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REVISED PENAL CODE came within three miles of a line drawn from the headlands,

ACT NO. 3815. AS AMENDED which embrace the entrance to Manila Bay, she was within
BOOK I territorial waters, and a new set of principles became
applicable. (Wheaton, International Law [Dana ed.], p. 255,
(ARTICLES 1 TO 113)
note 105; Bonfils, Le Droit Int., secs. 490 et seq.; Latour, La
Mer Ter., ch. 1.) The ship and her crew were then subject to
Article 2- English Rule vs French Rule the jurisdiction of the territorial sovereign subject to such
PEOPLE VS WONG CHENG limitations as have been conceded by that sovereignty
(46 PHIL 729) through the proper political agency. . . .

ROMUALDEZ, J.: It is true that in certain cases the comity of nations is observed, as
in Mali and Wildenhus vs. Keeper of the Common Jail (120 U.., 1),
wherein it was said that:
In this appeal the Attorney-General urges the revocation of the order
of the Court of First Instance of Manila, sustaining the demurrer
presented by the defendant to the information that initiated this case . . . The principle which governs the whole matter is this:
and in which the appellee is accused of having illegally smoked opium, Disorder which disturb only the peace of the ship or those
aboard the merchant vessel Changsa of English nationality while said on board are to be dealt with exclusively by the sovereignty
vessel was anchored in Manila Bay two and a half miles from the of the home of the ship, but those which disturb the public
shores of the city. peace may be suppressed, and, if need be, the offenders
punished by the proper authorities of the local jurisdiction.
It may not be easy at all times to determine which of the
The demurrer alleged lack of jurisdiction on the part of the lower
two jurisdictions a particular act of disorder belongs. Much
court, which so held and dismissed the case.
will undoubtedly depend on the attending circumstances of
the particular case, but all must concede that felonious
The question that presents itself for our consideration is whether such homicide is a subject for the local jurisdiction, and that if the
ruling is erroneous or not; and it will or will not be erroneous proper authorities are proceeding with the case in the
according as said court has or has no jurisdiction over said offense. regular way the consul has no right to interfere to prevent
it.
The point at issue is whether the courts of the Philippines have
jurisdiction over crime, like the one herein involved, committed Hence in United States vs. Look Chaw (18 Phil., 573), this court held
aboard merchant vessels anchored in our jurisdiction that:
waters. 1awph!l.net
Although the mere possession of an article of prohibited
There are two fundamental rules on this particular matter in use in the Philippine Islands, aboard a foreign vessel in
connection with International Law; to wit, the French rule, according transit in any local port, does not, as a general rule,
to which crimes committed aboard a foreign merchant vessels should constitute a crime triable by the courts of the Islands, such
not be prosecuted in the courts of the country within whose territorial vessels being considered as an extension of its own
jurisdiction they were committed, unless their commission affects the nationality, the same rule does not apply when the article,
peace and security of the territory; and the English rule, based on the the use of which is prohibited in the Islands, is landed from
territorial principle and followed in the United States, according to the vessels upon Philippine soil; in such a case an open
which, crimes perpetrated under such circumstances are in general violation of the laws of the land is committed with respect
triable in the courts of the country within territory they were to which, as it is a violation of the penal law in force at the
committed. Of this two rules, it is the last one that obtains in this place of the commission of the crime, no court other than
jurisdiction, because at present the theories and jurisprudence that established in the said place has jurisdiction of the
prevailing in the United States on this matter are authority in the offense, in the absence of an agreement under an
Philippines which is now a territory of the United States. international treaty.

In the cases of The Schooner Exchange vs. M'Faddon and Others (7 As to whether the United States has ever consented by treaty or
Cranch [U. S.], 116), Chief Justice Marshall said: otherwise to renouncing such jurisdiction or a part thereof, we find
nothing to this effect so far as England is concerned, to which nation
. . . When merchant vessels enter for the purposes of trade, the ship where the crime in question was committed belongs.
it would be obviously inconvenient and dangerous to Besides, in his work "Treaties, Conventions, etc.," volume 1, page 625,
society, and would subject the laws to continual infraction, Malloy says the following:
and the government to degradation, if such individuals or
merchants did not owe temporary and local allegiance, and There shall be between the territories of the United States
were not amenable to the jurisdiction of the country. . . . of America, and all the territories of His Britanic Majesty in
Europe, a reciprocal liberty of commerce. The inhabitants
In United States vs. Bull (15 Phil., 7), this court held: of the two countries, respectively, shall have liberty freely
and securely to come with their ships and cargoes to all such
. . . No court of the Philippine Islands had jurisdiction over places, ports and rivers, in the territories aforesaid, to which
an offense or crime committed on the high seas or within other foreigners are permitted to come, to enter into the
the territorial waters of any other country, but when she same, and to remain and reside in any parts of the said

Compiled by: Vim Malicay


territories, respectively; also to hire and occupy houses and The facts of the case are contained in the following finding of the trial
warehouses for the purposes of their commerce; and, court:
generally, the merchants and traders of each nation
respectively shall enjoy the most complete protection and The evidence, it says, shows that between 11 and 12 o'clock
security for their commerce, but subject always to the laws a. m. on the present month (stated as August 19, 1909),
and statutes of the two countries, respectively. (Art. 1, several persons, among them Messrs. Jacks and Milliron,
Commerce and Navigation Convention.) chief of the department of the port of Cebu and internal-
revenue agent of Cebu, respectively, went abroad the
We have seen that the mere possession of opium aboard a foreign steamship Erroll to inspect and search its cargo, and found,
vessel in transit was held by this court not triable by or courts, first in a cabin near the saloon, one sack (Exhibit A) and
because it being the primary object of our Opium Law to protect the afterwards in the hold, another sack (Exhibit B). The sack
inhabitants of the Philippines against the disastrous effects entailed referred to as Exhibit A contained 49 cans of opium, and the
by the use of this drug, its mere possession in such a ship, without other, Exhibit B, the larger sack, also contained several cans
being used in our territory, does not being about in the said territory of the same substance. The hold, in which the sack
those effects that our statute contemplates avoiding. Hence such a mentioned in Exhibit B was found, was under the
mere possession is not considered a disturbance of the public order. defendant's control, who moreover, freely and of his own
will and accord admitted that this sack, as well as the other
But to smoke opium within our territorial limits, even though aboard referred to in Exhibit B and found in the cabin, belonged to
a foreign merchant ship, is certainly a breach of the public order here him. The said defendant also stated, freely and voluntarily,
established, because it causes such drug to produce its pernicious that he had bought these sacks of opium, in Hongkong with
effects within our territory. It seriously contravenes the purpose that the intention of selling them as contraband in Mexico or
our Legislature has in mind in enacting the aforesaid repressive Vera Cruz, and that, as his hold had already been searched
statute. Moreover, as the Attorney-General aptly observes: several times for opium, he ordered two other Chinamen to
keep the sack. Exhibit A.
. . . The idea of a person smoking opium securely on board
a foreign vessel at anchor in the port of Manila in open It is to be taken into account that the two sacks of opium, designated
defiance of the local authorities, who are impotent to lay as Exhibits A and B, properly constitute the corpus delicti. Moreover,
hands on him, is simply subversive of public order. It another lot of four cans of opium, marked, as Exhibit C, was the
requires no unusual stretch of the imagination to conceive subject matter of investigation at the trial, and with respect to which
that a foreign ship may come into the port of Manila and the chief of the department of the port of Cebu testified that they
allow or solicit Chinese residents to smoke opium on board. were found in the part of the ship where the firemen habitually sleep,
and that they were delivered to the first officer of the ship to be
returned to the said firemen after the vessel should have left the
The order appealed from is revoked and the cause ordered remanded
Philippines, because the firemen and crew of foreign vessels,
to the court of origin for further proceedings in accordance with law,
pursuant to the instructions he had from the Manila custom-house,
without special findings as to costs. So ordered.
were permitted to retain certain amounts of opium, always provided
it should not be taken shore.
Araullo, C.J., Street, Malcolm, Avancea, Villamor, Ostrand and Johns,
JJ., concur.
And, finally, another can of opium, marked "Exhibit D," is also corpus
delicti and important as evidence in this cause. With regard to this the
US VS LOOK CHAW internal-revenue agent testified as follows:itc-alf
(18 PHIL 573)
FISCAL. What is it?
ARELLANO, C. J.:
WITNESS. It is a can opium which was bought from the
The first complaint filed against the defendant, in the Court of First defendant by a secret-service agent and taken to the office
Instance of Cebu, stated that he "carried, kept, possessed and had in of the governor to prove that the accused had opium in his
his possession and control, 96 kilogrammes of opium," and that "he possession to sell.
had been surprised in the act of selling 1,000 pesos worth prepared
opium." On motion by the defense, the court ruled that this answer might be
stricken out "because it refers to a sale." But, with respect to this
The defense presented a demurrer based on two grounds, the second answer, the chief of the department of customs had already given this
of which was the more than one crime was charged in the complaint. testimony, to wit:
The demurrer was sustained, as the court found that the complaint
contained two charges, one, for the unlawful possession of opium, FISCAL. Who asked you to search the vessel?
and the other, for the unlawful sale of opium, and, consequence of
that ruling, it ordered that the fiscal should separated one charge
WITNESS. The internal-revenue agent came to my office
from the other and file a complaint for each violation; this, the fiscal
and said that a party brought him a sample of opium and
did, and this cause concerns only the unlawful possession of opium. It
that the same party knew that there was more opium on
is registered as No. 375, in the Court of First Instance of Cebu, and as
board the steamer, and the agent asked that the vessel be
No. 5887 on the general docket of this court.
searched.

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The defense moved that this testimony be rejected, on the ground of the laws of the land, with respect to which, as it is a violation of the
its being hearsay evidence, and the court only ordered that the part penal law in force at the place of the commission of the crime, only
thereof "that there was more opium, on board the vessel" be stricken the court established in that said place itself had competent
out. jurisdiction, in the absence of an agreement under an international
treaty.
The defense, to abbreviate proceedings, admitted that the
receptacles mentioned as Exhibits A, B, and C, contained opium and It is also found: That, even admitting that the quantity of the drug
were found on board the steamship Erroll, a vessel of English seized, the subject matter of the present case, was considerable, it
nationality, and that it was true that the defendant stated that these does not appear that, on such account, the two penalties fixed by the
sacks of opium were his and that he had them in his possession. law on the subject, should be imposed in the maximum degree.

According to the testimony of the internal-revenue agent, the Therefore, reducing the imprisonment and the fine imposed to six
defendant stated to him, in the presence of the provincial fiscal, of a months and P1,000, respectively, we affirm in all other respects the
Chinese interpreter (who afterwards was not needed, because the judgment appealed from, with the costs of this instance against the
defendant spoke English), the warden of the jail, and four guards, that appellant. So ordered.
the opium seized in the vessel had been bought by him in Hongkong,
at three pesos for each round can and five pesos for each one of the Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.
others, for the purpose of selling it, as contraband, in Mexico and
Puerto de Vera Cruz; that on the 15th the vessel arrived at Cebu, and
US VS AH SING
on the same day he sold opium; that he had tried to sell opium for
P16 a can; that he had a contract to sell an amount of the value of (36 PHIL 978)
about P500; that the opium found in the room of the other two
Chinamen prosecuted in another cause, was his, and that he had left MALCOLM, J.:
it in their stateroom to avoid its being found in his room, which had
already been searched many times; and that, according to the This is an appeal from a judgment of the Court of First Instance of
defendant, the contents of the large sack was 80 cans of opium, and Cebu finding the defendant guilty of a violation of section 4 of Act No.
of the small one, 49, and the total number, 129. 2381 (the Opium Law), and sentencing him to two years
imprisonment, to pay a fine of P300 or to suffer subsidiary
It was established that the steamship Erroll was of English nationality, imprisonment in case of insolvency, and to pay the costs.
that it came from Hongkong, and that it was bound for
Mexico, via the call ports of Manila and Cebu. The following facts are fully proven: The defendant is a subject of
China employed as a fireman on the steamship Shun Chang. The Shun
The defense moved for a dismissal of the case, on the grounds that Chang is a foreign steamer which arrived at the port of Cebu on April
the court had no jurisdiction to try the same and the facts concerned 25, 1917, after a voyage direct from the port of Saigon. The defendant
therein did not constitute a crime. The fiscal, at the conclusion of his bought eight cans of opium in Saigon, brought them on board the
argument, asked that the maximum penalty of the law be imposed steamship Shun Chang, and had them in his possession during the trip
upon the defendant, in view of the considerable amount of opium from Saigon to Cebu. When the steamer anchored in the port of Cebu
seized. The court ruled that it did not lack jurisdiction, inasmuch as on April 25, 1917, the authorities on making a search found the eight
the crime had been committed within its district, on the wharf of cans of opium above mentioned hidden in the ashes below the boiler
Cebu. of the steamer's engine. The defendant confessed that he was the
owner of this opium, and that he had purchased it in Saigon. He did
The court sentenced the defendant to five years' imprisonment, to not confess, however, as to his purpose in buying the opium. He did
pay a fine of P10,000, with additional subsidiary imprisonment in case not say that it was his intention to import the prohibited drug into the
of insolvency, though not to exceed one third of the principal penalty, Philippine Islands. No other evidence direct or indirect, to show that
and to the payment of the costs. It further ordered the confiscation, the intention of the accused was to import illegally this opium into the
in favor of the Insular Government, of the exhibits presented in the Philippine Islands, was introduced.
case, and that, in the event of an appeal being taken or a bond given,
or when the sentenced should have been served, the defendant be Has the crime of illegal importation of opium into the Philippine
not released from custody, but turned over to the customs authorities Islands been proven?
for the purpose of the fulfillment of the existing laws on immigration.
Two decisions of this Court are cited in the judgment of the trial court,
From this judgment, the defendant appealed to this court.lawphi1.net but with the intimation that there exists inconsistently between the
doctrines laid down in the two cases. However, neither decision is
The appeal having been heard, together with the allegations made directly a precedent on the facts before us.
therein by the parties, it is found: That, although the mere possession
of a thing of prohibited use in these Islands, aboard a foreign vessel in In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in
transit, in any of their ports, does not, as a general rule, constitute a the opinion handed down by the Chief Justice, it is found
crime triable by the courts of this country, on account of such vessel
being considered as an extension of its own nationality, the same rule That, although the mere possession of a thing of prohibited
does not apply when the article, whose use is prohibited within the use in these Islands, aboard a foreign vessel in transit, in any
Philippine Islands, in the present case a can of opium, is landed from of their ports, does not, as a general rule, constitute a crime
the vessel upon Philippine soil, thus committing an open violation of triable by the courts of this country, on account of such
Compiled by: Vim Malicay
vessel being considered as an extension of its own defendant intended this opium to be brought into the Philippine
nationality, the same rule does no apply when the article, Islands. We accordingly find that there was illegal importation of
whose use is prohibited within the Philippine Islands, in the opium from a foreign country into the Philippine Islands. To anticipate
present case a can of opium, is landed from the vessel upon any possible misunderstanding, let it be said that these statements do
Philippine soil, thus committing an open violation of the not relate to foreign vessels in transit, a situation not present.
laws of the land, with respect to which, as it is a violation of
the penal law in force at the place of the commission of the The defendant and appellant, having been proved guilty beyond a
crime, only the court established in the said place itself has reasonable doubt as charged and the sentence of the trial court being
competent jurisdiction, in the absence of an agreement within the limits provided by law, it results that the judgment must be
under an international treaty.1awphil.net affirmed with the costs of this instance against the appellant. So
ordered.
A marked difference between the facts in the Look Chaw case and the
facts in the present instance is readily observable. In the Look Chaw Arellano, C.J., Johnson, Carson, Araullo and Street, JJ., concur.
case, the charge case the illegal possession and sale of opium in the
present case the charge as illegal importation of opium; in the Look
Article 3- Felonies / Mala in se vs Mala Prohibita
Chaw case the foreign vessel was in transit in the present case the
foreign vessel was not in transit; in the Look Chaw case the opium was
landed from the vessel upon Philippine soil in the present case of Mala prohibita
United States vs. Jose ([1916], 34 Phil., 840), the main point, and the PADILLA VS DIZON
one on which resolution turned, was that in a prosecution based on (158 SCRA 127 [1988])
the illegal importation of opium or other prohibited drug, the
Government must prove, or offer evidence sufficient to raise a
PER CURIAM:
presumption, that the vessel from which the drug is discharged came
into Philippine waters from a foreign country with the drug on board.
In the Jose case, the defendants were acquitted because it was not This is an administrative complaint, dated August 6, 1987, filed by the
proved that the opium was imported from a foreign country; in the then Commissioner of Customs, Alexander Padilla, against
present case there is no question but what the opium came from respondent Baltazar R. Dizon, RTC Judge, Branch 115, Pasay City, for
Saigon to Cebu. However, in the opinion in the Jose case, we find the rendering a manifestly erroneous decision due, at the very least, to
following which may be obiter dicta, but which at least is interesting gross incompetence and gross ignorance of the law, in Criminal Case
as showing the view of the writer of the opinion: No. 86- 10126-P, entitled "People of the Philippines vs. Lo Chi Fai",
acquitting said accused of the offense charged, i.e., smuggling of
foreign currency out of the country.
The importation was complete, to say the least, when the
ship carrying it anchored in Subic Bay. It was not necessary
that the opium discharged or that it be taken from the ship. Required by the Court to answer the complaint, the respondent judge
It was sufficient that the opium was brought into the waters filed an Answer, dated October 6, 1987, reciting his "commendable
of the Philippine Islands on a boat destined for a Philippine record as a fearless prosecutor" since his appointment as Assistant
port and which subsequently anchored in a port of the City Fiscal of Manila on December 4, 1962, until his appointment
Philippine Islands with intent to discharge its cargo. eventually as RTC Judge on February 18, 1983; that at in the
reorganization of the judiciary after the February 26, 1986 revolution,
he was reappointed to his present position; that his length of service
Resolving whatever doubt was exist as to the authority of the views
as prosecutor and judge is "tangible proof that would negate the
just quoted, we return to an examination of the applicable provisions
allegations of the petitioner" (should be complainant), whereas the
of the law. It is to be noted that section 4 of Act No. 2381 begins, "Any
latter did not last long in the service for reasons only known to him;
person who shall unlawfully import or bring any prohibited drug into
that the decision involved in the complaint was promulgated by
the Philippine Islands." "Import" and "bring" are synonymous terms.
respondent on September 29, 1986, but the complaint against him
The Federal Courts of the United States have held that the mere act
was filed only on August 6, 1987, a clear indication of malice and ill-
of going into a port, without breaking bulk, is prima facie evidence of
will of the complainant to subject respondent to harassment,
importation. (The Mary [U. S.], 16 Fed. Cas., 932, 933.) And again, the
humiliation and vindictiveness; that his decision, of which he submits
importation is not the making entry of goods at the custom house,
a copy (Annex A) as part of his Answer, is based on "fundamental
but merely the bringing them into port; and the importation is
principles and the foundation of rights and justice" and that if there
complete before entry of the Custom House. (U. S. vs. Lyman [U. S.],
are mistakes or errors in the questioned decision, they are committed
26, Fed. Cas., 1024, 1028; Perots vs. U. S., 19 Fed. Cas., 258.) As
in good faith. Accordingly, respondent prays for the dismissal of the
applied to the Opium Law, we expressly hold that any person
petition (should be complaint).
unlawfully imports or brings any prohibited drug into the Philippine
Islands, when the prohibited drug is found under this person's control
on a vessel which has come direct from a foreign country and is within The issue before the Court is whether or not the respondent judge is
the jurisdictional limits of the Philippine Islands. In such case, a person guilty of gross incompetence or gross ignorance of the law in
is guilty of illegal importation of the drug unless contrary rendering the decision in question. A judge can not be held to account
circumstances exist or the defense proves otherwise. Applied to the or answer, criminally, civilly or administratively, for an erroneous
facts herein, it would be absurb to think that the accused was merely decision rendered by him in good faith.
carrying opium back and forth between Saigon and Cebu for the mere
pleasure of so doing. It would likewise be impossible to conceive that The case in which the respondent rendered a decision of acquittal
the accused needed so large an amount of opium for his personal use. involved a tourist, Lo Chi Fai, who was caught by a Customs guard at
No better explanation being possible, the logical deduction is that the the Manila International Airport while attempting to smuggle foreign
Compiled by: Vim Malicay
currency and foreign exchange instruments out of the country. Lo Chi Sec. 6. Export, import of foreign exchange;
Fai, was apprehended by a customs guard and two PAFSECOM exceptions. No person shall take out or
officers on July 9, 1986, while on board Flight PR 300 of the Philippine transmit or attempt to take out or transmit
Air Lines bound for Hongkong. At the time of his apprehension, he foreign exchange in any form, out of the
was found carrying with him foreign currency and foreign exchange Philippines directly, through other persons,
instruments (380 pieces) amounting to US$ 355,349.57, in various through the mails or through international
currency denominations, to wit: Japanese Yen, Swiss Franc, Australian carriers except when specifically authorized by
Dollar, Singapore Dollar, HFL Guilder, French Franc, U.S. Dollar, the Central Bank or allowed under existing
English Pound, Malaysian Dollar, Deutsche Mark, Canadian Dollar and international agreements or Central Bank
Hongkong Dollar, without any authority as provided by law. At the regulations.
time the accused was apprehended, he was able to exhibit two
currency declarations which he was supposed to have accomplished Tourists and non-resident visitors may take out or
upon his arrival in Manila in previous trips, namely, CB Currency send out from the Philippine foreign exchange in
Declaration No. 05048, dated May 4, 1986 for US$39,600.00 and amounts not exceeding such amounts of foreign
Japanese Yen 4,000,000.00, and CB Currency Declaration No. 06346, exchange brought in by them. For purposes of
dated June 29, 1986 for Japanese Yen 6,600,000.00. establishing the amount of foreign exchange
brought in or out of the Philippines, tourists and
An information was filed against Lo Chi Fai, with the RTC of Pasay City non-resident temporary visitors bringing with
for violation of Sec. 6, Central Bank Circular No. 960, as follows: them more than US$3,000.00 or its equivalent in
other foreign currencies shall declare their
That on or about the 9th day of July, 1986, in the foreign exchange in the form prescribed by the
City of Pasay, Metro Manila, Philippines and Central Bank at points of entries upon arrival in
within the jurisdiction of this Honorable Court, the Philippines.
the above-named accused, Mr. LO CHI FAI, did
then and there wilfully, unlawfully and feloniously The penal sanction is provided by Section 1, P.D. No. 1883, which
attempt to take out of the Philippines through the reads as follows:
Manila International Airport the following foreign
currencies in cash and in checks: Section 1. Blackmarketing of Foreign
Exchange . That any person who shall engage in
the trading or purchase and sale of foreign
currency in violation of existing laws or rules and
regulations of the Central Bank shall be guilty of
the crime of blackmarketing of foreign exchange
and shall suffer the penalty of reclusion temporal,
(minimum of 12 years and I day and maximum of
20 years) and a fine of no less than fifty thousand
(P50,000.00) Pesos.

At the trial, the accused tried to establish that he was a businessman


from Kowloon, Hongkong, engaged in the garment business, in which
he had invested 4 to 5 million Hongkong Dollars; that he had come to
the Philippines 9 to 1 0 times, although the only dates he could
remember were April 2, 1986, May 4, 1986, June 28,1986, and July 8,
1986; that the reason for his coming to the Philippines was to invest
in business in the Philippines and also to play in the casino; that he
had a group of business associates who decided to invest in business
with him, namely: Wakita Noboyuki, Kobayashi Nabuo, Lee Shiang
Pin, Lee Chin and Cze Kai Kwan, who had their own businesses in
Japan and Hongkong; that when he came to the Philippines on April
2,1986, he brought US$50,000.00 and 8,500,000.00 Japanese Yen
which he tried to declare but the Central Bank representative refused
to accept his declaration, until he could get a confirmation as to the
source of the money, for which reason he contacted his bank in
Hongkong and a telex was sent to him on April 3,1986 (Exh. 4). He also
brought in with him US$39,000.00 and 4,000,000.00 Japanese Yen
when he arrived on May 4,1986 which he declared (Exh. 1). Again, he
The case, which was docketed as Criminal Case No. 86-10126-P, was declared 8,600,000.00 Japanese Yen when he arrived on June 28,
subsequently raffled to Branch 113, presided by herein respondent 1986 (Exh. 2). He also testified that his business associates, as per
Judge Baltazar A. Dizon. their agreement to invest in some business with him in the
Philippines, started putting their money for this purpose in a common
Section 6 of Circular No. 960 of the Central Bank provides as follows: fund, hence, every time anyone of them came to the Philippines, they
would declare the money they were bringing in, and all declarations
were handed to and kept by him; these currency declarations were
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presented at the trial as exhibits for the defense. When asked by the authorities must do something to remedy the
court why he did not present all of these declarations when he was evident flaw in the system for effective
apprehended at the airport, his answer was that he was not asked to implementation of the questioned Central Bank
present the declaration papers of his associates, and besides, he does Circular No. 960.
not understand English and he was not told to do so. He also testified
on cross-examination that the reason he was going back to Hongkong But even with a doubtful mind this Court would
bringing with him all the money intended to be invested in the not be able to pin criminal responsibility on the
Philippines was because of the fear of his group that the "revolution" accused. This is due to its steadfast adherence
taking place in Manila might become widespread. It was because of and devotion to the rule of law-a factor in
this fear that he was urged by his associates to come to Manila on July restoring the almost lost faith and erosion of
8, 1986 to bring the money out of the Philippines. confidence of the people in the administration of
justice. Courts of Justice are guided only by the
The respondent judge, in his decision acquitting the accused, stated: rule of evidence.

The factual issue for this Court to determine is The respondent-judge has shown gross incompetence or gross
whether or not the accused wilfully violated ignorance of the law in holding that to convict the accused for
Section 6 of Circular No. 960. The fact that the violation of Central Bank Circular No. 960, the prosecution must
accused had in his possession the foreign establish that the accused had the criminal intent to violate the law.
currencies when he was about to depart from the The respondent ought to know that proof of malice or deliberate
Philippines did not by that act alone make him intent (mens rea) is not essential in offenses punished by special laws,
liable for Violation of Section 6. which are mala prohibita. In requiring proof of malice, the respondent
has by his gross ignorance allowed the accused to go scot free. The
What is imperative is the purpose for which the accused at the time of his apprehension at the Manila International
act of bringing foreign currencies out of the Airport had in his possession the amount of US$355,349.57 in
country was done the very intention. It is that assorted foreign currencies and foreign exchange instruments (380
which qualifies the act as criminal or not. There pieces), without any specific authority from the Central Bank as
must be that clear intention to violate and benefit required by law. At the time of his apprehension, he was able to
from the act done. Intent is a mental state, the exhibit only two foreign currency declarations in his possession. These
existence of which is shown by overt acts of a were old declarations made by him on the occasion of his previous
person. trips to the Philippines.

The respondent proceeded to analyze the evidence which, according Although lack of malice or wilfull intent is not a valid defense in a case
to him, tended to show that the accused had no wilfull intention to for violation of Central Bank Circular No. 960, the respondent
violate the law. According to the respondent in his decision: nonetheless chose to exonerate the accused based on his defense
that the foreign currency he was bringing out of the country at the
time he was apprehended by the customs authorities were brought
... this Court is persuaded to accept the
into the Philippines by him and his alleged business associates on
explanation of the defense that the currencies
several previous occasions when they came to the Philippines,
confiscated and/or seized from the accused
supposedly to be used for the purpose of investing in some
belong to him and his business associates
unspecified or undetermined business ventures; that this money was
abovenamed. And from the unwavering and
kept in the Philippines and he precisely came to the Philippines to take
unequivocal testimonies of Mr. Templo and all of
the money out as he and his alleged business associates were afraid
currencies in question came from abroad and not
that the "attempted revolution" which occurred on July 6,1986 might
from the local source which is what is being
spread. Such fantastic tale, although totally irrelevant to the matter
prohibited by the government. Yes, simply
of the criminal liability of the accused under the information, was
reading the provisions of said circular will, readily
swallowed by the respondent-judge "hook, line and sinker." It did not
show that the currency declaration is required for
matter to the respondent that the foreign currency and foreign
the purpose of establishing the amount of
currency instruments found in the possession of the accused when he
currency being brought by tourist or temporary
was apprehended at the airport-380 pieces in all-and the amounts of
non-resident visitors into the country. The
such foreign exchange did not correspond to the foreign currency
currency declarations, therefore, is already (sic)
declarations presented by the accused at the trial. It did not matter to
intended to serve as a guideline for the Customs
the respondent that the accused by his own story admitted, in effect,
authorities to determine the amounts actually
that he was a carrier" of foreign currency for other people. The
brought in by them to correspond to the amounts
respondent closed his eyes to the fact that the very substantial
that could be allowed to be taken out. Indeed, this
amounts of foreign exchange found in the possession of the accused
Court is amazed and really has its misgivings in the
at the time of his apprehension consisted of personal checks of other
manner currency declarations were made as
people, as well as cash in various currency denominations (12 kinds
testified to by the Central Bank employees. Why
of currency in all), which clearly belied the claim of the accused that
the Bureau of Customs representative never took
they were part of the funds which he and his supposed associates had
part in all these declarations testified to by no less
brought in and kept in the Philippines for the purpose of investing in
than five (5) Central Bank employees? Seemingly,
some business ventures. The respondent ignored the fact that most
these employees are the favorites of these
of the CB Currency declarations presented by the defense at the trial
travellers. It is the hope of this Court that the
were declarations belonging to other people which could not be

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utilized by the accused to justify his having the foreign exchange in his SO ORDERED.
possession. Although contrary to ordinary human experience and
behavior, the respondent judge chose to give credence to the Teehankee, C.J., Yap, Fernan, Melencio-Herrera, Gutierrez, Jr., Cruz,
fantastic tale of the accused that he and his alleged business Paras, Feliciano, Gancayco, Bidin, Sarmiento Cortes, and Grio-
associates had brought in from time to time and accumulated and Aquino, JJ., concur.
kept in the Philippines foreign exchange (of very substantial amounts
in cash and checks in various foreign currency denominations) for the
Padilla, Narvasa, JJ., took no part.
purpose of investing in business even before they knew and had come
to an agreement as to the specific business venture in which they
were going to invest. These and other circumstances which make the Mistake of Fact (Ignorantia Facti Excusat)
story concocted by the accused so palpably unbelievable as to render PEOPLE VS OANIS, ET, AL.
the findings of the respondent judge obviously contrived to favor the (74 PHIL 257)
acquittal of the accused, thereby clearly negating his claim that he
rendered the decision "in good faith." His actuations in this case
MORAN, J.:
amount to grave misconduct prejudicial to the interest of sound and
fair administration of justice.
Charged with the crime of murder of one Serapio Tecson, the accused
Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan
He not only acquitted the accused Lo Chi Fai, but directed in his
and corporal of the Philippine Constabulary, respectively, were, after
decision the release to the accused of at least the amount of
due trial, found guilty by the lower court of homicide through reckless
US$3,000.00, allowed, according to respondent, under Central Bank
imprudence and were sentenced each to an indeterminate penalty of
Circular No. 960. This, in spite of the fact that forfeiture proceedings
from one year and six months to two years and two months of prison
had already been instituted by the Bureau of Customs over the
correccional and to indemnify jointly and severally the heirs of the
currency listed in the information, which according to the respondent
deceased in the amount of P1,000. Defendants appealed separately
should be respected since the Bureau of Customs "has the exclusive
from this judgment.
jurisdiction in the matter of seizure and forfeiture of the property
involved in the alleged infringements of the aforesaid Central Bank
Circular." In invoking the provisions of CB Circular No. 960 to justify In the afternoon of December 24, 1938. Captain Godofredo Monsod,
the release of US$ 3,000.00 to the accused, the respondent judge Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija,
again displayed gross incompetence and gross ignorance of the law. received from Major Guido a telegram of the following tenor:
There is nothing in the said CB Circular which could be taken as "Information received escaped convict Anselmo Balagtas
authority for the trial court to release the said amount of U.S. with bailarina and Irene in Cabanatuan get him dead or alive."
Currency to the accused. According to the above-cited CB Circular, Captain Monsod accordingly called for his first sergeant and asked
tourists may take out or send out from the Philippines foreign that he be given four men. Defendant corporal Alberto Galanta, and
exchange in amounts not exceeding such amounts of foreign privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon
exchange brought in by them; for the purpose of establishing such order of their sergeant, reported at the office of the Provincial
amount, tourists or non-resident temporary visitors bringing with Inspector where they were shown a copy of the above-quoted
them more than US$3,000.00 or its equivalent in other foreign telegram and a newspaper clipping containing a picture of Balagtas.
currencies must declare their foreign exchange at points of entries They were instructed to arrest Balagtas and, if overpowered, to follow
upon arrival in the Philippines. In other words, CB Circular No. 960 the instruction contained in the telegram. The same instruction was
merely provides that for the purpose of establishing the amount of given to the chief of police Oanis who was likewise called by the
foreign currency brought in or out of the Philippines, a tourist upon Provincial Inspector. When the chief of police was asked whether he
arrival is required to declare any foreign exchange he is bringing in at knew one Irene, a bailarina, he answered that he knew one of loose
the time of his arrival, if the same exceeds the amount of US$3,000.00 morals of the same name. Upon request of the Provincial Inspector,
or its equivalent in other foreign currencies. There is nothing in said the chief of police tried to locate some of his men to guide the
circular that would justify returning to him the amount of at least constabulary soldiers in ascertaining Balagtas' whereabouts, and
US$3,000.00, if he is caught attempting to bring out foreign exchange failing to see anyone of them he volunteered to go with the party. The
in excess of said amount without specific authority from the Central Provincial Inspector divided the party into two groups with
Bank. defendants Oanis and Galanta, and private Fernandez taking the
route to Rizal street leading to the house where Irene was supposedly
living. When this group arrived at Irene's house, Oanis approached
Accordingly, the Court finds the respondent Regional Trial Court
one Brigida Mallare, who was then stripping banana stalks, and asked
Judge, Baltazar R. Dizon, guilty of gross incompetence, gross
her where Irene's room was. Brigida indicated the place and upon
ignorance of the law and grave and serious misconduct affecting his
further inquiry also said that Irene was sleeping with her paramour.
integrity and efficiency, and consistent with the responsibility of this
Brigida trembling, immediately returned to her own room which was
Court for the just and proper administration of justice and for the
very near that occupied by Irene and her paramour. Defendants Oanis
attainment of the objective of maintaining the people's faith in the
and Galanta then went to the room of Irene, and an seeing a man
judiciary (People vs. Valenzuela, 135 SCRA 712), it is hereby ordered
sleeping with his back towards the door where they were,
that the Respondent Judge be DISMISSED from the service. All leave
simultaneously or successively fired at him with their .32 and .45
and retirement benefits and privileges to which he may be entitled
caliber revolvers. Awakened by the gunshots, Irene saw her paramour
are hereby forfeited with prejudice to his being reinstated in any
already wounded, and looking at the door where the shots came, she
branch of government service, including government-owned and/or
saw the defendants still firing at him. Shocked by the entire scene.
controlled agencies or corporations.
Irene fainted; it turned out later that the person shot and killed was
not the notorious criminal Anselmo Balagtas but a peaceful and
This resolution is immediately executory. innocent citizen named Serapio Tecson, Irene's paramour. The
Compiled by: Vim Malicay
Provincial Inspector, informed of the killing, repaired to the scene and The true fact, therefore, of the case is that, while Tecson was sleeping
when he asked as to who killed the deceased. Galanta, referring to in his room with his back towards the door, Oanis and Galanta, on
himself and to Oanis, answered: "We two, sir." The corpse was sight, fired at him simultaneously or successively, believing him to be
thereafter brought to the provincial hospital and upon autopsy by Dr. Anselmo Balagtas but without having made previously any reasonable
Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and a inquiry as to his identity. And the question is whether or not they may,
.45 caliber revolvers were found on Tecson's body which caused his upon such fact, be held responsible for the death thus caused to
death. Tecson. It is contended that, as appellants acted in innocent mistake
of fact in the honest performance of their official duties, both of them
These are the facts as found by the trial court and fully supported by believing that Tecson was Balagtas, they incur no criminal liability.
the evidence, particularly by the testimony of Irene Requinea. Sustaining this theory in part, the lower court held and so declared
Appellants gave, however, a different version of the tragedy. them guilty of the crime of homicide through reckless imprudence.
According to Appellant Galanta, when he and chief of police Oanis We are of the opinion, however, that, under the circumstances of the
arrived at the house, the latter asked Brigida where Irene's room was. case, the crime committed by appellants is murder through specially
Brigida indicated the place, and upon further inquiry as to the mitigated by circumstances to be mentioned below.
whereabouts of Anselmo Balagtas, she said that he too was sleeping
in the same room. Oanis went to the room thus indicated and upon In support of the theory of non-liability by reasons of honest mistake
opening the curtain covering the door, he said: "If you are Balagtas, of fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488.
stand up." Tecson, the supposed Balagtas, and Irene woke up and as The maxim is ignorantia facti excusat, but this applies only when the
the former was about to sit up in bed. Oanis fired at him. Wounded, mistake is committed without fault or carelessness. In the Ah Chong
Tecson leaned towards the door, and Oanis receded and shouted: case, defendant therein after having gone to bed was awakened by
"That is Balagtas." Galanta then fired at Tecson. someone trying to open the door. He called out twice, "who is there,"
but received no answer. Fearing that the intruder was a robber, he
On the other hand, Oanis testified that after he had opened the leaped from his bed and called out again., "If you enter the room I will
curtain covering the door and after having said, "if you are Balagtas kill you." But at that precise moment, he was struck by a chair which
stand up." Galanta at once fired at Tecson, the supposed Balagtas, had been placed against the door and believing that he was then
while the latter was still lying on bed, and continued firing until he had being attacked, he seized a kitchen knife and struck and fatally
exhausted his bullets: that it was only thereafter that he, Oanis, wounded the intruder who turned out to be his room-mate. A
entered the door and upon seeing the supposed Balagtas, who was common illustration of innocent mistake of fact is the case of a man
then apparently watching and picking up something from the floor, who was marked as a footpad at night and in a lonely road held up a
he fired at him. friend in a spirit of mischief, and with leveled, pistol demanded his
money or life. He was killed by his friend under the mistaken belief
that the attack was real, that the pistol leveled at his head was loaded
The trial court refused to believe the appellants. Their testimonies are
and that his life and property were in imminent danger at the hands
certainly incredible not only because they are vitiated by a natural
of the aggressor. In these instances, there is an innocent mistake of
urge to exculpate themselves of the crime, but also because they are
fact committed without any fault or carelessness because the
materially contradictory. Oasis averred that be fired at Tecson when
accused, having no time or opportunity to make a further inquiry, and
the latter was apparently watching somebody in an attitudes of
being pressed by circumstances to act immediately, had no
picking up something from the floor; on the other hand, Galanta
alternative but to take the facts as they then appeared to him, and
testified that Oasis shot Tecson while the latter was about to sit up in
such facts justified his act of killing. In the instant case, appellants,
bed immediately after he was awakened by a noise. Galanta testified
unlike the accused in the instances cited, found no circumstances
that he fired at Tecson, the supposed Balagtas, when the latter was
whatsoever which would press them to immediate action. The person
rushing at him. But Oanis assured that when Galanta shot Tecson, the
in the room being then asleep, appellants had ample time and
latter was still lying on bed. It is apparent from these contradictions
opportunity to ascertain his identity without hazard to themselves,
that when each of the appellants tries to exculpate himself of the
and could even effect a bloodless arrest if any reasonable effort to
crime charged, he is at once belied by the other; but their mutual
that end had been made, as the victim was unarmed, according to
incriminating averments dovetail with and corroborate substantially,
Irene Requinea. This, indeed, is the only legitimate course of action
the testimony of Irene Requinea. It should be recalled that, according
for appellants to follow even if the victim was really Balagtas, as they
to Requinea, Tecson was still sleeping in bed when he was shot to
were instructed not to kill Balagtas at sight but to arrest him, and to
death by appellants. And this, to a certain extent, is confirmed by both
get him dead or alive only if resistance or aggression is offered by him.
appellants themselves in their mutual recriminations. According, to
Galanta, Oanis shot Tecson when the latter was still in bed about to
sit up just after he was awakened by a noise. And Oanis assured that Although an officer in making a lawful arrest is justified in using such
when Galanta shot Tecson, the latter was still lying in bed. Thus force as is reasonably necessary to secure and detain the offender,
corroborated, and considering that the trial court had the opportunity overcome his resistance, prevent his escape, recapture him if he
to observe her demeanor on the stand, we believe and so hold that escapes, and protect himself from bodily harm (People vs. Delima, 46
no error was committed in accepting her testimony and in rejecting Phil, 738), yet he is never justified in using unnecessary force or in
the exculpatory pretensions of the two appellants. Furthermore, a treating him with wanton violence, or in resorting to dangerous
careful examination of Irene's testimony will show not only that her means when the arrest could be effected otherwise (6 C.J.S., par. 13,
version of the tragedy is not concocted but that it contains all indicia p. 612). The doctrine is restated in the new Rules of Court thus: "No
of veracity. In her cross-examination, even misleading questions had unnecessary or unreasonable force shall be used in making an arrest,
been put which were unsuccessful, the witness having stuck to the and the person arrested shall not be subject to any greater restraint
truth in every detail of the occurrence. Under these circumstances, than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a
we do not feel ourselves justified in disturbing the findings of fact peace officer cannot claim exemption from criminal liability if he uses
made by the trial court. unnecessary force or violence in making an arrest (5 C.J., p. 753;

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U.S. vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas According to article 69 of the Revised Penal Code, the penalty lower
was a notorious criminal, a life-termer, a fugitive from justice and a by one or two degrees than that prescribed by law shall, in such case,
menace to the peace of the community, but these facts alone be imposed.
constitute no justification for killing him when in effecting his arrest,
he offers no resistance or in fact no resistance can be offered, as when For all the foregoing, the judgment is modified and appellants are
he is asleep. This, in effect, is the principle laid down, although upon hereby declared guilty of murder with the mitigating circumstance
different facts, in U.S. vs. Donoso (3 Phil., 234, 242). above mentioned, and accordingly sentenced to an indeterminate
penalty of from five (5) years of prision correctional to fifteen (15)
It is, however, suggested that a notorious criminal "must be taken by years of reclusion temporal, with the accessories of the law, and to
storm" without regard to his right to life which he has by such pay the heirs of the deceased Serapio Tecson jointly and severally an
notoriety already forfeited. We may approve of this standard of indemnity of P2,000, with costs.
official conduct where the criminal offers resistance or does
something which places his captors in danger of imminent attack. Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.
Otherwise we cannot see how, as in the present case, the mere fact
of notoriety can make the life of a criminal a mere trifle in the hands
Separate Opinions
of the officers of the law. Notoriety rightly supplies a basis for
redoubled official alertness and vigilance; it never can justify
precipitate action at the cost of human life. Where, as here, the PARAS, J., dissenting:
precipitate action of the appellants has cost an innocent life and there
exist no circumstances whatsoever to warrant action of such Anselmo Balagtas, a life termer and notorious criminal, managed to
character in the mind of a reasonably prudent man, condemnation escape and flee form Manila to the provinces. Receiving information
not condonation should be the rule; otherwise we should offer a to the effect that he was staying with one Irene in Cabanatuan, Nueva
premium to crime in the shelter of official actuation. Ecija, the office of the Constabulary in Manila ordered the Provincial
Inspector in Cabanatuan by telegram dispatched on December 25,
The crime committed by appellants is not merely criminal negligence, 1938, to get Balagtas "dead or alive". Among those assigned to the
the killing being intentional and not accidental. In criminal negligence, task of carrying out the said order, were Antonio Z. Oanis, chief of
the injury caused to another should be unintentional, it being simply police of Cabanatuan, and Alberto Galanta, a Constabulary corporal,
the incident of another act performed without malice. to whom the telegram received by the Provincial Inspector and a
(People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se newspaper picture of Balagtas were shown. Oanis, Galanta and a
celifique un hecho de imprudencia es preciso que no haya mediado Constabulary private, after being told by the Provincial Inspector to
en el malicia ni intencion alguna de daar; existiendo esa intencion, gather information about Balagtas, "to arrest him and, if
debera calificarse el hecho del delito que ha producido, por mas que overpowered, to follow the instructions contained in the telegram,"
no haya sido la intencion del agente el causar un mal de tanta proceeded to the place where the house of Irene was located. Upon
gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal arriving thereat, Oanis approached Brigida Mallari, who was then
Comentado, 5.a ed. pag. 7). And, as once held by this Court, a gathering banana stalks in the yard, and inquired for the room of
deliberate intent to do an unlawful act is essentially inconsistent with Irene. After Mallari had pointed out the room, she was asked by Oanis
the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; to tell where Irene's paramour, Balagtas, was, whereupon Mallari
People vs. Bindor, 56 Phil., 16), and where such unlawful act is wilfully answered that he was sleeping with Irene. Upon reaching the room
done, a mistake in the identity of the intended victim cannot be indicated, Oanis and Galanta, after the former had shouted "Stand up,
considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to if you are Balagtas," started shooting the man who was found by them
support a plea of mitigated liability. lying down beside a woman. The man was thereby killed, but Balagtas
was still alive, for it turned out that the person shot by Oanis and
Galanta was one Serapio Tecson.
As the deceased was killed while asleep, the crime committed is
murder with the qualifying circumstance of alevosia. There is,
however, a mitigating circumstance of weight consisting in the Consequently, Oanis and Galanta were charged with having
incomplete justifying circumstance defined in article 11, No. 5, of the committed murder. The Court of First Instance of Nueva Ecija,
Revised Penal Code. According to such legal provision, a person incurs however, convicted them only of homicide through reckless
no criminal liability when he acts in the fulfillment of a duty or in the imprudence and sentenced them each to suffer the indeterminate
lawful exercise of a right or office. There are two requisites in order penalty of from 1 year and 6 months to 2 years and 2 months
that the circumstance may be taken as a justifying one: (a) that the of prision correctional, to jointly and severally indemnify the heirs of
offender acted in the performance of a duty or in the lawful exercise Serapio Tecson in the amount of P1,000, and to pay the costs. Oanis
of a right; and (b) that the injury or offense committed be the and Galanta have appealed.
necessary consequence of the due performance of such duty or the
lawful exercise of such right or office. In the instance case, only the In accomplishing the acts with which the appellants were charged,
first requisite is present appellants have acted in the performance they undoubtedly followed the order issued by the Constabulary
of a duty. The second requisite is wanting for the crime by them authorities in Manila requiring the Provincial Inspector in Cabanatuan
committed is not the necessary consequence of a due performance to get Balagtas dead or alive, in the honest belief that Serapio Tecson
of their duty. Their duty was to arrest Balagtas or to get him dead or was Anselmo Balagtas. As the latter became a fugitive criminal, with
alive if resistance is offered by him and they are overpowered. But revolvers in his possession and a record that made him extremely
through impatience or over-anxiety or in their desire to take no dangerous and a public terror, the Constabulary authorities were
chances, they have exceeded in the fulfillment of such duty by killing justified in ordering his arrest, whether dead or alive. In view of said
the person whom they believed to be Balagtas without any resistance order and the danger faced by the appellants in carrying it out, they
from him and without making any previous inquiry as to his identity. cannot be said to have acted feloniously in shooting the person
Compiled by: Vim Malicay
honestly believed by them to be the wanted man. Conscious of the The appealed judgment should therefore be reversed and the
fact that Balagtas would rather kill than be captured, the appellants appellants, Antonio Z. Oanis and Alberto Galanta, acquitted, with
did not want to take chances and should not be penalized for such costs de oficio.
prudence. On the contrary, they should be commended for their
bravery and courage bordering on recklessness because, without HONTIVEROS, J., dissenting:
knowing or ascertaining whether the wanted man was in fact asleep
in his room, they proceeded thereto without hesitation and thereby
According to the opinion of the majority, it is proper to follow the rule
exposed their lives to danger.
that a notorious criminal "must be taken by storm without regard to
his life which he has, by his conduct, already forfeited," whenever said
The Solicitor-General, however, contends that the appellants were criminal offers resistance or does something which places his captors
authorized to use their revolvers only after being overpowered by in danger of imminent attack. Precisely, the situation which
Balagtas. In the first place, the alleged instruction by the Provincial confronted the accused-appellants Antonio Z. Oanis and Alberto
Inspector to that effect, was in violation of the express order given by Galanta in the afternoon of December 24, 1938, was very similar to
the Constabulary authorities in Manila and which was shown to the this. It must be remembered that both officers received instructions
appellants. In the second place, it would indeed be suicidal for the to get Balagtas "dead or alive" and according to the attitude of not
appellants or, for that matter, any agent of the authority to have only the said appellants but also of Capt. Monsod, constabulary
waited until they have been overpowered before trying to put our provincial inspector of Nueva Ecija, it may be assumed that said
such a character as Balagtas. In the third place, it is immaterial instructions gave more emphasis to the first part; namely, to take him
whether or not the instruction given by the Provincial Inspector was dead. It appears in the record that after the shooting, and having been
legitimate and proper, because the facts exist that the appellants informed of the case, Capt. Monsod stated that Oanis and Galanta
acted in conformity with the express order of superior Constabulary might be decorated for what they had done. That was when all parties
authorities, the legality or propriety of which is not herein questioned. concerned honestly believed that the dead person was Balagtas
himself, a dangerous criminal who had escaped from his guards and
The theory of the prosecution has acquired some plausibility, though was supposedly armed with a .45 caliber pistol Brigida Mallari, the
quite psychological or sentimental, in view only of the fact that it was person whom the appellants met upon arriving at the house of Irene
not Balagtas who was actually killed, but an "innocent man . . . while Requinea, supposed mistress of Balagtas, informed them that said
he was deeply asleep." Anybody's heart will be profoundly grieved by Balagtas was upstairs. Appellants found there asleep a man closely
the trade, but in time will be consoled by the realization that the life resembling the wanted criminal. Oanis said: If you are Balagtas stand
of Serapio Tecson was not vainly sacrificed, for the incident will up," But the supposed criminal showed his intention to attack the
always serve as a loud warning to any one desiring to follow in the appellants, a conduct easily explained by the fact that he should have
footsteps of Anselmo Balagtas that in due time the duly constituted felt offended by the intrusion of persons in the room where he was
authorities will, upon proper order, enforce the summary forfeiture peacefully lying down with his mistress. In such predicament, it was
of his life. nothing but human on the part of the appellants to employ force and
to make use of their weapons in order to repel the imminent attack
In my opinion, therefore, the appellants are not criminally liable if the by a person who, according to their belief, was Balagtas It was
person killed by them was in fact Anselmo Balagtas for the reason that unfortunate, however that an innocent man was actually killed. But
they did so in the fulfillment of their duty and in obedience to an order taking into consideration the facts of the case, it is, according to my
issued by a superior for some lawful purpose (Revised Penal Code, art. humble opinion, proper to apply herein the doctrine laid down in the
11, pars. 5 and 6). They also cannot be held criminally liable even if case of U.S. vs. Ah Chong (15 Phil., 488). In the instant case we have,
the person killed by them was not Anselmo Balagtas, but Serapio as in the case supra, an innocent mistake of fact committed without
Tecson, because they did so under an honest mistake of fact not due any fault or carelessness on the part of the accused, who having no
to negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil., 488). time to make a further inquiry, had no alternative but to take the facts
as they appeared to them and act immediately.
It is true that, under article 4 of the Revised Penal Code, criminal
liability is incurred by any person committing a felony although the The decision of the majority, in recognition of the special
wrongful act done be different from that which he intended; but said circumstances of this case which favored the accused-appellants,
article is clearly inapplicable since the killing of the person who was arrives at the conclusion that an incomplete justifying circumstance
believed to be Balagtas was, as already stated, not wrongful or may be invoked, and therefore, according to Article 69 of the Revised
felonious. Penal Code, the imposable penalty should be one which is lower by
one or two degrees than that prescribed by law. This incomplete
justifying circumstance is that defined in Article 11, No. 5 of the
The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-
Revised Penal Code, in favor of "a person who acts in the fulfillment
General, is not in point, inasmuch as the defendant therein, who
of a duty or in the lawful exercise of a right or office." I believe that
intended to injure Hilario Lauigan with whom he had a quarrel, but
the application of this circumstance is not proper. Article 69 of the
killed another by mistake, would not be exempted from criminal
Revised Penal Code provides as follows:
liability if he actually injured or killed Hilario Lauigan, there being a
malicious design on his part. The other case involved by the
prosecution is U.S. vs. Donoso (3 Phil., 234). This is also not in point, Art. 69. Penalty to be imposed when the crime committed is
as it appears that the defendants therein killed one Pedro Almasan not wholly excusable. A penalty lower by one or two
after he had already surrendered and allowed himself to be bound degrees than that prescribed by law shall be imposed if the
and that the said defendants did not have lawful instructions from deed is not wholly excusable by reason of the lack of some
superior authorities to capture Almasan dead or alive. of the conditions required to justify the same or to exempt
from criminal liability in the several cases mentioned in
articles 11 and 12, provided that the majority of such
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conditions be present. The courts shall impose the penalty with a bailarina named Irene, the conduct of said appellants in
in the period which may be deemed proper, in view of the questioning Brigida Mallari and giving a warning to the supposed
number and nature of the conditions of exemption present criminal when both found him with Irene, and the statement made by
or lacking. Capt. Monsod after the shooting.

This provision has been copied almost verbatim from Article 84 of the If appellant Oanis is entitled to a reversal of the decision of the court
old Penal Code of the Philippines, and which was also taken from below, there are more reasons in favor of the acquittal of appellant
Article 87 of the Spanish Penal Code of 1870. Galanta. According to the evidence no bullet from the gun fired by
this accused ever hit Serapio Tecson. Galanta was armed in the
Judge Guillermo Guevara, one of the members of the Committee afternoon of December 24, 1938, with a .45 caliber revolver (Exhibit
created by Administrative Order No. 94 of the Department of Justice L). He so testified and was corroborated by the unchallenged
for the drafting of the Revised Penal Code, in commenting on Article testimony of his superior officer Sgt. Valeriano Serafica. According to
69, said that the justifying circumstances and circumstances this witness, since Galanta was made a corporal of the Constabulary
exempting from liability which are the subject matter of this article he was given, as part of his equipment, revolver Exhibit L with a serial
are the following: self-defense, defense of relatives, defense of No. 37121. This gun had been constantly used by Galanta, and,
strangers, state of necessity and injury caused by mere accident. according to Sgt. Pedro Marasigan, who accompanied said accused
Accordingly, justifying circumstance No. 5 of Article 11 dealing with when he took it from his trunk in the barracks on the night of
the fulfillment of a duty or the lawful exercise of a right, calling or December 24, 1938, upon order of Captain Monsod, it was the same
office, cannot be placed within its scope. revolver which was given to the witness with five .45 caliber bullets
and one empty shell. Fourteen unused bullets were also taken from
Galanta by Sergeant Serafica, thus completing his regular equipment
The eminent treatiser of criminal law Mr. Groizard, in his commentary
of twenty bullets which he had on the morning of December 24, 1938,
of Article 87 of the Spanish Penal Code of 1870 which is the source of
when Sergeant Serafica made the usual inspection of the firearms in
Article 69 of our Code says:
the possession of the non-commissioned officers and privates of the
constabulary post at Cabanatuan. Galanta stated that he had fired
Ni tratandose de la imbecilidad, ni de la locura, ni de la only one shot and missed. This testimony is corroborated by that of a
menor edad, ni del que obra violentado por una fuerza ballistic expert who testified that bullets exhibits F and O, the first
inrresistible o impulsado por miedo insuperable de un mal being extracted from the head of the deceased, causing wound No. 3
igual o mayor, o en cumplimiento de un deber, o en el of autopsy report Exhibit C and the second found at the place of the
ejercito legitimo de un derecho, oficio o cargo, o en virtud shooting, had not been fired from revolver Exhibit L nor from any
de obediencia debida, ni del que incurre en alguna omision other revolver of the constabulary station in Cabanatuan. It was
hallandose impedido por causa legitima o insuperable, impossible for the accused Galanta to have substituted his revolver
puede tener aplicacion al articulo que comentamos. Y la because when Exhibit L was taken from him nobody in the barracks
razon es obvia. En ninguna de estas execiones hay doubted that the deceased was none other than Balagtas. Moreover,
pluralidad de requisitos. La irrespondabilidad depende de Exhibit L was not out of order and therefore there was no reason why
una sola condicion. Hay o no perturbacion de la razon; el Galanta should carry along another gun, according to the natural
autor del hecho es o no menor de nueve aos; existe o no course of things. On the other hand, aside from wound No. 3 as above
violencia material o moral irresistible, etc., etc.; tal es lo que stated, no other wound may be said to have been caused by a .45
respectivamente hay que examinar y resolver para declarar caliber revolver bullet. Doctor Castro's record gives the conclusion
la culpabilidad o inculpabilidad. Es, por lo tanto, imposible that wound No. 2 must have been caused by a .45 caliber revolver
que acontezca lo que el texto que va al frente de estas lineas bullet. Doctor Castro's record gives the conclusion that wound No. 2
rquiere, para que se imponga al autor del hecho la must have been caused by a .45 caliber bullet, but inasmuch as the
penalidad excepcional que establece; esto es, que diameter of the wound's entrance was only 8 mm., the caliber should
falten algunos requisitos de los que la ley exige para eximir be .32 and not .45, because according to the medico-legal expert who
de responsabilidad, y que concurran el mayor numero de testified in this case, a bullet of a .45 caliber will produce a wound
ellos, toda vez que, en los casos referidos, la ley no exige entrance with either 11 mm. or 12 mm. diameter. All other wounds
multiples condiciones. found by the surgeon who performed the autopsy appeared to have
been caused by bullets of a lesser caliber. In consequence, it can be
It must be taken into account the fact according to Article 69 a penalty stated that no bullet fired by Galanta did ever hit or kill Serapio Tecson
lower by one or two degrees than that prescribed by law shall be and therefore there is no reason why he should be declared criminally
imposed if the deed is not wholly excusable by reason of the lack of responsible for said death.
some of the conditions required by the law to justify the same or
exempt from criminal liability. The word "conditions" should not be U.S. VS AH CHONG
confused with the word "requisites". In dealing with justifying (15 PHIL 499)
circumstance No. 5 Judge Guevara states: "There are two requisites
in order that this circumstance may be taken into account: (a) That
the offender acted in the performance of his duty or in the lawful CARSON, J.:
exercise of a right; and (b) That the injury or offense committed be
the necessary consequence of the performance of a duty or the lawful The evidence as to many of the essential and vital facts in this case is
exercise of a right or office." It is evident that these two requisites limited to the testimony of the accused himself, because from the
concur in the present case if we consider the intimate connection very nature of these facts and from the circumstances surrounding
between the order given to the appellant by Capt. Monsod, the the incident upon which these proceedings rest, no other evidence as
showing to them of the telegram from Manila to get Balagtas who was to these facts was available either to the prosecution or to the

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defense. We think, however, that, giving the accused the benefit of the mess hall. The three returned from their walk at about 10 o'clock,
the doubt as to the weight of the evidence touching those details of and Celestino and Mariano stopped at their room at No. 28, Pascual
the incident as to which there can be said to be any doubt, the going on to his room at No. 27. A few moments after the party
following statement of the material facts disclose by the record may separated, Celestino and Mariano heard cries for assistance and upon
be taken to be substantially correct: returning to No. 27 found Pascual sitting on the back steps fatally
wounded in the stomach, whereupon one of them ran back to No. 28
The defendant, Ah Chong, was employed as a cook at "Officers' and called Liuetenants Jacobs and Healy, who immediately went to
quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same the aid of the wounded man.
place Pascual Gualberto, deceased, was employed as a house boy
or muchacho. "Officers' quarters No. 27" as a detached house situates The defendant then and there admitted that he had stabbed his
some 40 meters from the nearest building, and in August, 19087, was roommate, but said that he did it under the impression that Pascual
occupied solely as an officers' mess or club. No one slept in the house was "a ladron" because he forced open the door of their sleeping
except the two servants, who jointly occupied a small room toward room, despite defendant's warnings.
the rear of the building, the door of which opened upon a narrow
porch running along the side of the building, by which communication No reasonable explanation of the remarkable conduct on the part of
was had with the other part of the house. This porch was covered by Pascuals suggests itself, unless it be that the boy in a spirit of mischief
a heavy growth of vines for its entire length and height. The door of was playing a trick on his Chinese roommate, and sought to frightened
the room was not furnished with a permanent bolt or lock, and him by forcing his way into the room, refusing to give his name or say
occupants, as a measure of security, had attached a small hook or who he was, in order to make Ah Chong believe that he was being
catch on the inside of the door, and were in the habit of reinforcing attacked by a robber.
this somewhat insecure means of fastening the door by placing
against it a chair. In the room there was but one small window, which,
Defendant was placed under arrest forthwith, and Pascual was
like the door, opened on the porch. Aside from the door and window,
conveyed to the military hospital, where he died from the effects of
there were no other openings of any kind in the room.
the wound on the following day.

