscle groups affected. Reflex spasm usually occur
within 24 to 72 hours of the first symptom, an interval
referred to as the onset time. As in the case of the incubation
period, a short onset time is associated with a poor
prognosis. Spasms are caused by sudden intensification of
afferent stimuli arising in the periphery, which increases
rigidity and causes simultaneous and excessive contraction
of muscles and their antagonists. Spasms may be both
painful and dangerous. As the disease progresses, minimal
or inapparent stimuli produce more intense and longer
lasting spasms with increasing frequency. Respiration may
be impaired by laryngospasm or tonic contraction of
respiratory muscles which prevent adequate ventilation.
Hypoxia may then lead to irreversible central nervous
system damage and death.
Mild tetanus is characterized by an incubation period of at
least 14 days and an onset time of more than 6 days.
Trismus is usually present, but dysphagia is absent and
generalized spasms are brief and mild. Moderately severe
tetanus has a somewhat shorter incubation period and onset
time; trismus is marked, dysphagia and generalized rigidity
are present, but ventilation remains adequate even during
spasms. The criteria for severe tetanus include a short
incubation time, and an onset time of 72 hrs., or less, severe
trismus, dysphagia and rigidity and frequent prolonged,
generalized convulsive spasms. (Harrison's Principle of
Internal Medicine, 1983 Edition, pp. 1004-1005; Emphasis
supplied) Therefore, medically speaking, the reaction to

tetanus found inside a man's body depends on the

incubation period of the disease. In the case at bar, Javier
suffered a 2-inch incised wound on his right palm when he
parried the bolo which Urbano used in hacking him. This
incident took place on October 23, 1980. After 22 days, or on
November 14, 1980, he suffered the symptoms of tetanus,
like lockjaw and muscle spasms. The following day,
November 15, 1980, he died. If, therefore, the wound of
Javier inflicted by the appellant was already infected by
tetanus germs at the time, it is more medically probable that
Javier should have been infected with only a mild cause of
tetanus because the symptoms of tetanus appeared on the
22nd day after the hacking incident or more than 14 days
after the infliction of the wound. Therefore, the onset time
should have been more than six days. Javier, however, died
on the second day from the onset time. The more credible
conclusion is that at the time Javier's wound was inflicted by
the appellant, the severe form of tetanus that killed him was
not yet present. Consequently, Javier's wound could have
been infected with tetanus after the hacking incident.
Considering the circumstance surrounding Javier's death, his
wound could have been infected by tetanus 2 or 3 or a few
but not 20 to 22 days before he died. The rule is that the
death of the victim must be the direct, natural, and logical
consequence of the wounds inflicted upon him by the
accused. (People v. Cardenas, supra) And since we are
dealing with a criminal conviction, the proof that the accused
caused the victim's death must convince a rational mind
beyond reasonable doubt. The medical findings, however,
lead us to a distinct possibility that the infection of the wound
by tetanus was an efficient intervening cause later or
between the time Javier was wounded to the time of his
death. The infection was, therefore, distinct and foreign to
the crime. (People v. Rellin, 77 Phil. 1038). Doubts are
present. There is a likelihood that the wound was but the
remote cause and its subsequent infection, for failure to take
necessary precautions, with tetanus may have been the
proximate cause of Javier's death with which the petitioner
had nothing to do. As we ruled in Manila Electric Co. v.
Remoquillo, et al. (99 Phil. 118). "A prior and remote cause
cannot be made the be of an action if such remote cause did
nothing more than furnish the condition or give rise to the
occasion by which the injury was made possible, if there
intervened between such prior or remote cause and the
injury a distinct, successive, unrelated, and efficient cause of
the injury, even though such injury would not have happened
but for such condition or occasion. If no danger existed in the
condition except because of the independent cause, such
condition was not the proximate cause. And if an
independent negligent act or defective condition sets into
operation the instances which result in injury because of the
prior defective condition, such subsequent act or condition is
the proximate cause." (45 C.J. pp. 931-932). (at p. 125) It
strains the judicial mind to allow a clear aggressor to go scot
free of criminal liability. At the very least, the records show he
is guilty of inflicting slight physical injuries. However, the
petitioner's criminal liability in this respect was wiped out by
the victim's own act. After the hacking incident, Urbano and
Javier used the facilities of barangay mediators to effect a
compromise agreement where Javier forgave Urbano while
Urbano defrayed the medical expenses of Javier. This
settlement of minor offenses is allowed under the express
provisions of Presidential Decree G.R. No. 1508, Section
2(3). (See also People v. Caruncho, 127 SCRA 16). We must
stress, however, that our discussion of proximate cause and
remote cause is limited to the criminal aspects of this rather
unusual case. It does not necessarily follow that the
petitioner is also free of civil liability. The well-settled doctrine
is that a person, while not criminally liable, may still be civilly
liable. Thus, in the recent case of People v. Rogelio Ligon y

Tria, et al. (G.R. No. 74041, July 29, 1987), we said: xxx xxx
xxx ... While the guilt of the accused in a criminal
prosecution must be established beyond reasonable doubt,
only a preponderance of evidence is required in a civil action
for damages. (Article 29, Civil Code). The
judgment of acquittal extinguishes the civil liability of the
accused only when it includes a declaration thatthe facts
from which the civil liability might arise did not exist. (Padilla
v. Court of Appeals, 129 SCRA 559). The reason for the
provisions of article 29 of the Civil Code, which provides that
the acquittal of the accused on the ground that his guilt has
not been proved beyond reasonable doubt does not
necessarily exempt him from civil liability for the same act or
omission, has been explained by the Code Commission as
follows: The old rule that the acquittal of the accused in a
criminal case also releases him from civil liability is one of
the most serious flaws in the Philippine legal system. It has
given use to numberless instances of miscarriage of justice,
where the acquittal was due to a reasonable doubt in the
mind of the court as to the guilt of the accused. The
reasoning followed is that inasmuch as the civil responsibility
is derived from the criminal offense, when the latter is not
proved, civil liability cannot be demanded. This is one of
those causes where confused thinking leads to unfortunate
and deplorable consequences. Such reasoning fails to draw
a clear line of demarcation between criminal liability and civil
responsibility, and to determine the logical result of the
distinction. The two liabilities are separate and distinct from
each other. One affects the social order and the other,
private rights. One is for the punishment or correction of the
offender while the other is for reparation of damages
suffered by the aggrieved party. The two responsibilities are
so different from each other that article 1813 of the present
(Spanish) Civil Code reads thus: "There may be a
compromise upon the civil action arising from a crime; but
the public action for the imposition of the legal penalty shall
not thereby be extinguished." It is just and proper that, for
the purposes of the imprisonment of or fine upon the
accused, the offense should be proved beyond reasonable
doubt. But for the purpose of indemnity the complaining
party, why should the offense also be proved beyond
reasonable doubt? Is not the invasion or violation of every
private right to be proved only by a preponderance of
evidence? Is the right of the aggrieved person any less
private because the wrongful act is also punishable by the
criminal law? "For these reasons, the Commission
recommends the adoption of the reform under discussion. It
will correct a serious defect in our law. It will close up an
inexhaustible source of injustice-a cause for disillusionment
on the part of the innumerable persons injured or wronged."
The respondent court increased the P12,000.00
indemnification imposed by the trial court to P30,000.00.
However, since the indemnification was based solely on the
finding of guilt beyond reasonable doubt in the homicide
case, the civil liability of the petitioner was not thoroughly
examined. This aspect of the case calls for fuller
development if the heirs of the victim are so minded.
WHEREFORE, the instant petition is hereby GRANTED. The
questioned decision of the then Intermediate Appellate
Court, now Court of Appeals, is REVERSED and SET
ASIDE. The petitioner is ACQUITTED of the crime of
homicide. Costs de oficio.SO ORDERED.
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.
ORLITO VILLACORTA, Accused-Appellant. D E C I S I O N
LEONARDO-DE CASTRO, J.:On appeal is the Decision1
dated July 30, 2008 of the Court of Appeals in CA-G.R. CR.H.C. No. 02550, which affirmed the Decision2 dated

September 22, 2006 of the Regional Trial Court (RTC),

Branch 170, of Malabon, in Criminal Case No. 27039-MN,
finding accused-appellant Orlito Villacorta (Villacorta) guilty
of murder, and sentencing him to suffer the penalty of
reclusion perpetua and to pay the heirs of Danilo Cruz (Cruz)
the sum ofP50,000.00 as civil indemnity, plus the costs of
suit. On June 21, 2002, an Information3 was filed against
Villacorta charging him with the crime of murder, as follows:
That on or about 23rd day of January 2002, in Navotas,
Metro Manila, and within the jurisdiction of this Honorable
Court, the above-named accused, armed with a sharpened
bamboo stick, with intent to kill, treachery and evident
premeditation, did then and there willfully, unlawfully and
feloniously attack, assault and stab with the said weapon
one DANILO SALVADOR CRUZ, thereby inflicting upon the
victim serious wounds which caused his immediate death.
When arraigned on September 9, 2002, Villacorta pleaded
not guilty.4During trial, the prosecution presented as
witnesses Cristina Mendeja (Mendeja) and Dr. Domingo
Belandres, Jr. (Dr. Belandres). Mendeja narrated that on
January 23, 2002, she was tending her sari-sari store
located at C-4 Road, Bagumbayan, Navotas. Both Cruz and
Villacorta were regular customers at Mendejas store. At
around two oclock in the morning, while Cruz was ordering
bread at Mendejas store, Villacorta suddenly appeared and,
without uttering a word, stabbed Cruz on the left side of
Cruzs body using a sharpened bamboo stick. The bamboo
stick broke and was left in Cruzs body. Immediately after the
stabbing incident, Villacorta fled. Mendeja gave chase but
failed to catch Villacorta. When Mendeja returned to her
store, she saw her neighbor Aron removing the broken
bamboo stick from Cruzs body.5 Mendeja and Aron then
brought Cruz to Tondo Medical Center.6Dr. Belandres was
Head of the Tetanus Department at the San Lazaro Hospital.
When Cruz sustained the stab wound on January 23, 2002,
he was taken to the Tondo Medical Center, where he was
treated as an out-patient. Cruz was only brought to the San
Lazaro Hospital on February 14, 2002, where he died the
following day, on February 15, 2002. While admitting that he
did not personally treat Cruz, Dr. Belandres was able to
determine, using Cruzs medical chart and diagnosis, that
Cruz died of tetanus infection secondary to stab wound.7 Dr.
Belandres specifically described the cause of Cruzs death in
the following manner: The wound was exposed x x spurs
concerted, the patient developed difficulty of opening the
mouth, spastivity of the body and abdominal pain and the
cause of death is hypoxic encephalopathy neuro
transmitted due to upper G.I. bleeding x x x. Diagnosed of
Tetanus, Stage III.8The prosecution also intended to present
Dr. Deverni Matias (Dr. Matias), who attended to Cruz at the
San Lazaro Hospital, but the prosecution and defense
agreed to dispense with Dr. Matias testimony based on the
stipulation that it would only corroborate Dr. Belandres
testimony on Cruz dying of tetanus. For its part, the defense
presented Villacorta himself, who denied stabbing Cruz.
Villacorta recounted that he was on his way home from work
at around two oclock in the morning of January 21, 2002.
Upon arriving home, Villacorta drank
coffee then went outside to buy cigarettes at a nearby store.
When Villacorta was about to leave the store, Cruz put his
arm around Villacortas shoulder. This prompted Villacorta to
box Cruz, after which, Villacorta went home. Villacorta did
not notice that Cruz got hurt. Villacorta only found out about
Cruzs death upon his arrest on July 31, 2002.9On
September 22, 2006, the RTC rendered a Decision finding
Villacorta guilty of murder, qualified by treachery. The
dispositive portion of said Decision reads: WHEREFORE, in
the light of the foregoing, the Court finds accused Orlito
Villacorta guilty beyond reasonable doubt of the crime of

Murder and is hereby sentenced to suffer the penalty of

reclusion perpetua and to pay the heirs of Danilo Cruz the
sum of P50,000.00 as civil indemnity for the death of said
victim plus the costs of suit.10Villacorta, through his counsel
from the Public Attorneys Office (PAO), filed a notice of
appeal to assail his conviction by the RTC.11 The Court of
Appeals directed the PAO to file Villacortas brief, within thirty
days from receipt of notice. Villacorta filed his Appellants
Brief12 on May 30, 2007; while the People, through the
Office of the Solicitor General (OSG), filed its Appellee's
Brief13 on October 2, 2007. On July 30, 2008, the Court of
Appeals promulgated its Decision affirming in toto the RTC
judgment of conviction against Villacorta. Hence, Villacorta
comes before this Court via the instant appeal. Villacorta
manifested that he would no longer file a supplemental brief,
as he was adopting the Appellant's Brief he filed before the
Court of Appeals.14 The OSG, likewise, manifested that it
was no longer filing a supplemental brief. 15In his
Appellants Brief, Villacorta raised the following assignment
of errors: I THE COURT A QUO GRAVELY ERRED IN
FINDING THE ACCUSED-APPELLANT GUILTY OF THE
CRIME CHARGED DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT. IITHE TRIAL COURT GRAVELY
ERRED
IN
APPRECIATING
THE
QUALIFYING
CIRCUMSTANCE
OF
TREACHERY.
IIIASSUMING
ARGUENDO THAT THE ACCUSED COMMITTED A CRIME,
HE COULD ONLY BE HELD LIABLE FOR SLIGHT
PHYSICAL INJURIES.16Villacorta assails the credibility of
Mendeja, an eyewitness to the stabbing incident. It was
Mendeja who positively identified Villacorta as the one who
stabbed Cruz in the early morning of January 23, 2002.
Villacorta asserts that Mendejas account of the stabbing
incident is replete with inconsistencies and incredulities, and
is contrary to normal human experience, such as: (1) instead
of shouting or calling for help when Villacorta allegedly
stabbed Cruz, Mendeja attempted to run after and catch
Villacorta; (2) while, by Mendejas own account, there were
other people who witnessed the stabbing and could have
chased after Villacorta, yet, oddly, only Mendeja did; (3) if
Cruz was stabbed so swiftly and suddenly as Mendeja
described, then it would have been physically improbable for
Mendeja to have vividly recognized the perpetrator, who
immediately ran away after the stabbing; (4) after the
stabbing, both Villacorta and Cruz ran in opposite directions;
and (5) Mendeja had said that the bamboo stick, the alleged
murder weapon, was left at her store, although she had also
stated that the said bamboo stick was left embedded in
Cruzs body. Villacorta maintains that the aforementioned
inconsistencies are neither trivial nor inconsequential, and
should engender some doubt as to his guilt. We are not
persuaded.
To begin with, it is fundamental that the determination by the
trial court of the credibility of witnesses, when affirmed by the
appellate court, is accorded full weight and credit as well as
great respect, if not conclusive effect. Such determination
made by the trial court proceeds from its first-hand
opportunity to observe the demeanor of the witnesses, their
conduct and attitude under grilling examination, thereby
placing the trial court in the unique position to assess the
witnesses' credibility and to appreciate their truthfulness,
honesty and candor.17In this case, both the RTC and the
Court of Appeals gave full faith and credence to the
testimony of prosecution witness Mendeja. The Court of
Appeals rejected Villacortas attempts to impugn Mendejas
testimony, thus: Appellants reason for concluding that
witness Mendejas testimony is incredible because she did
not shout or call for help and instead run after the appellant,
fails to impress the Court because persons who witness

crimes react in different ways. "x x x the makings of a human

mind are unpredictable; people react differently and there is
no standard form of behavior when one is confronted by a
shocking incident. Equally lacking in merit is appellants
second reason which is, other persons could have run after
the appellant after the stabbing incident. As explained by
witness Mendeja, the other person whom she identified as
Aron was left to assist the appellant who was wounded.
Further, the stabbing occurred at 2:00 oclock in the morning,
a time when persons are expected to be asleep in their
house, not roaming the streets. His [Villacortas] other
argument that the swiftness of the stabbing incident
rendered impossible or incredible the identification of the
assailant cannot likewise prosper in view of his admission
that he was in the store of witness Mendeja on January 23,
2002 at 2:00 oclock in the morning and that he assaulted
the victim by boxing him. Even if his admission is
disregarded still the evidence of record cannot support
appellants argument. Appellant and the victim were known
to witness Mendeja, both being her friends and regular
customers. There was light in front of the store. An opening
in the store measuring 1 and meters enables the person
inside to see persons outside, particularly those buying
articles from the store. The victim was in front of the store
buying bread when attacked. Further, immediately after the
stabbing, witness Mendeja ran after the appellant giving her
additional opportunity to identify the malefactor. Thus,
authorship
of
the
attack
can
be
credibly
ascertained.18Moreover, Villacorta was unable to present
any reason or motivation for Mendeja to fabricate such a lie
and falsely accuse Villacorta of stabbing Cruz on January
23, 2002. We have ruled time and again that where the
prosecution eyewitnesswas familiar with both the victim and
accused, and where the locus criminis afforded good
visibility, and where no improper motive can be attributed to
the witness for testifying against the accused, then her
version of the story deserves much weight.19The purported
inconsistencies in Mendejas testimony pointed out by
Villacorta are on matters that have no bearing on the
fundamental fact which Mendeja testified on: that Villacorta
stabbed Cruz in the early morning of January 23, 2002, right
in front of Mendejas store. In the face of Mendejas positive
identification of Villacorta as Cruzs stabber, Villacorta could
only muster an uncorroborated denial. Denial, like alibi, as
an exonerating justification, is inherently weak and if
uncorroborated, regresses to blatant impotence. Like alibi, it
also constitutes self-serving negative evidence which cannot
be accorded greater evidentiary weight than the declaration
of credible witnesses who testify on affirmative
matters.20Hence, we do not deviate from the foregoing
factual findings of the RTC, as affirmed by the Court of
Appeals.Nevertheless, there is merit in the argument
proffered by Villacorta that in the event he is found to have
indeed stabbed Cruz, he should only be held liable for slight
physical injuries for the stab wound he inflicted upon Cruz.
The proximate cause of Cruzs death is the tetanus infection,
and not the stab wound. Proximate cause has been defined
as "that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have
occurred."21In this case, immediately after he was stabbed
by Villacorta in the early morning of January 23, 2002, Cruz
was rushed to and treated as an out-patient at the Tondo
Medical Center. On February 14, 2002, Cruz was admitted to
the San Lazaro Hospital for symptoms of severe tetanus
infection, where he died the following day, on February 15,
2002. Theprosecution did not present evidence of the
emergency medical treatment Cruz received at the Tondo
Medical Center,

subsequent visits by Cruz to Tondo Medical Center or any

other hospital for follow-up medical treatment of his stab
wound, or Cruzs activities between January 23 to February
14, 2002. In Urbano v. Intermediate Appellate Court,22 the
Court was confronted with a case of very similar factual
background as the one at bar. During an altercation on
October 23, 1980, Urbano hacked Javier with a bolo,
inflicting an incised wound on Javiers hand. Javier was
treated by Dr. Meneses. On November 14, 1980, Javier was
rushed to the hospital with lockjaw and convulsions. Dr.
Exconde, who attended to Javier, found that Javiers serious
condition was caused by tetanus infection. The next day, on
November 15, 1980, Javier died. An Information was filed
against Urbano for homicide. Both the Circuit Criminal Court
and the Intermediate Appellate Court found Urbano guilty of
homicide, because Javier's death was the natural and logical
consequence of Urbano's unlawful act. Urbano appealed
before this Court,arguing that Javiers own negligence was
the proximate cause of his death. Urbano alleged that when
Dr. Meneses examined Javiers wound, he did not find any
tetanus infection and that Javier could have acquired the
tetanus germs when he returned to work on his farm only
two (2) weeks after sustaining his injury. The Court granted
Urbanos appeal. We quote extensively from the ratiocination
of the Court in Urbano: The issue, therefore, hinges on
whether or not there was an efficient intervening cause from
the time Javier was wounded until his death which would
exculpate Urbano from any liability for Javier's death. We
look into the nature of tetanus- "The incubation period of
tetanus, i.e., the time between injury and the appearance of
unmistakable symptoms, ranges from 2 to 56 days.
However, over 80 percent of patients become symptomatic
within 14 days. A short incubation period indicates severe
disease, and when symptoms occur within 2 or 3 days of
injury the mortality rate approaches 100 percent. "Nonspecific premonitory symptoms such as restlessness,
irritability, and headache are encountered occasionally, but
the commonest presenting complaints are pain and stiffness
in the jaw, abdomen, or back and difficulty swallowing. As the
disease progresses, stiffness gives way to rigidity, and
patients often complain of difficulty opening their mouths. In
fact, trismus is the commonest manifestation of tetanus and
is responsible for the familiar descriptive name of lockjaw. As
more muscles are involved, rigidity becomes generalized,
and sustained contractions called risus sardonicus. The
intensity and sequence of muscle involvement is quite
variable. In a small proportion of patients, only local signs
and symptoms develop in the region of the injury. In the vast
majority, however, most muscles are involved to some
degree, and the signs and symptoms encountered depend
upon the major muscle groups affected. "Reflex spasm
usually occur within 24 to 72 hours of the first symptoms, an
interval referred to as the onset time. As in the case of the
incubation period, a short onset time is associated with a
poor prognosis. Spasms are caused by suddenintensification
of afferent stimuli arising in the periphery, which increases
rigidity and causes simultaneous and excessive contraction
of muscles and their antagonists. Spasms may be both
painful and dangerous. As the disease progresses, minimal
or inapparent stimuli produce more intense and longer
lasting spasms with increasing frequency. Respiration may
be impaired by laryngospasm or tonic contraction of
respiratory muscles which prevent adequate ventilation.
Hypoxia may then lead to irreversible central nervous
system damage and death. "Mild tetanus is characterized by
an incubation period of at least 14 days and an onset time of
more than 6 days.Trismus is usually present, but dysphagia
is absent and generalized spasms are brief and mild.
Moderately severe tetanus has a somewhat shorter
incubation period and onset time; trismus is marked,

dysphagia and generalized rigidity are present, but

ventilation remains adequate even during spasms. The
criteria for severe tetanus include a short incubation time,
and an onset time of 72 hrs., or less, severe trismus,
dysphagia and rigidity and frequent prolonged, generalized
convulsive spasms. (Harrison's Principle of Internal
Medicine, 1983 Edition, pp. 1004-1005; Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found
inside a man's body depends on the incubation period of the
disease. In the case at bar, Javier suffered a 2-inch incised
wound on his right palm when he parried the bolo which
Urbano used in hacking him. This incident took place on
October 23, 1980. After 22 days, or on November 14, 1980,
he suffered the symptoms of tetanus, like lockjaw and
muscle spasms. The following day, November 15, 1980, he
died. If, therefore, the wound of Javier inflicted by the
appellant was already infected by tetanus germs at the time,
it is more medically probable that Javier should have been
infected with only a mild case of tetanus because the
symptoms of tetanus appeared on the 22nd day after the
hacking incident or more than 14 days after the infliction of
the wound.
Therefore, the onset time should have been more than six
days. Javier, however, died on the second day from the
onset time. The more credible conclusion is that at the time
Javier's wound was inflicted by the appellant, the severe
form of tetanus that killed him was not yet present.
Consequently, Javier's wound could have been infected with
tetanus after the hacking incident. Considering the
circumstance surrounding Javier's death, his wound could
have been infected by tetanus 2 or 3 or a few but not 20 to
22 days before he died.23The incubation period for tetanus
infection and the length of time between the hacking incident
and the manifestation of severe tetanus infection created
doubts in the mind of the Court that Javier acquired the
severe tetanus infection from the hacking incident. We
explained in Urbano that: The rule is that the death of the
victim must be the direct, natural, and logical consequence
of the wounds inflicted upon him by the accused. (People v.
Cardenas, supra) And since we are dealing with a criminal
conviction, the proof that the accused caused the victim's
death must convince a rational mind beyond reasonable
doubt. The medical findings, however, lead us to a distinct
possibility that the infection of the wound by tetanus was an
efficient intervening cause later or between the time Javier
was wounded to the time of his death. The infection was,
therefore, distinct and foreign to the crime. (People v. Rellin,
77 Phil. 1038). Doubts are present. There is a likelihood that
the wound was but the remote cause and its subsequent
infection, for failure to take necessary precautions, with
tetanus may have been the proximate cause of Javier's
death with which the petitioner had nothing to do. As we
ruled in Manila Electric Co. v. Remoquillo, et al. (99 Phil.
118). "A prior and remote cause cannot be made the basis of
an action if such remote cause did nothing more than furnish
the condition or give rise to the occasion by which the injury
was made possible, if there intervened between such prior or
remote cause and the injury a distinct, successive,
unrelated, and efficient cause of the injury, even though such
injury would not have happened but for such condition or
occasion. If no danger existed in the condition except
because of the independent cause, such condition was not
the proximate cause. And if an independent negligent act or
defective condition sets into operation the instances, which
result in injury because of the prior defective condition, such
subsequent act or condition is the proximate cause." (45 C.J.
pp. 931-932). (at p. 125)24We face the very same doubts in
the instant case that compel us to set aside the conviction of
Villacorta for murder. There had been an interval of 22 days

between the date of the stabbing and the date when Cruz
was rushed to San Lazaro Hospital, exhibiting symptoms of
severe tetanus infection. If Cruz acquired severe tetanus
infection from the stabbing, then the symptoms would have
appeared a lot sooner than 22 days later. As the Court noted
in Urbano, severe tetanus infection has a short incubation
period, less than 14 days; and those that exhibit symptoms
with two to three days from the injury, have one hundred
percent (100%) mortality. Ultimately, we can only deduce
that Cruzs stab wound was merely the remote cause, and
its subsequent infection with tetanus might have been the
proximate cause of Cruz's death. The infection of Cruzs stab
wound by tetanus was an efficient intervening cause later or
between the time Cruz was stabbed to the time of his death.
However, Villacorta is not totally without criminal
liability.1wphi1 Villacorta is guilty of slight physical injuries
under Article 266(1) of the Revised Penal Code for the stab
wound he inflicted upon Cruz. Although the charge in the
instant case is for murder, a finding of guilt for the lesser
offense of slight physical injuries may be made considering
that the latter offense is necessarily included in the former
since the essential ingredients of slight physical injuries
constitute and form part of those constituting the offense of
murder.25We cannot hold Villacorta criminally liable for
attempted or frustrated murder because the prosecution was
not able to establish Villacortas intent to kill. In fact, the
Court of Appeals expressly observed the lack of evidence to
prove such an intent beyond reasonable doubt, to wit:
Appellant stabbed the victim only once using a sharpened
bamboo stick, hitting him on the left side of the body and
then immediately fled. The instrument used is not as lethal
as those made of metallic material. The part of the body hit
is not delicate in the sense that instant death can ensue by
reason of a single stab wound. The assault was done only
once. Thus, there is doubt as to whether appellant had an
intent to kill the victim, which should be resolved in favor of
the appellant. x x x.26The intent must be proved in a clear
and evident manner to exclude every possible doubt as to
the homicidal (or murderous) intent of the aggressor. The
onus probandi lies not on accused-appellant but on the
prosecution. The inference that the intent to kill existed
should not be drawn in the absence of circumstances
sufficient to prove this fact beyond reasonable doubt. When
such intent is lacking but wounds were inflicted, the crime is
not frustrated murder but physical injuries only.27
Evidence on record shows that Cruz was brought to Tondo
Medical Center for medical treatment immediately after the
stabbing incident.1avvphi1 Right after receiving medical
treatment, Cruz was then released by the Tondo Medical
Center as an out-patient. There was no other evidence to
establish that Cruz was incapacitated for labor and/or
required medical attendance for more than nine days.
Without such evidence, the offense is only slight physical
injuries.28We still appreciate treachery as an aggravating
circumstance, it being sufficiently alleged in the Information
and proved during trial. The Information specified that
"accused, armed with a sharpened bamboo stick, with intent
to kill, treachery and evident premeditation, did then and
there willfully, unlawfully and feloniously attack, assault and
stab with the said weapon one DANILO SALVADOR CRUZ x
x x." Treachery exists when an offender commits any of the
crimes against persons, employing means, methods or
forms which tend directly or especially to ensure its
execution, without risk to the offender, arising from the
defense that the offended party might make. This definition
sets out what must be shown by evidence to conclude that
treachery existed, namely: (1) the employment of such
means of execution as would give the person attacked no
opportunity for self-defense or retaliation; and (2) the

deliberate and conscious adoption of the means of

execution. To reiterate, the essence of qualifying
circumstance is the suddenness, surprise and the lack of
expectation that the attack will take place, thus, depriving the
victim of any real opportunity for self-defense while ensuring
the commission of the crime without risk to the aggressor.29
Likewise, even when the victim was forewarned of the
danger to his person, treachery may still be appreciated
since what is decisive is that the execution of the attack
made it impossible for the victim to defend himself or to
retaliate.30Both the RTC and the Court of Appeals found
that treachery was duly proven in this case, and we sustain
such finding. Cruz, the victim, was attacked so suddenly,
unexpectedly, and without provocation. It was two oclock in
the morning of January 23, 2002, and Cruz, who was out
buying bread at Mendejas store, was unarmed. Cruz had his
guard down and was totally unprepared for an attack on his
person. Villacorta suddenly appeared from nowhere, armed
with a sharpened bamboo stick, and without uttering a word,
stabbed Cruz at the left side of his body, then swiftly ran
away. Villacortas treacherous mode of attack left Cruz with
no opportunity at all to defend himself or retaliate. Article
266(1) of the Revised Penal Code provides: ART. 266. Slight
physical injuries and maltreatment. The crime of slight
physical injuries shall be punished: 1. By arresto menor
when the offender has inflicted physical injuries which shall
incapacitate the offended party from labor from one to nine
days, or shall require medical attendance during the same
period. The penalty of arresto menor spans from one (1) day
to thirty (30) days.31 The Indeterminate Sentence Law does
not apply since said law excludes from its coverage cases
where the penalty imposed does not exceed one (1) year.32
With the aggravating circumstance of treachery, we can
sentence Villacorta with imprisonment anywhere within
arresto menor in the maximum period, i.e., twenty-one (21)
to thirty (30) days. Consequently, we impose upon Villacorta
a straight sentence of thirty (30) days of arresto menor; but
given that Villacorta has been in jail since July 31, 2002 until
present time, already way beyond his imposed sentence, we
order his immediate release. Under paragraph (1), Article
2219 of the Civil Code, moral damages may be recovered in
a criminal offense resulting in physical injuries. Moral
damages compensate for the mental anguish, serious
anxiety, and moral shock suffered by the victim and his
family as being a proximate result of the wrongful act. An
award requires no proof of pecuniary loss. Pursuant to
previous jurisprudence, an award of Five Thousand Pesos
(P5,000.00) moral damages is appropriate for less serious,
as well as slight physical injuries.33WHEREFORE, the
Decision dated July 30, 2008 of the Court of Appeals in CAG.R. CR.-H.C. No. 02550, affirming the Decision dated
September 22, 2006 of the Regional Trial Court, Branch 170,
of Malabon, in Criminal Case No. 27039-MN, is REVERSED
and SET ASIDE. A new judgment is entered finding Villacorta
GUILTY beyond reasonable doubt of the crime of slight
physical injuries, as defined and punished by Article 266 of
the Revised Penal Code, and sentenced to suffer the penalty
of thirty (30) days arresto menor. Considering that Villacorta
has been incarcerated well beyond the period of the penalty
herein imposed, the Director of the Bureau of Prisons is
ordered to cause Villacortas immediate release, unless
Villacorta is being lawfully held for another cause, and to
inform this Court, within five (5) days from receipt of this
Decision, of the compliance with such order. Villacorta is
ordered to pay the heirs of the late Danilo Cruz moral
damages in the sum of Five Thousand Pesos (P5,000.00).
SO ORDERED

PEOPLE OF THE PHILIPPINES, Plaintiff and Appellee, vs.