On the night of August 14, 1908, at about 10 o'clock, the defendant,


The defendant was charged with the crime of assassination, tried, and
who had received for the night, was suddenly awakened by some
found guilty by the trial court of simple homicide, with extenuating
trying to force open the door of the room. He sat up in bed and called
circumstances, and sentenced to six years and one day presidio
out twice, "Who is there?" He heard no answer and was convinced by
mayor, the minimum penalty prescribed by law.
the noise at the door that it was being pushed open by someone bent
upon forcing his way into the room. Due to the heavy growth of vines
along the front of the porch, the room was very dark, and the At the trial in the court below the defendant admitted that he killed
defendant, fearing that the intruder was a robber or a thief, leaped to his roommate, Pascual Gualberto, but insisted that he struck the fatal
his feet and called out. "If you enter the room, I will kill you." At that blow without any intent to do a wrongful act, in the exercise of his
moment he was struck just above the knee by the edge of the chair lawful right of self-defense.
which had been placed against the door. In the darkness and
confusion the defendant thought that the blow had been inflicted by Article 8 of the Penal Code provides that
the person who had forced the door open, whom he supposed to be
a burglar, though in the light of after events, it is probable that the The following are not delinquent and are therefore exempt
chair was merely thrown back into the room by the sudden opening from criminal liability:
of the door against which it rested. Seizing a common kitchen knife
which he kept under his pillow, the defendant struck out wildly at the
intruder who, it afterwards turned out, was his roommate, Pascual. xxx xxx xxx
Pascual ran out upon the porch and fell down on the steps in a
desperately wounded condition, followed by the defendant, who 4 He who acts in defense of his person or rights, provided
immediately recognized him in the moonlight. Seeing that Pascual there are the following attendant circumstances:
was wounded, he called to his employers who slept in the next house,
No. 28, and ran back to his room to secure bandages to bind up (1) Illegal aggression.
Pascual's wounds.
(2) Reasonable necessity of the means employed to prevent
There had been several robberies in Fort McKinley not long prior to or repel it.
the date of the incident just described, one of which took place in a
house in which the defendant was employed as cook; and as
(3) Lack of sufficient provocation on the part of the person
defendant alleges, it was because of these repeated robberies he kept
defending himself.
a knife under his pillow for his personal protection.

Under these provisions we think that there can be no doubt that


The deceased and the accused, who roomed together and who
defendant would be entitle to complete exception from criminal
appear to have on friendly and amicable terms prior to the fatal
liability for the death of the victim of his fatal blow, if the intruder who
incident, had an understanding that when either returned at night, he
forced open the door of his room had been in fact a dangerous thief
should knock at the door and acquiant his companion with his
or "ladron," as the defendant believed him to be. No one, under such
identity. Pascual had left the house early in the evening and gone for
circumstances, would doubt the right of the defendant to resist and
a walk with his friends, Celestino Quiambao and Mariano Ibaez,
repel such an intrusion, and the thief having forced open the door
servants employed at officers' quarters No. 28, the nearest house to
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notwithstanding defendant's thrice-repeated warning to desist, and malice, or criminal intent in some form, is an essential requisite of all
his threat that he would kill the intruder if he persisted in his attempt, crimes and offense therein defined, in the absence of express
it will not be questioned that in the darkness of the night, in a small provisions modifying the general rule, such as are those touching
room, with no means of escape, with the thief advancing upon him liability resulting from acts negligently or imprudently committed,
despite his warnings defendant would have been wholly justified in and acts done by one voluntarily committing a crime or misdemeanor,
using any available weapon to defend himself from such an assault, where the act committed is different from that which he intended to
and in striking promptly, without waiting for the thief to discover his commit. And it is to be observed that even these exceptions are more
whereabouts and deliver the first blow. apparent than real, for "There is little distinction, except in degree,
between a will to do a wrongful thing and indifference whether it is
But the evidence clearly discloses that the intruder was not a thief or done or not. Therefore carelessness is criminal, and within limits
a "ladron." That neither the defendant nor his property nor any of the supplies the place of the affirmative criminal intent" (Bishop's New
property under his charge was in real danger at the time when he Criminal Law, vol. 1, s. 313); and, again, "There is so little difference
struck the fatal blow. That there was no such "unlawful aggression" between a disposition to do a great harm and a disposition to do harm
on the part of a thief or "ladron" as defendant believed he was that one of them may very well be looked upon as the measure of the
repelling and resisting, and that there was no real "necessity" for the other. Since, therefore, the guilt of a crime consists in the disposition
use of the knife to defend his person or his property or the property to do harm, which the criminal shows by committing it, and since this
under his charge. disposition is greater or less in proportion to the harm which is done
by the crime, the consequence is that the guilt of the crime follows
the same proportion; it is greater or less according as the crime in its
The question then squarely presents it self, whether in this
own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as
jurisdiction one can be held criminally responsible who, by reason of
it has been otherwise stated, the thing done, having proceeded from
a mistake as to the facts, does an act for which he would be exempt
a corrupt mid, is to be viewed the same whether the corruption was
from criminal liability if the facts were as he supposed them to be, but
of one particular form or another.
which would constitute the crime of homicide or assassination if the
actor had known the true state of the facts at the time when he
committed the act. To this question we think there can be but one Article 1 of the Penal Code is as follows:
answer, and we hold that under such circumstances there is no
criminal liability, provided always that the alleged ignorance or Crimes or misdemeanors are voluntary acts and
mistake or fact was not due to negligence or bad faith. ommissions punished by law.

In broader terms, ignorance or mistake of fact, if such ignorance or Acts and omissions punished by law are always presumed
mistake of fact is sufficient to negative a particular intent which under to be voluntarily unless the contrary shall appear.
the law is a necessary ingredient of the offense charged (e.g., in
larcerny, animus furendi; in murder, malice; in crimes intent) "cancels An person voluntarily committing a crime or misdemeanor
the presumption of intent," and works an acquittal; except in those shall incur criminal liability, even though the wrongful act
cases where the circumstances demand a conviction under the penal committed be different from that which he had intended to
provisions touching criminal negligence; and in cases where, under commit.
the provisions of article 1 of the Penal Code one voluntarily
committing a crime or misdeamor incurs criminal liability for any
The celebrated Spanish jurist Pacheco, discussing the meaning of the
wrongful act committed by him, even though it be different from that
word "voluntary" as used in this article, say that a voluntary act is
which he intended to commit. (Wharton's Criminal Law, sec. 87 and
a free, intelligent, and intentional act, and roundly asserts that
cases cited; McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S.,
without intention (intention to do wrong or criminal intention) there
28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596;
can be no crime; and that the word "voluntary" implies and includes
Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213;
the words "con malicia," which were expressly set out in the
Commonwealth vs. Rogers, 7 Met., 500.)
definition of the word "crime" in the code of 1822, but omitted from
the code of 1870, because, as Pacheco insists, their use in the former
The general proposition thus stated hardly admits of discussion, and code was redundant, being implied and included in the word
the only question worthy of consideration is whether malice or "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
criminal intent is an essential element or ingredient of the crimes of
homicide and assassination as defined and penalized in the Penal
Viada, while insisting that the absence of intention to commit the
Code. It has been said that since the definitions there given of these
crime can only be said to exempt from criminal responsibility when
as well as most other crimes and offense therein defined, do not
the act which was actually intended to be done was in itself a lawful
specifically and expressly declare that the acts constituting the crime
one, and in the absence of negligence or imprudence, nevertheless
or offense must be committed with malice or with criminal intent in
admits and recognizes in his discussion of the provisions of this article
order that the actor may be held criminally liable, the commission of
of the code that in general without intention there can be no crime.
the acts set out in the various definitions subjects the actor to the
(Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions
penalties described therein, unless it appears that he is exempted
insisted upon by Viada are more apparent than real.
from liability under one or other of the express provisions of article 8
of the code, which treats of exemption. But while it is true that
contrary to the general rule of legislative enactment in the United Silvela, in discussing the doctrine herein laid down, says:
States, the definitions of crimes and offenses as set out in the Penal
Code rarely contain provisions expressly declaring that malice or In fact, it is sufficient to remember the first article, which
criminal intent is an essential ingredient of the crime, nevertheless, declared that where there is no intention there is no crime
the general provisions of article 1 of the code clearly indicate that . . . in order to affirm, without fear of mistake, that under
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our code there can be no crime if there is no act, an act The word "voluntary" as used in article 1 of the Penal Code would
which must fall within the sphere of ethics if there is no seem to approximate in meaning the word "willful" as used in English
moral injury. (Vol. 2, the Criminal Law, folio 169.) and American statute to designate a form of criminal intent. It has
been said that while the word "willful" sometimes means little more
And to the same effect are various decisions of the supreme court of than intentionally or designedly, yet it is more frequently understood
Spain, as, for example in its sentence of May 31, 1882, in which it to extent a little further and approximate the idea of the milder kind
made use of the following language: of legal malice; that is, it signifies an evil intent without justifiable
excuse. In one case it was said to mean, as employed in a statute in
contemplation, "wantonly" or "causelessly;" in another, "without
It is necessary that this act, in order to constitute a crime,
reasonable grounds to believe the thing lawful." And Shaw, C. J., once
involve all the malice which is supposed from the operation
said that ordinarily in a statute it means "not merely `voluntarily' but
of the will and an intent to cause the injury which may be
with a bad purpose; in other words, corruptly." In English and the
the object of the crime.
American statutes defining crimes "malice," "malicious,"
"maliciously," and "malice aforethought" are words indicating intent,
And again in its sentence of March 16, 1892, wherein it held that more purely technical than "willful" or willfully," but "the difference
"considering that, whatever may be the civil effects of the inscription between them is not great;" the word "malice" not often being
of his three sons, made by the appellant in the civil registry and in the understood to require general malevolence toward a particular
parochial church, there can be no crime because of the lack of the individual, and signifying rather the intent from our legal justification.
necessary element or criminal intention, which characterizes every (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases
action or ommission punished by law; nor is he guilty of criminal cited.)
negligence."
But even in the absence of express words in a statute, setting out a
And to the same effect in its sentence of December 30, 1896, it made condition in the definition of a crime that it be committed
use of the following language: "voluntarily," willfully," "maliciously" "with malice aforethought," or
in one of the various modes generally construed to imply a criminal
. . . Considering that the moral element of the crime, that is, intent, we think that reasoning from general principles it will always
intent or malice or their absence in the commission of an be found that with the rare exceptions hereinafter mentioned, to
act defined and punished by law as criminal, is not a constitute a crime evil intent must combine with an act. Mr. Bishop,
necessary question of fact submitted to the exclusive who supports his position with numerous citations from the decided
judgment and decision of the trial court. cases, thus forcely present this doctrine:

That the author of the Penal Code deemed criminal intent or malice In no one thing does criminal jurisprudence differ more
to be an essential element of the various crimes and misdemeanors from civil than in the rule as to the intent. In controversies
therein defined becomes clear also from an examination of the between private parties the quo animo with which a thing
provisions of article 568, which are as follows: was done is sometimes important, not always; but crime
proceeds only from a criminal mind. So that
He who shall execute through reckless negligence an act
that, if done with malice, would constitute a grave crime, There can be no crime, large or small, without an evil mind.
shall be punished with the penalty of arresto mayor in its In other words, punishment is the sentence of wickedness,
maximum degree, to prision correccional in its minimum without which it can not be. And neither in philosophical
degrees if it shall constitute a less grave crime. speculation nor in religious or mortal sentiment would any
people in any age allow that a man should be deemed guilty
He who in violation of the regulations shall commit a crime unless his mind was so. It is therefore a principle of our legal
through simple imprudence or negligence shall incur the system, as probably it is of every other, that the essence of
penalty of arresto mayor in its medium and maximum an offense is the wrongful intent, without which it can not
degrees. exists. We find this doctrine confirmed by

In the application of these penalties the courts shall Legal maxims. The ancient wisdom of the law, equally
proceed according to their discretion, without being subject with the modern, is distinct on this subject. It consequently
to the rules prescribed in article 81. has supplied to us such maxims as Actus non facit reum nisi
mens sit rea, "the act itself does not make man guilty unless
his intention were so;" Actus me incito factus non est meus
The provisions of this article shall not be applicable if the actus, "an act done by me against my will is not my act;" and
penalty prescribed for the crime is equal to or less than others of the like sort. In this, as just said, criminal
those contained in the first paragraph thereof, in which case jurisprudence differs from civil. So also
the courts shall apply the next one thereto in the degree
which they may consider proper.
Moral science and moral sentiment teach the same thing.
"By reference to the intention, we inculpate or exculpate
The word "malice" in this article is manifestly substantially equivalent others or ourselves without any respect to the happiness or
to the words "criminal intent," and the direct inference from its misery actually produced. Let the result of an action be
provisions is that the commission of the acts contemplated therein, in what it may, we hold a man guilty simply on the ground of
the absence of malice (criminal intent), negligence, and imprudence, intention; or, on the dame ground, we hold him innocent."
does not impose any criminal liability on the actor.
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The calm judgment of mankind keeps this doctrine among fell into the mistake is to be determined by the circumstances as they
its jewels. In times of excitement, when vengeance takes appeared to him at the time when the mistake was made, and the
the place of justice, every guard around the innocent is cast effect which the surrounding circumstances might reasonably be
down. But with the return of reason comes the public voice expected to have on his mind, in forming the intent, criminal or other
that where the mind is pure, he who differs in act from his wise, upon which he acted.
neighbors does not offend. And
If, in language not uncommon in the cases, one
In the spontaneous judgment which springs from the nature has reasonable cause to believe the existence of facts which
given by God to man, no one deems another to deserve will justify a killing or, in terms more nicely in accord with
punishment for what he did from an upright mind, destitute the principles on which the rule is founded, if without fault
of every form of evil. And whenever a person is made to or carelessness he does believe them he is legally
suffer a punishment which the community deems not his guiltless of the homicide; though he mistook the facts, and
due, so far from its placing an evil mark upon him, it so the life of an innocent person is unfortunately
elevates him to the seat of the martyr. Even infancy itself extinguished. In other words, and with reference to the
spontaneously pleads the want of bad intent in justification right of self-defense and the not quite harmonious
of what has the appearance of wrong, with the utmost authorities, it is the doctrine of reason and sufficiently
confidence that the plea, if its truth is credited, will be sustained in adjudication, that notwithstanding some
accepted as good. Now these facts are only the voice of decisions apparently adverse, whenever a man undertakes
nature uttering one of her immutable truths. It is, then, the self-defense, he is justified in acting on the facts as they
doctrine of the law, superior to all other doctrines, because appear to him. If, without fault or carelessness, he is misled
first in nature from which the law itself proceeds, that no concerning them, and defends himself correctly according
man is to be punished as a criminal unless his intent is to what he thus supposes the facts to be the law will not
wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.) punish him though they are in truth otherwise, and he was
really no occassion for the extreme measures. (Bishop's
Compelled by necessity, "the great master of all things," an apparent New Criminal Law, sec. 305, and large array of cases there
departure from this doctrine of abstract justice result from the cited.)
adoption of the arbitrary rule that Ignorantia juris non
excusat ("Ignorance of the law excuses no man"), without which The common illustration in the American and English textbooks of the
justice could not be administered in our tribunals; and compelled also application of this rule is the case where a man, masked and disguised
by the same doctrine of necessity, the courts have recognized the as a footpad, at night and on a lonely road, "holds up" his friends in a
power of the legislature to forbid, in a limited class of cases, the doing spirit of mischief, and with leveled pistol demands his money or his
of certain acts, and to make their commission criminal without regard life, but is killed by his friend under the mistaken belief that the attack
to the intent of the doer. Without discussing these exceptional cases is a real one, that the pistol leveled at his head is loaded, and that his
at length, it is sufficient here to say that the courts have always held life and property are in imminent danger at the hands of the
that unless the intention of the lawmaker to make the commission of aggressor. No one will doubt that if the facts were such as the slayer
certain acts criminal without regard to the intent of the doer is clear believed them to be he would be innocent of the commission of any
and beyond question the statute will not be so construed (cases cited crime and wholly exempt from criminal liability, although if he knew
in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance the real state of the facts when he took the life of his friend he would
of the law excuses no man has been said not to be a real departure undoubtedly be guilty of the crime of homicide or assassination.
from the law's fundamental principle that crime exists only where the Under such circumstances, proof of his innocent mistake of the facts
mind is at fault, because "the evil purpose need not be to break the overcomes the presumption of malice or criminal intent, and (since
law, and if suffices if it is simply to do the thing which the law in fact malice or criminal intent is a necessary ingredient of the "act punished
forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.) by law" in cases of homicide or assassination) overcomes at the same
time the presumption established in article 1 of the code, that the
But, however this may be, there is no technical rule, and no pressing "act punished by law" was committed "voluntarily."
necessity therefore, requiring mistake in fact to be dealt with
otherwise that in strict accord with the principles of abstract justice. Parson, C.J., in the Massachusetts court, once said:
On the contrary, the maxim here is Ignorantia facti
excusat ("Ignorance or mistake in point of fact is, in all cases of If the party killing had reasonable grounds for believing that
supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., the person slain had a felonious design against him, and
190.) under that supposition killed him, although it should
afterwards appear that there was no such design, it will not
Since evil intent is in general an inseparable element in every crime, be murder, but it will be either manslaughter or excusable
any such mistake of fact as shows the act committed to have homicide, according to the degree of caution used and the
proceeded from no sort of evil in the mind necessarily relieves the probable grounds of such belief. (Charge to the grand jury
actor from criminal liability provided always there is no fault or in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of
negligence on his part; and as laid down by Baron Parke, "The guilt of the case, p.7.)
the accused must depend on the circumstances as they appear to
him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; In this case, Parker, J., charging the petit jury, enforced the doctrine
P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., as follows:
46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207,
209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to
whether he honestly, in good faith, and without fault or negligence
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A, in the peaceable pursuit of his affairs, sees B rushing have defended himself, and in doing so with the same stick
rapidly toward him, with an outstretched arms and a pistol with which he was attacked, he did not exceed the limits of
in his hand, and using violent menaces against his life as he self-defense, nor did he use means which were not
advances. Having approached near enough in the same rationally necessary, particularly because the instrument
attitude, A, who has a club in his hand, strikes B over the with which he killed was the one which he took from his
head before or at the instant the pistol is discharged; and of assailant, and was capable of producing death, and in the
the wound B dies. It turns out the pistol was loaded darkness of the house and the consteration which naturally
with powder only, and that the real design of B was only resulted from such strong aggression, it was not given him
to terrify A. Will any reasonable man say that A is more to known or distinguish whether there was one or more
criminal that he would have been if there had been a bullet assailants, nor the arms which they might bear, not that
in the pistol? Those who hold such doctrine must require which they might accomplish, and considering that the
that a man so attacked must, before he strikes the assailant, lower court did not find from the accepted facts that there
stop and ascertain how the pistol is loaded a doctrine existed rational necessity for the means employed, and that
which would entirely take away the essential right of self- it did not apply paragraph 4 of article 8 of the Penal Code, it
defense. And when it is considered that the jury who try the erred, etc." (Sentence of supreme court of Spain, February
cause, and not the party killing, are to judge of the 28, 1876.) (Viada, Vol. I, p. 266.) .
reasonable grounds of his apprehension, no danger can be
supposed to flow from this principle. (Lloyd's Rep., p. 160.) QUESTION XIX. A person returning, at night, to his house,
which was situated in a retired part of the city, upon arriving
To the same effect are various decisions of the supreme court of at a point where there was no light, heard the voice of a
Spain, cited by Viada, a few of which are here set out in full because man, at a distance of some 8 paces, saying: "Face down,
the facts are somewhat analogous to those in the case at bar. hand over you money!" because of which, and almost at the
same money, he fired two shots from his pistol,
QUESTION III. When it is shown that the accused was sitting distinguishing immediately the voice of one of his friends
at his hearth, at night, in company only of his wife, without (who had before simulated a different voice) saying, "Oh!
other light than reflected from the fire, and that the man they have killed me," and hastening to his assistance,
with his back to the door was attending to the fire, there finding the body lying upon the ground, he cried, "Miguel,
suddenly entered a person whom he did not see or know, Miguel, speak, for God's sake, or I am ruined," realizing that
who struck him one or two blows, producing a contusion on he had been the victim of a joke, and not receiving a reply,
the shoulder, because of which he turned, seized the person and observing that his friend was a corpse, he retired from
and took from his the stick with which he had undoubtedly the place. Shall he be declared exempt in toto from
been struck, and gave the unknown person a blow, responsibility as the author of this homicide, as having
knocking him to the floor, and afterwards striking him acted in just self-defense under the circumstances defined
another blow on the head, leaving the unknown lying on the in paragraph 4, article 8, Penal Code? The criminal branch
floor, and left the house. It turned out the unknown person of the Audiencia of Malaga did not so find, but only found
was his father-in-law, to whom he rendered assistance as in favor of the accused two of the requisites of said article,
soon as he learned his identity, and who died in about six but not that of the reasonableness of the means employed
days in consequence of cerebral congestion resulting from to repel the attack, and, therefore, condemned the accused
the blow. The accused, who confessed the facts, had always to eight years and one day of prison mayor, etc. The
sustained pleasant relations with his father-in-law, whom supreme court acquitted the accused on his appeal from
he visited during his sickness, demonstrating great grief this sentence, holding that the accused was acting under a
over the occurrence. Shall he be considered free from justifiable and excusable mistake of fact as to the identity of
criminal responsibility, as having acted in self-defense, with the person calling to him, and that under the circumstances,
all the circumstances related in paragraph 4, article 8, of the the darkness and remoteness, etc., the means employed
Penal Code? The criminal branch of the Audiencia of were rational and the shooting justifiable. (Sentence
Valladolid found that he was an illegal aggressor, without supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.)
sufficient provocation, and that there did not exists rational
necessity for the employment of the force used, and in QUESTION VI. The owner of a mill, situated in a remote spot,
accordance with articles 419 and 87 of the Penal Code is awakened, at night, by a large stone thrown against his
condemned him to twenty months of imprisonment, with window at this, he puts his head out of the window and
accessory penalty and costs. Upon appeal by the accused, inquires what is wanted, and is answered "the delivery of all
he was acquitted by the supreme court, under the following of his money, otherwise his house would be burned"
sentence: "Considering, from the facts found by the because of which, and observing in an alley adjacent to the
sentence to have been proven, that the accused was mill four individuals, one of whom addressed him with
surprised from behind, at night, in his house beside his wife blasphemy, he fired his pistol at one the men, who, on the
who was nursing her child, was attacked, struck, and next morning was found dead on the same spot. Shall this
beaten, without being able to distinguish with which they man be declared exempt from criminal responsibility as
might have executed their criminal intent, because of the having acted in just self-defense with all of the requisites of
there was no other than fire light in the room, and law? The criminal branch of the requisites of law? The
considering that in such a situation and when the acts criminal branch of the Audiencia of Zaragoza finds that
executed demonstrated that they might endanger his there existed in favor of the accused a majority of the
existence, and possibly that of his wife and child, more requisites to exempt him from criminal responsibility, but
especially because his assailant was unknown, he should not that of reasonable necessity for the means, employed,

Compiled by: Vim Malicay


and condemned the accused to twelve months of prision Article 4
correctional for the homicide committed. Upon appeal, the Proximate Cause
supreme court acquitted the condemned, finding that the US VS VALDEZ
accused, in firing at the malefactors, who attack his mill at
(41 PHIL 497)
night in a remote spot by threatening robbery and
incendiarism, was acting in just self-defense of his person,
property, and family. (Sentence of May 23, 1877). (I Viada, STREET, J.:
p. 128.)
The rather singular circumstances attending the commission of the
A careful examination of the facts as disclosed in the case at bar offense of homicide which is under discussion in the present appeal
convinces us that the defendant Chinaman struck the fatal blow are these:
alleged in the information in the firm belief that the intruder who
forced open the door of his sleeping room was a thief, from whose At about noon, on November 29, 1919, while the interisland
assault he was in imminent peril, both of his life and of his property steamer Vigan was anchored in the Pasig River a short distance from
and of the property committed to his charge; that in view of all the the lighthouse and not far from where the river debouches into the
circumstances, as they must have presented themselves to the Manila Bay, a small boat was sent out to raise the anchor. The crew
defendant at the time, he acted in good faith, without malice, or of this boat consisted of the accused, Calixto Valdez y Quiri, and six
criminal intent, in the belief that he was doing no more than others among whom was the deceased, Venancio Gargantel. The
exercising his legitimate right of self-defense; that had the facts been accused was in charge of the men and stood at the stern of the boat,
as he believed them to be he would have been wholly exempt from acting as helmsman, while Venancio Gargantel was at the bow.
criminal liability on account of his act; and that he can not be said to
have been guilty of negligence or recklessness or even carelessness in
The work raising the anchor seems to have proceeded too slowly to
falling into his mistake as to the facts, or in the means adopted by him
satisfy the accused, and he accordingly began to abuse the men with
to defend himself from the imminent danger which he believe
offensive epithets. Upon this Venancio Gargantel remonstrated,
threatened his person and his property and the property under his
saying that it would be better, and they would work better, if he
charge.
would not insult them. The accused took this remonstrance as a
display of insubordination; and rising in rage he moved towards
The judgment of conviction and the sentence imposed by the trial Venancio, with a big knife in hand, threatening to stab him. At the
court should be reversed, and the defendant acquitted of the crime instant when the accused had attained to within a few feet of
with which he is charged and his bail bond exonerated, with the costs Venancio, the latter, evidently believing himself in great and
of both instance de oficio. So ordered. immediate peril, threw himself into the water and disappeared
beneath its surface to be seen no more.
Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent. The boat in which this incident took place was at the time possibly 30
or 40 yards from shore and was distant, say, 10 paces from the Vigan.
Two scows were moored to the shore, but between these and the
boat intervened a space which may be estimated at 18 or 20 yards. At
it was full midday, and there was nothing to obstruct the view of
Separate Opinions persons upon the scene, the failure of Venancio Gargantel to rise to
the surface conclusively shows that, owing to his possible inability to
swim or the strength of the current, he was borne down into the
TORRES, J., dissenting: water and was drowned.

The writer, with due respect to the opinion of the majority of the Two witnesses who were on the boat state that, immediately after
court, believes that, according to the merits of the case, the crime of Venancio leaped into the water, the accused told the remaining
homicide by reckless negligence, defined and punishes in article 568 members of the crew to keep quiet or he would kill them. For this
of the Penal Code, was committed, inasmuch as the victim was reason they made no movement looking to rescue; but inasmuch as
wilfully (voluntariomente) killed, and while the act was done without there witnesses are sure that Venancio did not again come to the
malice or criminal intent it was, however, executed with real surface, efforts at rescue would have been fruitless. The fact that the
negligence, for the acts committed by the deceased could not warrant accused at his juncture threatened the crew with violence is,
the aggression by the defendant under the erroneous belief on the therefore, of no moment except tho show the temporary excitement
part of the accused that the person who assaulted him was a under which he was laboring.
malefactor; the defendant therefore incurred responsibility in
attacking with a knife the person who was accustomed to enter said
room, without any justifiable motive. On the next day one of the friends of Venancio Gargantel posted
himself near the lighthouse to watch for the body, in the hope that it
might come to the surface and could thus be recovered. Though his
By reason of the nature of the crime committed, in the opinion of the friendly vigil lasted three days nothing came of it.
undersigned the accused should be sentenced to the penalty of one
year and one month of prision correctional, to suffer the accessory
penalties provided in article 61, and to pay an indemnify of P1,000 to It may be added that Venancio has not returned to his lodging in
the heirs of the deceased, with the costs of both instances, thereby Manila, where he lived as a bachelor in the house of an acquaintance;
reversing the judgment appealed from. and his personal belongings have been delivered to a representative

Compiled by: Vim Malicay


of his mother who lives in the Province of Iloilo. His friends and so great a wrong as that committed. (Par. 3, art. 9 Penal Code.) In
relatives, it is needless to say, take it for granted that he is dead. accordance with this finding the judge sentenced the accused to
undergo imprisonment for twelve years and one day, reclusion
The circumstances narrated above are such in our opinion as to temporal, to suffer the corresponding accessories, to indemnify the
exclude all reasonable possibility that Venancio Gargantel may have family of the deceased in the sum of P500, and to pay the costs. Said
survived; and we think that the trial judge did not err in holding that sentenced is in accordance with law; and it being understood that the
he is dead and that he came to his death by drowning under the accessories appropriate to the case are those specified in article 59 of
circumstances stated. The proof is direct that he never rose to the the Penal Code, the same is affirmed, with costs against the appellant.
surface after jumping into the river, so far as the observers could see; So ordered.
and this circumstance, coupled with the known fact that human life
must inevitably be extinguished by asphyxiation under water, is Mapa, C.J., Malcolm, Avancea and Villamor, JJ., concur.
conclusive of his death. The possibility that he might have swum
ashore, after rising in a spot hidden from the view of his companions,
we consider too remote to be entertained for a moment.

As to the criminal responsibility of the accused for the death thus Separate Opinions
occasioned the likewise can be no doubt; for it is obvious that the
deceased, in throwing himself in the river, acted solely in obedience
ARAULLO, J., dissenting:
to the instinct of self-preservation and was in no sense legally
responsible for his own death. As to him it was but the exercise of a
choice between two evils, and any reasonable person under the same I dissent from the majority opinion in this case.
circumstances might have done the same. As was once said by a
British court, "If a man creates in another man's mind an immediate The only fact that the evidence shows in that Venancio Gargantel, one
sense of dander which causes such person to try to escape, and in so of those who were in a boat of the steamer Vigan subject to the
doing he injuries himself, the person who creates such a state of mind orders of the accused Calixto Valdez and who at the time was engaged
is responsible for the injuries which result." (Reg. vs. Halliday, 61 L. T. in the work of raising the anchor of that vessel, which was then lying
Rep. [N.S.], 701. at the Pasig River, a short distance from the lighthouse and not far
from its mouth at the Manila Bay, upon seeing that the accused was
In this connection a pertinent decision from the Supreme Court of approaching him, armed with a big knife, and in the attitude of
Spain, of July 13, 1882, is cited in the brief of The Attorney-General, attacking him, threw himself into the water and disappeared from the
as follows: It appeared that upon a certain occasion an individual, surface and had not been seen again. This event took place at noon
after having inflicted sundry injuries upon another with a cutting on November 29, 1919, the boat being then about 30 or 40 yards from
weapon, pointed a shotgun at the injured person and to escape the land and about 10 steps from the Vigan, there being two lighters
discharge the latter had to jump into a river where he perished by moored to the shore and at a distance of about 18 or 20 yards from
drowning. The medical authorities charged with conducting the the boat. All of these facts are stated in the decision itself.
autopsy found that only one of the wounds caused by a cut could have
resulted in the death of the injured person, supposing that he had The original information in the present case, charging Calixto Valdez
received no succour, and that by throwing himself in the river he in y Quiri with the crime of homicide and alleging that as a result of his
fact died of asphyxia from submersion. Having been convicted as the having thrown himself into the river under the circumstances
author of the homicide, the accused alleged upon appeal that he was mentioned, Venancio Gargantel was drowned, was presented on
only guilty of the offense of inflicting serious physical injuries, or at December 8, 1919, that is, nine days afterwards.
most of frustrated homicide. The Supreme Court, disallowing the
appeal, enunciated the following doctrine: "That even though the There is no evidence whatever that the corpse of Venancio Gargantel
death of the injured person should not be considered as the exclusive had been found or, what is the same thing, that he had died. From
and necessary effect of the very grave wound which almost November 28, the day when the event occurred, until December 8,
completely severed his axillary artery, occasioning a hemorrhage when the information was filed, it cannot in any manner be
impossible to stanch under the circumstances in which that person maintained that the necessary time had passed for us to properly
was placed, nevertheless as the persistence of the aggression of the conclude, as is alleged in the information, that said Gargantel had died
accused compelled his adversary, in order to escape the attack, to by drowning, as a consequence of his having thrown himself into the
leap into the river, an act which the accused forcibly compelled the water upon seeing himself threatened and attacked by the accused.
injured person to do after having inflicted, among others, a mortal Neither does it appear in the evidence that all the precaution
wound upon him and as the aggressor by said attack manifested a necessary for us to assure ourselves, as a sure and proven fact, that
determined resolution to cause the death of the deceased, by Venancio Gargantel then died by drowning, were taken; nor is there
depriving him of all possible help and putting him in the very serious any evidence that it would have been impossible for him, by
situation narrated in the decision appealed from, the trial court, in swimming or by any other means to rise to the surface at a place other
qualifying the act prosecuted as consummated homicide, did not than the Pasig River or that where the boat was, from which he threw
commit any error of law, as the death of the injured person was due himself into the river, and in that manner save himself from death.
to the act of the accused." (II Hidalgo, Codigo Penal, p. 183.)

From the evidence of the witnesses for the prosecution which is the
The accused must, therefore, be considered the responsible author of only evidence in the record, for the accused di not take the stand, it
the death of Venancio Gargantel, and he was properly convicted of only appears that Venancio Gargantel, after having jumped from the
the offense of homicide. The trial judge appreciated as an attenuating boat, did not rise again to the surface. Such was the statement of two
circumstance the fact that the offender had no intention to commit
Compiled by: Vim Malicay
of those witnesses who were members of the boat's crew at the time. Furthermore, there is not even a presumption juris tantum that he
Another witness also declared that Gargantel was afterwards not had died, for in order that this presumption may exist, according to
again seen at the house where he lived in this city, No. 711 San Nicolas section 334 of the Code of Civil Procedure, it is necessary that no
Street, where he kept his trunks and some effects, a fact which caused information about him should have been received for seven years
his mother, who lived in the municipality of Guimbal, in the Province from his disappearance upon his throwing himself into the river,
of Iloilo, upon being informed of it and upon the failure of Venancio which occurred on November 29, 1919, that is, only about one year
to appear in said place, to give special power on the 28th of that and four months ago. And if, in order that a finding of a civil character
month of December, that is, one month afterwards, to a student, in favor of or against some person, may be made, by virtue of that
Ignacio Garzon, to get the trunks and effects of Venancio from said presumption, it is necessary that seven years should have elapsed
house. Sid Garzon himself testified, upon being asked whether without any notice being received of the person whose whereabouts
Venancio Gargantel had returned to the house of his parents since is unknown, it is not just, reasonable, or legal that the period of one
November 29, 1919, that he had no information about it, and another year and four months from his disappearance or since Venancio
witness, Pedro Garcia, of the prosecution, stated that he had probably Gargantel threw himself into the water should suffice for us to impose
died, because he had not seen Venancio Gargantel. upon the accused Calixto Valdez such a grave penalty as that of twelve
years and one day of reclusion temporal, merely assuming without
Therefore, in short, the only fact proved is that since Venancio declaring it, as a proven fact, that Gargantel has died and at the same
Gargantel threw himself into the river, upon being threatened with a time finding said accused to be the author of that death.
knife by the accused, his whereabouts has remained unknown even
at the moment of rendering judgment in this case, or, February 9, Lastly, the decision of the English Supreme Court or that of the
1920, that is, two and one-half months after the occurrence of the Spanish Supreme Court dated July 13, 1882, cited by the majority
event. opinion is not applicable. The first, is not applicable because in the
present case it is not proved, beyond reasonable doubt, that some
It is stated in the decision that the friend and parents of Gargantel damage resulted to Gargantel, just as it cannot be considered as
give him up for dead. There is nevertheless in the record no statement proved that he had died, or that he had been injured or that he had
of any parent of Gargantel to that effect; for his mother Maria suffered some injury after having thrown himself into the river as a
Gatpolitan, a resident of the municipality of Guimbal, merely stated result of the threat of the accused. The second is not applicable
in the power of attorney executed in favor of Ignacio Garzon that the because the decision of the Supreme Court of Spain refers to a case,
latter should take steps in order that the city fiscal might investigate in which the injured party had already been wounded with a cutting
the death of her son which, according to information, was caused by instrument by the accused before throwing himself into the river
another members, of the crew of the steamer Vigan; and none of his upon the latter aiming at him with his gun, it having afterwards been
friends, that is, none of the two members of the party in the boat at proved upon his being taken out of the river that the wound inflicted
that time and of the crew of the steamer Vigan, nor Maximo Gumbog, upon him by the accused was mortal; and, consequently, it was
the owner of the house in which Gargantel lived in this city, nor Pedro declared by said court that, even if the death of the deceased be
Garcia, another member of the crew of that steamer, and finally, nor considered as not having resulted exclusively and necessarily from
Ignacio Garzon himself has stated that he gave up Gargantel for dead, that most grave wound, the persistence of the aggression of the
for the simple reason that this was not possible, for they only knew accused compelled his adversary to escape it and threw himself into
that he did not again rise to the surface and was not seen again after the river, by depriving him of all possible help and placing him in the
having thrown himself into the river from the boat. serious situation related in the judgment appealed from -a case
which, as is seen, is very different from that which took place in the
present case.
For this reason it is stated in the decision that the circumstances
therein stated are such that they exclude all reasonable possibility
that Venancio Gargantel could have survived and that the For the reasons above stated, I am of the opinion, with due respect to
circumstance that never rose to the surface after having jumped into the opinion of the majority, that the accused Calixto Valdez y Quiri
the river, as witnessed by the persons present, together with the cannot be found guilty of homicide and should be acquitted.
admitted fact that human life is necessarily asphyxiated under the
water, is conclusive that he died. Then, there is nothing more than a PEOPLE VS ALMONTE
deduction that Gargantel had died based upon those facts and (56 PHIL 54)
circumstances. IMPERIAL, J.:

In my opinion this is not sufficient to convict the accused as guilty of Purificacion Almonte is charged with the crime of homicide, the
homicide, because there is the possibility that Gargantel had risen to information reading as follows:
the surface at some place away from the where he threw himself into
the river and had embarked on some other vessel in the same river or "The undersigned provincial fiscal charges Purificacion Almonte with
out of it in the bay and had gone abroad, or to some province of these the crime of homicide, committed as follows:
Islands and is found in some municipality thereof, cannot be denied.
And this is very probable inasmuch as it does not appear in the record "That on or about October 1, 1930, in the municipality of Sorsogon,
that the necessary investigation has been made in order to Province of Sorsogon, Philippine Islands, and within the jurisdiction of
determined even with only some measure of certainty, not to say this court, the aforementioned accused did willfully, unlawfully, and
beyond all reasonable doubt, that it was and is impossible to find said feloniously beat, attack, and assault one Felix Te Sue with a knife,
person or determined his whereabouts. which she carried, producing a wound in the abdomen which was the
immediate cause of the death of the said Felix Te Sue.

"Contrary to law.
Compiled by: Vim Malicay
"Sorsogon, Sorsogon, November 7, 1930. felt after the operation and during his illness. It is contended that
according to the record, the real cause of the movements was, so the
(Sgd.) "JACINTO YAMZON deceased himself declared, the excessive warmth of the bed and the
fact that he was unaccustomed to such a bed. To ascertain this
"Provincial Fiscal" important point requires a careful examination of the evidence upon
this particular.
The accused pleaded not guilty, and after the trial, at which she was
represented by counsel, she was convicted of the said crime of Doctor Eduardo Ortega, in charge of the Sorsogon Provincial Hospital,
homicide, and sentenced to fourteen years, eight months, and one a physician of admitted ability and skill, speaking of the patients
day of reclusion temporal, to indemnify the heirs of the deceased in physical condition when he entered the hospital, testified as
the sum of P1,000, and to pay the costs. The defendant appealed. follows:jgc:chanrobles.com.ph

The facts which have been proved beyond question are as follows: "Q. What was the result of your examination?

Until a week before the crime, the accused lived maritally with the "A. I found a wound in the abdomen, on the left side near the
Chinaman Felix Te Sue who was a married man. Because one Miguela umbilical region; it was not deep and did not penetrate very far, but
Dawal, with whom he had also lived maritally, threatened to bring suit it passed through the muscle tissue.
against him unless he rejoined her, the Chinaman and the accused
voluntarily agreed to separate. From that time on Te Sue lived in the "Q. What caused the death of Felix Te Sue?
barrio of Guinlajon, municipality of Sorsogon, Province of Sorsogon,
together with the said Miguela Dawal. On the morning of October 1, "A. He died of a secondary internal hemorrhage.
1930, the accused visited her former paramour and on entering the
house, found him with Miguela. When Te Sue saw her, he approached "Q. How?
and told her to go away at once because her new paramour might get
jealous and do her harm. The accused insisted upon remaining, and "A. The wound was caused by a certain blow, because the penknife
on being pushed by Te Sue and Miguela, feeling that she was being was not very sharp; the force of the blow which introduced the knife
unjustly treated, took hold of a small penknife she carried and into the flesh produced a secondary congestion of the internal organ
stabbed the man in the abdomen. Horrified, perhaps, at her deed, she so that any unnecessary movement on the patients part would cause
fled to the street, leaving the blade sticking in her victims abdomen, congestion of the veins, or would make them more congested and
and, taking the first bus that chanced to pass, finally went home. The cause them to bleed.
injured man was at once taken to the provincial hospital where he
was given first aid treatment, and Doctor Ortega performed a slight "Q. And in the case of Felix Te Sue, did they bleed?
operation upon him, cleaning and sewing up his wound. It was not
serious, according to the doctor, and might be healed in a week; but "A. He began to bleed after he had been twenty-four hours in the
on the sixth day the patient succumbed to complications which we hospital.
shall treat of later on. The relatives of the deceased paid a little over
P200 for the hospital treatment and the expenses of his last illness.
"Q. Why do you call it a secondary hemorrhage?

In this instance the defense assigns the following alleged errors as


"A. There are many kinds of hemorrhages: Primary, in this particular
committed by the trial court in its judgment:
case, if the wound had reached the internal organs and severed the
veins of those organs it would be called a primary hemorrhage
"I. The trial judge erred in holding that the unnecessary movements because it was directly caused by the wound; but there was no
of the deceased while in the provincial hospital of Sorsogon for immediate hemorrhage after the wound was inflicted, but twenty-
medical treatment were caused by the pain of the wound inflicted by four hours later; in other words, there was what is called a secondary
the accused. hemorrhage.

"II. The trial judge erred in holding the accused criminally responsible "Q. You also said that Felix Te Sue had made an unnecessary
for the secondary hemorrhage which caused the death of the movement?
deceased.
"A. Yes, sir.
"III. The trial judge erred in holding the accused responsible for the
death of the offended party as the direct and immediate consequence
"Q. Can you tell the court what were those unnecessary movements?
of the wound inflicted by the accused.
"A. Those movements were the following: The patient began by
"IV. The trial judge erred in convicting the accused of the crime of
moving from side to side; then he would sit up at night, and perhaps
homicide as charged in the information instead of lesiones leves as
jump out of bed, and begin walking about; when asked why he did
supported by the evidence in this case.
that, contrary to medical instructions, he explained that he could not
lie down because the bed was too warm, and that he was not used to
The first three assignments of error raise questions of fact and what lying in bed.
really caused the death of the deceased. It is strongly argued that the
judgment appealed from is erroneous in finding that the deceaseds
"Q. Do you mean to say that the patients movements brought on the
movements, which Doctor Ortega declares were the cause of the
secondary internal hemorrhage?
secondary hemorrhage that produced his death, were due to the pain
Compiled by: Vim Malicay
"A. Yes, sir, they produced the secondary internal hemorrhage. "A. He left his bed the first day after the operation, and immediately
after it, when he was not fastened in because he did not seem to be
"Q. And he died because of that secondary internal hemorrhage? violent." (Pages 16-22, transcript of the stenographic notes.)

"A. Yes, sir. From the foregoing testimony it may be inferred: That the deceased
was stabbed on the left side of the abdominal region, near the navel;
"Q. Was the wound alone, as treated by you, sufficient to cause the that the wound did not involve any internal organ; that upon arriving
death of Felix Te Sue? at the hospital, he was submitted to a minor operation which
consisted in cleaning, medicating, and suturing the wound; that upon
"A. If the patient had lain in bed quietly, in order to avoid increasing his arrival, the patient was in a nervous state; that during the
the congestion of the internal veins, there would have been no operation they tied down the patient; that immediately after the
secondary hemorrhage. operation Doctor Ortega admonished him to keep quiet because any
movement he might make would change his pathological state for the
"Q. But the wound you treated could have been healed? worse and bring about dangerous complication; that in spite of this
admonition the deceased moved about, sitting up in bed, getting up
and pacing about the room; that because of this, the internal vessels,
"A. Yes, sir; it could have been.
already congested because of the wound, bled, and the hemorrhage
thus produced caused his death.
"Q. In how many days could it have been healed?
The defense contends, with which the Attorney-General agrees, that
"A. That wound, if there had been no secondary infection, would have
according to Doctor Ortegas testimony the determining cause of Te
healed up in a week.
Sues death was not the wound inflicted by the accused, but his own
carelessness in moving about against the doctors orders, which
"Q. You said that Felix Te Sue had been asked why he moved about produced the internal hemorrhage. We agree with both parties that
contrary to the physicians instructions; what instructions did you give according to Doctor Ortega, the immediate and determining cause of
him? the death was none other than the internal hemorrhage produced by
the rupture of the abdominal blood vessels; but we cannot agree, in
"A. As soon as he had been admitted into the hospital, he was view of the evidence, that the real cause of said death was not the
examined, and then made to lie in bed. Medical treatment was then wound inflicted upon the victim. Carefully analyzing Doctor Ortegas
administered, and he was given to understand that he should remain testimony, we reach the inevitable conclusion that the internal veins
in bed, for any unnecessary movement might aggravate his condition, were congested from the beginning because of the force of the blow
and that what he needed was complete rest. which produced the wound, for that is what the doctor means when
he sais that "the wound was caused by a certain blow, because the
"Q. If he had not made those movements, do you think death would penknife was not very sharp, the force of the blow which introduced
have ensued? the knife into the flesh produced a secondary congestion of the
internal organ so that an unnecessary movement on the patients part
"A. I am very sure he would not have had that secondary hemorrhage, would cause congestion of the veins, or would make them more
because as a matter of fact, during the first twenty-four hours he had congested, causing them to bleed" ; and that what really impelled the
no symptoms of having an internal hemorrhage. patient to violate the doctors orders, by sitting up in bed and pacing
about the room, was not, as the defense insinuates, a desire to
"Q. And that internal congestion of the veins, although those veins aggravate the criminal liability of the accused, but simply his nervous
contained more blood than usual, would not have caused the condition, which was noted from the moment he entered the
hemorrhage? That is to say, the veins would not have burst, if the provincial hospital. It was not the warmth of the bed or his not being
patient Felix Te Sue had not moved about, as you have said? used to it that made the patient act as he did, but the pathological
state created by the illness brought on by the wound from which he
"A. Yes, sir; that internal congestion would not have burst if the was suffering. We are convinced that under normal conditions, if the
patient had not moved about. patient had not been ill, he would not have violated the doctors
orders, knowing, as he did, that the slightest movement might
"Q. Can you tell us, doctor, why strangers who know nothing about occasion a complication or internal hemorrhage capable of causing
the care of the sick are placed in charge of a patient so delicate that death.
his moving may cause his death, as indeed it did, in this case?
The point raised by Viada in volume 3 of his work, pages 41 and 42,
"A. The patient was not placed in the care of strangers; we have involves facts similar to those established in this case, and we believe
nurses to attend and see to the patient as often as it is needed, the decision of the Supreme Court of Spain is perfectly applicable to
besides the physicians visits to him; but even in the presence of the this case:.ph
doctor and the hospital attendants, and after we had put the patient
to bed, he continued to struggle with us. "Even when the doctors say that the death was due not so much to
the wound, which in a better constituted person would have healed
"Q. Do you mean to say, then, that Felix Te Sue was fastened in his in thirty or forty days, as to the patients purely nervous
bed, and in spite of that he was able to leave it and walk about? temperament, his irritability and other causes, all of which depend
upon his physical constitution: should such a death be qualified as
HOMICIDE? The Supreme Court has ruled affirmatively: Inasmuch as
a man is responsible for the consequences of his act and in this case

Compiled by: Vim Malicay


the physical condition and temperament of the offended party At this juncture it is well to remember that, as we stated in the
nowise lessen the evil, the seriousness whereof is to be judged, not beginning, the patients nervous condition when the complication or
by the violence of the means employed, but by the result actually internal hemorrhage which caused death set in, was an inherent
produced and as the wound which the appellant inflicted upon the physiological condition produced by the wound in the abdomen. It
deceased was the cause which determined his death, without his goes without saying that if he had not been wounded he would not
being able to counteract its effects, it is evident that the act in have undergone that extraordinary state and condition, nor have had
question should be qualified as homicide, etc. (Decision of April 3, to leave his bed during the critical stage of his illness.
1879, published in the Gazette on the 16th of June.)"
Lastly, in United States v. Zamora (32 Phil., 218), we held that "One
In the case cited the doctors were of the opinion that death was not who performs a criminal act should be held to liability for the act and
an immediate consequence of the wound received, but was rather for all of its consequences, although both were inflicted upon a
due to the victims purely nervous temperament, his irritability and person other than the one whom the felon intended to injure.
other causes, peculiar to his physical constitution. In the case in
question, it is sought to attribute the internal hemorrhage that The cases which the Attorney-General cites in his brief are not
directly caused death, not to the wound or injury, but to the patients applicable, for the reason that in them all the deaths were due to alien
movements, overlooking the fact that they were due to his nervous acts, malicious and imprudent, performed by the injured persons
condition, and that this state of nervousness could only be the result themselves. We have shown that in the case at bar the real and actual
of the wound inflicted by the appellant. We hold, therefore, that the cause of death of the deceased was the hemorrhage of the internal
real cause of death in this case was not the bodily movements veins, which had already been congested by the wound produced and
referred to, but the congestion of the internal veins produced the patients nervous condition, rather than the so-called bodily
beforehand by the force of the blow which caused the wound and the movements, and that these, if they were the immediate cause of his
nervous condition of the deceased. death, were the direct consequence of the patients pathological
condition or nervousness. At any rate, they are both traceable to the
In United States v. Sornito (4 Phil., 357), we held that "In crimes wound inflicted by the accused.
against the life of a human being the results and effects of the criminal
acts must necessarily be taken into consideration in order to establish The last assignment of error is but a corollary to the first three, which
the seriousness and extent of the evil or injury produced and to define have just been refuted, and it is contended that the accused can only
the crime in accordance with the law. It must also be taken into be convicted of slight physical injuries, instead of the serious crime of
consideration that the guilty parties are responsible under the law for homicide. If the appellant must answer for all the consequences of
all the unlawful acts executed by them in violation of its principles and her acts voluntarily performed, as we have shown, it necessarily and
for all the consequences of those acts."cralaw virtua1aw library logically follows that she must be convicted of the graver offense.

In United States v. Montes (6 Phil., 443), we also held that "Where a The appellant is entitled to the mitigating circumstances of not having
person voluntarily and with intent of injuring another commits an act intended to commit so serious a crime as that committed, and of
which is notoriously unlawful, he shall be held responsible for the having acted with passion and obfuscation. The first is shown by the
consequences of his criminal action, even though when such wrongful fact that she made use of a small penknife, and the second, by the
act constitutes the crime of homicide it appears that he had no fact that before the attack she had been pushed out of the room
intention of killing the deceased."cralaw virtua1aw library where the victim was, and that she considered such treatment as an
offense or abuse. The penalty must therefore be reduced one degree
In United States v. Navarro (7 Phil., 713), we reaffirmed the same or to prision mayor.
principle holding that" the firm and unalterable jurisprudence of the
Supreme Court (interpreting the Penal Code now in force and effect) Wherefore, the judgment appealed from is modified and the
is that the crime of homicide is committed when death ensues or appellant is sentenced to eight years and one day of prision mayor, to
follows, as the result of a wound inflicted by another, whether the indemnify the heirs of the deceased in the amount of P500, to suffer
death be the precise and necessary consequence of the injuries or the accessory penalties of article 61 of the Penal Code, and to pay the
wounds, or whether death resulted from accidents caused or brought costs of both instances. So ordered.
on by reason of such wounds or injuries received by the patient.
(Judgment of the Supreme Court of Spain, May 8, 1890.) It is the firm Avancea, C.J., Johnson, Street and Villamor, JJ., concur.
and unalterable doctrine, and so held by the Court of Cassation, that
the aggressor is responsible for all the natural consequences of the Separate Opinions
aggression when these consequences do not owe their origin to acts
or malicious omissions imputable to the assaulted party. (Judgment
of the Supreme Court of Spain, May 30, 1892.)"
VILLA-REAL, J., dissenting:chanrob1es virtual 1aw library
The same doctrine was laid down in United States v. Monasterial (14
Phil., 391). Here it was held, among other things, "persons who are It appears from the testimony of Dr. Eduardo Ortega that immediately
responsible for an act constituting a crime are also liable for all the after being wounded by the accused, Felix Te Sue went to the hospital
consequences arising therefrom and inherent therein, other than of Sorsogon where he was examined by said doctor, who found that
those due to incidents entirely foreign to the act executed, or which he had a wound on the left side of the abdomen near the umbilical
originate through the fault or carelessness of the injured person, region, which while it penetrated the muscle tissue, was not deep and
which are exceptions to the rule not arising in the present case. did not produce a primary hemorrhage, for it did not reach the
internal organs, and might be healed in seven days. A minor operation
was performed upon him, but in order to do so, he had to be tied

Compiled by: Vim Malicay


down, because he was afraid. After the operation he was put to bed, omissions of the injured person, which unfortunately brought on his
given medical treatment, and told to keep quiet because he needed death, and which in all justice and reason can only be imputed to the
complete rest and any unnecessary movement might aggravate his latter, and not to the defendant, who had no share in them and could
condition. Besides the hospital nurses and attendants, two relatives not have prevented them. (Decision of June 15, 1874, Gazette for
of the injured person watched him night and day. August 26th.)" 5 Viada, 5th edition, page 80.

As the penknife was not sharp, the force of the blow by which it was "QUESTION 23. When a wound in the head, which is essentially a less
introduced into the flesh produced a secondary congestion in the serious physical injury, gives rise to traumatic erysipelas, which in turn
internal organ, which, through any unnecessary movement on the produces cerebral meningitis from which the person injured dies in
patients part might cause congestion of the veins. After twenty-four eleven days, and the doctors declare that the erysipelas may have
hours had passed without any indication of an internal hemorrhage, been due to the patients carelessness in constantly exposing himself
it set in with the bursting of the congested veins, because the patient, to a draft: Is the act homicide or merely less serious physical injuries?
disobeying the doctors orders, moved from side to side, sat up in bed The Audiencia of Granada held in favor of the former, but upon appeal
at night, got up, and paced about the room, notwithstanding the on the ground that articles 419 and 433 of the Code had been
warnings of the nurses and relatives who attended him, saying that violated, because the crime of less serious physical injuries was
he could not remain lying down because the bed was too warm for penalized as if it were homicide, the Supreme Court held that the
him, and that he was not used to that kind of furniture. In the opinion appeal had been well taken, because, according to the opinion of the
of the physician, the patient would not have suffered a secondary doctors, the erysipelas which preceded the meningitis that produced
hemorrhage and death would not have occurred, if he had not moved death may have been due to the patients carelessness in constantly
about. exposing himself to a draft, contrary to said doctors orders; and as it
is not alleged that the other causes which might have contributed to
In finding the defendant-appellant guilty of the crime of homicide and it actually occasioned the death, there is some doubt, for a crime is
not merely of slight physical injuries, the majority rely upon the determined by the act wherein it consists, apart from the event, the
holding that the movements made by the patient against the doctors cause of which is unknown, and if this be so, the crime in question is
orders, which caused the rupture of the veins already congested by none other than less serious physical injuries. (Decision of December
the impact of the blow, were due to his nervous condition and not to 17, 1878, Gazette of February 7, 1879.)" 5 Viada, 5th edition, page 81.
the excessive warmth he felt or to his not being used to sleeping in a
bed. "QUESTION 24. If in the verdict it is stated that the wounds inflicted
upon the deceased by the defendant would have healed, with the loss
The doctor who examined the deceased, and upon whose testimony of the arm, had it not been for complications due to mistakes
the majority base their conclusion, said nothing about the victims committed by the doctor in the surgical operation and treatment: Is
nervous temperament, nor has the latter said he was so. The doctor the crime homicide? It was so held by the Audiencia of Jaen; but upon
said quite plainly and we have no reason to doubt him that the appeal taken by the accused, the Supreme Court only found him guilty
patients restlessness was due to the fact that the bed was to warm of the crime of serious physical injuries: Whereas, although as this
for him, and that he was not used to it. One need not have a nervous court has repeatedly held, a person is liable for all justiciable acts
temperament in order to look for coolness and comfort in sleeping. If contrary to law and for all the consequences thereof, having inflicted
the injured man, for the sake of a cooler and more comfortable bed, physical injuries, from which or from whose direct or immediate
wished to risk his life by a purely conscious and voluntary act consequences death results, either incidentally or accidentally, the
violating the doctors instructions and refusing to listen to his offender must answer for the ultimate result of his act, i.e., for the
warnings and those of the persons attending him, he alone must be death resulting from the injury he inflicted, yet this principle is not
held responsible for his own death, which resulted from his applicable where it clearly appears that the injury would not have
carelessness; and such death cannot be attributed to the person who caused death, in the ordinary course of events, but would have healed
wounded him slightly, and who is, indeed, responsible for the natural in so many days, and where it is shown beyond all doubt that the
and logical consequences of such a voluntary act, but not for the death is due to the malicious or careless acts of the injured person or
death, which as we have seen, was not a natural and logical a third person, because it is a more and equitable principle universally
consequence of the wound. recognized and constantly applied, that one is only accountable for
his own acts and their natural or logical consequences, and not for
Very similar to this are the cases cited by Viada in volume V of the fifth those which bear no relation to the initial cause and are due to the
edition of his commentaries, where the Supreme Court of Spain laid carelessness, fault, or lack of skill of another, whether it be the injured
down the following doctrines: man himself or a third person: Whereas, the proper jury having found,
upon the strength of the evidence before it, that the wounds inflicted
"QUESTION 22. If the immediate cause of death was traumatic by the appellant Jeronimo Navarro upon Bartolome Martinez would
erysipelas complicated with meningoencephalitis arising from the have healed, with the loss of an arm, had it not been for certain
erysipelas itself, and the remote and original cause of the latter was complications due to the mistakes committed by the doctor in the
the wound inflicted by the defendant on the upper part of the surgical operations and treatment thereof, it is obvious that following
offended partys left parietal bone, although if the victim were not the doctrine set forth in the foregoing reasonings, the appellant
predisposed to erysipelas, had not gone out in the open, and had should not have been convicted of the crime of homicide, but merely
been given proper medicine, it is probable the accident would have of serious physical injuries with the loss of a principal member, this
been avoided and the wound healed in thirty days. Is the person who being the only consequence imputable to him in view of his act,
inflicted the wound guilty of homicide or of physical injuries? The inasmuch as the death was due wholly to another persons
Supreme Court has held in favor of the latter and lighter offense, carelessness or lack of skill, etc. (Decision of April 2, 1903, Gazette of
arguing that to make the special circumstances stated above qualify May 23d.)" 5 Viada, 5th edition, page 81.)
the act prosecuted as homicide would be to hold the accused
responsible for the consequences of grossly imprudent acts and
Compiled by: Vim Malicay
In the first two cases cited, it will be observed that the deceased Erminio (5) Modesta R. Brondial (6) Isabel Felices and (7) Teodoro F.
received less serious physical injuries and that death was due to their Bautista in the sum of P6,000 and to pay Amanda Mapa the sum of
own carelessness or abuses committed by them. In the third case, the P500 (Criminal Case No. SC-966). The judgment of conviction was
deceased had been seriously injured, but died as a result of the based on the following facts:
mistakes of the doctor in the surgical operation and treatment of the
injuries. The Supreme Court of Spain held them criminally liable for Antonio Toling and Jose Toling, twins, both married, are natives of
the crime of less serious physical injuries in the first two, and of Barrio Nenita which is about eighteen (or nine) kilometers away from
serious physical injuries in the third, because these, and not homicide Mondragon, Northern Samar. They are illiterate farmers tilling their
were the natural consequences of their unlawful acts, inasmuch as own lands. They were forty-eight years old in 1966. Antonio is one
death was the result of carelessness and abuses committed by the hour older than Jose. Being twins, they look alike very much.
injured persons themselves, and of the mistakes of the doctor in the However, Antonio has a distinguishing cut in his ear (44 tsn Jan. 14,
surgical operation and treatment of the wounds. 1966).