ROLLY ADRIANO y SAMSON, LEAN ADRIANO @
DENDEN, ABBA SANTIAGO y ADRIANO, JOHN DOE AND
PETER DOE, Accused, ROLLY ADRIANO y SAMSON,
Accused-Appellant. D E C I S I O N PEREZ, J.:This is an
appeal of the Decision1 of the Court of Appeals dated 30
May 2011 in CA-G.R. CR-HC No. 04028, which affirmed the
Decision2 of the Regional Trial Court dated 7 April 2009,
convicting accused-appellant Rolly Adriano y Santos
(Adriano) for the crime of Homicide (Crim. Case No. 1315907) for the killing of Ofelia Bulanan (Bulanan) and for the
crime of Murder (Crim. Case No. 13160-07) for the killing of
Danilo Cabiedes (Cabiedes) in "People of the Philippines v.
Rolly Adriano y Sales."Adriano was charged with two (2)
counts of Murder. The two (2) sets of Information read: Crim.
Case No. 13159-07On or about March 13, 2007, around
8:00 o'clock (sic) in the morning, in Malapit, San Isidro,
Nueva Ecija, within thejurisdiction of this Honorable Court,
the above-named accused, conniving together, with intent to
kill, treachery and abuse of superior strength, willfully shot
several times with assorted firearms Ofelia Bulanan, hitting
her on the different parts of her body, resulting in her death
to the damage of her heirs.3Crim. Case No. 13160-07On or
about March 13, 2007, around 8:00 o'clock (sic) in the
morning, in Malapit, San Isidro, Nueva Ecija, within the
jurisdiction of this Honorable Court, the above-named
accused, conniving together, with intent to kill, treachery and
abuse of superior strength, willfully shot several times with
assorted firearms Danilo Cabiedes, hitting him on the
different parts of his body, resulting in his death to the
damage of his heirs.4Version of the Prosecution: On 13
March 2007, at around 8:00 a.m., Police Officer 1 Matthew
Garabiles (POI Garabiles) and P02 Alejandro Santos (P02
Santos), in civilian clothes, were on their way to Camp
Olivas, Pampanga, riding a motorcycle along OlongapoGapan National Road.5While they were at Barangay Malapit
San Isidro, Nueva Ecija, a speeding blue Toyota Corolla
(Corolla) with plate no.WHK 635, heading towards the same
direction, overtook them and the car in front of them, a
maroon Honda CRV (CRY) with plate no. CTL 957.6When
the Corolla reached alongside the CRV, the passenger on
the front seat of the Corolla shot the CRV and caused the
CRV to swerve and fall in the canal in the road embankment.
Four (4) armed men then suddenly alighted the Corolla and
started shooting at the driver of the CRV, who was later
identified as Cabiedes. During the shooting, a bystander,
Bulanan, who was standing near the road embankment, was
hit by a stray bullet. The four armed men hurried back to the
Corolla and immediately left the crime scene. PO 1
Garabiles and P02 Santos followed the Corolla but lost track
of the latter.7
Later, both Cabiedes and Bulanan died from fatal gunshot
wounds: Cabiedes was pronounced dead on arrival (DOA) at
the Good Samaritan General Hospital due to three (3)
gunshot wounds on the left side of his chest while Bulanan
died on the spot after being shot in the head. During the
investigation, the police learned that the Corolla was
registered under the name of Antonio V. Rivera (Rivera).
Upon inquiry, Rivera admitted that he is the owner of the
Corolla but clarified that the Corolla is one of the several
cars he owns in his car rental business, which he leased to
Adriano. Later that day, Adriano arrived at Rivera's shop with
the Corolla, where he was identified by P02 Santos and PO
1 Garabiles as one of the four assailants who alighted from
the passenger's seat beside the driver of the Corolla and
shot Cabiedes. He was immediately arrested and brought to
the Provincial Special Operations Group (PSOG)
headquarters in Cabanatuan City.8In examining the crime
scene, the Nueva Ecija Provincial Crime Laboratory Office

recovered one (1) deformed fired bullet from a .45 caliber

firearm and five (5) cartridges from a .45 caliber
firearm.9Version of the Defense Adriano testified that on 13
March 2007, at about 6:00 a.m., at the time of the incident,
he was at his house in Dolores, Magalang, Pampanga,
washing the clothes of his child. After doing the laundry, he
took his motorcycle to a repair shop and left it there.10At
about 8:00 a.m., Adriano went to the house of his friend,
Ruben Mallari (Mallari), to ask for a lighter spring needed to
repair his motorcycle. After having coffee in Mallari' s house,
Adriano went home and brought his child to his mother. On
his way to his mother's house, he met his brother-in-law,
Felix Aguilar Sunga (Sunga). After leaving his child at his
mother's house, Adriano went to the cockpit arena to watch
cockfights, where he saw his friend, Danilo Dizon (Dizon).
After the fights, he left the cockpit at about 2:00 p.m. and
went home and took a rest.11After resting, Adriano pickedup his motorcycle and proceeded to a store and stayed
there. At around 5 :00 p.m., he went back home. After a
while, he received a call from a certain Boyet Garcia
(Garcia), who borrowed the Corolla from him, which he
rented from Rivera.12At 8:00 p.m., he met with Garcia to get
the Corolla back. After dropping Garcia off, Adriano went to
Rivera to return the Corolla, where he was arrested by police
officers, thrown inside the Corolla's trunk, and brought to a
place where he was tortured.13The other defense's
witnesses, Lucita Tapnio (Tapnio), Mallari, Sunga, and Dizon
corroborated Adriano's testimony.14When arraigned, Adriano
pleaded not guilty. The other accused, Lean Adriano alias
"Denden," Abba Santiago y Adriano, John Doe, and Peter
Doe remained at large. During trial, the prosecution
presented eight (8) witnesses: (1) PO1 Garabiles, (2) P02
Santos, (3) Police Senior Inspector Roger V. Sebastian, (4)
SP02 Alejandro Eduardo, (5) P02 Jay Cabrera, (6) P03
Antonio dela Cruz, (7) Adelaida Cabiedes, widow of
Cabiedes, and (8) Ricky Flores. On the other hand, the
defense presented Adriano, Tapnio, Sunga, Mallari, and
Dizon as witnesses. Ruling of the Lower Courts After trial,
the RTC convicted Adriano. The RTC rejected Adriano's
defense of alibi on the ground that it was not supported by
clear and convincing evidence. According to the RTC,
Adriano's alibi cannot prevail over the testimonies of credible
witnesses, who positively identified Adriano as one of the
perpetrators of the crime. Also, contrary to the allegations of
the defense, the RTC gave full credence to the testimony of
prosecution witnesses, POI Garabiles and P02 Santos. The
RTC determined that the defense failed to show proof that
will show or indicate that PO1 Garabiles and P02 Santos
were impelled by improper motives to testify against Adriano.
The RTC found as proven the assessment of damages
against the accused. Thus did the RTC order Adriano to pay
the heirs of Cabiedes the amount of P222,482.00 based on
the following: (1) One Hundred Thousand Pesos
(Pl00,000.00) as funeral expenses; (2) Sixty Thousand
Pesos (P60,000.00) as expenses for the food served during
the burial; (3) Twelve Thousand Four Hundred Eighty Two
Pesos (1!12,482.00) as groceries used and served during
the wake; and Sixty Thousand Pesos (P60,000.00) for the
parts and service repair of the CRV.15
The dispositive portion of the R TC Decision dated 7 April
2009 reads: WHEREFORE, finding accused ROLLY
ADRIANO guilty beyond reasonable doubt of Murder, as
charged, for the death of Danilo Cabiedes, there being no
aggravating or mitigating circumstance that attended the
commission of the crime, he is hereby sentenced to suffer
the penalty of reclusion perpetua. Accused Rolly Adriano is
also ordered to indemnify the heirs of Danilo Cabiedes in the
amount of Php 50,000.00 and to pay the sum of Php
222,482.00 as actual damages. And finding ROLLY

ADRIANO also guilty beyond reasonable doubt of Homicide,

as charged, for the death of OfeliaBulanan, likewise, there
being no aggravating or mitigating circumstance that
attended the commission of the offense, he is further
sentenced to suffer an indeterminate penalty of
imprisonment from Eight (8) years and One (1) day of prision
mayor medium, as minimum, to Seventeen (17) years and
Four (4) months of reclusion temporal medium, as
maximum, and to indemnify the heirs of Ofelia Bulanan in
the amount of Php 50,000.00.16On appeal to the Court of
Appeals, Adriano alleged that the R TC erred when it failed
to appreciate his defense of alibi, as well as the testimonies
of the other defense's witnesses. Adriano contended that the
RTC erred when it gave credence to the testimony of the
prosecution witnesses which are inconsistent and
contradictory. In detail, Adriano referred to the following
particulars: 1) whether the culprits started shooting when the
victim's vehicle was still in motion; 2) which side of the
vehicle did the shooters alight from; 3) the identity of the
culprit who triggered the fatal shot; 4) whether the trip of
PO1 Garabiles and P02 Santos going to Camp Olivas,
Pampanga was official business; 5) the precise distance of
the assailants' vehicle from that of the two (2) eyewitnesses;
and 6) the precise minutes of the shooting incident.The
Court of Appeals rejected Adriano's attempt to becloud the
testimony of the prosecution witnesses. According to the
Court of Appeals, the prosecution witnesses' positive
identification of Adriano as one of the perpetrators of the
crime cannot be overcome by minor inconsistencies in their
testimony. The Court of Appeals ruled that these trivial
differences in fact constitute signs of veracity. On the
defense of alibi, the Court of Appeals affirmed the ruling of
the R TC that Adriano's claim that he was in Dolores,
Magalang, Pampanga at the time of the incident does not
convince because it was not impossible for Adriano to be
physically present at the crime scene, in Barangay Malapit,
San Isidro, Nueva Ecija, which can be reached by car in less
than an hour.17 The dispositive portion of the Court of
Appeals Decision reads: WHEREFORE, the appeal is
DENIED. The decision of the Regional Trial Court of Gapan
City, Nueva Ecija, Br. 36, in Crim. Case Nos. 13159-07 and
13160-07 is AFFIRMED subject to the Modification that the
award of Fifty Thousand Pesos (Php50,000.00) as civil
indemnity to the heirs of Danilo Cabiedes is INCREASED to
Seventy-Five Thousand Pesos(Php75,000.00). In addition,
the Accused-Appellant is ORDERED to pay the heirs of
Danilo Cabiedes the amount of Seventy-Five Thousand
Pesos (Php75,000.00) as moral damages; and the heirs of
Ofelia Bulanan the amount of Fifty Thousand Pesos
(Php50,000.00) as moral damages. SO ORDERED.18Our
Ruling In cases of murder, the prosecution must establish
the presence of the following elements: 1. That a person was
killed. 2. That the accused killed him. 3. That the killing was
attended by any of the qualifying circumstances mentioned
in Art. 248. 4. The killing is not parricide or infanticide. In the
case at bar, the prosecution has established the concurrence
of the elements of murder: (1) the fact of death of Cabiedes
and Bulanan; (2) the positive identification of Adriano as one
of perpetrators of the crime; and (3) the attendance of
treachery as a qualifying aggravating circumstance and use
of firearms and abuse of superior strength as generic
aggravating circumstances. Death of Cabiedes
The present case is a case of murder by ambush. In
ambush, the crime is carried out to ensure that the victim is
killed and at the same time, to eliminate any risk from any
possible defenses or retaliation from the victim19ambush
exemplifies the nature of treachery. Paragraph 16 of Article
14 of the Revised Penal Code (RPC) defines treachery as
the direct employment of means, methods, or forms in the

execution of the crime against persons which tend directly

and specially to insure its execution, without risk to the
offender arising from the defense which the offended party
might make. In order for treachery to be properly
appreciated, two elements must be present: (1) at the time of
the attack, the victim was not in a position to defend himself;
and (2) the accused consciously and deliberately adopted
the particular means, methods or forms of attack employed
by him.20 The "essence of treachery is the sudden and
unexpected attack by an aggressor on the unsuspecting
victim, depriving the latter of any chance to defend himself
and thereby ensuring its commission without risk of
himself."21Clearly, treachery is present in the case at bar as
the victims were indeed defenseless at the time of the
attack. Adriano, together with the other accused, ambushed
Cabiedes by following the unsuspecting victim along the
national highway and by surprise, fired multiple shots at
Cabiedes and then immediately fled the crime scene,
causing Cabiedes to die of multiple gunshot wounds. When
the Corolla swerved into the CRV's lane, Cabiedes was
forced to swiftly turn to the right and on to the road
embankment, finally falling into the canal where his CRY was
trapped, precluding all possible means of defense. There is
no other logical conclusion, but that the orchestrated
ambush committed by Adriano, together with his co-accused,
who are still on the loose, was in conspiracy with each other
to ensure the death of Cabiedes and their safety. The means
of execution employed was deliberately and consciously
adopted by Adriano so as to give Cabiedes no opportunity to
defend himself or to retaliate.22All these circumstances
indicate that the orchestrated crime was committed with the
presence of the aggravating circumstances of treachery,
which absorbs the aggravating circumstance of abuse of
superior strength, and use of firearms. Indeed, Cabiedes had
no way of escaping or defending himself. Death of Bulanan
We refer back to the settled facts of the case. Bulanan, who
was merely a bystander, was killed by a stray bullet. He was
at the wrong place at the wrong time. Stray bullets,
obviously, kill indiscriminately and often without warning,
precluding the unknowing victim from repelling the attack or
defending himself. At the outset, Adriano had no intention to
kill Bulanan, much less, employ any particular means of
attack. Logically, Bulanan's death was random and
unintentional and the method used to kill her, as she was
killed by a stray a bullet, was, by no means, deliberate.
Nonetheless, Adriano is guilty of the death of Bulanan under
Article 4 of the Revised Penal Code,23 pursuant to the
doctrine of aberratio ictus, which imposes criminal liability for
the acts committed in violation of law and for all the natural
and logical consequences resulting therefrom. While it may
not have been Adriano's intention to shoot Bulanan, this fact
will not exculpate him. Bulanan' s death caused by the bullet
fired by Adriano was the natural and direct consequence of
Adriano's felonious deadly assault against Cabiedes. As we
already held in People v. Herrera24 citing People v.
Hilario,25 "[t]he fact that accused killed a person other than
their intended victim is of no moment." Evidently, Adriano's
original intent was to kill Cabiedes. However, during the
commission of the crime of murder, a stray bullet hit and
killed Bulanan. Adriano is responsible for the consequences
of his act of shooting Cabiedes. This is the import of Article 4
of the Revised Penal Code. As held in People v. Herrera
citing People v. Ural: Criminal liability is incurred by any
person committing a felony although the wrongful act be
different from that which is intended. One who commits an
intentional felony is responsible for all the consequences
which may naturally or logically result therefrom, whether
foreseen or intended or not. The rationale of the rule is found
in the doctrine, 'el que es causa de la causa es causa del
mal causado ', or he who is the cause of the cause is the

cause of the evil caused.26As regards the crime(s)

committed, we reiterate our ruling in People v. Nelmida.27 In
the aforesaid case, we ruled that accused-appellants should
be convicted not of a complex crime but of separate crimes
of two counts of murder and seven counts of attempted
murder as the killing and wounding of the victims were not
the result of a single act but of several acts.28 The doctrine
in Nelmida here is apt and applicable. In Nelmida, we
distinguished the two kinds of complex crime: compound
crime, when a single act constitutes two or more grave or
less grave felonies, and complex crime proper, when an
offense is a necessary means for committing the other.
Moreover, we also made a distinction that "when various
victims expire from separate shots, such acts constitute
separate and distinct crimes,"29 not a complex crime. As
borne by the records, the Nueva Ecija Provincial Crime
Laboratory Office recovered six (6) cartridges of bullets from
a .45 caliber firearm. This does not indicate discharge by a
single burst. Rather, separate shots are evidenced. One or
more of which, though fired to kill Cabiedes, killed Bulanan
instead. There is thus no complex crime. The felonious acts
resulted in two separate and distinct crimes. Finally, we ask,
may treachery be appreciated in aberratio ictus? Although
Bulanan's death was by no means deliberate, we shall
adhere to the prevailing jurisprudence pronounced in People
v. Flora,30 where the Court ruled that treachery may be
appreciated in aberratio ictus. In Flora, the accused was
convicted of two separate counts of murder: for the killing of
two victims, Emerita, the intended victim, and Ireneo, the
victim killed by a stray bullet. The Court, due to the presence
of the aggravating circumstance of treachery, qualified both
killings to murder. The material facts in Flora are similar in
the case at bar. Thus, we follow the Flora doctrine. Also,
contrary to the defense's allegation that Bulanan' s death
was not established, a perusal of the records would reveal
that Bulanan's fact of death was duly established as the
prosecution offered in evidence Bulanan's death
certificate.31On the alibi as defense, time and again, we
have ruled alibis like denials, are inherently weak and
unreliable because they can easily be fabricated.32 For alibi
to prosper, the accused must convincingly prove that he was
somewhere else at the time when the crime was committed
and that it was physically impossible for him to be at the
crime scene.33 In the case at bar, Adriano claimed he was in
Dolores, Magalang, Pampanga at the time of incident.
Adriano's claim failed to persuade. As admitted, Dolores,
Magalang, Pampanga was only less than an hour away from
the crime scene, Barangay Malapit, San Isidro, Nueva Ecija.
Hence, it was not physically impossible for Adriano to be at
the crime scene at the time of the incident. It is likewise
uniform holding that denial and alibi will not prevail when
corroborated not by credible witnesses but by the accused's
relatives and friends.1wphi1 Therefore, the defense's
evidence which is composed of Adriano's relatives and
friends cannot prevail over the prosecution's positive
identification of Adriano as one of the perpetrators of the
crime. The penalty for murder under Article 248 of the
Revised Penal Code is reclusion perpetua to death. In the
case at bar, as the circumstance of abuse of superior
strength concurs with treachery, the former is absorbed in
the latter. There being no aggravating or mitigating
circumstance present, the lower penalty should be imposed,
which is reclusion perpetua, in accordance with Article 63,
paragraph 2 of the Revised Penal Code. To recover actual or
compensatory damages, basic is the rule that the claimant
must establish with a reasonable degree of certainty, the
actual amount of loss by means of competent proof or the
best evidence obtainable.34Documentary evidence support
the award of actual damages in this case. The RTC

computed the amount of actual damages asP222,482.00.

However, a perusal of the records reveals that the amount of
award of actual damages should be P232,482.00 as duly
supported by official receipts.35 Therefore, we hereby
increase the award of actual damages from P222,482.00 to
P232,482.00. WHEREFORE, the appeal is DISMISSED. The
assailed Decision of the Court of Appeals in CA-G.R. CR-HC
No. 04028 is AFFIRMED with MODIFICATIONS. Appellantappellant ROLL Y ADRIANO y SAMSON is found GUILTY
beyond reasonable doubt of MURDER (Criminal Case No.
13160-07) for the killing of DANILO CABIEDES and is
hereby sentenced to suffer the penalty of reclusion perpetua.
Accused-appellant ROLLY ADRIANO y SAMSON is ordered
to pay the heirs of DANILO CABIEDES the amount of
Seventy Five Thousand Pesos (P75,000.00) as civil
indemnity, Seventy Five Thousand Pesos (P75,000.00) as
moral damages, Thirty Thousand Pesos (P30,000.00) as
exemplary damages, and Two Hundred Thirty Two
Thousand Four Hundred Eighty Two Pesos {P232,482.00)
as actual damages. Accused-appellant ROLLY ADRIANO y
SAMSON is also found guilty beyond reasonable doubt of
the crime of MURDER (Criminal Case No. 13159-07) for the
killing of OFELIA BULANAN and is hereby sentenced to
suffer the penalty of reclusion perpetua. Accused-appellant
ROLLY ADRIANO y SAMSON is ordered to pay the heirs of
OFELIA BULANAN in the amount of the amount of Seventy
Five Thousand Pesos (P75,000.00) as civil indemnity,
Seventy Five Thousand Pesos (P75,000.00) as moral
damages, Thirty Thousand Pesos (P30,000.00) as
exemplary damages, and Twenty Five Thousand Pesos
(P25,000.00) as temperate damages in lieu of actual
damages.All monetary awards shall earn interest at the rate
of 6o/o per annum from the date of finality until fully paid.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, Appellee, vs. NOEL T.
SALES, Appellant. D E C I S I O N DEL CASTILLO, J.:A
father ought to discipline his children for committing a
misdeed. However, he may not employ sadistic beatings and
inflict fatal injuries under the guise of disciplining them. This
appeal seeks the reversal of the December 4, 2006
Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C.
No. 01627 that affirmed the August 3, 2005 Joint Decision2
of the Regional Trial Court (RTC), Branch 63 of Calabanga,
Camarines Sur in Criminal Case Nos. RTC03-782 and
RTC03-789, convicting appellant Noel T. Sales (appellant) of
the crimes of parricide and slight physical injuries,
respectively. The Information3 for parricide contained the
following allegations: That on or about the 20th day of
September, 2002, at around or past 8:00 oclock in the
evening at Brgy. San Vicente, Tinambac, Camarines Sur,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused with evident premeditation
and [in] a fit of anger, did then and there willfully, unlawfully
and feloniously hit [several] times, the different parts of the
body of his legitimate eldest son, Noemar Sales, a 9-year old
minor, with a [piece of] wood, measuring more or less one
meter in length and one [and] a half inches in diameter,
[thereby] inflicting upon the latter mortal wounds, which
cause[d] the death of the said victim, to the damage and
prejudice of the latters heirs in such amount as may be
proven in court. ACTS CONTRARY TO LAW.4On the other
hand, the Information5 in Criminal Case No. RTC03-789
alleges that appellant inflicted slight physical injuries in the
following manner: That on or about the 20th day of
September, 2002, at around or past 8:00 oclock in the
evening, at Brgy. San Vicente, Tinambac, Camarines Sur,
Philippines, and within the jurisdiction of this Honorable

Court, the above-named [accused] assault[ed] and hit with a

piece of wood, one Noel Sales, Jr., an 8-year old minor, his
second legitimate son, thereby inflicting upon him physical
injuries which have required medical attendance for a period
of five (5) days to the damage and prejudice of the victims
heirs in such amount as may be proven in court. ACTS
CONTRARY TO LAW.6When arraigned on April 11, 2003
and July 1, 2003, appellant pleaded not guilty for the
charges of parricide7 and slight physical injuries8
respectively. The cases were then consolidated upon
manifestation of the prosecution which was not objected to
by the defense.9 During the pre-trial conference, the parties
agreed to stipulate that appellant is the father of the victims,
Noemar Sales (Noemar) and Noel Sales, Jr. (Junior); that at
the time of the incident, appellants family was living in the
conjugal home located in Barangay San Vicente, Tinambac,
Camarines Sur; and, that appellant voluntarily surrendered
to the police.10Thereafter, trial ensued. The Version of the
ProsecutionOn September 19, 2002, brothers Noemar and
Junior, then nine and eight years old, respectively, left their
home to attend the fluvial procession of Our Lady of
Peafrancia without the permission of their parents. They did
not return home that
night. When their mother, Maria Litan Sales (Maria), looked
for them the next day, she found them in the nearby
Barangay of Magsaysay. Afraid of their fathers rage,
Noemar and Junior initially refused to return home but their
mother prevailed upon them. When the two kids reached
home at around 8 oclock in the evening of September 20,
2002, a furious appellant confronted them. Appellant then
whipped them with a stick which was later broken so that he
brought his kids outside their house. With Noemars and
Juniors hands and feet tied to a coconut tree, appellant
continued beating them with a thick piece of wood. During
the beating Maria stayed inside the house and did not do
anything as she feared for her life. When the beating finally
stopped, the three walked back to the house with appellant
assisting Noemar as the latter was staggering, while Junior
fearfully followed. Maria noticed a crack in Noemars head
and injuries in his legs. She also saw injuries in the right
portion of the head, the left cheek, and legs of Junior. Shortly
thereafter, Noemar collapsed and lost consciousness. Maria
tried to revive him and when Noemar remained motionless
despite her efforts, she told appellant that their son was
already dead. However, appellant refused to believe her.
Maria then told appellant to call a quack doctor. He left and
returned with one, who told them that they have to bring
Noemar to a hospital. Appellant thus proceeded to take the
unconscious Noemar to the junction and waited for a vehicle
to take them to a hospital. As there was no vehicle and
because another quack doctor they met at the junction told
them that Noemar is already dead, appellant brought his son
back to their house. Noemars wake lasted only for a night
and he was immediately buried the following day. His body
was never examined by a doctor. The Version of the
DefensePrior to the incident, Noemar and Junior had already
left their residence on three separate occasions without the
permission of their parents. Each time, appellant merely
scolded them and told them not to repeat the misdeed since
something untoward might happen to them. During those
times, Noemar and Junior were never physically harmed by
their father. However, Noemar and Junior again left their
home without their parents permission on September 16,
2002 and failed to return for several days. Worse, appellant
received information that his sons stole a pedicab. As they
are broke, appellant had to borrow money so that his wife
could search for Noemar and Junior. When his sons finally
arrived home at 8 oclock in the evening of September 20,
2002, appellant scolded and hit them with a piece of wood

as thick as his index finger. He hit Noemar and Junior

simultaneously since they were side by side. After whipping
his sons in their buttocks three times, he noticed that
Noemar was chilling and frothing. When Noemar lost
consciousness, appellant decided to bring him to a hospital
in Naga City by waiting for a vehicle at the crossroad which
was seven kilometers away from their house.Appellant held
Noemar while on their way to the crossroad and observed
his difficulty in breathing. The pupils of Noemars eyes were
also moving up and down. Appellant heard him say that he
wanted to sleep and saw him pointing to his chest in pain.
However, they waited in vain since a vehicle never came. It
was then that Noemar died. Appellant thus decided to just
bring Noemar back to their house. Appellant denied that his
son died from his beating since no parent could kill his or her
child. He claimed that Noemar died as a result of difficulty in
breathing. In fact, he never complained of the whipping done
to him. Besides, appellant recalled that Noemar was brought
to a hospital more than a year before September 2002 and
diagnosed with having a weak heart. On the other hand,
Maria testified that Noemar suffered from epilepsy.
Whenever he suffers from epileptic seizures, Noemar froths
and passes out. But he would regain consciousness after 15
minutes. His seizures normally occur whenever he gets
hungry or when scolded. The death of Noemar was reported
to the police by the barangay captain.11 Thereafter,
appellant surrendered voluntarily.12Ruling of the Regional
Trial CourtIn a Joint Decision,13 the trial court held that the
evidence presented by the prosecution was sufficient to
prove that appellant was guilty of committing the crimes of
parricide and slight physical injuries in the manner described
in the Informations. In the crime of parricide, the trial court
did not consider the aggravating circumstance of evident
premeditation against appellant since there is no proof that
he planned to kill Noemar. But the trial court appreciated in
his favor the mitigating circumstances of voluntary surrender
and lack of intent to commit so grave a wrong. The
dispositive portion of said Joint Decision reads:
WHEREFORE, in view of the foregoing, the prosecution
having proven the guilt of Noel Sales, beyond reasonable
doubt, he is found guilty of parricide in Crim. Case No.
RTC03-782 and sentenced to suffer the penalty of reclusion
perpetua. He is likewise ordered to pay the heirs of Noemar
Sales, the amount of P50,000.00 as civil indemnity;
P50,000.00 as moral damages; P25,000,00 as exemplary
damages and to pay the costs. Furthermore, accused Noel
Sales is also found guilty beyond reasonable doubt of the
crime of slight physical injuries in Crim. Case No. RTC03789 and sentenced to suffer the penalty of twenty (20) days
of Arresto Menor in its medium period. Accused Noel Sales
is likewise meted the accessory penalties as provided under
the Revised Penal Code. Considering that herein accused
has undergone preventive imprisonment, he shall be
credited in the service of his sentence with the time he has
undergone preventive imprisonment in accordance with and
subject to the conditions provided for in Article 29 of the
Revised Penal Code. SO ORDERED.14Appellant filed a
Notice of Appeal15 which was given due course in an
Order16 dated September 21, 2005. Ruling of the Court of
AppealsHowever, the appellate court denied the appeal and
affirmed the ruling of the trial court. The dispositive portion of
its Decision17 reads as follows: WHEREFORE, premises
considered, the appeal is DENIED. The assailed decision
dated August 3, 2005 in Criminal Case Nos. RTC03-782
and RTC03-789 for Parricide and Slight Physical Injuries,
respectively, isAFFIRMED. Pursuant to Section 13(c), Rule
124 of the Revised Rules of Criminal Procedure, appellant
may appeal this case to the Supreme Court via a Notice of
Appeal
filed
before
this
Court.
SO

ORDERED.18IssuesHence, appellant is now before this

Court with the following two-fold issues: I THE COURT A
QUO GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF
THE CRIMES CHARGED. IITHE COURT A QUO GRAVELY
ERRED IN NOT GIVING WEIGHT TO THE TESTIMONIES
OF THE DEFENSE WITNESSES.19Our RulingThe appeal is
without merit. The Charge of Parricide Appellant admits
beating his sons on September 20, 2002 as a disciplinary
measure, but denies battering Noemar to death. He believes
that no father could kill his own son. According to him,
Noemar had a weak heart that resulted in attacks consisting
of loss of consciousness and froth in his mouth. He claims
that Noemar was conscious as they traveled to the junction
where they would take a vehicle in going to a hospital.
However, Noemar had difficulty in breathing and complained
of chest pain. He contends that it was at this moment that
Noemar died, not during his whipping. To substantiate his
claim, appellant presented his wife, Maria, who testified that
Noemar indeed suffered seizures, but this was due to
epilepsy.
The contentions of appellant fail to persuade. The imposition
of parental discipline on children of tender years must
always be with the view of correcting their erroneous
behavior. A parent or guardian must exercise restraint and
caution in administering the proper punishment. They must
not exceed the parameters of their parental duty to discipline
their minor children. It is incumbent upon them to remain
rational and refrain from being motivated by anger in
enforcing the intended punishment. A deviation will
undoubtedly result in sadism. Prior to whipping his sons,
appellant was already furious with them because they left
the family dwelling without permission and that was already
preceded by three other similar incidents. This was further
aggravated by a report that his sons stole a pedicab thereby
putting him in disgrace. Moreover, they have no money so
much so that he still had to borrow so that his wife could look
for the children and bring them home. From these, it is
therefore clear that appellant was motivated not by an
honest desire to discipline the children for their misdeeds but
by an evil intent of venting his anger. This can reasonably be
concluded from the injuries of Noemar in his head, face and
legs. It was only when Noemars body slipped from the
coconut tree to which he was tied and lost consciousness
that appellant stopped the beating. Had not Noemar lost
consciousness, appellant would most likely not have ceased
from his sadistic act. His subsequent attempt to seek
medical attention for Noemar as an act of repentance was
nevertheless too late to save the childs life. It bears
stressing that a decent and responsible parent would never
subject a minor child to sadistic punishment in the guise of
discipline. Appellant attempts to evade criminal culpability by
arguing that he merely intended to discipline Noemar and
not to kill him. However, the relevant portion of Article 4 of
the Revised Penal Code states: Art. 4. Criminal liability.
Criminal liability shall be incurred: 1. By any person
committing a felony (delito) although the wrongful act done
be different from that which he intended. x x x x In order that
a person may be criminally liable for a felony different from
that which he intended to commit, it is indispensible (a) that
a felony was committed and (b) that the wrong done to the
aggrieved person be the direct consequence of the crime
committed by the perpetrator.20 Here, there is no doubt
appellant in beating his son Noemar and inflicting upon him
physical injuries, committed a felony. As a direct
consequence of the beating suffered by the child, he
expired. Appellants criminal liability for the death of his son,
Noemar, is thus clear. Appellants claim that it was Noemars
heart ailment that caused his death deserves no merit. This

declaration is self-serving and uncorroborated since it is not

substantiated by evidence. While Dr. Salvador Betito, a
Municipal Health Officer of Tinambac, Camarines Sur issued
a death certificate indicating that Noemar died due to cardiopulmonary arrest, the same is not sufficient to prove that his
death was due mainly to his poor health. It is worth
emphasizing that Noemars cadaver was never examined.
Also, even if appellant presented his wife, Maria, to lend
credence to his contention, the latters testimony did not help
as same was even in conflict with his testimony. Appellant
testified that Noemar suffered from a weak heart which
resulted in his death while Maria declared that Noemar was
suffering from epilepsy. Interestingly, Marias testimony was
also unsubstantiated by evidence. Moreover, as will be
discussed below, all the elements of the crime of parricide
are present in this case. All the Elements of Parricide are
present in the case at bench. We find no error in the ruling of
the trial court, as affirmed by the appellate court, that
appellant committed the crime of parricide. Article 246 of the
Revised Penal Code defines parricide as follows: Art. 246.
Parricide. Any person who shall kill his father, mother, or
child, whether legitimate or illegitimate, or any of his
ascendants, or descendants, or his spouse, shall be guilty of
parricide and shall be punished by the penalty of reclusion
perpetua to death. "Parricide is committed when: (1) a
person is killed; (2) the deceased is killed by the accused;
(3) the deceased is the father, mother, or child, whether
legitimate or illegitimate, or a legitimate other ascendant or
other descendant, or the legitimate spouse of accused."21
In the case at bench, there is overwhelming evidence to
prove the first element, that is, a person was killed. Maria
testified that her son Noemar did not regain consciousness
after the severe beating he suffered from the hands of his
father. Thereafter, a quack doctor declared Noemar dead.
Afterwards, as testified to by Maria, they held a wake for
Noemar the next day and then buried him the day after.
Noemars Death Certificate22 was also presented in
evidence. There is likewise no doubt as to the existence of
the second element that the appellant killed the deceased.
Same is sufficiently established by the positive testimonies of
Maria and Junior. Maria testified that on September 20,
2002, Noemar and his younger brother, Junior, were
whipped by appellant, their father, inside their house. The
whipping continued even outside the house but this time, the
brothers were tied side by side to a coconut tree while
appellant delivered the lashes indiscriminately. For his part,
Junior testified that Noemar, while tied to a tree, was beaten
by their father in the head. Because the savagery of the
attack was too much for Noemars frail body to endure, he
lost consciousness and died from his injuries immediately
after the incident. As to the third element, appellant himself
admitted that the deceased is his child. While Noemars birth
certificate was not presented, oral evidence of filial
relationship may be considered.23 As earlier stated,
appellant stipulated to the fact that he is the father of
Noemar during the pre-trial conference and likewise made
the same declaration while under oath.24 Maria also testified
that Noemar and Junior are her sons with appellant, her
husband. These testimonies are sufficient to establish the
relationship between appellant and Noemar. Clearly, all the
elements of the crime of parricide are obtaining in this case.
There is Mitigating Circumstance of Voluntary Surrender but
not Lack of Intention to Commit so Grave a WrongThe trial
court correctly appreciated the mitigating circumstance of
voluntary surrender in favor of appellant since the evidence
shows that he went to the police station a day after the
barangay captain reported the death of Noemar. The
presentation by appellant of himself to the police officer on
duty in a spontaneous manner is a manifestation of his intent

"to save the authorities the trouble and expense that may be
incurred for his search and capture"25 which is the essence
of voluntary surrender. However, there was error in
appreciating the mitigating circumstance of lack of intention
to commit so grave a wrong.Appellant adopted means to
ensure the success of the savage battering of his sons. He
tied their wrists to a coconut tree to prevent their escape
while they were battered with a stick to inflict as much pain
as possible. Noemar suffered injuries in his face, head and
legs that immediately caused his death. "The mitigating
circumstance of lack of intent to commit so grave a wrong as
that actually perpetrated cannot be appreciated where the
acts employed by the accused were reasonably sufficient to
produce and did actually produce the death of the
victim."26The Award of Damages and Penalty for Parricide
We find proper the trial courts award to the heirs of Noemar
of the sums of P50,000.00 as civil indemnity, andP50,000.00
as moral damages. However, the award of exemplary
damages of P25,000.00 should be increased toP30,000.00
in accordance with prevailing jurisprudence.27 "In addition,
and in conformity with current policy, we also impose on all
the monetary awards for damages an interest at the legal
rate of 6% from the date of finality of this Decision until fully
paid."28As regards the penalty, parricide is punishable by
reclusion perpetua to death. The trial court imposed the
penalty of reclusion perpetua when it considered the
presence of the mitigating circumstances of voluntary
surrender and lack of intent to commit so grave a wrong.
However, even if we earlier ruled that the trial court erred in
considering the mitigating circumstance of lack of intent to
commit so grave a wrong, we maintain the penalty imposed.
This is because the exclusion of said mitigating
circumstance does not result to a different penalty since the
presence of only one mitigating circumstance, which is,
voluntary surrender, with no aggravating circumstance, is
sufficient for the imposition of reclusion perpetua as the
proper prison term. Article 63 of the Revised Penal Code
provides in part as follows: Art. 63. Rules for the application
of indivisible penalties. - x x x In all cases in which the law
prescribes a penalty composed of two indivisible penalties,
the following rules shall be observed in the application
thereof: x x x x
3. When the commission of the act is attended by some
mitigating circumstance and there is no aggravating
circumstance, the lesser penalty shall be applied. x x x x The
crime of parricide is punishable by the indivisible penalties of
reclusion perpetua to death. With one mitigating
circumstance, which is voluntary surrender, and no
aggravating circumstance, the imposition of the lesser
penalty of reclusion perpetua and not the penalty of death on
appellant was thus proper.29The Charge of Slight Physical
InjuriesThe victim himself, Junior testified that he, together
with his brother Noemar, were beaten by their father, herein
appellant, while they were tied to a coconut tree. He recalled
to have been hit on his right eye and right leg and to have
been examined by a physician thereafter.30 Maria
corroborated her sons testimony.31Juniors testimony was
likewise supported by Dr. Ursolino Primavera, Jr. (Dr.
Primavera) of Tinambac Community Hospital who examined
him for physical injuries. He issued a Medical Certificate for
his findings and testified on the same. His findings were (1)
muscular contusions with hematoma on the right side of
Juniors face just below the eye and on both legs, which
could have been caused by hitting said area with a hard
object such as a wooden stick and, (2) abrasions of
brownish color circling both wrist with crust formation which
could have been sustained by the patient due to struggling
while his hands were tied. When asked how long does he
think the injuries would heal, Dr. Primavera answered one to

two weeks.32 But if applied with medication, the injuries

would heal in a week.33We give full faith and credence to
the categorical and positive testimony of Junior that he was
beaten by his father and that by reason thereof he sustained
injuries. His testimony deserves credence especially since
the same is corroborated by the testimony of his mother,
Maria, and supported by medical examination. We thus find
that the RTC correctly held appellant guilty of the crime of
slight physical injuries.1awphilPenalty for Slight Physical
InjuriesWe likewise affirm the penalty imposed by the RTC.
Dr. Primavera testified that the injuries sustained by Junior
should heal in one week upon medication. Hence, the trial
court correctly meted upon appellant the penalty under
paragraph 1, Article 266 of the Revised Penal Code which
provides: ART. 266. Slight Physical Injuries and
maltreatment. The crime of slight physical injuries shall be
punished: 1. By arresto menor when the offender has
inflicted physical injuries which shall incapacitate the
offended party for labor from one to nine days or shall
require medical attendance during the same period. x x x x
There being no mitigating or aggravating circumstance
present in the commission of the crime, the penalty shall be
in its medium period. The RTC was thus correct in imposing
upon appellant the penalty of twenty (20) days ofarresto
menor in its medium period. WHEREFORE, the appeal is
DENIED. The Decision of the Court of Appeals in CA-G.R.
CR-H.C. No. 01627 that affirmed the Joint Decision of the
Regional Trial Court, Branch 63 of Calabanga, Camarines
Sur in Criminal Case Nos. RTC03-782 and RTC03-789,
convicting Noel T. Sales of the crimes of parricide and slight
physical injuries is AFFIRMED with MODIFICATIONS that
the award of exemplary damages is increased to
P30,000.00. In addition, an interest of 6% is imposed on all
monetary awards from date of finality of this Decision until
fully paid. SO ORDERED
SULPICIO INTOD, petitioner, vs. HONORABLE COURT OF
APPEALS and PEOPLE OF THE PHILIPPINES,
respondents. CAMPOS, JR., J.:Petitioner, Sulpicio Intod,
filed this petition for review of the decision of the Court of
Appeals 1 affirming in toto the judgment of the Regional Trial
Court, Branch XIV, Oroquieta City, finding him guilty of the
crime of attempted murder. From the records, we gathered
the following facts. In the morning of February 4, 1979,
Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino
Daligdig went to Salvador Mandaya's house in Katugasan,
Lopez Jaena, Misamis Occidental and asked him to go with
them to the house of Bernardina Palangpangan. Thereafter,
Mandaya and Intod, Pangasian, Tubio and Daligdig had a
meeting with Aniceto Dumalagan. He told Mandaya that he
wanted Palangpangan to be killed because of a land dispute
between them and that Mandaya should accompany the four
(4) men, otherwise, he would also be killed. At about 10:00
o'clock in the evening of the same day, Petitioner, Mandaya,
Pangasian, Tubio and Daligdig, all armed with firearms,
arrived at Palangpangan's house in Katugasan, Lopez
Jaena, Misamis Occidental. At the instance of his
companions,
Mandaya
pointed
the
location
of
Palangpangan's bedroom. Thereafter, Petitioner, Pangasian,
Tubio and Daligdig fired at said room. It turned out, however,
that Palangpangan was in another City and her home was
then occupied by her son-in-law and his family. No one was
in the room when the accused fired the shots. No one was
hit by the gun fire. Petitioner and his companions were
positively identified by witnesses. One witness testified that
before the five men left the premises, they shouted: "We will
kill you (the witness) and especially Bernardina
Palangpangan and we will come back if (sic) you were not
injured". 2After trial, the Regional Trial Court convicted Intod

of attempted murder. The court (RTC), as affirmed by the

Court of Appeals, holding that Petitioner was guilty of
attempted murder. Petitioner seeks from this Court a
modification of the judgment by holding him liable only for an
impossible crime, citing Article 4(2) of the Revised Penal
Code
which
provides:
Art.
4(2).
CRIMINAL
RESPONSIBILITY. Criminal Responsibility shall be
incurred: xxx xxx xxx 2. By any person performing an act
which would be an offense against persons or property, were
it not for the inherent impossibility of its accomplishment or
on account of the employment of inadequate or ineffectual
means. Petitioner contends that, Palangpangan's absence
from her room on the night he and his companions riddled it
with bullets made the crime inherently impossible. On the
other hand, Respondent People of the Philippines argues
that the crime was not impossible. Instead, the facts were
sufficient to constitute an attempt and to convict Intod for
attempted murder. Respondent alleged that there was intent.
Further, in its Comment to the Petition, respondent pointed
out that:
. . . The crime of murder was not consummated, not because
of the inherent impossibility of its accomplishment (Art. 4(2),
Revised Penal Code), but due to a cause or accident other
than petitioner's and his accused's own spontaneous
desistance (Art. 3., Ibid.) Palangpangan did not sleep at her
house at that time. Had it not been for this fact, the crime is
possible, not impossible. 3Article 4, paragraph 2 is an
innovation 4 of the Revised Penal Code. This seeks to
remedy the void in the Old Penal Code where: . . . it was
necessary that the execution of the act has been
commenced, that the person conceiving the idea should
have set about doing the deed, employing appropriate
means in order that his intent might become a reality, and
finally, that the result or end contemplated shall have been
physically possible. So long as these conditions were not
present, the law and the courts did not hold him criminally
liable. 5This legal doctrine left social interests entirely
unprotected. 6 The Revised Penal Code, inspired by the
Positivist School, recognizes in the offender his formidability,
7 and now penalizes an act which were it not aimed at
something quite impossible or carried out with means which
prove inadequate, would constitute a felony against person
or against property. 8 The rationale of Article 4(2) is to punish
such criminal tendencies. 9Under this article, the act
performed by the offender cannot produce an offense
against person or property because: (1) the commission of
the offense is inherently impossible of accomplishment: or
(2) the means employed is either (a) inadequate or (b)
ineffectual. 10That the offense cannot be produced because
the commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the
offender must be by its nature one impossible of
accomplishment. 11 There must be either impossibility of
accomplishing the intended act 12in order to qualify the act
an impossible crime. Legal impossibility occurs where the
intended acts, even if completed, would not amount to a
crime. 13 Thus: Legal impossibility would apply to those
circumstances where (1) the motive, desire and expectation
is to perform an act in violation of the law; (2) there is
intention to perform the physical act; (3) there is a
performance of the intended physical act; and (4) the
consequence resulting from the intended act does not
amount to a crime. 14The impossibility of killing a person
already dead 15 falls in this category. On the other hand,
factual impossibility occurs when extraneous circumstances
unknown to the actor or beyond his control prevent the
consummation of the intended crime. 16 One example is the

man who puts his hand in the coat pocket of another with the
intention to steal the latter's wallet and finds the pocket
empty. 17The case at bar belongs to this category. Petitioner
shoots the place where he thought his victim would be,
although in reality, the victim was not present in said place
and thus, the petitioner failed to accomplish his end. One
American case had facts almost exactly the same as this
one. In People vs. Lee Kong, 18 the accused, with intent to
kill, aimed and fired at the spot where he thought the police
officer would be. It turned out, however, that the latter was in
a different place. The accused failed to hit him and to
achieve his intent. The Court convicted the accused of an
attempt to kill. It held that: The fact that the officer was not at
the spot where the attacking party imagined where he was,
and where the bullet pierced the roof, renders it no less an
attempt to kill. It is well settled principle of criminal law in this
country that where the criminal result of an attempt is not
accomplished simply because of an obstruction in the way of
the thing to be operated upon, and these facts are unknown
to the aggressor at the time, the criminal attempt is
committed. In the case of Strokes vs. State, 19 where the
accused failed to accomplish his intent to kill the victim
because the latter did not pass by the place where he was
lying-in wait, the court held him liable for attempted murder.
The court explained that:
It was no fault of Strokes that the crime was not committed. .
. . It only became impossible by reason of the extraneous
circumstance that Lane did not go that way; and further, that
he was arrested and prevented from committing the murder.
This rule of the law has application only where it is inherently
impossible to commit the crime. It has no application to a
case where it becomes impossible for the crime to be
committed, either by outside interference or because of
miscalculation as to a supposed opportunity to commit the
crime which fails to materialize; in short it has no application
to the case when the impossibility grows out of extraneous
acts not within the control of the party. In the case of Clark
vs. State,20 the court held defendant liable for attempted
robbery even if there was nothing to rob. In disposing of the
case, the court quoted Mr. Justice Bishop, to wit: It being an
accepted truth that defendant deserves punishment by
reason of his criminal intent, no one can seriously doubt that
the protection of the public requires the punishment to be
administered, equally whether in the unseen depths of the
pocket, etc., what was supposed to exist was really present
or not. The community suffers from the mere alarm of crime.
Again: Where the thing intended (attempted) as a crime and
what is done is a sort to create alarm, in other words, excite
apprehension that the evil; intention will be carried out, the
incipient act which the law of attempt takes cognizance of is
in reason committed. InState vs. Mitchell, 21 defendant, with
intent to kill, fired at the window of victim's room thinking that
the latter was inside. However, at that moment, the victim
was in another part of the house. The court convicted the
accused of attempted murder. The aforecited cases are the
same cases which have been relied upon by Respondent to
make this Court sustain the judgment of attempted murder
against Petitioner. However, we cannot rely upon these
decisions to resolve the issue at hand. There is a difference
between the Philippine and the American laws regarding the
concept and appreciation of impossible crimes. In the
Philippines, the Revised Penal Code, in Article 4(2),
expressly provided for impossible crimes and made the
punishable. Whereas, in the United States, the Code of
Crimes and Criminal Procedure is silent regarding this
matter. What it provided for were attempts of the crimes
enumerated in the said Code. Furthermore, in said
jurisdiction, the impossibility of committing the offense is

merely a defense to an attempt charge. In this regard,

commentators and the cases generally divide the
impossibility defense into two categories: legal versus factual
impossibility. 22InU.S. vs.Wilson23 the Court held that: . . .
factual impossibility of the commission of the crime is not a
defense. If the crime could have been committed had the
circumstances been as the defendant believed them to be, it
is no defense that in reality the crime was impossible of
commission. Legal impossibility, on the other hand, is a
defense which can be invoked to avoid criminal liability for
an attempt. In U.S. vs. Berrigan,24 the accused was
indicated for attempting to smuggle letters into and out of
prison. The law governing the matter made the act criminal if
done without knowledge and consent of the warden. In this
case, the offender intended to send a letter without the
latter's knowledge and consent and the act was performed.
However, unknown to him, the transmittal was achieved with
the warden's knowledge and consent. The lower court held
the accused liable for attempt but the appellate court
reversed. It held unacceptable the contention of the state
that "elimination of impossibility as a defense to a charge of
criminal attempt, as suggested by the Model Penal Code
and the proposed federal legislation, is consistent with the
overwhelming modern view". In disposing of this contention,
the Court held that the federal statutes did not contain such
provision, and thus, following the principle of legality, no
person could be criminally liable for an act which was not
made criminal by law. Further, it said: Congress has not yet
enacted a law that provides that intent plus act plus conduct
constitutes the offense of attempt irrespective of legal
impossibility until such time as such legislative changes in
the law take place, this court will not fashion a new nonstatutory law of criminal attempt. To restate, in the United
States, where the offense sought to be committed is factually
impossible or accomplishment, the offender cannot escape
criminal liability. He can be convicted of an attempt to
commit the substantive crime where the elements of attempt
are satisfied. It appears, therefore, that the act is penalized,
not as an impossible crime, but as an attempt to commit a
crime. On the other hand, where the offense is legally
impossible of accomplishment, the actor cannot be held
liable for any crime neither for an attempt not for an
impossible crime. The only reason for this is that in
American law, there is no such thing as an impossible crime.
Instead, it only recognizes impossibility as a defense to a
crime charge that is, attempt. This is not true in the
Philippines. In our jurisdiction, impossible crimes are
recognized. The impossibility of accomplishing the criminal
intent is not merely a defense, but an act penalized by itself.
Furthermore, the phrase "inherent impossibility" that is found
in Article 4(2) of the Revised Penal Code makes no
distinction between factual or physical impossibility and legal
impossibility. Ubi lex non distinguit nec nos distinguere
debemos. The factual situation in the case at bar present a
physical impossibility which rendered the intended crime
impossible of accomplishment. And under Article 4,
paragraph 2 of the Revised Penal Code, such is sufficient to
make the act an impossible crime. To uphold the contention
of respondent that the offense was Attempted Murder
because the absence of Palangpangan was a supervening
cause independent of the actor's will, will render useless the
provision in Article 4, which makes a person criminally liable
for an act "which would be an offense against persons or
property, were it not for the inherent impossibility of its
accomplishment . . ." In that case all circumstances which
prevented the consummation of the offense will be treated
as an accident independent of the actor's will which is an
element of attempted and frustrated felonies. WHEREFORE,

PREMISES CONSIDERED. the petition is hereby

GRANTED, the decision of respondent Court of Appeals
holding Petitioner guilty of Attempted Murder is hereby
MODIFIED. We hereby hold Petitioner guilty of an
impossible crime as defined and penalized in Articles 4,
paragraph 2, and 59 of the Revised Penal Code,
respectively. Having in mind the social danger and degree of
criminality shown by Petitioner, this Court sentences him to
suffer the penalty of six (6) months ofarresto mayor, together
with the accessory penalties provided by the law, and to pay
the costs. SO ORDERED

GEMMA T. JACINTO, Petitioner, vs. PEOPLE OF THE

PHILIPPINES, Respondent. D E C I S I O N PERALTA,
J.:Before us is a petition for review on certiorari filed by
petitioner Gemma T. Jacinto seeking the reversal of the
Decision1 of the Court of Appeals (CA) in CA-G.R. CR No.
23761 dated December 16, 2003, affirming petitioner's
conviction of the crime of Qualified Theft, and its Resolution2
dated March 5, 2004 denying petitioner's motion for
reconsideration. Petitioner, along with two other women,
namely, Anita Busog de Valencia y Rivera and Jacqueline
Capitle, was charged before the Regional Trial Court (RTC)
of Caloocan City, Branch 131, with the crime of Qualified
Theft, allegedly committed as follows: That on or about and
sometime in the month of July 1997, in Kalookan City, Metro
Manila, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring together and mutually
helping one another, being then all employees of MEGA
FOAM INTERNATIONAL INC., herein represented by
JOSEPH DYHENGCO Y CO, and as such had free access
inside the aforesaid establishment, with grave abuse of trust
and confidence reposed upon them with intent to gain and
without the knowledge and consent of the owner thereof, did
then and there willfully, unlawfully and feloniously take, steal
and deposited in their own account, Banco De Oro Check
No. 0132649 dated July 14, 1997 in the sum of P10,000.00,
representing payment made by customer Baby Aquino to the
Mega Foam Int'l. Inc. to the damage and prejudice of the
latter in the aforesaid stated amount of P10,000.00.
CONTRARY TO LAW.3The prosecution's evidence, which
both the RTC and the CA found to be more credible, reveals
the events that transpired to be as follows. In the month of
June 1997, Isabelita Aquino Milabo, also known as Baby
Aquino, handed petitioner Banco De Oro (BDO) Check
Number 0132649 postdated July 14, 1997 in the amount of
P10,000.00. The check was payment for Baby Aquino's
purchases from Mega Foam Int'l., Inc., and petitioner was
then the collector of Mega Foam. Somehow, the check was
deposited in the Land Bank account of Generoso Capitle,
the husband of Jacqueline Capitle; the latter is the sister of
petitioner and the former pricing, merchandising and
inventory clerk of Mega Foam. Meanwhile, Rowena
Ricablanca, another employee of Mega Foam, received a
phone call sometime in the middle of July from one of their
customers, Jennifer Sanalila. The customer wanted to know
if she could issue checks payable to theaccount of Mega
Foam, instead of issuing the checks payable to CASH. Said
customer had apparently been instructed by Jacqueline
Capitle to make check payments to Mega Foam payable to
CASH. Around that time, Ricablanca also received a phone
call from an employee of Land Bank, Valenzuela Branch,
who was looking for Generoso Capitle. The reason for the
call was to inform Capitle that the subject BDO check
deposited in his account had been dishonored. Ricablanca
then phoned accused Anita Valencia, a former
employee/collector of Mega Foam, asking the latter to inform

Jacqueline Capitle about the phone call from Land Bank

regarding the bounced check. Ricablanca explained that she
had to call and relay the message through Valencia,
because the Capitles did not have a phone; but they could
be reached through Valencia, a neighbor and former coemployee of Jacqueline Capitle at Mega Foam. Valencia
then told Ricablanca that the check came from Baby Aquino,
and instructed Ricablanca to ask Baby Aquino to replace the
check with cash. Valencia also told Ricablanca of a plan to
take the cash and divide it equally into four: for
herself, Ricablanca, petitioner Jacinto and Jacqueline
Capitle. Ricablanca, upon the advise of Mega Foam's
accountant, reported the matter to the owner of Mega Foam,
Joseph Dyhengco. Thereafter, Joseph Dyhengco talked to
Baby Aquino and was able to confirm that the latter indeed
handed petitioner a BDO check for P10,000.00 sometime in
June 1997 as payment for her purchases from Mega
Foam.4Baby Aquino further testified that, sometime in July
1997, petitioner also called her on the phone to tell her that
the BDO check bounced.5Verification from company records
showed that petitioner never remitted the subject check to
Mega Foam. However, Baby Aquino said that she had
already paid Mega Foam P10,000.00 cash in August 1997
as replacement for the dishonored check.6Generoso Capitle,
presented as a hostile witness, admitted depositing the
subject BDO check in his bank account, but explained that
the check came into his possession when some unknown
woman arrived at his house around the first week of July
1997 to have the check rediscounted. He parted with his
cash in exchange for the check without even bothering to
inquire into the identity of the woman or her address. When
he was informed by the bank that the check bounced, he
merely disregarded it as he didnt know where to find the
woman who rediscounted the check. Meanwhile, Dyhengco
filed a Complaint with the National Bureau of Investigation
(NBI) and worked out an entrapment operation with its
agents. Ten pieces of P1,000.00 bills provided by Dyhengco
were marked and dusted with fluorescent powder by the
NBI. Thereafter, the bills were given to Ricablanca, who was
tasked to pretend that she was going along with Valencia's
plan. On August 15, 2007, Ricablanca and petitioner met at
the latter's house. Petitioner, who was then holding the
bounced BDO check, handed over said check to Ricablanca.
They originally intended to proceed to Baby Aquino's place
to have the check replaced with cash, but the plan did not
push through. However, they agreed to meet again on
August 21, 2007. On the agreed date, Ricablanca again
went to petitioners house, where she met petitioner and
Jacqueline Capitle. Petitioner, her husband, and Ricablanca
went to the house of Anita Valencia; Jacqueline Capitle
decided not to go with the group because she decided to go
shopping. It was only petitioner, her husband, Ricablanca
and Valencia who then boarded petitioner's jeep and went on
to Baby Aquino's factory. Only Ricablanca alighted from the
jeep and entered the premises of Baby Aquino, pretending
that she was getting cash from Baby Aquino. However, the
cash she actually brought out from the premises was the
P10,000.00 marked money previously given to her by
Dyhengco. Ricablanca divided the money and upon
returning to the jeep, gave P5,000.00 each to Valencia and
petitioner. Thereafter, petitioner and Valencia were arrested
by NBI agents, who had been watching the whole time.
Petitioner and Valencia were brought to the NBI office where
the Forensic Chemist found fluorescent powder on the
palmar and dorsal aspects of both of their hands. This
showed that petitioner and Valencia handled the marked
money. The NBI filed a criminal case for qualified theft
against the two and one Jane Doe who was later identified

as Jacqueline Capitle, the wife of Generoso Capitle. The

defense, on the other hand, denied having taken the subject
check and presented the following scenario. Petitioner
admitted that she was a collector for Mega Foam until she
resigned on June 30, 1997, but claimed that she had
stopped collecting payments from Baby Aquino for quite
some time before her resignation from the company. She
further testified that, on the day of the arrest, Ricablanca
came to her mothers house, where she was staying at that
time, and asked that she accompany her (Ricablanca) to
Baby Aquino's house. Since petitioner was going for a prenatal check-up at the Chinese General Hospital, Ricablanca
decided to hitch a ride with the former and her husband in
their jeep going to Baby Aquino's place in Caloocan City.
She allegedly had no idea why Ricablanca asked them to
wait in their jeep, which they parked outside the house of
Baby Aquino, and was very surprised when Ricablanca
placed the money on her lap and the NBI agents arrested
them. Anita Valencia also admitted that she was the cashier
of Mega Foam until she resigned on June 30, 1997. It was
never part of her job to collect payments from customers.
According to her, on the morning of August 21, 1997,
Ricablanca called her up on the phone, asking if she
(Valencia) could accompany her (Ricablanca) to the house
of Baby Aquino. Valencia claims that she agreed to do so,
despite her admission during cross-examination that she did
not know where Baby Aquino resided, as she had never
been to said house. They then met at the house of
petitioner's mother, rode the jeep of petitioner and her
husband, and proceeded to Baby Aquino's place. When they
arrived at said place, Ricablanca alighted, but requested
them to wait for her in the jeep. After ten minutes,
Ricablanca came out and, to her surprise, Ricablanca gave
her money and so she even asked, "What is this?" Then, the
NBI agents arrested them.
The trial of the three accused went its usual course and, on
October 4, 1999, the RTC rendered its Decision,
thedispositive portion of which reads: WHEREFORE, in view
of the foregoing, the Court finds accused Gemma Tubale De
Jacinto y Latosa, Anita Busog De Valencia y Rivera and
Jacqueline CapitleGUILTY beyond reasonable doubt of the
crime ofQUALIFIED THEFTand each of them is hereby
sentenced to suffer imprisonment of FIVE (5) YEARS, FIVE
(5) MONTHS AND ELEVEN (11) DAYS, as minimum, to SIX
(6) YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS,
as maximum. SO ORDERED.7The three appealed to the CA
and, on December 16, 2003, a Decision was promulgated,
the dispositive portion of which reads, thus: IN VIEW OF
THE FOREGOING, the decision of the trial court is
MODIFIED, in that: (a) the sentence against accused
Gemma Jacinto stands; (b) the sentence against accused
Anita Valencia is reduced to 4 months arresto mayor
medium. (c) The accused Jacqueline Capitle is acquitted.
SO ORDERED. A Partial Motion for Reconsideration of the
foregoing CA Decision was filed only for petitioner Gemma
Tubale Jacinto, but the same was denied per Resolution
dated March 5, 2004.Hence, the present Petition for Review
on Certiorari filed by petitioner alone, assailing the Decision
and Resolution of the CA. The issues raised in the petition
are as follows: 1. Whether or not petitioner can be convicted
of a crime not charged in the information; 2. Whether or not
a worthless check can be the object of theft; and 3. Whether
or not the prosecution has proved petitioner's guilt beyond
reasonable doubt.8The petition deserves considerable
thought. The prosecution tried to establish the following
pieces of evidence to constitute the elements of the crime of
qualified theft defined under Article 308, in relation to Article
310, both of the Revised Penal Code: (1) the taking of
personal property - as shown by the fact that petitioner, as

collector for Mega Foam, did not remit the customer's check
payment to her employer and, instead, appropriated it for
herself; (2) said property belonged to another the check
belonged to Baby Aquino, as it was her payment for
purchases she made; (3) the taking was done with intent to
gain this is presumed from the act of unlawful taking and
further shown by the fact that the check was deposited to the
bank account of petitioner's brother-in-law; (4) it was done
without the owners consent petitioner hid the fact that she
had received the check payment from her employer's
customer by not remitting the check to the company; (5) it
was accomplished without the use of violence or intimidation
against persons, nor of force upon things the check was
voluntarily handed to petitioner by the customer, as she was
known to be a collector for the company; and (6) it was done
with grave abuse of confidence petitioner is admittedly
entrusted with the collection of payments from customers.
However, as may be gleaned from the aforementioned
Articles of the Revised Penal Code, the personal property
subject of the theft must have some value, as the intention of
the accused is to gain from the thing stolen. This is further
bolstered by Article 309, where the law provides that the
penalty to be imposed on the accused is dependent on the
value of the thing stolen. In this case, petitioner unlawfully
took the postdated check belonging to Mega Foam, but the
same was apparently without value, as it was subsequently
dishonored. Thus, the question arises on whether the crime
of qualified theft was actually produced.
The Court must resolve the issue in the negative. Intod v.
Court of Appeals9 is highly instructive and applicable to the
present case. In Intod, the accused, intending to kill a
person, peppered the latters bedroom with bullets, but since
the intended victim was not home at the time, no harm came
to him. The trial court and the CA held Intod guilty of
attempted murder. But upon review by this Court, he was
adjudged guilty only of an impossible crime as defined and
penalized in paragraph 2, Article 4, in relation to Article 59,
both of the Revised Penal Code, because of the factual
impossibility of producing the crime. Pertinent portions of
said provisions read as follows: Article 4(2). Criminal
Responsibility. - Criminal responsibility shall be incurred: x x
x x 2. By any person performing an act which would be an
offense against persons or property, were it not for
theinherent impossibility of its accomplishment or on account
of the employment of inadequate to ineffectual means.
(emphasis supplied) Article 59. Penalty to be imposed in
case of failure to commit the crime because the means
employed or the aims sought are impossible. - When the
person intending to commit an offense has already
performed the acts for the execution of the same but
nevertheless the crime was not produced by reason of the
fact that the act intended was by its nature one of impossible
accomplishment or because the means employed by such
person are essentially inadequate to produce the result
desired by him, the court, having in mind the social danger
and the degree of criminality shown by the offender, shall
impose upon him the penalty of arresto mayor or a fine
ranging from 200 to 500 pesos. Thus, the requisites of an
impossible crime are: (1) that the act performed would be an
offense against persons or property; (2) that the act was
done with evil intent; and (3) that its accomplishment was
inherently impossible, or the means employed was either
inadequate or ineffectual. The aspect of the inherent
impossibility of accomplishing the intended crime under
Article 4(2) of the Revised Penal Code was further explained
by the Court in Intod10 in this wise: Under this article, the act
performed by the offender cannot produce an offense
against persons or property because: (1) the commission of
the offense is inherently impossible of accomplishment; or