In United States v. Embate (3 Phil., 640), where the real cause of death
Antonio's daughter, Leonora, was working in Manila as a
could not be determined, this court, through Chief Justice Arellano,
laundrywoman since September, 1964. Jose's three children one girl
held:
and two boys, had stayed in Manila also since 1964.
"All the witnesses attribute the death of the child to the illness it was
suffering; but the doctor, who did nothing more than to examine the Antonio decided to go to Manila after receiving a letter from Leonora
body and give his certificate as to certain bruises on the thighs, in his telling him that she would give him money. To have money for his
testimony states that the body showed unequivocal signs of a serious expenses, Antonio killed a pig and sold the meat to Jose's wife for sixty
disease of the heart, and that the bruises could not have caused the pesos. Jose decided to go with Antonio in order to see his children. He
death of the child, but might have contributed to accelerate the fatal was able to raise eighty-five pesos for his expenses.
result of that illness, which was a serious affection of the heart. Being
asked by the judge whether the gravity of the childs illness, owing to On January 6, 1965, with a bayong containing their pants and shirts,
the affection of the heart, was such that it might have died without the twins left Barrio Nenita and took a bus to Allen. From there, they
the blows which were inflicted upon him, the witness replied that if took a launch to Matnog, Sorsogon. From Matnog, they went to
in the first place the age of the child is taken into consideration, and Daraga, Albay on board an Alatco bus, and from Daraga, they rode on
in the second its surrounding circumstances, its condition was such as the train, arriving at the Paco railroad station in Manila at about seven
to lead one to expect a fatal result, no physician being in attendance. o'clock in the morning of January 8th. It was their first trip to the big
"Upon being further questioned as to whether he believed that the city.
blows inflicted upon the child and which produced the bruises were
the cause of its death, he replied that as no other approximate cause At the Paco station, the twins took a jeepney which brought them to
is known than the great excitement produced by those blows, it may Tondo. By means of a letter which Aniano Espenola a labor-recruiter,
be inferred that they were the sole cause which precipitated the fatal had given them, they were able to locate an employment agency
result of the illness of the child. where they learned the address of the Eng Heng Glassware. Antonio's
daughter was working in that store. Accompanied by Juan, an
"We do not find in this testimony, given solely upon the result of the employee of the agency, they proceeded to her employer's
examination of the body, sufficient evidence as to the true cause of establishment. Leonora gave her father fifty pesos. Sencio Rubis
the death of the child. But it is true tha the accused did strike him for Antonio's grandson, gave him thirty pesos. Antonio placed the eighty
the purpose of inflicting punishment, and as by this he committed a pesos in the right pocket of his pants. It was then noontime.
misdemeanor which should not go unpunished, and which can be
punished in this same cause under the provisions of section 29 of
General Orders, No. 58, . . ."cralaw virtua1aw library Jose was not able to find any of his children in the city. The twins
returned to the agency where they ate their lunch at Juan's expense.
For all the foregoing, I am of the opinion that the defendant- appellant From the agency, Juan took the twins to the Tutuban railroad station
can only be made to answer for the misdemeanor of slight physical that same day, January 8th, for their homeward trip.
injuries as defined and penalized in article 587 of the Penal Code,
inasmuch as the wound inflicted by her might have been healed in After buying their tickets, they boarded the night Bicol express train
seven days, the penalty fixed being arresto menor. at about five o'clock in the afternoon. The train left at six o'clock that
evening.
Malcolm and Romualdez, JJ., concur.
The twins were in coach No. 9 which was the third from the rear of
PEOPLE VS TOLENG ET. AL. the dining car. The coach had one row of two-passenger seats and
(G.R. NO. L-33535) another row of three- passenger seats. Each seat faced an opposite
seat. An aisle separated the two rows. The brothers were seated side
by side on the fourth three-passenger seat from the rear, facing the
AQUINO, J.:
back door. Jose was seated between Antonio, who was near the
window, and a three-year old boy. Beside the boy was a woman
Antonio Toling and Jose Toling, brothers, appealed from the decision breast-feeding her baby who was near the aisle. That woman was
of the Court of First Instance of Laguna, finding them guilty of multiple Corazon Bernal. There were more than one hundred twenty
murder and attempted murder, sentencing them to death and passengers in the coach. Some passengers were standing on the aisle.
ordering them to indemnify each set of heirs of (1) Teresita B.
Escanan, (2) Antonio B. Mabisa, (3) Isabelo S. Dando, (4) Elena B.
Compiled by: Vim Malicay
Sitting on the third seat and facing the brothers were two men and an Aldea shouted at Antonio to surrender but the latter made a thrust at
old woman who was sleeping with her head resting on the back of the him with the scissors. When Antonio was about to stab another
seat (Exh. 2). on the two-passenger seat across the aisle in line with person, Aldea stood on a seat and repeatedly struck Antonio on the
the seat where the brothers were sitting, there were seated a fat head with the butt of his pistol, knocking him down. Aldea then
woman, who was near the window, and one Cipriano Reganet who jumped and stepped on Antonio's buttocks and wrested the scissors
was on her left. On the opposite seat were seated a woman, her away from him. Antonio offered resistance despite the blows
daughter and Amanda Mapa with an eight-month old baby. They administered to him.
were in front of Reganet.
When the train arrived at the Calamba station, four Constabulary
Two chico vendors entered the coach when the train stopped at soldiers escorted the twins from the train and turned them over to
Cabuyao, Laguna. The brothers bought some chicos which they put the custody of the Calamba police. Sergeant Rayel took down their
aside. The vendors alighted when the train started moving. It was names. The bloodstained scissors and knife were turned over to the
around eight o'clock in the evening. Constabulary Criminal Investigation Service (CIS).

Not long after the train had resumed its regular speed, Antonio stood Some of the victims were found dead in the coach while others were
up and with a pair of scissors (Exh. B) stabbed the man sitting directly picked up along the railroad tracks between Cabuyao and Calamba.
in front of him. The victim stood up but soon collapsed on his seat. Those who were still alive were brought to different hospitals for first-
aid treatment. The dead numbering twelve in all were brought to
For his part, Jose stabbed with a knife (Exh. A) the sleeping old woman Funeraria Quiogue, the official morgue of the National Bureau of
who was seated opposite him. She was not able to get up anymore. 1 Investigation (NBI) in Manila, where their cadavers were autopsied
(Exh. C to C-11). A Constabulary photographer took some pictures of
the victims (Exh. G to I-2, J-1 and J-2).
Upon seeing what was happening, Amanda Mapa, with her baby,
attempted to leave her seat, but before she could escape Jose
stabbed her, hitting her on her right hand with which she was Of the twelve persons who perished, eight, whose bodies were found
supporting her child (Exh. D-2). The blade entered the dorsal side and in the train, died from stab wounds, namely:
passed through the palm. Fortunately, the child was not injured. Most
of the passengers scurried away for safety but the twins, who had run (1) Isabel Felices, 60, housewife, Ginlajon, Sorsogon.
amuck, stabbed everyone whom they encountered inside the coach. 2
(2) Antonio B. Mabisa, 28, married, laborer, Guinayangan, Quezon.
Among the passengers in the third coach was Constabulary Sergeant
Vicente Z. Rayel, a train escort who, on that occasion, was not on duty. (3) Isabelo S. Dando, 45, married, Paracale, Camarines Norte.
He was taking his wife and children to Calauag, Quezon. He was going
to the dining car to drink coffee when someone informed him that
(4) Susana C. Hernandez, 46, married, housekeeper, Jose Panganiban,
there was a stabbing inside the coach where he had come from. He
Camarines Norte.
immediately proceeded to return to coach No. 9. Upon reaching
coach 8, he saw a dead man sprawled on the floor near the toilet. At
a distance of around nine meters, he saw a man on the platform (5) Teodoro F. Bautista, 72, married, Nawasa employee, San Juan,
separating coaches Nos. 8 and 9, holding a knife between the thumb Rizal.
and index finger of his right hand, with its blade pointed outward. He
shouted to the man that he (Rayel) was a Constabularyman and a (6) Modesta R. Brondial 58, married, housekeeper, Legaspi City.
person in authority and Rayel ordered him to lay down his knife (Exh.
A) upon the count of three, or he would be shot. (7) Elena B. Erminio 10, student, 12 Liberty Avenue, Cubao, Quezon
City and
Instead of obeying, the man changed his hold on the knife by clutching
it between his palm and little finger (with the blade pointed inward) (8) Teresita B. Escanan, 25, housemaid, 66 Menlo Street, Pasay City
and, in a suicidal impulse, stabbed himself on his left breast. He slowly (Exh. C to C-3, C-7, C-8, C-9, C-11, L to L-2, N to N-2, 0 to 0-2, P to P-2,
sank to the floor and was prostrate thereon. Near the platform where Q to Q-2, R to R-2 and T to T-2)
he had fallen, Rayel saw another man holding a pair of scissors (Exh.
B). He retreated to the steps near the platform when he saw Rayel
armed with a pistol. Four dead persons were found near the railroad tracks. Apparently,
they jumped from the moving train to avoid being killed. They were:
Rayel learned from his wife that the man sitting opposite her was
stabbed to death. (1) Timoteo U. Dimaano, 53 married, carpenter, Miguelin, Sampaloc,
Manila. .
Constabulary Sergeant Vicente Aldea was also in the train. He was in
the dining car when he received the information that there were (2) Miguel C. Oriarte, 45, married, Dalagan, Lopez, Quezon.
killings in the third coach. He immediately went there and, while at
the rear of the coach, he met Mrs. Mapa who was wounded. He saw (3) Salvador A. Maqueda 52, married, farmer, Lopez, Quezon and
Antonio stabbing with his scissors two women and a small girl and a
woman who was later identified as Teresita B. Escanan (Exh. I to I-3).
Antonio was not wounded. Those victims were prostrate on the seats
of the coach and on the aisle.
Compiled by: Vim Malicay
(4) Shirley A. Valenciano, 27, married, housekeeper, 657-D Jorge against the Toling brothers an information for multiple murder (nine
Street, Pasay City (Exh. C-4. C-5, C-6, C-10, J, J-1, J-2, K to K-2, M to M- victims), multiple frustrated murder (six victims) and triple homicide
3 and S to S-2). (as to three persons who died after jumping from the running train to
avoid being stabbed).
Among the injured were Lucila Pantoja, Baby X, Mrs. X, Mrs. Armanda
Mapa-Dizon, Brigida Sarmiento-Palma, Cipriano Reganet and Corazon At the arraignment, the accused, assisted by their counsel de
Bernal-Astrolavio (Exh. D to D-5). Mrs. Astrolavio supposedly died oficio pleaded not guilty. After trial, Judge Arsenio Naawa rendered
later (43 tsn January 14, 1966). the judgment of conviction already mentioned. The Toling brothers
appealed.
Mrs. Mapa declared that because of the stab wound inflicted upon
her right hand by Jose Toling, she was first brought to the Calamba In this appeal, appellants' counsel de oficio assails the credibility of
Emergency Hospital. Later, she was transferred to the hospital of the the prosecution witnesses, argues that the appellants acted in self-
Philippine National Railways at Caloocan City where she was confined defense and contends, in the alternative, that their criminal liability
for thirteen days free of charge. As a result of her injury, she was not was only for two homicides and for physical injuries.
able to engage in her occupation of selling fish for one month, thereby
losing an expected earning of one hundred fifty pesos. When she ran According to the evidence for the defense (as distinguished from
for safety with her child, she lost clothing materials valued at three appellants' statements, Exhibits 1 and 8), when the Toling twins were
hundred pesos aside from two hundred pesos cash in a paper bag at the Tutuban Railroad Station in the afternoon of January 8, 1965,
which was lost. Antonio went to the ticket counter to buy tickets for himself and Jose.
To pay for the tickets, he took out his money from the right pocket of
The case was investigated by the Criminal Investigation Service of the his pants and later put back the remainder in the same pocket. The
Second Constabulary Zone headquarters at Camp Vicente Lim, two brothers noticed that four men at some distance from them were
Canlubang, Laguna. On January 9, 1965 Constabulary investigators allegedly observing them, whispering among themselves and making
took down the statements of Mrs. Mapa-Dizon, Cipriano Reganet, signs. The twins suspected that the four men harbored evil intentions
Corazon Bernal, Brigida de Sarmiento and Sergeant Aldea. On that towards them.
date, the statements of the Toling brothers were taken at the North
General Hospital. Sergeant Rayel also gave a statement. When the twins boarded the train, the four men followed them. They
were facing the twins. They were talking in a low voice. The twins sat
Antonio Toling told the investigators that while in the train he was on a two passenger seat facing the front door of the coach, the
stabbed by a person "from the station" who wanted to get his money. window being on the right of Antonio and Jose being to his left. Two
He retaliated by stabbing his assailant. He said that he stabbed of the four men, whom they were suspecting of having evil intentions
somebody "who might have died and others that might not". He towards them, sat on the seat facing them, while the other two seated
clarified that in the train four persons were asking money from him. themselves behind them. Some old women were near them. When
He stabbed one of them. "It was a hold-up". the train was already running, the man sitting near the aisle allegedly
stood up, approached Antonio and pointed a balisong knife at his
He revealed that after stabbing the person who wanted to rob him, throat while the other man who was sitting near the window and who
he stabbed other persons because, inasmuch as he "was already was holding also a balisong knife attempted to pick Antonio's right
bound to die", he wanted "to kill everybody" (Exh. X or 8, 49 tsn Sept. pocket, threatening him with death if he would not hand over the
3, 1965). money. Antonio answered that he would give only one-half of his
money provided the man would not hurt him, adding that his
(Antonio's) place was still very far.
Jose Toling, in his statement, said that he was wounded because he
was stabbed by a person "from Camarines" who was taking his
money. He retaliated by stabbing his assailant with the scissors. He When Antonio felt some pain in his throat, he suddenly drew out his
said that he stabbed two persons who were demanding money from hunting knife or small bolo (eight inches long including the handle)
him and who were armed with knives and iron bars. from the back pocket of his pants and stabbed the man with it,
causing him to fall to the floor with his balisong. He also stabbed the
man who was picking his pocket. Antonio identified the two men
When Jose Toling was informed that several persons died due to the
whom he had stabbed as those shown in the photographs of Antonio
stabbing, he commented that everybody was trying "to kill each
B. Mabisa (Exh. L-1 and L-2 or 5-A and
other" (Exh. I-A).
5-B) and Isabelo S. Dando (Exh. N-1 and N-2 or 7-A and 7-B). While
Antonio was stabbing the second man, another person from behind
According to Jose Toling, two persons grabbed the scissors in his allegedly stabbed him on the forehead, causing him to lose
pocket and stabbed him in the back with the scissors and then consciousness and to fall on the floor (Antonio has two scars on his
escaped. Antonio allegedly pulled out the scissors from his back, gave forehead and a scar on his chest and left forearm, 85, 87 tsn). He
them to him and told him to avenge himself with the scissors. regained consciousness when two Constabulary soldiers raised him.
His money was gone.
On January 20, 1965 a Constabulary sergeant filed against the Toling
brothers in the municipal court of Cabuyao, Laguna a criminal Seeing his brother in a serious condition, Jose stabbed with the
complaint for multiple murder and multiple frustrated murder. scissors the man who had wounded his brother. Jose hit the man in
Through counsel, the accused waived the second stage of the the abdomen. Jose was stabbed in the back by somebody. Jose
preliminary investigation. The case was elevated to the Court of First stabbed also that assailant in the middle part of the abdomen,
Instance of Laguna where the Provincial Fiscal on March 10, 1965 filed inflicting a deep wound.

Compiled by: Vim Malicay


However, Jose did not see what happened to the two men whom he their co-passengers had no choice but to notice and gaze at, was a
had stabbed because he was already weak. He fell down and became novelty. Through some telepathic or extra-sensory perception the
unconscious. He identified Exhibit A as the knife used by Antonio and twins must have sensed that their co-passengers were talking about
Exhibit B as the scissors which he himself had used. He recovered them in whispers and making depreciatory remarks or jokes about
consciousness when a Constabulary soldier brought him out of the their humble persons. In their parochial minds, they might have
train. entertained the notion or suspicion that their male companions,
taking advantage of their ignorance and naivete, might victimize them
The brothers presented Doctor Leonardo del Rosario, a physician of by stealing their little money. Hence, they became hostile to their co-
the North General Hospital who treated them during the early hours passengers. Their pent-up hostility erupted into violence and
of January 9, 1965 and who testified that he found the following murderous fury.
injuries on Antonio Toling:
A painstaking examination of the evidence leads to the conclusion
Wound, incised, 1-1/4 inches (sutured), frontal, that the trial court and the prosecution witnesses confounded one
right; 3-1/2 inches each, mid-frontal (wound on twin for the other. Such a confusion was unavoidable because the
the forehead) and twins, according to a Constabulary investigator, are "very identical".
Thus, on the witness stand CIS Sergeants Alfredo C. Orbase and
Liberato Tamundong after pointing to the twins, refused to take the
Wound, stabbed, 3/4 inch, 1 inch medial to
risk of identifying who was Antonio and who was Jose. They confessed
anterior axillary line level of 3rd ICS right,
that they might be mistaken in making such a specific identification
penetrating thoracic cavity (chest wound (Exh.
(28 tsn September 3, 1965; 32 tsn November 5, 1965).
11).

In our opinion, to ascertain who is Antonio and who is Jose, the


and on Jose Toling a stab wound, one inch long on the paravertebral
reliable guides would be their sworn statements (Exh. 1 and 8),
level of the fifth rib on the left, penetrating the thoracic cavity (Exh.
executed one day after the killing, their own testimonies and the
10). The wound was on the spinal column in line with the armpit or
medical certificates (Exh. 10 and 11). Those parts of the evidence
"about one inch from the midline to the left" (113 tsn). The twins were
reveal that the one who was armed with the knife was Antonio and
discharged from the hospital on January 17th.
the one who was armed with the scissors was Jose. The prosecution
witnesses and the trial court assumed that Antonio was armed with
The trial court, in its endeavor to ascertain the motive for the twins' the scissors (Exh. B) and Jose was armed with the knife (Exh. A). That
rampageous behavior, which resulted in the macabre deaths of assumption is erroneous.
several innocent persons, made the following observations:
In his statement and testimony, Antonio declared that he was armed
What could be the reason or motive that actuated with a knife, while Jose declared that he was armed with the scissors
the accused to run amuck? It appears that the which Antonio had purchased at the Tutuban station, before he
accused travelled long over land and sea spending boarded the train and which he gave to Jose because the latter is a
their hard earned money and suffering privations, barber whose old pair of scissors was already rusty. As thus clarified,
even to the extent of foregoing their breakfast, the person whom Sergeant Rayel espied as having attempted to
only to receive as recompense with respect to commit suicide on the platform of the train by stabbing himself on the
Antonio the meager sum of P50 from his daughter chest would be Antonio (not Jose). That conclusion is confirmed by
and P30 from his grandson and with respect to the medical certificate, Exhibit 11, wherein it is attested that Antonio
Jose to receive nothing at all from any of his three had a wound in the chest. And the person whom Sergeant Aldea
children whom he could not locate in Manila. subdued after the former had stabbed several persons with a pair of
scissors (not with a knife) was Jose and not Antonio. That fact is
It also appears that the accused, who are twins, contained in his statement of January 9, 1965 (p. 9, Record).
are queerly alike, a fact which could easily invite
some people to stare or gaze at them and wonder The mistake of the prosecution witnesses in taking Antonio for Jose
at their very close resemblance. Like some and vice-versa does not detract from their credibility. The controlling
persons who easily get angry when stared at, fact is that those witnesses confirmed the admission of the twins that
however, the accused, when stared at by the they stabbed several passengers.
persons in front of them, immediately suspected
them as having evil intention towards them
Appellants' counsel based his arguments on the summaries of the
(accused).
evidence found in the trial court's decision. He argues that the
testimonies of Sergeants Rayel and Aldea are contradictory but he
To the mind of the Court, therefore, it is does not particularize on the supposed contradictions.
despondency on the part of the accused coupled
with their unfounded suspicion of evil intention
The testimonies of the two witnesses do not cancel each other. The
on the part of those who happened to stare at
main point of Rayel's testimony is that he saw one of the twins
them that broke the limit of their self-control and
stabbing himself in the chest and apparently trying to commit suicide.
actuated them to run amuck.
Aldea's testimony is that he knocked down the other twin, disabled
him and prevented him from committing other killings.
We surmise that to the captive spectators in coach No. 9 the spectacle
of middle-aged rustic twins, whom, in the limited space of the coach,

Compiled by: Vim Malicay


It may be admitted that Rayel's testimony that Aldea took the knife of should be added the name of Susana C. Hernandez (Exh. P, P-1 and P-
Jose Toling was not corroborated by Aldea. Neither did Aldea testify 2). The omission of her name in judgment was probably due to
that Antonio was near Jose on the platform of the train. Those inadvertence. According to the necropsy reports, four persons,
discrepancies do not render Rayel and Aldea unworthy of belief. They namely, Shirley A. Valenciano, Salvador A. Maqueda, Miguel C. Oriarte
signify that Aldea and Rayel did not give rehearsed testimonies or did and Timoteo U. Dimaano, died due to multiple traumatic injuries
not compare notes. consisting of abrasions, contusions, lacerations and fractures on the
head, body and extremities (Exh. J to J-2, K to K-2, M to M-2 and S to
Where, as in this case, the events transpired in rapid succession in the S-2).
coach of the train and it was nighttime, it is not surprising that Rayel
and Aldea would not give identical testimonies (See 6 Moran's The conjecture is that they jumped from the moving tracing to avoid
Comments on the Rules of Court, 1970 Ed. 139-140; People vs. being killed but in so doing they met their untimely and horrible
Resayaga, L-23234, December 26, 1963, 54 SCRA 350). There is no deaths. The trial court did not adjudge them as victims whose heirs
doubt that Aldea and Rayel witnessed some of the acts of the twins should be indemnified. As to three of them, the information charges
but they did not observe the same events and their powers of that the accused committed homicide. The trial court dismissed that
perception and recollection are not the same. charge for lack of evidence.

Appellants' counsel assails the testimony of Mrs. Mapa. He contends No one testified that those four victims jumped from the train. Had
that no one corroborated her testimony that one of the twins stabbed the necropsy reports been reinforced by testimony showing that the
a man and a sleeping woman sitting on the seat opposite the seat proximate cause of their deaths was the violent and murderous
occupied by the twins. The truth is that Mrs. Mapa's testimony was conduct of the twins, then the latter would be criminally responsible
confirmed by the necropsy reports and by the twins themselves who for their deaths.
admitted that they stabbed some persons.
Article 4 of the Revised Penal Code provides that "criminal liability
On the other hand, the defense failed to prove that persons, other shall be incurred by any person committing a felony (delito) although
than the twins, could have inflicted the stab wounds. There is no the wrongful act done be different from that which he intended". The
doubt as to the corpus delicti. And there can be no doubt that the presumption is that "a person intends the ordinary consequences of
twins, from their own admissions (Exh. 1 and 8) and their testimonies, his voluntary act" (Sec. 5[c], Rule 131, Rules of Court).
not to mention the testimonies of Rayel, Aldea, Mrs. Mapa and the
CIS investigators, were the authors of the killings. The rule is that "if a man creates in another man's mind an immediate
sense of danger which causes such person to try to escape, and in so
Apparently, because there was no doubt on the twins' culpability, doing he injures himself, the person who creates such a state of mind
since they were caught in flagrante delicto the CIS investigators did is responsible for the injuries which result" (Reg. vs. Halliday 61 L. T.
not bother to get the statements of the other passengers in Coach No. Rep. [N.S.] 701, cited in U.S. vs. Valdez, 41 Phil. 4911, 500).
9. It is probable that no one actually saw the acts of the twins from
beginning to end because everyone in Coach No. 9 was trying to leave Following that rule, is was held that "if a person against whom a
it in order to save his life. The ensuing commotion and confusion criminal assault is directed reasonably believes himself to be in danger
prevented the passengers from having a full personal knowledge of of death or great bodily harm and in order to escape jumps into the
how the twins consummated all the killings. water, impelled by the instinct of self-preservation, the assailant is
responsible for homicide in case death results by drowning" (Syllabus,
On the other hand, the twins' theory of self-defense is highly U.S. vs. Valdez, supra, See People vs. Buhay, 79 Phil. 371).
incredible. In that crowded coach No. 9, which was lighted, it was
improbable that two or more persons could have held up the twins The absence of eyewitness-testimony as to the jumping from the train
without being readily perceived by the other passengers. The twins of the four victims already named precludes the imputation of
would have made an outcry had there really been an attempt to rob criminal responsibility to the appellants for the ghastly deaths of the
them. The injuries, which they sustained, could be attributed to the said victims.
blows which the other passengers inflicted on them to stop their
murderous rampage.
The same observation applies to the injuries suffered by the other
victims. The charge of multiple frustrated murder based on the
Appellants' view is that they should be held liable only for two injuries suffered by Cipriano Pantoja, Dinna Nosal, Corazon Bernal and
homicides, because they admittedly killed Antonio B. Mabisa and Brigida Sarmiento (Exh. D, D-3 to D-5) was dismissed by the trial court
Isabelo S. Dando, and for physical injuries because they did not deny for lack of evidence. Unlike Mrs. Mapa, the offended parties involved
that Jose Toling stabbed Mrs. Mapa. We have to reject that view. did not testify on the injuries inflicted on them.
Confronted as we are with the grave task of passing judgment on the
aberrant behavior of two yokels from the Samar hinterland who
The eight killings and the attempted killing should be treated as
reached manhood without coming into contact with the mainstream
separate crimes of murder and attempted murder qualified be
of civilization in urban areas, we exercised utmost care and solicitude
treachery (alevosia) (Art. 14[16], Revised Penal Code). The
in reviewing the evidence. We are convinced that the record
unexpected, surprise assaults perpetrated by the twins upon their co-
conclusively establishes appellants' responsibility for the eight
passengers, who did not anticipate that the twins would act
killings.
like juramentados and who were unable to defend themselves (even
if some of them might have had weapons on their persons) was a
To the seven dead persons whose heirs should be indemnified, mode of execution that insured the consummation of the twins'
according to the trial court, because they died due to stab wounds,
Compiled by: Vim Malicay
diabolical objective to butcher their co-passengers. The conduct of total indemnity of P96,000, and an indemnity of P500 to Amanda
the twins evinced conspiracy and community of design. Mapa. In the service of the penalties, the forty-year limit fixed in the
penultimate paragraph of article 70 of the Revised Penal Code should
The eight killings and the attempted murder were perpetrated by be observed. Costs against the appellants.
means of different acts. Hence, they cannot be regarded as
constituting a complex crime under article 48 of the Revised Penal SO ORDERED.
Code which refers to cases where "a single act constitutes two or
more grave felonies, or when an offense is a necessary means for Makalintal, C.J., Castro, Fernando, Teehankee, Barredo, Antonio,
committing the other". Esguerra, Fernandez and Muoz Palma, JJ., concur.

As noted by Cuello Calon, the so-called "concurso formal o ideal de Makasiar, J., took no part.
delitos reviste dos formas: (a) cuando un solo hecho constituye dos o
mas delitos (el llamado delito compuesto); (b) cuando uno de ellos
PEOPLE VS ORTEGA, JR.
sea medio necesario para cometer otro (el llamado delito complejo)."
(1 Derecho Penal, 12th Ed. 650). (276 SCRA 166)

On the other hand, "en al concurso real de delitos", the rule, when PANGANIBAN, J.:
there is "acumulacion material de las penas", is that "si son varios los
resultados, si son varias las acciones, esta conforme con la logica y con A person who commits a felony is liable for the direct, natural and
la justicia que el agente soporte la carga de cada uno de los delitos" logical consequences of his wrongful act even where the resulting
(Ibid, p. 652, People vs. Mori, L-23511, January 31, 1974, 55 SCRA 382, crime is more serious than that intended. Hence, an accused who
403). originally intended to conceal and to bury what he thought was the
lifeless body of the victim can be held liable as a principal, not simply
The twins are liable for eight (8) murders and one attempted murder. as an accessory, where it is proven that the said victim was actually
(See People vs. Salazar, 105 Phil. 1058 where the accused Moro, who alive but subsequently died as a direct result of such concealment and
ran amuck, killed sixteen persons and wounded others, was convicted burial. Nonetheless, in the present case, Appellant Garcia cannot be
of sixteen separate murders, one frustrated murder and two held liable as a principal because the prosecution failed to allege such
attempted murders; People vs. Mortero, 108 Phil. 31, the death through drowning in the Information. Neither may said
Panampunan massacre case, where six defendants were convicted of appellant be held liable as an accessory due to his relationship with
fourteen separate murders; People vs. Remollino, 109 Phil. 607, the principal killer, Appellant Ortega, who is his brother-in-law.
where a person who fired successively at six victims was convicted of
six separate homicides; U. S. Beecham, 15 Phil. 272, involving four Statement of the Case
murders; People vs. Macaso, 85 Phil. 819, 828, involving eleven
murders; U.S. vs. Jamad, 37 Phil. 305; U.S. vs. Balaba, 37 Phil. 260, This case springs from the joint appeal interposed by Appellants
271. Contra: People vs. Cabrera, 43 Phil. 82, 102-103; People vs. Benjamin Ortega, Jr. and Manuel Garcia from the Decision, 1 dated
Floresca, 99 Phil. 1044; People vs. Sakam, 61 Phil. 27; People vs. February 9, 1994 written by Judge Adriano R. Osorio, 2 finding them
Lawas, 97 Phil. 975; People vs. Manantan, 94 Phil. 831; People vs. guilty of murder.
Umali, 96 Phil. 185; People vs. Cu Unjiengi, 61 Phil. 236; People vs.
Penas, 66 Phil. 682; People vs. De Leon, 49 Phil. 437, where the crimes
committed by means of separate acts were held to be complex on the Appellants were charged by State Prosecutor Bernardo S. Razon in an
theory that they were the product of a single criminal impulse or Information 3 dated October 19, 1992, as follows:
intent).
That on or about October 17, 1992 in Valenzuela,
As no generic mitigating and aggravating circumstances were proven Metro Manila, Philippines and within the
in this case, the penalty for murder should be imposed in its medium jurisdiction of this Honorable Court, the above-
period or reclusion perpetua (Arts. 64[l] and 248, Revised Penal Code. named accused, conspiring together and mutually
The death penalty imposed by the trial court was not warranted. helping one another, without any justifiable
cause, with treachery and evident premeditation
and with abuse of superior strenght (sic) and with
A separate penalty for attempted murder should be imposed on the deliberate intent to kill, did then and there
appellants. No modifying circumstances can be appreciated in the willfully, unlawfully and feloniously attack, assault
attempted murder case. and stab repeatedly with a pointed weapon on
the different parts of the body one ANDRE MAR
WHEREFORE, the trial court's judgment is modified by setting aside MASANGKAY y ABLOLA, thereby inflicting upon
the death sentence. Defendants-appellants Antonio Toling and Jose the latter serious physical injuries which directly
Toling are found guilty, as co-principals, of eight (8) separate murders caused his death.
and one attempted murder. Each one of them is sentenced to eight
(8) reclusion perpetuas for the eight murders and to an indeterminate During arraignment, Appellants Ortega and Garcia, assisted by
penalty of one (1) year of prision correccional as minimum to six (6) counsel de oficio, 4 pleaded not guilty to the charge. 5Accused "John
years and one (1) day of prision mayor as maximum for the attempted Doe" was then at large. 6 After trial in due course, the court a
murder and to pay solidarily an indemnity of P12,000 to each set of quo promulgated the questioned Decision. The dispositive portion
heirs of the seven victims named in the dispositive part of the trial reads: 7
court's decision and of the eight victim, Susana C. Hernandez, or a
Compiled by: Vim Malicay
WHEREFORE, finding accused Benjamin Ortega, to go home. That his house is about 200 meters
Jr. y Conje and Manuel Garcia y Rivera [g]uilty from Romeo Ortega's house. That upon reaching
beyond reasonable doubt of the crime charged, home, his conscience bothered him and he told
the Court hereby sentenced (sic) them to suffer his mother what he witnessed. That he went to
the penalty of RECLUSION PERPETUA and to pay the residence of Col. Leonardo Orig and reported
the costs of suit. the matter. That Col. Orig accompanied him to
the Valenzuela Police Station and some police
Accused are hereby ordered to pay the offended officers went with them to the crime scene. That
party the sum of P35,000.00 for funeral expenses accused Benjamin Ortega, Jr. and Manuel Garcia
of deceased Andre Mar Masangkay and death were apprehended and were brought to the
indemnity of P50,000.00. police station.

The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. On cross-examination, he said that he did not talk
Evaristo P. Velicaria 8 who took over from the Public Attorney's Office to the lawyer before he was presented as witness
as counsel for the accused. in this case. That he narrated the incident to his
mother on the night he witnessed the killing on
October 15, 1992. That on October 15, 1992 at
The Facts
5:30 in the afternoon when he arrived, victim
Andre Mar Masangkay, Romeo Ortega, Serafin
Evidence for the Prosecution and one Boyet were already having [a] drinking
spree and he joined them. That accused Benjamin
The trial court summarized the testimonies of the prosecution Ortega, Jr. and Manuel Garcia were not yet in the
witnesses as follows: 9 place. That the stabbing happened between
12:00 midnight and 12:30 a.m. That they drank
Diosdado Quitlong substantially testified that on gin with finger foods such as pork and shell fish.
October 15, 1992 at about 5:30 in the afternoon, That he met the victim Andre Mar Masangkay
he, the victim Andre Mar Masangkay, Ariel only on that occasion. That accused Benjamin
Caranto, Romeo Ortega, Roberto San Andres Ortega, Jr. and Manuel Garcia joined them at
were having a drinking spree in the compound about 11:00 p.m. That there was no altercation
near the house of Benjamin Ortega, Jr. at between Benjamin Ortega, Jr. and Manuel Garcia
Daangbakal, Dalandanan, Valenzuela, Metro in one hand and Andre Mar Masangkay, during
Manila. That while they were drinking, accused the drinking session. That at about 12:30 a.m.
Benjamin Ortega, Jr. and Manuel Garcia who Andre Mar Masangkay answered the call of
were [already] drunk arrived and joined them. nature and went to the back portion of the house.
That victim Andre Mar Masangkay answered the That he cannot see Andre Mar Masangkay from
call of nature and went to the back portion of the the place they were having the drinking session.
house. That accused Benjamin Ortega, Jr. That he did not see what happened to Andre Mar
followed him and later they [referring to the Masangkay. That he only heard Masangkay asking
participants in the drinking session] heard the for help. That accused Manuel Garcia was still in
victim Andre Mar shouted, "Don't, help me!" the drinking session when he heard Masangkay
(Huwag, tulungan ninyo ako!) That he and Ariel was asking for help. That Benjamin Ortega, Jr. and
Caranto ran towards the back portion of the Manuel Garcia are his friends and neighbors. That
house and [they] saw accused Benjamin Ortega, when he heard Andre Mar Masangkay was asking
Jr., on top of Andre Mar Masangkay who was lying for help, he and Ariel Caranto ran to the back
down in a canal with his face up and stabbing the portion of the house and saw Benjamin Ortega, Jr.
latter with a long bladed weapon. That Ariel on top of Andre Mar Masangkay and stabbing the
Caranto ran and fetched Benjamin Ortega, Sr., the latter. That Andre Mar Masangkay was lying down
father of accused Benjamin, Jr. That he [Quitlong] with his back in the canal and Benjamin Ortega,
went to Romeo Ortega in the place where they Jr. on top stabbing the former. That he did not see
were having the drinking session [for the latter] to any injuries on Benjamin Ortega, Jr. That he called
pacify his brother Benjamin, Jr. That Romeo Romeo Ortega to pacify his brother Benjamin, Jr.
Ortega went to the place of the stabbing and That he did not do anything to separate Benjamin
together with Benjamin Ortega, Jr. and Manuel Ortega, Jr. and Masangkay. That he knows that
Garcia lifted Andre Mar Masangkay from the Andre Mar Masangkay was courting Raquel
canal and brought Andre Mar to the well and Ortega. That Raquel Ortega asked permission
dropped the latter inside the well. That Romeo from Andre Mar Masangkay when she left
Ortega, Benjamin Ortega, Jr. and Manuel Garcia between 8:00 and 9:00 p.m. That there was no
then dropped stones measuring 11 to 12 inches trouble that occurred during the drinking session.
high, 2 feet in length and 11 to 12 inches in weight
to the body of Andre Mar Masangkay inside the PNP Superintendent Leonardo Orig substantially
well. That Romeo Ortega warned him [Quitlong] testified that Diosdado Quitlong is his neighbor
not to tell anybody of what he saw. That he for about 9 years. That on October 16, 1992 at
answered in the affirmative and he was allowed 5:00 in the morning, he was summoned by

Compiled by: Vim Malicay


Diosdado Quitlong and reported to him the is one half filled with muddy particles which could
stabbing incident that occurred at Daangbakal [have been] taken in when submerged in water.
near the subdivision he is living. That he relayed
the information to the Valenzuela Police Station On cross-examination, he said that he found 13
and a police team under police officer Param stab wounds on the body of the victim. That he
accompanied them to the place. That he asked cannot tell if the assailant or the victim were
the police officers to verify if there is a body of standing. That it is possible that the stab wounds
person inside the well. That the well was covered was (sic) inflicted when both [referring to
with stones and he asked the police officers to participants] were standing or the victim was
seek the help of theneighbors (sic) to remove the lying down and the assailant was on top. That he
stones inside the well. That after the stones were cannot tell the number of the assailants.
removed, the body of the victim was found inside
the well. That the lifeless body was pulled out
Evidence for the Appellants
from the well. That the body has several stab
wounds. That he came to know the victim as
Andre Mar Masangkay. That two men were Appellant Manuel Garcia testified that in the early morning of
arrested by the police officers. October 15, 1992, he and his wife, Maritess Garcia, brought their
feverish daughter, Marjorie, to the Polo Emergency Hospital. He left
the hospital at seven o'clock in the morning, went home, changed his
On cross-examination, he said that he saw the
clothes and went to work. 10 After office hours, he and Benjamin
body when taken out of the well with several stab
Ortega, Jr. passed by the canteen at their place of work. After drinking
wounds. That Diosdado Quitlong told him that he
beer, they left at eight o'clock in the evening and headed home. En
was drinking with the victim and the assailants at
route, they chanced on Diosdado Quitlong alias Mac-mac and Andre
the time of the incident. That Benjamin Ortega, Jr.
Mar Masangkay, who invited them to join their own drinking spree.
stabbed the victim while the latter was answering
Thereupon, Appellant Garcia's wife came and asked him to go home
the call of nature.
because their daughter was still sick. To alleviate his daughter's
illness, he fetched his mother-in-law who performed a ritual called
NBI Medico Legal Officer Dr. Ludivico J. Lagat "tawas." After the ritual, he remained at home and attended to his
substantially testified that he conducted [an] sick daughter. He then fell asleep but was awakened by police officers
autopsy on the cadaver of Andre Mar Masangkay at six o'clock in the morning of the following day.
on October 16, 1992 at the Valenzuela Memorial
Homes located at Macarthur Highway. That he
Maritess Garcia substantially corroborated the testimony of her
prepared the autopsy report and the sketch of
husband. She however added two other participants in the drinking
human head and body indicating the location of
session aside from Diosdado Quitlong alias Mac-mac and Andre Mar
the stab wounds. That the cause of death is
Masangkay, namely, a Mang Serafin and Boyet Santos. 11
multiple stab wounds, contributory, [a]sphyxia by
submersion in water. That there were 13 stab
wounds, 8 of which were on the frontal part of the Benjamin Ortega, Jr. likewise substantially corroborated the
body, 2 at the back and there were contused testimony of Appellant Manuel Garcia. 12 According to him, between
abrasions around the neck and on the left arm. eleven and twelve o'clock in the evening, Masangkay left the drinking
There was stab wound at the left side of the neck. session. Thirty (30) minutes after Masangkay left, he also left the
That the contused abrasion could be produced by drinking place to urinate. 13 He went behind the house where he saw
cord or wire or rope. That there is (an) incised Masangkay peeping through the room of his sister Raquel. He ignored
wound on the left forearm. That the stab wounds Masangkay and continued urinating. 14 After he was through,
which were backward downward of the body Masangkay approached him and asked where his sister was. He
involved the lungs. That the victim was in front of answered that he did not know. Without warning, Masangkay
the assailant. That the stab wound on the upper allegedly boxed him in the mouth, an attack that induced bleeding
left shoulder was caused when the assailant was and caused him to fall on his back. When he was about to stand up,
in front of the victim. That the assailant was in Masangkay drew a knife and stabbed him, hitting him on the left arm,
front of the victim when the stab wound near the thereby immobilizing him. Masangkay then gripped his neck with his
upper left armpit was inflicted as well as the stab left arm and threatened to kill him. Unable to move, Ortega shouted
wound on the left chest wall. That the stab wound for help. Quitlong came and, to avoid being stabbed, grabbed
on the back left side of the body and the stab Masangkay's right hand which was holding the knife. Quitlong was
wound on the back right portion of the body may able to wrest the knife from Masangkay and, with it, he stabbed
be produced when the assailant was at the back Masangkay ten (10) times successively, in the left chest and in the
of the victim. That the assailant was in front of the middle of the stomach. When
victim when the stab wound[s] on the left elbow the stabbing started, Ortega moved to the left side of Masangkay to
and left arm were inflicted. That the large airway avoid being hit. 15 Quitlong chased Masangkay who ran towards the
is filled with muddy particles indicating that the direction of the well. Thereafter, Ortega went home and treated his
victim was alive when the victim inhaled the injured left armpit and lips. Then, he slept.
muddy particles. The heart is filled with multiple
hemorrhage, loss of blood or decreased of blood. When he woke up at six o'clock the following morning, he saw police
The lungs is filled with water or muddy particles. officers in front of his house. Taking him with them, the lawmen
The brain is pale due to loss of blood. The stomach proceeded to the well. From the railroad tracks where he was asked

Compiled by: Vim Malicay


to sit, he saw the police officers lift the body of a dead person from resolved could be simplified thus: What are the criminal liabilities, if
the well. He came to know the identity of the dead person only after any, of Appellants Ortega and Garcia?
the body was taken to the police headquarters. 16
The Court's Ruling
The Trial Court's Discussion
We find the appeal partly meritorious. Appellant Ortega is guilty only
The trial court explained its basis for appellants' conviction as of homicide. Appellant Garcia deserves acquittal.
follows: 17
First Issue: Liability of Appellant Ortega
The Court is convinced that the concerted acts of
accused Benjamin Ortega, Jr., Manuel Garcia, Jr. The witnesses for the prosecution and defense presented conflicting
and one Romeo Ortega in lifting, carrying and narrations. The prosecution witnesses described the commission of
dumping the victim Andre Mar Masangkay who the crime and positively identified appellants as the perpetrators. The
was still alive and breathing inside the deep well witnesses for the defense, on the other hand, attempted to prove
filled with water, head first and threw big denial and alibi. As to which of the two contending versions speaks
stones/rocks inside the well to cover the victim is the truth primarily rests on a critical evaluation of the credibility of
a clear indication of the community of design to the witnesses and their stories. In this regard, the trial court held: 19
finish/kill victim Andre Mar Masangkay.
Wounded and unarmed victim Andre Mar
The Court has listened intently to the narration of
Masangkay was in no position to flee and/or
the accused and their witnesses and the
defend himself against the three malefactors.
prosecution witnesses and has keenly observed
Conspiracy and the taking advantage of superior
their behavior and demeanor on the witness
strength were in attendance. The crime
stand and is convinced that the story of the
committed by the accused is Murder.
prosecution is the more believable version.
Prosecution eyewitness Diosdado Quitlong
Concert of action at the moment of appeared and sounded credible and his credibility
consummating the crime and the form and is reinforced by the fact that he has no reason to
manner in which assistance is rendered to the testify falsely against the accused. It was
person inflicting the fatal wound may determine Diosdado Quitlong who reported the stabbing
complicity where it would not otherwise be incident to the police authorities. If Quitlong
evidence (People vs. Yu, 80 SCRA 382 (1977)). stabbed and killed the victim Masangkay, he will
keep away from the police authorities and will go
Every person criminally liable for a felony is also in hiding. . . .
civilly liable. Accused (m)ust reimburse the heirs
of victim Andre Mar Masangkay the amount of Because the trial court had the opportunity to observe the witnesses'
P35,000.00 for the funeral expenses of the demeanor and deportment on the stand as they rendered their
deceased. testimonies, its evaluation of the credibility of witnesses is entitled to
the highest respect. Therefore, unless the trial judge plainly
The Issues overlooked certain facts of substance and value which, if considered,
might affect the result of the case, his assessment of credibility must
In their ten-page brief, appellants fault the trial court with the be respected. 20
following: 18
In the instant case, we have meticulously scoured the records and
I. The trial court erred in holding that there is conspiracy on the basis found no reason to reverse the trial court's assessment of the
of the prosecution's evidence that at the time both accused and one credibility of the witnesses and their testimonies 21 insofar as
Romeo Ortega lifted the body of Andrew Masangkay from where he Appellant Ortega is concerned. The narration of Eyewitness Diosdado
succumbed due to stab wounds and brought and drop said body of Quitlong appears to be spontaneous and consistent. It is
Andrew Masangkay to the well to commit murder; straightforward, detailed, vivid and logical. Thus, it clearly deserves
full credence.
II. The trial court erred in finding and holding that Andrew Masangkay
was still alive at the time his body was dropped in the well; On the other hand, in asserting alibi and denial, the defense bordered
on the unbelievable. Appellant Ortega claimed that after he was able
to free himself from Masangkay's grip, he went home, treated his
III. The trial court erred in convicting Manuel Garcia and in not
injuries and slept. 22 This is not the ordinary reaction of a person
acquitting the latter of the crime charged; and
assaulted. If Ortega's version of the assault was true, he should have
immediately reported the matter to the police authorities, if only out
IV. The trial court erred in not finding that if at all Benjamin Ortega Jr. of gratitude to Quitlong who came to his rescue. Likewise, it is difficult
is guilty only of homicide alone. to believe that a man would just sleep after someone was stabbed in
his own backyard. Further, we deem it incredible that Diosdado
On the basis of the records and the arguments raised by the Quitlong would stab Masangkay ten (10) times successively,
appellants and the People, we believe that the question to be completely ignoring Benjamin Ortega, Jr. who was grappling with
Masangkay. Also inconsistent with human experience is his narration
Compiled by: Vim Malicay
that Masangkay persisted in choking him instead of defending himself A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto,
from the alleged successive stabbing of Quitlong. 23 The natural Romeo Ortega, Roberto San Andres, myself and Andrew Masangkay.
tendency of a person under attack is to defend himself and not to Andrew Masangkay answer to a call of nature and went to the back
persist in choking a defenseless third person. portion of the house, and Benjamin Ortega, Jr. followed him where he
was.
Murder or Homicide?
Q What happened next?
Although treachery, evident premeditation and abuse of superior
strength were alleged in the information, the trial court found the A And afterwards we heard a shout and the shout said "Huwag,
presence only of abuse of superior strength. tulungan n'yo ako".

We disagree with the trial court's finding. Abuse of superior strength Q From whom did you hear this utterance?
requires deliberate intent on the part of the accused to take
advantage of such superiority. It must be shown that the accused A The shout came from Andrew Masangkay.
purposely used excessive force that was manifestly out of proportion
to the means available to the victim's defense. 24 In this light, it is
Q After Benjamin Ortega, Jr. followed Andrew Masangkay to answer
necessary to evaluate not only the physical condition and weapon of
a call of nature and after you heard "huwag, tulungan n'yo ako"
the protagonists but also the various incidents of the event. 25
coming from the mouth of the late Andrew Masangkay, what
happened next?
In his testimony, Witness Dominador Quitlong mentioned nothing
about Appellant Ortega's availment of force excessively out of
A Ariel Caranto and I ran towards the back portion of the house.
proportion to the means of defense available to the victim to defend
himself. Quitlong described the assault made by Appellant Ortega as
follows: 26 Q And what did you see?

ATTY. ALTUNA: A And I saw that Benjamin Ortega, Jr. was on top of Andrew
Masangkay and he was stabbing Masangkay.
Q Will you please tell me the place and date wherein you have a
drinking spree with Andrew Masangkay and where you witnessed a Q Will you please demonstrate to the Honorable Court how the
stabbing incident? stabbing was done telling us the particular position of the late Andrew
Masangkay and how Benjamin Ortega, Jr. proceeded with the
stabbing against the late victim, Andrew Masangkay?
A It was on October 15, 1992, sir, at about 5:30 in the afternoon we
were drinking in the house of Mr. Benjamin Ortega, Sr., because the
house of Benjamin Ortega Sr. and the house of his son Benjamin INTERPRETER:
Ortega, Jr. are near each other.
(At this juncture, the witness demonstrating.)
Q Mr. Witness, who were the companions of said persons, Benjamin
Ortega, Jr., Manuel Garcia, you (sic) in drinking in said place? Andrew Masangkay was lying down on a canal with his face up, then
Benjamin Ortega, Jr. was "nakakabayo" and with his right hand with
A The other companions in the drinking session were Ariel Caranto y closed fist holding the weapon, he was thrusting this weapon on the
Ducay, Roberto San Andres and Romeo Ortega. body of the victim, he was making downward and upward motion
thrust.
Q What about this victim, Andrew Masangkay, where was he at that
time? ATTY. ALTUNA: (To the witness)

A Also the victim, Andrew Masangkay, he was also there. Q How many times did Benjamin Ortega, Jr. stabbed Andrew
Masangkay?
Q You said that the two accused, Manuel Garcia and Benjamin Ortega,
Jr. arrived drunk and joined the group? A I cannot count the number of times.

A Yes, sir. It should be noted that Victim Masangkay was a six-footer, whereas
Appellant Ortega, Jr. was only five feet and five inches tall. 27 There
was no testimony as to how the attack was initiated. The accused and
Q What happened next?
the victim were already grappling when Quitlong arrived. Nothing in
the foregoing testimony and circumstances can be interpreted as
A While we were there together and we were drinking ... (interrupted abuse of superior strength. Hence, Ortega is liable only for homicide,
by Atty. Altuna) not murder.

Q Who is that "we"? Second Issue: Liability of Appellant Manuel Garcia

Compiled by: Vim Malicay


Appellants argue that the finding of conspiracy by the trial court "is Q Second point?
based on mere assumption and conjecture . . ." 28Allegedly, the
medico-legal finding that the large airway was "filled with muddy A The heart is pale with some multiple petechial hemorrhages at the
particles indicating that the victim was alive when the victim inhaled anterior surface.
the muddy particles" did not necessarily mean that such muddy
particles entered the body of the victim while he was still alive.
Q And this may [be] due to stab wounds or asphyxia?
The Sinumpaang Salaysay of Quitlong stated, "Nilubayan lang nang
saksak nang mapatay na si Andrew ni Benjamin Ortega, Jr." Thus, the
prosecution evidence shows Masangkay was already "dead" when he A These are the effects or due to asphyxia or decreased amount of
was lifted and dumped into the well. Hence, Garcia could be held blood going to the heart.
liable only as an accessory. 29
Q This asphyxia are you referring to is the drowning?
We do not agree with the above contention. Article 4, par. 1, of the
Revised Penal Code states that criminal liability shall be incurred by A Yes, sir.
"any person committing a felony (delito) although the wrongful act
done be different from that which he intended." The essential Q Next point is the lungs?
requisites for the application of this provision are that (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 A The lungs is also filled with multiple petechial hemorrhages.
actor's wrongful acts. In assisting Appellant Ortega, Jr. carry the body
of Masangkay to the well, Appellant Garcia was committing a felony. Q What could have caused this injury of the lungs?
The offense was that of concealing the body of the crime to prevent
its discovery, i.e. that of being an accessory in the crime of A This is due to asphyxia or the loss of blood.
homicide. 30 Although Appellant Garcia may have been unaware that
the victim was still alive when he assisted Ortega in throwing the body
Q Are you saying that the lungs have been filled with water or muddy
into the well, he is still liable for the direct and natural consequence
particles?
of his felonious act, even if the resulting offense is worse than that
intended.
A Yes, sir.
True, Appellant Garcia merely assisted in concealing the body of the
victim. But the autopsy conducted by the NBI medico-legal officer Q And, precisely, you are now testifying that due to stab wounds or
showed that the victim at that time was still alive, and that he died asphyxia, the lungs have been damaged per your Report?
subsequently of drowning. 31That drowning was the immediate cause
of death was medically demonstrated by the muddy particles found A Yes, sir.
in the victim's airway, lungs and stomach. 32 This is evident from the
expert testimony given by the medico-legal officer, quoted below: 33 Q Continuing this brain and other visceral organs, pale. What is this?

ATTY. ALTUNA: A The paleness of the brain and other visceral organs is due to loss of
blood.
Q Will you please explain this in simple language the last portion of
Exhibit N, beginning with "tracheo-bronchial tree", that is sentence Q And, of course, loss of blood could be attributed to the stab wound
immediately after paragraph 10, 2.5 cms. Will you please explain this? which is number 13?

A The trancheo-bronchial tree is filled with muddy particles. A Yes, sir.

Q I ask you a question on this. Could the victim have possibly get this Q And the last one, under the particular point "hemothorax"?
particular material?
A It indicates at the right side. There are around 1,400 cc of blood that
A No, sir. accumulate at the thoraxic cavity and this was admixed with granular
materials?
Q What do you mean by no?
Q And what cause the admixing with granular materials on said
A A person should be alive so that the muddy particles could be particular portion of the body?
inhaled.
A Could be muddy particles.
Q So, in short, you are telling or saying to us that if there is no inhaling
or the taking or receiving of muddy particles at that time, the person Q Due to the taking of maddy (sic) materials as affected by asphyxia?
is still alive? Am I correct?

A Yes, sir. A It's due to stab wounds those muddy particles which set-in thru the
stab wounds.
Compiled by: Vim Malicay
Q So, because of the opening of the stab wounds, the muddy particles Revised Penal Code. Under this paragraph, a person may be convicted
now came in, in that particular portion of the body and caused of homicide although he had no original intent to kill. 35
admixing of granular materials?
In spite of the evidence showing that Appellant Garcia could be held
A Yes, sir. liable as principal in the crime of homicide, there are, however, two
legal obstacles barring his conviction, even as an accessory as
Q Continuing with your report, particularly, the last two portions, will prayed for by appellants' counsel himself.
you please explain the same?
First. The Information accused Appellant Garcia (and Appellant
A The hemoperitoneum there are 900 cc of blood that accumulated Ortega) of "attack[ing], assault[ing], and stab[bing] repeatedly with a
inside the abdomen. pointed weapon on the different parts of the body one ANDRE MAR
MASANGKAY y ABLOLA." The prosecution's evidence itself shows that
Garcia had nothing to do with the stabbing which was solely
Q And what could have cause the same?
perpetrated by Appellant Ortega. His responsibility relates only to the
attempted concealment of the crime and the resulting drowning of
A [T]he stab wound of the abdomen. Victim Masangkay. The hornbook doctrine in our jurisdiction is that
an accused cannot be convicted of an offense, unless it is clearly
Q The last one, stomach 1/2 filled with muddy particles. Please charged in the complaint or information. Constitutionally, he has a
explain the same? right to be informed of the nature and cause of the accusation against
him. To convict him of an offense other than that charged in the
A The victim could have taken these when he was submerged in complaint or information would be a violation of this constitutional
water. right. 36 Section 14, par. 2, of the 1987 Constitution explicitly
guarantees the following:

Q What is the take in?