(2) the means employed is either (a) inadequate or (b)

ineffectual. That the offense cannot be produced because
the commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the
offender must be by its nature one impossible of
accomplishment. There must be either (1) legal impossibility,
or (2) physical impossibility of accomplishing the intended
act in order to qualify the act as an impossible crime. Legal
impossibility occurs where the intended acts, even if
completed, would not amount to a crime. x x x x The
impossibility of killing a person already dead falls in this
category. On the other hand, factual impossibility occurs
when extraneous circumstances unknown to the actor or
beyond his control prevent the consummation of the
intended crime. x x x 11InIntod, the Court went on to give an
example of an offense that involved factual impossibility, i.e.,
a man puts his hand in the coat pocket of another with the
intention to steal the latter's wallet, but gets nothing since the
pocket is empty. Herein petitioner's case is closely akin to
the above example of factual impossibility given in Intod. In
this case, petitioner performed all the acts to consummate
the crime of qualified theft, which is a crime against property.
Petitioner's evil intent cannot be denied, as the mere act of
unlawfully taking the check meant for Mega Foam showed
her intent to gain or be unjustly enriched. Were it not for the
fact that the check bounced, she would have received the
face value thereof, which was not rightfully hers. Therefore, it
was only due to the extraneous circumstance of the check
being unfunded, a fact unknown to petitioner at the time, that
prevented the crime from being produced. The thing
unlawfully taken by petitioner turned out to be absolutely
worthless, because the check was eventually dishonored,
and Mega Foam had received the cash to replace the value
of said dishonored check.1avvphi1
The fact that petitioner was later entrapped receiving the
P5,000.00 marked money, which she thought was the cash
replacement for the dishonored check, is of no moment. The
Court held in Valenzuela v. People12 that under the
definition of theft in Article 308 of the Revised Penal Code,
"there is only one operative act of execution by the actor
involved in theft the taking of personal property of
another." Elucidating further, the Court held, thus: x x x
Parsing through the statutory definition of theft under Article
308, there is one apparent answer provided in the language
of the law that theft is already "produced" upon the
"tak[ing of] personal property of another without the latters
consent." x x x x x x x when is the crime of theft produced?
There would be all but certain unanimity in the position that
theft is produced when there is deprivation of personal
property due to its taking by one with intent to gain. Viewed
from that perspective, it is immaterial to the product of the
felony that the offender, once having committed all the acts
of execution for theft, is able or unable to freely dispose of
the property stolen since the deprivation from the owner
alone has already ensued from such acts of execution. x x x
x x x x x x x we have, after all, held that unlawful taking, or
apoderamiento, is deemed complete from the moment the
offender gains possession of the thing, even if he has no
opportunity to dispose of the same. x x x x x x Unlawful
taking, which is the deprivation of ones personal property, is
the element which produces the felony in its consummated
stage. x x x 13From the above discussion, there can be no
question that as of the time that petitioner took possession of
the checkmeant for Mega Foam, she had performed all the
acts to consummate the crime of theft, had it not been
impossible of accomplishment in this case. The
circumstance of petitioner receiving the P5,000.00 cash as

supposed replacement for the dishonored check was no

longer necessary for the consummation of the crime of
qualified theft. Obviously, the plan to convince Baby Aquino
to give cash as replacement for the check was hatched only
after the check had been dishonored by the drawee bank.
Since the crime of theft is not a continuing offense,
petitioner's act of receiving the cash replacement should not
be considered as a continuation of the theft. At most, the fact
that petitioner was caught receiving the marked money was
merely corroborating evidence to strengthen proof of her
intent to gain. Moreover, the fact that petitioner further
planned to have the dishonored check replaced with cash by
its issuer is a different and separate fraudulent scheme.
Unfortunately, since said scheme was not included or
covered by the allegations in the Information, the Court
cannot pronounce judgment on the accused; otherwise, it
would violate the due process clause of the Constitution. If at
all, that fraudulent scheme could have been another possible
source of criminal liability. IN VIEW OF THE FOREGOING,
the petition is GRANTED. The Decision of the Court of
Appeals, dated December 16, 2003, and its Resolution
dated March 5, 2004, are MODIFIED. Petitioner Gemma T.
Jacinto is found GUILTYof an IMPOSSIBLE CRIME as
defined and penalized in Articles 4, paragraph 2, and 59 of
the Revised Penal Code, respectively. Petitioner is
sentenced to suffer the penalty of six (6) months of arrresto
mayor, and to pay the costs. SO ORDERED

"Atty. Balaba: Q
Who was that somebody who entered
the room? A
My stepfather Freedie Lizada, sir. Q
He was fully dressed at that time, during the time, is that
correct? A
Yes, sir, he was dressed then, sir. Q
And he had his pants on, is that correct? A
He was
wearing a short pants, sir. Q
Was it a T-shirt that he
had, at that time or a polo shirt? A
He was not wearing
any shirt then, sir, he was naked. Q
When you realized
that somebody was entering the room were you not afraid? A
No, sir, I was not afraid. Q
What happened when you
realized that somebody entered the room, and the one who
entered was your stepfather, Freedie Lizada? A
I did not
mind him entering the room because I know that my brother
was around but suddenly I felt thatsomebody was holding
me. Q
He was holding you, where were you when he
held you? A
I was in the bed, sir, lying down. Q
You were lying down? A
Yes, sir. Q
What part of
the body did the accused Freedie Lizada touched you? A
My two arms, my legs and my breast, sir. Q
Do you
mean to tell us that he was holding your two arms and at the
same time your legs, is that what you are trying to tell us? A
He held me first in my arms and then my legs, sir. Q
He
held you first by your arms, is that what you are trying to tell
us? Fiscal Carisma: Already answered your honor, he held
the arms and then the legs. Court: Already answered. Atty.
Balaba:
Q
Your honor, I am just trying to Court: Proceed. Atty.
Balaba: Q
He held your arms with his two hands? A
Only with one hand, sir. Q
Which hand were you
touched? A
I do not know which hand, sir. Q
Which
arm of yours was held by Freedie Lizada? A
I could not
recall, sir. Q
Which side of your body was Freedie
Lizada at that time? A
I cannot recall, sir. Q
What
was the position of Freedie Lizada when he held your arms?
A
He was sitting on our bed, sir. Q
Which side of
your bed was Freedie Lizada sitting on? A
I do not
know, sir. I cannot recall. Atty. Balaba: Can we take a recess
your honor? Court: How long will it take you to finish your
cross? Atty. Balaba: We will confront the witness with so

many things your honor. Court: Yes, that's why I am asking

you how long will it take you to finish your cross? Atty.
Balaba: About another hour, sir. Court: So we will be finished
by 11:15, proceed.
Atty. Balaba: You cannot also remember which leg was held
by Freedie Lizada? A I cannot recall, sir. Q
When this
happened, did you not shout for help? A
I did not ask for
help, I was motioning to resist him, so that he would go out,
sir. I was struggling to free myself from him, sir. Q
And
you were not able to extricate yourself from him? A
I
was not able to extricate myself, sir. Q
You were
struggling with one arm of Lizada holding your arm, and the
other hand was holding your leg, is that what you are trying
to tell us? A
No, sir, it's not like that. Q
Could you
tell us, what happened, you did not shout for help and you
were trying to extricate yourself,what happened? A
He
suddenly went out of the room, sir. Q
Now, he went
Court: You did not shout during that time? A
No, your
honor."33Rossel, the nine-year old brother of the private
complainant corroborated in part his sister's testimony. He
testified on direct examination, thus: "Fiscal Carisma:
(continuing) Q
Now, on November 2, 1998 do you recall
where you were at about 3:00 o'clock? A
I was outside
our house, sir. Q
Where was your house again, Mr.
witness, at that time? Where was your house at that date,
time and place? At that date and time? A
1252 Jose
Abad Santos, Tondo, Manila, sir. Court: Q
The same
address? A.
Yes, sir. Fiscal Carisma: Q
On that
date, time and place, do your recall where your sister Anna
Lea Orillosa was?
A
Yes, sir. Q
Where was she? A
She was
sleeping, sir. Q
Now, on that date, time and place you
said you were outside your house, did you stay the whole
afternoon outside your house? A
No, sir. Q
Where
did you go next? A
Inside, sir. Q
For what purpose
did you get inside your house? A
Because I was thirsty,
sir. Q
So you went to the fridge to get some water? A
Yes, sir. Q
And what happened as you went inside your
house to get some water? A
I saw my stepfather
removing the panty of my sister and he touched her and then
he laid on top of her, sir. Q
Do you see your stepfather
inside the courtroom now? A
Yes, sir. Q
Will you
point to him? A
He is the one, sir. Court Interpreter:
Witness pointing to a male person who when asked answers
to the name Freedie Lizada. Fiscal Carisma: Q
This
thing that your father was that your stepfather did to your
elder sister, did you see this before or after you went to the
fridge to get some water? A
I already got water then, sir.
Q
What did you do as you saw this thing being done by
your stepfather to your elder sister? A
I was just looking
at them when he saw me, sir. Q
Who, you saw who?
You are referring to the accused Freedie Lizada? A
Yes,
sir. Q
So, what did you do as you were seen by your
stepfather?
A
He scolded me, he shouted at me, he told me
something and after that he went to the other room andslept,
sir."34Rossel testified on cross-examination, thus: "Q
So you got thirsty, is that correct, and went inside the house?
A
Yes, sir. Q
And you took a glass of water from
the refrigerator? A
Yes, sir. Q
And it was at this
time that you saw the accused Freedie Lizada touching your
sister? A
Yes, sir. Q
Where was this refrigerator
located? A
In front of the room where my sister sleeps,
sir.Q
So the door of your sister's room was open? A
Yes, sir. Q
And okay, you said your sister was
sleeping. What was the position of your sister when you said
the accused removed her panty? A
She was lying

straight, but she was resisting, sir. Q

Were you noticed
by your sister at that time?A
No, sir. Q
And your
sister did not call for help at that time? A
No, sir. Q
And all this time you saw the accused doing this, from the
refrigerator where you were taking a glass of water? A
Yes, sir. Q
Did you not say something to the accused?
A
No, sir, I was just looking. Q
So your sister was
lying down when the accused removed her panty, is that
what you are trying to tell us? A
Yes, sir. Q
And
where was the and the accused saw you when he was
removing the panty of your sister? A
Not yet, sir, but
after a while he looked at the refrigerator because he might
be thirsty. Q
So you said the accused was touching
your sister. What part of her body was touched by the
accused?
A
Here, sir. Court Interpreter: Witness pointing at the
lower portion of the body. Atty. Balaba: Q
You saw with
what hand was the accused touching your sister? A
Yes, sir. Q
What hand was he touching your sister? A
This hand, sir. Court Interpreter: Witness raising his right
hand. Atty. Balaba: Q
And which part of your sister's
body was the accused touching with his right hand? Your
sister's body was the accused touching with his right hand?
A
Her right leg, sir. Q
How about his left hand,
what was the accused doing with his left hand? A
Removing her panty, sir. Q
Removing her? A
Panty, sir. Q
Which hand of your sister was being
removed with the left hand of the accused? Court: Which?
Atty. Balaba: Which hand, which hand? Fiscal Carisma: The
question is vague, your honor. Atty. Balaba: Because he said
that removing the hand Fiscal Carisma: He said removing
the panty.
Atty. Balaba: Is that panty? I'm sorry. Q
So, the accused
was touching with his right hand the left thigh of your sister
Fiscal Carisma: The right thigh. Atty. Balaba: Q
Rather the right thigh of your sister and with his left hand
removing the panty, is that what you are telling to tell us? A
Yes, sir. Q
And your sister all the time was trying to
was struggling to get free, is that not correct? A
Yes, sir,
she was resisting. (witness demonstrating) Q
She was
struggling was the accused able to remove the panty? A
Yes, sir. Q
And all the time you were there looking with
the glass of water in your hand? A
Yes, sir."35In light of
the evidence of the prosecution, there was no introduction of
the penis of accused-appellant into the aperture or within the
pudendum of the vagina of private complainant. Hence,
accused-appellant is not criminally liable for consummated
rape.36The issue that now comes to fore is whether or not
accused-appellant is guilty of consummated acts of
lasciviousness defined in Article 336 of the Revised Penal
Code or attempted rape under Article 335 of the said Code,
as amended in relation to the last paragraph of Article 6 of
the Revised Penal Code. In light of the evidence on record,
we believe that accused-appellant is guilty of attempted rape
and not of acts of lasciviousness. Article 336 of the Revised
Penal Code reads: "Art. 336. Acts of Lasciviousness. Any
person who shall commit any act of lasciviousness upon
other persons of either sex, under any of the circumstances
mentioned in the preceding article, shall be punished by
prision correccional."37For an accused to be convicted of
acts of lasciviousness, the prosecution is burdened to prove
the confluence of the following essential elements: "1. That
the offender commits any act of lasciviousness or lewdness.
2. That it is done under any of the following circumstances:
a. By using force or intimidation; or b. When the offended
party is deprived of reason or otherwise unconscious; or c.
When the offended party is under 12 years of age."38

"Lewd" is defined as obscene, lustful, indecent, lecherous. It

signifies that form of immorality which has relation to moral
impurity; or that which is carried on a wanton manner.39The
last paragraph of Article 6 of the Revised Penal Code reads:
"There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his
own spontaneous desistance." The essential elements of an
attempted felony are as follows: "1. The offender
commences the commission of the felony directly by overt
acts; 2. He does not perform all the acts of execution which
should produce the felony; 3. The offender's act be not
stopped by his own spontaneous desistance; 4. The nonperformance of all acts of execution was due to
causeoraccident
other
than
his
spontaneous
desistance."40The first requisite of an attempted felony
consists of two elements, namely: "(1) That there be external
acts; (2) Such external acts have direct connection with the
crime intended to be committed."41An overt or external act
is defined as some physical activity or deed, indicating the
intention to commit a particular crime, more than a mere
planning or preparation, which if carried out to its complete
termination following its natural course, without being
frustrated by external obstacles nor by the spontaneous
desistance of the perpetrator, will logically and necessarily
ripen into a concrete offense.42 The raison d'etre for the law
requiring a direct overt act is that, in a majority of cases, the
conduct of the accused consisting merely of acts of
preparation has never ceased to be equivocal; and this is
necessarily so, irrespective of his declared intent. It is that
quality of being equivocal that must be lacking before the act
becomes one which may be said to be a commencement of
the commission of the crime, or an overt act or before any
fragment of the crime itself has been committed, and this is
so for the reason that so long as the equivocal quality
remains, no one can say with certainty what the intent of the
accused is.43 It is necessary that the overt act should have
been the ultimate step towards the consummation of the
design. It is sufficient if it was the "first or some subsequent
step in a direct movement towards the commission of the
offense after the preparations are made."44 The act done
need not constitute the last proximate one for completion. It
is necessary, however, that the attempt must have a causal
relation to the intended crime.45 In the words of Viada, the
overt acts must have an immediate and necessary relation to
the offense.46Acts constitutive of an attempt to commit a
felony should be distinguished from preparatory acts which
consist of devising means or measures necessary for
accomplishment of a desired object or end.47 One
perpetrating preparatory acts is not guilty of an attempt to
commit a felony. However, if the preparatory acts constitute
a consummated felony under the law, the malefactor is guilty
of such consummated offense.48 The Supreme Court of
Spain, in its decision of March 21, 1892, declared that for
overt acts to constitute an attempted offense, it is necessary
that their objective be known and established or such that
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 designation of
the offense.49There is persuasive authority 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).50 Hence, it is necessary
that the acts of the accused must be such that, by their
nature, by the facts to which they are related, by
circumstances of the persons performing the same, and b
the things connectedtherewith, that they are aimed at the
consummation of the offense. This Court emphasized in

People vs. Lamahang51 that: "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 cause a particular
injury."52
If the malefactor does not perform all the acts of execution
by reason of his spontaneous desistance, he is not guilty of
an attempted felony.53 The law does not punish him for his
attempt to commit a felony.54 The rationale of the law, as
explained by Viada: "La Ley, en efecto, no hiere sino a pesar
suyo; prefiere impedir el crimen que castigarlo. Si el autor de
la tentativa, despues de haber comenzado a ejecutar el
delito por actos exteriores, se detiene, por un sentimiento
libre y espontaneo, en el borde del abismo, salvo esta. Es
un llamamiento al remordimiento, a la conciencia, una gracia
un perdon que concede la Ley al arrepentimiento
voluntario."55As aptly elaborated on by Wharton: "First, the
character of an attempt is lost when its execution is
voluntarily abandoned. There is no conceivable overt act to
which the abandoned purpose could be attached. Secondly,
the policy of the law requires that the offender, so long as he
is capable of arresting an evil plan, should be encouraged to
do so, by saving him harmless in case of such retreat before
it is possible for any evil consequences to ensue. Neither
society, nor any private person, has been injured by his act.
There is no damage, therefore, to redress. To punish him
after retreat and abandonment would be to destroy the
motive for retreat and abandonment."56It must be borne in
mind, however, that the spontaneous desistance of a
malefactor exempts him from criminal liability for the
intended crime but it does not exempt him from the crime
committed by him before his desistance.57In light of the
facts established by the prosecution, we believe that
accused-appellant intended to have carnal knowledge of
private complainant. The overt acts of accused-appellant
proven by the prosecution were not mere preparatory acts.
By the series of his overt acts, accused-appellant had
commenced the execution of rape which, if not for his
spontaneous desistance, will ripen into the crime of rape.
Although accused-appellant desisted from performing all the
acts of execution however his desistance was not
spontaneous as he was impelled to do so only because of
the sudden and unexpected arrival of Rossel. Hence,
accused-appellant is guilty only of attempted rape.58 In a
case of similar factual backdrop as this case, we held:
"Applying the foregoing jurisprudence and taking into
account Article 6 of the Revised Penal Code, the appellant
can only be convicted of attempted rape. He commenced the
commission of rape by removing his clothes, undressing and
kissing his victim and lying on top of her. However, he failed
to perform all the acts of execution which should produce the
crime of rape by reason of a cause other than his own
spontaneous desistance, i.e., by the timely arrival of the
victim's brother. Thus, his penis merely touched Mary Joy's
private organ. Accordingly, as the crime committed by the
appellant is attempted rape, the penalty to be imposed on
him should be an indeterminate prison term of six (6) years
of prision correccional as minimum to twelve (12) years of
prision mayor as maximum." The penalty for attempted rape
is prision mayor which is two degrees lower than reclusion
perpetua.59 Accused-appellant should be meted an
indeterminate penalty the minimum of which should be taken
from prision correccional which has a range of from six
months and one day to six years and the maximum of which
shall be taken from the medium period of prision mayor
which has a range of from eight years and one day to ten
years, without any modifying circumstance. Accused-

appellant is also liable to private complainant for moral

damages in the amount of P25,000.00. IN LIGHT OF ALL
THE FOREGOING, the Decision of the Regional Trial Court
of Manila, Branch 54, is SET ASIDE. Another judgment is
hereby rendered as follows: 1. In Criminal Case No. 99171390, accused-appellant is hereby found guilty beyond
reasonable doubt of simple rape under Article 335 of the
Revised Penal Code as amended and is hereby meted the
penalty of reclusion perpetua. Accused-appellant is also
hereby ordered to pay private complainant Analia Orillosa
the amounts of P50,000.00 by way of civil indemnity and
P50,000.00 by way of moral damages; 2. In Criminal Case
No. 99-171391, accused-appellant is hereby found guilty of
attempted rape under Article 335 of the Revised Penal Code
as amended in relation to Article 6 of the said Code and is
hereby meted an indeterminate penalty of from six years of
prision correccional in its maximum period, as minimum to
ten years ofprision mayor in its medium period, as maximum.
Accused-appellant is hereby ordered to pay private
complainant Analia Orillosa the amount of P25,000.00 by
way of moral damages; and, 3. In Criminal Cases Nos. 99171392 and 99-171393, accused-appellant is hereby found
guilty beyond reasonable doubt of two counts of simple rape,
defined in Article 335 of the Revised Penal Code as
amended and is hereby meted the
penalty of reclusion perpetua for each count. Accusedappellant is hereby ordered to pay to private complainant
Analia Orillosa the amount of P50,000.00 by way of civil
indemnity and the amount of P50,000.00 by way of moral
damages for each count, or a total amount of P200,000.00.
SO ORDERED
RENATO BALEROS, JR., Petitioner, vs. PEOPLE OF THE
PHILIPPINES, Respondent. D E C I S I O N GARCIA, J.:In
this petition for review on certiorari, petitioner Renato
Baleros, Jr. assails and seeks the reversal of the January 13,
1999 decision1 of the Court of Appeals (CA) in CA-G.R. CR
No. 17271 as reiterated in its March 31, 1999
resolution2denying petitioner s motion for reconsideration.
The assailed decision affirmed an earlier decision of the
Regional Trial Court (RTC) of Manila, Branch 2, in Criminal
Case No. 91-101642 finding petitioner Renato Baleros, Jr. y
David (CHITO) guilty of attempted rape.3The accusatory
portion of the information4 dated December 17, 1991
charging petitioner with attempted rape reads as follow: That
about 1:50 in the morning or sometime thereafter of 13
December 1991 in Manila and within the jurisdiction of this
Honorable Court, the above-named accused, by forcefully
covering the face of Martina Lourdes T. Albano with a piece
of cloth soaked in chemical with dizzying effects, did then
and there willfully, unlawfully and feloniously commenced the
commission of rape by lying on top of her with the intention
to have carnal knowledge with her but was unable to perform
all the acts of execution by reason of some cause or
accident other than his own spontaneous desistance, said
acts being committed against her will and consent to her
damage and prejudice. Upon arraignment on February 5,
1992, petitioner, assisted by counsel, pleaded "Not Guilty."5
Thereafter, trial on the merits ensued. To prove its case, the
prosecution presented thirteen (13) witnesses. Among them
were private complainant Martina Lourdes Albano (Malou),
and her classmates, Joseph Bernard Africa, Rommel
Montes, Renato Alagadan and Christian Alcala. Their
testimonies, as narrated in some detail in the decision of the
CA, established the following facts: Like most of the tenants
of the Celestial Marie Building (hereafter "Building", ...) along
A.H. Lacson Street, Sampaloc, Manila, MALOU, occupying
Room 307 with her maid, Marvilou Bebania (Marvilou), was

a medical student of the University of Sto. Tomas [UST] in

1991. In the evening of December 12, inside Unit 307,
MALOU retired at around 10:30. Outside, right in front of her
bedroom door, her maid, Marvilou, slept on a folding bed.
Early morning of the following day, MALOU was awakened
by the smell of chemical on a piece of cloth pressed on her
face. She struggled but could not move. Somebody was
pinning her down on the bed, holding her tightly. She wanted
to scream for help but the hands covering her mouth with
cloth wet with chemicals were very tight (TSN, July 5, 1993,
p. 33). Still, MALOU continued fighting off her attacker by
kicking him until at last her right hand got free. With this
...the opportunity presented itself when she was able to grab
hold of his sex organ which she then squeezed. The man let
her go and MALOU went straight to the bedroom door and
roused Marvilou. xxx. Over the intercom, MALOUtold S/G
Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako"
(Ibid., p. 8). Who it was she did not, however, know. The only
thing she had made out during their struggle was the feel of
her attacker s clothes and weight. His upper garment was of
cotton material while that at the lower portion felt smooth and
satin-like (Ibid, p. 17). He ... was wearing a t-shirt and
shorts ... Original Records, p. 355).
To Room 310 of the Building where her classmates Christian
Alcala, Bernard Baptista, Lutgardo Acosta and Rommel
Montes were staying, MALOU then proceeded to seek help.
xxx. It was then when MALOU saw her bed ... topsy-turvy.
Her nightdress was stained with blue ... (TSN, July 5, 1993,
pp. 13-14). Aside from the window with grills which she had
originally left opened, another window inside her bedroom
was now open. Her attacker had fled from her room going
through the left bedroom window (Ibid, Answers to Question
number 5; Id), the one without iron grills which leads to
Room 306 of the Building (TSN, July 5, 1993, p.6). xxx xxx
xxx Further, MALOU testified that her relation with CHITO,
who was her classmate ..., was friendly until a week prior to
the attack. CHITO confided his feelings for her, telling her:
"Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she
rejected him. .... (TSN, July 5, 1993, p. 22). Meanwhile,
according to S/G Ferolin, while he was on duty, CHITO
arrived at the Building at 1:30 in the early morning of
December 13, 1991, wearing a white t-shirt with ...a
marking on the front of the T-shirt T M and a Greek letter
(sic) and below the quoted letters the word 1946 UST
Medicine and Surgery (TSN, October 9, 1992, p. 9) and
black shorts with the brand name Adidas (TSN, October
16, 1992, p.7) and requested permission to go up to Room
306. This Unit was being leased by Ansbert Co and at that
time when CHITO was asking permission to enter, only
Joseph Bernard Africa was in the room. He asked CHITO to
produce the required written authorization and when CHITO
could not, S/G Ferolin initially refused [but later, relented] ....
S/G Ferolin made the following entry in the security guard s
logbook ...: "0130H Baleros Renato Jr. is a visitor of Ansbert
Co who has not have (sic) a Request letter from our tenant
of Unit #-306 Ansbert, but still I let him inter (sic) for the
reason that he will be our tenant this coming summer break
as he said so I let him sign it here (Sgd.) Baleros Renato Jr."
(Exhibit "A-2") That CHITO arrived at Room 306 at 1:30 A.M.
of December 13, 1991 was corroborated by Joseph Bernard
Africa (Joseph), .... xxx xxx xxx Joseph was already inside
Room 306 at 9 o clock in the evening of December 12,
1991. xxx by the time CHITO s knocking on the door woke
him up, .... He was able to fix the time of CHITO s arrival at
1:30 A.M. because he glanced at the alarm clock beside the
bed when he was awakened by the knock at the door ....
Joseph noticed that CHITO was wearing dark-colored shorts
and white T-shirt (Ibid., p. 23) when he let the latter in. .... It
was at around 3 o clock in the morning of December 13,

1991 when he woke up again later to the sound of knocking

at the door, this time, by Bernard Baptista (Bernard), .... xxx.
With Bernard, Joseph then went to MALOU s room and
thereat was shown by Bernard the open window through
which the intruder supposedly passed. xxx xxx xxx Later, at
about 6 to 6:30 in the morning of December 13, 1991,
Joseph was finally able to talk to CHITO .... He mentioned to
the latter that something had happened and that they were
not being allowed to get out of the building. Joseph also told
CHITO to follow him to Room 310. CHITO did just that. He
followed after Joseph to Unit 310, carrying his gray bag. xxx.
None was in Room 310 so Joseph went to their yet another
classmate, Renato Alagadan at Room 401 to see if the
others were there. xxx.

People from the CIS came by before 8 o clock that same

morning .... They likewise invited CHITO and Joseph to go
with them to Camp Crame where the two (2) were
questioned .... An occupant of Room 310 ... Christian Alcala
(Christian) recalled in Court that in the afternoon of
December 13, 1991, after their 3:30 class, he and his
roommates, Bernard Baptista and Lutgardo Acosta (Gary)
were called to the Building and were asked by the CIS
people to look for anything not belonging to them in their
Unit. While they were outside Room 310 talking with the
authorities, Rommel Montes (Loyloy), another roommate of
his, went inside to search the Unit. Loyloy found (TSN,
January 12, 1993, p. 6) a gray "Khumbella" bag cloth type
(Ibid, pp. 44-45) from inside their unit which they did not
know was there and surrender the same to the investigators.
When he saw the gray bag, Christian knew right away that it
belonged to CHITO (Ibid, p. 55) as he had seen the latter
usually bringing it to school inside the classroom (Ibid, p.
45). In their presence, the CIS opened the bag and pulled
out its contents, among others, a white t-shirt with a Taunu
(sic) Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants,
a handkerchief , three (3) white T-shirts, an underwear, and
socks (Ibid). Christian recognized the t-shirt (Exhibit "D-4"),
the Adidas short pants (Exhibit "D-5"), and the handkerchief
(Exhibit "D-3) to be CHITO s because CHITO had lent the
very same one to him .... The t-shirt with CHITO s fraternity
symbol, CHITO used to wear on weekends, and the
handkerchief he saw CHITO used at least once in
December. That CHITO left his bag inside Room 310 in the
morning of December 13, 1991, was what consisted mainly
of Renato R. Alagadan s testimony. xxx xxx xxx. The colored
gray bag had a handle and a strap, was elongated to about
11/4 feet and appeared to be full but was closed with a
zipper when Renato saw it then (Ibid, pp. 19-20). At that time
Christian, Gary, Bernard, and Renato went back to Room
310 at around 3 to 4 o clock that afternoon along with some
CIS agents, they saw the bag at the same place inside the
bedroom where Renato had seen CHITO leave it. Not until
later that night at past 9 o clock in Camp Crame, however,
did Renato know what the contents of the bag were. xxx xxx
xxx. The forensic Chemist, Leslie Chambers, of the
Philippine National Police Crime Laboratory in Camp Crame,
having acted in response to the written request of PNP
Superintendent Lucas M. Managuelod dated December 13,
1991, (Exhibit "C"; Original Records, p. 109.) conducted
laboratory examination on the specimen collated and
submitted.... Her Chemistry Report No. C-487-91 (Exhibit
"E"; Ibid., p. 112) reads in part, thus: "SPECIMEN
SUBMITTED: xxx xxx xxx: 1) One (1) small white plastic bag
marked UNIMART with the following: xxx xxx xxx Exh C
One (1) night dress colored salmon pink. 2) One (1) small
white pl astic bag marked JONAS with the following: Exh.
D One (1) printed handkerchief. Exh. E One (1) white
T-shirt marked TMZI . Exh. F One (1) black short (sic)
marked ADIDAS . PURPOSE OF LABORATORY
EXAMINATION:
To determine the presence of volatime (sic), non-volatile
and/or metallic poison on the above stated specimens.
FINDINGS: Toxicological examination conducted on the
above stated specimens gave the following results: Exhs.
C and D POSITIVE to the test for chloroform, a volatile
poison.Exhs. A , B , E and F are insufficient for further
analysis. CONCLUSION: Exhs. C and D contain
chloroform, a volatile poison."6 (Words in bracket added) For
its part, the defense presented, as its main witness, the
petitioner himself. He denied committing the crime imputed
to him or making at any time amorous advances on Malou.
Unfolding a different version of the incident, the defense
sought to establish the following, as culled from the same

decision of the appellate court: In December of 1991, CHITO

was a medical student of ... (UST). With Robert Chan and
Alberto Leonardo, he was likewise a member of the Tau
Sigma Phi Fraternity .... MALOU, ..., was known to him being
also a medical student at the UST at the time. From Room
306 of the Celestial Marie Building ..., CHITO, wearing the
prescribed barong tagalog over dark pants and leather
shoes, arrived at their Fraternity house located at ... Dos
Castillas, Sampaloc, Manila at about 7 o clock in the
evening of December 12, 1991. He was included in the
entourage of some fifty (50) fraternity members scheduled
for a Christmas gathering at the house of their senior
fraternity brother, Dr. Jose Duran, at No. 3 John Street, North
Greenhills, San Juan. xxx. The party was conducted at the
garden beside [the] swimming pool .... Soon after, ... the four
(4) presidential nominees of the Fraternity, CHITO included,
were being dunked one by one into the pool. xxx. xxx CHITO
had anticipated his turn ... and was thus wearing his t-shirt
and long pants when he was dunked. Perla Duran, ...,
offered each ... dry clothes to change into and CHITO put on
the white t-shirt with the Fraternity s symbol and a pair of
black shorts with stripes. xxx . Again riding on Alberto s car
and wearing "barong tagalog over a white t-shirt with the
symbol TAU Sigma Phi, black short pants with stripe, socks
and shoes" (TSN, April 25, 1994, p. 15), CHITO left the party
with Robert Chan and Alberto at more or less past 1 A.M. of
December 13, 1991 and proceeded to the Building which
they reached at about 1:30 A.M. (Ibid., p. 19). He had left his
gray traveling bag containing "white t-shirt, sando,
underwear, socks, and toothbrush (Ibid., pp. 17-18) at room
306 in the afternoon of the previous day .... At the gate of the
Building, CHITO knocked and ..., S/G Ferolin, looking at his
watch, approached. Because of this, CHITO also looked at
his own watch and saw that the time was 1:30 (Ibid., p. 26).
S/G Ferolin initially refused CHITO entry .... xxx. S/G Ferolin
called Unit 306 .... xxx. When S/G Ferolin finally let him in,
already about ten (10) minutes had lapsed since CHITO first
arrived (Ibid., p. 25). CHITO went up the floor, found the key
left for him by Joseph behind the opened jalousie window
and for five (5) minutes vainly tried to open the door until
Rommel Montes, ... approached him and even commented:
"Okey ang suot mo ha, di mo mabuksan ang pinto (Ibid., pp.
26-29). Rommel tried to open the door of Unit 306 ... but was
likewise unsuccessful. CHITO then decided to just call out to
Joseph while knocking at the door. It took another (5)
minutes of calling out and knocking before Joseph, ..., at last
answered the door. Telling him, "Ikaw na ang bahala diyan"
Joseph immediately turned his back on CHITO and went
inside the bedroom. CHITO , ...changed to a thinner shirt
and went to bed. He still had on the same short pants given
by Perla Duran from the fraternity party (TSN, June 16,
1994, p. 20).
At 6 o clock in the morning of December 13, 1991, CHITO
woke up .... He was already in his school uniform when,
around 6:30 A.M, Joseph came to the room not yet dressed
up. He asked the latter why this was so and, without
elaborating on it, Joseph told him that something had
happened and to just go to Room 310 which CHITO did. At
Room 310, CHITO was told by Rommel Montes that
somebody, whom MALOU was not able to identify, went to
the room of MALOU and tried to rape her (TSN, April 25,
1994, p. 36). xxx. Joseph told him that the security guard
was not letting anybody out of the Building .... When two (2)
CIS men came to the unit asking for Renato Baleros, CHITO
presented himself. Congressman Rodolfo B. Albano, father
of MALOU, then asked him for the key to Room 306.... xxx
xxx xxx The CIS men looked inside the bedroom and on the
windows. Joseph was told to dress up and the two (2) of
them, CHITO and Joseph, were brought to Camp Crame.