(2) In all criminal prosecutions, the accused shall
be presumed innocent until the contrary is
A Muddy particles. proved, and shall enjoy the right to be heard by
himself and counsel, to be informed of the nature
Q And he was still alive at that time? and cause of the accusation against him, to have
a speedy, impartial, and public trial, to meet the
A Yes, sir. (Emphasis supplied) witnesses face to face, and to have compulsory
process to secure the attendance of witnesses
and the production of evidence in his behalf.
A Filipino authority on forensic medicine opines that any of the
However, after arraignment, trial may proceed
following medical findings may show that drowning is the cause of
notwithstanding the absence of the accused
death:
provided that he has been duly notified and his
failure to appear is unjustifiable. (Emphasis
1. The presence of materials or foreign bodies in the hands of supplied)
the victim. The clenching of the hands is a manifestation of
cadaveric spasm in the effort of the victim to save himself
In People vs. Pailano, 37 this Court ruled that there can be no
from drowning.
conviction for rape on a woman "deprived of reason or otherwise
2. Increase in volume (emphysema aquosum) and edema of
unconscious" where the information charged the accused of sexual
the lungs (edema aquosum).
assault "by using force or intimidation," thus:
3. Presence of water and fluid in the stomach contents
corresponding to the medium where the body was
recovered. The criminal complaint in this case alleged the
4. Presence of froth, foam or foreign bodies in the air passage commission of the crime through the first method
found in the medium where the victim was found. although the prosecution sought to establish at
5. Presence of water in the middle ear. the trial that the complainant was a mental
retardate. Its purpose in doing so is not clear. But
whatever it was, it has not succeeded.
The third and fourth findings were present in the case of
Victim Masangkay. It was proven that his airpassage, or
specifically his tracheo-bronchial tree, was filled with If the prosecution was seeking to convict the
muddy particles which were residues at the bottom of the accused-appellant on the ground that he violated
well. Even his stomach was half-filled with such muddy Anita while she was deprived of reason or
particles. The unrebutted testimony of the medico-legal unconscious, such conviction could not have been
officer that all these muddy particles were ingested when possible under the criminal complaint as worded.
the victim was still alive proved that the victim died of This described the offense as having been
drowning inside the well. committed by "Antonio Pailano, being then
provided with a scythe, by means of violence and
intimidation, (who) did, then and there, wilfully,
The drowning was the direct, natural and logical consequence of the
unlawfully and feloniously have carnal knowledge
felony that. Appellant Garcia had intended to commit; it
of the complainant, Anita Ibaez, 15 years of age,
exemplifies praeter intentionem covered by Article 4, par. 1, of the
Compiled by: Vim Malicay
against her will'. No mention was made of the provisions of paragraph 1 of the next preceding
second circumstance. article.

Conviction of the accused-appellant on the On the other hand, "the next preceding article" provides:
finding that he had raped Anita while she was
unconscious or otherwise deprived of reason Art. 19. Accessories. Accessories are those
and not through force and intimidation, which who, having knowledge of the commission of the
was the method alleged would have violated crime, and without having participated therein,
his right to be informed of the nature and cause either as principals or accomplices, take part
of the accusation against him. [Article IV, Sec. 19, subsequent to its commission in any of the
Constitution of 1973; now Article III, Sec. 14(2)] following manners:
This right is safeguarded by the Constitution to
every accused so he can prepare an adequate
1. By profiting themselves or assisting the offender to profit by the
defense against the charge against him.
effects of the crime.
Convicting him of a ground not alleged while he is
2. By concealing or destroying the body of the crime, or the effects
concentrating his defense against the ground
or instruments thereof, in order to prevent its discovery.
alleged would plainly be unfair and underhanded.
3. By harboring, concealing, or assisting in the escape of the
This right was, of course, available to the herein
principal of the crime, provided the accessory acts with abuse of
accused-appellant.
his public functions or whenever the author of the crime is guilty
of treason, parricide, murder, or an attempt to take the life of
In People vs. Ramirez, [fn: 69 SCRA 144] we held the Chief Executive, or is known to be habitually guilty of some
that a person charged with rape could not be other crime.
found guilty of qualified seduction, which had not
been alleged in the criminal complaint against
Appellant Garcia, being a covered relative by affinity of the principal
him. In the case of People vs. Montes, [fn: 122
accused, Benjamin Ortega, Jr., is legally entitled to the aforequoted
SCRA 409] the Court did not permit the conviction
exempting provision of the Revised Penal Code. This Court is thus
for homicide of a person held responsible for the
mandated by law to acquit him.
suicide of the woman he was supposed to have
raped, as the crime he was accused of and
acquitted was not homicide but rape. More to Penalty and Damages
the point is Tubb v. People of the Philippines, [fn:
101 Phil. 114] where the accused was charged The award of actual damages should be reduced to P31,790.00 from
with the misappropriation of funds held by him in P35,000.00. The former amount was proven both by documentary
trust with the obligation to return the same under evidence and by the testimony of Melba Lozano, a sister of the
Article 315, paragraph l(b) of the Revised Penal victim. 38 Of the expenses alleged to have been incurred, the Court
Code, but was convicted of swindling by means of can give credence only to those that are supported by receipts and
false pretenses, under paragraph 2(b) of the said appear to have been genuinely incurred in connection with the death
Article, which was not alleged in the information. of the victim. 39 However, in line with current
The Court said such conviction would violate the jurisprudence, 40 Appellant Ortega shall also indemnify the heirs of
Bill of Rights. the deceased in the sum of P50,000.00. Indemnity requires no proof
other than the fact of death and appellant's responsibility therefor. 43
By parity of reasoning, Appellant Garcia cannot be convicted of
homicide through drowning in an information that charges murder by The penalty for homicide is reclusion temporal under Article 249 of
means of stabbing. the Revised Penal Code, which is imposable in its medium period,
absent any aggravating or mitigating circumstance, as in the case of
Second. Although the prosecution was able to prove that Appellant Appellant Ortega. Because he is entitled to the benefits of the
Garcia assisted in "concealing . . . the body of the crime, . . . in order Indeterminate Sentence Law, the minimum term shall be one degree
to prevent its discovery," he can neither be convicted as an accessory lower, that is, prision mayor.
after the fact defined under Article 19, par. 2, of the Revised Penal
Code. The records show that Appellant Garcia is a brother-in-law of WHEREFORE, premises considered, the joint appeal is PARTLY
Appellant Ortega, 38 the latter's sister, Maritess, being his GRANTED. Appellant Benjamin Ortega, Jr. is found GUILTY of homicide
wife. 39 Such relationship exempts Appellant Garcia from criminal and sentenced to ten (10) years of prision mayor medium, as
liability as provided by Article 20 of the Revised Penal Code: minimum, to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal medium, as maximum. Appellant Ortega, Jr. is
Art. 20. Accessories who are exempt from criminal also ORDERED to pay the heirs of the victim P50,000.00 as indemnity
liability. The penalties prescribed for and P31,790.00 as actual damages. Appellant Manuel Garcia is
accessories shall not be imposed upon those who ACQUITTED. His immediate release from confinement is ORDERED
are such with respect to their spouses, unless he is detained for some other valid cause.
ascendants, descendants, legitimate, natural, and
adopted brothers and sisters, or relatives by SO ORDERED.
affinity within the same degrees with the single
exception of accessories falling within the Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.

Compiled by: Vim Malicay


URBANO VS IAC As to my observation the incapacitation is from
(157 SCRA 10[1988]) (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,
GUTIERREZ, JR., J.:
Original Records)

This is a petition to review the decision of the then Intermediate


Upon the intercession of Councilman Solis, Urbano and Javier agreed
Appellate Court which affirmed the decision of the then Circuit
to settle their differences. Urbano promised to pay P700.00 for the
Criminal Court of Dagupan City finding petitioner Filomeno Urban
medical expenses of Javier. Hence, on October 27, 1980, the two
guilty beyond reasonable doubt of the crime of homicide.
accompanied by Solis appeared before the San Fabian Police to
formalize their amicable settlement. Patrolman Torio recorded the
The records disclose the following facts of the case. event in the police blotter (Exhibit A), to wit:

At about 8:00 o'clock in the morning of October 23, 1980, petitioner xxx xxx xxx
Filomeno Urbano went to his ricefield at Barangay Anonang, San
Fabian, Pangasinan located at about 100 meters from the tobacco
Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592
seedbed of Marcelo Javier. He found the place where he stored his
on page 257 both parties appeared before this
palay flooded with water coming from the irrigation canal nearby
Station accompanied by brgy. councilman Felipe
which had overflowed. Urbano went to the elevated portion of the
Solis and settled their case amicably, for they are
canal to see what happened and there he saw Marcelo Javier and
neighbors and close relatives to each other.
Emilio Erfe cutting grass. He asked them who was responsible for the
Marcelo Javier accepted and granted forgiveness
opening of the irrigation canal and Javier admitted that he was the
to Filomeno Urbano who shoulder (sic) all the
one. Urbano then got angry and demanded that Javier pay for his
expenses in his medical treatment, and promising
soaked palay. A quarrel between them ensued. Urbano unsheathed
to him and to this Office that this will never be
his bolo (about 2 feet long, including the handle, by 2 inches wide)
repeated anymore and not to harbour any grudge
and hacked Javier hitting him on the right palm of his hand, which was
against each other. (p. 87, Original Records.)
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, Urbano advanced P400.00 to Javier at the police station. On
causing a swelling on said leg. When Urbano tried to hack and inflict November 3, 1980, the additional P300.00 was given to Javier at
further injury, his daughter embraced and prevented him from Urbano's house in the presence of barangay captain Soliven.
hacking Javier. 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.
Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe
Edmundo Exconde who personally attended to Javier found that the
brought Javier to his house about 50 meters away from where the
latter's serious condition was caused by tetanus toxin. He noticed the
incident happened. Emilio then went to the house of Barangay
presence of a healing wound in Javier's palm which could have been
Captain Menardo Soliven but not finding him there, Emilio looked for
infected by tetanus.
barrio councilman Felipe Solis instead. Upon the advice of Solis, the
On November 15, 1980 at exactly 4:18 p.m., Javier died in the
Erfes together with Javier went to the police station of San Fabian to
hospital. The medical findings of Dr. Exconde are as follows:
report the incident. As suggested by Corporal Torio, Javier was
brought to a physician. The group went to Dr. Guillermo Padilla, rural
Date Diagnosis
health physician of San Fabian, who did not attend to Javier but
11-14-80 ADMITTED due to trismus
instead suggested that they go to Dr. Mario Meneses because Padilla
adm. at DX TETANUS
had no available medicine.
1:30 AM Still having frequent muscle spasm. With diffi-
#35, 421 culty opening his mouth. Restless at times. Febrile
After Javier was treated by Dr. Meneses, he and his companions 11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessation of
returned to Dr. Guillermo Padilla who conducted a medico-legal respiration and HR after muscular spasm.
examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C" 02 inhalation administered. Ambo bag resuscitation and cardiac
dated September 28, 1981) which reads: massage done but to no avail.
Pronounced dead by Dra. Cabugao at 4:18 P.M.
TO WHOM IT MAY CONCERN: PMC done and cadaver brought home by relatives. (p. 100, Original
Records)
This is to certify that I have examined the wound In an information dated April 10, 1981, Filomeno Urbano was charged
of Marcelo Javier, 20 years of age, married, with the crime of homicide before the then Circuit Criminal Court of
residing at Barangay Anonang, San Fabian, Dagupan City, Third Judicial District.
Pangasinan on October 23, 1980 and found the
following: Upon arraignment, Urbano pleaded "not guilty." After trial, the trial
court found Urbano guilty as charged. He was sentenced to suffer an
1 -Incised wound 2 inches in length at the upper indeterminate prison term of from TWELVE (12) YEARS of prision
portion of the lesser palmar prominence, right. 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

Compiled by: Vim Malicay


Javier, in the amount of P12,000.00 without subsidiary imprisonment The record is clear that Marcelo Javier was hacked by the petitioner
in case of insolvency, and to pay the costs. He was ordered confined who used a bolo as a result of which Javier suffered a 2-inch incised
at the New Bilibid Prison, in Muntinlupa, Rizal upon finality of the wound on his right palm; that on November 14, 1981 which was the
decision, in view of the nature of his penalty. 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,
The then Intermediate Appellate Court affirmed the conviction of he died from tetanus.
Urbano on appeal but raised the award of indemnity to the heirs of
the deceased to P30,000.00 with costs against the appellant. Under these circumstances, the lower courts ruled that Javier's death
was the natural and logical consequence of Urbano's unlawful act.
The appellant filed a motion for reconsideration and/or new trial. The Hence, he was declared responsible for Javier's death. Thus, the
motion for new trial was based on an affidavit of Barangay Captain appellate court said:
Menardo Soliven (Annex "A") which states:
The claim of appellant that there was an efficient
That in 1980, I was the barrio captain of Barrio cause which supervened from the time the
Anonang, San Fabian, Pangasinan, and up to the deceased was wounded to the time of his death,
present having been re-elected to such position in which covers a period of 23 days does not deserve
the last barangay elections on May 17, 1982; 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
That sometime in the first week of November,
inflicted by the appellant. Said wound which was
1980, there was a typhoon that swept Pangasinan
in the process of healing got infected with tetanus
and other places of Central Luzon including San
which ultimately caused his death.
Fabian, a town of said province;

Dr. Edmundo Exconde of the Nazareth General


That during the typhoon, the sluice or control
Hospital testified that the victim suffered lockjaw
gates of the Bued irrigation dam which irrigates
because of the infection of the wound with
the ricefields of San Fabian were closed and/or
tetanus. And there is no other way by which he
controlled so much so that water and its flow to
could be infected with tetanus except through the
the canals and ditches were regulated and
wound in his palm (tsn., p. 78, Oct. 5, 1981).
reduced;
Consequently, the proximate cause of the victim's
death was the wound which got infected with
That due to the locking of the sluice or control tetanus. And the settled rule in this jurisdiction is
gates of the dam leading to the canals and ditches that an accused is liable for all the consequences
which will bring water to the ricefields, the water of his unlawful act. (Article 4, par. 1, R.P.C. People
in said canals and ditches became shallow which v. Red, CA 43 O.G. 5072; People v. Cornel 78 Phil.
was suitable for catching mudfishes; 418).

That after the storm, I conducted a personal Appellant's allegation that the proximate cause of
survey in the area affected, with my secretary the victim's death was due to his own negligence
Perfecto Jaravata; in going back to work without his wound being
properly healed, and lately, that he went to catch
That on November 5, 1980, while I was fish in dirty irrigation canals in the first week of
conducting survey, I saw the late Marcelo Javier November, 1980, is an afterthought, and a
catching fish in the shallow irrigation canals with desperate attempt by appellant to wiggle out of
some companions; the predicament he found himself in. If the
wound had not yet healed, it is impossible to
That few days there after,or on November l5, conceive that the deceased would be reckless
l980, I came to know that said Marcelo Javier died enough to work with a disabled hand. (pp. 20-21,
of tetanus. (p. 33, Rollo) Rollo)

The motion was denied. Hence, this petition. 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
In a resolution dated July 16, 1986, we gave due course to the with tetanus when after two weeks he returned to his farm and
petition. tended his tobacco plants with his bare hands exposing the wound to
harmful elements like tetanus germs.
The case involves the application of Article 4 of the Revised Penal
Code which provides that "Criminal liability shall be incurred: (1) By The evidence on record does not clearly show that the wound
any person committing a felony (delito) although the wrongful act inflicted by Urbano was infected with tetanus at the time of the
done be different from that which he intended ..." Pursuant to this infliction of the wound. The evidence merely confirms that the
provision "an accused is criminally responsible for acts committed by wound, which was already healing at the time Javier suffered the
him in violation of law and for all the natural and logical consequences symptoms of the fatal ailment, somehow got infected with tetanus
resulting therefrom." (People v. Cardenas, 56 SCRA 631).
Compiled by: Vim Malicay
However, as to when the wound was infected is not clear from the and symptoms develop in the region of the injury.
record. In the vast majority, however, most muscles are
involved to some degree, and the signs and
In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the symptoms encountered depend upon the major
following definition of proximate cause: muscle groups affected.

xxx xxx xxx 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
... A satisfactory definition of proximate cause is
period, a short onset time is associated with a
found in Volume 38, pages 695-696 of American
poor prognosis. Spasms are caused by sudden
Jurisprudence, cited by plaintiffs-appellants in
intensification of afferent stimuli arising in the
their brief. It is as follows:
periphery, which increases rigidity and causes
simultaneous and excessive contraction of
... "that cause, which, in natural and continuous muscles and their antagonists. Spasms may be
sequence, unbroken by any efficient intervening both painful and dangerous. As the disease
cause, produces the injury, and without which the progresses, minimal or inapparent stimuli
result would not have occurred."And more produce more intense and longer lasting spasms
comprehensively, "the proximate legal cause is with increasing frequency. Respiration may be
that acting first and producing the injury, either impaired by laryngospasm or tonic contraction of
immediately or by setting other events in motion, respiratory muscles which prevent adequate
all constituting a natural and continuous chain of ventilation. Hypoxia may then lead to irreversible
events, each having a close causal connection central nervous system damage and death.
with its immediate predecessor, the final event in
the chain immediately effecting the injury as a
Mild tetanus is characterized by an incubation
natural and probable result of the cause which
period of at least 14 days and an onset time of
first acted, under such circumstances that the
more than 6 days. Trismus is usually present, but
person responsible for the first event should, as
dysphagia is absent and generalized spasms are
an ordinarily prudent and intelligent person, have
brief and mild. Moderately severe tetanus has a
reasonable ground to expect at the moment of his
somewhat shorter incubation period and onset
act or default that an injury to some person might
time; trismus is marked, dysphagia and
probably result therefrom." (at pp. 185-186)
generalized rigidity are present, but ventilation
remains adequate even during spasms. The
The issue, therefore, hinges on whether or not there was an efficient criteria for severe tetanus include a short
intervening cause from the time Javier was wounded until his death incubation time, and an onset time of 72 hrs., or
which would exculpate Urbano from any liability for Javier's death. less, severe trismus, dysphagia and rigidity and
frequent prolonged, generalized convulsive
We look into the nature of tetanus- spasms. (Harrison's Principle of Internal
Medicine, 1983 Edition, pp. 1004-1005; Emphasis
The incubation period of tetanus, i.e., the time supplied)
between injury and the appearance of
unmistakable symptoms, ranges from 2 to 56 Therefore, medically speaking, the reaction to tetanus found inside a
days. However, over 80 percent of patients man's body depends on the incubation period of the disease.
become symptomatic within 14 days. A short
incubation period indicates severe disease, and In the case at bar, Javier suffered a 2-inch incised wound on his right
when symptoms occur within 2 or 3 days of injury palm when he parried the bolo which Urbano used in hacking him.
the mortality rate approaches 100 percent. This incident took place on October 23, 1980. After 22 days, or on
November 14, 1980, he suffered the symptoms of tetanus, like
Non-specific premonitory symptoms such as lockjaw and muscle spasms. The following day, November 15, 1980,
restlessness, irritability, and headache are he died.
encountered occasionally, but the commonest
presenting complaints are pain and stiffness in If, therefore, the wound of Javier inflicted by the appellant was
the jaw, abdomen, or back and difficulty already infected by tetanus germs at the time, it is more medically
swallowing. As the progresses, stiffness gives way probable that Javier should have been infected with only a mild cause
to rigidity, and patients often complain of of tetanus because the symptoms of tetanus appeared on the 22nd
difficulty opening their mouths. In fact, trismus in day after the hacking incident or more than 14 days after the
the commonest manifestation of tetanus and is infliction of the wound. Therefore, the onset time should have been
responsible for the familiar descriptive name of more than six days. Javier, however, died on the second day from
lockjaw. As more muscles are involved, rigidity the onset time. The more credible conclusion is that at the time
becomes generalized, and sustained contractions Javier's wound was inflicted by the appellant, the severe form of
called risus sardonicus. The intensity and tetanus that killed him was not yet present. Consequently, Javier's
sequence of muscle involvement is quite variable. wound could have been infected with tetanus after the hacking
In a small proportion of patients, only local signs
Compiled by: Vim Malicay
incident. Considering the circumstance surrounding Javier's death, his ... While the guilt of the accused in a criminal
wound could have been infected by tetanus 2 or 3 or a few but not 20 prosecution must be established beyond
to 22 days before he died. reasonable doubt, only a preponderance of
evidence is required in a civil action for damages.
The rule is that the death of the victim must be the direct, natural, (Article 29, Civil Code). The judgment of acquittal
and logical consequence of the wounds inflicted upon him by the extinguishes the civil liability of the accused only
accused. (People v. Cardenas, supra) And since we are dealing with a when it includes a declaration that the facts from
criminal conviction, the proof that the accused caused the victim's which the civil liability might arise did not exist.
death must convince a rational mind beyond reasonable doubt. The (Padilla v. Court of Appeals, 129 SCRA 559).
medical findings, however, lead us to a distinct possibility that the
infection of the wound by tetanus was an efficient intervening cause The reason for the provisions of article 29 of the
later or between the time Javier was wounded to the time of his Civil Code, which provides that the acquittal of
death. The infection was, therefore, distinct and foreign to the crime. the accused on the ground that his guilt has not
(People v. Rellin, 77 Phil. 1038). been proved beyond reasonable doubt does not
necessarily exempt him from civil liability for the
Doubts are present. There is a likelihood that the wound was but same act or omission, has been explained by the
the remote cause and its subsequent infection, for failure to take Code Commission as follows:
necessary precautions, with tetanus may have been
the proximate cause of Javier's death with which the petitioner had The old rule that the acquittal of the accused in a criminal
nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al. case also releases him from civil liability is one of the most
(99 Phil. 118). serious flaws in the Philippine legal system. It has given use
to numberless instances of miscarriage of justice, where the
"A prior and remote cause cannot be made the be acquittal was due to a reasonable doubt in the mind of the
of an action if such remote cause did nothing court as to the guilt of the accused. The reasoning followed
more than furnish the condition or give rise to the is that inasmuch as the civil responsibility is derived from
occasion by which the injury was made possible, the criminal offense, when the latter is not proved, civil
if there intervened between such prior or remote liability cannot be demanded.
cause and the injury a distinct, successive,
unrelated, and efficient cause of the injury, even This is one of those causes where confused thinking leads to
though such injury would not have happened but unfortunate and deplorable consequences. Such reasoning fails to
for such condition or occasion. If no danger draw a clear line of demarcation between criminal liability and civil
existed in the condition except because of the responsibility, and to determine the logical result of the distinction.
independent cause, such condition was not the The two liabilities are separate and distinct from each other. One
proximate cause. And if an independent negligent affects the social order and the other, private rights. One is for the
act or defective condition sets into operation the punishment or correction of the offender while the other is for
instances which result in injury because of the reparation of damages suffered by the aggrieved party. The two
prior defective condition, such subsequent act or responsibilities are so different from each other that article 1813 of
condition is the proximate cause." (45 C.J. pp. the present (Spanish) Civil Code reads thus: "There may be a
931-932). (at p. 125) compromise upon the civil action arising from a crime; but the public
action for the imposition of the legal penalty shall not thereby be
It strains the judicial mind to allow a clear aggressor to go scot free of extinguished." It is just and proper that, for the purposes of the
criminal liability. At the very least, the records show he is guilty of imprisonment of or fine upon the accused, the offense should be
inflicting slight physical injuries. However, the petitioner's criminal proved beyond reasonable doubt. But for the purpose of indemnity
liability in this respect was wiped out by the victim's own act. After the complaining party, why should the offense also be proved beyond
the hacking incident, Urbano and Javier used the facilities of barangay reasonable doubt? Is not the invasion or violation of every private
mediators to effect a compromise agreement where Javier forgave right to be proved only by a preponderance of evidence? Is the right
Urbano while Urbano defrayed the medical expenses of Javier. This of the aggrieved person any less private because the wrongful act is
settlement of minor offenses is allowed under the express provisions also punishable by the criminal law?
of Presidential Decree G.R. No. 1508, Section 2(3). (See also People v.
Caruncho, 127 SCRA 16). "For these reasons, the Commission recommends the adoption of the
reform under discussion. It will correct a serious defect in our law. It
We must stress, however, that our discussion of proximate cause and will close up an inexhaustible source of injustice-a cause for
remote cause is limited to the criminal aspects of this rather unusual disillusionment on the part of the innumerable persons injured or
case. It does not necessarily follow that the petitioner is also free of wronged."
civil liability. The well-settled doctrine is that a person, while not
criminally liable, may still be civilly liable. Thus, in the recent case The respondent court increased the P12,000.00 indemnification
of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987), imposed by the trial court to P30,000.00. However, since the
we said: indemnification was based solely on the finding of guilt beyond
reasonable doubt in the homicide case, the civil liability of the
xxx xxx xxx petitioner was not thoroughly examined. This aspect of the case calls
for fuller development if the heirs of the victim are so minded.

Compiled by: Vim Malicay


WHEREFORE, the instant petition is hereby GRANTED. The questioned xxx xxx xxx
decision of the then Intermediate Appellate Court, now Court of
Appeals, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of On arraignment, the accused-appellant pleaded not guilty. The
the crime of homicide. Costs de oficio. Solicitor General states accurately the facts as follows:

SO ORDERED. Khingsley Paul Koh and the wife of accused


Francisco Abarca, Jenny, had illicit relationship.
Fernan, (Chairman), Feliciano, Bidin and,Cortes, JJ., concur. The illicit relationship apparently began while the
accused was in Manila reviewing for the 1983 Bar
PEOPLE VS ABARCA examinations. His wife was left behind in their
residence in Tacloban, Leyte (pp. 45-47, 65, tsn,
(153 SCRA 735[1987])
Sept. 24, 1984).

SARMIENTO, J.:
On July 15, 1984, the accused was in his residence
in Tacloban, Leyte. On the morning of that date
This is an appeal from the decision of the Regional Trial Court of Palo, he went to the bus station to go to Dolores,
Leyte, sentencing the accused-appellant Francisco Abarca to death for Eastern Samar, to fetch his daughter. However,
the complex crime of murder with double frustrated murder. he was not able to catch the first trip (in the
morning). He went back to the station in the
The case was elevated to this Court in view of the death sentence afternoon to take the 2:00 o'clock trip but the bus
imposed. With the approval of the new Constitution, abolishing the had engine trouble and could not leave (pp. 5-8,
penalty of death and commuting all existing death sentences to life tsn, Nov. 28, 1985). The accused, then proceeded
imprisonment, we required the accused-appellant to inform us to the residence of his father after which he went
whether or not he wished to pursue the case as an appealed case. In home. He arrived at his residence at the V & G
compliance therewith, he filed a statement informing us that he Subdivision in Tacloban City at around 6:00
wished to continue with the case by way of an appeal. o'clock in the afternoon (pp. 8-9, tsn, Id.).

The information (amended) in this case reads as follows: Upon reaching home, the accused found his wife,
Jenny, and Khingsley Koh in the act of sexual
xxx xxx xxx intercourse. When the wife and Koh noticed the
accused, the wife pushed her paramour who got
his revolver. The accused who was then peeping
The undersigned City Fiscal of the City of Tacloban above the built-in cabinet in their room jumped
accuses Francisco Abarca of the crime of Murder and ran away (pp. 9-13, tsn, Id.).
with Double Frustrated Murder, committed as
follows:
The accused went to look for a firearm at
Tacloban City. He went to the house of a PC
That on or about the 15th day of July, 1984, in the soldier, C2C Arturo Talbo, arriving there at around
City of Tacloban, Philippines and within the 6:30 p.m. He got Talbo's firearm, an M-16 rifle,
jurisdiction of this Honorable Court, the above- and went back to his house at V & G Subdivision.
named accused, with deliberate intent to kill and He was not able to find his wife and Koh there. He
with evident premeditation, and with treachery, proceeded to the "mahjong session" as it was the
armed with an unlicensed firearm (armalite), M- "hangout" of Kingsley Koh. The accused found
16 rifle, did then and there wilfully, unlawfully Koh playing mahjong. He fired at Kingsley Koh
and feloniously attack and shot several times three times with his rifle (pp. 13-19, tsn, Id.). Koh
KHINGSLEY PAUL KOH on the different parts of his was hit. Arnold and Lina Amparado who were
body, thereby inflicting upon said KHINGSLEY occupying a room adjacent to the room where
PAUL KOH gunshot wounds which caused his Koh was playing mahjong were also hit by the
instantaneous death and as a consequence of shots fired by the accused (pp. 34-49, tsn, Sept.
which also caused gunshot wounds to LINA 24, 1984). Kingsley Koh died instantaneously of
AMPARADO and ARNOLD AMPARADO on the cardiorespiratory arrest due to shock and
different parts of their bodies thereby inflicting hemorrhage as a result of multiple gunshot
gunshot wounds which otherwise would have wounds on the head, trunk and abdomen (pp. 28-
caused the death of said Lina Amparado and 29, tsn, Sept. 24, 1984; see also exh. A): Arnold
Arnold Amparado, thus performing all the acts of Amparado was hospitalized and operated on in
execution which should have produced the the kidney to remove a bullet (pp. 17-23, tsn, Oct.
crimes of murders as a consequence, but 17, 1984; see also exh. C). His wife, Lina
nevertheless did not produce it by reason of Amparado, was also treated in the hospital as she
causes independent of his will, that is by the was hit by bullet fragments (p. 23, tsn, Id.). Arnold
timely and able medical assistance rendered to Amparado who received a salary of nearly
Lina Amparado and Arnold Amparado which P1,000.00 a month was not able to work for 1-1/2
prevented their death. 1 months because of his wounds. He spent

Compiled by: Vim Malicay


P15,000.00 for medical expenses while his wife The Solicitor General recommends that we apply Article 247 of the
spent Pl,000.00 for the same purpose (pp. 24-25, Revised Penal Code defining death inflicted under exceptional
tsn, Id. ). 2 circumstances, complexed with double frustrated murder. Article 247
reads in full:
On March 17, 1986, the trial court rendered the appealed judgment,
the dispositive portion whereof reads as follows: ART. 247. Death or physical injuries inflicted under
exceptional circumstances. Any legally married
xxx xxx xxx person who, having surprised his spouse in the act
of committing sexual intercourse with another
person, shall kill any of them or both of them in
WHEREFORE, finding the accused, Francisco
the act or immediately thereafter, or shall inflict
Abarca guilty beyond reasonable doubt of the
upon them any serious physical injury, shall suffer
complex crime of murder with double frustrated
the penalty of destierro.
murder as charged in the amended information,
and pursuant to Art. 63 of the Revised Penal Code
which does not consider the effect of mitigating If he shall inflict upon them physical injuries of any
or aggravating circumstances when the law other kind, he shall be exempt from punishment.
prescribes a single indivisible penalty in relation
to Art. 48, he is hereby sentenced to death, to These rules shall be applicable, under the same
indemnify the heirs of Khingsley Paul Koh in the circumstances, to parents with respect to their
sum of P30,000, complainant spouses Arnold and daughters under eighteen years of age, and their
Lina Amparado in the sum of Twenty Thousand seducers, while the daughters are living with their
Pesos (P20,000.00), without subsidiary parents.
imprisonment in case of insolvency, and to pay
the costs. Any person who shall promote or facilitate
prostitution of his wife or daughter, or shall
It appears from the evidence that the deceased otherwise have consented to the infidelity of the
Khingsley Paul Koh and defendant's wife had illicit other spouse shall not be entitled to the benefits
relationship while he was away in Manila; that the of this article.
accused had been deceived, betrayed, disgraced
and ruined by his wife's infidelity which disturbed We agree with the Solicitor General that the aforequoted provision
his reasoning faculties and deprived him of the applies in the instant case. There is no question that the accused
capacity to reflect upon his acts. Considering all surprised his wife and her paramour, the victim in this case, in the act
these circumstances this court believes the of illicit copulation, as a result of which, he went out to kill the
accused Francisco Abarca is deserving of deceased in a fit of passionate outburst. Article 247 prescribes the
executive clemency, not of full pardon but of a following elements: (1) that a legally married person surprises his
substantial if not a radical reduction or spouse in the act of committing sexual intercourse with another
commutation of his death sentence. person; and (2) that he kills any of them or both of them in the act or
immediately thereafter. These elements are present in this case. The
Let a copy of this decision be furnished her trial court, in convicting the accused-appellant of murder, therefore
Excellency, the President of the Philippines, thru erred.
the Ministry of Justice, Manila.
Though quite a length of time, about one hour, had passed between
SO ORDERED. 3 the time the accused-appellant discovered his wife having sexual
intercourse with the victim and the time the latter was actually shot,
xxx xxx xxx the shooting must be understood to be the continuation of the
pursuit of the victim by the accused-appellant. The Revised Penal
Code, in requiring that the accused "shall kill any of them or both of
The accused-appellant assigns the following errors committed by the
them . . . immediately" after surprising his spouse in the act of
court a quo:
intercourse, does not say that he should commit the killing instantly
thereafter. It only requires that the death caused be the proximate
I. result of the outrage overwhelming the accused after chancing upon
his spouse in the basest act of infidelity. But the killing should have
IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD been actually motivated by the same blind impulse, and must not
OF ENTERING A JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF have been influenced by external factors. The killing must be the
THE REVISED PENAL CODE; direct by-product of the accused's rage.

II. It must be stressed furthermore that Article 247, supra, does not
define an offense. 5 In People v. Araque, 6 we said:
IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING
CIRCUMSTANCE OF TREACHERY. 4 xxx xxx xxx

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As may readily be seen from its provisions and its for a specific crime, but grants a privilege or
place in the Code, the above-quoted article, far benefit to the accused for the killing of another or
from defining a felony, merely provides or grants the infliction of serious physical injuries under the
a privilege or benefit amounting practically to circumstances therein mentioned. ... 7
an exemption from an adequate punishment
to a legally married person or parent who shall xxx xxx xxx
surprise his spouse or daughter in the act of
committing sexual intercourse with another, and
Punishment, consequently, is not inflicted upon the accused. He is
shall kill any or both of them in the act or
banished, but that is intended for his protection. 8
immediately thereafter, or shall inflict upon them
any serious physical injury. Thus, in case of death
or serious physical injuries, considering the It shall likewise be noted that inflicting death under exceptional
enormous provocation and his righteous circumstances, not being a punishable act, cannot be qualified by
indignation, the accused who would otherwise either aggravating or mitigating or other qualifying circumstances, We
be criminally liable for the crime of homicide, cannot accordingly appreciate treachery in this case.
parricide, murder, or serious physical injury, as
the case may be is punished only The next question refers to the liability of the accused-appellant for
with destierro. This penalty is mere banishment the physical injuries suffered by Lina Amparado and Arnold Amparado
and, as held in a case, is intended more for the who were caught in the crossfire as the accused-appellant shot the
protection of the accused than a punishment. victim. The Solicitor General recommends a finding of double
(People vs. Coricor, 79 Phil., 672.) And where frustrated murder against the accused-appellant, and being the more
physical injuries other than serious are inflicted, severe offense, proposes the imposition of reclusion temporal in its
the offender is exempted from punishment. In maximum period pursuant to Article 48 of the Revised Penal Code.
effect, therefore, Article 247, or the exceptional This is where we disagree. The accused-appellant did not have the
circumstances mentioned therein, amount to an intent to kill the Amparado couple. Although as a rule, one
exempting circumstance, for even where death or committing an offense is liable for all the consequences of his act, that
serious physical injuries is inflicted, the penalty is rule presupposes that the act done amounts to a felony. 9
so greatly lowered as to result to no punishment
at all. A different interpretation, i.e., that it But the case at bar requires distinctions. Here, the accused-appellant
defines and penalizes a distinct crime, would was not committing murder when he discharged his rifle upon the
make the exceptional circumstances which deceased. Inflicting death under exceptional circumstances is not
practically exempt the accused from criminal murder. We cannot therefore hold the appellant liable for frustrated
liability integral elements of the offense, and murder for the injuries suffered by the Amparados.
thereby compel the prosecuting officer to plead,
and, incidentally, admit them, in the information.
Such an interpretation would be illogical if not This does not mean, however, that the accused-appellant is totally
absurd, since a mitigating and much less an free from any responsibility. Granting the fact that he was not
exempting circumstance cannot be an integral performing an illegal act when he fired shots at the victim, he cannot
element of the crime charged. Only "acts or be said to be entirely without fault. While it appears that before firing
omissons . . . constituting the offense" should be at the deceased, he uttered warning words ("an waray labot
pleaded in a complaint or information, and a kagawas,") 10 that is not enough a precaution to absolve him for the
circumstance which mitigates criminal liability or injuries sustained by the Amparados. We nonetheless find negligence
exempts the accused therefrom, not being an on his part. Accordingly, we hold him liable under the first part,
essential element of the offense charged-but a second paragraph, of Article 365, that is, less serious physical injuries
matter of defense that must be proved to the through simple imprudence or negligence. (The records show that
satisfaction of the court-need not be pleaded. Arnold Amparado was incapacitated for one and one-half
(Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo, months; 11 there is no showing, with respect to Lina Amparado, as to
23 Phil., 368.) the extent of her injuries. We presume that she was placed in
confinement for only ten to fourteen days based on the medical
certificate estimating her recovery period.) 12
That the article in question defines no crime is
made more manifest when we consider that its
counterpart in the old Penal Code (Article 423) For the separate injuries suffered by the Amparado spouses, we
was found under the General Provisions (Chapter therefore impose upon the accused-appellant arresto mayor (in its
VIII) of Title VIII covering crimes against persons. medium and maximum periods) in its maximum period, arresto to
There can, we think, hardly be any dispute that as being the graver penalty (than destierro). 13
part of the general provisions, it could not have
possibly provided for a distinct and separate WHEREFORE, the decision appealed from is hereby MODIFIED. The
crime. accused-appellant is sentenced to four months and 21 days to six
months of arresto mayor. The period within which he has been in
xxx xxx xxx confinement shall be credited in the service of these penalties. He is
furthermore ordered to indemnify Arnold and Lina Amparado in the
sum of P16,000.00 as and for hospitalization expense and the sum of
We, therefore, conclude that Article 247 of the P1,500.00 as and for Arnold Amparado's loss of earning capacity. No
Revised Penal Code does not define and provide special pronouncement as to costs.
Compiled by: Vim Malicay
IT IS SO ORDERED. A rectangular area of about 1" x 3" bluish black in color was noted on
the upper half, anterior aspect of the arm, left.
Yap (Chairman), Melencio-Herrera, Paras, and Padilla JJ., concur.
SKELETAL SYSTEM:
PEOPLE VS ULEP
(G.R. NO. L-36858) Complete fracture of the 4th, 5th, 6th and 7th ribs, left. The 4th and
5th ribs fractured along the midolavicular line, left. The 6th and 7th
ribs fractured along the anterior auxillary line, left. Presence of
GANCAYCO, J.:
extravascated blood and injuries of the surrounding tissues of the
broken ribs areas, left.
A man must love his wife. He must not lift a finger to hurt her. Indeed
he must be her protector. When against this unwritten rule he beats
Complete fracture of the 3rd and 4th ribs at the juncture of the rib
her, he ceases to be a man. He becomes a beast. And the law imposes
and external cartillages with concomitant injury to its sounding
the supreme penalty when in the process he kills her. It is parricide
tissues and extravascated blood, right side.
pure and simple.

THORACIC CAVITY:
This is what Macario A. Ulep, was convicted of by the Court of First
Instance of Ilocos Norte, Second Judicial District. He was sentenced to
suffer the penalty of reclusion perpetua, and to indemnify the heirs of Presence of about 200 cc. of a serous fluid found within the cavity.
the deceased in the amount of P12,000.00 and to pay the costs in a
decision of March 20, 1973. Pleura lacerated at the points of fractures.

The facts are undisputed. On May 21, 1970, at nine o'clock in the CARDIOVASCULAR SYSTEM:
evening, in San Nicolas, Ilocos Norte, one Asuncion Pablo Ulep died as
a result of physical injuries inflicted upon her on that very day by her Heart with small amount of clotted blood. Coronary vessels
husband, accused Macario Ulep. The following day, the Chief of Police congested. The big blood vessels contained small amount of clotted
of San Nicolas, Ilocos Norte received a report of the said death of blood.
Asuncion Pablo who allegedly died of a heart attack. The Chief of
Police and the Rural Health Officer went to the house of the deceased
ABDOMINAL CAVITY:
and there they saw the body on a bamboo bed surrounded by
relatives, friends, and the husband of the deceased, Macario. The
Chief of Police suggested that an autopsy be conducted but the Presence of about 500 cc. of serous fluid within the cavity.
husband refused to allow the same. However, the daughter of the
deceased by a previous marriage asked for a day or two to decide on DIGESTIVE SYSTEM:
her preference.
Apparently normal
At the behest of the daughter, the request for an autopsy was made
shortly before the burial. Accordingly, the police chief and Dr. Eliseo CENTRAL NERVOUS SYSTEM:
Bonoan, a physician, caught up with the funeral Procession at the
Catholic cemetery and thereupon conducted an autopsy on the
deceased. The meningeal vessels were congested.

The autopsy reports read as follows: CAUSE OF DEATH:

POSTMORTEM EXAMINATION CARDIAC ARREST

Name: ASUNCION PABLO ULEP PRIMARY SHOCK.

Age: 42 (Exh. D, p. 16, rec.). 1

Nationality: Filipino Two weeks after the burial, two (2) constabulary sergeants
investigated Macario Ulep. A statement was prepared and signed by
the accused and was subsequently sworn to before Fiscal Cesar Abaya
Address: No. 24, San Nicolas, Ilocos Norte of Ilocos Norte. In this statement, marked as Exhibit "A", he admitted
that he caused the death of his wife by elbowing her because his wife
Date: May 25, 1970 was then drunk and was uttering indecent words. The following day,
PC sergeant Damian Bautista of Camp Juan, Laoag City conducted
PATHOLOGICAL DIAGNOSIS another investigation of accused Macario Ulep. His statement was
reduced to writing and then subscribed to before Fiscal Abaya. He
reiterated that the cause of death of his wife, Asuncion Pablo, was his
SKIN:
elbowing her on her breast. This statement was marked Exhibit "B".

Compiled by: Vim Malicay


Ulep narrated that this elbowing and attack took place at their home While the accused admitted that he delivered several elbow blows on
at 5:30 in the afternoon. She vomitted and then went to bed, The the chest of his wife immediately before her death and the
accused then left for the fields and returned at around 9:00 in the prosecution attributed these blows as the proximate cause of the
evening and found his wife dead on her bed. He reported this death cardiac arrest and primary shock which resulted in the wife's death,
to their barrio captain. the defense assails this theory of the prosecution in the following
manner:
Despite these statements, (Exhibits "A" and "B") admitting his guilt,
Ulep retracted his statement in court by narrating that more than a First, there were no contusions on the chest of the
year before that, and while his wife went to have their palay milled, victim. This indicates that the elbow blows were
their bullcart loaded with sacks of rice turned upside down and not of sufficient force to fracture the ribs. This is
pinned his wife on her breast. With the pain in her chest, she was so because a fracture necessarily results in the
treated by a country quack doctor or "arbularyo." extravasation of blood in the fractured area and it
is the extravasated blood that causes the swelling
The accused took exception to his conviction when he raised the or contusion. 2 Dr. Blanco attributes the absence
following errors: of swelling or contusion on the chest, where the
fractures were found, to the fact that the fracture
conditions Were of long standing; that is, some
I
repairs has happened and that sufficient time
have elapsed for the swelling to disappear (t.s.n.,
THE LOWER COURT ERRED IN HOLDING THAT THE CAUSE OF DEATH p. 180).
OF ASUNCION PABLO WAS DUE TO THE ELBOW BLOWS BY THE
ACCUSED-APPELLANT ON HER BREAST, AS ADMIRED BY HIM IN HIS
Second, even on the theory that fractures of the
AFFIDAVITS, EXHIBIT "A" AND EXHIBIT "A-1," ENGLISH TRANSLATION,
ribs as that found by Dr. Bonoan were present,
WHEN SUCH ADMISSION IS BUT A MERE BELIEF ON HIS PART.
the same could have not caused cardiac arrest
and primary shock. This is so because only
II extravasated blood was present around the
immediate area of the fractures, This means that
THE LOWER COURT ERRED IN NOT HOLDING THAT THE CAUSE OF the fractures were not depressed or that the
DEATH OF SAID ASUNCION PABLO WAS DUE TO A LONG STANDING fractured ends did not cave-in, so as to injure the
PROCESS OR CONDITION IN HER BODY SYSTEM, AS TESTIFIED TO BY heart and impede its functions to cause cardiac
DR. PEDRO BLANCO FOR THE DEFENSE. arrest. The claim of Dr. Bonoan that the chest is
pliant and is like an accordion which can be
III compressed is puerile to say the least. Even so,
the elbow blows of the accused could not have
caused a compression of the chest wall, no matter
THE LOWER COURT ERRED CONSEQUENTLY IN NOT ACQUITTING HIM how pliant it could be. And even on the theory
OF THE CRIME OF PARRICIDE. that the fractures were caused by stamping the
foot on a piece of wood placed on the chest, while
Our primary concern is to determine the cause of death of Asuncion the victim was lying on her back, still the fractures
Pablo, the wife, of the accused. Was her death a result of cardiac could not have injured the heart or impede its
arrest and primary shock due to fractured ribs? The appellant alleges functions to cause cardiac arrest, because the
that the gradual weakening of the heart due to a long standing illness fractures, were not depressed fractures or cave-
of the body system caused the cardiac arrest which claimed the life of in fractures. The fractures merely caused the
Asuncion Pablo. extravasation of blood within the fractured areas.
And neither would the fractures cause primary
The post-mortem report on the deceased was prepared by Dr. Eliseo shock because they were merely complete
V. Bonoan who conducted an autopsy at the behest of a daughter of fractures; which means a mere breakage that
tile deceased by a previous marriage. The husband who previously would not cause the stoppage of the heart,
denied permission to conduct an autopsy was present when the because it does not tend to compress the heart. 3
autopsy was performed shortly before the body was buried at the
cemetery of San Nicolas, Ilocos Norte. In the necropsy report of Dr. And third, although the pleura or thoracic cavity
Bonoan, the cause of death was manifestly due to cardiac arrest and was lacerated at the points of fracture, the same
primary shock. We agree and see no fault in this finding made in the could not have caused cardiac arrest or primary
necropsy report of Dr. Bonoan. shock because the lacerations were limited to the
pleura. The points of fracture did not cave-in or
The defense took exception to Dr. Bonoan's testimony that the were not depressed and they did not injure or
fractures in the chest could have been caused by blows or physical impede the heart to cause cardiac arrest. Neither
pressure. Could such injuries not have been inflicted by elbow blows did the lacerations of the pleura cause primary
when the victim was standing or by knee or feet blows when the shock because blood did not spill into the pleura,
victim was lying on her back or was sitting with her back against the which indicates that the hemorrhage was nil. This
wall? is so because the serous fluid in the pleura -as not
reddish.

Compiled by: Vim Malicay


On the contrary, the evidence of the prosecution cardiac arrest and primary shock caused by the strong pressure
shows that the deceased died of cardiac arrest applied on the upper front chest bone. This happens when one steps,
because of the weakening of the heart due to a kneels or presses the body of a victim against a wall. The man-size
long standing process or condition in her body blows coming from the elbow of the aggressor upon a thin-framed
system. Thus the theory of the defense is woman can only bring about fatal results.
strengthened by the very evidence of the
prosecution. 4 We find relevance in Wharton and Stilles' findings in their
book, Medical Jurisprudence under the title of "SHOCK," to wit:
Furthermore, both sides in this case took issue to the presence of 200
cc. of serous fluid in the pleura. The appellant claims that it is not Sec. 225. Shock. Death may also be due to the
normal whereas the prosecution says that the pleura normally shock associated with the injury. The possibility of
contains 100 to 200 cc. of serous fluid and that this is normal. Anyway a person dying from the shock attendant upon an
both agree that there should be enough serous fluid to lubricate the injury which, by itself appears to be unimportant
tissues. is attested by experience. No satisfactory
explanation of the cause of the shock seems to
The presence of 500 cc. of serous fluid in the abdominal cavity which, have been found, though it is due in some way to
according to Dr. Blanco, the physician, witness for the appellant, may the upsetting of the nervous equilibrium of the
be due to the chronic condition of the kidney like nephritis and edema body. Shock from an injury may be fatal even
or the hardening of the liver or a long progressively weakening of the when the blow leaves no trace behind it; as, for
heart. 5 Dr. Bonoan did not concur in this view when he said that the instance, when a person receives a violent blow
fluid was rather increased as a result of the diffusion of the medicine upon the pit of the stomach, or behind the ear, or
used in the embalming. 6 We find cogent basis in the explanation to the larynx. ... In the case of Reg. v. Slane, et
given by Dr. Bonoan. al., 11 the deceased had received injuries to the
abdomen by kick and blows, but there were no
Another point raised in the necropsy report pertains to the presence marks of bruises present, or anything to show the
of clotted blood in the heart and blood vessels as well as the cause of death. Death however, had followed
congestion of the meningeal vessels. The appellant bares that this is twenty minutes after the maltreatment and was
a sign of the hardening of the heart. Dr. Bonoan of the prosecution evidently due to the shock. The prisoners were
disclosed that there were no signs of circulatory weakening and that convicted of murder. 12
blood clots were not found adherent to the heart and such being the
condition there could be no abnormality and thus he further declares We have previously stated that:
that such clots are normally found in the heart of a dead person or in
any part of the circulatory system. 7 Even if the victim is suffering from an internal
ailment, liver or heart disease, or tuberculosis, if
There is an admission by Dr. Blanco, the appellant's witness, that he the blow delivered by the accused
has not "attended a case of fractured ribs" 8 and that he explains
cardiac failure as a "failing of the heart" and his further concept is that (a) is the efficient cause of death; or
it is "the stopping of the heart." He says that such stoppage could be
due to trauma, such as a fracture of the ribs. 9
(b) accelerated his death; or

A resume of the evidence presented by the parties establishes the fact


(c) is the proximate cause of death; then there is
of death of Asuncion Pablo on May 21, 1970. She was legally married
criminal liability. 13
to Macario Ulep, the appellant herein. The death, established in two
affidavits, Exhibits "A" and "B," was caused by said accused. In these
affidavits, the appellant admitted that he elbowed and attacked his Apropos to all these is that time-respected doctrine: "He who is the
wife. This attack caused the complete fracture of the 4th, 5th, 6th and cause of the cause is the cause of the evil caused." This is the rationale
7th ribs on her left chest and the 3rd, and 4th ribs, right chest of in Article 4 of the Revised Penal Code which provides that "criminal
Asuncion Pablo on the same evening of May 21, 1970. The trial judge liability shall be incurred by a person committing a felony (delito)
observed: "There was never any attempt on the part of the accused although the wrongful act done be different from that which he
to repudiate the sworn statements wherein he admitted that the intended."
cause of death of his wife was his having elbowed her many times on
her breast." 10 Again, We elucidated that: even though a blow with the fist or a kick
does not cause any external wound, it may easily produce
Having realized the gravity of his act, the appellant presented a inflammation of the spleen and peritonitis and cause death, and even
witness to prove that sometime in February or March, 1969 his wife though the victim may have been previously affected by some
was pinned down by a sack of rice and the side portion of a bullcart internal malady, yet if the blow with the fist or foot accelerated death,
and was attended to by a town quack doctor called an arbularyo. This he who caused such acceleration is responsible for the death as the
witness said that two (2) ribs on each side of the chest were fractured, result of an injury willfully and unlawfully inflicted. 14
without stating which particular ribs were so affected.
We are, therefore, convinced that there is no fundamental
From all these observations, findings, and an incisive study of the disagreement between the two medical witnesses as to the cause of
necropsy report, the cause of death of the wife-victim in this case is
Compiled by: Vim Malicay
the victim's death and that cardiac arrest and primary shock took There is no evidence that Emigdio took part in the fight between
away the life of the victim, Asuncion Pablo. Bindoy and Pacas. Neither is there any indication that the accused was
aware of Emigdio Omamdam's presence in the place, for, according
There is that clear and categorical showing that on the appellant fell to the testimony of the witnesses, the latter passed behind the
the blame for these in human acts on his wife. He should answer for combatants when he left his house to satisfy his curiosity. There was
her tragic death. no disagreement or ill feeling between Bindoy and Omamdam, on the
contrary, it appears they were nephew and uncle, respectively, and
were on good terms with each other. Bindoy did not try to wound
The indemnity to the heirs of his deceased wife should be increased
Pacas, and instead of wounding him, he hit Omamdam; he was only
to P30,000.00.
defending his possession of the bolo, which Pacas was trying to
wrench away from him, and his conduct was perfectly lawful.
WHEREFORE, with the above modification as to indemnity, the
judgment appealed from is hereby AFFIRMED in all other respects.
The wound which Omamdam received in the chest, judging by the
description given by the sanitary inspector who attended him as he
SO ORDERED. lay dying, tallies with the size of the point of Bindoy's bolo.

Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur. There is no doubt that the latter caused the wound which produced
Emigdio Omamdam's death, but the defendant alleges that it was
PEOPLE VS BINDOY caused accidentally and without malicious intent.
(56 PHIL 15)
Pacas and the widow of the deceased, Carmen Angot, testified having
VILLAMOR, J.: seen the accused stab Omamdam with his bolo. Such testimony is not
incompatible with that of the accused, to the effect that he wounded
Omamdam by accident. The widow testified that she knew of her
The appellant was sentenced by the Court of First Instance of husband's wound being caused by Bindoy from his statement to her
Occidental Misamis to the penalty of twelve years and one day before his death.
of reclusion temporal, with the accessories of law, to indemnify the
heirs of the deceased in the amount of P1,000, and to pay the costs.
The crime charged against the accused is homicide, according to the The testimony of the witnesses for the prosecution tends to show that
following information: the accused stabbed Omamdam in the chest with his bolo on that
occasion. The defendant, indeed, in his effort to free himself of Pacas,
who was endeavoring to wrench his bolo from him, hit Omamdam in
That on or about the 6th of May, 1930, in the barrio of the chest; but, as we have stated, there is no evidence to show that
Calunod, municipality of Baliangao, Province of Occidental he did so deliberately and with the intention of committing a crime.
Misamis, the accused Donato Bindoy willfully, unlawfully, If, in his struggle with Pacas, the defendant had attempted to wound
and feloniously attacked and with his bolo wounded his opponent, and instead of doing so, had wounded Omamdam, he
Emigdio Omamdam, inflicting upon the latter a serious would have had to answer for his act, since whoever willfully commits
wound in the chest which caused his instant death, in a felony or a misdemeanor incurs criminal liability, although the
violation of article 404 of the Penal Code. wrongful act done be different from that which he intended. (Art. 1
of the Penal Code.) But, as we have said, this is not the case.
The accused appealed from the judgment of the trial court, and his
counsel in this instance contends that the court erred in finding him The witness for the defense, Gaudencio Cenas, corroborates the
guilty beyond a reasonable doubt, and in convicting him of the crime defendant to the effect that Pacas and Bindoy were actually struggling
of homicide. for the possession of the bolo, and that when the latter let go, the
former had pulled so violently that it flew towards his left side, at the
The record shows that in the afternoon of May 6, 1930, a disturbance very moment when Emigdio Omamdam came up, who was therefore
arose in a tuba wineshop in the barrio market of Calunod, hit in the chest, without Donato's seeing him, because Emigdio had
municipality of Baliangao, Province of Occidental Misamis, started by passed behind him. The same witness adds that he went to see
some of the tuba drinkers. There were Faustino Pacas (alias Agaton), Omamdam at his home later, and asked him about his wound when
and his wife called Tibay. One Donato Bindoy, who was also there, he replied: "I think I shall die of this wound." And then continued:
offered some tuba to Pacas' wife; and as she refused to drink having "Please look after my wife when I die: See that she doesn't starve,"
already done so, Bindoy threatened to injure her if she did not accept. adding further: "This wound was an accident. Donato did not aim at
There ensued an interchange of words between Tibay and Bindoy, me, nor I at him: It was a mishap." The testimony of this witness was
and Pacas stepped in to defend his wife, attempting to take away not contradicted by any rebuttal evidence adduced by the fiscal.
from Bindoy the bolo he carried. This occasioned a disturbance which
attracted the attention of Emigdio Omamdam, who, with his family, We have searched the record in vain for the motive of this kind,
lived near the market. Emigdio left his house to see what was which, had it existed, would have greatly facilitated the solution of
happening, while Bindoy and Pacas were struggling for the bolo. In this case. And we deem it well to repeat what this court said in United
the course of this struggle, Bindoy succeeded in disengaging himself States vs. Carlos (15 Phil., 47), to wit:
from Pacas, wrenching the bolo from the latter's hand towards the
left behind the accused, with such violence that the point of the bolo
reached Emigdio Omamdam's chest, who was then behind Bindoy. The attention of prosecuting officers, and especially of
provincial fiscals, directed to the importance of definitely

Compiled by: Vim Malicay


ascertaining and proving, when possible, the motives which Veronica brought Jose back to St. Claire Medical Clinic on January 1,
actuated the commission of a crime under investigation. 1998, because the latter was complaining of urinary retention and
pains in his left and right lumbar regions. Dr. Corral suspected that
In many criminal cases one of the most important aids in Jose had septicemia; thus, he was given I.V. fluids, antibiotics and
completing the proof of the commission of the crime by the diuretics, and a catheter was used to relieve Jose of urinary retention.
accused is the introduction of evidence disclosing the Upon Jose's request, he was discharged on January 3, 1998. He was
motives which tempted the mind of the guilty person to brought back to the same hospital on January 7, 1998 and was
indulge the criminal act. diagnosed by Dr. Corral as having advanced Pyelonephritis, his kidney
was inflamed and with pus formation and scarring. Around 10:30 a.m.
on January 8, 1998, SPO1 Lerma Bataller of the Philippine National
In view of the evidence before us, we are of opinion and so hold, that
Police-Tiwi went to the hospital to secure Jose's ante-mortem
the appellant is entitled to acquittal according to article 8, No. 8, Penal
statement. Later, in the afternoon of the same day, Jose was brought
Code. Wherefore, the judgment appealed from is reversed, and the
to the clinic of Dr. Marilou Compuesto upon the advice of Dr. Corral
accused Donato Bindoy is hereby acquitted with costs de oficio. So
where he underwent ultrasound scanning. It was found that Jose's
ordered.
kidney had acute inflammation due to infection. He was returned to
St. Claire Medical Clinic and was advised to go to Manila. However,
Avancea, C.J., Johnson, Street, Malcolm, Romualdez, Villa-Real, and Jose died at 10:00 p.m. of the same day.
Imperial, JJ., concur.
Dr. Corral issued a Death Certificate which shows the following:
BELBIS VS PEOPLE
(685 SCRA 518) a) Immediate cause Uremia, secondary to renal shutdown

PERALTA, J.: b) Antecedent cause Septicemia, renal inflammatory


disease.
This is a Petition for Review on Certiorari1 under Rule 45, dated
February 22, 2008, of Rodolfo Belbis, Jr. and Alberto Brucales that Dr. Wilson Moll Lee, Medical Officer III of the National Bureau of
seeks to reverse and set aside the Decision2 of the Court of Appeals Investigation (NBI) of Naga City, Region V, conducted an autopsy on
(CA), dated August 17, 2007, and its Resolution dated January 4, 2008, the victim's cadaver on January 14, 1998 and issued Autopsy Report
at1irrning with modification the Decision3 dated December 23, 2004 No. BRO No. 98-02, which indicated multiple organ failure as the
of the Regional Trial Court (RTC), Tabaco City, AI bay, Branch 17, cause of the victim's death. Thus, petitioners were charged with the
finding petitioners guilty beyond reasonable doubt of the crime off crime of homicide. The Information reads:
Homicide.
That on or about the 9th day of December 1997, at about 10:30
The factual antecedents follow. o'clock in the evening, more or less, at Barangay Naga, Municipality
of Tiwi, Province of Albay, Philippines, and within the jurisdiction of
Jose Bahillo (Jose), the victim, was a Barangay Tanod of Sitio Bano, this Honorable Court, the above-named accused, with intent to kill,
Barangay Naga, Tiwi, Albay. Around 9:00 p.m. of December 9, 1997, conspiring, confederating and helping one another, did then and
Jose left his house and proceeded to the area assigned to him. Later there willfully, unlawfully, and feloniously assault, attack, and stab
on, around 10:00 p.m., Veronica Dacir (Veronica), Jose's live-in JOSE BAHILLO, thereby inflicting upon the latter stab wounds which
partner, heard Jose shouting and calling her name and went to where caused his death on January 8, 1998, to the damage and prejudice of
Jose was and saw blood at his back and shorts. It was there that Jose the latter's heirs.
told Veronica that he was held by Boboy (petitioner Alberto Brucales),
while Paul (petitioner Rodolfo Belbis, Jr.) stabbed him. Jose was taken CONTRARY TO LAW.
to St. Claire Medical Clinic at Tiwi, Albay, about four kilometers from
Barangay Naga where he was initially attended by Dr. Bernardo Corral
On February 17, 1999, petitioners entered a plea of not guilty.
(Dr. Corral). Jose was later referred to Ziga Memorial District Hospital
Thereafter, trial on the merits ensued.
at Tabaco, Albay and, thereafter, was referred to Albay Provincial
Hospital on December 10, 1997 at 2:00 a.m. He was confined therein
for six (6) days. Dr. Sancho Reduta (Dr. Reduta), his attending The prosecution presented documentary evidence as well as the
physician, issued a medical certificate, which stated the following testimonies of Dr. Marilou Compuesto, Dr. Sancho Reduta, Dr.
wounds found on Jose's body: (1) stab wound, 3 cm., lumbar area, Bernardo Corral, Dr. Wilson Moll Lee, SPO1 Lerma Bataller and Calixto
right; (2) stab wound, 3 cm., lumbar area, left; (3) stab wound, 3 cm., Dacullo.
left buttock, medial aspect; and (4) stab wound, 3 cm., left buttock,
lateral aspect. He was also found positive for alcoholic breath, his Petitioners claimed that they are entitled to the justifying
blood level was monitored and was given I.V. (intravenous) fluids and circumstance of self-defense. Through the testimonies of petitioners,
antibiotics. He was finally discharged on December 15 1997. Dr. Dr. Olga Bausa and Dr. Edwin Lino Romano, their version of the
Reduta issued Jose prescriptions and instructed the latter to go back incident is as follows:
to the hospital after the medicines prescribed are consumed. Jose
remained bedridden and should have returned to the hospital on Around 10:00 p.m. of December 9, 1997, petitioners were outside a
December 22, 1997, but failed to do so due to financial constraints. store in Naga, Tiwi, Albay, engaged in a conversation with other
During that time, the wounds of Jose were not yet fully healed. people when Jose went to them and told them to go home. While on
their way home, they heard Jose's whistle go off as the latter was

Compiled by: Vim Malicay


following them. Petitioner Rodolfo asked Jose what is the matter and indeterminate sentence of six (6) years and one (1) day of prision
the latter replied, "What about?" Suddenly, Jose thrust a nightstick on mayor as minimum to fourteen (14) years, eight (8) months and one
petitioner Rodolfo, but the latter was able to evade it. Afterwards, (1) day of reclusion temporal as maximum.
Jose held the nightstick horizontally with both hands and tried to hit
petitioner Rodolfo's forehead. Petitioner Rodolfo held the nightstick Costs de oficio.
which was in reality, a bolo sheathed on a scabbard. Jose pulled the
bolo inside and the wooden scabbard was detached from it, thus, the
SO ORDERED.5
blade thereof injured his left hand. Petitioner Rodolfo kept holding
the wooden scabbard and when Jose thrust the bolo to petitioner
Rodolfo, the latter parried it with the wooden scabbard he was Petitioners' motion for reconsideration was denied. Hence, the
holding. Petitioner Rodolfo managed to take the bolo away from Jose present petition.
and, thereafter, the latter embraced petitioner Rodolfo while trying
to get the bolo back. Petitioner Rodolfo held the bolo with his right Raised are the following issues:
hand and swung it away from Jose. Thereafter, Jose pushed petitioner
Rodolfo causing the bolo to slip from the latter's hand. Jose tried to I
pick the bolo up, but petitioner Rodolfo was able to hold it first, thus,
Jose stepped back. During that commotion, petitioner Alberto was
only watching and told Jose and petitioner Rodolfo to stop fighting. WHETHER OR NOT THE COURT OF APPEALS ERRED IN
FINDING THAT THE STATEMENTS MADE BY THE VICTIM TO
VERONICA DACIR, ONE MONTH PRIOR TO THE VICTIM'S
Thereafter, petitioner Alberto accompanied petitioner Rodolfo to the DEATH. CONSTITUTES A DYING DECLARATION WITHIN THE
latter's house because he suffered a hand injury. Petitioner Rodolfo CONTEMPLATION OF SECTION 37, RULE 130 OF THE RULES
was then brought to Tabaco General Hospital before he was referred OF COURT?
to Albay Provincial Hospital. Dr. Reduta sutured the top layer of his
wound and the following day, he went back to Tabaco General
Hospital where he was operated on his left hand injury by Dr. II
Romano.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
Petitioner Rodolfo brought the bolo used in the incident with him in RULING THAT PETITIONERS-APPELLANTS ARE NOT
his house and reported the matter to the police station of Tiwi and ENTITLED TO THE JUSTIFYING CIRCUMSTANCE OF SELF-
surrendered the same bolo to the police authorities. DEFENSE AND THE MITIGATING CIRCUMSTANCE OF
INCOMPLETE SELF-DEFENSE?
The RTC convicted the petitioners of the crime charged against them,
but appreciated the mitigating circumstance of incomplete self- III
defense. The dispositive portion of the decision follows:
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
WHEREFORE, premises considered, the accused Rodolfo Belbis, Jr. RULING THAT THE STAB WOUNDS WERE THE PROXIMATE
and Alberto Brucales are found guilty beyond reasonable doubt for CAUSE OF THE VICTIM'S DEATH?
the death of Jose Bahillo. Considering the privileged mitigating
circumstance of incomplete self-defense in their favor, and applying IV
the Indeterminate
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
Sentence Law, they are hereby sentenced to suffer the indeterminate RULING THAT THE MITIGATING CIRCUMSTANCE OF
penalty of four (4) years and two (2) months of prision correccional as VOLUNTARY SURRENDER IS NOT PRESENT IN THE CASE AT
minimum to eight (8) years and one (1) day of prision mayor as BAR?6
maximum, and to pay the heirs of Jose Bahillo the amounts of
P50,000.00 as civil indemnity and P50,000.00 as moral damages. The petition lacks merit.