When they arrived at Camp Crame ..., Col. Managuelod

asked Joseph inside his room and talked to him for 30
minutes. xxx. No one interviewed CHITO to ask his side. xxx
xxx xxx Both CHITO and Joseph were taken to Prosecutor
Abesamis who later instructed them to undergo physical
examination at the Camp Crame Hospital ..... At the hospital,
... CHITO and Joseph were physically examined by a certain
Dr. de Guzman who told them to strip .... xxx xxx xxx CHITO
had left his gray bag containing, among others, the black
striped short pants lent to him by Perla Duran (Exhibit "8-A",
Original Records, p. 345), inside Room 310 at more/less
6:30 to 7 o clock in the morning of December 13, 1991. The
next time that he saw it was between 8 to 9 P.M. when he
and Joseph were brought before Fiscal Abesamis for
inquest. One of the CIS agents had taken it there and it was
not opened up in his presence but the contents of the bag
were already laid out on the table of Fiscal Abesamis who,
however, made no effort to ask CHITO if the items thereat
were his. The black Adidas short pants purportedly found in
the bag, CHITO denied putting in his gray bag which he had
left at Room 306 in the early evening of December 12, 1991
before going to the fraternity house. He likewise disavowed
placing said black Adidas short pants in his gray bag when
he returned to the apartment at past 1:00 o clock in the early
morning of December 13, 1991 (TSN, June 16, 1994, p. 24),
nor when he dressed up at about 6 o clock in the morning to
go to school and brought his gray bag to Room 310 (Ibid.
25). In fact, at any time on December 13, 1991, he was not
aware that his gray bag ever contained any black short
Adidas pants (Ibid). He only found out for the first time that
the black Adidas short pants was alluded to be among the
items inside his gray bag late in the afternoon, when he was
in Camp Crame. Also taking the witness stand for the
defense were petitioner s fraternity brothers, Alberto
Leonardo and Robert Chan, who both testified being with
CHITO in the December 12, 1991 party held in Dr. Duran s
place at Greenhills, riding on the same car going to and
coming from the party and dropping the petitioner off the
Celestial Marie building after the party. Both were one in
saying that CHITO was wearing a barong tagalog, with t-shirt
inside, with short pants and leather shoes at the time they
parted after the party.7 Rommel Montes, a tenant of Room
310 of the said building, also testified seeing CHITO
between the hours of 1:30 and 2:00 A.M. of December 13,
1991 trying to open the door of Room 306 while clad in dark
short pants and white barong tagalog. On the other hand,
Perla Duran confirmed lending the petitioner the pair of short
pants with stripes after the dunking party held in her father s
house.8 Presented as defense expert witness was Carmelita
Vargas, a forensic chemistry instructor whose actual
demonstration in open court showed that chloroform, being
volatile, evaporates in thirty (30) seconds without tearing nor
staining the cloth on which it is applied.9On December 14,
1994, the trial court rendered its decision10 convicting
petitioner of attempted rape and accordingly sentencing him,
thus: WHEREFORE, under cool reflection and prescinding
from the foregoing, the Court finds the accused Renato D.
Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of
the crime of attempted rape as principal and as charged in
the
information and hereby sentences him to suffer an
imprisonment ranging from FOUR (4) YEARS, TWO (2)
MONTHS AND ONE (1) DAY of Prision Correctional, as
Minimum to TEN (10) YEARS of Prision Mayor as Maximum,
with all the accessory penalties provided by law, and for the
accused to pay the offended party Martina Lourdes T.
Albano, the sum of P50,000.00 by way of Moral and
exemplary damages, plus reasonable Attorney s fees of
P30,000.00, without subsidiary imprisonment in case of

insolvency, and to pay the costs. SO ORDERED. Aggrieved,

petitioner went to the CA whereat his appellate recourse was
docketed as CA-G.R. CR No. 17271. As stated at the
threshold hereof, the CA, in its assailed Decision dated
January 13, 1999, affirmed the trial court s judgment of
conviction, to wit: WHEREFORE, finding no basis in fact and
in law to deviate from the findings of the court a quo, the
decision appealed from is hereby AFFIRMED in toto. Costs
against appellant. SO ORDERED.11Petitioner moved for
reconsideration, but his motion was denied by the CA in its
equally assailed resolution of March 31, 1999.12Petitioner is
now with this Court, on the contention that the CA erred - 1.
In not finding that it is improbable for petitioner to have
committed the attempted rape imputed to him, absent
sufficient, competent and convincing evidence to prove the
offense charged. 2. In convicting petitioner of attempted rape
on the basis merely of circumstantial evidence since the
prosecution failed to satisfy all the requisites for conviction
based thereon. 3. In not finding that the circumstances it
relied on to convict the petitioner are unreliable, inconclusive
andcontradictory. 4. In not finding that proof of motive is
miserably wanting in his case. 5. In awarding damages in
favor of the complainant despite the fact that the award was
improper and unjustified absent any evidence to prove the
same. 6. In failing to appreciate in his favor the constitutional
presumption of innocence and that moral certainty has not
been met, hence, he should be acquitted on the ground that
the offense charged against him has not been proved
beyond reasonable doubt. Otherwise stated, the basic issue
in this case turns on the question on whether or not the CA
erred in affirming the ruling of the RTC finding petitioner
guilty beyond reasonable doubt of the crime of attempted
rape. After a careful review of the facts and evidence on
record in the light of applicable jurisprudence, the Court is
disposed to rule for petitioner s acquittal, but not necessarily
because there is no direct evidence pointing to him as the
intruder holding a chemical-soaked cloth who pinned Malou
down on the bed in the early morning of December 13, 1991.
Positive identification pertains essentially to proof of identity
and not per se to that of being an eyewitness to the very act
of commission of the crime. There are two types of positive
identification. A witness may identify a suspect or accused as
the offender as an eyewitness to the very act of the
commission of the crime. This constitutes direct evidence.
There may, however, be instances where, although a
witness may not have actually witnessed the very act of
commission of a crime, he may still be able to positively
identify a suspect or accused as the perpetrator of a crime
as when, for instance, the latter is the person or one of the
persons last seen with the victim immediately before and
right after the commission of the crime. This is the second
type of positive identification, which forms part of
circumstantial evidence.13 In the absence of direct
evidence, the prosecution may resort to adducing
circumstantial evidence to discharge its burden. Crimes are
usually committed in secret and under condition where
concealment is highly probable. If direct evidence is insisted
under all circumstances, the prosecution of vicious felons
who committed heinous crimes in secret or secluded places
will be hard, if not well-nigh impossible, to prove.14
Section 4 of Rule 133 of the Rules of Court provides the
conditions when circumstantial evidence may be sufficient
for conviction. The provision reads: Sec. 4. Circumstantial
evidence, when sufficient Circumstantial evidence is
sufficient for conviction if a) There is more than one
circumstance; b) The facts from which the inferences are
derived are proven; and c) The combination of all the
circumstances is such as to produce a conviction beyond
reasonable doubt. In the present case, the positive

identification of the petitioner forms part of circumstantial

evidence, which, when taken together with the other pieces
of evidence constituting an unbroken chain, leads to only fair
and reasonable conclusion, which is that petitioner was the
intruder in question. We quote with approval the CA s finding
of the circumstantial evidence that led to the identity of the
petitioner as such intruder: Chito was in the Building when
the attack on MALOU took place. He had access to the room
of MALOU as Room 307 where he slept the night over had a
window which allowed ingress and egress to Room 306
where MALOU stayed. Not only the Building security guard,
S/G Ferolin, but Joseph Bernard Africa as well confirmed
that CHITO was wearing ablack "Adidas" shorts and
fraternity T-shirt when he arrived at the Building/Unit 307 at
1:30 in the morning of December 13, 1991. Though it was
dark during their struggle, MALOU had made out the feel of
her intruder s apparel to be something made of cotton
material on top and shorts that felt satin-smooth on the
bottom. From CHITO s bag which was found inside Room
310 at the very spot where witness Renato Alagadan saw
CHITO leave it, were discovered the most incriminating
evidence: the handkerchief stained with blue and wet with
some kind of chemicals; a black "Adidas" satin short pants;
and a white fraternity T-shirt, also stained with blue. A
different witness, this time, Christian Alcala, identified these
garments as belonging to CHITO. As it turned out, laboratory
examination on these items and on the beddings and clothes
worn by MALOU during the incident revealed that the
handkerchief and MALOU s night dress both contained
chloroform, a volatile poison which causes first degree burn
exactly like what MALOU sustained on that part of her face
where the chemical-soaked cloth had been pressed. This
brings the Court to the issue on whether the evidence
adduced by the prosecution has established beyond
reasonable doubt the guilt of the petitioner for the crime of
attempted rape. The Solicitor General maintained that
petitioner, by pressing on Malou s face the piece of cloth
soaked in chemical while holding her body tightly under the
weight of his own, had commenced the performance of an
act indicative of an intent or attempt to rape the victim. It is
argued that petitioner s actuation thus described is an overt
act contemplated under the law, for there can not be any
other logical conclusion other than that the petitioner
intended to ravish Malou after he attempted to put her to an
induced sleep. The Solicitor General, echoing what the CA
said, adds that if petitioner s intention was otherwise, he
would not have lain on top of the victim.15Under Article 335
of the Revised Penal Code, rape is committed by a man who
has carnal knowledge or intercourse with a woman under
any of the following circumstances: (1) By using force or
intimidation; (2) When the woman is deprived of reason or
otherwise unconscious; and (3) When the woman is under
twelve years of age or is demented. Under Article 6, in
relation to the aforementioned article of the same code, rape
is attempted when the offender commences the commission
of rape directly by overt acts and does not perform all the
acts of execution which should produce the crime of rape by
reason of some cause or accident other than his own
spontaneous desistance.16Expounding on the nature of an
attempted felony, the Court, speaking thru Justice Claro M.
Recto in People vs. Lamahang,17 stated that "the attempt
which the Penal Code punishes is that which has a logical
connection to a particular,concrete offense; that which is the
beginning of the execution of the offense by overt acts of the
perpetrator, leading directly to its realization and
consummation." Absent the unavoidable connection, like the
logical and natural relation of the cause and its effect, as
where the purpose of the offender in performing an act is not
certain, meaning the nature of the act in relation to its
objective is ambiguous, then what obtains is an attempt to

commit an indeterminate offense, which is not a juridical fact

from the standpoint of the Penal Code.18
There is absolutely no dispute about the absence of sexual
intercourse or carnal knowledge in the present case. The
next question that thus comes to the fore is whether or not
the act of the petitioner, i.e., the pressing of a chemicalsoaked cloth while on top of Malou, constitutes an overt act
of rape.1avvphil.netOvert or external act has been defined
as some physical activity or deed, indicating the intention to
commit a particular crime, more than a mere planning or
preparation, which if carried out to its complete termination
following its natural course, without being frustrated by
external obstacles nor by the voluntary desistance of the
perpetrator, will logically and necessarily ripen into a
concrete offense.19Harmonizing the above definition to the
facts of this case, it would be too strained to construe
petitioner's act of pressing a chemical-soaked cloth in the
mouth of Malou which would induce her to sleep as an overt
act that will logically and necessarily ripen into rape. As it
were, petitioner did not commence at all the performance of
any act indicative of an intent or attempt to rape Malou. It
cannot be overemphasized that petitioner was fully clothed
and that there was no attempt on his part to undress Malou,
let alone touch her private part. For what reason petitioner
wanted the complainant unconscious, if that was really his
immediate intention, is anybody s guess. The CA maintained
that if the petitioner had no intention to rape, he would not
have lain on top of the complainant. Plodding on, the
appellate court even anticipated the next step that the
petitioner would have taken if the victim had been rendered
unconscious. Wrote the CA:The shedding of the clothes,
both of the attacker and his victim, will have to come later.
His sexual organ is not yet exposed because his intended
victim is still struggling. Where the intended victim is an
educated woman already mature in age, it is very unlikely
that a rapist would be in his naked glory before even starting
his attack on her. He has to make her lose her guard first, or
as in this case, her unconsciousness.20At bottom then, the
appellate court indulges in plain speculation, a practice
disfavored under the rule on evidence in criminal cases. For,
mere speculations and probabilities cannot substitute for
proof required to establish the guilt of an accused beyond
reasonable doubt.21In Perez vs. Court of Appeals,22 the
Court acquitted therein petitioner of the crime of attempted
rape, pointing out that: xxx. In the crime of rape, penetration
is an essential act of execution to produce the felony. Thus,
for there to be an attempted rape, the accused must have
commenced the act of penetrating his sexual organ to the
vagina of the victim but for some cause or accident other
than his own spontaneous desistance, the penetration,
however, slight, is not completed. xxx xxx xxx Petitioner s
act of lying on top of the complainant, embracing and kissing
her, mashing her breasts, inserting his hand inside her panty
and touching her sexual organ, while admittedly obscene
and detestable acts, do not constitute attempted rape absent
any showing that petitioner actually commenced to force his
penis into the complainant s sexual organ. xxx. Likewise in
People vs. Pancho,23 the Court held: xxx, appellant was
merely holding complainant s feet when his Tito Onio arrived
at the alleged locus criminis. Thus, it would be stretching to
the extreme our credulity if we were to conclude that mere
holding of the feet is attempted rape. Lest it be
misunderstood, the Court is not saying that petitioner is
innocent, under the premises, of any wrongdoing
whatsoever. The information filed against petitioner
contained an allegation that he forcefully covered the face of
Malou with a piece of cloth soaked in chemical. And during
the trial, Malou testified about the pressing against her face
of the chemical-soaked cloth and having struggled after

petitioner held her tightly and pinned her down. Verily, while
the series of acts committed by the petitioner do not
determine attempted rape, as earlier discussed, they
constitute unjust vexation punishable as light coercion under
the second paragraph of Article 287 of the Revised Penal
Code. In the context of the constitutional provision assuring
an accused of a crime the right to be informed of the nature
and cause of theaccusation,24 it cannot be said that
petitioner was kept in the dark of the inculpatory acts for
which he was proceeded against. To be sure, the information
against petitioner contains sufficient details to enable him to
make his defense. As aptly observed by then Justice Ramon
C. Aquino, there is no need to allege malice, restraint or
compulsion in aninformation for unjust vexation. As it were,
unjust vexation exists even without the element of restraint
or compulsion for the reason that this term is broad enough
to include any human conduct which, although not
productive of some physical or material harm, would unjustly
annoy or irritate an innocent person.25 The paramount
question is whether the offender s act causes annoyance,
irritation, torment, distress or disturbance to the mind of the
person to whom it is directed.26 That
Malou, after the incident in question, cried while relating to
her classmates what she perceived to be a sexual attack
and the fact that she filed a case for attempted rape proved
beyond cavil that she was disturbed, if not distressed by the
acts of petitioner. The penalty for coercion falling under the
second paragraph of Article 287 of the Revised Penal Code
is arresto menor or a fine ranging from P5.00 to P200.00 or
both. WHEREFORE, the assailed Decision of the Court of
Appeals affirming that of the Regional Trial Court of Manila,
is hereby REVERSED and SET ASIDE and a new one
entered ACQUITTING petitioner Renato D. Baleros, Jr. of
the charge for attempted rape. Petitioner, however, is
adjudged GUILTY of light coercion and is accordingly
sentenced to 30 days of arresto menor and to pay a fine of
P200.00, with the accessory penalties thereof and to pay the
costs. SO ORDERED.
PEOPLE OF THE PHILIPPINES, Appellee, vs. REGIE
LABIAGA, Appellant. D E C I S I O N CARPIO, J.:The Case
Before the Court is an appeal assailing the Decision1 dated
18 October 2011 of the Court of Appeals-Cebu (CA-Cebu) in
CA-G.R. CEB CR-HC No. 01000. The CA-Cebu affirmed
with modification the Joint Decision2 dated 10 March 2008 of
the Regional Trial Court of Barotac Viejo, Iloilo, Branch 66
(RTC), in Criminal Case No. 2001-155) convicting Regie
Labiaga alias "Banok" (appellant) of murder and Criminal
Case No. 2002-1777 convicting appellant of frustrated
murder. The Facts In Criminal Case No. 2001-1555,
appellant, together with a certain Alias Balatong Barcenas
and Cristy Demapanag (Demapanag), was charged with
Murder with the Use of Unlicensed Firearm under an
Information3which reads: That on or about December 23,
2000 in the Municipality of Ajuy, Province of Iloilo,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating
and helping one another, armed withunlicensed firearm, with
deliberate intent and decided purpose to kill, by means of
treachery and with evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault and shoot
JUDY CONDE alias JOJOwith said unlicensed firearm,
hitting her and inflicting gunshot wounds on the different
parts of her breast which caused her death thereafter.
CONTRARY TO LAW. The same individuals were charged
with Frustrated Murder with the Use of Unlicensed Firearm in
Criminal Case No. 2002-1777, under an Information4 which
states: That on or about December 23, 2000 in the

Municipality of Ajuy, Province of Iloilo, Philippines, and within

the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and helping one another,
armed withunlicensed firearm, with deliberate intent and
decided purpose to kill, by means of treachery and with
evident premeditation, did then and there willfully, unlawfully
and feloniously attack, assault and shoot Gregorio Conde
with said unlicensed firearm, hitting him on the posterior
aspect, middle third right forearm 1 cm. In diameter; thereby
performing all the acts of execution which would produce the
crime of Murder as a consequence, but nevertheless did not
produce it by reason of causes independent of the will of the
accused; that is by the timely and able medical assistance
rendered to said Gregorio Conde which prevented his death.
CONTRARY TO LAW. Alias Balatong Barcenas remained at
large. Both appellant and Demapanag pled not guilty in both
cases and joint trial ensued thereafter. The prosecution
presented four witnesses: Gregorio Conde, the victim in
Criminal Case No. 2002-1777; Glenelyn Conde, his
daughter; and Dr. Jeremiah Obaana and Dr. Edwin Jose
Figura, the physicians at the SaraDistrict Hospital where the
victims were admitted. The defense, on the other hand,
presented appellant, Demapanag, and the latters brother,
Frederick. Version of the prosecution
The prosecutions version of the facts is as follows: At
around 7:00 p.m. on 23 December 2000, Gregorio Conde,
and his two daughters, Judy and Glenelyn Conde, were in
their home at Barangay Malayu-an, Ajuy, Iloilo. Thereafter,
Gregoriostepped outside. Glenelyn was in their store, which
was part of their house. Shortly thereafter, appellant, who
was approximately five meters away from Gregorio, shot the
latter. Gregorio called Judy for help. When Judy and
Glenelyn rushed to Gregorios aid, appellant shot Judy in the
abdomen. The two other accused were standing behind the
appellant. Appellant said, "she is already dead," and the
three fled the crime scene. Gregorio and Judy were rushed
to the Sara District Hospital. Judy was pronounced dead on
arrival while Gregorio made afull recovery after treatment of
his gunshot wound. Dr. Jeremiah Obaana conducted the
autopsy of Judy. His report stated that her death was caused
by "cardiopulmonary arrest secondary to Cardiac
Tamponade due to gunshot wound."5Dr. Jose Edwin Figura,
on the other hand, examined Gregorio after the incident. He
found that Gregorio sustained a gunshot wound measuring
one centimeter in diameter in his right forearm and "abrasion
wounds hematoma formation" in his right shoulder.6Version
of the defense Appellant admitted that he was present during
the shooting incident on 23 December 2000. He claimed,
however, that he acted in self-defense. Gregorio, armed with
a shotgun, challenged him to a fight. He attempted to shoot
appellant, but the shotgun jammed. Appellant tried to wrest
the shotgun from Gregorio, and during the struggle, the
shotgun fired. He claimed that he did not know if anyone was
hit by that gunshot. Demapanag claimed that at the time of
the shooting, he was in D&D Ricemill, which is
approximately 14 kilometers away from the crime scene.
This was corroborated by Frederick, Demapanags brother.
The Ruling of the RTC In its Joint Decision, the RTC
acquitted Demapanag due to insufficiency of evidence.
Appellant, however, was convicted of murder and frustrated
murder. The dispositive portion of the Joint Decision reads:
WHEREFORE, in light of the foregoing, the court hereby
finds the accused Regie Labiaga @ "Banok" GUILTY beyond
reasonable doubt of the Crime of Murder in Crim. Case No.
2001-1555 and hereby sentences the said accused to
reclusion perpetua together with accessory penalty provided
by law, to pay the heirs of Judy CondeP50,000.00 as
civilindemnity, without subsidiary imprisonment in case of
insolvency and to pay the costs. In Crim. Case No. 2002-

1777, the court finds accused Regie Labiaga @ "Banok"

GUILTY beyond reasonable doubt of the crime of Frustrated
Murder and hereby sentences the said accused to a prison
term ranging from six (6) years and one (1) day of prision
mayor as minimum to ten (10) years and one (1) day of
reclusion temporal as maximum, together with the necessary
penalty provided by law and without subsidiary imprisonment
in case of insolvency and to pay the costs. Accuseds entire
period of detention shall be deducted from the penalty herein
imposed when the accused serves his sentence. For lack of
sufficient evidence, accused Cristy Demapanag is acquitted
of the crimes charged in both cases. The Provincial Warden,
Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed
to release accused Cristy Demapanag from custody unless
he is being held for some other valid or lawful cause. SO
ORDERED.7The Ruling of the CA-CebuAppellant impugned
the RTCs Joint Decision, claiming that "the RTC gravely
erred in convicting the appellant of the crime charged
despite failure of the prosecution to prove his guilt beyond
reasonable doubt."8 The CA-Cebu, however, upheld the
conviction for murder and frustrated murder.
The CA-Cebu also modified the Joint Decision by imposing
the payment of moral and exemplary damages in both
criminal cases. The CA-Cebu made a distinction between
the civil indemnity awarded by the RTC in Criminal Case No.
2001-1555 and the moral damages. The CA-Cebu pointed
out that:The trial court granted the amount of P50,000.00 as
civil indemnity in Criminal Case No. 2001-1555. It did not
award moral damages. Nonetheless, the trial court should
have awarded both, considering that they are two different
kinds of damages. For death indemnity, the amount of
P50,000.00 is fixed "pursuant to the current judicial policy on
the matter, without need of any evidence or proof of
damages. Likewise, the mental anguish of the surviving
family should be assuaged by the award of appropriate and
reasonable moral damages."9The dispositive portion of the
Decision of the CA-Cebu reads: WHEREFORE, premises
considered, the appeal is DENIED. The Joint Decision dated
March 10, 2008 of the Regional Trial Court, Branch 66, in
Barotac Viejo, Iloilo is AFFIRMED with MODIFICATIONS.
The dispositive portion of the said Joint Decision should now
read as follows: WHEREFORE, in light of the foregoing, the
court hereby finds the accused Regie Labiaga @ "Banok"
GUILTY beyond reasonable doubt of the crime of Murder in
Crim. Case No. 2001-1555 and hereby sentences the said
accused to reclusion perpetua together with the accessory
penalty provided by law, to pay the heirs of Judy Conde
P50,000.00 ascivil indemnity, P50,000.00 as moral damages
and P25,000.00 as exemplary damages, without subsidiary
imprisonment in case of insolvency and to pay the costs. In
Crim. Case No. 2002-1777 the court finds accused Regie
Labiaga @ "Banok" GUILTY beyond reasonable doubt of the
crime of Frustrated Murder and hereby sentences the said
accused to suffer the indeterminate penalty of eight (8) years
and one (1) day of prision mayor, as minimum, to fourteen
(14) years and eight (8) months of reclusion temporal, as
maximum, together with the accessory penalty provided by
law, to pay Gregorio Conde P25,000.00 as moral damages
andP25,000.00 as exemplary damages, without subsidiary
imprisonment in case of insolvency and to pay the costs
Accused(s) entire period of detention shall be deducted from
the penalty herein imposed when the accused serves his
sentence. For lack of sufficient evidence, accused Cristy
Demapanag is acquitted of the crime(s) charged in both
cases. The Provincial Warden, Iloilo Rehabilitation Center,
Pototan, Iloilo is hereby directed to release accused Cristy
Demapanag from custody unless he is being held for some
other valid or lawful cause.SO ORDERED. SO
ORDERED.10Hence, this appeal. The Ruling of the Court

Our review of the records of Criminal Case No. 2002-1777

convinces us that appellant is guilty of attempted murder and
not frustrated murder. We uphold appellants conviction in
Criminal Case No. 2001-1555 for murder, but modify the civil
indemnity awarded in Criminal Case No. 2001-1555, as well
as the award of moral and exemplary damages in both
cases. Justifying circumstance of self-defense Appellants
feeble attempt to invoke self-defense in both cases was
correctly rejected by the RTC and the CA-Cebu. This Court,
in People v. Damitan,11 explained that: When the accused
admits killing a person but pleads self-defense, the burden of
evidence shifts to him to prove by clear and convincing
evidence the elements of his defense. However, appellants
version of the incident was uncorroborated. His bare and
self-serving assertions cannot prevail over the positive
identification of the two (2) principal witnesses of the
prosecution.12
Appellants failure to present any other eyewitness to
corroborate
his testimony
and
his
unconvincing
demonstration of thestruggle between him and Gregorio
before the RTC lead us to reject his claim of self-defense.
Also, as correctly pointed out by the CA-Cebu, appellants
theory of self-defense is belied by the fact that: x x x The
appellant did not even bother to report to the police
Gregorios alleged unlawful aggression and that it was
Gregorio who owned the gun, as appellant claimed. And,
when appellant was arrested the following morning, he did
not also inform the police that what happened to Gregorio
was merely accidental.13Appellants claim that he did not
know whether Gregorio was hit when the shotgun
accidentally fired is also implausible. In contrast, we find that
the Condes account of the incident is persuasive. Both the
CA-Cebu and the RTC found that the testimonies of the
Condes were credible and presented in a clear and
convincing manner. This Court has consistently put much
weight on the trial courts assessment of the credibility of
witnesses, especially when affirmed by the appellate
court.14 In People v. Mangune,15 we stated that: It is well
settled that the evaluation of the credibility of witnesses and
their testimonies is a matter best undertaken by the trial
court because of its unique opportunity to observe the
witnesses first hand and to note their demeanor, conduct,
and attitude under grilling examination. These are important
in determining the truthfulness of witnesses and in
unearthing the truth, especially in the face of conflicting
testimonies. For, indeed, the emphasis, gesture, and
inflection of the voice are potent aids in ascertaining the
witness credibility, and the trial court has the opportunity to
take advantage of these aids.16Since the conclusions made
by the RTC regarding the credibility of the witnesses were
not
tainted
with
arbitrariness
or
oversight
or
misapprehension of relevant facts, the same must be
sustained by this Court. Attempted and Frustrated Murder
Treachery was correctly appreciated by the RTC and CACebu. A treacherous attack is one in which the victim was
not afforded any opportunity to defend himself or resist the
attack.17 The existence of treachery is not solely determined
by the type of weapon used. If it appears that the weapon
was deliberately chosen to insure the execution of the crime,
and to render the victim defenseless, then treachery may be
properly appreciated against the accused.18In the instant
case, the Condes were unarmed when they were shot by
appellant. The use of a 12-gauge shotgun against two
unarmed victims is undoubtedly treacherous, as it denies the
victims the chance to fend off the offender. We note,
however, that appellant should be convicted of attempted
murder, and not frustrated murder in Criminal Case No.
2002-1777.Article 6 of the Revised Penal Code defines the
stages in the commission of felonies: Art. 6. Consummated,

frustrated, and attempted felonies. Consummated felonies

as well as those which are frustrated and attempted, are
punishable. A felony is consummated when all the elements
necessary for its execution and accomplishment are present;
and it is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence
but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator. There is an
attempt when the offender commences the commission of a
felony directly by overt acts, and does not perform all the
acts of execution which should produce the felony by reason
of some cause or accident other than his own spontaneous
desistance. In Serrano v. People,19 we distinguished a
frustrated felony from an attempted felony in this manner: 1.)
In a frustrated felony, the offender has performed all the acts
of execution which should produce the felony as a
consequence; whereas in an attempted felony, the offender
merely commences the commission of a felony directly by
overt acts and does not perform all the acts of execution. 2.)
In a frustrated felony, the reason for the non-accomplishment
of the crime is some cause independent of the will of the
perpetrator; on the other hand, in an attempted felony, the
reason for the non-fulfillment of the crime is a cause or
accident other than the offenders own spontaneous
desistance.20
In frustrated murder, there must be evidence showing that
the wound would have been fatal were it not for timely
medical intervention.21 If the evidence fails to convince the
court that the wound sustained would have caused the
victims death without timely medical attention, the accused
should be convicted of attempted murder and not frustrated
murder.In the instant case, it does not appear that the wound
sustained by Gregorio Conde was mortal. This was admitted
by Dr. Edwin Figura, who examined Gregorio after the
shooting incident: Prosecutor Con-El: Q: When you
examined the person of Gregorio Conde, can you tell the
court what was the situation of the patient when you
examined him? A: He has a gunshot wound, but the patient
was actually ambulatory and not in distress. x x x x Court (to
the witness) Q: The nature of these injuries, not serious? A:
Yes, Your Honor, not serious. He has also abrasion wounds
hematoma formation at the anterior aspect right
shoulder.22Since Gregorios gunshot wound was not mortal,
we hold that appellant should be convicted of attempted
murder and not frustrated murder. Under Article 51 of the
Revised Penal Code, the corresponding penalty for
attempted murder shall be two degrees lower than that
prescribed for consummated murder under Article 248, that
is, prision correccional in its maximum period to prision
mayor in its medium period. Section 1 of the Indeterminate
Sentence Law provides: x x x the court shall sentence the
accused to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of
the Revised Penal Code, and the minimum which shall be
within the range of the penalty next lower to that prescribed
by the Code for the offense.1wphi1Thus, appellant should
serve an indeterminate sentence ranging from two (2) years,
four (4) months and one (1) day of prision correccional in its
medium period to eight (8) years and one (1) day of prision
mayor in its medium period. Award of damages In light of
recent jurisprudence, we deem it proper to increase the
amount of damages imposed by the lower court in both
cases. In Criminal Case No. 2001-1555, this Court hereby
awards P75,000.00 as civil indemnity23andP30,000.00 as
exemplary damages.24 The award of P50,000.00 as moral
damages in the foregoing case is sustained. Appellant is
also liable to pay P40,000.00 as moral damages and

P30,000.00 as exemplary damages, in relation to Criminal

Case No. 2002-1777.WHEREFORE, we AFFIRM the 18
October 2011 Decision of the Court of Appeals-Cebu in CAG.R. CEB CR-HC No. 01000 with MODIFICATIONS. In
Criminal Case No. 2002-1777, we find that appellant Regie
Labiaga is GUILTY of Attempted Murder and shall suffer an
indeterminate sentence ranging from two (2) years, four (4)
months and one (1) day of prision correccional as minimum,
to eight (8) years and one (1) day of prision mayor as
maximum, and pay P40,000.00 as moral damages and
P30,000.00 as exemplary damages. In Criminal Case No.
2001-1555, appellant shall payP75,000.00 as civil indemnity,
P50,000.00 as moral damages, and P30,000.00 as
exemplary damages. SO ORDERED.

unzipped his pants and laid on top of her while Escuadro

held her legs Quianola "started to pump, to push andpull" 5
even as Catalina still tried desperately to free herself from
him. She felt his organ "on the lips of (her) genitalia." 6
When Quianola had satisfied his lust, Escuadro took his
turn by placing himself on top of Catalina. Catalina could feel
the sex organ of Escuadro "on the lips of (her) vulva" 7 while
he made a push and pull movement. Quianola, who stood
by, kept on smoking a cigarette. Escuadro and Quianola
scampered immediately after Catalina's ordeal. Failing to
find her pair of pants and panty. Catalina was left wearing
her T-shirt and brassieres. Catalina just then sat down, not
knowing what to do, until she finally started to run home
fearing that she might be followed. Upon reaching home,
Catalina went upstairs and, afraid that the culprit would still
come after her, hid herself behind the door. Baffled by
Catalina's strange behavior, her mother and her elder sister
took turns interrogating her. Catalina finally said that she was
raped but she would not reveal the names of the persons
who had committed the dastardly act because of their
threat.1wphi1.ntGuillermo Zozobrado learned from his
wife, Catalina's sister, that Catalina had been raped. He
promptly repaired to the municipal hall of Dumanjug to report
the crime. Policemen were immediately dispatched to the
Carcillers' residence. Still in a state of shock, Catalina initially
kept mum about it; later, when the police officers returned at
daytime, she was able to respond to questions and to
disclose that "Petoy," referring to Agapito Quianola, and
"Botiquil," the other accused Eduardo Escuadro, were the
persons who ravished her. The officers later invited her to
the police station to identify a suspect whom she positively
identified to be "Botiquil" or Eduardo Escuadro. Living Case
Report No. 94-MI-7,8 prepared by Dr. Tomas P. Refe,
medico-legal officer of the National Bureau of Investigation
("NBI") of Region 7, Central Visayas, who conducted the
physical examination of Catalina on 07 March 1994, showed
that there was "no evidence of extragenital physical injury
noted on the body of the Subject." 9 The genital examination
yielded the following findings on the victim: Pubic hairs, fully
grown, moderately dense. Labiae mejora and minora, both
coaptated. Fourchette, tense. Vestibular mucosa, pinkish.
Hymen, moderately thick, wide, intact. Hymenal orifice,
annular, admits a tube 1.8 cms. in diameter with moderate
resistance. Vaginal walls, tight and rogusities, prominent. 10
(Emphasis supplied.) The report concluded that the hymenal
orifice, about 1.8 cms. in diameter, was "so small as to
preclude complete penetration of an average-size adult
penis in erection without producing laceration." 11Against the
evidence submitted by the prosecution, the accused, in their
defense, interposed alibi, ill motive on the part of an "uncle"
of the complainant, and insufficient identification. Accused
Agapito Quianola, a member of the Philippine National

Police stationed at Naga, Cebu, testified that it was his dayoff on 05 March 1994. At about 8:30 a.m., he and his wife,
Leticia, who had just arrived in Naga from Cebu City,
proceeded to the house of his parents in Panla-an,
Dumanjug, to attend to the construction of their unfinished
house. Quianola helped Vidal Laojan and Nicasio Arnaiz
in cementing the kitchen floor of theirhouse. The work was
finished at around 11:00 o'clock in the evening. After Vidal
and Nicasio had gone home, Quianola went to bed with his
wife around midnight until the following morning of 06 March
1994. He denied having been in the company of his coaccused, Escuadro a.k.a. "Botiquil," at any time during the
whole day and night of 05 March 1994. According to him,
Guillermo Zozobrado, Catalina's brother-in-law, concocted
the rape charge to get even with him because of an incident
in August 1993 at a fiesta dance in upper Tangil, Panla-an,
when George Camaso, the husband of his sister Jinga, got
into trouble with Samuel Escuadro. Quianola tried to pacify
George Camaso who was then drunk but Camaso suddenly
hit him. He parried the blow and slapped Camaso on the
face. Zozobrado joined the fray and tried to hit Quianola but
because Zozobrado was drunk, hestumbled when Quianola
had pushed him. 12 He admitted that he had no
misunderstanding of any kind with the complainant and her
parents themselves. Leticia Quianola the wife of accused
Agapito Quianola, testified to attest to her husband's "good
moral character" and to corroborate his testimony. Leticia
said that after the workers had left their house at around
midnight she and appellant talked for a while and then made
love. Vidal Laojan the carpenter was presented to state that
Quianola was at home helping the carpenters until past 11
o'clock on the night of the incident. Nicasio Arnaiz a farmer
and store cutter added that work in the Quianola's house
had started late in the morning of 05 March 1994 since they
still waited for Quianola and his wife Patsy to arrive. Work
in the house, he said had stopped at about 11 o'clock that
night.
Accused Eduardo Escuadro a.k.a. "Botiquil" declared that at
about seven o'clock in the evening of 05 March 1994he and
Pablito Cuizon, Jr., went fishing in Tangil Dumanjug Cebu
until about ten o'clock that evening. After partaking of supper
at around 11:30 p.m., they had a drinking spree and went to
bed at 12:00 midnight waking up at 6:30 a.m. the following
day. He denied having been in the company of Quianola
and insisted that the rapecharge had been the result of a
mere mistaken identity. Pablito Cuizon, Jr., corroborated
Escuadro's story abouttheir being together up until they
parted company after a drinking spree. The defense also
presented the two police officers, PO2 William Beltran and
SPO2 Liberato Mascarinas, Jr., who took part in the
investigation of the crime, and Margarito Villaluna, a suspect
at the early stages of the policeinvestigation who was in the
frequent company of the accused. According to PO2 Beltran,
barangay tanods Gilly and George Zozobrado reported the
rape incident to him at midnight of 05 March 1994. He
entered the report inthe "temporary blotter because the
suspect was unknown then." 13Accompanied by the two
tanods, he went to the residence of the victim and when he
asked Catalina if she was able to recognize the malefactors,
she kept silent and continued crying. SPO2 Liberato
Mascarinas, Jr., asserted that, in the early morning of 06
March 1994, Gilly and George Zozobrado went to the police
station and named "Pitoy Quianola, Margarito Villaluna and
Batiquil or Escuadro" as being the suspects in the rape
incident. While on their way to the latter's respective
residences, the team met Catalina Carciller and party who
were themselves about to repair to the police headquarters.
Mascarinas asked Catalina about the identities of the rapists.
She named "Pitoy Quianola" but said she did not know the

names of "the other persons" although she could recognize

them by face. Botiquil was later brought to the police station
Pitoy Quianola by that time had already gone to Naga.
Margarito Villaluna declared that he had been in Panla-an,
Negros Oriental, from 05 March 1994 until 09 March 1994
until harvesting corn. His sister, Mercy Villaluna testified that,
in the morning of 06 March 1994, policemen in the company
of barangay tanods including Gilly Zozobrado and his son
Marcelo, came to their house looking for her
brotherMargarito. Shortly after the group had left, another
policeman, in the company of one Erwin Quirante also came
looking for her brother. The arrival of the policemen
prompted her to verify from the Coast Guard whether
herbrother had indeed left for Negros Oriental. She was told
that her brother was in the boat that departed for Negros in
early dawn of 02 March 1994. Still unsatisfied with the result
of her queries, Mercy went to Guinholngan where she met
Margarito. Following the trial and submission of the case for
decision, the court a quo, 14 on 01 March 1996, found the
two accused guilty beyond reasonable doubt of the crime of
"frustrated rape" and sentenced them accordingly; thus:
WHEREFORE, premises considered, the Court hereby finds
guilty beyond reasonable doubt the two accused Agapito
"Petoy" Quianola and Eduardo Escuadro, alias "Batiquil",
as principals by direct participation and indispensable
cooperation of the frustrated rape of the complaining witness
Catalina "Cathy" Carciller, and considering the attendance in
the commission of the crime of the six (6) aggravating
circumstances aforementioned, not offset by any mitigating
circumstance, hereby sentences these two accused
individually toReclusion Perpetua of Forty (40) Years, plus all
the accessory penalties prescribed by law, and to pay the
offended party civil indemnity in the amount of P50,000.00
each. The Court also hereby recommends that under no
circumstance should the two accused be granted parole or
conditional or absolute pardon, in view of the extreme moral
turpitude and perversity which they exhibited in the
commission of the crime not until they shall have served
at least thirty (30) years of the full range of forty (40) years of
reclusion perpetuameted out against them in this case. They
should be interdicted for that length of time from the usual
and normal liasons (sic) and dealings with their fellowmen
and their community so as to protect the latter from their
pernicious and insidious examples. This is the most
generous and charitable recommendation that the Court can
make for these two malefactors, short of imposing upon
them the supreme penalty of death, which the Court in other
times and conditions might have been compelled, as a
matter of inexorable duty, to mete out against them, in
obedience to the implacable and peremptory demands and
dictates of retributive justice. Costs shall also be taxed
against the two accused. SO ORDERED. 15The trial court
ruled that the accused were liable for the crime of frustrated
rape "with an eye to extending to the two accused the benefit
of the principle that in case of doubt criminal justice naturally
leans in favor of the milder form of penalty" 16 but that,
because of the existence of "at least six (6) aggravating
circumstances, 17 not offset
by any mitigating circumstance," 18the accused should each
be meted the penalty of reclusion perpetua. It explained:
Now, the crime of rape had it been consummated and had it
been committed with the attendance of the above-mentioned
aggravating circumstances, with absolutely no offsetting
mitigating circumstances, ought to be punished with the
mandatory penalty of death under the pertinent provisions of
Section 11 and 23 of Republic Act No. 7659, which amended
Article 335 of the Revised Penal Code, and further amplified
the aggravating circumstances enumerated in Article 14 of
the same code. But because the crime committed here is

"merely" frustrated rape for the reasons heretofore

discussed, attended by the aforementioned six aggravating
circumstances, not offset by even one mitigating
circumstance, the proper penalty to be imposed upon the
two principals, the two accused herein, both co-conspirators,
by direct participation and indispensable cooperation, of the
frustrated rape, should be one degree lower than the
indivisible afflictive penalty of death, which is also the
indivisible afflictive penalty of reclusion perpetuawhich, under
Section 21 of the amendatory statute, shall range from
twenty years and one day to forty years. 19In their appeal to
this court, the two convicted accused interposed the
following assignment of errors: I. THE COURT ERRED IN
DISREGARDING THE INCONSISTENCIES OF THE
PROSECUTION WITNESSES WHICH IF THOROUGHLY
CONSIDERED COULD HAVE ALTERED THE DECISION IN
FAVOR OF THE ACCUSED. II. THE COURT ERRED IN
BELIEVING THE TESTIMONY OF COMPLAINING
WITNESS CARCILLER EVEN IF THE SAME WERE
CLOUDED WITH GRAVE INCONSISTENCIES. III. THE
COURT ERRED BY DISREGARDING THE TESTIMONIES
OF ACCUSED AND BY DISMISSING IT AS WEAK ALIBIS.
IV. THE COURT ERRED IN REFUSING TO CONSIDER
THE REBUTTAL EVIDENCE OF DEFENSE WITNESSES
EVEN IF THE SAME WERE NOT CONTROVERTED. V.
THE COURT ERRED IN FAILING TO GIVE WEIGHT TO
THE TESTIMONIES OF THE POLICEMEN WHICH WERE
UNCONTROVERTED AND WITH PRESUMPTIONOF
REGULARITY IN THE PERFORMANCE OF DUTIES. VI.
THE COURT ERRED IN FINDING THE ACCUSED GUILTY
OF FRUSTRATED RAPE AND SENTENCING THEM TO 40
YEARS of RECLUSION PERPETUA. 20In reviewing rape
cases, this Court must again say that it has been continually
guided by the principles (a) that an accusation of rape can
be made with facility; it is difficult to prove, but more difficult
for the person accused, though innocent, to disprove; (b)
that in view of the intrinsic nature of the crime which usually
involves only two persons, the testimony of the complainant
must be scrutinized with extreme caution; and (c) that the
evidence for the prosecution must stand or fall on its own
merits and cannot be allowed to draw strength from the
weakness of the evidence of the defense.21 Expectedly,
courts would scrupulously examine the testimony of the
complainant with the thought always in mind that the
conviction of the accused would have to depend heavily on
the credibility of the offended woman. It is not much different
in this instance for, at bottom, appellants assail the credibility
of the prosecution witnesses, particularly that of the
complainant, in seeking a reversal of the judgment of
conviction. The doctrine, then again, is that the findings of
the trial court on credibility are entitled to highest respect and
will not be disturbed on appeal in the absence of any clear
showing that the trial court has "overlooked, misunderstood
or misapplied facts or circumstances of weight and
substance" that could have consequential effects. The
stringency with which appellate tribunals have observed this
rule is predicated on the undisputed vantage of the trial court
in the evaluation and appreciation of testimonial
evidence.22In assailing Catalina's credibility, as against the
assessment made by the trial court which has described the
victim's testimony to be impressed with "candor, spontaneity
and naturalness," appellants theorize that the sexual
intercourse, if indeed true, could have only been committed
against Catalina in a sitting position, contrary
to her declaration of having been made to lie on the ground
because her T-shirt, marked Exhibit E, is "not tainted with
mud at all especially the back if she were made to lie
down."23The Court finds this so-called incongruity
committed by the complainant to a feeble attempt to discredit

her testimony. The Court is convinced of the sexual assault

made against her. Here follows the testimony of Catalina on
this score. Q You said that you were forced by Agapito
Quianola to sit down, where were you forced to sit down, in
what particular place or area? A Just behind the back of the
school. Q You were forced to sit down on the ground? A Yes.
Q In effect did you sit down as ordered by him? A I resisted.
COURT: Q How did you resist? A I said I will not sit down.
TRIAL PROS. NAZARENO: Q What did Agapito Quianola
do, if any, when you resisted? A He pointed his gun to me. Q
When he pointed a gun at you, referring to Agapito
Quianola, what did he say? A He said that if I will not
accede to what he wanted me to do and if I will shout, he will
kill me. Q What did you do when you heard those words
coming from Agapito Quianola? A I cried. Q When you cried
what did Agapito Quianola do, if any? A He ordered
Eduardo Escuadro to remove my pants and panty. COURT
Q Why what were you wearing at that time? A Pants. Q What
kind of pants? A Denim. TRIAL PROS. NAZARENO Q Now,
after Agapito Quianola ordered Eduardo Escuadro to
remove your pants and panty what did Eduardo Escuadro
do, if any?
A He did what Agapito Quianola commanded him. COURT:
Q How about you, what (sic) were you doing at that time? A I
cried and tried to free myself. TRIAL PROS. NAZARENO Q
Now, when Eduardo Escuadro removed your pants and
panty where was Agapito Quianola and what did Agapito
Quianola do? A He unzipped his pants. Q After that what
happened? In effect, were your pants and panty removed by
Eduardo Escuadro? A Yes. Q Now, you said Agapito
Quianola opened his fly or unzipped his pants, when
Agapito Quianola already unzipped his pants, what did he
do? A He approached me and lay on top of me. Q When
Agapito Quianola approached you and laid on top of you,
what did Eduardo Escuadro do? A He was holding on to my
legs. Q Then what happened after that? A Agapito Quianola
started to pump, to push and pull. Q What did you do when
Agapito Quianola was already on top of you and made a
push and pull on you? A I struggled to free myself. Q After
that what happened when Agapito Quianola was already on
top of you and kept on making a push and pull? A Eduardo
Escuadro took his turn. Q What do you mean by took his
turn, please specify what did Escuadro do? He did what
Agapito had just done to you? COURT: Q What did Agapito
Quianola do to you actually? A He lay on top of me and did
a push and pull movement. TRIAL PROS. NAZARENO:
Q When Agapito Quianola lay on top of you and made a
push and pull movement, do you mean to say that he
inserted his penis into your vagina? A I felt something hard
on the lips of my genitals. Q What is this something hard that
you felt that touched the lips of your vagina or vulva? A His
organ or penis. Q When Agapito Quianola unzipped his
pants, did you see his penis? A Yes. Q You also said that
Eduardo Escuadro took his turn and laid on top of you and
made a push and pull on you, specifically what did Eduardo
Escuadro do? A The same as Agapito did, he was doing the
push and pull movement. Q What did you feel when Eduardo
Escuadro was already on top of you and made a push and
pull on you? A I held my breath. Q Did you see the penis
Eduardo Escuadro? A No. Q Now, did you feel that the penis
of Escuadro inserted into your vagina? A I felt it on the lips of
my vulva.24The fact that she must have been lying down
when violated has even more been made clear by the
defense on cross-examination. Thus: Q Did you say any
testimony in the direct that you were on the ground at the
time when you were raped by these two accused? A They
pointed a gun at me and ordered me to lie down.Q Lie on the
ground? A Yes. 25And on why her T-shirt was no longer

soiled with mud when presented in court, Catalina creditably

explained that when it was offered in evidence, she had
already dusted and rid it of grass particles. At all events,
whetherappellants spent their lust on Catalina in a sitting
position or lying down would not be of any real moment
forwhat remained clear, established rather convincingly by
the prosecution, was that appellants had forced carnal
knowledge of the victim. The reliance being made by
appellants on the affidavit of Catalina in order to discredit her
is likewise futile. The Court has consistently ruled that
discrepancies between the statement of an affiant in an
affidavit and those made on the witness stand do not
necessary downgrade testimonial evidence. Ex parte
affidavits are usually incomplete and frequently prepared by
an administrating officer and cast in the latter's language and
understanding of what the affiant has said. Quite frequently,
the affiant would simply sign the affidavit after it has been
read to him or to her.26
Not much differently could be said of Catalina's identification
of appellants as being her ravishers. On the witness stand,
Catalina explained that while she gave appellant Escuadro's
nickname "Botiquil" to the investigating police officer, the
latter did not mention that name in the affidavit because,
according to the officer, the affidavit was merely a "shortcut".
In her testimony, she was categorical that she had known
appellants even before the rape incident. She knew that
appellant Quianola was a policeman and a "popular
maldito" (nasty) in the locality.28 Catalina knew that
appellant Escuadro, a resident of Punla-an far from her own
abode, was commonly known as "Batiquil" (Botiquil). She
could not have been mistaken in the identification of the
culprits since appellants themselves held a flashlight which
they used that added to the illumination shed by a
fluorescent lamp and two bulbs on the side of a house only
some meters away. As regards the allegation of appellants
that the testimony of Catalina contradicted in certain
respects that of prosecution witness Rufo Ginto, suffice it to
say that the testimony of Rufo Ginto (who was noted by the
trial court not to be "an intelligent witness"29) was merely
corroborative in nature and neither dealt with the actual
commission of the crime nor delved on material points.
Catalina's candid and straightforward narration of the two
sexuals assaults perpetrated on her on the night of the
incident unmistakably deserves credence. It is unbelievable
that a young barrio lass would concoct a tale of defloration
publicly admit having been ravished and her honor tainted
allow the examination of her private parts, and undergo all
the trouble and inconvenience not to mention the trauma and
scandal of a public trial had she not in fact been raped and
truly moved to protect and preserve her honor as well as to
obtain justice, for the wicked acts committed against her.30
There is no plausible reason why Catalina should testify
against appellants, imputing upon them so grave a crime as
rape if it did not happen. This Court has consistently held
that where there is no evidence to show any dubious reason
or improper motive why a prosecution witness should testify
falsely against the accused or implicate him in a serious
offense, the testimony deserves faith and credit.31 So, also,
the Court has repeatedly said that the lone testimony of the
victim in a rape case, if credible, is enough to sustain a
conviction.32The positive identification of appellants as
being the perpetrators of the crime effectively effaces their
alibi.33 The rule is that affirmative testimony is far weightier
than a mere denial, especially when it comes from the mouth
of a credible witness.34 Moreover, alibi might be aptly
considered only when an accused has been shown to be in
some other place at the crucial time and that it would have
been physically impossible for him to be at the locus criminis
or its immediate vicinity at the time of the commission of the

crime.35In the context it is used in the Revised Penal Code,

"carnal knowledge" unlike its ordinary connotation of sexual
intercourse, does not necessarily require that the vagina be
penetrated or that the vagina be penetrated or that the
hymen be ruptured.36 The crime of rape is deemed
consummated even when the man's penis merely enters the
labia or lips of the female organ37 or, as once so said in a
case, by the "mere touching of the external genitalia by a
penis capable of consummating the sexual act."38In People
vs. Escober,39 in convicting a father of having raped twice
his 1l-year-old daughter, the Court has said: While the
evidence may not show full penetration on both occasions of
rape the slightest penetration is enough to consummate the
offense in fact there was vulva penetration in both cases.
The fact that the hymen was intact upon examination does
not belie rape for a broken hymen is not an essential
element of rape not does the fact that the victim has
remained a virgin negate the crime. What is fundamental is
that the entrance of at least the introduction, of the male
organ into the labia of the pudendum is proved. As in the
case at bar it can be said that there was penetration
although incomplete, and it was sufficient to prove carnal
knowledge of a child under twelve years of age. A medical
examination is not an indispensable element in a
prosecution for rape. The accused may be convicted on the
sole basis of complainant's testimony of credible and the
findings of the medico-legal officer do not disprove the
commission of rape. There are half measures or even
quarter measures nor is their gravity graduated by the inches
of entry. Partial penile penetration is as serious as full
penetration. The rape is deemed consummated in either
case. In a manner of speaking, bombardment of the
drawbridge is invasion enough even if the troops do not
succeed in entering the castle.40(Emphasis supplied.) In
another case, People vs. Gabayton,41 where the accused
has been found guilty of raping his daughter then less than
twelve years old, the Court has observed:
Accused appellant draws attention to the fact that based on
the medico-legal findings, there is no showing that his
daughter's hymen was penetrated, nor was there any
evidence of injuries inflicted. However, jurisprudence is wellsettled to the effect that for rape to be consummated, rupture
of the hymen is not necessary, nor is it necessary that the
vagina sustained a laceration especially if the complainant is
a young girl. The medical examination merely stated that the
smallness of the vaginal orifice only precludes COMPLETE
penetration. This does not mean that rape has not been
committed. The fact that there was no deep penetration of
the victim's vagina and that her hymen was intact does not
negate rape, since this crime is committed even with the
slightest penetration of a woman's sex organ. Presence of a
laceration in the vagina is not an essential prerequisite to
prove that a victim has been raped. Research in medicine
even points out that negative findings are of no significance,
since the hymen may not be torn despite repeated coitus. In
fact, many cases of pregnancy have been reported in
women with unruptured hymen. Entry of the labia or lips of
the female organ merely, without rupture of the hymen or
laceration of the vagina, is sufficient to warrant conviction.
What must be proven in the crime of rape is merely the
introduction of the male organ into the labia of the pudendum
and not the full penetration of the complainant's private part.
As we held in Baculi: "there could still be a finding of rape
even if despite the repeated intercourse over a period of four
years the complainant still retained an intact hymen without
signs of injury." In the case at bench, Summer's testimony
has established without a doubt that accused-appellants
organ managed to come into contact with her vagina,
enough to cause her pain.42 (Emphasis supplied.) In its

recent holding in People vs. Echegaray,43 the Court has

declared that "a mere knocking at the doors of the pudenda,
so to speak, by the accused's penis suffices to constitute the
crime of rape as full entry into the victim's vagina is not
required to sustain a conviction." The trial court appellants
only frustrated rape, ruled that there was no "conclusive
evidence of penetration of the genital organ of the offended
party 44in the (a) Catalina had admitted that she did not
spread her legs and (b) the medico-legal officer's findings
showed she did not sustain any extragenital injuries and her
hymenal orifice was so small that an erect average-size
penis would not have completely penetrated it would causing
laceration. It would seem that the trial court failed to consider
Catalina's testimony in its entirely she testified: Q And when
he mounted on top of you Escuadro was holding on to your
two feet and all the time that he Quianola, was making a
push and pull on you Escuadro was holding on to your two
feet? A Yes. COURT: Q Your two feet? A Yes. ATTY. CREEP:
Q Now in other words since your two feet were held and
Eduardo Escuadro was waving (sic [moving]) slightly to your
left as you demonstrated your two feet became closer to
each other, it could not be spread? A I was still struggling at
that time to free myself and I do not know whether my legs
were speared out or not. Q Did you spread your legs? A No.
Q Since you did not spread your legs and Quianola was on
top of you, did you not bother to pull your legs, kick the one
holding it and pushed Quianola or do any harm to him?
A No, because I was already frightened considering that
there were two of them and they were armed.45This
testimony would indicate that Catalina, considering her
struggle to free herself, understandably failed to notice
whether her legs were spread apart or close together during
her ordeal. What she did distinctly recall, however, was that
Escuadro had kept holding both her legs when Quianola
took her. Thus Q At that time when he unzipped and your
hands were free, did you not attempt to hold his penis
forcibly so that he will refrain from raping you? A I was not
able to think of that because of my fear and besides that
Eduardo Escuadro was holding on to both my legs. Q Now if
Eduardo Escuadro was the one holding on both your two
legs how was Quianola able to place himself on top of you?
A It was because Eduardo Escuadro had already released
my hands and Quianola was the one holding on to it
already, afterwards Eduardo Escuadro transferred to hold
both my legs.46Let it be said once again that, as the
Revised Penal Code presently so stands, there is no such
crime as frustrated rape. In People vs. Orita,47 the Court
has explicitly pronounced: Clearly, in the crime of rape, from
the moment the offender has carnal knowledge of his victim,
he actually attains his purpose and, from that moment also
all the essential elements of the offense have been
accomplished. Nothing more is left to be done by the
offender, because he has performed the last act necessary
to produce the crime. Thus, the felony is consummated. In a
long line of cases (People vs. Oscar, 48 Phil. 527; People vs.
Hernandez, 49 Phil. 980; People vs. Royeras, G.R. No. L31886, April 29, 1974, 56 SCRA 666; People vs. Amores,
G.R. No. L-32996, August 21, 1974, 58 SCRA 505). We
have set the uniform rule that for the consummation of rape,
perfect penetration is not essential. Any penetration of the
female organ by the male organ is sufficient. Entry of the
labia or lips of the female organ, without rupture of the
hymen or laceration of the vagina is sufficient to warrant
conviction. Necessarily, rape is attempted if there is no
penetration of the female organ (People vs. Tayaba, 62 Phil.
559, People vs. Rabadan, et al., 53 Phil. 694; Unites States
vs. Garcia, 9 Phil. 434) because not all acts of execution was
performed. The offender merely commenced the commission
of a felony directly by overt acts. Taking into account the

nature, elements and manner of execution of the crime of

rape and jurisprudence on the matter, it is hardly conceivable
how the frustrated stage in rape can ever be committed. Of
course, We are aware of our earlier pronouncement in the
case of People vs. Eriia, 50 Phil. 998 [1927] where, We
found the offender guilty of frustrated rape there being no
conclusive evidence of penetration of the genital organ of the
offended party. However, it appears that this is a "stray"
decision inasmuch as it has not been reiterated in Our
subsequent decisions. Likewise, We are aware of Article 335
of the Revised Penal Code, as amended by Republic Act No.
2632 (dated September 12, 1960) and Republic Act No. 4111
(dated March 29, 1965) which provides, in its penultimate
paragraph, for the penalty of death when the rape is
attempted or frustrated and a homicide is committed by
reason or on the occasion thereof. We are of the opinion that
this particular provision on frustrated rape is a dead
provision. The Eriia case, supra, might have prompted the
law-making body to include the crime of frustrated rape in
the amendments introduced by said laws.48The Court is not
unaware that Republic Act No. 7659, amending Article 335 of
the Revised Penal Code, has retained the provision
penalizing with reclusion perpetua to death an accused who
commits homicide by reason or on the occasion of an
attempted or frustrated rape. Until Congress sees it fit to
define the term frustrated rape and thereby penalize it, the
Court will see its continued usage in the statute book as
being merely a persistent lapse in language. Each appellant
is liable for two counts of consummated rape on account of a
clear conspiracy between them shown by their obvious
concerted efforts to perpetrate, one after the other, the
crime. Each of them therefore is
responsible not only for the rape committed personally by
him but also for the rape committed by the other as
well.49Under Article 335 of the Revised Penal Code as
amended by Republic Act No. 7659 when rape is committed
with the use of a deadly weapon or by two persons, the
crime is punishable by reclusion perpetuata to death. Even
while the information has failed to allege the use of a deadly
weapon in the commission of the rape, appellants can,
nonetheless, be held accountable under that provision since
the information has likewise averred that the "above-named
accused," referring to the two appellants, have
conspiratorially committed the crime. Article 14 of the
Revised Penal Code, 50 includes among its enumeration of
generic aggravating circumstances the fact that the crime is
committed with the aid of armed men or persons who insure
or afford impunity. The factalone, then, that a malefactor has
sported a firearm does not, by itself, militate to aggravate
crime. As regards appellant Quianola, the aggravating
circumstance of his being a member of the Philippine
National Police would have exposed him to the penalty of
death51under the amendatory provisions of Article 335 by
Republic Act No. 7659, had this circumstance been properly
alleged in the information. The description by the trial court
of appellants as being "powerfully, built, brawny and meanlooking" as against the "short slender easily cowed" 15-yearold victim would not here warrant a finding that abuse of
superior strength has aggravated the commission of the
crime. The law should be deemed to have already
considered this circumstance in qualifying the crime to its
"heinous" character rendering in that context abuse of
superior strength has an inherent element thereof. Neither
may nighttime be considered an aggravating circumstance in
the absence of proof of its having been deliberately sought
out by appellants to by appellants to facilitate the
commission of the offense.52 Craft fraud or disguise53 is a
species of aggravating circumstance that denotes intellectual

trickery or cunning resorted to by an accused to aid in the

execution of his criminal design or to lure the victim into a
trap and to conceal theidentity of the accused. The fact that
one of the appellants has pretended to be a member of the
New People's Army does not necessarily imply the use of
craft, fraud or disguise, in the commission of the crime
Finally, the Court does not subscribe to the view of the trial
court that accused-appellants have employed means which
added ignominy to the natural effects of the crime,
particularly in "stripp(ing) the victim of her denim parts and
panties and then sending her home in this humiliating and
distressing condition.54 There is nothing on record that even
remotely suggests that accused-appellants so deliberately
sought to leave Catalina with bottoms bare that she might be
left alone in shame with only her T-shirt and brassieres on.
The absence of any aggravating circumstance in the
commission of a crime punishable by two (2) indivisible
penalties, such as reclusion perpetua to death would justify
even without any mitigating circumstance, the imposition of
the lesser penalty of reclusion perpetua. The trial court has
ordered appellants to each pay the offended party and
indemnity in the amount of P50,000.00. Prevailing
jurisprudence55 likewise allows the victim is have an award
of moral damages for having evidently undergone mental
physical and psychological sufferings. The availability of
appellants being on delict is solidary.56WHEREFORE,
appellants Agapito Quianola y Escuadro and Eduardo
Escuadro y Floro are each found guilty beyond reasonable
doubt of two (2) counts of consummated rape and
accordingly, sentenced to the penalty of reclusion perpetua
in each case. Said appellants are ordered to pay jointly and
severally Catalina Carciller the sum of P100,000.00 by way
of indemnity ex delictu for the two counts of consummated
rape plus P60,000.00 moral damages. Costs against
appellants.1wphi1.ntSO ORDERED.
PEOPLE OF THE PHILIPPINES, Appellee, vs. ARNULFO
ORANDE y CHAVEZ, Appellant. D E C I S I O N CORONA,
J.:This is an appeal from the decision1 of the Regional Trial
Court of Manila, Branch 18, in Criminal Case Nos. 97159184, 97-159185, 97-159186 and 97-159187, convicting
appellant for two counts of simple rape, one count of
statutory rape and one count of frustrated rape, and
sentencing him to suffer three counts of reclusion perpetua
for the simple and statutory rapes, and an indeterminate
penalty of 8 years to 14 years and 8 months of imprisonment
for the frustrated rape. Complainant Jessica Castro charged
appellant with raping her four times between January 1994
and November 1996. The informations filed against
appellant by the City Prosecutor read: In Criminal Case No.
97-159184 - That on or about January 14, 1996, in the City
of Manila, Philippines, the said accused did then and there
willfully, unlawfully and feloniously, by means of force and
intimidation, that is, by threatening to kill said Jessica Castro,
had carnal knowledge of the latter against her will.
CONTRARY TO LAW. In Criminal Case No. 97-159185- That
on or about April 15, 1994, in the City of Manila, Philippines,
the said accused did then and there willfully, unlawfully and
feloniously, by means of force and intimidation, that is, by
threatening JESSICA CASTRO Y DE LA CRUZ of death
should she resist or report the matter to anybody, had carnal
knowledge of said Jessica C. Castro, a minor, under 12
years of age, against her will. CONTRARY TO LAW. In
Criminal Case No. 97-159186 - That on or about March 12,
1995, in the City of Manila, Philippines, the said accused did
then and there willfully, unlawfully and feloniously, by means
of force and intimidation, that is, by threatening Jessica
Castro y de la Cruz of death should she resist or report the
matter to anybody, had carnal knowledge of said Jessica C.

Castro, a minor, under 12 years of age, against her will.