Costs against the accused. In a criminal case, factual findings of the trial court are generally
accorded great weight and respect on appeal, especially when such
SO ORDERED.4 findings are supported by substantial evidence on record.7 This rule,
however, is not without exceptions, one of which is when there is a
After the denial of their motion for reconsideration, the petitioners conflict between the factual findings of the Court of Appeals and the
elevated the case to the CA. However, the latter denied their appeal trial court which necessitates a review of such factual findings.8
and affirmed the RTC decision with modification that there was no
mitigating circumstance of incomplete self-defense. The decretal Petitioners claim that there is discrepancy in the findings of the RTC
portion of the decision reads: and the CA. According to them, the RTC never mentioned about a
dying declaration which the CA discussed in its decision. They then
WHEREFORE, the decision dated 23 December 2004 of the Regional argue that the CA erred in ruling that the statements made by the
Trial Court of Tabaco City, Albay, Branch 17 is hereby AFFIRMED with victim in the presence of witnesses Veronica Dacir right after being
MODIFICATION as to the penalty imposed. Accused-appellants stabbed, and SPO1 Lerma Bataller before he died, are dying
Rodolfo C. Belbis, Jr. and Alberto Brucales are sentenced to suffer the declarations within the contemplation of the law as the victim still
lived for one month after the said dying declaration was made.
Compiled by: Vim Malicay
A dying declaration is a statement made by the victim of homicide, declarant when he made the statement; (4) the presence or absence
referring to the material facts which concern the cause and of intervening events between the occurrence and the statement
circumstances of the killing and which is uttered under a fixed belief relative thereto; and (5) the nature and circumstances of the
that death is impending and is certain to follow immediately, or in a statement itself.13
very short time, without an opportunity of retraction and in the
absence of all hopes of recovery. In other words, it is a statement Clearly, the statement made by the victim identifying his assailants
made by a person after a mortal wound has been inflicted, under a was made immediately after a startling occurrence which is his being
belief that death is certain, stating the facts concerning the cause and stabbed, precluding any chance to concoct a lie. As shown in the
circumstances surrounding his/her death.9 testimony of Veronica:

As an exception to the hearsay rule, the requisites for its admissibility Q What time did you sleep that night?
are as follows: (1) the declaration is made by the deceased under the
consciousness of his impending death; (2) the deceased was at the
xxxx
time competent as a witness; (3) the declaration concerns the cause
and surrounding circumstances of the declarants death; and (4) the
declaration is offered in a criminal case wherein the declarants death A I was not able to sleep that night because I already heard my
is the subject of inquiry.10 husband.

The fact that the victim was stabbed on December 9, 1997 and died Q What did you hear?
only on January 8, 1998 does not prove that the victim made the
statement or declaration under the consciousness of an impending A He was shouting.
death. The rule is that, in order to make a dying declaration
admissible, a fixed belief in inevitable and imminent death must be Q What was he shouting?
entered by the declarant. It is the belief in impending death and not
the rapid succession of death in point of fact that renders the dying
declaration admissible. It is not necessary that the approaching death A He was calling my name, "Bonic."
be presaged by the personal feelings of the deceased. The test is
whether the declarant has abandoned all hopes of survival and looked Q How did you come to know that it was the voice of your live-in
on death as certainly impending.11 As such, the CA incorrectly ruled partner?
that there were dying declarations.
A Because upon hearing his call "Bonic," I went to the side of the road
The CA should have admitted the statement made by the victim to and I saw him on the road walking towards our house.
Veronica Dacir right after he was stabbed as part of the res gestae and
not a dying declaration. Section 42 of Rule 130 of the Rules of Court, Q More or less what time was that?
reads as follows:
A 10:00 p.m.
Sec. 42. Part of the res gestae. - Statements made by a person while
a startling occurrence is taking place or immediately prior or
Q What did you do?
subsequent thereto with respect to the circumstances thereof, may
be given in evidence as part of the res gestae. So also, statements
accompanying an equivocal act material to the issue, and giving it a A I approached him.
legal significance, may be received as part of the res gestae.
Q What particular place did you approach him?
All that is required for the admissibility of a given statement as part
of the res gestae, is that it be made under the influence of a startling A Near the store of Susan Galica.
event witnessed by the person who made the declaration before he
had time to think and make up a story, or to concoct or contrive a Q What happened when you approached him?
falsehood, or to fabricate an account, and without any undue
influence in obtaining it, aside from referring to the event in question
A I asked him what happened.
or its immediate attending circumstances. In sum, there are three
requisites to admit evidence as part of the res gestae: (1) that the
principal act, the res gestae, be a startling occurrence; (2) the Q What was the answer?
statements were made before the declarant had the time to contrive
or devise a falsehood; and (3) that the statements must concern the A He said that he was stabbed by Paul.
occurrence in question and its immediate attending circumstances.12
Q What else?
It goes without saying that the element of spontaneity is critical. The
following factors are then considered in determining whether A: He was held by Boboy.
statements offered in evidence as part of the res gestae have been
made spontaneously, viz., (1) the time that lapsed between the
occurrence of the act or transaction and the making of the statement; xxxx
(2) the place where the statement was made; (3) the condition of the

Compiled by: Vim Malicay


Q What did you observe from Jose Bahillo your live-in partner before A: Wanting to get hold of that sharp instrument.
you brought him to the hospital?
Q: Then what did Rodolfo Belbis, Jr. do when Jose Bahillo embraced
A He was bloody and he was weak. him and tried to wrest the sharp instrument from him?

Q Could you tell us where did you see the blood? A: While this Jose Bahillo was embracing this Rodolfo Belbis, Jr.,
Rodolfo Belbis. Jr. was moving his hands while holding the sharp
A At his back and on his shorts.14 instrument, holding it away and thrusting it towards the back of Jose
Bahillo, near the waistline at the back.
Be that as it may, the CA need have discussed in its decision the
presence of a dying declaration or a statement as part of the res Q: Then what happened when you saw this?
gestae, because petitioner Rodolfo admitted stabbing the victim but
insists that he had done the deed to defend himself. It is settled that A: When Jose Bahillo was not able to get hold of that sharp
when an accused admits killing the victim but invokes self-defense to instrument, this Jose Bahillo pushed the body of Rodolfo Belbis, Jr.
escape criminal liability, the accused assumes the burden to establish away from him and Rodolfo Belbis, Jr. fell down.
his plea by credible, clear and convincing evidence; otherwise,
conviction would follow from his admission that he killed the Q: Then what happened to the sharp instrument which Rodolfo
victim.15 Self-defense cannot be justifiably appreciated when Belbis, Jr. was holding when Rodolfo Belbis, Jr. fell down?
uncorroborated by independent and competent evidence or when it
is extremely doubtful by itself.16 Indeed, in invoking self-defense, the
A: That sharp instrument got loose from his hand but it was situated
burden of evidence is shifted and the accused claiming self-defense
just near him.
must rely on the strength of his own evidence and not on the
weakness of the prosecution.17
Q: Who are you referring as "him?"
The essential requisites of self-defense are the following: (1) unlawful
aggression on the part of the victim; (2) reasonable necessity of the A: Rodolfo Belbis, Jr.
means employed to prevent or repel such aggression; and (3) lack of
sufficient provocation on the part of the person resorting to self- Q: Then after this sharp instrument was loosened from the hand of
defense.18 Verily, to invoke self-defense successfully, there must have Rodolfo Belbis, Jr. after he fell down, would you kindly inform this
been an unlawful and unprovoked attack that endangered the life of Court what happened next?
the accused, who was then forced to inflict severe wounds upon the
assailant by employing reasonable means to resist the attack.19 A: At that point, this Jose Bahillo again tried to get the sharp
instrument but Rodolfo Belbis, Jr. was faster and he got hold of that
Petitioners argue that the unlawful aggression that was started by the instrument and thrust it towards Jose Bahillo.20
victim continued even if petitioner Rodolfo was already in possession
of the bladed weapon used in the victim's stabbing. Petitioner Alberto From the above testimony, it is apparent that the unlawful aggression
narrated the event as follows: on the part of the victim ceased when petitioner Rodolfo was able to
get hold of the bladed weapon. Although there was still some struggle
Q: What happened? involved between the victim and petitioner Rodolfo, there is no doubt
that the latter, who was in possession of the same weapon, already
A: Rodolfo Belbis Jr. was able to fend off or parry the blow. became the unlawful aggressor. Retaliation is not the same as self-
defense. In retaliation, the aggression that was begun by the injured
party already ceased when the accused attacked him, while in self-
Q: Then what happened again?
defense the aggression still existed when the aggressor was injured
by the accused.21 Such an aggression can also be surmised on the four
A: The next action of Jose Bahillo was to hold the wood horizontally stab wounds sustained by the victim on his back. It is hard to believe
and push it towards Rodolfo Belbis, Jr. and Rodolfo Belbis, Jr. was able based on the location of the stab wounds, all at the back portion of
to get hold of it. the body (right lumbar area, left lumbar area, left buttock, medial
aspect and left buttock, lateral aspect), that petitioner Rodolfo was
Q: Then what happened after Rodolfo Belbis, Jr. was able to get hold defending himself. It would have been different if the wounds
of this stick? inflicted were located in the front portion of the victim's body. The CA
is, therefore, correct in agreeing with the observation of the RTC
A: The piece of wood was detached. The one Rodolfo Belbis, Jr. was when it found that:
holding was the scabbard, while the one with the sharp instrument
was held by Jose Bahillo. x x x The Court is not convinced on how Bahillo sustained the four stab
wounds as narrated by Belbis.1wphi1 If it is true that Bahillo
Q: Then what happened after this? embraced him when he was able to wrest possession of the bolo,
trying to get it back; that he held it away from his reach and swung it
at Bahillo's back; that he felt the blade touch the body, the nature of
A: Jose Bahillo embraced Rodolfo Belbis, Jr.
the wounds inflicted would be different. It would be a laceration,
slash or abrasion since it was the sharp blade that hit the back and not
Q: Then? the pointed end of the bolo. The location and nature of the injuries
Compiled by: Vim Malicay
which were stab wounds clearly showed that they were not caused As to the claim of petitioners that they are entitled to the mitigating
by swinging thrust. They were caused by direct thrust. It was the circumstance of voluntary surrender, the same does not deserve
pointed end of the bolo that caused the injuries which hit the same merit. For voluntary surrender to be appreciated, the following
spot the lumbar area and the buttock.22 requisites should be present: (1) the offender has not been actually
arrested; (2) the offender surrendered himself to a person in
The means employed by a person claiming self-defense must be authority or the latter's agent; and (3) the surrender was
commensurate to the nature and the extent of the attack sought to voluntary.29 The essence of voluntary surrender is spontaneity and
be averted, and must be rationally necessary to prevent or repel an the intent of the accused to give himself up and submit himself to the
unlawful aggression.23 In the present case, four stab wounds that are authorities either because he acknowledges his guilt or he wishes to
the product of direct thrusting of the bladed weapon are not save the authorities the trouble and expense that may be incurred for
necessary to prevent what the petitioners claim to be the continuous his search and capture.30 Without these elements, and where the
unlawful aggression from the victim as the latter was already without clear reasons for the supposed surrender are the inevitability of arrest
any weapon. In connection therewith, having established that there and the need to ensure his safety, the surrender is not spontaneous
was no unlawful aggression on the part of the victim when he was and, therefore, cannot be characterized as "voluntary surrender" to
stabbed, petitioners cannot avail of the mitigating circumstance of serve as a mitigating circumstance.31 In the present case, when the
incomplete self-defense. petitioners reported the incident and allegedly surrendered the
bladed weapon used in the stabbing, such cannot be considered as
voluntary surrender within the contemplation of the law. Besides,
Anent the contention of petitioners that the CA failed to consider the
there was no spontaneity, because they only surrendered after a
testimony of the doctor who performed the autopsy in its entirety,
warrant of their arrest had already been issued.
the same is without any merit. What really needs to be proven in a
case when the victim dies is the proximate cause of his death.
Proximate cause has been defined as "that cause, which, in natural WHEREFORE, the Petition for Review on Certiorari under Rule 45,
and continuous sequence, unbroken by any efficient intervening dated February 22, 2008, of Rodolfo Belbis, Jr. and Alberto Brucales,
cause, produces the injury, and without which the result would not is hereby DENIED. Consequently, the Decision of the Court of Appeals,
have occurred."24 The autopsy report indicated that the cause of the dated August 17, 2007, and its Resolution dated January 4, 2008,
victim's death is multiple organ failure. According to Dr. Wilson Moll affirming with modification the Decision dated December 23, 2004 of
Lee, the doctor who conducted the autopsy, the kidneys suffered the the Regional Trial Court, Tabaco City, Albay, Branch 17, finding
most serious damage. Although he admitted that autopsy alone petitioners guilty beyond reasonable doubt of the crime of Homicide
cannot show the real culprit, he stated that by having a long standing are hereby AFFIRMED.
infection caused by an open wound, it can be surmised that multiple
organ failure was secondary to a long standing infection secondary to SO ORDERED.
stab wound which the victim allegedly sustained.25 What is important
is that the other doctors who attended to the wounds sustained by DIOSDADO M. PERALTA
the victim, specially those on the left and right lumbar area, opined Associate Justice
that they affected the kidneys and that the wounds were deep
enough to have caused trauma on both kidneys. On that point, the
Causes that produce a different result
Office of the Solicitor General (OSG), in its Comment,26 is correct in
PEOPLE VS GONA
stating the following:
(54 PHIL 605)
9.3.1 Petitioners-appellants contend that the Court of Appeals failed
to consider the testimony of Dr. Lee for the defense. Dr. Lee opines OSTRAND, J.:
on cross-examination that the stab wounds sustained by Bahillo are
not the cause of his death because he lived for quite sometime and The defendant was charged before the Court of First Instance of the
that there was no direct injury on his vital organs. There was, Province of Davao with the crime of homicide, the information
however, a qualification to Dr. Lee's statement on cross-examination. reading as follows:
He opines that he could only connect the stab wounds with the
infection and death of Bahillo if he has knowledge of the past medical
That on or about October 26, 1928, in the municipal district
records of the patient. Petitioners-appellants' reliance of the said
of Pantukan, Province of Davao, Philippine Islands, as within
statement of Dr. Lee is misplaced because the doctor only examined
the jurisdiction of the court, the said accused voluntarily,
the cadaver of Bahillo. This explains why he has no direct knowledge
illegally, and criminally and with a bolo which he then
of Bahillo's medical records. The opinions of the other doctors who
carried, assaulted the Mansaca Mapudul, causing him a
testified for the prosecution and who examined Bahillo while he was
mortal wound on the left side of the neck and that as a
still alive are more conclusive than those of Dr. Lee. They had direct
consequence of said wound, the said Mapudul died.
knowledge of the causal relation between the stab wounds, the
kidney failure and the death of Bahillo.27
Upon trial the court below found the defendant guilty as charged in
the information and taking into consideration the extenuating
Thus, it can be concluded that without the stab wounds, the victim
circumstance of non-habitual intoxication, sentenced him to suffer
could not have been afflicted with an infection which later on caused
twelve years and one of reclusion temporal with the accessory
multiple organ failure that caused his death. The offender is criminally
penalties prosecuted by law to indemnity the heirs of the deceased in
liable for the death of the victim if his delictual act caused, accelerated
the sum of P1,000, and to the costs. From this sentenced the
or contributed to the death of the victim.28
defendant appealed.

Compiled by: Vim Malicay


It appears from the evidence that on the evening of October 26, 1928, The evidence of the prosecution shows that the accused and Juana
a number of Mansacas celebrated a reunion in the house of Buralo was sweethearts. Juana had been jealous of the accused on
the Mansaca Gabriel. There seems to have been liberal supply of account of the latter having frequently visited the house of one
alcoholic drinks and some of the men present became intoxicated, Carmen. Their relations were such that the accused invited Juana to
with the result that a quarrel took the place between take a walk on the afternoon of August 9, 1925. Juana refused him,
the Mansaca Dunca and the defendant. Dunca and his son Aguipo later sending him a note of excuse. On the third day, or the night of
eventually left the house and were followed by Mapudul and one August 11th, the accused went to the threshold of Cirilo Banyan's
Award. The defendant left the house about the same time with house where Juana Buralo had gone to take part in some devotion.
intention of assaulting Dunca, but in the darkness of the evening and There the accused, revolver in hand, requested Francisco Abellon to
in the intoxicated condition of the defendant, the mistook Mapudul ask Juana to come downstairs and as Abellon refused to do so, the
for Dunca and inflicated on him a mortal wound with a bolo. accused said: "If you do not want to go upstairs, I will get Juana and if
anyone tries to defend her I will kill him."
There can no doubt that the defendant killed Mapudul and that he is
guilty of the crime charged, but his attorney argues that in view of the The accused waited until Juana and her niece Perfecta Buralo came
fact that said defendant had no intention to kill the deceased and downstairs, when they went in the direction of their house. The
committed the crime by mistake, he should have been found guilty of accused, who was seen by the two girls, followed them without saying
homicide through negligence under paragraph 1 of article 568 of the a word. It is only a short distance from the house where the devotion
Penal Code and not of the graver crime of intentional homicide. took place to that of the offended party, the houses being adjacent.
As the two girls were going upstairs, the accused, while standing at
This contention is contrary to earlier decisions of this court. In these the foot of the stairway, fired a shot from his revolver which wounded
case of United State vs. Mendieta(34 Phil., 242), the court said: Perfecta Buralo, the bullet passing through a part of her neck, having
entered the posterior region thereof and coming out through the left
eye, which was completely destroyed. Due to proper medical
Even admitting that the defendant intended to injure
attention, Perfecta Buralo did not die and is on e of the witnesses who
Hilario Lauigan instead of Pedro Acierto, even that, in view
testified at the trial of this case.
of the mortal wound which inflicted upon the latter, in no
way could be considered as a relief from his criminal act.
That he made a mistake in killing one man instead of The defense, without abandoning its allegation that the accused is not
another, when it is proved that he acted maliciously and responsible for the crime, contends that the crime proven is not
willfully, cannot relieve him from criminal responsibility. frustrated murder but the discharge of a firearm, with injuries, it not
Neither do we believe that the fact that he made a mistake having been proven that it was the accused's intention to kill.
in killing the wrong man should be considered as a
mitigating circumstances. The relations existing between the accused and Juana Buralo, his
disappointment at her not accepting his invitation to take a walk, the
The appealed sentence is affirmed with the costs against the fact that the accused, revolver in hand, went to look for Juana Buralo
defendant. So ordered. at the house where the devotion was being held, later following her
to her house, and especially having aimed at her person--the head--
are facts which, in our opinion, permit of no other conclusion than
Johnson, Malcolm, Villamor, Johns, Romualdez and Villa-Real, JJ.,
that, in firing the shot, it was the accused's intention to kill.
concur.

In the decision of this court in the case of United States vs.


PEOPLE VS MABUG-AL
Montenegro (15 Phil., 1), it was held:
(51 PHIL 967)
We do not doubt that there may be cases wherein the
ROMUALDEZ, J.: discharge of a firearm at another is not in itself sufficient to
sustain a finding of the intention to kill, and there are many
The Court of First Instance of Oriental Negros imposed upon Ramon cases in the books wherein the attendant circumstances
Mabug-at the penalty of twelve years and one day cadena temporal, conclusively establish that on discharging a firearm at
with the accessories of the law, to indemnify the offended party in another the actor was not in fact animated by the intent to
the sum of P700 and to pay the costs, for the crime of frustrated kill. But, in seeking to ascertain the intention with which a
murder. specific act is committed, it is always proper and necessary
to look not merely to the act itself but to all the attendant
The appellant appealed from this judgment, making two assignments circumstances so far as they are developed by the evidence;
of error as committed by the trial court, to wit: and where, as in the case at bar, a revolver is twice
discharged point-blank at the body of another, and the
shots directed at the most vital parts of the body, it needs
1. In holding that the crime committed is frustrated murder, but little additional evidence to establish the intent to kill
and beyond a reasonable doubt.

2. In not giving any credit to the evidence presented by the The fact that a person received the shot which was intended for
defense, finding the defendant guilty beyond a reasonable another, does not alter his criminal liability. (Art. 1, par. 3, Penal
doubt. Code.)

Compiled by: Vim Malicay


The circumstances qualifying the murder alleged in the complaint are In regard to the second, it appears beyond a reasonable doubt that
evidence premeditation and treachery. Even when there is sufficient the facts enumerated above constitute the crime of frustrated
proof of premeditation (which we do not believe has been sufficiently murder.
established), yet, it cannot be considered as a qualifying circumstance
in the present case, because the person whom the accused intended With the exception of the qualifying circumstance of treachery, we
to kill was not Perfecta Buralo, who was hit by the bullet, but her aunt find no other aggravating circumstance.
Juana Buralo. Had evident premeditation been proven, and there
being no other qualifying circumstance of frustrated murder present
The judgment appealed from being in accordance with the law and
in this case, the acts should be held to be frustrated homicide and
the facts proven, the same is hereby affirmed in all its parts costs
punished with the maximum degree of the penalty prescribed by law.
against the appellant. So ordered.
(Question 2, p. 28, 1890 ed., Viada's Penal Code.) But, the fact is that
treachery was proven and must be taken into consideration in this
case, because the accused fired at Perfecta Buralo, employing means Avancea, C.J., Street, Villamor, Ostrand, Johns and Villa-Real JJ.,
which tended to insure the execution of the crime without running concur.
any risk himself from anyone who might attempt to defend the said
offended party. The treachery which, according to the evidence,
would have attended the crime had the bullet hit Juana Buralo was PEOPLE VS CAGOCO
present in this case because the offended party Perfecta Buralo and (58 PHIL 524)
Juana were going upstairs with their backs towards the accused when
he fired his revolver. The Supreme Court of Spain, in a decision of May
7, 1885 (Viada, do., pp. 29, 30), in holding a crime to be murder and VICKERS, J.:
not homicide, stated the following:
The accused was charged in the Court of First Instance of Manila with
Considering that, according to the concept of treachery as the crime of asesinato, committed as follows:
it is explained in article 10 of the Civil code dealing with said
circumstance, it is evident that in firing the gun which That on or about the 24th day of July, 1932, in the City of
Alejandro Sola was carrying which caused the death of Manila, Philippine Islands, the said accused did then and
Nazario Iigo, he employed means which tended to insure there willfully, unlawfully and feloniously, without any just
the commission of the crime without any risk to himself cause therefor and with intent to kill and treachery, assault
arising from any defense that might be made by the and attack one Yu Lon by suddenly giving him a fist blow on
offended party, for neither the wounded party Bartolome the back part of the head, under conditions which intended
Lobejano, at whom the shot was aimed in order to kill him directly and especially to insure, the accomplishment of his
so that he might not testify as to the assault committed purpose without risk to himself arising from any defense the
upon him shortly before, as held by the trial court, was not victim Yu Lon might make, thus causing him to fall on the
in a position to defend himself in any way, nor could Nazario ground as a consequence of which he suffered a lacerated
Iigo become aware of any attack so unjustified, rapid and wound on the scalp and a fissured fracture on the left
unforeseen; considering, further, that the purely accidental occipital region, which were necessarily mortal and which
circumstance that as a result of the shot a person other than caused the immediate death of the said Yu Lon.
the one intended was killed, does not modify, in the instant
case, the elements constituting the crime of murder After hearing the evidence, Judge Luis P. Torres found the defendant
qualified by the treachery with which Alejandro Sola acted, guilty as charged, and sentenced him to suffer reclusion perpetua,
whether with respect to the wounded Bartolome Lobejano with the accessory penalties of the law, to indemnify the heirs of the
or to the deceased Nazario Iigo, for which reason the rules deceased Yu Lon in the sum of P1,000, without subsidiary
of article 65 are not applicable herein, the culprit not imprisonment in case of insolvency, and to pay the costs.
having, in fact, committed a crime different from that which
he intended, taking into consideration the substantial and
intrinsical meaning thereof, etc. Appellant's attorney de oficio makes the following assignments of
error:
Although the case just cited refers to the crime of consummated
murder, the doctrine sustained therein is applicable to the case at bar 1. The trial court erred in finding that the appellant the
so far as the concurrence of treachery as a qualifying circumstance is person who committed the assault on Yu Lon, the victim to
concerned. the crime charged in the information.

The crime now before us is frustrated murder, the accused having 2. Assuming that the appellant is the person who
intended to kill and performed all the acts of execution, which would committed the assault on Yu Lon (a fact which we
have produced the crime of murder but which, nevertheless, did not specifically deny), the trial court erred in finding that the
produce it by reason of causes independent of his will. (Art. 3, Penal appellant struck his supposed victim.
Code.)
3. Assuming that the appellant is the person who
We find no merit in the first assignment of error. committed the assault on Yu Lon, and that the appellant did
strike his supposed victim (facts which we specifically deny)
the trial court erred in finding that the blow was dealt from
the victim's rear.

Compiled by: Vim Malicay


4. The trial court erred in finding that the identity of the picked the defendant out of a group of eleven persons as his father's
appellant was fully established. assailant, and that he had exceptional opportunities for observing his
father's assailant, because while that person was walking back and
5. Assuming that the four preceding errors assigned are forth behind Yu Lon, Yu Yee was facing the assailant.
without merit, the trial court erred in convicting the
appellant of the crime of murder, under article 248 of the We find the testimony of the defendant and his witnesses as to the
Revised Penal Code, instead of convicting him of the crime whereabouts of the defendant on the night in question unworthy of
of maltreatment, under article 266 of the said Code. credit.1awphil.net

It appears from the evidence that about 8:30 on the night of July 24, The testimony of the three Chinese that a man struck the deceased
1932 Yu Lon and Yu Yee, father and son, stopped to talk on the and then ran away is corroborated by the testimony of a 15-year old
sidewalk at the corner of Mestizos and San Fernando Streets in the boy, Dominador Sales.
District of San Nicolas Yu Lon was standing near the outer edge of the
sidewalk, with his back to the street. While they were talking, a man As to the contention that the deceased would have fallen on his face
passed back and forth behind Yu Lon once or twice, and when Yu Yee if he had been struck on the back of the head, the expert testimony
was about to take leave of his father, the man that had been passing shows that in such a case a person instinctively makes an effort to
back the forth behind Yu Lon approached him from behind and preserve or regain his balance, and that as result thereof the
suddenly and without warning struck him with his fist on the back part deceased may have fallen backwards. Another consideration is that
of the head. Yu Lon tottered and fell backwards. His head struck the sidewalks almost invariably slope towards the pavement, and this
asphalt pavement; the lower part of his body fell on the sidewalk. His being true, when the deceased straightened up, he naturally tended
assailants immediately ran away. Yu Yee pursued him through San to fall backwards. The evidence leaves no room for doubt that the
Fernando, Camba, and Jaboneros Streets, and then lost sight of him. accused struck the deceased on the back of the head, because when
Two other Chinese, Chin Sam and Yee Fung, who were walking along the deceased was assaulted he and Yu Yee were standing on the
Calle Mestizos, saw the incident and joined him in the pursuit of Yu sidewalk, facing each other, and if the accused had not struck the
Lon's assailant. The wounded man was taken to the Philippine deceased on the back of the head, it would have been necessary for
General Hospital, were he died about midnight. A post-mortem him to go between the deceased and Yu Yee. Since the accused struck
examination was made the next day by Dr. Anastacia Villegas, who the deceased from behind and without warning, he acted with
found that the deceased had sustained a lacerated wound and treachery. "There is treachery when the offender commits any of the
fracture of the skull in the occipital region, and that he had died from crimes against the person, employing means, methods, or forms in
cerebral hemorrhage; that he had tuberculosis, though not in an the execution thereof which tend directly and especially to insure its
advanced stage, and a tumor in the left kidney. execution, without risk to himself arising from the defense which the
offended party might make." (Article 14, No. 16, of the Revised Penal
Yu Yee promptly reported the incident to the police, and about 3 Code.)
o'clock the next morning Sergeant Sol Cruz and other detectives,
accompanied by Yu Yee, went to the scene of the crime and found The fourth assignment of error is a repetition of the first.
blood stains in the street. Yu Yee said that he could recognize his
father's assailant, and described him as being about five feet in height,
In the fifth assignment of error it is contended that the appellant if
25 or 30 years old, with long hair and wearing a suit of dark clothes.
guilty at all, should be punished in accordance with article 266 of the
After Sergeant Sol Cruz had been working on the case for three or four
Revised Penal Code, or for slight physical injuries instead of murder.
days he received information that the accused might be the person
that had assaulted Yu Lon, and on August 4th the accused was
arrested by detectives Manrique and Bustamante. He was wearing a Paragraph No. 1 of article 4 of the Revised Penal Code provide that
dark wool suit. Yu Yee was immediately called to the police station. criminal liability shall be incurred by any person committing a felony
The accused was placed near the middle of a line of some eleven (delito) although the wrongful act done be different from that which
persons that had been detained for investigation. They were wearing he intended; but in order that a person may be criminally liable for a
different kinds of clothes. Yu Yee without hesitation pointed out the felony different from that which he proposed to commit, it is
defendant as the person that had assaulted Yu Lon. He identified him indispensable that the two following requisites be present, to wit: (a)
not only by his long hair combed towards the back and worn long on That a felony was committed; and (b) that the wrong done to the
the sides in the form of side-whiskers (patillas), but also by his high aggrieved person be the direct consequence of the crime committed
cheek-bones and the fact that his ears have no lobes. The defendant by the offender. U.S. vs. Brobst, 14 Phil., 310; U.S. vs. Mallari, 29 Phil.,
was identified at the trial not only by Yu Yee, but also by Chin Sam and 14 U.S. vs. Diana, 32 Phil., 344.)
Yee Fung.
In the Brobst case, supra, it was held that death may result from a
With respect to the first four assignment of error, which raise blow over or near the heart or in the abdominal region,
questions of fact as to the identification of the accused, and whether notwithstanding the fact that the blow leaves no outward mark of
or not be struck the deceased, and if he did assault the deceased, violence; that where death result as the direct consequence of the
whether he did so in a treacherous manner, we see no sufficient use of illegal violence, the mere fact that the diseased or weakened
reason, after considering the evidence and arguments of counsel, to condition of the injured person contributed to his death, does not
doubt the correctness of the findings of the trial judge. The accused relieve the illegal aggressor of criminal responsibility; that one is not
was identified by Yu Yee and two other Chinese, and although Yu Yee relieved, under the law in these Islands, from criminal liability for the
may have overstated at the trial some of the facial peculiarities in the natural consequences of one's illegal acts, merely because one does
defendant that he claimed to have observed at the time of the not intend to produce such consequences; but that in such cases, the
incident, it must be remembered that Yu Yee without hesitation lack of intention, while it does not exempt from criminal liability, is
Compiled by: Vim Malicay
taken into consideration as an extenuating circumstance. (U.S. vs. other qualifying circumstance of the resulting death,
Luciano, 2 Phil., 96.) because if there was no alevosia for the purpose of killing
there was alevosia for the purpose of the illtreating. The
The reasoning of the decisions cited is applicable to the case at bar. means employed were not made use of for the precise
There can be no reasonable doubt as to the cause of the death of Yu purpose of making certain the death of Jacinto de Jesus but
Lon. There is nothing to indicate that it was due to some extraneous as a safe means of illtreating him without risk to the persons
case. It was clearly the direct consequence of defendants felonious who were doing so. If by this means the ill treatment was
act, and the fact that the defendant did not intend to cause so great aggravated, it follows that it is a qualifying circumstances in
an injury does not relieve him from the consequence of his unlawful the death which resulted. It was not a condition of the
act, but is merely a mitigating circumstance (U.S. vs. Rodriguez, 23 purpose, but it was a condition of the criminal act itself, in
Phil., 22). whatever sense this be taken.

The next question is whether the crime committed by the defendant The penalty of murder (article 248 of the Revised Penal Code)
should be classified as homicide or murder. Can the defendant be is reclusion temporal in its maximum period to death, and there being
convicted of murder when he did not intend to kill the deceased? present in this case one mitigating and no aggravating circumstance
the prison sentence of the appellant is reduced to seventeen years,
four months, and one day of reclusion temporal. As thus modified, the
We have seen that under the circumstances of this case the
decision appealed from is affirmed, with the costs against the
defendant is liable for the killing of Yu Lon, because his death was the
appellant.
direct consequence of defendant's felonious act of striking him on the
head. If the defendant had not committed the assault in a treacherous
manner. he would nevertheless have been guilty of homicide, Avancea, C.J., Street, Abad Santos, and Butte, JJ., concur.
although he did not intend to kill the deceased; and since the
defendant did commit the crime with treachery, he is guilty of PEOPLE VS BINDOY
murder, because of the presence of the qualifying circumstance of (56 PHIL 15)
treachery.
VILLAMOR, J.:
The Supreme Court of Spain has held that there is no incompatibility,
moral or legal, between alevosia and the mitigating circumstance of
The appellant was sentenced by the Court of First Instance of
not having intended to cause so great an injury:
Occidental Misamis to the penalty of twelve years and one day
of reclusion temporal, with the accessories of law, to indemnify the
Considering that there is no moral or legal incompatibility heirs of the deceased in the amount of P1,000, and to pay the costs.
between treachery and the mitigating circumstance No. 3 The crime charged against the accused is homicide, according to the
of article 9 of the Penal Code, because the former depends following information:
upon the manner of execution of the crime and the latter
upon the tendency of the will towards a definite purpose,
That on or about the 6th of May, 1930, in the barrio of
and therefore there is no obstacle, in case treacherous
Calunod, municipality of Baliangao, Province of Occidental
means, modes or forms are employed, to the appreciation
Misamis, the accused Donato Bindoy willfully, unlawfully,
of the first of said circumstances and simultaneously of the
and feloniously attacked and with his bolo wounded
second if the injury produced exceeds the limits intended
Emigdio Omamdam, inflicting upon the latter a serious
by the accused; and for that reason it cannot be held in the
wound in the chest which caused his instant death, in
instant case that this mitigating circumstances excludes
violation of article 404 of the Penal Code.
treachery, or that the accused, being chargeable with the
death of the offended party, should not be liable due to the
voluntary presence of treachery in the act perpetrated, The accused appealed from the judgment of the trial court, and his
although with mitigation corresponding to the disparity counsel in this instance contends that the court erred in finding him
between the act intended and the act consummated, etc. guilty beyond a reasonable doubt, and in convicting him of the crime
(Decision of May 10, 1905, Gazette of April 20, 906; Viada: of homicide.
5th edition, Vol. 2, p. 156.)
The record shows that in the afternoon of May 6, 1930, a disturbance
In the case of the United States vs. Candelaria (2 Phil., 104), this court arose in a tuba wineshop in the barrio market of Calunod,
speaking through Chief Justice Arellano said: municipality of Baliangao, Province of Occidental Misamis, started by
some of the tuba drinkers. There were Faustino Pacas (alias Agaton),
and his wife called Tibay. One Donato Bindoy, who was also there,
In trying Jacinto to a tree the three defendants acted
offered some tuba to Pacas' wife; and as she refused to drink having
treacherously (alevosamente). Whether it was to prevent
already done so, Bindoy threatened to injure her if she did not accept.
him from making resistance, whether it was to torture him
There ensued an interchange of words between Tibay and Bindoy,
for the purpose of making him give information, or whether
and Pacas stepped in to defend his wife, attempting to take away
it was for the purpose of inflicting further punishment, the
from Bindoy the bolo he carried. This occasioned a disturbance which
fact is that by this means the defendants secured
attracted the attention of Emigdio Omamdam, who, with his family,
themselves against any risk which might have arisen from
lived near the market. Emigdio left his house to see what was
an attempt at self-defense on the part of the victim. We are
happening, while Bindoy and Pacas were struggling for the bolo. In
of opinion that they had no intention to cause so great an
the course of this struggle, Bindoy succeeded in disengaging himself
evil as that which resulted, but this does not neutralize that
Compiled by: Vim Malicay
from Pacas, wrenching the bolo from the latter's hand towards the The attention of prosecuting officers, and especially of
left behind the accused, with such violence that the point of the bolo provincial fiscals, directed to the importance of definitely
reached Emigdio Omamdam's chest, who was then behind Bindoy. ascertaining and proving, when possible, the motives which
actuated the commission of a crime under investigation.
There is no evidence that Emigdio took part in the fight between
Bindoy and Pacas. Neither is there any indication that the accused was In many criminal cases one of the most important aids in
aware of Emigdio Omamdam's presence in the place, for, according completing the proof of the commission of the crime by the
to the testimony of the witnesses, the latter passed behind the accused is the introduction of evidence disclosing the
combatants when he left his house to satisfy his curiosity. There was motives which tempted the mind of the guilty person to
no disagreement or ill feeling between Bindoy and Omamdam, on the indulge the criminal act.
contrary, it appears they were nephew and uncle, respectively, and
were on good terms with each other. Bindoy did not try to wound In view of the evidence before us, we are of opinion and so hold, that
Pacas, and instead of wounding him, he hit Omamdam; he was only the appellant is entitled to acquittal according to article 8, No. 8, Penal
defending his possession of the bolo, which Pacas was trying to Code. Wherefore, the judgment appealed from is reversed, and the
wrench away from him, and his conduct was perfectly lawful. accused Donato Bindoy is hereby acquitted with costs de oficio. So
ordered.
The wound which Omamdam received in the chest, judging by the
description given by the sanitary inspector who attended him as he Avancea, C.J., Johnson, Street, Malcolm, Romualdez, Villa-Real, and
lay dying, tallies with the size of the point of Bindoy's bolo. Imperial, JJ., concur.

There is no doubt that the latter caused the wound which produced Impossible Crime
Emigdio Omamdam's death, but the defendant alleges that it was
INTOD ET. AL. VS CA
caused accidentally and without malicious intent.
(G.R. NO. 103119)

Pacas and the widow of the deceased, Carmen Angot, testified having
seen the accused stab Omamdam with his bolo. Such testimony is not CAMPOS, JR., J.:
incompatible with that of the accused, to the effect that he wounded
Omamdam by accident. The widow testified that she knew of her Petitioner, Sulpicio Intod, filed this petition for review of the decision
husband's wound being caused by Bindoy from his statement to her of the Court of Appeals 1 affirming in toto the judgment of the
before his death. Regional Trial Court, Branch XIV, Oroquieta City, finding him guilty of
the crime of attempted murder.
The testimony of the witnesses for the prosecution tends to show that
the accused stabbed Omamdam in the chest with his bolo on that From the records, we gathered the following facts.
occasion. The defendant, indeed, in his effort to free himself of Pacas,
who was endeavoring to wrench his bolo from him, hit Omamdam in In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian,
the chest; but, as we have stated, there is no evidence to show that Santos Tubio and Avelino Daligdig went to Salvador Mandaya's house
he did so deliberately and with the intention of committing a crime. in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go
If, in his struggle with Pacas, the defendant had attempted to wound with them to the house of Bernardina Palangpangan. Thereafter,
his opponent, and instead of doing so, had wounded Omamdam, he Mandaya and Intod, Pangasian, Tubio and Daligdig had a meeting with
would have had to answer for his act, since whoever willfully commits Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan
a felony or a misdemeanor incurs criminal liability, although the to be killed because of a land dispute between them and that
wrongful act done be different from that which he intended. (Art. 1 Mandaya should accompany the four (4) men, otherwise, he would
of the Penal Code.) But, as we have said, this is not the case. also be killed.

The witness for the defense, Gaudencio Cenas, corroborates the At about 10:00 o'clock in the evening of the same day, Petitioner,
defendant to the effect that Pacas and Bindoy were actually struggling Mandaya, Pangasian, Tubio and Daligdig, all armed with firearms,
for the possession of the bolo, and that when the latter let go, the arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis
former had pulled so violently that it flew towards his left side, at the Occidental. At the instance of his companions, Mandaya pointed the
very moment when Emigdio Omamdam came up, who was therefore location of Palangpangan's bedroom. Thereafter, Petitioner,
hit in the chest, without Donato's seeing him, because Emigdio had Pangasian, Tubio and Daligdig fired at said room. It turned out,
passed behind him. The same witness adds that he went to see however, that Palangpangan was in another City and her home was
Omamdam at his home later, and asked him about his wound when then occupied by her son-in-law and his family. No one was in the
he replied: "I think I shall die of this wound." And then continued: room when the accused fired the shots. No one was hit by the gun
"Please look after my wife when I die: See that she doesn't starve," fire.
adding further: "This wound was an accident. Donato did not aim at
me, nor I at him: It was a mishap." The testimony of this witness was
Petitioner and his companions were positively identified by
not contradicted by any rebuttal evidence adduced by the fiscal.
witnesses. One witness testified that before the five men left the
premises, they shouted: "We will kill you (the witness) and especially
We have searched the record in vain for the motive of this kind, Bernardina Palangpangan and we will come back if (sic) you were not
which, had it existed, would have greatly facilitated the solution of injured". 2
this case. And we deem it well to repeat what this court said in United
States vs. Carlos (15 Phil., 47), to wit:
Compiled by: Vim Malicay
After trial, the Regional Trial Court convicted Intod of attempted the offense is inherently impossible of accomplishment: or (2) the
murder. The court (RTC), as affirmed by the Court of Appeals, holding means employed is either (a) inadequate or (b) ineffectual. 10
that Petitioner was guilty of attempted murder. Petitioner seeks from
this Court a modification of the judgment by holding him liable only That the offense cannot be produced because the commission of the
for an impossible crime, citing Article 4(2) of the Revised Penal Code offense is inherently impossible of accomplishment is the focus of this
which provides: petition. To be impossible under this clause, the act intended by the
offender must be by its nature one impossible of
Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal accomplishment. 11 There must be either impossibility of
Responsibility shall be incurred: accomplishing the intended act 12 in order to qualify the act an
impossible crime.
xxx xxx xxx
Legal impossibility occurs where the intended acts, even if completed,
2. By any person performing an act which would would not amount to a crime. 13 Thus:
be an offense against persons or property, were it
not for the inherent impossibility of its Legal impossibility would apply to those
accomplishment or on account of the circumstances where (1) the motive, desire and
employment of inadequate or ineffectual means. expectation is to perform an act in violation of the
law; (2) there is intention to perform the physical
Petitioner contends that, Palangpangan's absence from her act; (3) there is a performance of the intended
room on the night he and his companions riddled it with physical act; and (4) the consequence resulting
bullets made the crime inherently impossible. from the intended act does not amount to a
crime. 14
On the other hand, Respondent People of the Philippines argues that
the crime was not impossible. Instead, the facts were sufficient to The impossibility of killing a person already dead 15 falls in this
constitute an attempt and to convict Intod for attempted murder. category.
Respondent alleged that there was intent. Further, in its Comment to
the Petition, respondent pointed out that: On the other hand, factual impossibility occurs when extraneous
circumstances unknown to the actor or beyond his control prevent
. . . The crime of murder was not consummated, the consummation of the intended crime. 16 One example is the man
not because of the inherent impossibility of its who puts his hand in the coat pocket of another with the intention to
accomplishment (Art. 4(2), Revised Penal Code), steal the latter's wallet and finds the pocket empty. 17
but due to a cause or accident other than
petitioner's and his accused's own spontaneous The case at bar belongs to this category. Petitioner shoots the place
desistance (Art. 3., Ibid.) Palangpangan did not where he thought his victim would be, although in reality, the victim
sleep at her house at that time. Had it not been was not present in said place and thus, the petitioner failed to
for this fact, the crime is possible, not accomplish his end.
impossible. 3
One American case had facts almost exactly the same as this one.
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. In People vs. Lee Kong, 18 the accused, with intent to kill, aimed and
This seeks to remedy the void in the Old Penal Code where: 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
. . . it was necessary that the execution of the act accused failed to hit him and to achieve his intent. The Court
has been commenced, that the person conceiving convicted the accused of an attempt to kill. It held that:
the idea should have set about doing the deed,
employing appropriate means in order that his The fact that the officer was not at the spot where
intent might become a reality, and finally, that the the attacking party imagined where he was, and
result or end contemplated shall have been where the bullet pierced the roof, renders it no
physically possible. So long as these conditions less an attempt to kill. It is well settled principle of
were not present, the law and the courts did not criminal law in this country that where the
hold him criminally liable. 5 criminal result of an attempt is not accomplished
simply because of an obstruction in the way of the
This legal doctrine left social interests entirely unprotected. 6 The thing to be operated upon, and these facts are
Revised Penal Code, inspired by the Positivist School, recognizes in the unknown to the aggressor at the time, the
offender his formidability, 7 and now penalizes an act which were it criminal attempt is committed.
not aimed at something quite impossible or carried out with means
which prove inadequate, would constitute a felony against person or In the case of Strokes vs. State, 19 where the accused failed to
against property. 8 The rationale of Article 4(2) is to punish such accomplish his intent to kill the victim because the latter did not pass
criminal tendencies. 9 by the place where he was lying-in wait, the court held him liable for
attempted murder. The court explained that:
Under this article, the act performed by the offender cannot produce
an offense against person or property because: (1) the commission of

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It was no fault of Strokes that the crime was not the defendant believed them to be, it is no
committed. . . . It only became impossible by defense that in reality the crime was impossible
reason of the extraneous circumstance that Lane of commission.
did not go that way; and further, that he was
arrested and prevented from committing the Legal impossibility, on the other hand, is a defense which can be
murder. This rule of the law has application only invoked to avoid criminal liability for an attempt. In U.S.
where it is inherently impossible to commit the vs. Berrigan, 24 the accused was indicated for attempting to smuggle
crime. It has no application to a case where it letters into and out of prison. The law governing the matter made the
becomes impossible for the crime to be act criminal if done without knowledge and consent of the warden. In
committed, either by outside interference or this case, the offender intended to send a letter without the latter's
because of miscalculation as to a supposed knowledge and consent and the act was performed. However,
opportunity to commit the crime which fails to unknown to him, the transmittal was achieved with the warden's
materialize; in short it has no application to the knowledge and consent. The lower court held the accused liable for
case when the impossibility grows out of attempt but the appellate court reversed. It held unacceptable the
extraneous acts not within the control of the contention of the state that "elimination of impossibility as a defense
party. to a charge of criminal attempt, as suggested by the Model Penal
Code and the proposed federal legislation, is consistent with the
In the case of Clark vs. State, 20 the court held defendant liable for overwhelming modern view". In disposing of this contention, the
attempted robbery even if there was nothing to rob. In disposing of Court held that the federal statutes did not contain such provision,
the case, the court quoted Mr. Justice Bishop, to wit: and thus, following the principle of legality, no person could be
criminally liable for an act which was not made criminal by law.
It being an accepted truth that defendant Further, it said:
deserves punishment by reason of his criminal
intent, no one can seriously doubt that the Congress has not yet enacted a law that provides
protection of the public requires the punishment that intent plus act plus conduct constitutes the
to be administered, equally whether in the offense of attempt irrespective of legal
unseen depths of the pocket, etc., what was impossibility until such time as such legislative
supposed to exist was really present or not. The changes in the law take place, this court will not
community suffers from the mere alarm of crime. fashion a new non-statutory law of criminal
Again: Where the thing intended (attempted) as a attempt.
crime and what is done is a sort to create alarm,
in other words, excite apprehension that the evil; To restate, in the United States, where the offense sought to be
intention will be carried out, the incipient act committed is factually impossible or accomplishment, the offender
which the law of attempt takes cognizance of is in cannot escape criminal liability. He can be convicted of an attempt to
reason committed. commit the substantive crime where the elements of attempt are
satisfied. It appears, therefore, that the act is penalized, not as an
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the impossible crime, but as an attempt to commit a crime. On the other
window of victim's room thinking that the latter was inside. However, hand, where the offense is legally impossible of accomplishment, the
at that moment, the victim was in another part of the house. The actor cannot be held liable for any crime neither for an attempt not
court convicted the accused of attempted murder. 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
The aforecited cases are the same cases which have been relied upon recognizes impossibility as a defense to a crime charge that is,
by Respondent to make this Court sustain the judgment of attempted attempt.
murder against Petitioner. However, we cannot rely upon these
decisions to resolve the issue at hand. There is a difference between This is not true in the Philippines. In our jurisdiction, impossible crimes
the Philippine and the American laws regarding the concept and are recognized. The impossibility of accomplishing the criminal intent
appreciation of impossible crimes. 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
In the Philippines, the Revised Penal Code, in Article 4(2), expressly Revised Penal Code makes no distinction between factual or physical
provided for impossible crimes and made the punishable. Whereas, impossibility and legal impossibility. Ubi lex non distinguit nec nos
in the United States, the Code of Crimes and Criminal Procedure is distinguere debemos.
silent regarding this matter. What it provided for were attempts of
the crimes enumerated in the said Code. Furthermore, in said The factual situation in the case at bar present a physical impossibility
jurisdiction, the impossibility of committing the offense is merely a which rendered the intended crime impossible of accomplishment.
defense to an attempt charge. In this regard, commentators and the And under Article 4, paragraph 2 of the Revised Penal Code, such is
cases generally divide the impossibility defense into two categories: sufficient to make the act an impossible crime.
legal versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court held
that: To uphold the contention of respondent that the offense was
Attempted Murder because the absence of Palangpangan was a
. . . factual impossibility of the commission of the supervening cause independent of the actor's will, will render useless
crime is not a defense. If the crime could have the provision in Article 4, which makes a person criminally liable for
been committed had the circumstances been as an act "which would be an offense against persons or property, were

Compiled by: Vim Malicay


it not for the inherent impossibility of its accomplishment . . ." In that to run fast as their pursuers might behead them. Somehow, the man
case all circumstances which prevented the consummation of the managed to escape, leaving Enrico behind. Enrico was on his way
offense will be treated as an accident independent of the actor's will home in a passenger jeep when he met his parents, who were riding
which is an element of attempted and frustrated felonies. in the hospital ambulance and already looking for him. 2

WHEREFORE, PREMISES CONSIDERED. the petition is hereby At about 1:45 in the afternoon of the same day, after Enrico's return,
GRANTED, the decision of respondent Court of Appeals holding Agra received an envelope containing a ransom note. The note
Petitioner guilty of Attempted Murder is hereby MODIFIED. We demanded P1 million for the release of Enrico and warned that
hereby hold Petitioner guilty of an impossible crime as defined and otherwise the boy would be killed. Agra thought the handwriting in
penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, the note was familiar. After comparing it with some records in the
respectively. Having in mind the social danger and degree of hospital, he gave the note to the police, which referred it to the NBI
criminality shown by Petitioner, this Court sentences him to suffer the for examination. 3
penalty of six (6) months of arresto mayor, together with the
accessory penalties provided by the law, and to pay the costs. The test showed that it bad been written by Dr. Samson Tan. 4 On the
other hand, Enrico was shown a folder of pictures in the police station
SO ORDERED. so be could identify the man who had detained him, and he pointed
to the picture of Pablito Domasian.5 Domasian and Tan were
Feliciano, Regalado and Nocon, JJ., concur. subsequently charged with the crime of kidnapping with serious
illegal detention in the Regional Trial Court of Quezon. 6
Narvasa, C.J., is on leave.
The defense of both accused was denial and alibi. Domasian claimed
that at the time of the incident he was watching a mahjong game in a
PEOPLE VS DOMASIAN
friend's house and later went to an optical clinic with his wife for the
(G.R. NO. 95322) refraction of his eyeglasses. 7Dr. Tan for his part said he was in
Manila. 8
CRUZ, J.:
After trial Judge Enrico A. Lanzanas found both accused guilty as
The boy was detained for only about three hours and was released charged and sentenced them to suffer the penalty of reclusion
even before his parents received the ransom note. But it spawned a perpetua and all accessory penalties. They were also required to pay
protracted trial spanning all of 8 years and led to the conviction of the P200,000.00 to Dr. and Mrs. Enrique Agra as actual and moral
two accused. damages and attorney's fees.

The victim was Enrico Paulo Agra, who was 8 years old at the time of In the present appeal, the accused-appellants reiterate their denial of
the incident in question. The accused were Pablito Domasian and any participation in the incident in question. They belittle the
Samson Tan, the latter then a resident physician in the hospital owned credibility of the prosecution witnesses and submit that their own
by Enrico's parents. They were represented by separate lawyers at the witnesses are more believable. Tan specifically challenges the findings
trial and filed separate briefs in this appeal. of the NBI and offers anew the opposite findings of the PC/INP
showing that he was not the writer of the ransom note. He maintains
The evidence of the prosecution showed that in the morning of March that in any case, the crime alleged is not kidnapping with serious
11, 1982, while Enrico was walking with a classmate along Roque illegal detention as no detention in an enclosure was involved. If at
street in the poblacion of Lopez, Quezon, he was approached by a all, it should be denominated and punished only as grave coercion.
man who requested his assistance in getting his father's signature on Finally, both Domasian and Tan insist that there is no basis for the
a medical certificate. Enrico agreed to help and rode with the man in finding of a conspiracy between them to make them criminally liable
a tricycle to Calantipayan, where he waited outside while the man in equal degree.
went into a building to get the certificate. Enrico became
apprehensive and started to cry when, instead of taking him to the First, on the credibility of the witnesses. This is assessed in the first
hospital, the man flagged a minibus and forced him inside, holding instance by the trial judge, whose finding in this regard is received
him firmly all the while. The man told him to stop crying or he would with much respect by the appellate court because of his opportunity
not be returned to his father. When they alighted at Gumaca, they to directly observe the demeanor of the witnesses on the stand.
took another tricycle, this time bound for the municipal building from
where they walked to the market. Here the man talked to a jeepney In the case at bar, Judge Lanzanas relied heavily on the testimony of
driver and handed him an envelope addressed to Dr. Enrique Agra, the victim himself, who positively identified Domasian as the person
the boy's father. The two then boarded a tricycle headed for San who detained him for three hours. The trial court observed that the
Vicente, with the man still firmly holding Enrico, who continued boy was "straight-forward, natural and consistent" in the narration of
crying. This aroused the suspicion of the driver, Alexander Grate, who his detention. The boy's naivete made him even more believable.
asked the man about his relationship with the boy. The man said he Tirso Ferreras, Enrico's classmate and also his age, pointed to
and the boy were brothers, making Grate doubly suspicious because Domasian with equal certainty, as the man who approached Enrico
of the physical differences between the two and the wide gap when they were walking together that morning of March 11, 1982.
between their ages. Grate immediately reported the matter to two Grate, the tricycle driver who suspected Enrico's companion and later
barangay tanods when his passengers alighted from the tricycle. chased him, was also positive in identifying Domasian. All these three
Grate and the tanods went after the two and saw the man dragging witnesses did not know Domasian until that same morning and could
the boy. Noticing that they were being pursued, the man told Enrico have no ill motive in testifying against him. By contrast, Eugenia
Compiled by: Vim Malicay
Agtay, who testified for the defense, can hardly be considered a unconscious result
disinterested witness because she admitted she had known Domasian of constitution, habit or other permanent course, and is, therefore
for 3 years. itself permanent. 13

The defense asks why Domasian openly took Enrico to several public Presented with the conflicting opinions of the witnesses in the case at
places if the intention was to kidnap and detain him. That is for bar, the Court feels that the scales should tilt in favor of the
Domasian himself to answer. We do no have to probe the reasons for prosecution. Significantly, the NBI opinion was bolstered by the
the irrational conduct of an accused. The more important question, testimony of Agra, who believed that the ransom note was written by
as we see it, is why Domasian detained Enrico in the first place after Tan, with whose handwriting he was familiar because they had been
pretending he needed the boy's help. That is also for Domasian to working in the hospital for four years and he had seen that
explain. As for Enrico's alleged willingness to go with Domasian, this handwriting every day in Tan's prescriptions and daily reports. 14
was manifested only at the beginning, when he believed the man
sincerely needed his assistance. But he was soon disabused. His initial Cesar v. Sandiganbayan 15 is not applicable because that case
confidence gave way to fear when Domasian, after taking him so far involved a forgery or the deliberate imitation of another person's
away from the hospital where he was going, restrained and signature. In the case before us, there was in fact an effort
threatened him if he did not stop crying. to disguise the ransom note writer's penmanship to prevent his
discovery.
Domasian's alibi cannot stand against his positive identification by
Enrico, Grate and Ferreras, let alone the contradictions made by his As for the nature of the crime committed, Article 267 of the Revised
corroborating witness, Dr. Irene Argosino, regarding the time he was Penal Code provides as follows:
in the optical clinic and the manner of his payment for the
refraction. 9 Tan's alibi is not convincing either. The circumstance that
Art. 267. Kidnapping and serious illegal detention.
he may have been in Manila at the time of the incident does not prove
Any private individual who shall kidnap or
that he could not have written the ransom note except at that time.
detain another, or in any manner deprive him of
his liberty, shall suffer the penalty of reclusion
Concerning the note, Rule 132, Section 22, of the Rules of Court perpetua to death:
provides as follows:
1. If the kidnapping or detention shall have lasted
The handwriting of a person may be proved by more than five days.
any witness who believes it to be the handwriting
of such person and has seen the person write, or
2. If it shall have been committed simulating
has seen writing purporting to be his upon which
public authority.
the witness has acted or been charged and has
thus acquired knowledge of the handwriting of
such person. Evidence respecting the handwriting 3. If any serious physical injuries shall have been
may also be given by a comparison, made by the inflicted upon the person kidnapped or detained;
witness or the court with writings admitted or of if threats to kill him shall have been made.
treated as genuine by the party against whom the
evidence is offered or proved to be genuine to the 4. If the person kidnapped or detained shall be a
satisfaction of the judge. minor, female or a public officer.

Two expert witnesses were presented in the case at bar, one from the The penalty shall be death where the kidnapping
NBI, 10 who opined that the ransom note and the standard documents or detention was committed for the purpose of
were written by one and the same person, and another from the extorting ransom from the victim or any other
PC/INP 11 who expressed a contrary conclusion. The trial court chose person; even if none of the circumstances above-
to believe the NBI expert because his examination and analysis "was mentioned were present in the commission of the
more comprehensive than the one conducted by the PC/INP offense.
handwriting expert, who virtually limited his reliance on the perceived
similarities and dissimilarities in the pattern and style of the writing, Contrary to Tan's submission, this crime may consist not only in
thereby disregarding the basic principle in handwriting identification placing a person in an enclosure but also in detaining him or depriving
that it is not the form alone nor anyone feature but rather a him in any manner of his liberty. 16 In the case at bar, it is noted that
combination of all the qualities that identify." although the victim was not confined in an enclosure, he was deprived
of his liberty when Domasian restrained him from going home and
We have held that the value of the opinion of a handwriting expert dragged him first into the minibus that took them to the municipal
depends not upon his mere statements of whether a writing is building in Gumaca, thence to the market and then into the tricycle
genuine or false, but upon the assistance he may afford in pointing bound for San Vicente. The detention was committed by Domasian,
out distinguishing marks, characteristics and discrepancies in and who was a private individual, and Enrico was a minor at that time. The
between genuine and false specimens of writing which would crime clearly comes under Par. 4 of the above-quoted article.
ordinarily escape notice or detection from an unpracticed
observer. 12 The test of genuineness ought to be the resemblance, not Tan claims that the lower court erred in not finding that the sending
the formation of letters in some other specimens but to the general of the ransom note was an impossible crime which he says is not
character of writing, which is impressed on it as the involuntary and punishable. His reason is that the second paragraph of Article 4 of the
Compiled by: Vim Malicay
Revised Penal Code provides that criminal liability shall be incurred search warrant, it suffices to say that such documents were taken by
"by any person performing an act which would be an offense against Agra himself and not by the NBI agents or other police authorities. We
persons or property, were it not for the inherent impossibility of its held in the case of People vs. Andre Marti, 20 that the Bill of Rights
accomplishment or on account of the employment of inadequate or cannot be invoked against acts of private individuals, being directed
ineffectual means." As the crime alleged is not against persons or only against the government and its law-enforcement agencies and
property but against liberty, he argues that it is not covered by the limitation on official action.
said provision.
We are satisfied that Tan and Domasian, in conspiracy with each
Tan conveniently forgets the first paragraphs of the same article, other, committed the crime of kidnapping as defined and penalized
which clearly applies to him, thus: under Article 267 of the Revised Penal Code and so deserve the
penalty imposed upon them by the trial court.
Art. 4. Criminal liability. Criminal liability shall
be incurred: WHEREFORE, the appealed decision is AFFIRMED, with costs against
the accused-appellants.
1. By any person committing a felony (delito)
although the wrongful act done be different from Let a copy of this decision be sent to the Commission on Human Rights
that which he intended. for investigation of the alleged violation of the constitutional rights of
Pablito Domasian.
xxx xxx xxx
SO ORDERED.
Even before the ransom note was received, the crime of kidnapping
with serious illegal detention had already been committed. The act Grio-Aquino, Bellosillo and Quiason, JJ., concur.
cannot be considered an impossible crime because there was no
inherent improbability of its accomplishment or the employment of JACINTO VS PEOPLE
inadequate or ineffective means. The delivery of the ransom note
(G.R. NO. 162540)
after the rescue of the victim did not extinguish the offense, which
had already been consummated when Domasian deprived Enrico of
his liberty. The sending of the ransom note would have had the effect PERALTA, J.:
only of increasing the penalty to death under the last paragraph of
Article 267 although this too would not have been possible under the Before us is a petition for review on certiorari filed by petitioner
new Constitution. Gemma T. Jacinto seeking the reversal of the Decision1of the Court of
Appeals (CA) in CA-G.R. CR No. 23761 dated December 16, 2003,
On the issue of conspiracy, we note first that it exists when two or affirming petitioner's conviction of the crime of Qualified Theft, and
more persons come to an agreement concerning the commission of a its Resolution2 dated March 5, 2004 denying petitioner's motion for
felony and decide to commit it, whether they act through physical reconsideration.
volition of one or all, proceeding severally or collectively. 17
Petitioner, along with two other women, namely, Anita Busog de
It is settled that conspiracy can be inferred from and proven by the Valencia y Rivera and Jacqueline Capitle, was charged before the
acts of the accused themselves when said acts point to a joint purpose Regional Trial Court (RTC) of Caloocan City, Branch 131, with the crime
and design, concerted action and community of interests. 18 In the of Qualified Theft, allegedly committed as follows:
instant case, the trial court correctly held that conspiracy was proved
by the act of Domasian in detaining Enrico; the writing of the ransom That on or about and sometime in the month of July 1997, in Kalookan
note by Tan; and its delivery by Domasian to Agra. These acts were City, Metro Manila, and within the jurisdiction of this Honorable
complementary to each other and geared toward the attainment of Court, the above-named accused, conspiring together and mutually
the common ultimate objective, viz., to extort the ransom of P1 helping one another, being then all employees of MEGA FOAM
million in exchange for Enrico's life. INTERNATIONAL INC., herein represented by JOSEPH DYHENGCO Y
CO, and as such had free access inside the aforesaid establishment,
The motive for the offense is not difficult to discover. According to with grave abuse of trust and confidence reposed upon them with
Agra, Tan approached him six days before the incident happened and intent to gain and without the knowledge and consent of the owner
requested a loan of at least P15,000.00. Agra said he had no funds at thereof, did then and there willfully, unlawfully and feloniously take,
that moment and Tan did not believe him, angrily saying that Agra steal and deposited in their own account, Banco De Oro Check No.
could even raise a million pesos if he really wanted to help. 19 The 0132649 dated July 14, 1997 in the sum of P10,000.00, representing
refusal obviously triggered the plan to kidnap Enrico and demand P1 payment made by customer Baby Aquino to the Mega Foam Int'l. Inc.
million for his release. to the damage and prejudice of the latter in the aforesaid stated
amount of P10,000.00.
The constitutional issues raised by Domasian do not affect the
decision in this case. His claim that he was arrested without warrant CONTRARY TO LAW.3
and then tortured and held incommunicado to extort a confession
from him does not vitiate his conviction. He never gave any The prosecution's evidence, which both the RTC and the CA found to
confession. As for the allegation that the seizure of the documents be more credible, reveals the events that transpired to be as follows.
used for comparison with the ransom note was made without a

Compiled by: Vim Malicay


In the month of June 1997, Isabelita Aquino Milabo, also known as the bills were given to Ricablanca, who was tasked to pretend that she
Baby Aquino, handed petitioner Banco De Oro (BDO) Check Number was going along with Valencia's plan.
0132649 postdated July 14, 1997 in the amount of P10,000.00. The
check was payment for Baby Aquino's purchases from Mega Foam On August 15, 2007, Ricablanca and petitioner met at the latter's
Int'l., Inc., and petitioner was then the collector of Mega Foam. house. Petitioner, who was then holding the bounced BDO check,
Somehow, the check was deposited in the Land Bank account of handed over said check to Ricablanca. They originally intended to
Generoso Capitle, the husband of Jacqueline Capitle; the latter is the proceed to Baby Aquino's place to have the check replaced with cash,
sister of petitioner and the former pricing, merchandising and but the plan did not push through. However, they agreed to meet
inventory clerk of Mega Foam. again on August 21, 2007.

Meanwhile, Rowena Ricablanca, another employee of Mega Foam, On the agreed date, Ricablanca again went to petitioners house,
received a phone call sometime in the middle of July from one of their where she met petitioner and Jacqueline Capitle. Petitioner, her
customers, Jennifer Sanalila. The customer wanted to know if she husband, and Ricablanca went to the house of Anita Valencia;
could issue checks payable to the account of Mega Foam, instead of Jacqueline Capitle decided not to go with the group because she
issuing the checks payable to CASH. Said customer had apparently decided to go shopping. It was only petitioner, her husband,
been instructed by Jacqueline Capitle to make check payments to Ricablanca and Valencia who then boarded petitioner's jeep and went
Mega Foam payable to CASH. Around that time, Ricablanca also on to Baby Aquino's factory. Only Ricablanca alighted from the jeep
received a phone call from an employee of Land Bank, Valenzuela and entered the premises of Baby Aquino, pretending that she was
Branch, who was looking for Generoso Capitle. The reason for the call getting cash from Baby Aquino. However, the cash she actually
was to inform Capitle that the subject BDO check deposited in his brought out from the premises was the P10,000.00 marked money
account had been dishonored. previously given to her by Dyhengco. Ricablanca divided the money
and upon returning to the jeep, gave P5,000.00 each to Valencia and
Ricablanca then phoned accused Anita Valencia, a former petitioner. Thereafter, petitioner and Valencia were arrested by NBI
employee/collector of Mega Foam, asking the latter to inform agents, who had been watching the whole time.
Jacqueline Capitle about the phone call from Land Bank regarding the
bounced check. Ricablanca explained that she had to call and relay Petitioner and Valencia were brought to the NBI office where the
the message through Valencia, because the Capitles did not have a Forensic Chemist found fluorescent powder on the palmar and dorsal
phone; but they could be reached through Valencia, a neighbor and aspects of both of their hands. This showed that petitioner and
former co-employee of Jacqueline Capitle at Mega Foam. Valencia handled the marked money. The NBI filed a criminal case for
qualified theft against the two and one Jane Doe who was later
Valencia then told Ricablanca that the check came from Baby Aquino, identified as Jacqueline Capitle, the wife of Generoso Capitle.
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 The defense, on the other hand, denied having taken the subject
divide it equally into four: for herself, Ricablanca, petitioner Jacinto check and presented the following scenario.
and Jacqueline Capitle. Ricablanca, upon the advise of Mega Foam's
accountant, reported the matter to the owner of Mega Foam, Joseph
Petitioner admitted that she was a collector for Mega Foam until she
Dyhengco.
resigned on June 30, 1997, but claimed that she had stopped
collecting payments from Baby Aquino for quite some time before her
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to resignation from the company. She further testified that, on the day
confirm that the latter indeed handed petitioner a BDO check of the arrest, Ricablanca came to her mothers house, where she was
for P10,000.00 sometime in June 1997 as payment for her purchases staying at that time, and asked that she accompany her (Ricablanca)
from Mega Foam.4 Baby Aquino further testified that, sometime in to Baby Aquino's house. Since petitioner was going for a pre-natal
July 1997, petitioner also called her on the phone to tell her that the check-up at the Chinese General Hospital, Ricablanca decided to hitch
BDO check bounced.5 Verification from company records showed that a ride with the former and her husband in their jeep going to Baby
petitioner never remitted the subject check to Mega Foam. However, Aquino's place in Caloocan City. She allegedly had no idea why
Baby Aquino said that she had already paid Mega Foam P10,000.00 Ricablanca asked them to wait in their jeep, which they parked
cash in August 1997 as replacement for the dishonored check.6 outside the house of Baby Aquino, and was very surprised when
Ricablanca placed the money on her lap and the NBI agents arrested
Generoso Capitle, presented as a hostile witness, admitted depositing them.
the subject BDO check in his bank account, but explained that the
check came into his possession when some unknown woman arrived Anita Valencia also admitted that she was the cashier of Mega Foam
at his house around the first week of July 1997 to have the check until she resigned on June 30, 1997. It was never part of her job to
rediscounted. He parted with his cash in exchange for the check collect payments from customers. According to her, on the morning
without even bothering to inquire into the identity of the woman or of August 21, 1997, Ricablanca called her up on the phone, asking if
her address. When he was informed by the bank that the check she (Valencia) could accompany her (Ricablanca) to the house of Baby
bounced, he merely disregarded it as he didnt know where to find Aquino. Valencia claims that she agreed to do so, despite her
the woman who rediscounted the check. admission during cross-examination that she did not know where
Baby Aquino resided, as she had never been to said house. They then
Meanwhile, Dyhengco filed a Complaint with the National Bureau of met at the house of petitioner's mother, rode the jeep of petitioner
Investigation (NBI) and worked out an entrapment operation with its and her husband, and proceeded to Baby Aquino's place. When they
agents. Ten pieces of P1,000.00 bills provided by Dyhengco were arrived at said place, Ricablanca alighted, but requested them to wait
marked and dusted with fluorescent powder by the NBI. Thereafter, for her in the jeep. After ten minutes, Ricablanca came out and, to her

Compiled by: Vim Malicay


surprise, Ricablanca gave her money and so she even asked, "What is the taking was done with intent to gain this is presumed from the
this?" Then, the NBI agents arrested them. 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)
The trial of the three accused went its usual course and, on October it was done without the owners consent petitioner hid the fact that
4, 1999, the RTC rendered its Decision, the dispositive portion of she had received the check payment from her employer's customer
which reads: 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
WHEREFORE, in view of the foregoing, the Court finds
the customer, as she was known to be a collector for the company;
accused Gemma Tubale De Jacinto y Latosa, Anita Busog De
and (6) it was done with grave abuse of confidence petitioner is
Valencia y Rivera and Jacqueline Capitle GUILTY beyond reasonable
admittedly entrusted with the collection of payments from
doubt of the crime of QUALIFIED THEFT and each of them is hereby
customers.
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. 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
SO ORDERED.7
thing stolen. This is further bolstered by Article 309, where the law
provides that the penalty to be imposed on the accused is dependent
The three appealed to the CA and, on December 16, 2003, a Decision on the value of the thing stolen.
was promulgated, the dispositive portion of which reads, thus:
In this case, petitioner unlawfully took the postdated check belonging
IN VIEW OF THE FOREGOING, the decision of the trial court to Mega Foam, but the same was apparently without value, as it was
is MODIFIED, in that: subsequently dishonored. Thus, the question arises on whether the
crime of qualified theft was actually produced.
(a) the sentence against accused Gemma Jacinto stands;
The Court must resolve the issue in the negative.
(b) the sentence against accused Anita Valencia is reduced
to 4 months arresto mayor medium. Intod v. Court of Appeals9 is highly instructive and applicable to the
present case. In Intod, the accused, intending to kill a person,
(c) The accused Jacqueline Capitle is acquitted. 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
SO ORDERED. 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
A Partial Motion for Reconsideration of the foregoing CA Decision was 59, both of the Revised Penal Code, because of the factual
filed only for petitioner Gemma Tubale Jacinto, but the same was impossibility of producing the crime. Pertinent portions of said
denied per Resolution dated March 5, 2004. provisions read as follows:

Hence, the present Petition for Review on Certiorari filed by Article 4(2). Criminal Responsibility. - Criminal responsibility shall be
petitioner alone, assailing the Decision and Resolution of the CA. The incurred:
issues raised in the petition are as follows:
xxxx
1. Whether or not petitioner can be convicted of a crime not
charged in the information;
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
2. Whether or not a worthless check can be the object of accomplishment or on account of the employment of inadequate to
theft; and ineffectual means. (emphasis supplied)

3. Whether or not the prosecution has proved petitioner's Article 59. Penalty to be imposed in case of failure to commit the crime
guilt beyond reasonable doubt.8 because the means employed or the aims sought are impossible. -
When the person intending to commit an offense has already
The petition deserves considerable thought. performed the acts for the execution of the same but nevertheless
the crime was not produced by reason of the fact that the act
The prosecution tried to establish the following pieces of evidence to intended was by its nature one of impossible accomplishment or
constitute the elements of the crime of qualified theft defined under because the means employed by such person are essentially
Article 308, in relation to Article 310, both of the Revised Penal Code: inadequate to produce the result desired by him, the court, having in
(1) the taking of personal property - as shown by the fact that mind the social danger and the degree of criminality shown by the
petitioner, as collector for Mega Foam, did not remit the customer's offender, shall impose upon him the penalty of arresto mayor or a
check payment to her employer and, instead, appropriated it for fine ranging from 200 to 500 pesos.
herself; (2) said property belonged to another the check belonged
to Baby Aquino, as it was her payment for purchases she made; (3)

Compiled by: Vim Malicay


Thus, the requisites of an impossible crime are: (1) that the act x x x Parsing through the statutory definition of theft under Article
performed would be an offense against persons or property; (2) that 308, there is one apparent answer provided in the language of the law
the act was done with evil intent; and (3) that its accomplishment was that theft is already "produced" upon the "tak[ing of] personal
inherently impossible, or the means employed was either inadequate property of another without the latters consent."
or ineffectual. The aspect of the inherent impossibility of
accomplishing the intended crime under Article 4(2) of the Revised xxxx
Penal Code was further explained by the Court in Intod10 in this wise:
x x x when is the crime of theft produced? There would be all but
Under this article, the act performed by the offender cannot produce certain unanimity in the position that theft is produced when there is
an offense against persons or property because: (1) the commission deprivation of personal property due to its taking by one with intent
of the offense is inherently impossible of accomplishment; or (2) the to gain. Viewed from that perspective, it is immaterial to the product
means employed is either (a) inadequate or (b) ineffectual. 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
That the offense cannot be produced because the commission of the stolen since the deprivation from the owner alone has already ensued
offense is inherently impossible of accomplishment is the focus of this from such acts of execution. x x x
petition. To be impossible under this clause, the act intended by the
offender must be by its nature one impossible of accomplishment. xxxx
There must be either (1) legal impossibility, or (2) physical
impossibility of accomplishing the intended act in order to qualify the
x x x we have, after all, held that unlawful taking, or apoderamiento,
act as an impossible crime.
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
Legal impossibility occurs where the intended acts, even if completed, x
would not amount to a crime.
x x x Unlawful taking, which is the deprivation of ones personal
xxxx property, is the element which produces the felony in its
consummated stage. x x x 13
The impossibility of killing a person already dead falls in this category.
From the above discussion, there can be no question that as of the
On the other hand, factual impossibility occurs when extraneous time that petitioner took possession of the check meant for Mega
circumstances unknown to the actor or beyond his control prevent Foam, she had performed all the acts to consummate the crime of
the consummation of the intended crime. x x x 11 theft, had it not been impossible of accomplishment in this case. The
circumstance of petitioner receiving the P5,000.00 cash as supposed
In Intod, the Court went on to give an example of an offense that replacement for the dishonored check was no longer necessary for
involved factual impossibility, i.e., a man puts his hand in the coat the consummation of the crime of qualified theft. Obviously, the plan
pocket of another with the intention to steal the latter's wallet, but to convince Baby Aquino to give cash as replacement for the check
gets nothing since the pocket is empty. 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
Herein petitioner's case is closely akin to the above example of factual
continuation of the theft. At most, the fact that petitioner was caught
impossibility given in Intod. In this case, petitioner performed all the
receiving the marked money was merely corroborating evidence to
acts to consummate the crime of qualified theft, which is a crime
strengthen proof of her intent to gain.
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 Moreover, the fact that petitioner further planned to have the
fact that the check bounced, she would have received the face value dishonored check replaced with cash by its issuer is a different and
thereof, which was not rightfully hers. Therefore, it was only due to separate fraudulent scheme. Unfortunately, since said scheme was
the extraneous circumstance of the check being unfunded, a fact not included or covered by the allegations in the Information, the
unknown to petitioner at the time, that prevented the crime from Court cannot pronounce judgment on the accused; otherwise, it
being produced. The thing unlawfully taken by petitioner turned out would violate the due process clause of the Constitution. If at all, that
to be absolutely worthless, because the check was eventually fraudulent scheme could have been another possible source of
dishonored, and Mega Foam had received the cash to replace the criminal liability.
value of said dishonored check.1avvphi1
IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision
The fact that petitioner was later entrapped receiving the P5,000.00 of the Court of Appeals, dated December 16, 2003, and its Resolution
marked money, which she thought was the cash replacement for the dated March 5, 2004, are MODIFIED. Petitioner Gemma T. Jacinto is
dishonored check, is of no moment. The Court held in Valenzuela v. found GUILTY of an IMPOSSIBLE CRIME as defined and penalized in
People12 that under the definition of theft in Article 308 of the Revised Articles 4, paragraph 2, and 59 of the Revised Penal Code,
Penal Code, "there is only one operative act of execution by the actor respectively. Petitioner is sentenced to suffer the penalty of six (6)
involved in theft the taking of personal property of another." months of arrresto mayor, and to pay the costs.
Elucidating further, the Court held, thus:
SO ORDERED.

Compiled by: Vim Malicay


Article 5- Duty of the Court resist but he held her both arms.He was on top of her making push
Article 6- Consummated/ Frustrated/ Attempted Stages and pull movements for four (4) minutes. Then he dressed up,
PEOPLE VS PANCHO threatening to kill her should she complain or tell anyone about the
incident.
(416 SCRA 506)
Sometime in December, 1995 at the familys new residence at
SANDOVAL-GUTIERREZ, J.: Bayugo, Meycauayan, Bulacan, appellant arrived from work. When
Michelle opened the door and saw him, she got scared. While he was
This is an appeal from the Joint Decision[1] dated June 19, approaching her, she managed to hit him. Then she attempted to
1998 of the Regional Trial Court, Branch 15, Malolos, Bulacan, finding jump out of the window, but he dragged her by her feet. At that
appellant Manolito Pancho guilty beyond reasonable doubt of rape in instance, her uncle (Tito Onio) suddenly arrived.[3] Immediately,
Criminal Case No. 837-M-96 and attempted rape in Criminal Case No. appellant stopped, thus thwarting his bestial desire.
838-M-96. In Criminal Case No. 837-M-96, the trial court sentenced
him to suffer reclusion perpetua, while in Criminal Case No. 838-M- After sometime, Michelle mustered enough courage to report
96, the penalty of 10 years and 1 day, as minimum, to 12 years, as the incidents to her mother, but the latter casually ignored her. So,
maximum of prision mayor, was imposed upon him. she turned to her grandmother Natividad Lacanilao, who brought her,
sometime in February, 1996, to the National Bureau of Investigation
The Informations in both Criminal Case Nos. 837-M-96 and 838- (NBI) for examination by a medico-legal officer.[4] Thereafter, they
M-96 read: proceeded to the Malolos Police Station where she executed a sworn
statement.[5]
For Criminal Case No. 837-M-96 (For Rape):
Dr. Ida P. Daniel, a Medico-Legal Officer of the NBI, testified that
she conducted a medico-genital examination of Michelle dela
That in or about the month of August, 1994, in the municipality of Torre. Her findings,[6] which she confirmed on the witness stand, are
Malolos, province of Bulacan, Philippines, and within the jurisdiction as follows:
of this Honorable Court, the above-named accused, did then and
there wilfully, unlawfully and feloniously, by means of force, threats
GENERAL PHYSICAL EXAMINATION:
and intimidation and with lewd designs, have carnal knowledge of
said Michelle L. dela Torre, 11 years of age, against her will and
without her consent. Height: 132.0 cms

Contrary to law. Weight: 78.0 cms

For Criminal Case No. 838-M-96 (For Attempted Rape): Normally developed, fairly nourished, conscious, coherent,
cooperative, ambulatory subject.
That in or about the month of December, 1995, in the municipality
of Malolos, province of Bulacan, Philippines, and within the Breasts, developing, conical, firm. Areolae, brown, 2.5 cms in
jurisdiction of this Honorable Court, the above-named accused, did diameter. Nipples, brown, protruding, 0.5 cm in diameter.
then and there wilfully, unlawfully and feloniously, by means of
force, threats and intimidation and with lewd designs, have carnal No sign of extragenital physical injury noted.
knowledge of said Michelle L. dela Torre, 11 years of age, against her
will and without her consent. GENETAL EXAMINATION:

Contrary to law. Pubic hair, fine, scanty. Labia majora and minora, coaptated.
Fourchette, tense. Vestibular mucosa, pinkish. Hymen, moderately
Upon arraignment, appellant, assisted by counsel, pleaded not tall, moderately thick, intact. Hymenal orifice, annular, admits a tube
guilty to the crimes charged. 2.0 cms in diameter with moderate resistance. Vaginal walls, tight.
Rugosities, prominent.
Thereafter, trial ensued. The evidence for the prosecution
shows that complainant Michelle dela Torre was born on April 2,
1984[2] to spouses Exequiela Lacanilao and Eduardo dela Torre. After CONCLUSIONS:
Michelles father passed away, her mother contracted a second
marriage with appellant. Michelle and her two (2) brothers live with 1. No evident sign of extragenital physical injury noted on the body
the couple at Look First, Malolos, Bulacan. of the subject at the time of examination.

On August 1, 1994, at around 6:00 oclock in the morning,


2. Hymen, intact and its orifice small (2.0 cms in diameter) as to
Michelle, who was then only ten years old, went home after spending
preclude complete penetration by an average sized adult Filipino
the night at her aunts house. While she was about to undress,
male organ in full erection without producing any genital injury.
appellant suddenly dragged her and forced her to lie down on the
floor.Although frightened, she struggled by kicking and boxing
him. However, he forcibly removed her clothes and underwear. Then For his part, appellant strongly denied the charges, contending
he took off his clothing. Appellant started kissing and holding her that it was impossible for him to commit the crimes considering that
breast and eventually had carnal knowledge of her. She felt pain during the incidents, his wife and her two sons were also inside the
when he inserted his organ into her vagina which bled. She tried to house.[7] Moreover, the charge of rape is totally belied by the finding

Compiled by: Vim Malicay


of the NBI Medico-Legal Officer that Michelles hymen has remained xxx
intact with no sign of extra-genital or genital injuries.

After trial, the lower court rendered a Joint Decision dated June The death penalty shall also be imposed if the crime or rape is
19, 1998, the dispositive portion of which reads: committed with any of the following attendant circumstances:

In view of all the foregoing and by proof beyond reasonable doubt, 1. When the victim is under eighteen (18) years of age and the
the Court hereby renders judgment as follows: offender is a parent, ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil degree or the
common-law spouse of the parent of the victim.
1. With respect to Criminal Case No. 837-M-96, the Court finds the
accused guilty beyond reasonable doubt of the crime charged and
hereby sentences accused MANOLITO PANCHO to suffer the penalty 2. xxx.
of RECLUSION PERPETUA.

2. With respect to Criminal Case No. 838-M-96, the Court finds the A. G.R. No. 136592 for rape:
accused guilty beyond reasonable doubt of the crime of Attempted
Rape, and hereby sentences accused MANOLITO PANCHO to suffer
an imprisonment of TEN (10) YEARS and ONE (1) DAY to TWELVE (12) Rape under the above provisions is either simple or qualified. It
YEARS. is qualified when the age of the victim (below 18) and her relationship
with the appellant are both alleged in the Information and
3. To indemnify the victim Michelle dela Torre the amount proved.[10] In this case, the prosecution failed to allege in the
of P20,000.00 each case. Information the qualifying circumstance that appellant is the victims
step-parent. Thus, he may only be convicted of simple rape.
The period of the accuseds detention is credited in his favor. Simple rape is committed under any of the following
circumstances:
SO ORDERED.
1. By using force or intimidation;
In this appeal, appellant ascribes to the trial court the following
errors: 2. When the woman is deprived of reason or otherwise
unconscious; and
I

3. When the woman is under twelve years of age


THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY (statutory rape) or is demented.
BEYOND REASONABLE DOUBT OF THE CRIMES OF RAPE AND
ATTEMPTED RAPE, DESPITE INSUFFICIENCY OF EVIDENCE.
In the Information, appellant is being charged of statutory rape
considering that Michelle was then below 12 years old.
II
The gravamen of the offense of statutory rape is carnal
THE LOWER COURT ERRED IN DISREGARDING THE DEFENSE PUT UP knowledge of a woman below twelve (12) years old.[11] In statutory
BY ACCUSED-APPELLANT. rape, force, intimidation or physical evidence of injury is
immaterial.[12] Where the girl is below 12 years of age, violence or
intimidation is not required, and the only subject of inquiry is whether
As alleged in the Informations, the crimes charged were
carnal knowledge took place.[13]
committed sometime in August, 1994 and December, 1995. Thus, the
governing law is Article 335[8] of the Revised Penal Code which, as As shown by her Certificate of Live Birth,[14] Michelle was born
amended by Republic Act No. 7659 (The Death Penalty on April 2, 1984. Thus, on August 1, 1994 when the incident took
Law),[9]provides: place, she was only 10 years and 3 months old.

Michelle identified appellant in open court as the culprit who


ART. 335. When and how rape is committed. Rape is committed by
raped her. She testified as follows:
having carnal knowledge of a woman under any of the following
circumstances: FISCAL:

Q: Ms. Witness, you claim in your testimony that you


1. By using force or intimidation;
were raped by your step father Manolito Pancho
last August 1, 1994, will you please tell this
2. When the woman is deprived of reason or otherwise unconscious; Honorable Court how Manolito Pancho raped you?
and
A: About 6:00 oclock in the morning I went home, sir.
3. When the woman is under twelve years of age or is demented. Q: And where is your home located?

The crime of rape shall be punished by reclusion perpetua. A: I went home at Look First, Malolos, Bulacan.

Compiled by: Vim Malicay


Q: And what happened when you went home at Look, A: It bled, sir.
Malolos, Bulacan?
Q: How long did Manolito Pancho stay on top of you?
A: Manolito Pancho dragged me and forced me to lie on
the floor. A: Four (4) minutes, sir.

Q: And what happened when after Manolito Pancho lay Q: And after four (4) minutes, what did Manolito Pancho
you on the floor? do?

A: He took off all my clothes. A: I already dressed up because he already dressed-up,


sir.
Q: And what clothes you are wearing at that time, Ms.
witness? Q: And what did Manolito Pancho tell you, if any?

A: I was wearing a t-shirt and short, sir. A: He said, do not complain because if you do so, I am
going to kill you.
Q: What else Manolito Pancho removed?
Q: How are you related with Manolito Pancho, Ms.
A: My clothes, short and panty, sir. witness?

Q: And what was your appearance after these clothes A: My step father, sir.
were removed by Manolito Pancho?
Q: At the time you claimed that you were raped by
A: I was naked, sir. Manolito Pancho, will you please tell this Honorable
Court, how young were you then?
Q: How about Manolito Pancho, what did he do after he
removed your dress? A: Ten (10) years old, sir.

A: He also took-off his clothes, sir. Q: Do you have evidence to show Ms. witness that you are
ten (10) years old at that time?
Q: What clothes did he remove?
A: My birth certificate, sir.
A: His t-shirt, short and brief, sir.
Q: Do you have with you your birth certificate?
Q: After Manolito removed all these: his short, brief and
t-shirt, what did he do? A: Yes, sir. (The grandmother is producing the Live Birth
Certificate of the complainant Michelle dela Torre.)
A: He placed himself on top of me.
Q: Will you please tell this Honorable Court what is your
Q: And what happened after he placed himself on top of date of birth, Ms. witness?
you?
A: April 2, 1984.
A: He inserted his penis on my vagina.
Q: And you claimed that you were 10 years old when you
Q: Were you able to see his organ when he inserted it on were raped by Manolito Pancho?
your vagina?
A: Yes, sir.
A: Yes, sir.
xxx.[15]
Q: What happened when he inserted his organ on your
vagina? Michelles testimony is straightforward, unflawed by significant
inconsistency, and unshaken by rigid cross-examination. It deserves
A: He was kissing me and touching my body, sir. full faith and credence. In rape cases, the accused may be convicted
Q: What particular parts of your body did Manolito solely on the testimony of the rape victim if her testimony is credible,
Pancho kiss and touch, Ms. witness? natural, and convincing.[16]

A: My both breasts, sir. When a woman says she was raped, she says in effect all that is
necessary to show that rape had been committed, and if her
Q: And what did you feel when Manolito Pancho inserted testimony meets the test of credibility, the accused may be convicted
his organ on your vagina? on the basis thereof.[17] It bears stressing that Michelle, a girl of tender
years, innocent and guileless, cannot be expected to brazenly impute
A: It hurts, sir. a crime so serious as rape to her step-father if it were not true.
Q: What motion did he do if you can still remember when Appellant vigorously denied the charge, contending that per the
Manolito Pancho was on top of you? Medical Report of Dr. Ida Daniel, Michelles hymen has remained
A: He was kissing me, touching me and then I tried to intact.[18]
struggle against him but he was holding my both We are not persuaded.
hands so that I could not struggle.
Appellant heavily relies on the virgo intacta theory.[19] He
Q: And what happened to your vagina after he inserted disregards Dr. Daniels testimony that there are two types of hymen:
his penis? (1) one that remains intact even though there is penetration; (2) the

Compiled by: Vim Malicay


other is lacerated after penetration.[20] We have ruled that in rape Under Art. 6, in relation to Art. 335, of the Revised Penal Code,
cases the absence of fresh lacerations does not preclude the finding rape is attempted when the offender commences the commission of
of rape,[21] especially when the victim is of tender age.[22] Moreover, rape directly by overt acts, but does not perform all the acts of
laceration of the hymen is not an element of the crime of execution which should produce the crime of rape by reason of some
rape.[23] Hymenal rupture or any indication of vaginal laceration or cause or accident other than his own spontaneous desistance. [34]
genital injury is not necessary for the consummation of rape.[24] Its
absence does not negate a finding of forced sexual coitus.[25] For the In this second case, the prosecution failed to prove that
rule is well settled that rape is consummated by the slightest penile appellant started to rape the victim and had commenced the
penetration of the labia majora or pudendum of the female performance of acts of carnal knowledge. He did not force her to lie
organ.[26] Indeed, the evidentiary weight of the medical examination down or remove her garment. In short, there was no showing that he
of the victim, as well as the medical certificate, is merely did commence at all the performance of any act indicative of an intent
corroborative in character and is not an indispensable element for or attempt to rape the victim. What he did was to drag her and hold
conviction for rape.[27] her feet. At this juncture, we can not safely conclude that he was
attempting to rape her.
Appellants denial is an inherently weak defense. It has always
been viewed upon with disfavor by the courts due to the ease with In People vs. Campuhan,[35] we held that the thin line that
which it can be concocted.[28] Inherently weak, denial as a defense separates attempted rape from consummated rape is the entrance of
crumbles in the light of positive identification of the accused, as in this the male organ into the labial threshold of the female genitalia. In that
case. The defense of denial assumes significance only when the case, the accused was caught by the mother of the victim kneeling on
prosecutions evidence is such that it does not prove guilt beyond top of her. The victim testified that the accuseds organ merely
reasonable doubt.[29] Verily, mere denial, unsubstantiated by clear touched but did not penetrate her vagina. We held that he could not
and convincing evidence, is negative self-serving evidence which be convicted of statutory rape but only attempted rape.
cannot be given greater evidentiary weight than the testimony of the In the instant case, appellant was merely holding complainants
complaining witness who testified on affirmative matters.[30] feet when her 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.
B. G.R. No. 136593 for attempted rape: Anent the award of damages in G.R. No. 136592, we observed
that the trial court only awarded the victim civil indemnity in the
amount of P20,000.00. This must be corrected. We have consistently
Appellant also contends that his conviction of attempted rape ruled that upon a finding of the fact of rape, the award of civil
in Criminal Case No. 838-M-96 is not supported by evidence. indemnity is mandatory. If the death penalty is imposed, the
Michelle testified that when appellant was coming near me, I indemnity ex delicto should be P75,000.00.Where, as here, the death
hit him and I saw that our door was opened. I tried to jump and that penalty is not decreed, the victim should be entitled to P50,000.00
was the time he dragged and he held my feet.[31]Appellant and only.[36]
Michelle were in this snap situation when his Tito Onio arrived.[32] Her In line with current jurisprudence, we also award the victim
testimony regarding this incident is quoted as follows: moral damages in the amount of P50,000.00 without need of pleading
FISCAL: or proof of the basis thereof.[37] The anguish and pain she has endured
are evident.
xxx
WHEREFORE, the Decision dated June 19, 1998 of the Regional
Q: And what happened in that place at Bayugo, Trial Court, Branch 15, Malolos, Bulacan, in Criminal Case No. 837-M-
Meycauayan, Bulacan? 96, convicting appellant Manolito Pancho of rape and sentencing him
to suffer the penalty of reclusion perpetua is AFFIRMED, with
A: When the door opened I thought it was my mother and
the MODIFICATION that he is ordered to pay the victim, Michelle dela
when I saw him I was scared, sir.
Torre, P50,000.00 as civil indemnity, and P50,000.00 as moral
Q: And what happened when you saw Manolito Pancho? damages.

A: I closed the door, sir. In Criminal Case No. 838-M-96, the trial courts judgment
convicting the appellant of attempted rape is REVERSED AND SET
Q: Thereafter, what happened? ASIDE and a new one is entered ACQUITTING him of the crime
charged.
A: When he was coming near me, I hit him and I saw that
our door was opened. I tried to jump and that was Costs de oficio.
the time he dragged and he held my feet.
SO ORDERED.
Q: And what happened after Manolito Pancho held your
feet? PEOPLE VS LAMAHANG
(91 PHIL 703)
A: When he was holding my feet I was not able to jump
from the window and thats the time the door
opened and then I saw my uncle that is why the RECTO, J.:
rape was not committed.
The defendant Aurelio Lamahang is before this court on appeal from
xxx.[33] a decision of the Court of First Instance of Iloilo, finding him guilty of

Compiled by: Vim Malicay


attempted robbery and sentencing him to suffer two years and four that these acts be such that by their very nature, by the
months of prision correccional and to an additional penalty of ten facts to which they are related, by the circumstances of the
years and one day of prision mayor for being an habitual delinquent, persons performing the same, and by the things connected
with the accessory penalties of the law, and to pay the costs of the therewith, they must show without any doubt, that they are
proceeding. aimed at the consummation of a crime. Acts susceptible of
double interpretation , that is, in favor as well as against the
At early dawn on March 2, 1935, policeman Jose Tomambing, who culprit, and which show an innocent as well as a punishable
was patrolling his beat on Delgado and C.R. Fuentes streets of the City act, must not and can not furnish grounds by themselves for
of Iloilo, caught the accused in the act of making an opening with an attempted nor frustrated crimes. The relation existing
iron bar on the wall of a store of cheap goods located on the last between the facts submitted for appreciation and the
named street. At that time the owner of the store, Tan Yu, was offense which said facts are supposed to produce must be
sleeping inside with another Chinaman. The accused had only direct; the intention must be ascertained from the facts and
succeeded in breaking one board and in unfastening another from the therefore it is necessary, in order to avoid regrettable
wall, when the policeman showed up, who instantly arrested him and instances of injustice, that the mind be able to directly infer
placed him under custody. 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 fact above stated was considered and declared unanimously by
the offender must commence the commission of the felony
the provincial fiscal of Iloilo, the trial judge and the Solicitor-General,
directly by overt acts, that is to say, that the acts performed
as constituting attempted robbery, which we think is erroneous.
must be such that, without the intent to commit an offense,
they would be meaningless.
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,
Viada (Vol. I, p. 47) holds the same opinion when he says that "the
concrete offense; that, which is the beginning of the execution of the
overt acts leading to the commission of the offense, are not punished
offense by overt acts of the perpetrator, leading directly to its
except when they are aimed directly to its execution, and therefore
realization and consummation. The attempt to commit an
they must have an immediate and necessary relation to the offense."
indeterminate offense, inasmuch as its nature in relation to its
objective is ambiguous, is not a juridical fact from the standpoint of
the Penal Code. There is no doubt that in the case at bar it was the Considering says the Supreme Court of Spain in its
intention of the accused to enter Tan Yu's store by means of violence, decision of March 21, 1892 that in order to declare that
passing through the opening which he had started to make on the such and such overt acts constitute an attempted offense it
wall, in order to commit an offense which, due to the timely arrival of is necessary that their objective be known and established,
policeman Tomambing, did not develop beyond the first steps of its or that said acts be of such nature that they themselves
execution. But it is not sufficient, for the purpose of imposing penal should obviously disclose the criminal objective necessarily
sanction, that an act objectively performed constitute a mere intended, said objective and finality to serve as ground for
beginning of execution; it is necessary to establish its unavoidable the designation of the offense: . . . .
connection, like the logical and natural relation of the cause and its
effect, with the deed which, upon its consummation, will develop into In view of the foregoing, we are of the opinion, and so hold that the
one of the offenses defined and punished by the Code; it is necessary fact under consideration does not constitute attempted robbery but
to prove that said beginning of execution, if carried to its complete attempted trespass to dwelling (People vs. Tayag and Morales, 59
termination following its natural course, without being frustrated by Phil., 606, and decisions of the Supreme Court of Spain therein cited).
external obstacles nor by the voluntary desistance of the perpetrator, Under article 280 of the Revised Penal Code, this offense is committed
will logically and necessarily ripen into a concrete offense. Thus, in when a private person shall enter the dwelling of another against the
case of robbery, in order that the simple act of entering by means of latter's will. The accused may be convicted and sentenced for an
force or violence another person's dwelling may be considered an attempt to commit this offense in accordance with the evidence and
attempt to commit this offense, it must be shown that the offender the following allegation contained in the information: "... the accused
clearly intended to take possession, for the purpose of gain, of some armed with an iron bar forced the wall of said store by breaking a
personal property belonging to another. In the instant case, there is board and unfastening another for the purpose of entering said store
nothing in the record from which such purpose of the accused may ... and that the accused did not succeed in entering the store due to
reasonably be inferred. From the fact established and stated in the the presence of the policeman on beat Jose Tomambing, who upon
decision, that the accused on the day in question was making an hearing the noise produced by the breaking of the wall, promptly
opening by means of an iron bar on the wall of Tan Yu's store, it may approached the accused ... ." Under the circumstances of this case the
only be inferred as a logical conclusion that his evident intention was prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2
to enter by means of force said store against the will of its owner. That Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67;
his final objective, once he succeeded in entering the store, was to U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs.
rob, to cause physical injury to the inmates, or to commit any other Panes, 25 Phil., 292.) Against the accused must be taken into
offense, there is nothing in the record to justify a concrete consideration the aggravating circumstances of nighttime and former
finding.1avvphil.et convictions, inasmuch as the record shows that several final
judgments for robbery and theft have been rendered against him
It must be borne in mind (I Groizard, p. 99) that in offenses and in his favor, the mitigating circumstance of lack of instruction. The
not consummated, as the material damage is wanting, the breaking of the wall should not be taken into consideration as an
nature of the action intended (accion fin) cannot exactly be aggravating circumstance inasmuch as this is the very fact which in
ascertained, but the same must be inferred from the nature this case constitutes the offense of attempted trespass to dwelling.
of the acts executed (accion medio). Hence, the necessity
Compiled by: Vim Malicay
The penalty provided by the Revised Penal Code for the Thereafter, petitioner left the parking area and haled a taxi. He
consummated offense of trespass to dwelling, if committed with boarded the cab and directed it towards the parking space where
force, is prision correccional in its medium and maximum periods and Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic
a fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty inside the taxi, then boarded the vehicle. All these acts were eyed by
corresponding to attempted trespass to dwelling is to degrees lower Lago, who proceeded to stop the taxi as it was leaving the open
(art. 51), or, arresto mayor in its minimum and medium periods. parking area. When Lago asked petitioner for a receipt of the
Because of the presence of two aggravating circumstances and one merchandise, petitioner and Calderon reacted by fleeing on foot, but
mitigating circumstance the penalty must be imposed in its maximum Lago fired a warning shot to alert his fellow security guards of the
period. Pursuant to article 29 of the same Code, the accused is not incident. Petitioner and Calderon were apprehended at the scene,
entitled to credit for one-half of his preventive imprisonment. and the stolen merchandise recovered.8 The filched items seized from
the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra
Wherefore, the sentence appealed from is revoked and the accused 25 grams, and three (3) additional cases of detergent, the goods with
is hereby held guilty of attempted trespass to dwelling, committed by an aggregate value of P12,090.00.9
means of force, with the aforesaid aggravating and mitigating
circumstances and sentenced to three months and one day of arresto Petitioner and Calderon were first brought to the SM security office
mayor, with the accessory penalties thereof and to pay the costs. before they were transferred on the same day to the Baler Station II
of the Philippine National Police, Quezon City, for investigation. It
Avancea, C.J., Abad Santos, Hull, and Vickers, JJ., concur. appears from the police investigation records that apart from
petitioner and Calderon, four (4) other persons were apprehended by
the security guards at the scene and delivered to police custody at the
VALENZUELA VS PEOPLE
Baler PNP Station in connection with the incident. However, after the
(525 SCRA 306) matter was referred to the Office of the Quezon City Prosecutor, only
petitioner and Calderon were charged with theft by the Assistant City
TINGA, J.: Prosecutor, in Informations prepared on 20 May 1994, the day after
the incident.10
This case aims for prime space in the firmament of our criminal law
jurisprudence. Petitioner effectively concedes having performed the After pleading not guilty on arraignment, at the trial, petitioner and
felonious acts imputed against him, but instead insists that as a result, Calderon both claimed having been innocent bystanders within the
he should be adjudged guilty of frustrated theft only, not the felony vicinity of the Super Sale Club on the afternoon of 19 May 1994 when
in its consummated stage of which he was convicted. The proposition they were haled by Lago and his fellow security guards after a
rests on a common theory expounded in two well-known commotion and brought to the Baler PNP Station. Calderon alleged
decisions1 rendered decades ago by the Court of Appeals, upholding that on the afternoon of the incident, he was at the Super Sale Club
the existence of frustrated theft of which the accused in both cases to withdraw from his ATM account, accompanied by his neighbor,
were found guilty. However, the rationale behind the rulings has Leoncio Rosulada.11 As the queue for the ATM was long, Calderon and
never been affirmed by this Court. Rosulada decided to buy snacks inside the supermarket. It was while
they were eating that they heard the gunshot fired by Lago, leading
As far as can be told,2 the last time this Court extensively considered them to head out of the building to check what was
whether an accused was guilty of frustrated or consummated theft
was in 1918, in People v. Adiao.3 A more cursory transpiring. As they were outside, they were suddenly "grabbed" by a
security guard, thus commencing their detention.12 Meanwhile,
treatment of the question was followed in 1929, in People v. petitioner testified during trial that he and his cousin, a Gregorio
Sobrevilla,4 and in 1984, in Empelis v. IAC.5 This petition now gives Valenzuela,13 had been at the parking lot, walking beside the nearby
occasion for us to finally and fully measure if or how frustrated theft BLISS complex and headed to ride a tricycle going to Pag-asa, when
is susceptible to commission under the Revised Penal Code. they saw the security guard Lago fire a shot. The gunshot caused him
and the other people at the scene to start running, at which point he
was apprehended by Lago and brought to the security office.
I. Petitioner claimed he was detained at the security office until around
9:00 p.m., at which time he and the others were brought to the Baler
The basic facts are no longer disputed before us. The case stems from Police Station. At the station, petitioner denied having stolen the
an Information6 charging petitioner Aristotel Valenzuela (petitioner) cartons of detergent, but he was detained overnight, and eventually
and Jovy Calderon (Calderon) with the crime of theft. On 19 May brought to the prosecutors office where he was charged with
1994, at around 4:30 p.m., petitioner and Calderon were sighted theft.14 During petitioners cross-examination, he admitted that he
outside the Super Sale Club, a supermarket within the ShoeMart (SM) had been employed as a "bundler" of GMS Marketing, "assigned at
complex along North EDSA, by Lorenzo Lago (Lago), a security guard the supermarket" though not at SM.15
who was then manning his post at the open parking area of the
supermarket. Lago saw petitioner, who was wearing an identification In a Decision16 promulgated on 1 February 2000, the Regional Trial
card with the mark "Receiving Dispatching Unit (RDU)," hauling a push Court (RTC) of Quezon City, Branch 90, convicted both petitioner and
cart with cases of detergent of the well-known "Tide" brand. Calderon of the crime of consummated theft. They were sentenced
Petitioner unloaded these cases in an open parking space, where to an indeterminate prison term of two (2) years of prision
Calderon was waiting. Petitioner then returned inside the correccional as minimum to seven (7) years of prision mayor as
supermarket, and after five (5) minutes, emerged with more cartons maximum.17 The RTC found credible the testimonies of the
of Tide Ultramatic and again unloaded these boxes to the same area prosecution witnesses and established the convictions on the positive
in the open parking space.7 identification of the accused as perpetrators of the crime.
Compiled by: Vim Malicay
Both accused filed their respective Notices of Appeal,18 but only To delve into any extended analysis of Dio and Flores, as well as the
petitioner filed a brief19 with the Court of Appeals, causing the specific issues relative to "frustrated theft," it is necessary to first
appellate court to deem Calderons appeal as abandoned and refer to the basic rules on the three stages of crimes under our
consequently dismissed. Before the Court of Appeals, petitioner Revised Penal Code.30
argued that he should only be convicted of frustrated theft since at
the time he was apprehended, he was never placed in a position to Article 6 defines those three stages, namely the consummated,
freely dispose of the articles stolen.20 However, in its Decision dated frustrated and attempted felonies. A felony is consummated "when
19 June 2003,21the Court of Appeals rejected this contention and all the elements necessary for its execution and accomplishment are
affirmed petitioners conviction.22 Hence the present Petition for present." It is frustrated "when the offender performs all the acts of
Review,23 which expressly seeks that petitioners conviction "be execution which would produce the felony as a consequence but
modified to only of Frustrated Theft."24 which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator." Finally, it is attempted
Even in his appeal before the Court of Appeals, petitioner effectively "when the offender commences the commission of a felony directly
conceded both his felonious intent and his actual participation in the by overt acts, and does not perform all the acts of execution which
theft of several cases of detergent with a total value of P12,090.00 of should produce the felony by reason of some cause or accident other
which he was charged.25 As such, there is no cause for the Court to than his own spontaneous desistance."
consider a factual scenario other than that presented by the
prosecution, as affirmed by the RTC and the Court of Appeals. The Each felony under the Revised Penal Code has a "subjective phase,"
only question to consider is whether under the given facts, the theft or that portion of the acts constituting the crime included between
should be deemed as consummated or merely frustrated. the act which begins the commission of the crime and the last act
performed by the offender which, with prior acts, should result in the
II. consummated crime.31 After that point has been breached, the
subjective phase ends and the objective phase begins. 32 It has been
In arguing that he should only be convicted of frustrated theft, held that if the offender never passes the subjective phase of the
petitioner cites26 two decisions rendered many years ago by the Court offense, the crime is merely attempted. 33 On the other hand, the
of Appeals: People v. Dio27 and People v. Flores.28 Both decisions subjective phase is completely passed in case of frustrated crimes, for
elicit the interest of this Court, as they modified trial court convictions in such instances, "[s]ubjectively the crime is complete."34
from consummated to frustrated theft and involve a factual milieu
that bears similarity to the present case. Petitioner invoked the same Truly, an easy distinction lies between consummated and frustrated
rulings in his appeal to the Court of Appeals, yet the appellate court felonies on one hand, and attempted felonies on the other. So long as
did not expressly consider the import of the rulings when it affirmed the offender fails to complete all the acts of execution despite
the conviction. commencing the commission of a felony, the crime is undoubtedly in
the attempted stage. Since the specific acts of execution that define
It is not necessary to fault the Court of Appeals for giving short shrift each crime under the Revised Penal Code are generally enumerated
to the Dio and Flores rulings since they have not yet been expressly in the code itself, the task of ascertaining whether a crime is
adopted as precedents by this Court. For whatever reasons, attempted only would need to compare the acts actually performed
by the accused as against the acts that constitute the felony under the
Revised Penal Code.
the occasion to define or debunk the crime of frustrated theft has not
come to pass before us. Yet despite the silence on our part, Dio and
Flores have attained a level of renown reached by very few other In contrast, the determination of whether a crime is frustrated or
appellate court rulings. They are comprehensively discussed in the consummated necessitates an initial concession that all of the acts of
most popular of our criminal law annotations,29 and studied in execution have been performed by the offender. The critical
criminal law classes as textbook examples of frustrated crimes or even distinction instead is whether the felony itself was actually produced
as definitive of frustrated theft. by the acts of execution. The determination of whether the felony was
"produced" after all the acts of execution had been performed hinges
on the particular statutory definition of the felony. It is the statutory
More critically, the factual milieu in those cases is hardly akin to the
definition that generally furnishes the elements of each crime under
fanciful scenarios that populate criminal law exams more than they
the Revised Penal Code, while the elements in turn unravel the
actually occur in real life. Indeed, if we finally say that Dio and Flores
particular requisite acts of execution and accompanying criminal
are doctrinal, such conclusion could profoundly influence a multitude
intent.
of routine theft prosecutions, including commonplace shoplifting.
Any scenario that involves the thief having to exit with the stolen
property through a supervised egress, such as a supermarket The long-standing Latin maxim "actus non facit reum, nisi mens sit
checkout counter or a parking area pay booth, may easily call for the rea" supplies an important characteristic of a crime, that "ordinarily,
application of Dio and Flores. The fact that lower courts have not evil intent must unite with an unlawful act for there to be a crime,"
hesitated to lay down convictions for frustrated theft further validates and accordingly, there can be no crime when the criminal mind is
that Dio and Flores and the theories offered therein on frustrated wanting.35 Accepted in this jurisdiction as material in crimes mala in
theft have borne some weight in our jurisprudential system. The time se,36 mens rea has been defined before as "a guilty mind, a guilty or
is thus ripe for us to examine whether those theories are correct and wrongful purpose or criminal intent,"37 and "essential for criminal
should continue to influence prosecutors and judges in the future. liability."38 It follows that the statutory definition of our mala in se
crimes must be able to supply what the mens rea of the crime is, and
indeed the U.S. Supreme Court has comfortably held that "a criminal
III.
law that contains no mens rea requirement infringes on