CONTRARY TO LAW. In Criminal Case No. 97-159187- That
on or about November 17, 1996, in the City of Manila,
Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and
intimidation, that is, by threatening to kill said Jessica Castro,
had carnal knowledge of the latter against her will.
CONTRARY TO LAW.2
Arraigned on September 5, 1997, appellant pleaded not
guilty.3 Thereafter, trial on the merits ensued. However, the
trial was subsequently postponed for eight months as
Jessica was suffering from psychological and emotional
trauma from her horrifying ordeal.4 The lower court ordered
the suspension of the trial to enable her to undergo
psychological therapy at the Child Protection Unit of the
Philippine General Hospital. Trial resumed in November
1998 with the prosecution presenting Jessica as its first
witness. Incidentally, prior to the filing of the aforementioned
cases, Jessica also filed a criminal case against her mother,
Girlie de la Cruz Castro, and the appellant for child abuse.
The evidence of the prosecution showed that appellant was
the common law husband of Jessicas mother Girlie.
Appellant, a pedicab driver, started living with Girlie and her
three children sometime in 1993 in a two-storey house in
Paco, Manila owned by Girlies mother. They occupied a
room on the ground floor which served as their bedroom,
kitchen and living room. The adjacent room was occupied by
Girlies brother and his family while the room on the second
floor was occupied by Girlies sister and her family. Girlie
gave birth to two more children by appellant. To earn a living,
Girlie sold fish at the Paco Market, buying her stock from the
Navotas fish market late at night and sometimes in the early
hours of the morning. The first incident of rape, subject of
Criminal Case No. 97-159185, happened sometime in April
1994 when Girlie was at the fish market. Appellant was left in
the house with Jessica, her siblings and appellants two
children with Girlie. Jessica was then watching television
while her brothers and sisters were sleeping beside her.
Appellant grabbed Jessicas right hand and lasciviously
jabbed her palm with his finger. He ordered her to undress
which she obeyed out of fear as appellant was armed with a
knife. Appellant then removed his pants, placed himself on
top of complainant and succeeded in partially penetrating
her. Jessica felt pain in her vagina and saw it smeared with
blood and semen. She tried to leave the room but appellant
locked the door and threatened to kill her if she told her
mother what happened. Jessica was then only nine years
and four months old, having been born on December 19,
1983.5The second rape, subject of Criminal Case No. 97159186, occurred on March 14, 1995 at around 11:00 a.m.
when Jessica was 11 years and 3 months old. Girlie was in
the market while Jessica and her siblings were left in the
house watching television. Soon after, appellant arrived and
sent the children, except Jessica, to play outside. Left alone
with Jessica, appellant removed his clothes, pulled out a
balisong and ordered Jessica to undress. He then held her
by the shoulder and made her lie down. Then he mounted
her. Appellant reached his orgasm shortly after penetrating
her slightly. He stood up with semen still dripping from his
penis. Apparently still not satisfied, he knelt down, kissed
and fingered Jessicas vagina, then mashed her breasts. He
only stopped what he was doing when someone knocked at
the door. Appellant and Jessica hurriedly put on their clothes
and, as appellant opened the door, Jessica went to
thebathroom to wash herself. The third rape, subject of
Criminal Case No. 97-159184, occurred on January 14,
1996, when Jessica was 12 years and 6 months old. She
arrived from school at around 11:00 a.m. While she was
changing her clothes, appellant ordered Jessicas brother

and sister to visit their mother at the Paco Market and sent
his children to play outside the house. When appellant and
Jessica were alone, he removed his pants, got his knife and
ordered her to undress. Since she was afraid, Jessica was
forced to remove her clothes. Appellant then told her they
would do what they did before, pulled her towards him and
made her lie down on the floor. While holding the knife, he
kissed and fingered her vagina, then mashed her breasts.
Thereafter, he placed himself on top of her, partially
penetrated her until he ejaculated. When Jessicas brother
and sister arrived, appellant hurriedly put on his clothes.
Jessica did the same. She then went to the bathroom to
wash herself and change her bloodstained underwear. The
last rape, subject of Criminal Case No. 97-159187, occurred
sometime in November 1996, at around 11:00 p.m. Girlie
was again in the public market while Jessica was at home
with her siblings who were all asleep. Appellant told Jessica
that they would again do what they did before but she
refused, saying that she might get pregnant. Appellant
brandished his balisong and threatened to kill her. He then
covered himself and Jessica with a blanket, removed his
pants and her shorts, and placed himself on top of her. His
penis slightly penetrated her vagina. He mashed her breasts,
inserted his finger into her vagina and kissed it. Jessica
pushed him away and told him she wanted to sleep. Then
she put on her shorts. Appellant also put on his pants and
told Jessica not to tell her mother what he did to her. He
assured her that she would not get pregnant because she
was not yet menstruating. Sometime in March 1997, a
teacher of Jessica, Mrs. Adoracion Mojica, noticed the
unusual treatment of Jessica by appellant. When confronted
by Mrs. Mojica, Jessica admitted that appellant had raped
her several times. Mrs. Mojica called up Jessicas aunt, Mrs.
Antonina de la Cruz, and narrated to her what Jessica had
confessed. Mrs. De la Cruz then accompanied Jessica to the
police station to file a complaint and to the Philippine
General Hospital (PGH), Child
Protection Unit, to be examined. Dr. Bernadette J. Madrid,
Director of the Child Protection Unit, examined Jessica and
the findings revealed the following: Genital Examination:
Hymen: Estrogenized, Attenuated from 1 oclock position to
4 o clock position and from 6 o clock to 12 o clock position
Notch at 5 oclock Healed hymenal tear at the 6 o clock
position Anus: Normal rectal tone, no pigmentation, no scars,
normal rugae6For his defense, appellant advanced denial
and alibi. He denied ever raping Jessica and testified that,
during the alleged second rape incident, he was driving his
pedicab. His live-in partner Girlie testified that, during the
purported first and second incidents of rape, appellant was
with her to buy fish in Navotas and sell them in Paco market.
Appellant argued that since Jessica disapproved of his
relationship with her mother, she had the motive to falsely
accuse him of raping her. Further, he pointed out the
improbability of the alleged first and fourth incidents of rape
inasmuch as the make-up of the room made it impossible for
Jessicas siblings not to wake up during the commission of
the crime. Appellant further contended that Jessicas failure
to cry out for help, knowing that her mothers relatives were
in the same house, made her story of rape unbelievable. The
trial court gave credence to the testimony of Jessica and
convicted the appellant: WHEREFORE, in Criminal Case
No. 97-159184, Accused Arnulfo Orande y Chavez is
convicted of simple rape under Article 335 of the Revised
Penal Code and sentenced to suffer the penalty of reclusion
perpetua with all the accessory penalties provided by law. In
Criminal Case No. 97-159185, the accused is also convicted
of simple rape under Article 335 of the Revised Penal Code
and sentenced to suffer the penalty of reclusion perpetua
with all the accessory penalties provided by law.In Criminal

Case No. 97-159186, the accused is likewise convicted of

statutory rape under Article 335 of the Revised Penal Code
and sentenced to suffer the penalty of reclusion perpetua
with all the accessory penalties provided by law. In Criminal
Case No. 97-159187, the accused is convicted of frustrated
rape under Article 335 of the Revised Penal Code and
sentenced to suffer the indeterminate penalty of 8 years of
prision mayor as minimum to 14 years and 8 months of
reclusion temporal as maximum, and to pay the costs.On the
civil liability of the accused in the four cases, he is ordered to
pay the victim, Jessica Castro, moral, nominal and
exemplary damages in the respective sums of P400,000.00,
P200,000.00 and P100,000.00. SO ORDERED.7In this
appeal, appellant assigns the following errors: I. THE
COURT A QUO GRAVELY ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF ONE COUNT OF STATUTORY RAPE, ONE
COUNT OF FRUSTRATED RAPE AND TWO COUNTS OF
SIMPLE RAPE. II. THE COURT A QUO GRAVELY ERRED
IN CONVICTING THE ACCUSED-APPELLANT OF
FRUSTRATED RAPE DESPITE THE FACT THAT UNDER
PREVAILING JURISPRUDENCE THERE IS NO SUCH
CRIME.8The Office of the Solicitor General argues that
appellants convictions should be upheld as the prosecution
was able to prove his guilt beyond reasonable doubt.
The appeal is partly meritorious. This Court finds that the
prosecution was able to prove beyond reasonable doubt
appellants guilt for two counts of statutory rape and two
counts of simple rape, there being no such crime as
frustrated rape in this jurisdiction. After a thorough review of
the records, we find no reason to deviate from the wellestablished rule that the credibility of witnesses is a matter
best assessed by the trial court because of its unique
opportunity to observe them firsthand and to note their
demeanor, conduct and attitude.9 In the present case, the
trial court found Jessicas testimony convincing, logical and
credible. Moreover, the court a quo: xxx discerned from her
demeanor the intense mental torture, embarrassment,
emotional pain and bitterness she suffered whenever she
was asked to recall and narrate the humiliating sexual
ordeals she had gone through, and her ... desire for justice
and the punishment of her defiler. She was continually in
tears while testifying and the proceeding was interrupted
several times to calm her down.10No young woman would
allow an examination of her private part and subject herself
to the humiliation and rigor of a public trial if the accusations
were not true, or if her motive were other than a fervent
desire to seek justice.11We do not subscribe to appellants
theory that the filing of the rape charges was motivated by
Jessicas dislike for him. To charge appellant with rape for
the sole purpose of exacting revenge, as appellant implies in
his brief, takes a certain kind of psychiatric depravity which
this Court does not see in Jessica. The fact that Jessica had
to undergo psychological treatment12 after her first
testimony in February 1998 belies appellants defense. The
need for such counseling came about after the defilement
she suffered in the hands of appellant. In fact, it was the
incidents of rape that caused her psychological and
emotional imbalance which required therapy at the Child
Protection Unit of the Philippine General Hospital. The
alleged inconsistencies and improbabilities in Jessicas
testimony did not discredit her nor reveal any fabrication.
Inconsistencies regarding minor details were attributable to
the fact that she was recalling details of incidents that
happened three years before, not to mention the fact that
these details pertained to something she had very little
knowledge of, being then only nine years and three months
old when the first rape was committed. We have consistently
ruled that errorless recollection of a harrowing experience

cannot be expected of a witness (a very young one at that)

specially when she is recounting details of an occurrence so
humiliating, so painful and, in this case, so alien as
rape.13Appellant makes much of the fact that two incidents
of rape happened inside the room where the other children
were sleeping. This Court has repeatedly held that rape can
be committed in the same room where other members of the
family are also sleeping, in a house where there are other
occupants or even in places which to many might appear
unlikely and high-risk venues for its commission.14Also, the
failure of Jessica to cry out for help during the incidents in
question, inspite of the physical proximity of her relatives, or
to report to them what happened, did not at all make her
testimony improbable inasmuch as it is not uncommon for a
young girl of tender age to be easily intimidated into silence
and conceal for sometime the violation of her honor, even by
the mildest threat to her life.15 Besides, Girlie, Jessicas
mother, had a rift with her siblings who lived in the same
house and forbade Jessica to socialize with them. It was
likewise highly probable that the strained relations between
Jessicas mother, uncle and aunt prevented Jessica from
confiding in them. In a number of cases, this Court has
likewise ruled that delay, even of three years, in reporting the
crime does not necessarily detract from the witness
credibility as long as it is satisfactorily explained.16 Jessica
was threatened by appellant that he would kill her mother
and relatives if she reported the rape. A young girl like
Jessica can easily be mesmerized by fear of bodily harm
and, unlike a mature woman, cannot be expected to have
the courage or confidence to immediately report a sexual
assault on her, specially when a death threat hangs over her
head.17In view of the credible testimony of Jessica,
appellants defenses of denial and alibi deserve no
consideration. These weak defenses cannot stand against
the positive identification and categorical testimony of a rape
victim.18The court a quo convicted appellant of one count of
frustrated rape in Criminal Case No. 97-151987, the
dispositive portion of which read: x x x
xxx
xxx
In Criminal Case No. 97-159187, the accused is convicted of
frustrated rape under Article 335 of the Revised Penal Code
and sentenced to suffer the indeterminate penalty of 8 years
of prision mayor as minimum, and to pay the costs.
xxx
xxx
x x x SO ORDERED.19However, we
agree with the observation of the Solicitor General that the
court a quo was referring to Criminal Case No. 97-159185,
and not Criminal Case No. 97-159187, in convicting
appellant of frustrated rape: The trial court convicted
appellant of simple rape in Criminal Case No. 97-159185.
However, the factual basis thereof in the body of the decision
reads: With regard to Criminal Case No. 97-159185, the
Court has gathered that sometime in April, 1994, at around
11:00 p.m., Jessica and her two siblings together with the
accused were in their house, while their mother, Girlie, was
in Navotas buying fish. Jessica was watching TV in a lying
position beside her two sleeping siblings, when the accused
held Jessicas right hand and jabbed her palm with his finger.
Then he told her to remove her short pants, panty and Tshirt, after which the accused removed his pants and with a
balisong in his hand, he began kissing the sensitive parts of
her body. Then he placed himself on top of her and tried to
have sexual intercourse with her. He succeeded in nudging
her sex organ with the tip of his penis, but was unable to
accomplish penetration, due to the resistance offered by her
by struggling and kicking him. Nonetheless, the accused had
orgasm and Jessicas sex organ was smeared with his
semen. (emphasis supplied, p. 2, Decision) Such was the
only rape incident where the trial court concluded there was
no penetration. On the other hand, the factual basis for the
conviction in Criminal Case No. 97-159187 in the body of the

trial courts decision reads: Anent Criminal Case No. 97159187, the records further show that in November, 1996, at
around 11:00 p.m., Jessica was watching TV while the other
siblings were asleep and her mother was away, when
accused again made sexual advances to her. She resisted
and told accused she might become pregnant, but the
accused persisted and threatened to kill her at that very
moment if she would not submit to his lust. As in the
previous occasions, he again succeeded in having carnal
knowledge of the helpless and scared victim. After her
defilement, the victim continually cried and the accused tried
to calm her down by assuring her that she would not be
impregnated, because she has not yet began to have
menstruation (p. 3, Decision) Consequently the conviction
for frustrated rape should pertain to the incident in April 1994
described in Criminal Case No. 97-159185 and not Criminal
Case No. 97-159187 since this case refers to the November
1996 rape incident where the findings of the trial court was
that there was carnal knowledge.20Moreover, the oversight
of the court a quo in interchanging Criminal Case Nos. 97159185 and 97-159187 is further evidenced by the following
paragraph found in page four of the trial court decision: In
Criminal Case 97-159185 and 97-159184, the acts of the
accused in having carnal knowledge of the victim by
intimidation on two separate occasions in [the] early or
middle part [of] 1996, and in November of the same year,
constitute two separate crimes of qualified rape under R.A.
7659 and the penalty prescribed therefore is death by lethal
injection.21 (Emphasis Ours) The rape incidents which
occurred in 1996 were designated as Criminal Case Nos.
97-159184 and 97-159187, as borne out by the informations
filed by the City Prosecutor.22 Thus, the conviction for
frustrated rape should pertain to Criminal Case No. 97159185 and not Criminal Case No. 97-159187.Regarding
Criminal Case No. 97-159185 (the April 1994 rape incident),
the Court sustains appellants contention that there is no
such crime as frustrated rape, as we have ruled in a long line
of cases.23 Recently, in People vs. Quinanola,24we again
reiterated the rule: Let it be said once again that, as the
Revised Penal Code presently so stands, there is no such
crime as frustrated rape. In People vs. Orita, the Court has
explicitly pronounced: Clearly, in the crime of rape, from the
moment the offender has carnal knowledge of his victim, he
actually attains his purpose and, from that moment also all
the essential elements of the offense have been
accomplished. Nothing more is left to be done by the
offender, because he has performed the last act necessary
to produce the crime. Thus, the felony is
consummated. In a long line of cases (People vs. Oscar, 48
Phil. 527; People vs. Hernandez, 49 Phil. 980; People vs.
Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666;
People vs. Amores, G.R. No. L-32996, August 21, 1974, 58
SCRA 505), We have set the uniform rule that for the
consummation of rape, perfect penetration is not essential.
Any penetration of the female organ by the male organ is
sufficient. Entry of the labia or lips of the female organ,
without rupture of the hymen or laceration of the vagina is
sufficient to warrant conviction. Necessarily, rape is
attempted if there is no penetration of the female organ
(People vs. Tayaba, 62 Phil. 559; People vs. Rabadan, et al.,
53 Phil. 694; United States vs. Garcia, 9 Phil. 434) because
not all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt
acts. Taking into account the nature, elements and manner
of execution of the crime of rape and jurisprudence on the
matter, it is hardly conceivable how the frustrated stage in
rape can ever be committed. Of course, We are aware of our
earlier pronouncement in the case of People vs. Eriia, 50
Phil. 998 [1927] where Wefound the offender guilty of

frustrated rape there being no conclusive evidence of

penetration of the genital organ of the offended party.
However, it appears that this is a stray decision inasmuch
as it has not been reiterated in Our subsequent decisions.
Likewise, We are aware of Article 335 of the Revised Penal
Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated
March 29, 1965) which provides, in its penultimate
paragraph, for the penalty of death when the rape is
attempted or frustrated and a homicide is committed by
reason or on the occasion thereof. We are of the opinion that
this particular provision on frustrated rape is a dead
provision. The Eriia case, supra, might have prompted the
law-making body to include the crime of frustrated rape in
the amendments introduced by said laws. The Court is not
unaware that Republic Act No. 7659, amending Article 335 of
the Revised Penal Code, has retained the provision
penalizing with reclusion perpetua to death an accused who
commits homicide by reason or on the occasion of an
attempted or frustrated rape. Until Congress sees it fit to
define the term frustrated rape and thereby penalize it, the
Court will see its continued usage in the statute book as
being merely a persistent lapse in language. (emphasis
ours) Thus, it was error for the trial court to convict appellant
of frustrated rape. Besides, after a careful review of the
records, we find that the rape was in fact consummated.
Jessica initially testified that, although appellant did not
succeed in inserting his penis in her vagina, she felt his sex
organ touch hers and she saw and felt semen come out of
his penis and smear her vagina.25 In response to the
clarificatory questions asked by the prosecutor, Jessica
testified that the appellant was able to slightly penetrate her
because she felt pain and her vagina bled.26It has been
held that, to be convicted of rape, there must be convincing
and sufficient proof that the penis indeed touched the labia
or slid into the female organ, and not merely stroked the
external surface thereof.27Nevertheless, we have also ruled
in cases where penetration is not established that the rape is
deemed consummated if the victim felt pain, or the medicolegal examination finds discoloration in the inner lips of the
vagina, or the labia minora is already gaping with redness, or
the hymenal tags are no longer visible.28 In the present
case, the victim testified that she felt pain and her vagina
bled, indisputable indications of slight penetration or, at the
very least, that the penis indeed touched the labia and not
merely stroked the external surface thereof. Thus, the
appellant should be found guilty of (consummated) rape and
not merely frustrated or attempted rape. Pursuant to Section
11 of RA 7659 or the Heinous Crimes Law, the penalty of
death is imposed if rape is committed when the victim is
under 18 years of age and the offender is the common-law
spouse of the parent of the victim. However, the trial court
was correct in not imposing the death penalty in Criminal
Case Nos. 97-159184 and 97-159187 because the qualifying
circumstances of age and relationship of the victim to the
appellant were not alleged in the information.29 Thus,
appellant can only be convicted of simple rape punishable by
reclusion perpetua under Article 335 of the Revised Penal
Code. However, in Criminal Case Nos. 97-159185 and 97159186, the appellant can be convicted of statutory rape
also punishable by reclusion perpetua under Article 335 of
the Revised Penal Code inasmuch as the age of Jessica
was alleged in the information30 and duly proven during the
trial by the presentation of her birth certificate.31We award
moral damages of P50,000 for each count of rape as moral
damages are automatically awarded to rape victims without
need of pleading or proof.32 We also award civil indemnity
ex delicto of P50,000 for each count of rape in the light of the
ruling that civil indemnity, which is distinct from moral
damages, is mandatory upon the finding of the fact of

rape.33We likewise award exemplary damages of P25,000

for each count of rape consistent with the prevailing
jurisprudence on the matter.34WHEREFORE, the decision
of the Regional Trial Court of Manila, Branch 18, in Criminal
Case Nos. 97-159 184 to 87 is AFFIRMED with the following
MODIFICATIONS: 1. In Criminal Case No. 97-159 184,
appellant is convicted of simple rape under Article 335 of the
Revised Penal Code and sentenced to suffer the penalty of
reclusion perpetua.
2. In Criminal Case No. 97-159 185, appellant is convicted of
statutory rape under Article 335 of the Revised Penal Code
and sentenced to suffer the penalty of reclusion perpetua. 3.
In Criminal Case No. 97-159186, appellant is convicted of
statutory rape under Article 335 of the Revised Penal Code
and sentenced to suffer the penalty of reclusion perpetua. 4.
In Criminal Case No. 97-159187, appellant is convicted of
simple rape under Article 335 of the Revised Penal Code
and sentenced to suffer the penalty of reclusion perpetua.
For each count of rape, appellant is ordered to pay
complainant Jessica Castro P50,000 as moral damages,
P50,000 as civil indemnity and P25,000 as exemplary
damages, or a total of P500,000. Costs against appellant.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
CHRISTOPHER PAREJA y VELASCO, Appellant. D E C I S
I O N BRION, J.:This is an appeal from the June 15, 2009
decision1 of the Court of Appeals (CA) in CA-G.R. CR HC
No. 02759. TheCA affirmed the February 22, 2007
decision2of the Regional Trial Court (RTC), Branch 209,
Mandaluyong City, finding appellant Christopher Pareja guilty
beyondreasonable doubt of the crime of rape and sentencing
him to suffer the penalty of reclusion perpetua. THE
CASEThe prosecution charged the appellant before the RTC
with the crime of rape under an Amended Information that
reads: That on or about the 16th day of June 2003, in the
City of Mandaluyong, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously lie and have
carnal knowledge of AAA,313 years of age, sister of the
common law spouse of accused, against her will and
consent, thus debasing and/or demeaning the intrinsic worth
and dignity of the victim thereby prejudicing her normal
development as a child.4The evidence for the prosecution
disclosed that at around 3:30 a.m. of June 16, 2003, AAA
was sleeping beside her two-year old nephew, BBB, on the
floor of her sisters room, when the appellant hugged her and
kissed her nape and neck.5AAA cried, but the appellant
covered her and BBB with a blanket.6 The appellant
removed AAAs clothes, short pants, and underwear; he then
took off his short pants and briefs.7 The appellant went on
top of AAA, and held her hands. AAA resisted, but the
appellant parted her legs using his own legs, and then tried
to insert his penis into her vagina.8 The appellant stopped
when AAAs cry got louder; AAA kicked the appellants upper
thigh as the latter was about to stand up. The appellant put
his clothes back on, and threatened to kill AAA if she
disclosed the incident to anyone. Immediately after, the
appellant left the room.9 AAA covered herself with a blanket
and cried.10At around 6:00 a.m. of the same day, AAAs
brother, CCC, went to her room and asked her why she was
lying on the floor and crying. AAA did not answer, and
instead hurled invectives at CCC.11 AAA went to the house
of her other brother, but the latter was not in his house. AAA
proceeded to the house of her older sister, DDD, at Block 19,
Welfareville Compound, and narrated to her what had
happened. Afterwards, AAA and her two (2) siblings went to
the Women and Childrens Desk of the Mandaluyong City

Police Station and reported the incident.12For his defense,

the appellant declared on the witness stand that he hauled
"filling materials" at his house, located at Block 38, Fabella
Compound, on the evening of June 15, 2003. At around
10:00 p.m., he went to his room and slept.13 On the next
day, the appellant, accompanied by his mother and brotherin-law, went to the municipal hall to ask for
financialassistance for his wife who was confined in the
hospital. Upon arrival at the hospital, the doctor told him that
his wife needed blood. Immediately after, the appellant and
his companions went to Pasig City to find blood
donors.14On the evening of June 16, 2003, and while the
appellant was folding the clothes of his son, two policemen
entered his house and informed him that a complaint for
attempted rape had been filed against him. The police
brought him to the Criminal Investigation and Detection
Group, forced him to admit the crime, mauled him, and then
placed him in a detention cell.15 The appellant added that
he filed a complaint before the Office of the Ombudsman
against the police officers who beat him up.16
The RTC convicted the appellant of rape in its decision of
February 22, 2007, under the following terms:
WHEREFORE, the Court finds accused CHRISTOPHER
PAREJA y VELASCO GUILTY beyond reasonable doubt of
the crime of RAPE and hereby sentences him as he is
hereby sentenced to suffer the penalty of reclusion perpetua;
and to indemnify the victim, AAA, the amount of P 50,000.00
as moral damages and P 50,000.00 as civil indemnity.17The
CA, in its decision dated June 15, 2009, affirmed the RTC
decision. It explained that a slight penetration of the labia by
the male organ is sufficient to constitute rape, and held that
a slight penetration took place when the appellants penis
touched AAAs vagina as he was trying to insert it. The
appellate court further ruled that the presence of people in
the other room did not make it impossible for the appellant to
have raped the victim, because lust is no respecter of time
and place. It also held that the victims lack of tenacity in
resisting the appellants sexual aggression did not amount to
consent or voluntary submission to the criminal act.18In his
brief,19 the appellant argued that the lower courts erred in
convicting him for the crime of rape, as the prosecution failed
to prove even the slightest penetration of his penis into the
victims vagina. He added that the victims testimony was
incredible and contrary to human experience. THE COURTS
RULINGWe find that the prosecution failed to prove the
appellants guilt beyond reasonable doubt of the crime of
consummated rape. We convict him instead of attempted
rape, as the evidence on record shows the presence of all
the elements of this crime. Carnal Knowledge Not Proven
With Moral CertaintyBy definition, rape is committed by
having carnal knowledge of a woman with the use of force,
threat or intimidation, or when she is deprived of reason or
otherwise unconscious, or when she is under 12 years of
age or is demented.20 "Carnal knowledge is defined as the
act of a man having sexual intercourse or sexual bodily
connections with a woman."21 Carnal knowledge of the
victim by the accused must be proven beyond reasonable
doubt, considering that it is the central element in the crime
of rape.22In her testimony of February 9, 2004, AAA
recounted the alleged rape, as follows: FISCAL TRONCO:
Q: You said that the three of you then was (sic) sleeping on
the floor, what is it that happened on that particular day and
time that is unusual? A:
It was like somebody was
embracing me or hugging me, maam. Q:
When you felt
that some (sic) is embracing and hugging you, what did you
do? A:
I didnt mind it because I thought that the person
beside me just moved and when he made the movement, its
like that I was embraced, maam. Q:
Whom are you
referring to? A: My brother-in-law, maam. Q: And after

that, what else happened, if any, AAA? A:

Before that
happened, my nephew cried and so I picked him up and put
him on my chest and after a while, I slept again and brought
him down again and then "dumapa po ako" and I felt that
somebody was kissing my nape, maam. Q: Were you able
to see who was that somebody kissing your nape?
A:
When I tried to evade, I looked on my side where the
room was not that dark that I could not see the person and
so, I saw that it was my brother-in-law, maam. x x x x Q:
When you saw that it was your brother-in-law kissing your
nape while you were on a prone position, what else
happened, if any?A:
He kissed my neck, maam. Q:
What was your position while he was kissing your neck? A:
I was on my side at that time and I was also crying, maam. x
x x x Q:
Why were you crying at that time while he was
kissing your neck? A: I was afraid of what will happen next,
maam. Q:
Aside from that incident that he was kissing
your neck, was there any other previous incident that
happened? A: Yes, maam. x x x x Q: What incident was
that? A: At that time, my brother-in-law covered me and my
nephew with a blanket and he tried to get my clothes off,
maam. Q: When did this happen, AAA? A: Also on said
date, maam. Q:
You said that he covered you and your
nephew with a blanket and then taking (sic) off your clothes?
A: Yes, maam. x x x x Q: Was he able to take off your
clothes? A: Yes, maam. Q: What particular clothing was
he able to take off? A:
My short pants and underwear,
maam. Q:
While he was taking off your short pants and
your underwear, what did you do, if any? A: I tried to fight
him off, maam. x x x x Q: You said that he was trying to
take off your clothes and undergarments, what was your
position at that time?
A: I was lying down, maam. Q: What about him? A: He
was on my lap, maam. x x x x Q: You said that you saw
him take off his short pants? A:
Yes, maam. x x x x Q:
Did he also take off his brief? A:
Yes, maam. x x x x Q:
And after that what happened, AAA? A: After removing his
undergarments, he suddenly brought his body on top of me
and he held my hands. At that time I was crying and still
resisting and then he was trying to get my legs apart. I was
still resisting at that time, and at some point in time I felt
weak and he was able to part my legs, maam. Q: Could
you please tell us how did (sic) he able to part your legs? A:
He did that with his legs while he was holding my hands,
maam. Q: And when he was able to part your legs, what
happened next? A: He tried to insert his sexual organ but
he was not able to do so, maam. Q:
How did you know
that he was trying to insert his sexual organ? A:
"Naidikit
po niya sa ari ko."Q: Which part of your body was he able
to touch his sexual organ? (sic) A:
On my sexual organ,
maam. x x x x Q: You mentioned earlier that he was not
able to penetrate your private part, AAA? A: Yes, maam.
Q:
So, what happened after that?A:
I cried and then
while I was resisting, I hit my wrist on the wall and my wrist
was "nagasgas," maam. x x x x Q: And were you able to
successfully resist?
A: Yes, maam, I was able to kicked (sic) his upper thigh,
maam.23 (italics supplied; emphasis ours) From the
foregoing, we find it clear that the appellants penis did not
penetrate, but merely touched (i.e.,"naidikit"), AAAs private
part. In fact, the victim confirmed on cross-examination that
the appellant did not succeed in inserting his penis into her
vagina. Significantly, AAAs Sinumpaang Salaysay24 also
disclosed that the appellant was holding the victims hand
when he was trying to insert his penis in her vagina. This
circumstance coupled with the victims declaration that she
was resisting the appellants attempt to insert his penis into

her vagina makes penile penetration highly difficult, if not

improbable. Significantly, nothing in the records supports the
CAs conclusion that the appellants penis penetrated,
however slightly, the victims female organ. Did the touching
by the appellants penis of the victims private part amount to
carnal knowledge such that the appellant should be held
guilty of consummated rape? InPeople v. Campuhan,25 the
Court laid down the parameters of genital contact in rape
cases, thus: Thus, touching when applied to rape cases
does not simply mean mere epidermal contact, stroking or
grazing of organs, a slight brush or a scrape of the penis on
the external layer of the victim's vagina, or the mons pubis,
as in this case. There must be sufficient and convincing
proof that the penis indeed touched the labias or slid into the
female organ, and not merely stroked the external surface
thereof, for an accused to be convicted of consummated
rape. As the labias, which are required to be "touched" by
the penis, are by their natural situs or location beneath the
mons pubis or the vaginal surface, to touch them with the
penis is to attain some degree of penetration beneath the
surface, hence, the conclusion that touching the labia majora
or the labia minora of the pudendum constitutes
consummated rape. The pudendum or vulva is the collective
term for the female genital organs that are visible in the
perineal area, e.g., mons pubis, labia majora, labia minora,
the hymen, the clitoris, the vaginal orifice, etc. The mons
pubis is the rounded eminence that becomes hairy after
puberty, and is instantly visible within the surface. The next
layer is the labia majora or the outer lips of the female organ
composed of the outer convex surface and the inner surface.
The skin of the outer convex surface is covered with hair
follicles and is pigmented, while the inner surface is a thin
skin which does not have any hair but has many sebaceous
glands. Directly beneath the labia majora is the labia minora.
Jurisprudence dictates that the labia majora must be entered
for rape to be consummated, and not merely for the penis to
stroke the surface of the female organ. Thus, a grazing of
the surface of the female organ or touching the mons pubis
of the pudendum is not sufficient to constitute consummated
rape. Absent any showing of the slightest penetration of the
female organ, i.e., touching of either labia of the pudendum
by the penis, there can be no consummated rape; at most, it
can only be attempted rape, if not acts of lasciviousness.26
(italics supplied) Simply put, "rape is consummated by the
slightest penile penetration of the labia majora or pudendum
of the female organ."27 Without any showing of such
penetration, there can be no consummated rape; at most, it
can only be attempted rape [or] acts of lasciviousness."28As
earlier discussed, the prosecution failed to present sufficient
and convincing evidence to establish the required penile
penetration. AAAs testimony did not establish that the
appellants penis touched the labias or slid into her private
part. Aside from AAAs testimony, no other evidence on
record, such as a medico-legal report, could confirm whether
there indeed had been penetration, however slight, of the
victims labias. In the absence of testimonial or physical
evidence to establish penile penetration, the appellant
cannot be convicted of consummated rape. Article 6 of the
Revised Penal Code, as amended, states that there is an
attempt when the offender commenced the commission of
the crime directly by overt acts but does not perform all the
acts of execution by reason of some cause or accident other
than his own spontaneous desistance. In People v.
Publico,29 we ruled that when the "touching" of the vagina
by the penis is coupled with the intent to penetrate,
attempted rape is committed; otherwise, the crime
committed is merely acts of lasciviousness. In the present
case, the appellant commenced the commission of rape by
the following overt acts: kissing AAAs nape and neck;
undressing her; removing his clothes and briefs; lying on top

of her; holding her hands and parting her legs; and trying to
insert his penis into her vagina. The appellant, however,
failed to perform all the acts of execution which should
produce the crime of rape by reason of a cause other than
his own spontaneous desistance, i.e., the victim's loud cries
and resistance. The totality of the appellants acts
demonstrated the unmistakable objective to insert his penis
into the victims private parts. A review of jurisprudence
reveals that the Court has not hesitated to strike down
convictions for consummated rape when the evidence failed
to show that penetration, however slight, of the victims
vagina took place. In People v. Bon,30 the
Court found the appellant guilty of attempted rape only, as
there was no indication that the appellants penis even
touched the labia of the pudendum of the victim. We further
held that the appellant could not be convicted of
consummated rape by presuming carnal knowledge out of
pain. The Court had a similar ruling in People v. Miranda,31
where the accused tried to insert his penis into the victims
private parts, but was unsuccessful, so he inserted his
fingers instead. We convicted the accused of attempted rape
only due to lack of evidence to establish that there was even
a slight penile penetration. We noted, however, that the
appellants act of inserting his fingers would have constituted
rape through sexual assault had the offense occurred after
the effectivity of the Anti-Rape Law of 1997. InPeople v.
Alibuyog,32 the victim declared that the accused placed his
penis on her vagina; and claimed that it touched her private
parts. The Court set aside the accuseds conviction for rape,
and convicted him of attempted rape only, because we found
the victims testimony too ambiguous to prove the vital
element of penile penetration. We added that the victims
testimony was "replete with repeated denial of penile
insertion."33Similarly, in People v. Quarre,34 the evidence
for the prosecution consisted only of the victims testimony
that the accused tried, but failed, to insert his penis into her
vagina, and she felt pain in the process. No medico-legal
examination report was presented in evidence. Accordingly,
the Court reversed the accuseds conviction for rape, and
found him guilty of attempted rape only. InPeople v.
Ocomen,35 the Court also set aside the appellants
conviction for rape because no proof was adduced of even
the slightest penetration of the female organ, aside from a
general statement of the victim that she had been "raped."
People v. Monteron36 is another noteworthy case where the
Court set aside the appellants conviction for rape. In this
case, the victim testified that the accused placed his penis
on top of her vagina, and that she felt pain. In finding the
accused guilty of attempted rape only, we held that there
was no showing that the accuseds penis entered the victims
vagina. We added that the pain that the victim felt might
have been caused by the accuseds failed attempts to insert
his organ into her vagina. In People v. Mariano,37 the
accused tried to insert his penis into the victims vagina, but
failed to secure penetration. The Court set aside the
accuseds conviction for three (3) counts of rape and found
him guilty of attempted rape only. We explained the
necessity of carefully ascertaining whether the penis of the
accused in reality entered the labial threshold of the female
organ to accurately conclude that rape had been
consummated. InPeople v. Arce, Jr.,38 the Court found the
accused guilty of attempted rape only, because the victim did
not declare that there was the slightest penetration, which
was necessary to consummate rape. On the contrary, she
categorically stated that the accused was not able to insert
his penis into her private parts because she was moving her
hips away. We further ruled that the victims attempt to
demonstrate what she meant by "idinidikit ang ari" was
unavailing to prove that rape had been consummated.