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constitutionally protected rights."39 The criminal statute must also taking be accomplished without the use of violence against or
provide for the overt acts that constitute the crime. For a crime to intimidation of persons or force upon things.42
exist in our legal law, it is not enough that mens rea be shown; there
must also be an actus reus.40 In his commentaries, Judge Guevarra traces the history of the
definition of theft, which under early Roman law as defined by Gaius,
It is from the actus reus and the mens rea, as they find expression in was so broad enough as to encompass "any kind of physical handling
the criminal statute, that the felony is produced. As a postulate in the of property belonging to another against the will of the owner,"43 a
craftsmanship of constitutionally sound laws, it is extremely definition similar to that by Paulus that a thief "handles (touches,
preferable that the language of the law expressly provide when the moves) the property of another."44 However, with the Institutes of
felony is produced. Without such provision, disputes would inevitably Justinian, the idea had taken hold that more than mere physical
ensue on the elemental question whether or not a crime was handling, there must further be an intent of acquiring gain from the
committed, thereby presaging the undesirable and legally dubious object, thus: "[f]urtum est contrectatio rei fraudulosa, lucri faciendi
set-up under which the judiciary is assigned the legislative role of causa vel ipsius rei, vel etiam usus ejus possessinisve."45 This
defining crimes. Fortunately, our Revised Penal Code does not suffer requirement of animo lucrandi, or intent to gain, was maintained in
from such infirmity. From the statutory definition of any felony, a both the Spanish and Filipino penal laws, even as it has since been
decisive passage or term is embedded which attests when the felony abandoned in Great Britain.46
is produced by the acts of execution. For example, the statutory
definition of murder or homicide expressly uses the phrase "shall kill In Spanish law, animo lucrandi was compounded with
another," thus making it clear that the felony is produced by the death apoderamiento, or "unlawful taking," to characterize theft. Justice
of the victim, and conversely, it is not produced if the victim survives. Regalado notes that the concept of apoderamiento once had a
controversial interpretation and application. Spanish law had already
We next turn to the statutory definition of theft. Under Article 308 of discounted the belief that mere physical taking was constitutive of
the Revised Penal Code, its elements are spelled out as follows: apoderamiento, finding that it had to be coupled with "the intent to
appropriate the object in order to constitute apoderamiento; and to
Art. 308. Who are liable for theft. Theft is committed by any person appropriate means to deprive the lawful owner of the
who, with intent to gain but without violence against or intimidation thing."47 However, a conflicting line of cases decided by the Court of
of persons nor force upon things, shall take personal property of Appeals ruled, alternatively, that there must be permanency in the
another without the latters consent. taking48 or an intent to permanently deprive the owner of the stolen
property;49 or that there was no need for permanency in the taking or
in its intent, as the mere temporary possession by the offender or
Theft is likewise committed by:
disturbance of the proprietary rights of the owner already constituted
apoderamiento.50 Ultimately, as Justice Regalado notes, the Court
1. Any person who, having found lost property, shall fail to deliver the adopted the latter thought that there was no need of an intent to
same to the local authorities or to its owner; permanently deprive the owner of his property to constitute an
unlawful taking.51
2. Any person who, after having maliciously damaged the property of
another, shall remove or make use of the fruits or object of the So long as the "descriptive" circumstances that qualify the taking are
damage caused by him; and present, including animo lucrandi and apoderamiento, the
completion of the operative act that is the taking of personal property
3. Any person who shall enter an inclosed estate or a field where of another establishes, at least, that the transgression went beyond
trespass is forbidden or which belongs to another and without the the attempted stage. As applied to the present case, the moment
consent of its owner, shall hunt or fish upon the same or shall gather petitioner obtained physical possession of the cases of detergent and
cereals, or other forest or farm products. loaded them in the pushcart, such seizure motivated by intent to gain,
completed without need to inflict violence or intimidation against
Article 308 provides for a general definition of theft, and three persons nor force upon things, and accomplished without the consent
alternative and highly idiosyncratic means by which theft may be of the SM Super Sales Club, petitioner forfeited the extenuating
committed.41 In the present discussion, we need to concern ourselves benefit a conviction for only attempted theft would have afforded
only with the general definition since it was under it that the him.
prosecution of the accused was undertaken and sustained. On the
face of the definition, there is only one operative act of execution by On the critical question of whether it was consummated or frustrated
the actor involved in theft the taking of personal property of theft, we are obliged to apply Article 6 of the Revised Penal Code to
another. It is also clear from the provision that in order that such ascertain the answer. Following that provision, the theft would have
taking may be qualified as theft, there must further be present the been frustrated only, once the acts committed by petitioner, if
descriptive circumstances that the taking was with intent to gain; ordinarily sufficient to produce theft as a consequence, "do not
without force upon things or violence against or intimidation of produce [such theft] by reason of causes independent of the will of
persons; and it was without the consent of the owner of the property. the perpetrator." There are clearly two determinative factors to
consider: that the felony is not "produced," and that such failure is
Indeed, we have long recognized the following elements of theft as due to causes independent of the will of the perpetrator. The second
provided for in Article 308 of the Revised Penal Code, namely: (1) that factor ultimately depends on the evidence at hand in each particular
there be taking of personal property; (2) that said property belongs to case. The first, however, relies primarily on a doctrinal definition
another; (3) that the taking be done with intent to gain; (4) that the attaching to the individual felonies in the Revised Penal Code52 as to
taking be done without the consent of the owner; and (5) that the when a particular felony is "not produced," despite the commission
of all the acts of execution.
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So, in order to ascertain whether the theft is consummated or been able to obtain full possession of the personal property prior to
frustrated, it is necessary to inquire as to how exactly is the felony of their apprehension. The interval between the commission of the acts
theft "produced." Parsing through the statutory definition of theft of theft and the apprehension of the thieves did vary, from "sometime
under Article 308, there is one apparent answer provided in the later" in the 1898 decision; to the very moment the thief had just
language of the law that theft is already "produced" upon the extracted the money in a purse which had been stored as it was in the
"tak[ing of] personal property of another without the latters 1882 decision; and before the thief had been able to spirit the item
consent." stolen from the building where the theft took place, as had happened
in Adiao and the 1897 decision. Still, such intervals proved of no
U.S. v. Adiao53 apparently supports that notion. Therein, a customs consequence in those cases, as it was ruled that the thefts in each of
inspector was charged with theft after he abstracted a leather belt those cases was consummated by the actual possession of the
from the baggage of a foreign national and secreted the item in his property belonging to another.
desk at the Custom House. At no time was the accused able to "get
the merchandise out of the Custom House," and it appears that he In 1929, the Court was again confronted by a claim that an accused
"was under observation during the entire transaction." 54 Based was guilty only of frustrated rather than consummated theft. The case
apparently on those two circumstances, the trial court had found him is People v. Sobrevilla,57 where the accused, while in the midst of a
guilty, instead, of frustrated theft. The Court reversed, saying that crowd in a public market, was already able to abstract a pocketbook
neither circumstance was decisive, and holding instead that the from the trousers of the victim when the latter, perceiving the theft,
accused was guilty of consummated theft, finding that "all the "caught hold of the [accused]s shirt-front, at the same time shouting
elements of the completed crime of theft are present."55 In support for a policeman; after a struggle, he recovered his pocket-book and
of its conclusion that the theft was consummated, the Court cited let go of the defendant, who was afterwards caught by a
three (3) decisions of the Supreme Court of Spain, the discussion of policeman."58 In rejecting the contention that only frustrated theft
which we replicate below: was established, the Court simply said, without further comment or
elaboration:
The defendant was charged with the theft of some fruit from the land
of another. As he was in the act of taking the fruit[,] he was seen by a We believe that such a contention is groundless. The [accused]
policeman, yet it did not appear that he was at that moment caught succeeded in taking the pocket-book, and that determines the crime
by the policeman but sometime later. The court said: "[x x x] The trial of theft. If the pocket-book was afterwards recovered, such recovery
court did not err [x x x ] in considering the crime as that of does not affect the [accuseds] criminal liability, which arose from the
consummated theft instead of frustrated theft inasmuch as nothing [accused] having succeeded in taking the pocket-book.59
appears in the record showing that the policemen who saw the
accused take the fruit from the adjoining land arrested him in the act If anything, Sobrevilla is consistent with Adiao and the Spanish
and thus prevented him from taking full possession of the thing stolen Supreme Court cases cited in the latter, in that the fact that the
and even its utilization by him for an interval of time." (Decision of the offender was able to succeed in obtaining physical possession of the
Supreme Court of Spain, October 14, 1898.) stolen item, no matter how momentary, was able to consummate the
theft.
Defendant picked the pocket of the offended party while the latter
was hearing mass in a church. The latter on account of the solemnity Adiao, Sobrevilla and the Spanish Supreme Court decisions cited
of the act, although noticing the theft, did not do anything to prevent therein contradict the position of petitioner in this case. Yet to simply
it. Subsequently, however, while the defendant was still inside the affirm without further comment would be disingenuous, as there is
church, the offended party got back the money from the defendant. another school of thought on when theft is consummated, as
The court said that the defendant had performed all the acts of reflected in the Dio and Flores decisions.
execution and considered the theft as consummated. (Decision of the
Supreme Court of Spain, December 1, 1897.)
Dio was decided by the Court of Appeals in 1949, some 31 years after
Adiao and 15 years before Flores. The accused therein, a driver
The defendant penetrated into a room of a certain house and by employed by the United States Army, had driven his truck into the
means of a key opened up a case, and from the case took a small box, port area of the South Harbor, to unload a truckload of materials to
which was also opened with a key, from which in turn he took a purse waiting U.S. Army personnel. After he had finished unloading, accused
containing 461 reales and 20 centimos, and then he placed the money drove away his truck from the Port, but as he was approaching a
over the cover of the case; just at this moment he was caught by two checkpoint of the Military Police, he was stopped by an M.P. who
guards who were stationed in another room near-by. The court inspected the truck and found therein three boxes of army rifles. The
considered this as consummated robbery, and said: "[x x x] The accused later contended that he had been stopped by four men who
accused [x x x] having materially taken possession of the money from had loaded the boxes with the agreement that they were to meet him
the moment he took it from the place where it had been, and having and retrieve the rifles after he had passed the checkpoint. The trial
taken it with his hands with intent to appropriate the same, he court convicted accused of consummated theft, but the Court of
executed all the acts necessary to constitute the crime which was Appeals modified the conviction, holding instead that only frustrated
thereby produced; only the act of making use of the thing having been theft had been committed.
frustrated, which, however, does not go to make the elements of the
consummated crime." (Decision of the Supreme Court of Spain, June
In doing so, the appellate court pointed out that the evident intent of
13, 1882.)56
the accused was to let the boxes of rifles "pass through the
checkpoint, perhaps in the belief that as the truck had already
It is clear from the facts of Adiao itself, and the three (3) Spanish unloaded its cargo inside the depot, it would be allowed to pass
decisions cited therein, that the criminal actors in all these cases had through the check point without further investigation or

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checking."60 This point was deemed material and indicative that the compound, the petitioner could not have disposed of the goods at
theft had not been fully produced, for the Court of Appeals once." At the same time, the Court of Appeals conceded that "[t]his
pronounced that "the fact determinative of consummation is the is entirely different from the case where a much less bulk and more
ability of the thief to dispose freely of the articles stolen, even if it common thing as money was the object of the crime, where freedom
were more or less momentary."61 Support for this proposition was to dispose of or make use of it is palpably less restricted,"67 though no
drawn from a decision of the Supreme Court of Spain dated 24 further qualification was offered what the effect would have been
January 1888 (1888 decision), which was quoted as follows: had that alternative circumstance been present instead.

Considerando que para que el apoderamiento de la cosa sustraida sea Synthesis of the Dio and Flores rulings is in order. The determinative
determinate de la consumacion del delito de hurto es preciso que so characteristic as to whether the crime of theft was produced is the
haga en circunstancias tales que permitan al sustractor la libre ability of the actor "to freely dispose of the articles stolen, even if it
disposicion de aquella, siquiera sea mas o menos momentaneamente, were only momentary." Such conclusion was drawn from an 1888
pues de otra suerte, dado el concepto del delito de hurto, no puede decision of the Supreme Court of Spain which had pronounced that in
decirse en realidad que se haya producido en toda su extension, sin determining whether theft had been consummated, "es preciso que
materializar demasiado el acto de tomar la cosa ajena.62 so haga en circunstancias tales que permitan al sustractor de aquella,
siquiera sea mas o menos momentaneamente." The qualifier
Integrating these considerations, the Court of Appeals then "siquiera sea mas o menos momentaneamente" proves another
concluded: important consideration, as it implies that if the actor was in a
capacity to freely dispose of the stolen items before apprehension,
then the theft could be deemed consummated. Such circumstance
This court is of the opinion that in the case at bar, in order to make
was not present in either Dio or Flores, as the stolen items in both
the booty subject to the control and disposal of the culprits, the
cases were retrieved from the actor before they could be physically
articles stolen must first be passed through the M.P. check point, but
extracted from the guarded compounds from which the items were
since the offense was opportunely discovered and the articles seized
filched. However, as implied in Flores, the character of the item stolen
after all the acts of execution had been performed, but before the
could lead to a different conclusion as to whether there could have
loot came under the final control and disposal of the looters, the
been "free disposition," as in the case where the chattel involved was
offense can not be said to have been fully consummated, as it was
of "much less bulk and more common x x x, [such] as money x x x."68
frustrated by the timely intervention of the guard. The offense
committed, therefore, is that of frustrated theft.63
In his commentaries, Chief Justice Aquino makes the following
pointed observation on the import of the Dio ruling:
Dio thus laid down the theory that the ability of the actor to freely
dispose of the items stolen at the time of apprehension is
determinative as to whether the theft is consummated or frustrated. There is a ruling of the Court of Appeals that theft is consummated
This theory was applied again by the Court of Appeals some 15 years when the thief is able to freely dispose of the stolen articles even if it
later, in Flores, a case which according to the division of the court that were more or less momentary. Or as stated in another case[69 ], theft
decided it, bore "no substantial variance between the circumstances is consummated upon the voluntary and malicious taking of property
[herein] and in [Dio]."64 Such conclusion is borne out by the facts in belonging to another which is realized by the material occupation of
Flores. The accused therein, a checker employed by the Luzon the thing whereby the thief places it under his control and in such a
Stevedoring Company, issued a delivery receipt for one empty sea van situation that he could dispose of it at once. This ruling seems to have
to the truck driver who had loaded the purportedly empty sea van been based on Viadas opinion that in order the theft may be
onto his truck at the terminal of the stevedoring company. The truck consummated, "es preciso que se haga en circumstancias x x x [70 ]"71
driver proceeded to show the delivery receipt to the guard on duty at
the gate of the terminal. However, the guards insisted on inspecting In the same commentaries, Chief Justice Aquino, concluding from
the van, and discovered that the "empty" sea van had actually Adiao and other cases, also states that "[i]n theft or robbery the crime
contained other merchandise as well.65 The accused was prosecuted is consummated after the accused had material possession of the
for theft qualified by abuse of confidence, and found himself thing with intent to appropriate the same, although his act of making
convicted of the consummated crime. Before the Court of Appeals, use of the thing was frustrated."72
accused argued in the alternative that he was guilty only of attempted
theft, but the appellate court pointed out that there was no There are at least two other Court of Appeals rulings that are at
intervening act of spontaneous desistance on the part of the accused seeming variance with the Dio and Flores rulings. People v.
that "literally frustrated the theft." However, the Court of Appeals, Batoon73 involved an accused who filled a container with gasoline
explicitly relying on Dio, did find that the accused was guilty only of from a petrol pump within view of a police detective, who followed
frustrated, and not consummated, theft. the accused onto a passenger truck where the arrest was made. While
the trial court found the accused guilty of frustrated qualified theft,
As noted earlier, the appellate court admitted it found "no substantial the Court of Appeals held that the accused was guilty of
variance" between Dio and Flores then before it. The prosecution consummated qualified theft, finding that "[t]he facts of the cases of
in Flores had sought to distinguish that case from Dio, citing a U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual
"traditional ruling" which unfortunately was not identified in the taking with intent to gain is enough to consummate the crime of
decision itself. However, the Court of Appeals pointed out that the theft."74
said "traditional ruling" was qualified by the words "is placed in a
situation where [the actor] could dispose of its contents at In People v. Espiritu,75 the accused had removed nine pieces of
once."66 Pouncing on this qualification, the appellate court noted that hospital linen from a supply depot and loaded them onto a truck.
"[o]bviously, while the truck and the van were still within the However, as the truck passed through the checkpoint, the stolen

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items were discovered by the Military Police running the checkpoint. frustrated because not all of the acts of execution were performed
Even though those facts clearly admit to similarity with those in Dio, due to the timely arrival of the owner. However, following Article 6 of
the Court of Appeals held that the accused were guilty of the Revised Penal Code, these facts should elicit the conclusion that
consummated theft, as the accused "were able to take or get hold of the crime was only attempted, especially given that the acts were not
the hospital linen and that the only thing that was frustrated, which performed because of the timely arrival of the owner, and not
does not constitute any element of theft, is the use or benefit that the because of spontaneous desistance by the offenders.
thieves expected from the commission of the offense."76
For these reasons, we cannot attribute weight to Empelis as we
In pointing out the distinction between Dio and Espiritu, Reyes wryly consider the present petition. Even if the two sentences we had cited
observes that "[w]hen the meaning of an element of a felony is actually aligned with the definitions provided in Article 6 of the
controversial, there is bound to arise different rulings as to the stage Revised Penal Code, such passage bears no reflection that it is the
of execution of that felony."77 Indeed, we can discern from this survey product of the considered evaluation of the relevant legal or
of jurisprudence that the state of the law insofar as frustrated theft is jurisprudential thought. Instead, the passage is offered as if it were
concerned is muddled. It fact, given the disputed foundational basis sourced from an indubitable legal premise so settled it required no
of the concept of frustrated theft itself, the question can even be further explication.
asked whether there is really such a crime in the first place.
Notably, Empelis has not since been reaffirmed by the Court, or even
IV. cited as authority on theft. Indeed, we cannot see how Empelis can
contribute to our present debate, except for the bare fact that it
The Court in 1984 did finally rule directly that an accused was guilty proves that the Court had once deliberately found an accused guilty
of frustrated, and not consummated, theft. As we undertake this of frustrated theft. Even if Empelis were considered as a precedent
inquiry, we have to reckon with the import of this Courts 1984 for frustrated theft, its doctrinal value is extremely compromised by
decision in Empelis v. IAC.78 the erroneous legal premises that inform it, and also by the fact that
it has not been entrenched by subsequent reliance.
As narrated in Empelis, the owner of a coconut plantation had espied
four (4) persons in the premises of his plantation, in the act of Thus, Empelis does not compel us that it is an insurmountable given
gathering and tying some coconuts. The accused were surprised by that frustrated theft is viable in this jurisdiction. Considering the
the owner within the plantation as they were carrying with them the flawed reasoning behind its conclusion of frustrated theft, it cannot
coconuts they had gathered. The accused fled the scene, dropping the present any efficacious argument to persuade us in this case. Insofar
coconuts they had seized, and were subsequently arrested after the as Empelis may imply that convictions for frustrated theft are beyond
owner reported the incident to the police. After trial, the accused cavil in this jurisdiction, that decision is subject to reassessment.
were convicted of qualified theft, and the issue they raised on appeal
was that they were guilty only of simple theft. The Court affirmed that V.
the theft was qualified, following Article 310 of the Revised Penal
Code,79 but further held that the accused were guilty only of At the time our Revised Penal Code was enacted in 1930, the 1870
frustrated qualified theft. Codigo Penal de Espaa was then in place. The definition of the crime
of theft, as provided then, read as follows:
It does not appear from the Empelis decision that the issue of whether
the theft was consummated or frustrated was raised by any of the Son reos de hurto:
parties. What does appear, though, is that the disposition of that issue
was contained in only two sentences, which we reproduce in full:
1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las
personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
However, the crime committed is only frustrated qualified theft voluntad de su dueo.
because petitioners were not able to perform all the acts of execution
which should have produced the felony as a consequence. They were
2. Los que encontrndose una cosa perdida y sabiendo quin es su
not able to carry the coconuts away from the plantation due to the
dueo se la apropriaren co intencin de lucro.
timely arrival of the owner.80

3. Los daadores que sustrajeren o utilizaren los frutos u objeto del


No legal reference or citation was offered for this averment, whether
dao causado, salvo los casos previstos en los artculos 606, nm. 1.0;
Dio, Flores or the Spanish authorities who may have bolstered the
607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo
conclusion. There are indeed evident problems with this formulation
del 617 y 618.
in Empelis.

It was under the ambit of the 1870 Codigo Penal that the aforecited
Empelis held that the crime was only frustrated because the actors
Spanish Supreme Court decisions were handed down. However, the
"were not able to perform all the acts of execution which should have
said code would be revised again in 1932, and several times
produced the felon as a consequence."81 However, per Article 6 of the
thereafter. In fact, under the Codigo Penal Espaol de 1995, the crime
Revised Penal Code, the crime is frustrated "when the offender
of theft is now simply defined as "[e]l que, con nimo de lucro,
performs all the acts of execution," though not producing the felony
as a result. If the offender was not able to perform all the acts of
execution, the crime is attempted, provided that the non- tomare las cosas muebles ajenas sin la voluntad de su dueo ser
performance was by reason of some cause or accident other than castigado"82
spontaneous desistance. Empelis concludes that the crime was
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Notice that in the 1870 and 1995 definition of theft in the penal code decisions on the matter, Cuello Caln actually set forth his own
of Spain, "la libre disposicion" of the property is not an element or a thought that questioned whether theft could truly be frustrated, since
statutory characteristic of the crime. It does appear that the principle "pues es muy dificil que el que hace cuanto es necesario para la
originated and perhaps was fostered in the realm of Spanish consumacin del hurto no lo consume efectivamente." Otherwise
jurisprudence. put, it would be difficult to foresee how the execution of all the acts
necessary for the completion of the crime would not produce the
The oft-cited Salvador Viada adopted a question-answer form in his effect of theft.
1926 commentaries on the 1870 Codigo Penal de Espaa. Therein, he
raised at least three questions for the reader whether the crime of This divergence of opinion convinces us, at least, that there is no
frustrated or consummated theft had occurred. The passage cited in weighted force in scholarly thought that obliges us to accept
Dio was actually utilized by Viada to answer the question whether frustrated theft, as proposed in Dio and Flores. A final ruling by the
frustrated or consummated theft was committed "[e]l que en el Court that there is no crime of frustrated theft in this jurisdiction will
momento mismo de apoderarse de la cosa ajena, vindose not lead to scholastic pariah, for such a submission is hardly heretical
sorprendido, la arroja al suelo."83 Even as the answer was as stated in in light of Cuello Calns position.
Dio, and was indeed derived from the 1888 decision of the Supreme
Court of Spain, that decisions factual predicate occasioning the Accordingly, it would not be intellectually disingenuous for the Court
statement was apparently very different from Dio, for it appears that to look at the question from a fresh perspective, as we are not bound
the 1888 decision involved an accused who was surprised by the by the opinions of the respected Spanish commentators, conflicting
employees of a haberdashery as he was abstracting a layer of clothing as they are, to accept that theft is capable of commission in its
off a mannequin, and who then proceeded to throw away the frustrated stage. Further, if we ask the question whether there is a
garment as he fled.84 mandate of statute or precedent that must compel us to adopt the
Dio and Flores doctrines, the answer has to be in the negative. If we
Nonetheless, Viada does not contest the notion of frustrated theft, did so, it would arise not out of obeisance to an inexorably higher
and willingly recites decisions of the Supreme Court of Spain that have command, but from the exercise of the function of statutory
held to that effect.85 A few decades later, the esteemed Eugenio interpretation that comes as part and parcel of judicial review, and a
Cuello Caln pointed out the inconsistent application by the Spanish function that allows breathing room for a variety of theorems in
Supreme Court with respect to frustrated theft. competition until one is ultimately adopted by this Court.

Hay frustracin cuando los reos fueron sorprendidos por las guardias V.
cuando llevaban los sacos de harino del carro que los conducia a otro
que tenan preparado, 22 febrero 1913; cuando el resultado no tuvo The foremost predicate that guides us as we explore the matter is that
efecto por la intervencin de la policia situada en el local donde se it lies in the province of the legislature, through statute, to define
realiz la sustraccin que impidi pudieran los reos disponer de lo what constitutes a particular crime in this jurisdiction. It is the
sustrado, 30 de octubre 1950. Hay "por lo menos" frustracin, si legislature, as representatives of the sovereign people, which
existe apoderamiento, pero el culpale no llega a disponer de la cosa, determines which acts or combination of acts are criminal in nature.
12 abril 1930; hay frustracin "muy prxima" cuando el culpable es Judicial interpretation of penal laws should be aligned with what was
detenido por el perjudicado acto seguido de cometer la sustraccin, the evident legislative intent, as expressed primarily in the language
28 febrero 1931. Algunos fallos han considerado la existencia de of the law as it defines the crime. It is Congress, not the courts, which
frustracin cuando, perseguido el culpable o sorprendido en el is to define a crime, and ordain its punishment. 88 The courts cannot
momento de llevar los efectos hurtados, los abandona, 29 mayo 1889, arrogate the power to introduce a new element of a crime which was
22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, unintended by the legislature, or redefine a crime in a manner that
stos, conforme a lo antes expuesto, son hurtos consumados.86 does not hew to the statutory language. Due respect for the
prerogative of Congress in defining crimes/felonies constrains the
Ultimately, Cuello Caln attacked the very idea that frustrated theft is Court to refrain from a broad interpretation of penal laws where a
actually possible: "narrow interpretation" is appropriate. "The Court must take heed of
language, legislative history and purpose, in order to strictly
La doctrina hoy generalmente sustentada considera que el hurto se determine the wrath and breath of the conduct the law forbids."89
consuma cuando la cosa queda de hecho a la disposicin del agente.
Con este criterio coincide la doctrina sentada ltimamente porla With that in mind, a problem clearly emerges with
jurisprudencia espaola que generalmente considera consumado el the Dio/Flores dictum. The ability of the offender to freely dispose
hurto cuando el culpable coge o aprehende la cosa y sta quede por of the property stolen is not a constitutive element of the crime of
tiempo ms o menos duradero bajo su poder. El hecho de que ste theft. It finds no support or extension in Article 308, whether as a
pueda aprovecharse o no de lo hurtado es indiferente. El delito no descriptive or operative element of theft or as the mens rea or actus
pierde su carcter de consumado aunque la cosa hurtada sea reus of the felony. To restate what this Court has repeatedly held: the
devuelta por el culpable o fuere recuperada. No se concibe la elements of the crime of theft as provided for in Article 308 of the
frustracin, pues es muy dificil que el que hace cuanto es necesario Revised Penal Code are: (1) that there be taking of personal property;
para la consumacin del hurto no lo consume efectivamente, los raros (2) that said property belongs to another; (3) that the taking be done
casos que nuestra jurisprudencia, muy vacilante, declara hurtos with intent to gain; (4) that the taking be done without the consent of
frustrados son verdaderos delitos consumados.87 (Emphasis supplied) the owner; and (5) that the taking be accomplished without the use
of violence against or intimidation of persons or force upon things.90
Cuello Calns submissions cannot be lightly ignored. Unlike Viada,
who was content with replicating the Spanish Supreme Court

Compiled by: Vim Malicay


Such factor runs immaterial to the statutory definition of theft, which With these considerations, we can only conclude that under Article
is the taking, with intent to gain, of personal property of another 308 of the Revised Penal Code, theft cannot have a frustrated stage.
without the latters consent. While the Dio/Flores dictum is Theft can only be attempted or consummated.
considerate to the mindset of the offender, the statutory definition of
theft considers only the perspective of intent to gain on the part of Neither Dio nor Flores can convince us otherwise. Both fail to
the offender, compounded by the deprivation of property on the part consider that once the offenders therein obtained possession over
of the victim. the stolen items, the effect of the felony has been produced as there
has been deprivation of property. The presumed inability of the
For the purpose of ascertaining whether theft is susceptible of offenders to freely dispose of the stolen property does not negate the
commission in the frustrated stage, the question is again, when is the fact that the owners have already been deprived of their right to
crime of theft produced? There would be all but certain unanimity in possession upon the completion of the taking.
the position that theft is produced when there is deprivation of
personal property due to its taking by one with intent to gain. Viewed Moreover, as is evident in this case, the adoption of the rule that
from that perspective, it is immaterial to the product of the felony the inability of the offender to freely dispose of the stolen property
that the offender, once having committed all the acts of execution for frustrates the theft would introduce a convenient defense for the
theft, is able or unable to freely dispose of the property stolen since accused which does not reflect any legislated intent,95 since the Court
the deprivation from the owner alone has already ensued from such would have carved a viable means for offenders to seek a mitigated
acts of execution. This conclusion is reflected in Chief Justice Aquinos penalty under applied circumstances that do not admit of easy
commentaries, as earlier cited, that "[i]n theft or robbery the crime is classification. It is difficult to formulate definite standards as to when
consummated after the accused had material possession of the thing a stolen item is susceptible to free disposal by the thief. Would this
with intent to appropriate the same, although his act of making use depend on the psychological belief of the offender at the time of the
of the thing was frustrated."91 commission of the crime, as implied in Dio?

It might be argued, that the ability of the offender to freely dispose of Or, more likely, the appreciation of several classes of factual
the property stolen delves into the concept of "taking" itself, in that circumstances such as the size and weight of the property, the
there could be no true taking until the actor obtains such degree of location of the property, the number and identity of people present
control over the stolen item. But even if this were correct, the effect at the scene of the crime, the number and identity of people whom
would be to downgrade the crime to its attempted, and not frustrated the offender is expected to encounter upon fleeing with the stolen
stage, for it would mean that not all the acts of execution have not property, the manner in which the stolen item had been housed or
been completed, the "taking not having been accomplished." Perhaps stored; and quite frankly, a whole lot more. Even the fungibility or
this point could serve as fertile ground for future discussion, but our edibility of the stolen item would come into account, relevant as that
concern now is whether there is indeed a crime of frustrated theft, would be on whether such property is capable of free disposal at any
and such consideration proves ultimately immaterial to that question. stage, even after the taking has been consummated.
Moreover, such issue will not apply to the facts of this particular case.
We are satisfied beyond reasonable doubt that the taking by the
All these complications will make us lose sight of the fact that beneath
petitioner was completed in this case. With intent to gain, he acquired
all the colorful detail, the owner was indeed deprived of property by
physical possession of the stolen cases of detergent for a considerable
one who intended to produce such deprivation for reasons of gain.
period of time that he was able to drop these off at a spot in the
For such will remain the presumed fact if frustrated theft were
parking lot, and long enough to load these onto a taxicab.
recognized, for therein, all of the acts of execution, including the
taking, have been completed. If the facts establish the non-
Indeed, we have, after all, held that unlawful taking, or completion of the taking due to these peculiar circumstances, the
apoderamiento, is deemed complete from the moment the offender effect could be to downgrade the crime to the attempted stage, as
gains possession of the thing, even if he has no opportunity to dispose not all of the acts of execution have been performed. But once all
of the same.92 And long ago, we asserted in People v. Avila:93 these acts have been executed, the taking has been completed,
causing the unlawful deprivation of property, and ultimately the
x x x [T]he most fundamental notion in the crime of theft is the taking consummation of the theft.
of the thing to be appropriated into the physical power of the thief,
which idea is qualified by other conditions, such as that the taking Maybe the Dio/Flores rulings are, in some degree, grounded in
must be effected animo lucrandi and without the consent of the common sense. Yet they do not align with the legislated framework
owner; and it will be here noted that the definition does not require of the crime of theft. The Revised Penal Code provisions on theft have
that the taking should be effected against the will of the owner but not been designed in such fashion as to accommodate said rulings.
merely that it should be without his consent, a distinction of no slight Again, there is no language in Article 308 that expressly or impliedly
importance.94 allows that the "free disposition of the items stolen" is in any way
determinative of whether the crime of theft has been produced. Dio
Insofar as we consider the present question, "unlawful taking" is most itself did not rely on Philippine laws or jurisprudence to bolster its
material in this respect. Unlawful taking, which is the deprivation of conclusion, and the later Flores was ultimately content in relying on
ones personal property, is the element which produces the felony in Dio alone for legal support. These cases do not enjoy the weight of
its consummated stage. At the same time, without unlawful taking as stare decisis, and even if they did, their erroneous appreciation of our
an act of execution, the offense could only be attempted theft, if at law on theft leave them susceptible to reversal. The same holds true
all. of Empilis, a regrettably stray decision which has not since found favor
from this Court.

Compiled by: Vim Malicay


We thus conclude that under the Revised Penal Code, there is no Canceran was pushing a cart which contained two boxes of Magic
crime of frustrated theft. As petitioner has latched the success of his Flakes for which he paid P1,423.00; that Ompoc went to the packer
appeal on our acceptance of the Dio and Flores rulings, his petition and asked if the boxes had been checked; that upon inspection by
must be denied, for we decline to adopt said rulings in our jurisdiction. Ompoc and the packer, they found out that the contents of the two
That it has taken all these years for us to recognize that there can be boxes were not Magic Flakes biscuits, but 14 smaller boxes of Ponds
no frustrated theft under the Revised Penal Code does not detract White Beauty Cream worth P28,627.20; that Canceran hurriedly left
from the correctness of this conclusion. It will take considerable and a chase ensued; that upon reaching the Don Mariano gate,
amendments to our Revised Penal Code in order that frustrated theft Canceran stumbled as he attempted to ride a jeepney; that after
may be recognized. Our deference to Viada yields to the higher being questioned, he tried to settle with the guards and even offered
reverence for legislative intent. his personal effects to pay for the items he tried to take; that Arcenio
refused to settle; and that his personal belongings were deposited in
WHEREFORE, the petition is DENIED. Costs against petitioner. the office of Arcenio.5

SO ORDERED. Version of the Defense

CANCERAN VS PEOPLE Canceran vehemently denied the charges against him. He claimed
that he was a promo merchandiser of La Tondea, Inc. and that on
(761 SCRA 293)
October 6, 2002, he was in Ororama to buy medicinefor his wife. On
his way out, after buying medicine and mineral water, a male person
MENDOZA, J.: ofaround 20 years of age requested him to pay for the items in his
cart at the cashier; that he did not know the name of this man who
This is a petition for review on certiorari seeking to reverse and set gavehim P1,440.00 for payment of two boxes labelled Magic Flakes;
aside the August 10, 2012 Decision1 and the March 7, 2013 that he obliged with the request of the unnamed person because he
Resolution2 of the Court of Appeals (CA), in CA-G.R. CR No. 00559, was struck by his conscience; that he denied knowing the contents of
which affirmed and modified the September 20, 2007 Judgment 3 of the said two boxes; that after paying at the cashier, he went out of
the Regional Trial Court, Branch 39, Misamis Oriental, Cagayan de Oro Ororama towards Limketkai to take a jeepney; that three persons ran
City (RTC), in Criminal Case No. 2003-141, convicting petitioner Jovito after him, and he was caught; that he was brought to the 4th floor of
Canceran (Canceran) for consummated Theft. Ororama, where he was mauled and kicked by one of those who
chased him; that they took his Nokia 5110 cellular phone and cash
The records disclose that Canceran, together with Frederick Vequizo amounting to P2,500.00; and that Ompoc took his Seiko watch and
and Marcial Diaz, Jr., was charged with "Frustrated Theft." The ring, while a certain Amion took his necklace.6
Information reads:
Canceran further claimed that an earlier Information for theft was
That on or about October 6, 2002, at more or less 12:00 noon, at already filed on October 9,2002 which was eventually dismissed. In
Ororama Mega Center Grocery Department, Lapasan, Cagayan de Oro January 2003, a second Information was filed for the same offense
City, Philippines, and within the jurisdiction of this Honorable Court, over the same incident and became the subject of the present case.7
the above-named accused, Jovito Canceran, conspiring,
confederating together and mutually helping one another with his co- The Ruling of the Regional Trial Court
accused Frederick Vequizo, URC Merchandiser, and Marcial Diaz, Jr.,
a Unilever Philippines merchandiser both of Ororama Mega Center, In its Judgment, dated September 20, 2007, the RTC found Canceran
with intent to gain and without the knowledge and consent of the guilty beyond reasonable doubt of consummated Theft in line with
owner thereof, did then and there wilfully, unlawfully and feloniously the ruling of the Court in Valenzuela v. People8 that under Article 308
take, steal and carry away 14 cartons of Ponds White Beauty Cream of the Revised Penal Code (RPC),there is no crime of "Frustrated
valued at P28,627,20, belonging to Ororama Mega Center, Theft." Canceran was sentenced to suffer the indeterminate penalty
represented by William Michael N. Arcenio, thus, performing all the of imprisonment from ten (10) years and one (1) day to ten (10) years,
acts of execution which would produce the crime of theft as a eight (8) months of prision mayor, as minimum, to fourteen (14)
consequence but, nevertheless, did not produce it by reason of some years, eight (8) months of reclusion temporal, as maximum.9
cause independent of accuseds will, that is, they were discovered by
the employees of Ororama Mega Center who prevented them from
The RTC wrote that Cancerans denial deserved scant consideration
further carrying away said 14 cartons of Ponds White Beauty Cream,
because it was not supported by sufficient and convincing evidence
to the damage and prejudice of the Ororama Mega Center.
and no disinterested witness was presented to corroborate his claims.
As such, his denial was considered self-serving and deserved no
Article 308 in relation to Article 309, and 6 of the Revised Penal Code.4 weight. The trial court was also of the view that his defense, that the
complaint for theft filed against him before the sala of Judge Maximo
Version of the Prosecution Paderanga was already dismissed, was not persuasive. The dismissal
was merely a release order signed by the Clerk of Court because he
To prove the guilt of the accused, the prosecution presented Damalito had posted bail.10
Ompoc (Ompoc),a security guard; and William Michael N. Arcenio
(Arcenio), the Customer Relation Officer of Ororama Mega Center The Ruling of the Court of Appeals
(Ororama),as its witnesses. Through their testimonies, the
prosecution established that on or about October 6, 2002, Ompoc Aggrieved, Canceran filed an appeal where he raised the issue of
saw Canceran approach one of the counters in Ororama; that double jeopardy for the first time. The CA held that there could be no
Compiled by: Vim Malicay
double jeopardy because he never entered a valid plea and so the first accused to suitably prepare his defense. He is presumed to have no
jeopardy never attached.11 independent knowledge of the facts that constitute the offense. 17

The CA also debunked Cancerans contention that there was no taking Under Article 308 of the RPC, the essential elements of theft are (1)
because he merely pushed the cart loaded with goods to the cashiers the taking of personal property; (2) the property belongs to another;
booth for payment and stopped there. The appellate court held that (3) the taking away was done with intent of gain; (4) the taking away
unlawful taking was deemed complete from the moment the offender was done without the consent of the owner; and (5) the taking away
gained possession of the thing, even if he had no opportunity to is accomplished without violence or intimidation against person or
dispose of the same.12 force upon things. "Unlawful taking, which is the deprivation of ones
personal property, is the element which produces the felony in its
The CA affirmed with modification the September 20, 2007 judgment consummated stage. At the same time, without unlawful taking as an
of the RTC, reducing the penalty ranging from two (2) years, four (4) act of execution, the offense could only be attempted theft, if at all."18
months and one (1) day of prision correccional, as minimum, to eight
(8) years, eight (8) months and one (1) day of prision mayor, as "It might be argued, that the ability of the offender to freely dispose
maximum. Canceran moved for the reconsideration of the said of the property stolen delves into the concept of taking itself, in that
decision, but his motion was denied by the CA in its March 7, 2013 there could be no true taking until the actor obtains such degree of
resolution. control over the stolen item. But even if this were correct, the effect
would be to downgrade the crime to its attempted, and not frustrated
Hence, this petition. stage, for it would mean that not all the acts of execution have not
been completed, the "taking not having been accomplished."19
As can be synthesized from the petition and other pleadings, the
following are the issues: 1] whether Canceran should be acquitted in A careful reading of the allegations in the Information would show
the crime of theft as it was not charged in the information; and 2] that Canceran was charged with "Frustrated Theft" only. Pertinent
whether there was double jeopardy. parts of the Information read:

Canceran argues that the CA erred in affirming his conviction. He x x x did then and there wilfully, unlawfully and feloniously take, steal
insists that there was already double jeopardy as the first criminal and carry away 14 cartons of Ponds White Beauty Cream valued
case for theft was already dismissed and yet he was convicted in the at P28,627,20, belonging to Ororama Mega Center, represented by
second case. Canceran also contends that there was no taking of the William Michael N. Arcenio, thus performing all the acts of execution
Ponds cream considering that "the information in Criminal Case No. which would produce the crime of theft as a consequence, but
2003-141 admits the act of the petitioner did not produce the crime nevertheless, did not produce it by reason of some cause
of theft."13 Thus, absent the element of taking, the felony of theft was independent of accuseds will x x x.
never proved.
[Emphasis and Underscoring Supplied]
Comment,14
In its the Office of the Solicitor General (OSG)contended
that there was no double jeopardy as the first jeopardy never As stated earlier, there is no crime of Frustrated Theft. The
attached. The trial court dismissed the case even before Canceran Information can never be read to charge Canceran of consummated
could enter a plea during the scheduled arraignment for the first case. Theft because the indictment itself stated that the crime was never
Further, the prosecution proved that all the elements of theft were produced. Instead, the Information should be construed to mean that
present in this case. Canceran was being charged with theft in its attempted stage only.
Necessarily, Canceran may only be convicted of the lesser crime of
In his Reply,15 Canceran averred that when the arraignment of the Attempted Theft.
first case was scheduled, he was already bonded and ready to enter a
plea. It was the RTC who decided that the evidence was insufficient "[A]n accused cannot be convicted of a higher offense than that with
or the evidence lacked the element to constitute the crime of theft. which he was charged in the complaint or information and on which
He also stressed that there was no unlawful taking as the items were he was tried. It matters not how conclusive and convincing the
assessed and paid for. evidence of guilt may be, an accused cannot be convicted in the courts
of any offense, unless it is charged in the complaint or information on
The Court's Ruling which he is tried, or necessarily included therein. He has a right to be
informed as to the nature of the offense with which he is charged
before he is put on trial, and to convict him of an offense higher than
The Court finds the petition partially meritorious.
that charged in the complaint or information on which he is tried
would be an unauthorized denial of that right."20 Indeed, an accused
Constitutional Right of the Accused to be Informed of the Nature and cannot be convicted of a crime, even if duly proven, unless it is alleged
Cause of Accusation against Him. or necessarily included in the information filed against him.21 An
offense charged necessarily includes the offense proved when some
No less than the Constitution guarantees the right of every person of the essential elements or ingredients of the former, as alleged in
accused in a criminal prosecution to be informed of the nature and the complaint or information, constitute the latter.22
cause of accusation against him.16 It is fundamental that every
element of which the offense is composed must be alleged in the The crime of theft in its consummated stage undoubtedly includes the
complaint or information. The main purpose of requiring the various crime in its attempted stage. In this case, although the evidence
elements of a crime to be set out in the information is to enable the presented during the trial prove the crime of consummated Theft, he
Compiled by: Vim Malicay
could be convicted of Attempted Theft only. Regardless of the enter a plea. It was the RTC who decided that there was insufficient
overwhelming evidence to convict him for consummated Theft, evidence to constitute the crime of theft.
because the Information did not charge him with consummated
Theft, the Court cannot do so as the same would violate his right to To raise the defense of double jeopardy, three requisites must be
be informed of the nature and cause of the allegations against him, as present: (1) a first jeopardy must have attached prior to the second;
he so protests. (2) the first jeopardy must have been validly terminated; and (3) the
second jeopardy must be for the same offense as that in the first.
The Court is not unmindful of the rule that "the real nature of the Legal jeopardy attaches only (a) upon a valid indictment, (b) before a
criminal charge is determined, not from the caption or preamble of competent court, (c) after arraignment, (d) a valid plea having been
the information nor from the specification of the law alleged to have entered; and (e) the case was dismissed or otherwise terminated
been violated these being conclusions of law but by the actual without the express consent of the accused.28
recital of facts in the complaint or information."23 In the case of
Domingo v. Rayala,24 it was written: Here, the CA correctly observed that Canceran never raised the issue
of double jeopardy before the RTC.1wphi1 Even assuming that he
What is controlling is not the title of the complaint, nor the was able to raise the issue of double jeopardy earlier, the same must
designation of the offense charged or the particular law or part still fail because legal jeopardy did not attach. First, he never entered
thereof allegedly violated, these being mere conclusions of law made a valid plea. He himself admitted that he was just about to enter a
by the prosecutor, but the description of the crime charged and the plea, but the first case was dismissed even before he was able to do
particular facts therein recited. The acts or omissions complained of so. Second, there was no unconditional dismissal of the complaint.
must be alleged in such form as is sufficient to enable a person of The case was not terminated by reason of acquittal nor conviction but
common understanding to know what offense is intended to be simply because he posted bail. Absent these two elements, there can
charged, and enable the court to pronounce proper judgment. No be no double jeopardy.
information for a crime will be sufficient if it does not accurately and
clearly allege the elements of the crime charged. Every element of the Penalty of Attempted Theft
offense must be stated in the information. What facts and
circumstances are necessary to be included therein must be
The penalty for consummated theft is prision mayor in its minimum
determined by reference to the definitions and essentials of the
and medium periods.29 The penalty lower by two degrees than that
specified crimes. The requirement of alleging the elements of a crime
prescribed by law for the consummated felony shall be imposed upon
in the information is to inform the accused of the nature of the
principals in an attempt to commit a felony.30 The basis for reduction
accusation against him so as to enable him to suitably prepare his
of penalty by two degrees is the penalty prescribed by law for the
defense.25
consummated crime. Also, when the offenses defined in the RPC are
punished with a penalty composed of two periods, like in the crime of
In the subject information, the designation of the prosecutor of the theft, the penalty lower by one degree is formed by two periods to be
offense, which was "Frustrated Theft," may be just his conclusion. taken from the same penalty prescribed.31
Nevertheless, the fact remains that the charge was qualified by the
additional allegation, "but, nevertheless, did not produce it by reason
Here, the products stolen were worth P28,627.20. Following Article
of some cause independent of accuseds will, that is, they were
309 par. 1 of the RPC, the penalty shall be the maximum period of the
discovered by the employees of Ororama Mega Center who
penalty prescribed in. the same paragraph, because the value of the
prevented them from further carrying away said 14 cartons of Ponds
things stolen exceeded P22,000.00. In other words, a special
White Beauty Cream, x x x.26 This averment, which could also be
aggravating circumstance shall affect the imposable penalty.
deemed by some as a mere conclusion, rendered the charge
nebulous. There being an uncertainty, the Court resolves the doubt in
favor of the accused, Canceran, and holds that he was not properly Applying the Indeterminate Sentence Law, the minimum penalty
informed that the charge against him was consummated theft. should be within the range of Arresto Mayor Minimum to Arresto
Mayor Medium. In view of the special aggravating circumstance
under Article 309 (1), the maximum penalty should be Arresto Mayor
No double jeopardy when
Maximum to Prision Correccional Minimum in its maximum period.
the first jeopardy never
attached
WHEREFORE, the petition is PARTIALLY GRANTED. The August 10,
2012 Decision and the March 7, 2013 Resolution of the Court of
Anent the issue of double jeopardy, the Court finds no reason to
Appeals in CA-G.R. CR No. 00559 are hereby MODIFIED, in that, the
deviate from the ruling of the CA.
Court finds accused Jovito Canceran guilty beyond reasonable doubt
of the crime of Attempted Theft.
No person shall be twice put in jeopardy for punishment for the same
offense. The rule of double jeopardy has a settled meaning in this
Accordingly, the Court sentences the accused to suffer the
jurisdiction. It means that when a person is charged with an offense
indeterminate prison term ranging from Four (4) Months of Arresto
and the case is terminated either by acquittal or conviction or in any
Mayor, as minimum, to Two (2) Years, Four (4) Months of Prision
other manner without the consent of the accused, the latter cannot
Correccional, as maximum.
again be charged with the same or identical offense. This principle is
founded upon the law of reason, justice and conscience. 27
SO ORDERED.
Canceran argues that double jeopardy exists as the first case was
scheduled for arraignment and he, already bonded, was ready to PEOPLE VS ERINA

Compiled by: Vim Malicay


(50 PHIL 998) In my opinion, the accused is guilty of raping a child 3 years and 11
months of age. It is consummated rape according to the evidence of
record, the findings of the trial judge, and our decisions. (People vs.
OSTRAND, J.:
Hernandez [1925], 49 Phil., 980; People vs. Oscar [1925], 48 Phil.,
527.) The instant case is on all fours with the case of Kenney vs.
This is an appeal from a judgment of the Court of First Instance of State (65 L. R. A., 316), cited in the majority decision. In the Kenny
Manila finding the defendant guilty of the crime of consummated case, the penalty was death, and here for this horrible crime, should
rape and sentencing him to suffer seventeen years, four months and be placed in the maximum degree or seventeen years, four months,
one day of reclusion temporal, with the accessory penalties provided and one day imprisonment, as imposed by the trial court. Accordingly,
by law and to pay the costs. my vote is for affirmance of the judgment.

The victim of the crime was a child of 3 years and 11 months old and PEOPLE VS ORITA
the evidence is conclusive that the defendant endeavored to have
(G.R. NO. 86164)
carnal intercourse with her, but there may be some doubt whether
he succeeded in penetrating the vagina before being disturbed by the
timely intervention of the mother and the sister of the child. The MEDIALDEA, J.:
physician who examined the genital organ of the child a few hours
after the commission of the crime found a slight inflammation of the The accused, Ceilito Orita alias Lito, was charged with the crime of
exterior parts of the organ, indicating that an effort had been made rape in Criminal Case No. 83-031-B before the Regional Trial Court,
to enter the vagina, but in testifying before the court he expressed Branch II, Borongan, Eastern Samar. The information filed in the said
doubts as to whether the entry had been effected. The mother of the case reads as follows (p. 47, Rollo):
child testified that she found its genital organ covered with a sticky
substance, but that cannot be considered conclusive evidence of
The undersigned Second Assistant Provincial Fiscal upon
penetration.
prior complaint under oath by the offended party, accuses
CEILITO ORITA alias LITO of the crime of Rape committed as
It has been suggested that the child was of such tender age that follows:
penetration was impossible; that the crime of rape consequently was
impossible of consummation; and that, therefore, the offense
That on March 20, 1983, at about 1:30 o'clock in the
committed should be treated only as abusos deshonestos. We do not
morning inside a boarding house at Victoria St., Poblacion,
think so. It is probably true that a complete penetration was
Borongan, Eastern Samar, Philippines, and within the
impossible, but such penetration is not essential to the commission of
jurisdiction of this Honorable Court, above named accused
the crime; it is sufficient if there is a penetration of the labia. In the
with lewd designs and by the use of a Batangas knife he
case of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L. R. A.,
conveniently provided himself for the purpose and with
316) where the offended party was a child of the age of 3 years and 8
threats and intimidation, did, then and there wilfully,
months the testimony of several physicians was to the effect that her
unlawfully and feloniously lay with and succeeded in having
labia of the privates of a child of that age can be entered by a man's
sexual intercourse with Cristina S. Abayan against her will
male organ to the hymen and the defendant was found guilty of the
and without her consent.
consummated crime rape.

CONTRARY TO LAW.
There being no conclusive evidence of penetration of the genital
organ of the offended party, the defendant is entitled to the benefit
of the doubt and can only be found guilty of frustrated rape, but in Upon being arraigned, the accused entered the plea of not guilty to
view of the fact that he was living in the house of the parents of the the offense charged. After the witnesses for the People testified and
child as their guest, the aggravating circumstance of abuse of the exhibits were formally offered and admitted, the prosecution
confidence existed and the penalty must therefore be imposed in its rested its case. Thereafter, the defense opted not to present any
maximum degree. exculpatory evidence and instead filed a Motion to Dismiss. On
August 5, 1985, the trial court rendered its decision, the dispositive
portion of which reads (pp. 59-60, Rollo):
The judgment appealed from is modified and the defendant-appellant
is hereby found guilty of the crime of frustrated rape and is sentenced
to suffer twelve years of prision mayor, with the accessory penalties WHEREFORE. the Court being morally certain of the guilt of
prescribed by law, and with the costs in both instances. So ordered. accused CEILITO ORITA @ LITO, of the crime of Frustrated
Rape (Art. 335, RPC), beyond reasonable doubt, with the
aggravating circumstances of dwelling and nightime (sic)
Johnson, Street, Villamor, Romualdez and Villa-Real, JJ., concur.
with no mitigating circumstance to offset the same, and
considering the provisions of the Indeterminate Sentence
Law, imposes on accused an imprisonment of TEN (10)
YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to
TWELVE (12) YEARS PRISION MAYOR, maximum; to
Separate Opinions indemnify CRISTINA S. ABAYAN, the amount of Four
Thousand (P4,000.00) Pesos, without subsidiary
MALCOLM, J., dissenting: imprisonment in case of insolvency, and to pay costs.

SO ORDERED.

Compiled by: Vim Malicay


Not satisfied with the decision, the accused appealed to the Court of Appellant then lay down on his back and commanded her
Appeals. On December 29, 1988, the Court of Appeals rendered its to mount him. In this position, only a small part again of his
decision, the dispositive portion of which reads (p. 102, Rollo): penis was inserted into her vagina. At this stage, appellant
had both his hands flat on the floor. Complainant thought
WHEREFORE, the trial court's judgment is hereby of escaping (p. 20, ibid).
MODIFIED, and the appellant found guilty of the crime of
rape, and consequently, sentenced to suffer imprisonment She dashed out to the next room and locked herself in.
of reclusion perpetua and to indemnify the victim in the Appellant pursued her and climbed the partition. When she
amount of P30,000.00. saw him inside the room, she ran to another room.
Appellant again chased her. She fled to another room and
SO ORDERED. jumped out through a window (p. 27, ibid).

On January 11, 1989, the Court of Appeals issued a resolution setting Still naked, she darted to the municipal building, which was
aside its December 29, 1988 decision and forwarded the case to this about eighteen meters in front of the boarding house, and
Court, considering the provision of Section 9, paragraph 3 of Batas knocked on the door. When there was no answer, she ran
Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, around the building and knocked on the back door. When
subparagraph 1 of the Judiciary Act of 1948. the policemen who were inside the building opened the
door, they found complainant naked sitting on the stairs
crying. Pat. Donceras, the first policeman to see her, took
The antecedent facts as summarized in the People's brief are as
off his jacket and wrapped it around her. When they
follows (pp. 71-75, Rollo):
discovered what happened, Pat. Donceras and two other
policemen rushed to the boarding house. They heard a
Complainant Cristina S. Abayan was a 19-year old freshman sound at the second floor and saw somebody running away.
student at the St. Joseph's College at Borongan, Eastern Due to darkness, they failed to apprehend appellant.
Samar. Appellant was a Philippine Constabulary (PC)
soldier.
Meanwhile, the policemen brought complainant to the
Eastern Samar Provincial Hospital where she was physically
In the early morning of March 20, 1983, complainant examined.
arrived at her boarding house. Her classmates had just
brought her home from a party (p. 44, tsn, May 23, 1984).
Dr. Ma. Luisa Abude, the resident physician who examined
Shortly after her classmates had left, she knocked at the
complainant, issued a Medical Certificate (Exhibit "A")
door of her boarding house (p. 5, ibid). All of a sudden,
which states:
somebody held her and poked a knife to her neck. She then
recognized appellant who was a frequent visitor of another
boarder (pp. 8-9, ibid). Physical Examination Patient is fairly built,
came in with loose clothing with no under-
clothes; appears in state of shock, per
She pleaded with him to release her, but he ordered her to
unambulatory.
go upstairs with him. Since the door which led to the first
floor was locked from the inside, appellant forced
complainant to use the back door leading to the second PE Findings Pertinent Findings only.
floor (p. 77, ibid). With his left arm wrapped around her
neck and his right hand poking a "balisong" to her neck, Neck- Circumscribed hematoma at Ant. neck.
appellant dragged complainant up the stairs (p. 14, ibid).
When they reached the second floor, he commanded her to Breast Well developed, conical in shape with
look for a room. With the Batangas knife still poked to her prominent nipples; linear abrasions below (L)
neck, they entered complainant's room. breast.

Upon entering the room, appellant pushed complainant Back Multiple pinpoint marks.
who hit her head on the wall. With one hand holding the
knife, appellant undressed himself. He then ordered
Extremities Abrasions at (R) and (L) knees.
complainant to take off her clothes. Scared, she took off her
T-shirt. Then he pulled off her bra, pants and panty (p.
20, ibid). Vulva No visible abrasions or marks at the
perineal area or over the
vulva, errythematous (sic) areas noted
He ordered her to lie down on the floor and then mounted
surrounding vaginal orifice, tender, hymen intact;
her. He made her hold his penis and insert it in her vagina.
no laceration fresh and old noted; examining
She followed his order as he continued to poke the knife to
finger can barely enter and with difficulty; vaginal
her. At said position, however, appellant could not fully
canal tight; no discharges noted.
penetrate her. Only a portion of his penis entered her as she
kept on moving (p. 23, ibid).
As aforementioned, the trial court convicted the accused of frustrated
rape.

Compiled by: Vim Malicay


In this appeal, the accused assigns the following errors: candor, free from suspicion (People v Alfonso, G.R. No. 72573, August
31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February
1) The trial court erred in disregarding the substantial inconsistencies 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December
in the testimonies of the witnesses; and 16, 1985, 140 SCRA 400). The victim in this case did not only state that
she was raped but she testified convincingly on how the rape was
committed. The victim's testimony from the time she knocked on the
2) The trial court erred in declaring that the crime of frustrated rape
door of the municipal building up to the time she was brought to the
was committed by the accused.
hospital was corroborated by Pat. Donceras. Interpreting the findings
as indicated in the medical certificate, Dr. Reinerio Zamora (who was
The accused assails the testimonies of the victim and Pat. Donceras presented in view of the unavailability of Dr. Abude) declared that the
because they "show remarkable and vital inconsistencies and its abrasions in the left and right knees, linear abrasions below the left
incredibility amounting to fabrication and therefore casted doubt to breast, multiple pinpoint marks, circumscribed hematoma at the
its candor, truth and validity." (p. 33, Rollo) anterior neck, erythematous area surrounding the vaginal orifice and
tender vulva, are conclusive proof of struggle against force and
A close scrutiny of the alleged inconsistencies revealed that they refer violence exerted on the victim (pp. 52-53, Rollo). The trial court even
to trivial inconsistencies which are not sufficient to blur or cast doubt inspected the boarding house and was fully satisfied that the
on the witnesses' straightforward attestations. Far from being badges narration of the scene of the incident and the conditions therein is
of fabrication, the inconsistencies in their testimonies may in fact be true (p. 54, Rollo):
justifiably considered as manifestations of truthfulness on material
points. These little deviations also confirm that the witnesses had not . . . The staircase leading to the first floor is in such a
been rehearsed. The most candid witnesses may make mistakes condition safe enough to carry the weight of both accused
sometimes but such honest lapses do not necessarily impair their and offended party without the slightest difficulty, even in
intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988, the manner as narrated. The partitions of every room were
160 SCRA 98). Rather than discredit the testimonies of the of strong materials, securedly nailed, and would not give
prosecution witnesses, discrepancies on minor details must be way even by hastily scaling the same.
viewed as adding credence and veracity to such spontaneous
testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-
A little insight into human nature is of utmost value in judging rape
41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete
complaints (People v. Torio, et al., G.R. No. L-48731, December 21,
uniformity in details would be a strong indication of untruthfulness
1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June 27,
1988, 162 SCRA 609). However, one of the alleged inconsistencies
deserves a little discussion which is, the testimony of the victim that . . . And the jump executed by the offended party from that
the accused asked her to hold and guide his penis in order to have balcony (opening) to the ground which was correctly
carnal knowledge of her. According to the accused, this is strange estimated to be less than eight (8) meters, will perhaps
because "this is the only case where an aggressor's advances is being occasion no injury to a frightened individual being pursued.
helped-out by the victim in order that there will be a consumation of Common experience will tell us that in occasion of
the act." (p. 34, Rollo). The allegation would have been meritorious conflagration especially occuring (sic) in high buildings,
had the testimony of the victim ended there. The victim testified many have been saved by jumping from some considerable
further that the accused was holding a Batangas knife during the heights without being injured. How much more for a
aggression. This is a material part of the victim's testimony which the frightened barrio girl, like the offended party to whom
accused conveniently deleted. honor appears to be more valuable than her life or limbs?
Besides, the exposure of her private parts when she sought
assistance from authorities, as corroborated, is enough
We find no cogent reason to depart from the well-settled rule that
indication that something not ordinary happened to her
the findings of fact of the trial court on the credibility of witnesses
unless she is mentally deranged. Sadly, nothing was
should be accorded the highest respect because it has the advantage
adduced to show that she was out of her mind.
of observing the demeanor of witnesses and can discern if a witness
is telling the truth (People v. Samson, G.R. No. 55520, August 25,
1989). We quote with favor the trial court's finding regarding the In a similar case (People v. Sambili G.R. No. L-44408, September 30,
testimony of the victim (p 56, Rollo): 1982, 117 SCRA 312), We ruled that:

As correctly pointed out in the memorandum for the What particularly imprints the badge of truth on her story is
People, there is not much to be desired as to the sincerity her having been rendered entirely naked by appellant and
of the offended party in her testimony before the court. Her that even in her nudity, she had to run away from the latter
answer to every question profounded (sic), under all and managed to gain sanctuary in a house owned by
circumstances, are plain and straightforward. To the Court spouses hardly known to her. All these acts she would not
she was a picture of supplication hungry and thirsty for the have done nor would these facts have occurred unless she
immediate vindication of the affront to her honor. It is was sexually assaulted in the manner she narrated.
inculcated into the mind of the Court that the accused had
wronged her; had traversed illegally her honor. The accused questions also the failure of the prosecution to present
other witnesses to corroborate the allegations in the complaint and
When a woman testifies that she has been raped, she says in effect the non-presentation of the medico-legal officer who actually
all that is necessary to show that rape was committed provided her examined the victim. Suffice it to say that it is up to the prosecution
testimony is clear and free from contradiction and her sincerity and to determine who should be presented as witnesses on the basis of

Compiled by: Vim Malicay


its own assessment of their necessity (Tugbang v. Court of Appeals, et felony by reason of some cause or accident other than his
al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, own spontaneous desistance.
May 31, 1989). As for the non-presentation of the medico-legal officer
who actually examined the victim, the trial court stated that it was by Correlating these two provisions, there is no debate that the
agreement of the parties that another physician testified inasmuch as attempted and consummated stages apply to the crime of
the medico-legal officer was no longer available. The accused did not rape.1wphi1 Our concern now is whether or not the frustrated stage
bother to contradict this statement. applies to the crime of rape.