InPeople v. Francisco,39 the victim testified that the accused

"poked" her vagina. The Court set aside the accuseds
conviction for qualified rape, and convicted him instead only
of attempted rape after failing to discern from the victim's
testimony that the accused attained some degree of penile
penetration, which was necessary to consummate
rape.1wphi1InPeople v. Dimapilis,40 the Court refused to
convict the accused for consummated rape on the basis of
the victim's testimony that she felt the accused's penis
pressed against her vagina as he tried to insert it. We
explained that in order to constitute consummated rape,
there must be entry into the vagina of the victim, even if only
in the slightest degree. Finally, in People v. Tolentino,41 the
Court reversed the accuseds conviction for rape and
convicted him of attempted rape only, as there was paucity
of evidence that the slightest penetration ever took place.
We reasoned out that the victims statements that the
accused was "trying to force his sex organ into mine" and
"binundol-undol ang kanyang ari" did not prove that the
accuseds penis reached the labia of the pudendum of the
victims vagina. "In rape cases, the prosecution bears the
primary duty to present its case with clarity and persuasion,
to the end that conviction becomes the only logical and
inevitable conclusion."42 We emphasize that a conviction
cannot be made to rest on possibilities; strongest suspicion
must not be permitted to sway judgment. In the present
case, the prosecution failed to discharge its burden of
proving all the elements of consummated rape.
The Proper Penalty and IndemnitiesUnder Article 51 of the
Revised Penal Code, the imposable penalty for attempted
rape is two degrees lower than the prescribed penalty of
reclusion perpetua for consummated rape. Two degrees
lower from reclusion perpetua is prision mayor whose range
is six (6) years and one (1) day to 12 years. Without any
attendant aggravating or mitigating circumstances and
applying the Indeterminate Sentence Law, the maximum of
the penalty to be imposed upon the appellant is prision
mayor in its medium period, while the minimum shall be
taken from the penalty next lower in degree, which is prision
correccional whose range is six (6) months and one (1) day
to six (6) years, in any of its periods. Accordingly, we
sentence the appellant to suffer the indeterminate penalty of
six (6) years of prision correccional, as minimum, to 10 years
of prision mayor, as maximum. In addition, we order the
appellant to pay the victim P 30,000.00 as civil indemnity, P
25,000.00 as moral damages and P 10,000.00 as exemplary
damages, in accordance with prevailing jurisprudence on
attempted
rape
cases.43WHEREFORE,
premises
considered, the June 15, 2009 decision of the Court of
Appeals in CA-G.R. CR HC No. 02759 isMODIFIED, as
follows: The appellant's conviction for the crime of rape is
VACATED, and (1) we find appellant Christopher Pareja y
Velasco GUILTY of the crime of ATTEMPTED RAPE;(2) we
SENTENCE him to suffer the indeterminate penalty of six
( 6) years of prision correccional, as minimum, to 10 years of
prision mayor, as maximum; and (3) we ORDERhim to PAY
the victim the amounts of P 30,000.00 as civil indemnity; P
25,000.00 as moral damages; and P 10,000.00 as
exemplary damages. SO ORDERED.
G.R. No. 166441

October 8, 2014

NORBERTO CRUZ y BARTOLOME, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION

BERSAMIN, J.:

Version of the Prosecution

The intent of the offender to lie with the female defines the
distinction between attempted rape and acts of
lasciviousness. The felony of attempted rape requires such
intent; the felony of acts of lasciviousness does not. Only the
direct overt acts of the offender establish the intent to lie with
the female. However, merely climbing on top of a naked
female does not constitute attempted rape without proof of
his erectile penis being in a position to penetrate the
female's vagina.

The CA summarized the version of the Prosecution as

follows:6

The Case
This appeal examines the decision promulgated on July 26,
2004,1 whereby the Court of Appeals (CA) affirmed the
conviction for attempted rape of the petitioner by the
Regional Trial Court, Branch 34, in Balaoan, La Union
(RTC), and imposing on him the indeterminate penalty of
imprisonment of four (4) years and two (2) months of prision
correccional, as minimum, to ten (10) years of prision mayor,
as maximum, and ordering him to pay moral damages of
P20,000.00 to AAA,2 the victim.
Antecedents
The petitioner was charged in the RTC with attempted rape
and acts of lasciviousness involving different victims. At
arraignment, he pleaded not guiltyto the respective
informations, to wit: Criminal Case No. 2388
Attempted Rape
That on or about the 21st day of December 1993, at about
2:00 o'clock in the morning, along the Bangar-Luna Road,
Barangay Central West No. 2, Municipality of
Bangar,Province of La Union, Philippines and within the
jurisdiction of this Honorable Court, said accused, did then
and there willfully, unlawfully and feloniously and by means
of force and intimidation commenced the commission ofrape
directly byovert acts, to wit: While private complainant AAA,
an unmarried woman, fifteen (15) yearsold, was sleeping
inside the tentalong Bangar-Luna Road, the said accused
remove her panty and underwear and lay on top of said AAA
embracing and touching her vagina and breast with intent of
having carnal knowledge of her by means of force, and if the
accused did not accomplish his purpose that is to have
carnal knowledge of the said AAA it was not because of his
voluntary desistance but because the said offended party
succeeded in resisting the criminal attempt of said accused
to the damage and prejudice of said offended party.
CONTRARY TO LAW.3
Criminal Case No. 2389
Acts of Lasciviousness
That on or about the 21st day of December 1993, at about
3:00 oclock in the morning, along the Bangar-Luna Road,
Barangay Central West No. 2, Municipality of Bangar,
Province of La Union, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused with
lewd design, did then and there willfully, unlawfully and
feloniously touch the vagina of [BBB]4 against the latters will
and with no other purpose but to satisfy his lascivious desire
to the damage and prejudice of said offended party.
CONTRARY TO LAW.5

x x x [Petitioner] Norberto Bartolome and [his wife] Belinda

Cruz were engaged in the selling of plastic wares and glass
wares in different municipalities around the country. On
December 20, 1993, Norberto and Belinda employed AAA
and BBB to help them in selling their wares in Bangar, La
Union which was then celebrating its fiesta. From Libsong
East, Lingayen, Pangasinan to Bangar, La Union, AAA and
BBB boarded a passenger jeepney owned by Norberto. The
young girls were accompanied by Norberto, Belinda, Ruben
Rodriguez (driver) and a sales boy by the name of "Jess".
Upon reaching Bangar, La Union, at around 8:00 in the
evening of December 20, 1993, they parked in front of
Maroon enterprises. They brought out all the goods and
wares for display. Two tents were fixed in order that they will
have a place to sleep. Belinda and the driver proceeded to
Manila in order to get more goods to be sold.
On December 21, 1993, at around 1:00 oclock in the
morning, AAA and BBB went to sleep. Less thanan hour
later, AAA was awakened when she felt that somebody was
on top of her. Norberto was mashing her breast and touching
her private part. AAA realized that she was divested of her
clothing and that she was totally naked. Norberto ordered
her not to scream or shell be killed. AAA tried to push
Norberto away and pleaded to have pity on her but her pleas
fell on deaf ears. She fought back and kicked Norberto twice.
Norberto was not able to pursue his lustful desires. Norberto
offered her money and told her not totell the incident to her
mother otherwise, she will be killed. AAA went out of the tent
to seek help from Jess (the house boy) but she failed to
wake him up.
Thirty minutes later, when AAA returned to their tent, she
saw Norberto touching the private parts of BBB. AAA saw
her companion awake but her hands wereshaking. When
she finally entered the tent, Norberto left and went outside.
Later that day, AAA and BBB narrated to Jess the incident
that took place that early morning. Later still, while they were
on their way to fetch water, AAA and BBB asked the people
around where they can find the municipal building. An old
woman pointed to them the place.
In the evening of December 21, 1993, AAA and BBB went
straight to the municipal hall where they met a policeman by
the name of "Sabas".
They told Sabas the sexual advances
Norberto. Norberto was summoned to
where he personally confronted his
Norbertos wife, Belinda, arrived at the
argument ensued between them.

made to them by
the police station
accusers. When
police station, an

On December 22, 1993, at around 2:20 oclock in the

morning, the police investigator ordered the complainants to
return at6:00 oclock in the morning. Norberto and Belinda
were still able to bring AAA and BBB home with them and
worked for them until December 30, 1994, after which they
were sent back to Lingayen, Pangasinan.
On January 10, 1994, AAA and BBB went back to La Union
and executed their respective sworn statements against
Norberto.

Version of the Defense

The petitioner denied the criminal acts imputed to him. His
version was presented in the assailed decision of the CA,7
as follows:
In a bid to exculpate himself, accused-appellant presents a
totally different version of the story. The accused maintains
that it was not possible for him to commit the crimes hurled
against him. On the date of the alleged incident, there were
many people around who were preparing for the "simbang
gabi". Considering the location of the tents, which were near
the road and the municipal hall, he could not possibly do the
dastardly acts out in the open, not to mention the fact that
once AAA and BBB would scream, the policemen in the
municipal hall could hear them. He believes that the reason
why the complainants filed these cases against him was
solely for the purpose of extorting money from him.
Judgment of the RTC
After the joint trial of the two criminal cases, the RTC
rendered its judgment on April 6, 2000 finding the petitioner
guilty beyond reasonable doubt of attempted rape in
Criminal Case No. 2388 and acts of lasciviousness in
Criminal Case No. 2389,8 to wit:
WHEREFORE, in the light of the foregoing, the Court hereby
renders judgment declaring the accused NORBERTO CRUZ
Y BARTOLOME guilty beyond reasonable doubt of the
crimes of ATTEMPTED RAPE and ACTS OF
LASCIVIOUSNESS as defined and penalized in Article 335
in relation with (sic) Article 6, par. 3 and Article 336 of the
Revised Penal Code respectively. With respect to the crime
of ATTEMPTED RAPE, the Court hereby sentences the
accused to suffer an indeterminate penalty of imprisonment
from FOUR (4) YEARS and TWO (2) MONTHS PRISION
CORRECCIONAL as Minimum to TEN (10) YEARS
PRISION MAYOR as Maximum and the accessory penalties
provided for by law and to pay the victim AAA the amount of
P20,000.00 as moral damages.
With regard to the crime ofACTS OF LASCIVIOUSNESS,
the Court hereby sentences the accused to suffer an
indeterminate penalty of imprisonment from FOUR (4)
MONTHS ARRESTO MAYOR as Minimum to FOUR (4)
YEARS and TWO (2) MONTHS PRISION CORRECCIONAL
as Maximum and the accessory penalties provided for by
law, and to pay the victim BBBthe amount of P10,000.00 as
moral damages.

In sum, the arguments of the accused-appellant are too

puerile and inconsequential as to dent, even slightly, the
overall integrity and probative value of the prosecution's
evidence insofar as AAA is concerned.
Under Article 51 of the Revised Penal Code, the penalty for
an attempted felony is the "penalty lower by two (2) degrees"
prescribed by law for the consummated felony. In this case,
the penalty for rape if it had been consummated would have
been reclusion perpetuapursuant to Article 335 of the
Revised Penalty Code, as amended by Republic Act No.
7659. The penalty two degrees lower than reclusion
perpetuais prision mayor.
Applying the Indeterminate Sentence Law, the maximum
term of the penalty shall be the medium period of prision
mayorin the absence of any mitigating or aggravating
circumstance and the minimum shall be within the range of
the penalty nextlower to that prescribed for the offense which
in this case is prision correccionalin any of its periods.
We also find that the trial court correctly assessed the
amount of P20,000.00 by way of moral damages against the
accused-appellant. In a rape case, moral damages may be
awarded without the need of proof or pleading since it is
assumed that the private complainant suffered moral
injuries, more so, when the victim is aged 13 to 19.
Insofar as the crime of acts of lasciviousness committed
against BBB, the accused argues that there is not enough
evidence to support such accusation. BBB did not testify and
neither her sworn statement was formally offered in evidence
to support the charge for acts of lasciviousness.
In this case, the evidence adducedby the prosecution is
insufficient to substantiate the charge of acts of
lasciviousness against the accusedappellant. The basis of
the complaint for acts of lasciviousness is the sworn
statement of BBB to the effectthat the accused-appellant
likewise molested her by mashing her breast and touching
her private part. However, she was not presented to testify.
While AAA claims that she personally saw the accused
touching the private parts of BBB, there was no testimony to
the effect that suchlascivious acts were without the consent
or against the will of BBB.11
Issues
In this appeal, the petitioner posits that the CAs decision
was not in accord with law or with jurisprudence, particularly:

The preventive imprisonment suffered by the accused by

reason of the two cases is counted in his favor.

I. In giving credence to the incredulous and unbelievable

testimony of the alleged victim; and

SO ORDERED.9

II. In convicting the accused notwithstanding the failure of

the prosecution to prove the guilt of the petitioner beyond
reasonable doubt.

Decision of the CA
On appeal, the petitioner contended that the RTC gravely
erred in convicting him of attempted rape despite the
dubious credibility of AAA, and of acts of lasciviousness
despite the fact that BBB did not testify.
On July 26, 2004, the CA promulgated its decision affirming
the conviction of the petitioner for attempted rape in Criminal
Case No. 2388, but acquitting him of the acts of
lasciviousness charged in Criminal Case No. 2389 due to
the insufficiency of the evidence,10 holding thusly:

Anent the first issue, the petitioner assails the behavior and
credibility of AAA. He argues that AAA still continued working
for him and his wife until December 30, 1994 despite the
alleged attempted rape in the early morning of December 21,
1994, thereby belying his commission of the crime against
her; that he could not have undressed her without rousing
her if she had gone to sleep only an hour before, because
her bra was locked at her back; that her testimony about his
having been on top of her for nearly an hour while they
struggled was also inconceivable unless she either
consented to his act and yielded to his lust, or the incident
did not happen at all, being the product only of her

fertileimagination; that the record does not indicate if he

himself was also naked, or that his penis was poised to
penetrate her; and that she and her mother demanded from
him P80,000.00 as settlement, under threat that she would
file a case against him.12
On the second issue, the petitioner assails the glaring
inconsistencies in the testimony of AAA that cast doubt on
her veracity.
Ruling of the Court
The appeal is partly meritorious.
In an appeal under Rule 45 of the Rules of Court,13 the
Court reviews only questions of law. No review of the
findings of fact by the CA is involved. As a consequence of
thisrule, the Court accords the highest respect for the factual
findings of the trial court, its assessment of the credibility of
witnesses and the probative weight of their testimonies and
the conclusions drawn from its factual findings, particularly
when they are affirmed by the CA. Judicial experience has
shown, indeed, that the trial courts are in the best position to
decideissues of credibility of witnesses, having themselves
heard and seen the witnesses and observed firsthand their
demeanor and deportment and the manner of testifying
under exacting examination. As such, the contentionsof the
petitioner on the credibility of AAA as a witness for the State
cannot beentertained. He thereby raises questions of fact
that are outside the scope of this appeal. Moreover, he
thereby proposes to have the Court, which is not a trier of
facts, review the entire evidence adduced by the Prosecution
and the Defense.
Conformably with this limitation, our review focuses only on
determining the question of law of whether or not the
petitioners climbing on top of the undressed AAA such
thatthey faced each other, with him mashing her breasts and
touching her genitalia with his hands, constituted attempted
rape, the crime for which the RTC and the CA convicted and
punished him. Based on the information, supra, he
committed such acts "with intent of having carnal knowledge
ofher by means of force, and if the accused did not
accomplish his purpose that is to have carnal knowledge of
the said AAA it was not because of his voluntary desistance
but because the said offended party succeeded in resisting
the criminal attempt of said accused to the damage and
prejudice of said offended party."

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. x x x x.
"It must be borne in mind (I Groizard, p. 99) that in offenses
not consummated, as the material damage iswanting, the
nature of the action intended (accion fin) cannot exactly be
ascertained, but the same must be inferred from the nature
of the acts of execution (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 aswell as a punishable
act, must not and cannot furnish grounds by themselves for
attempted or frustrated crimes. The relation existing between
the facts submitted for appreciation and the offense of which
said facts are supposed to produce must be direct; the
intention must be ascertainedfrom the facts and therefore it
is necessary, in order to avoid regrettable instance 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, withoutthe intent to commit an offense, they would be
meaningless."15
To ascertain whether the acts performed by the petitioner
constituted attempted rape, we have to determine the law on
rape in effect on December 21, 1993, when the petitioner
committed the crime he was convicted of. That law was
Article 335 of the Revised Penal Code, which pertinently
provided as follows:
Article335. When and how rape is committed. Rape is
committed by having carnal knowledge of a woman under
any of the following circumstances:
1. By using force or intimidation;

There is an attempt, according to Article 6 of the Revised

Penal Code, when the offender commences the commission
of a felony directly by overt acts, and does not perform all
the acts of execution which should produce the felony by
reason of some cause or accident other than this own
spontaneous desistance. In People v. Lamahang,14 the
Court, speaking through the eminent Justice Claro M.Recto,
eruditely expounded on what overt acts would constitute
anattempted felony, to wit:
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. xxxx 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

2. When the woman is deprived ofreason or otherwise

unconscious; and
3. When the woman is under twelve years of age, even
though neither of the circumstances mentioned in the two
next preceding paragraphs shall be present.
The basic element of rape then and now is carnal knowledge
of a female. Carnal knowledge isdefined simply as "theact of
a man having sexual bodily connections with a woman,"16
which explains why the slightest penetration of the female
genitalia consummates the rape. In other words, rape is
consummated once the peniscapable of consummating the
sexual act touches the external genitalia of the female.17 In
People v. Campuhan,18 the Court has defined the extent of
"touching" by the penis in rape in the following terms:
[T]ouching when applied to rape cases does not simply
mean mere epidermal contact, stroking or grazing of organs,
a slight brush or a scrape of the penis on the external layer

of the victims vagina, or the mons pubis, as in this case.

There must be sufficient and convincing proof that the penis
indeedtouched the labias or slid into the female organ, and
not merely stroked the external surface thereof, for an
accused to be convicted of consummated rape. As the
labias, which are required to be "touched" bythe penis, are
by their natural situsor location beneath the mons pubisor
the vaginal surface, to touch them with the penis is to attain
some degree of penetration beneath the surface, hence, the
conclusion that touching the labia majora or the labia minora
of the pudendum constitutes consummated rape.
The pudendumor vulvais the collective term for the female
genital organs that are visible in the perineal area, e.g.,
mons pubis, labia majora, labia minora, the hymen, the
clitoris, the vaginal orifice, etc. The mons pubisis the
rounded eminence that becomes hairy after puberty, and is
instantly visible within the surface. The next layer is the labia
majoraor the outer lips of the female organ composed of the
outer convex surface and the inner surface. The skin of the
outer convex surface is covered with hair follicles and is
pigmented, while the inner surface is a thin skin which does
not have any hair but has many sebaceous glands. Directly
beneath the labia majorais the labia minora. Jurisprudence
dictates that the labia majoramust be entered for rape to be
consummated, and not merely for the penis to stroke the
surface of the female organ. xxxx Thus, a grazing of the
surface of the female organ or touching the mons pubisof the
pudendum is not sufficient to constitute consummated rape.
Absent any showing of the slightest penetration of the
female organ, i.e., touching of either labia of the
pudendumby the penis, there can be no consummated rape;
at most, it can only be attempted rape, if not acts of
lasciviousness. [Bold emphasis supplied]
It is noteworthy that in People v. Orita,19 the Court clarified
that the ruling in People v. Eriia20 whereby the offender
was declared guilty of frustrated rapebecause of lack of
conclusive evidence of penetration of the genital organ of the
offended party, was a stray decisionfor not having been
reiterated in subsequent cases. As the evolving case law on
rape stands, therefore, rape in its frustrated stage is a
physical impossibility, considering that the requisites of a
frustrated felony under Article 6 of the Revised Penal
Codeare that: (1) the offender has performed all the acts of
execution which would produce the felony; and (2) that the
felony is not produced due to causes independent of the
perpetrators will. Obviously, the offender attains his purpose
from the moment he has carnal knowledge of his victim,
because from that moment all the essential elements of the
offense have been accomplished, leaving nothing more to be
done by him.21

be a commencement of the commission of the crime, or an

overt act or before any fragment of the crime itself has been
committed, and this is so for the reason that so long as the
equivocal quality remains, no one can say with certainty
what the intent of the accused is.It is necessary that the
overt act should have been the ultimate step towards the
consummation of the design. It is sufficient if it was the "first
or some subsequent step in a direct movement towards the
commission of the offense after the preparations are made."
The act done need not constitute the last proximate one for
completion. It is necessary, however, that the attempt must
have a causal relation to the intended crime. In the words of
Viada, the overt acts must have an immediate and
necessary relation to the offense. (Bold emphasis supplied)
In attempted rape, therefore, the concrete felony is rape, but
the offender does not perform all the acts of execution of
having carnal knowledge. If the slightest penetration of the
female genitalia consummates rape, and rape in its
attempted stage requires the commencement of the
commission of the felony directly by overt actswithout the
offender performing all the acts of execution that should
produce the felony, the only means by which the overt acts
performed by the accused can be shown to have a causal
relation to rape as the intended crime is to make a clear
showing of his intent to lie with the female. Accepting that
intent, being a mental act, is beyond the sphere of criminal
law,23 that showing must be through his overt acts directly
connected with rape. He cannot be held liable for attempted
rape withoutsuch overt acts demonstrating the intent to lie
with the female. In short, the State, to establish attempted
rape, must show that his overt acts, should his criminalintent
be carried to its complete termination without being thwarted
by extraneous matters, would ripen into rape,24 for, as
succinctly put in People v. Dominguez, Jr.:25 "The gauge in
determining whether the crime of attempted rape had been
committed is the commencement of the act of sexual
intercourse, i.e., penetration of the penis into the vagina,
before the interruption."

Nonetheless, rape admits of an attempted stage. In this

connection, the character of the overt actsfor purposes of the
attempted stage has been explained in People v. Lizada:22

The petitioner climbed on top of the naked victim, and was

already touching her genitalia with his hands and mashing
her breasts when she freed herself from his clutches and
effectively ended his designs on her. Yet, inferring from such
circumstances thatrape, and no other,was his intended
felony would be highly unwarranted. This was so, despite his
lust for and lewd designs towards her being fully manifest.
Such circumstances remained equivocal, or "susceptible of
double interpretation," as Justice Recto put in People v.
Lamahang, supra, such that it was not permissible to directly
infer from them the intention to cause rape as the particular
injury. Verily, his felony would not exclusively be rapehad he
been allowed by her to continue, and to have sexual
congress with her, for some other felony like simple
seduction (if he should employ deceit to have her yield to
him)26 could also be ultimate felony.

An overt or external act is defined as some physical activity

or deed, indicating the intention to commit a particular crime,
more than a mere planning or preparation, which if carried
out to its complete termination following its natural course,
without being frustrated by external obstacles nor by the
spontaneous desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense. The raison
detrefor the law requiring a direct overtact is that, in a
majority of cases, the conduct of the accused consisting
merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his
declared intent. It is that quality of being equivocal that must
be lacking before the act becomes one which may be said to

We clarify that the direct overt acts of the petitioner that

would have produced attempted rape did not include
equivocal preparatory acts. The former would have related to
his acts directly connected to rape as the intended crime, but
the latter, whether external or internal, had no connection
with rape as the intended crime. Perforce, his perpetration of
the preparatory acts would not render him guilty of an
attempt to commit such felony.27 His preparatory acts could
include his putting up of the separate tents, with one being
for the use of AAA and BBB, and the other for himself and
his assistant, and his allowing his wife to leave for Manila
earlier that evening to buy more wares. Such acts, being
equivocal, had no direct connection to rape. As a rule,

preparatory acts are not punishable under the Revised Penal

Codefor as long as they remained equivocal or of uncertain
significance, because by their equivocality no one could
determine with certainty what the perpetrators intent really
was.28
If the acts of the petitioner did not constitute attempted rape,
did they constitute acts of lasciviousness?
It is obvious that the fundamental difference between
attempted rape and acts of lasciviousness is the
offendersintent to lie with the female. In rape, intent to lie
with the female is indispensable, but this element is not
required in acts of lasciviousness.29 Attempted rape is
committed, therefore, when the "touching" of the vagina by
the penis is coupled with the intent to penetrate. The intent
to penetrate is manifest only through the showing of the
penis capable of consummating the sexual act touching the
external genitalia of the female.30 Without such showing,
only the felony of acts of lasciviousness is committed.31
Based on Article 336 of the Revised Penal Code, the felony
of acts of lasciviousness is consummated whenthe following
essential elements concur, namely: (a) the offender commits
any act of lasciviousness or lewdness upon another person
of either sex; and (b) the act of lasciviousness or lewdness is
committed either (i) by using force or intimidation; or (ii)
when the offended party is deprived ofreason or is otherwise
unconscious; or (iii) when the offended party is under 12
years of age.32 In that regard, lewdis defined as obscene,
lustful, indecent, lecherous; it signifies that form of immorality
that has relation to moral impurity; or that which is carried on
a wanton manner.33
The information charged that the petitioner "remove[d] her
panty and underwear and la[id] on top of said AAA
embracing and touching her vagina and breast." With such
allegation of the information being competently and
satisfactorily proven beyond a reasonable doubt, he was
guilty only of acts of lasciviousness, not attempted rape. His
embracing her and touching her vagina and breasts did not
directly manifest his intent to lie with her. The lack of
evidence showing his erectile penis being in the position to
penetrate her when he was on top of her deterred any
inference about his intent to lie with her. At most, his acts
reflected lewdness and lust for her.
The intent to commit rape should not easily be inferred
against the petitioner, even from his own declaration of it, if
any, unless he committed overt acts directly leading to rape.
A good illustration of this can be seen in People v.
Bugarin,34 where the accused was charged with attempted
rape through an information alleging that he, by means of
force and intimidation, "did then and there willfully, unlawfully
and feloniously commence the commission of the crime of
Rape directly by overt acts, by then and there kissing the
nipples and the vagina of the undersigned [complainant], a
minor, and about to lay on top of her, all against her will,
however, [he] did not perform all the acts of execution which
would have produced the crime of Rape by reason of some

causes other than his own spontaneous desistance, that is,

undersigned complainant push[ed] him away." The accused
was held liable only for acts of lasciviousness because the
intent to commit rape "is not apparent from the
actdescribed," and the intent to have sexual intercourse with
her was not inferable from the act of licking her genitalia.
The Court also pointed out that the "act imputed to him
cannot be considered a preparatory act to sexual
intercourse."35
Pursuant to Article 336 of the Revised Penal Code, the
petitioner, being guilty of acts of lasciviousness, is punished
with prision correccional. In the absence of modifying
circumstances, prision correccional is imposed in its medium
period, which ranges from two (2) years, four (4) months and
one day to four (4) years and two (2) months. Applying the
Indeterminate Sentence Law, the minimum of the penalty
should come from arresto mayor, the penalty next lower than
prision correccionalwhich ranges from one (1) month to six
(6) months. Accordingly, the Court fixes the indeterminate
sentence of three (3) months of arresto mayor, as the
minimum, to two (2) years, four (4) months and one day of
prision correccional, as the maximum.
In acts of lasciviousness, the victim suffers moral injuries
because the offender violates her chastity by his
lewdness.1wphi1 "Moral damages include physical
suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social
humiliation, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they are
the proximate result of the defendant's wrongful act for
omission."36 Indeed, Article 2219, (3), of the Civil Code
expressly recognizes the right of the victim in acts of
lasciviousness to recover moral damages.37 Towards that
end, the Court, upon its appreciation of the record, decrees
that P30,000.00 is a reasonable award of moral damages.38
In addition, AAA was entitled to recover civil indemnity of
P20,000.00.39
Under Article 2211 of the Civil Code, the courts are vested
with the discretion to impose interest as a part of the
damages in crimes and quasidelicts. In that regard, the
moral damages of P20,000.00 shall earn interest of 6% per
annum reckoned from the finality of this decision until full
payment.40
WHEREFORE, the Court FINDS and PRONOUNCES
petitioner NORBERTO CRUZ y BARTOLOME guilty of ACTS
OF LASCIVIOUSNESS, and, ACCORDINGLY, PENALIZES
him with the indeterminate sentence of three (3) months of
arresto mayor, as the minimum, to two (2) years, four (4)
months and one day of prision correccional, as the
maximum; ORDERS him to pay moral damages of
P30,000.00 and civil indemnity of P20,000.00 to the
complainant, with interest of 6% per annum on such awards
reckoned from the finality of this decision until full payment;
and DIRECTS him to pay the costs of suit.
SO ORDERED