Summing up, the arguments raised by the accused as regards the first The requisites of a frustrated felony are: (1) that the offender has
assignment of error fall flat on its face. Some were not even performed all the acts of execution which would produce the felony
substantiated and do not, therefore, merit consideration. We are and (2) that the felony is not produced due to causes independent of
convinced that the accused is guilty of rape. However, We believe the the perpetrator's will. In the leading case of United States v. Eduave,
subject matter that really calls for discussion, is whether or not the 36 Phil. 209, 212, Justice Moreland set a distinction between
accused's conviction for frustrated rape is proper. The trial court was attempted and frustrated felonies which is readily understood even
of the belief that there is no conclusive evidence of penetration of the by law students:
genital organ of the victim and thus convicted the accused of
frustrated rape only.
. . . A crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime by
The accused contends that there is no crime of frustrated rape. The overt acts, is prevented, against his will, by some outside
Solicitor General shares the same view. cause from performing all of the acts which should produce
the crime. In other words, to be an attempted crime the
Article 335 of the Revised Penal Code defines and enumerates the purpose of the offender must be thwarted by a foreign
elements of the crime of rape: force or agency which intervenes and compels him to stop
prior to the moment when he has performed all of the acts
Art. 335. When and how rape is committed. Rape is which should produce the crime as a consequence, which
committed by having carnal knowledge of a woman under acts it is his intention to perform. If he has performed all of
any of the following circumstances: the acts which should result in the consummation of the
crime and voluntarily desists from proceeding further, it can
not be an attempt. The essential element which
1. By using force or intimidation;
distinguishes attempted from frustrated felony is that, in
the latter, there is no intervention of a foreign or
2. When the woman is deprived of reason or otherwise extraneous cause or agency between the beginning of the
unconscious and commission of the crime and the moment when all of the
acts have been performed which should result in the
3. When the woman is under twelve years of age, even consummated crime; while in the former there is such
though neither of the circumstances mentioned in the two intervention and the offender does not arrive at the point
next preceding paragraphs shall be present. of performing all of the acts which should produce the
crime. He is stopped short of that point by some cause apart
xxx xxx xxx from his voluntary desistance.

Carnal knowledge is defined as the act of a man in having sexual bodily Clearly, in the crime of rape, from the moment the offender has carnal
connections with a woman (Black's Law Dictionary. Fifth Edition, p. knowledge of his victim he actually attains his purpose and, from that
193). 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
On the other hand, Article 6 of the same Code provides: crime. Thus, the felony is consummated. In a long line of cases (People
v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v.
Art. 6. Consummated, frustrated, and attempted felonies. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v.
Consummated felonies as well as those which are Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have
frustrated and attempted, are punishable. set the uniform rule that for the consummation of rape, perfect
penetration is not essential. Any penetration of the female organ by
A felony is consummated when all the elements necessary the male organ is sufficient. Entry of the labia or lips of the female
for its execution and accomplishment are present; and it is organ, without rupture of the hymen or laceration of the vagina is
frustrated when the offender performs all the acts of sufficient to warrant conviction. Necessarily, rape is attempted if
execution which would produce the felony as a there is no penetration of the female organ (People v. Tayaba, 62 Phil.
consequence but which, nevertheless, do not produce it by 559 People v. Rabadan et al., 53 Phil. 694; United States v. Garcia: 9
reason of causes independent of the will of the perpetrator. 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
There is an attempt when the offender commences the
execution of the crime of rape and jurisprudence on the matter, it is
commission of a felony directly by overt acts, and does not
hardly conceivable how the frustrated stage in rape can ever be
perform all the acts of execution which should produce the
committed.

Compiled by: Vim Malicay


Of course, We are aware of our earlier pronouncement in the case of A I inserted his penis into my vagina.
People v. Eria 50 Phil. 998 [1927] where We found the offender
guilty of frustrated rape there being no conclusive evidence of Q And was it inserted?
penetration of the genital organ of the offended party. However, it
appears that this is a "stray" decision inasmuch as it has not been
A Yes only a little.
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 The fact is that in a prosecution for rape, the accused may be
(dated March 29, 1965) which provides, in its penultimate paragraph, convicted even on the sole basis of the victim's testimony if credible
for the penalty of death when the rape is attempted or frustrated and (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65;
a homicide is committed by reason or on the occasion thereof. We People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA
are of the opinion that this particular provision on frustrated rape is a 569; People v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987,
dead provision. The Eria case, supra, might have prompted the law- 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely
making body to include the crime of frustrated rape in the corroborative and is not an indispensable element in the prosecution
amendments introduced by said laws. of this case (People v. Alfonso, supra).

In concluding that there is no conclusive evidence of penetration of Although the second assignment of error is meritorious, it will not tilt
the genital organ of the victim, the trial court relied on the testimony the scale in favor of the accused because after a thorough review of
of Dr. Zamora when he "categorically declared that the findings in the the records, We find the evidence sufficient to prove his guilt beyond
vulva does not give a concrete disclosure of penetration. As a matter reasonable doubt of the crime of consummated rape.
of fact, he tossed back to the offended party the answer as to whether
or not there actually was penetration." (p. 53, Rollo) Furthermore, the Article 335, paragraph 3, of the Revised Penal Code provides that
trial court stated (p. 57, Rollo): whenever the crime of rape is committed with the use of a deadly
weapon, the penalty shall be reclusion perpetua to death. The trial
. . . It cannot be insensible to the findings in the medical court appreciated the aggravating circumstances of dwelling and
certificate (Exhibit "A") as interpreted by Dr. Reinerio nighttime. Thus, the proper imposable penalty is death. In view,
Zamora and the equivocal declaration of the latter of however, of Article 111, Section 19(1) of the 1987 Constitution and
uncertainty whether there was penetration or not. It is true, Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February
and the Court is not oblivious, that conviction for rape could 9, 1989, that the cited Constitutional provision did not declare the
proceed from the uncorroborated testimony of the abolition of the death penalty but merely prohibits the imposition of
offended party and that a medical certificate is not the death penalty, the Court has since February 2, 1987 not imposed
necessary (People v. Royeras People v. Orteza, 6 SCRA 109, the death penalty whenever it was called for under the Revised Penal
113). But the citations the people relied upon cannot be Code but instead reduced the same to reclusion perpetua (People v.
applicable to the instant case. The testimony of the Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion
offended party is at variance with the medical certificate. As perpetua, being a single indivisible penalty under Article 335,
such, a very disturbing doubt has surfaced in the mind of paragraph 3, is imposed regardless of any mitigating or aggravating
the court. It should be stressed that in cases of rape where circumstances (in relation to Article 63, paragraph 1, Revised Penal
there is a positive testimony and a medical certificate, both Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA
should in all respect, compliment each other, for otherwise 615; People v. Manzano, G.R. No. L38449, November 25, 1982, 118
to rely on the testimony alone in utter disregard of the SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA
manifest variance in the medical certificate, would be 702).
productive of mischievous results.
ACCORDINGLY, the decision of the Regional Trial Court is hereby
The alleged variance between the testimony of the victim and the MODIFIED. The accused Ceilito Orita is hereby found guilty beyond
medical certificate does not exist. On the contrary, it is stated in the reasonable doubt of the crime of rape and sentenced to reclusion
medical certificate that the vulva was erythematous (which means perpetua as well as to indemnify the victim in the amount of
marked by abnormal redness of the skin due to capillary congestion, P30,000.00.
as in inflammation) and tender. It bears emphasis that Dr. Zamora did
not rule out penetration of the genital organ of the victim. He merely SO ORDERED.
testified that there was uncertainty whether or not there was
penetration. Anent this testimony, the victim positively testified that Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.
there was penetration, even if only partially (pp. 302, 304, t.s.n., May
23, 1984):
PEOPLE VS LABIAGA
(701 SCRA 214)
Q Was the penis inserted on your vagina?

A It entered but only a portion of it. CARPIO, J.:

xxx xxx xxx The Case

Q What do you mean when you said comply, or what act do Before the Court is an appeal assailing the Decision1 dated 18 October
you referred (sic) to, when you said comply? 2011 of the Court of Appeals-Cebu (CA-Cebu) in CA-G.R. CEB CR-HC

Compiled by: Vim Malicay


No. 01000. The CA-Cebu affirmed with modification the Joint Judy and Glenelyn Conde, were in their home at Barangay Malayu-an,
Decision2 dated 10 March 2008 of the Regional Trial Court of Barotac Ajuy, Iloilo. Thereafter, Gregorio stepped outside. Glenelyn was in
Viejo, Iloilo, Branch 66 (RTC), in Criminal Case No. 2001-155) their store, which was part of their house.
convicting Regie Labiaga alias "Banok" (appellant) of murder and
Criminal Case No. 2002-1777 convicting appellant of frustrated Shortly thereafter, appellant, who was approximately five meters
murder. away from Gregorio, shot the latter. Gregorio called Judy for help.
When Judy and Glenelyn rushed to Gregorios aid, appellant shot Judy
The Facts in the abdomen. The two other accused were standing behind the
appellant. Appellant said, "she is already dead," and the three fled the
In Criminal Case No. 2001-1555, appellant, together with a certain crime scene.
Alias Balatong Barcenas and Cristy Demapanag (Demapanag), was
charged with Murder with the Use of Unlicensed Firearm under an Gregorio and Judy were rushed to the Sara District Hospital. Judy was
Information3 which reads: pronounced dead on arrival while Gregorio made a full recovery after
treatment of his gunshot wound.
That on or about December 23, 2000 in the Municipality of Ajuy,
Province of Iloilo, Philippines, and within the jurisdiction of this Dr. Jeremiah Obaana conducted the autopsy of Judy. His report
Honorable Court, the above-named accused, conspiring, stated that her death was caused by "cardiopulmonary arrest
confederating and helping one another, armed with unlicensed secondary to Cardiac Tamponade due to gunshot wound."5
firearm, with deliberate intent and decided purpose to kill, by means
of treachery and with evident premeditation, did then and there Dr. Jose Edwin Figura, on the other hand, examined Gregorio after the
willfully, unlawfully and feloniously attack, assault and shoot JUDY incident. He found that Gregorio sustained a gunshot wound
CONDE alias JOJO with said unlicensed firearm, hitting her and measuring one centimeter in diameter in his right forearm and
inflicting gunshot wounds on the different parts of her breast which "abrasion wounds hematoma formation" in his right shoulder.6
caused her death thereafter.
Version of the defense
CONTRARY TO LAW.
Appellant admitted that he was present during the shooting incident
The same individuals were charged with Frustrated Murder with the on 23 December 2000. He claimed, however, that he acted in self-
Use of Unlicensed Firearm in Criminal Case No. 2002-1777, under an defense. Gregorio, armed with a shotgun, challenged him to a fight.
Information4 which states: He attempted to shoot appellant, but the shotgun jammed. Appellant
tried to wrest the shotgun from Gregorio, and during the struggle, the
That on or about December 23, 2000 in the Municipality of Ajuy, shotgun fired. He claimed that he did not know if anyone was hit by
Province of Iloilo, Philippines, and within the jurisdiction of this that gunshot.
Honorable Court, the above-named accused, conspiring,
confederating and helping one another, armed with unlicensed Demapanag claimed that at the time of the shooting, he was in D&D
firearm, with deliberate intent and decided purpose to kill, by means Ricemill, which is approximately 14 kilometers away from the crime
of treachery and with evident premeditation, did then and there scene. This was corroborated by Frederick, Demapanags brother.
willfully, unlawfully and feloniously attack, assault and shoot Gregorio
Conde with said unlicensed firearm, hitting him on the posterior
The Ruling of the RTC
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 In its Joint Decision, the RTC acquitted Demapanag due to
reason of causes independent of the will of the accused; that is by the insufficiency of evidence. Appellant, however, was convicted of
timely and able medical assistance rendered to said Gregorio Conde murder and frustrated murder. The dispositive portion of the Joint
which prevented his death. Decision reads:

CONTRARY TO LAW. 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
Alias Balatong Barcenas remained at large. Both appellant and
sentences the said accused to reclusion perpetua together with
Demapanag pled not guilty in both cases and joint trial ensued
accessory penalty provided by law, to pay the heirs of Judy
thereafter. The prosecution presented four witnesses: Gregorio
Conde P50,000.00 as civil indemnity, without subsidiary
Conde, the victim in Criminal Case No. 2002-1777; Glenelyn Conde,
imprisonment in case of insolvency and to pay the costs.
his daughter; and Dr. Jeremiah Obaana and Dr. Edwin Jose Figura,
the physicians at the Sara District Hospital where the victims were
admitted. The defense, on the other hand, presented appellant, In Crim. Case No. 2002-1777, the court finds accused Regie Labiaga @
Demapanag, and the latters brother, Frederick. "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
Version of the prosecution
minimum to ten (10) years and one (1) day of reclusion temporal as
maximum, together with the necessary penalty provided by law and
The prosecutions version of the facts is as follows: At around 7:00 without subsidiary imprisonment in case of insolvency and to pay the
p.m. on 23 December 2000, Gregorio Conde, and his two daughters, costs.
Compiled by: Vim Malicay
Accuseds entire period of detention shall be deducted from the entire period of detention shall be deducted from the penalty herein
penalty herein imposed when the accused serves his sentence. imposed when the accused serves his sentence.

For lack of sufficient evidence, accused Cristy Demapanag is acquitted For lack of sufficient evidence, accused Cristy Demapanag is acquitted
of the crimes charged in both cases. The Provincial Warden, Iloilo of the crime(s) charged in both cases. The Provincial Warden, Iloilo
Rehabilitation Center, Pototan, Iloilo is hereby directed to release Rehabilitation Center, Pototan, Iloilo is hereby directed to release
accused Cristy Demapanag from custody unless he is being held for accused Cristy Demapanag from custody unless he is being held for
some other valid or lawful cause. some other valid or lawful cause.

SO ORDERED.7 SO ORDERED.

The Ruling of the CA-Cebu SO ORDERED.10

Appellant impugned the RTCs Joint Decision, claiming that "the RTC Hence, this appeal.
gravely erred in convicting the appellant of the crime charged despite
failure of the prosecution to prove his guilt beyond reasonable The Ruling of the Court
doubt."8 The CA-Cebu, however, upheld the conviction for murder
and frustrated murder.
Our review of the records of Criminal Case No. 2002-1777 convinces
us that appellant is guilty of attempted murder and not frustrated
The CA-Cebu also modified the Joint Decision by imposing the murder. We uphold appellants conviction in Criminal Case No. 2001-
payment of moral and exemplary damages in both criminal cases. The 1555 for murder, but modify the civil indemnity awarded in Criminal
CA-Cebu made a distinction between the civil indemnity awarded by Case No. 2001-1555, as well as the award of moral and exemplary
the RTC in Criminal Case No. 2001-1555 and the moral damages. The damages in both cases.
CA-Cebu pointed out that:
Justifying circumstance of self-defense
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.
Appellants feeble attempt to invoke self-defense in both cases was
Nonetheless, the trial court should have awarded both, considering
correctly rejected by the RTC and the CA-Cebu. This Court, in People
that they are two different kinds of damages. For death indemnity,
v. Damitan,11 explained that:
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 When the accused admits killing a person but pleads self-defense, the
be assuaged by the award of appropriate and reasonable moral burden of evidence shifts to him to prove by clear and convincing
damages."9 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
The dispositive portion of the Decision of the CA-Cebu reads:
(2) principal witnesses of the prosecution.12

WHEREFORE, premises considered, the appeal is DENIED. The Joint


Appellants failure to present any other eyewitness to corroborate his
Decision dated March 10, 2008 of the Regional Trial Court, Branch 66,
testimony and his unconvincing demonstration of the struggle
in Barotac Viejo, Iloilo is AFFIRMED with MODIFICATIONS. The
between him and Gregorio before the RTC lead us to reject his claim
dispositive portion of the said Joint Decision should now read as
of self-defense. Also, as correctly pointed out by the CA-Cebu,
follows:
appellants theory of self-defense is belied by the fact that:

WHEREFORE, in light of the foregoing, the court hereby finds the


x x x The appellant did not even bother to report to the police
accused Regie Labiaga @ "Banok" GUILTY beyond reasonable doubt
Gregorios alleged unlawful aggression and that it was Gregorio who
of the crime of Murder in Crim. Case No. 2001-1555 and hereby
owned the gun, as appellant claimed. And, when appellant was
sentences the said accused to reclusion perpetua together with the
arrested the following morning, he did not also inform the police that
accessory penalty provided by law, to pay the heirs of Judy
what happened to Gregorio was merely accidental.13
Conde P50,000.00 as civil 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. Appellants claim that he did not know whether Gregorio was hit
when the shotgun accidentally fired is also implausible.
In Crim. Case No. 2002-1777 the court finds accused Regie Labiaga @
"Banok" GUILTY beyond reasonable doubt of the crime of Frustrated In contrast, we find that the Condes account of the incident is
Murder and hereby sentences the said accused to suffer the persuasive. Both the CA-Cebu and the RTC found that the testimonies
indeterminate penalty of eight (8) years and one (1) day of prision of the Condes were credible and presented in a clear and convincing
mayor, as minimum, to fourteen (14) years and eight (8) months of manner. This Court has consistently put much weight on the trial
reclusion temporal, as maximum, together with the accessory penalty courts assessment of the credibility of witnesses, especially when
provided by law, to pay Gregorio Conde P25,000.00 as moral damages affirmed by the appellate court.14 In People v. Mangune,15 we stated
and P25,000.00 as exemplary damages, without subsidiary that:
imprisonment in case of insolvency and to pay the costs Accused(s)

Compiled by: Vim Malicay


It is well settled that the evaluation of the credibility of witnesses and 2.) In a frustrated felony, the reason for the non-
their testimonies is a matter best undertaken by the trial court accomplishment of the crime is some cause independent of
because of its unique opportunity to observe the witnesses first hand the will of the perpetrator; on the other hand, in an
and to note their demeanor, conduct, and attitude under grilling attempted felony, the reason for the non-fulfillment of the
examination. These are important in determining the truthfulness of crime is a cause or accident other than the offenders own
witnesses and in unearthing the truth, especially in the face of spontaneous desistance.20
conflicting testimonies. For, indeed, the emphasis, gesture, and
inflection of the voice are potent aids in ascertaining the witness In frustrated murder, there must be evidence showing that the wound
credibility, and the trial court has the opportunity to take advantage would have been fatal were it not for timely medical intervention.21 If
of these aids.16 the evidence fails to convince the court that the wound sustained
would have caused the victims death without timely medical
Since the conclusions made by the RTC regarding the credibility of the attention, the accused should be convicted of attempted murder and
witnesses were not tainted with arbitrariness or oversight or not frustrated murder.
misapprehension of relevant facts, the same must be sustained by
this Court. In the instant case, it does not appear that the wound sustained by
Gregorio Conde was mortal. This was admitted by Dr. Edwin Figura,
Attempted and Frustrated Murder who examined Gregorio after the shooting incident:

Treachery was correctly appreciated by the RTC and CA-Cebu. A Prosecutor Con-El:
treacherous attack is one in which the victim was not afforded any
opportunity to defend himself or resist the attack.17 The existence of Q: When you examined the person of Gregorio Conde, can you tell
treachery is not solely determined by the type of weapon used. If it the court what was the situation of the patient when you examined
appears that the weapon was deliberately chosen to insure the him?
execution of the crime, and to render the victim defenseless, then
treachery may be properly appreciated against the accused.18
A: He has a gunshot wound, but the patient was actually ambulatory
and not in distress.
In the instant case, the Condes were unarmed when they were shot
by appellant. The use of a 12-gauge shotgun against two unarmed
xxxx
victims is undoubtedly treacherous, as it denies the victims the
chance to fend off the offender.
Court (to the witness)
We note, however, that appellant should be convicted of attempted
murder, and not frustrated murder in Criminal Case No. 2002-1777. Q: The nature of these injuries, not serious?

Article 6 of the Revised Penal Code defines the stages in the A: Yes, Your Honor, not serious. He has also abrasion wounds
commission of felonies: hematoma formation at the anterior aspect right shoulder.22

Art. 6. Consummated, frustrated, and attempted felonies. Since Gregorios gunshot wound was not mortal, we hold that
Consummated felonies as well as those which are frustrated and appellant should be convicted of attempted murder and not
attempted, are punishable. 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
A felony is consummated when all the elements necessary for its
248, that is, prision correccional in its maximum period to prision
execution and accomplishment are present; and it is frustrated when
mayor in its medium period. Section 1 of the Indeterminate Sentence
the offender performs all the acts of execution which would produce
Law provides:
the felony as a consequence but which, nevertheless, do not produce
it by reason of causes independent of the will of the perpetrator.
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
There is an attempt when the offender commences the commission
the attending circumstances, could be properly imposed under the
of a felony directly by overt acts, and does not perform all the acts of
rules of the Revised Penal Code, and the minimum which shall be
execution which should produce the felony by reason of some cause
within the range of the penalty next lower to that prescribed by the
or accident other than his own spontaneous desistance.
Code for the offense.1wphi1

In Serrano v. People,19 we distinguished a frustrated felony from an


Thus, appellant should serve an indeterminate sentence ranging from
attempted felony in this manner:
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
1.) In a frustrated felony, the offender has performed all the mayor in its medium period.
acts of execution which should produce the felony as a
consequence; whereas in an attempted felony, the offender
Award of damages
merely commences the commission of a felony directly by
overt acts and does not perform all the acts of execution.

Compiled by: Vim Malicay


In light of recent jurisprudence, we deem it proper to increase the The SB culled the facts6 this way:
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 On June 21, 1978, COA Regional Director Sofronio Flores Jr. of COA
civil indemnity23 and P30,000.00 as exemplary damages.24 The award Regional Office No. 7, directed auditors Victoria C. Quejada and Ruth
of P50,000.00 as moral damages in the foregoing case is sustained. I. Paredes to verify and submit a report on sub-allotment advises
Appellant is also liable to pay P40,000.00 as moral damages issued to various highway engineering districts in Cebu, particularly,
and P30,000.00 as exemplary damages, in relation to Criminal Case the Cebu City, Cebu 1st, Cebu 2nd and the Mandaue City Highway
No. 2002-1777. Engineering Districts. Complying with the directive, they conducted
an investigation and in due course submitted their findings. Their
WHEREFORE, we AFFIRM the 18 October 2011 Decision of the Court report (Exhibit C) confirmed the issuance of fake Letters of Advice of
of Appeals-Cebu in CA-G.R. CEB CR-HC No. 01000 with Allotments (LAAs) in the districts mentioned. They discovered that
MODIFICATIONS. In Criminal Case No. 2002-1777, we find that two sets of LAAs were received by the districts. One set consists of
appellant Regie Labiaga is GUILTY of Attempted Murder and shall regular LAAs which clearly indicated the covering sub-allotment
suffer an indeterminate sentence ranging from two (2) years, four (4) advices and were duly signed by Mrs. Angelina Escao, Finance Officer
months and one (1) day of prision correccional as minimum, to eight of the MPH Regional Office. The LAAs were numbered in proper
(8) years and one (1) day of prision mayor as maximum, and sequence and duly recorded in the logbook of the Accounting, Budget
pay P40,000.00 as moral damages and P30,000.00 as exemplary and Finance Division. The other set consists of fake LAAs which do not
damages. In Criminal Case No. 2001-1555, appellant shall indicate the covering sub-allotment advice and were signed by Chief
pay P75,000.00 as civil indemnity, P50,000.00 as moral damages, Accountant Rolando Mangubat and Engr. Jose Bagasao, instead of the
and P30,000.00 as exemplary damages. Finance Officer. These fake LAAs were not numbered in proper
sequence; they were mostly undated and were sometimes
SO ORDERED. duplicated. They could not be traced to the files and records of the
Accounting, Budget and Finance Division. The accounting entry for the
disbursements made on the fake LAAs was debited to the Accounts-
Article 7- When light felonies punishable
Payable Unliquidated Obligations (8-81-400) and credited to the
Article 8. Conspiracy- Levels of Conspiracy Checking Account with the Bureau of Treasury (8-70-790).
FERNAN JR. ET.AL. VS PEOPLE Nevertheless, the expenditures were taken from obligations of the
(531 SCRA 1[2 STRUCTURES OF MULTIPLE CONSPIRACIES) current year (1978) because all the supporting papers of the payment
vouchers were dated in that year. The entries in the journal vouchers
filed with the MPH Regional Office were adjusted every month to 8-
VELASCO, JR., J.:
81-400 (unliquidated or prior years obligation), 8-83-000 (liquidated
or current year obligations) and 8-70-700 (Treasury/Agency Account).
The instant petition under Rule 45 originated from 119 criminal All of these were approved for the Finance Officer by Chief
cases2 filed with the Sandiganbayan (SB) involving no less than 36 Accountant Rolando Mangubat. Mangubat, however, had no
former officials and employees of the then Ministry of Public authority to approve them because since October 1977, he had
Highways (MPH) and several suppliers of construction materials for already been detailed to the MPH Central Office. There were
defalcation of public funds arising from numerous transactions in the indications that the practice had been going on for years.
Cebu First Highway Engineering District in 1977. Because of the sheer
magnitude of the illegal transactions, the number of people involved,
xxxx
and the ingenious scheme employed in defrauding the government,
this infamous 86 million highway scam has few parallels in the annals
of crime in the country. Due to these serious irregularities, then President Marcos created a
Special Cabinet Committee on MPH Region VII "Ghost Projects
Anomalies" which in turn organized a Special Task Force composed of
The Case
representatives from the Finance Ministry Intelligence Bureau (FMIB),
National Bureau of Investigation (NBI), the Bureau of Treasury and the
Petitioners Simon Fernan, Jr. and Expedito Torrevillas seek the Commission on Audit. The mission of the task force was to conduct a
reversal of the December 4, 1997 Decision3 of the SB in the wider and more extended investigation in all the fifteen (15) highway
consolidated Criminal Case Nos.,4 all entitled People of the Philippines engineering districts of MPH Region VII, including the Cebu First
v. Rocilo Neis, et al., finding them guilty of multiple instances of estafa Highway Engineering District, the 1977 questionable disbursements
through falsification of public documents;5 and the subsequent of which are the subject matter of these cases.
August 29, 2000 SB Resolution which denied their separate pleas for
reconsideration.
xxxx

Petitioner Fernan, Jr. disputes the adverse judgment in only six (6)
For a better understanding of these highways cases, the flow in the
cases, namely: 2879, 2880, 2881, 2885, 2914, and 2918; while
release of funds to the various agencies of the government and the
petitioner Torrevillas seeks exoneration in nine (9) cases, namely:
control devices set up for disbursement and accounting of public
2855, 2856, 2858, 2859, 2909, 2910, 2914, 2919, and 2932.
funds should first be explained. A chart (Exhibit B) graphically shows
the flow of allotments from the Ministry down to the district level.
Both petitioners assert their strong belief that their guilt has not been
established beyond reasonable doubt and, hence, exculpation is in
On the basis of appropriation laws and upon request made by heads
order.
of agencies, the then Ministry of Budget released funds to the various
agencies of the government by means of an Advice of Allotment (AA)
The Facts
Compiled by: Vim Malicay
and a Cash Disbursement Ceiling (CDC). The Advice of Allotment is an xxxx
authority for the agency to incur obligations within a specified
amount in accordance with approved programs and projects. The The elaborate accounting procedure described above with its system
Cash Disbursement Ceiling is an authority to pay. Upon receipt of the of controls was set up obviously to make sure that government funds
AA and CDC from the Budget, the Central Office of the agency are properly released, disbursed and accounted for. In the hands of
prepares the Sub-Advice of Allotment (SAA) and the Advice of Cash untrustworthy guardians of the public purse, however, it proved to be
Disbursement Ceiling (ACDC) for each region, in accordance with the inadequate. There were loopholes which an unscrupulous person
disbursement allotment. These are sent to the Regional Office. Upon adroit in government accounting could take advantage of to
receipt, the Budget Officer of the region prepares the corresponding surreptitiously draw enormous sums of money from the government.
Letters of Advice of Allotment (LAA) which are forwarded to the
various districts of the region (The amount that goes to each district
Sometime in February, 1977, accused Rolando Mangubat (Chief
is already indicated in the Advice of Allotment). Only upon receipt of
Accountant), Delia Preagido (Accountant III), Jose Sayson (Budget
the LAA is the district office authorized to incur obligations.
Examiner), and Edgardo Cruz (Clerk II), all of MPH Region VII, met at
the Town and Country Restaurant in Cebu City and hatched an
Now, how are funds released by the Regional Office to the different ingenious plan to siphon off large sums of money from government
districts and ultimately paid out to contractors, the District Engineer coffers. Mangubat had found a way to withdraw government money
submits to the Regional Director a request for allotment in through the use of fake LAAs, vouchers and other documents and to
accordance with the program of work prepared by the former. This conceal traces thereof with the connivance of other government
procedure starts with the preparation of a Requisition for Supplies officials and employees. In fine, the fraudulent scheme involved the
and Equipment (RSE) in the District Office by the Senior Civil Engineer, splitting of LAAs and RSEs so that the amount covered by each general
approved by the District Engineer, and signed by the Chief Accountant voucher is less than P50,000.00 to do away with the approval of the
of the Highway Engineering District, who certifies as to the availability Regional Auditor; the charging of disbursements to unliquidated
of funds. The RSE is then submitted to the Regional Director for obligations due the previous year to provide the supposed source of
approval. Once it is approved, a Request for Obligation of Allotment funds; and the manipulation of the books of account by negation or
(ROA) is prepared by the Chief Accountant of the district Senior Civil adjustment, i.e., the cancellation of checks through journal vouchers
Engineer. The ROA signifies that a certain amount of district funds has to conceal disbursements in excess of the cash disbursement ceiling
been set aside or earmarked for the particular expenditures stated in (CDC), so as not to reflect such disbursements in the trial balances
the RSE. On the basis of the ROA, the District Office puts up submitted to the Regional Office.
advertisements, [conducts] biddings, makes awards and prepares
purchase orders which are served on the winning bidder. The District
Mangubat enticed Preagido, Cruz and Sayson to join him. All three
Office also prepares a summary of deliveries with the corresponding
agreed to help him carry out his plan. They typed the fake LAAs during
delivery receipts and tally sheets, conducts inspection and prepares
Saturdays. Cruz and Sayson also took charge of negotiating or selling
the General Voucher for the payment of deliveries. Once the General
the fake LAAs to contractors at 26% of the gross amount. Preagido on
Voucher (GV) has been prepared, the corresponding check in the form
her part manipulated the General Ledger, Journal Vouchers and
of a Treasury Check Account for Agency (TCAA) is drawn by the
General Journal thru negative entries to conceal the illegal
Disbursing Officer and finally released to the contractor.
disbursements. Thus, in the initial report of the auditors (Exhibit D), it
was discovered that the doubtful allotments and other anomalies
At the end of every month, the Report of Checks Issued by Deputized escaped notice due to the following manipulations:
Disbursing Officer (RCIDD) is prepared, listing all the checks issued
during that period. The RCIDDO is submitted to the accounting
"The letter-advices covering such allotments (LAA) were generally not
division of the region. Upon receipt of the RCIDDO, the Regional
signed by the Finance Officer nor recorded in the books of accounts.
Office draws a journal voucher, debiting the account obligation
Disbursements made on the basis of these fake LAAs were charged to
(liquidated or unliquidated obligation, whichever is applicable), and
the unliquidated Obligations (Account 8-81-400), although the
crediting the account Treasury Check Account for Agency (TCAA). The
obligations being paid were not among those certified to the
RCIDDO is recorded in the Journal of Checks Issued by Deputized
unliquidated obligations (Account 8-81-400) at the end of the
Disbursing Officers (JCIDDO) and posted in the general ledger at the
preceding year. To conceal the overcharges to authorized allotments,
end of each month.
account 8-81-400 and the excess of checks issued over authorized
cash disbursements ceiling, adjustments were prepared monthly
Simultaneous with the flow of the RCIDDO, the ROAs are summarized through journal vouchers to take up the negative debit to Account 8-
in the Reports of Obligations Incurred (ROI) in the District Office, once 81-400 and a negative credit to the Treasury Checking Account for
or twice a month, depending upon the volume of transactions. The Agencies Account 8-70-790. These journal vouchers in effect
ROI is then submitted to the Regional Office. Upon receipt of the ROI, cancelled the previous entry to record the disbursements made on
the accountant of the Regional Office draws a journal voucher taking the basis of the fake LAAs. Thus, the affected accounts (Accounts 8-
up the following entry: debiting the appropriation allotted (0-90-000) 81-400 and 8-70-790), as appearing in the trial balance would not
and crediting the obligation incurred (0-82-000). This is recorded in show the irregularity. The checks, however, were actually issued."
the general voucher and posted to the general ledger at the end of
each month. The journal voucher is prepared, closing the account 8-
The four formed the nucleus of the nefarious conspiracy. Other
70-709 to 8-71-100-199 at the end of each month. It is also recorded
government employees, tempted by the prospect of earning big
and posted to the general ledger. At the end of the month, the
money, allowed their names to be used and signed spurious
balances of each account shown in the general ledger are summarized
documents.
in a statement called the trial balance. The trial balance is submitted
to the MPH Central Office in Manila where it is consolidated with
other trial balances submitted by other regional offices.

Compiled by: Vim Malicay


Although the anomalies had been going on for sometime (February bridges in the district, as found out by the NBI, did not show any
1977 to June 1978), the PNB and Bureau of Treasury had no inkling improvement. As testified to by several barangay captains, the road
about it until the NBI busted the illegal operations. (Some of the maintenance consisted merely of spreading anapog or limestone on
recipients of the stolen funds spent lavishly and bought two cars at a potholes of the national highway.
time). The reason for this is that, at that time, the PNB and Bureau of
Treasury were not furnished copy of the mother CDC and the local Obviously, the vouchers for payments of alleged maintenance of
branch of the PNB did not receive independent advice from the PNB roads and bridges in the additional amount of P3,839,810.74 were
head office in Manila. There were no deposits of money made with prepared for no other purpose than to siphon the said amount from
the PNB from which withdrawals could be charged. Only CDCs were the government coffer into the pockets of some officials and
presented to it, and not knowing that some of the CDCs were fake, employees of Region VII and the Cebu First HED, as well as the
the PNB branch paid out the checks drawn against them. The bank suppliers and contractors who conspired and confederated with
had also no way of knowing what amount was appropriated for the them.
district; consequently, it did not know if the limit had already been
exceeded. Only an insider steep in government accounting, auditing
The nuclei of this massive conspiracy, namely: Rolando Mangubat,
and banking procedures, particularly their flaws and loopholes, could
Jose Sayson, and Edgardo Cruz, all of MPH Region VII, were found
have pulled off such an ingenious and audacious plan.
guilty in all 119 counts and were accordingly sentenced by the SB. The
other conniver, Delia Preagido, after being found guilty in some of the
xxxx cases, became a state witness in the remainder. On the basis of her
testimony and pertinent documents, Informations were filed,
Focusing our attention now on the anomalies committed in the Cebu convictions were obtained, and criminal penalties were imposed on
First District Engineering District, hereinafter referred to as the Cebu the rest of the accused.
First HED for brevity, the Court finds that the same pattern of fraud
employed in the other highway engineering districts in MPH Region On the other hand, petitioners were both Civil Engineers of the MPH
VII was followed. The Cebu First HED received from Region VII thirty- assigned to the Cebu First Highway Engineering District. Petitioner
four Letters of Advice of Allotment (LAAs) in the total sum of Fernan, Jr. was included among the accused in Criminal Case Nos.
P4,734,336.50 and twenty-nine (29) corresponding Sub-Advices of 2879, 2880, 2881, 2885, 2914, and 2918 allegedly for having signed
Cash Disbursement Ceiling (SACDCs), amounting to P5,160,677.04 for six (6) tally sheets or statements of deliveries of materials, used as
the period January 1, 1977 to December 31, 1977. But apart from this, bases for the preparation of the corresponding number of general
the Cebu First HED appears to have also received for the same period vouchers. Fund releases were made to the suppliers, contractors, and
another set of eighty-four (84) LAAs amounting to P4,680,694.76 payees based on these general vouchers.
which however, could not be traced to any Sub-Advice of Allotment
(SAA) or matched to the Advices of Cash Disbursement Ceiling
The Information against Fernan, Jr. in SB Criminal Case No. 2879 reads
(ACDCs) received from the MPH and Regional Office. This is highly
as follows:
irregular and not in consonance with accounting procedures.

The undersigned accuses Rocilo Neis, Rolando Mangubat, Adventor


It was also made to appear that the payments were made for alleged
Fernandez, Angelina Escao, Delia Preagido, Camilo de Letran,
prior years obligations and chargeable to Account 8-81-400,
Manuel de Veyra, Heracleo Faelnar, Basilisa Galvan, Matilde Jabalde,
obviously because, they were not properly funded. Furthermore, the
Josefina Luna, Jose Sayson, Edgardo Cruz, Leonila del Rosario,
list of projects in Region VII for 1977 showed that Cebu First HED
Engracia Escobar, Abelardo Cardona, Leonardo Tordecilla, Agripino
completed rehabilitation and/or improvement of roads and bridges in
Pagdanganan, Ramon Quirante, Mariano Montera, Mariano Jarina,
its districts from February to May 1977, with expenditures amounting
Leo Villagonzalo, Asterio Buqueron, Zosimo Mendez, Simon Fernan,
to P613,812.00. On the other hand, the expenditures for barangay
Jr. and Juliana de los Angeles for estafa thru falsification of public and
roads in the same district in 1977 amounted to P140,692.00, and
commercial documents, committed as follows:
these were all completed within the period from November to
December, 1977. These completed projects were properly funded by
legitimate LAAs and CDCs in the total amount of only P754,504.00. That on, about and during the period from December 1, 1976 up to
However, an additional amount of P3,839,810.74 was spent by the January 31, 1977, both dates inclusive, in the City of Cebu and in Cebu
Cebu First HED for maintenance of roads and bridges for the same Province, and within the jurisdiction of this Honorable Court, the
year (1977) but the same could not be traced to any authoritative accused Rocilo Neis, Assistant District Engineer of Cebu HED I;
document coming from the MPH. Rolando Mangubat, the Chief Accountant of Region VII of the Ministry
of Public Highways and Adventor Fernandez, Regional Highway
Engineer of same Regional Office, conniving with each other to
xxxx
defraud the Philippine Government with the indispensable
cooperation and assistance of Angelina Escao, Finance Officer of
A total of 132 General Vouchers, emanating from fake LAAs and Region VII of the Ministry of Public Highways; Delia Preagido,
ACDCs, were traced back to Rolando Mangubat, Regional Accountant Assistant Chief Accountant of same Regional Office; Camilo de Letran,
of Region VII and Adventor Fernandez, Regional Highway Engineer, Chief Accountant of Cebu I HED; Manuel de Veyra, Regional Director,
also of Region VII. Those LAAs and ACDCs became the vehicles in the MPH, Region VII; Heracleo Faelnar, then Assistant Director MPH
disbursement of funds amounting to P3,839,810.74, through the Region VII; Basilisa Galvan, Budget Officer, MPH, Region VII; Matilde
vouchers purportedly issued for the purchase and delivery of the Jabalde, Supervising Accounting Clerk, MPH, Region VII; Josefina
aforementioned materials allegedly used for the maintenance and Luna, Accountant II, MPH, Region VII; Jose Sayson, Budget Examiner,
repair of the national highways within the Cebu First HED. Despite the MPH, Region VII, Edgardo Cruz, Accountant I, MPH, Region VII; Leonila
enormous additional expenditure of P3,839,810.74, the roads and del Rosario, Chief Finance and Management Service, MPH, Central

Compiled by: Vim Malicay


Office; Engracia Escobar, Chief Accountant, MPH, Central Office; their personal needs, to the damage and prejudice of the Philippine
Abelardo Cardona, Assistant Chief Accountant, MPH, Central Office; Government in the total amount of TWENTY EIGHT THOUSAND PESOS
Leonardo Tordecilla, Supervising Accountant, MPH, Central Office; (P28,000.00), Philippine Currency.
Agripino Pagdanganan, Budget Officer III, MPH, Central Office; Ramon
Quirante, Property Custodian of Cebu I HED; Mariano Montera, Senior CONTRARY TO LAW.
Civil Engineer Engineer of Cebu I HED; Mariano Jarina, Clerk in the
Property Division of Cebu I HED; Leo Villagonzalo, Auditors Aide of
The Informations in the six (6) cases involving Fernan, Jr. were
Cebu I HED; Zosimo Mendez, Auditor of Cebu I HED; Asterio
essentially identical save for the details as highlighted in boldface
Buqueron, Administrative Officer of Cebu I HED; Simon Fernan, Jr.,
above. For ease of reference, Fernan, Jr.s criminal cases are detailed
Civil Engineer of Cebu I HED and Juliana de los Angeles, an alleged
below:
supplier, all of whom took advantage of their official positions, with
the exception of Juliana de los Angeles, mutually helping each other
did then and there willfully, unlawfully and feloniously falsify and/or Criminal Dates of Main Items Allegedly Amount
cause the falsification of the following documents, to wit: Case Commission Documents Purchased of Fraud
No. Falsified
1. Request for Allocation of Allotment
2879 December 1. General 1,400 cu. m. of PhP
1, 1976 up Voucher item 108 for use 28,000.00
2. Letter of Advice of Allotment to January No. B-15; in the repair of
31, 1977 2. Check the Cebu
3. Advice of Cash Disbursement Ceiling No. Hagnaya Wharf
9933064; road from Km.
4. General Voucher No. B-15 50.30 to Km.
60.00
5. Check No. 9933064 2880 December 1. Request 1,400 cu. m. of PhP
1, 1976 up for item 108 for use 28,000.00
6. Abstract of Bids to January Allocation in the repair of
31, 1977 of the Bogo-
7. Purchase Order Allotment Curva-Medellon
101-12- road from Km.
105-76; 110.00 to Km.
8. Statement of Delivery 2. General 119.00
Voucher
9. Report of Inspection No. B-55;
3. Check
10. Requisition for Supplies or Equipment No.
9933104;
11. Trial Balance 2881 January 2, 1. Request Approximately PhP
1977 up to for 1,500 cu. m. of 31,000.00
by making it appear that Regional Office No. VII of the Ministry of February Allocation item 108 for use
Public Highways regularly issued an advice of cash disbursement 28, 1977 of in the repair
ceiling (ACDC) and the corresponding letter of advice of allotment Allotment and
(LAA) to cover the purchase of 1,400 cu. m. of item 1087 for use in the 101-2-56- rehabilitation of
repair of the Cebu Hagnaya Wharf road from Km. 50.30 to Km. 60.00, 77; damaged roads
when in truth and in fact, as all the accused knew, the same were not 2. General and bridges by
true and correct; by making it appear in the voucher that funds were Voucher Typhoon Aring
available and that there were appropriate requests for allotments No. B-245; at the Tabogon-
(ROA) to pay the aforesaid purchase; that a requisition for said item 3. Check Bogo provincial
was made and approved; that a regular bidding was held; that a No. road from Km.
corresponding purchase order was issued in favor of the winning 9933294; 92 to Km. 98
bidder; that the road construction materials were delivered,
inspected and used in the supposed project and that the alleged 2885 January 2, 1. Request materials for PhP
supplier was entitled to payment when in truth and in fact, as all the 1977 up to for use in the repair 30,000.00
accused know, all of the foregoing were false and incorrect and January 31, Allocation and
because of the foregoing falsifications, the above-named accused 1977 of rehabilitation of
were able to collect from the Cebu I HED the total amount of TWENTY Allotment the Daan-
EIGHT THOUSAND PESOS (P28,000.00), Philippine Currency, in 101-12- Bantayan road
payment of the non-existing deliveries; that the said amount of 112-76; from Km.
P28,000.00 was not reflected in the monthly trial balance submitted 2. General 127.00 to Km.
to the Central Office by Region VII showing its financial condition as Voucher 136
the same was negated thru the journal voucher, as a designed means No. B-76;
to cover-up the fraud; and the accused, once in possession of the said 3. Check
amount, misappropriated, converted and misapplied the same for
Compiled by: Vim Malicay
No. Nuez, an alleged supplier, all of whom took advantage of their
9933125; official positions, with the exception of Rufino V. Nuez, mutually
helping each other did then and there willfully, unlawfully and
2914 October 1, 1. General 1,200 cu. m. of PhP feloniously falsify and/or cause the falsification of the following
1977 up to Voucher item 108 for use 27,000.00 documents, to wit:
November No. B-927; in the
30, 1977 2. Check rehabilitation of 1. Request for Allocation of Allotment 101-10-186-76;
No. the Cajel-Lugo, 10-190-76; 10-192-76; 10-188-76; 10-180-76
9403425; Barbon 2. Letter of Advice of Allotment
barangay road 3. Advice of Cash Disbursement Ceiling
4. General Voucher No. B-613
2918 January 2, 1. General 1,500 cu. m. of PhP
5. Check No. 9403099
1977 up to Voucher item 108 for the 30,000.00
6. Abstract of Bids
February No. B-107; rehabilitation of
7. Purchase Order
28, 1977 2. Check the Cebu North
8. Statement of Delivery
No. Hagnaya Wharf
9. Report of Inspection
9933157; road from Km.
10. Requisition for Supplies or Equipment
71 to Km. 76
11. Trial Balance

On the other hand, petitioner Torrevillas was one of the accused in By making it appear that Regional Office No. VII of the Ministry of
Criminal Case Nos. 2855, 2856, 2858, 2859, 2909, 2910, 2914, 2919, Public Highways regularly issued an advice of cash disbursement
and 2932. ceiling (ACDC) and the corresponding letter of advice of allotment
(LAA) to cover the purchase of 153.63 m. t. of item 3108 for use in
The Information against Torrevillas in SB Criminal Case No. 2855 reads asphalting of the Toledo-Tabuelan road at Km. 108.34 to Km. 109.52,
as follows: when in truth and in fact, as all the accused knew, the same were not
true and correct; by making it appear in the voucher that funds were
The undersigned accuses Rocilo Neis, Rolando Mangubat, Adventor available and that there were appropriate requests for allotments
Fernandez, Angelina Escao, Delia Preagido, Camilo de Letran, (ROA) to pay the aforesaid purchase; that a requisition for said item
Manuel de Veyra, Heracleo Faelnar, Basilisa Galvan, Matilde Jabalde, was made and approved; that a regular bidding was held; that a
Josefina Luna, Jose Sayson, Edgardo Cruz, Leonila del Rosario, corresponding purchase order was issued in favor of the winning
Engracia Escobar, Abelardo Cardona, Leonardo Tordecilla, Agripino bidder; that the road construction materials were delivered,
Pagdanganan, Ramon Quirante, Jorge de la Pea, Leo Villagonzalo, inspected and used in the supposed project and that the alleged
Asterio Buqueron, Expedito Torrevillas, Mariano Montera and Rufino supplier was entitled to payment when in truth and in fact, as all the
V. Nuez for estafa thru falsification of public and commercial accused know, all of the foregoing were false and incorrect and
documents, committed as follows: because of the foregoing falsifications, the above-named accused
were able to collect from the Cebu I HED the total amount of FORTY
EIGHT THOUSAND FOUR HUNDRED THIRTY ONE PESOS & 85/100
That on, about and during the period from June 1, 1977 up to June 30, (P48,431.85), Philippine Currency, in payment of the non-existing
1977, both dates inclusive, in the City of Cebu and in Cebu Province, deliveries; that the said amount of P48,431.85 was not reflected in
and within the jurisdiction of this Honorable Court, the accused Rocilo the monthly trial balance submitted to the Central Office by Region
Neis, Assistant District Engineer of Cebu HED I; Rolando Mangubat, VII showing its financial condition as the same was negated thru the
the Chief Accountant of Region VII of the Ministry of Public Highways journal voucher, as a designed means to cover-up the fraud; and the
and Adventor Fernandez, Regional Highway Engineer of same accused, once in possession of the said amount, misappropriated,
Regional Office, conniving with each other to defraud the Philippine converted and misapplied the same for their personal needs, to the
Government with the indispensable cooperation and assistance of damage and prejudice of the Philippine Government in the total
Angelina Escao, Finance Officer of Region VII of the Ministry of Public amount of FORTY EIGHT THOUSAND FOUR HUNDRED THIRTY ONE
Highways; Delia Preagido, Assistant Chief Accountant of same PESOS & 85/100 (P48,431.85), Philippine Currency.
Regional Office; Camilo de Letran, Chief Accountant of Cebu I HED;
Manuel de Veyra, Regional Director, MPH, Region VII; Heracleo
Faelnar, then Assistant Director MPH Region VII; Basilisa Galvan, CONTRARY TO LAW.
Budget Officer, MPH, Region VII; Matilde Jabalde, Supervising
Accounting Clerk, MPH, Region VII; Josefina Luna, Accountant II, MPH, The Torrevillas cases were substantially the same save for the details
Region VII; Jose Sayson, Budget Examiner, MPH, Region VII, Edgardo highlighted in the aforequoted typical accusatory pleading. For ease
Cruz, Accountant I, MPH, Region VII; Leonila del Rosario, Chief Finance of reference, Torrevillas criminal cases are particularized as follows:
and Management Service, MPH, Central Office; Engracia Escobar,
Chief Accountant, MPH, Central Office; Abelardo Cardona, Assistant
Criminal Dates of Main Items Allegedly Amount
Chief Accountant, MPH, Central Office; Leonardo Tordecilla,
Case Commission Documents Purchased of Fraud
Supervising Accountant, MPH, Central Office; Agripino Pagdanganan,
No. Falsified
Budget Officer III, MPH, Central Office; Ramon Quirante, Property
Custodian of Cebu I HED; Jorge de la Pea, Auditor of Cebu I HED; Leo 2855 June 1, 1977 1. Request 153.63 m. t. of PhP
Villagonzalo, Auditors Aide of Cebu I HED; Asterio Buqueron, up to June for item 310 for 48,431.85
Administrative Officer of Cebu I HED; Expedito Torrevillas, 30, 1977 Allocation use in
representative of the Engineers Office, Cebu I HED; Mariano of Allotment asphalting of
Montera, Senior Civil Engineer Engineer of Cebu I HED; and Rufino V.
Compiled by: Vim Malicay
101-10-186- the Toledo- Cantibas,
76; 10-190- Tabuelan road Balaban
76; 10-192- from Km. barangay road
76; 10-188- 108.34 to Km.
76; 10-180- 109.52 2910 September 1. General 1,200 cu. m. of PhP
76; 1, 1977 up Voucher No. item 108 for 27,900.00
2. General to B-929; use in the
Voucher No. November 2. Check No. rehabilitation
B-613; 30, 1977 9403427; of the Magay-
3. Check No. Canamukan,
9403099; Compostela
barangay road
2856 June 1, 1977 1. Request 153.76 m. t. of PhP
up to June for item 310 for 48,472.84 2914 October 1, 1. General 1,200 cu. m. of PhP
30, 1977 Allocation use in the 1977 up to Voucher No. item 108 for 27,000.00
of Allotment asphalting of November B-927; use in the
101-10-15- the Toledo- 30, 1977 2. Check No. rehabilitation
76; 9-201- Tabuelan road 9403425; of the Cajel-
76; 8-152- from Km Lugo, Barbon
76; 8-153- 108.34 to Km. barangay road
76;9-181- 109.52 2919 January 2, 1. General 1,550 cu. m. of PhP
76; 9-184- 1977 up to Voucher No. item 108 for 31,000.00
76 February 28, B-244; use in the
2. General 1977 2. Check No. repair and
Voucher No. 9933293; rehabilitation
B-619; of damaged
3. Check No. roads and
9403105; bridges at the
2858 June 1, 1977 1. Request 151.35 m. t. of PhP Toledo-
up to July for item 310 for 47,713.09 Tabuelan
31, 1977 Allocation use in the national road
Allotment asphalting of from Km. 71 to
101-6-234- the Toledo- Km. 83
76; 6-237- Tabuelan road 2932 June 1, 1977 1. Request 250 gals of PhP
76; 6-239- from Km. up to July for aluminum 44,762.58
76; 6-241- 108.34 to Km. 31, 1977 Allocation paint 324 gals
76; 6-240- 109.52 of Allotment of red lead
76 101-7-83- paint for use in
2. General 76; 7-84-76; the
Voucher No. 7-124-76; 8- maintenance
B-629; 153-76; 8- of national
3. Check No. 170-76; roads and
9403115; 2. General bridges
2859 June 1, 1977 1. Request 110.01 m. t. of PhP Voucher B-
up to June for item 310 for 34,680.65 643;
31, 1977 Allocation use in 3. Check No.
of Allotment asphalting of 9403130;
101-7-63- the Toledo-
76; 8-102- Tabuelan road The Sandiganbayans Ruling
76; 8-121- from Km.
76 108.34 to
The anti-graft court was fully convinced of the guilt of petitioner
2. General Km.109.52
Fernan, Jr.; and in its December 4, 1997 Decision, it found him
Voucher No.
criminally liable in the six (6) cases against him, thus:
B-631;
3. Check No.
9403117; In Criminal Case No. 2879, the Court finds accused JOSE SAYSON,
RAMON QUIRANTE, MARIANO MONTERA, ZOSIMO MENDEZ,
2909 September 1. General 1,200 cu.m. of PhP MARIANO JARINA and SIMON FERNAN, Jr., GUILTY beyond
1, 1977 up Voucher No. item 108 for 27,900.00 reasonable doubt as co-principals in the crime of Estafa thru
to B-928; use in the falsification of Public Documents as defined and penalized in Articles
November 2. Check No. rehabilitation 318 and 171, in relation to Article 48 of the Revised Penal Code, and
30, 1977 9403426; of the Buanoy- there being no modifying circumstances in attendance, hereby
sentences each of them to an indeterminate penalty ranging from six
Compiled by: Vim Malicay
(6) years of prision correccional, as minimum, to ten (10) years, eight them to an indeterminate penalty ranging from six (6) years of prision
(8) months and one (1) day of prision mayor, as maximum, with the correccional, as minimum, to ten (10) years, eight (8) months and one
accessory penalties provided by law, to pay a fine of Three Thousand (1) day of prision mayor, as maximum, with the accessory penalties
Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally provided by law, to pay a fine of Three Thousand Five Hundred Pesos
the Republic of the Philippines in the amount of Twenty Eight (P 3,500.00); to indemnify, jointly and severally the Republic of the
Thousand Pesos (P 28,000.00); and, to pay their proportionate share Philippines in the amount of Twenty Seven Thousand Pesos (P
of the costs.9 (Emphasis supplied.) 27,000.00); and, to pay their proportionate share of the
costs.13(Emphasis supplied.)
In Criminal Case No. 2880, the Court finds accused CAMILO DE
LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA, In Criminal Case No. 2918, the Court finds accused CAMILO DE
ZOSIMO MENDEZ, and SIMON FERNAN, Jr., GUILTY beyond LETRAN, JOSE SAYSON, RAMON QUIRANTE, ZOSIMO MENDEZ, SIMON
reasonable doubt as co-principals in the crime of Estafa thru FERNAN, Jr. and ISMAEL SABIO, Jr. GUILTY beyond reasonable doubt
falsification of Public Documents as defined and penalized in Articles as co-principals in the crime of Estafa thru falsification of Public
318 and 171, in relation to Article 48 of the Revised Penal Code, and Documents as defined and penalized in Articles 318 and 171, in
there being no modifying circumstances in attendance, hereby relation to Article 48 of the Revised Penal Code, and there being no
sentences each of them to an indeterminate penalty ranging from six modifying circumstances in attendance, hereby sentences each of
(6) years of prision correccional, as minimum, to ten (10) years, eight them to an indeterminate penalty ranging from six (6) years of prision
(8) months and one (1) day of prision mayor, as maximum, with the correccional, as minimum, to ten (10) years, eight (8) months and one
accessory penalties provided by law, to pay a fine of Three Thousand (1) day of prision mayor, as maximum, with the accessory penalties
Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally provided by law, to pay a fine of Three Thousand Five Hundred Pesos
the Republic of the Philippines in the amount of Twenty Eight (P 3,500.00); to indemnify, jointly and severally the Republic of the
Thousand Pesos (P 28,000.00); and, to pay their proportionate share Philippines in the amount of Thirty Thousand Pesos (P 30,000.00);
of the costs.10 (Emphasis supplied.) and, to pay their proportionate share of the costs.14 (Emphasis
supplied.)
In Criminal Case No. 2881, the Court finds accused CAMILO DE
LETRAN, JOSE SAYSON, RAMON QUIRANTE, ZOSIMO MENDEZ Petitioner Torrevillas suffered the same fate and was convicted in the
and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co- nine (9) criminal cases, to wit:
principals in the crime of Estafa thru falsification of Public Documents
as defined and penalized in Articles 318 and 171, in relation to Article In Criminal Case No. 2855, the Court finds accused CAMILO DE
48 of the Revised Penal Code, and there being no modifying LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA,
circumstances in attendance, hereby sentences each of them to an and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-
indeterminate penalty ranging from six (6) years of prision principals in the crime of Estafa thru falsification of Public Documents
correccional, as minimum, to ten (10) years, eight (8) months and one as defined and penalized in Articles 318 and 171, in relation to Article
(1) day of prision mayor, as maximum, with the accessory penalties 48 of the Revised Penal Code, and there being no modifying
provided by law, to pay a fine of Three Thousand Five Hundred Pesos circumstances in attendance, hereby sentences each of them to an
(P 3,500.00); to indemnify, jointly and severally the Republic of the indeterminate penalty ranging from six (6) years of prision
Philippines in the amount of Thirty One Thousand Pesos (P correccional, as minimum, to ten (10) years, eight (8) months and one
31,000.00); and, to pay their proportionate share of the (1) day of prision mayor, as maximum, with the accessory penalties
costs.11(Emphasis supplied.) provided by law, to pay a fine of Three Thousand Five Hundred Pesos
(P 3,500.00); to indemnify, jointly and severally the Republic of the
In Criminal Case No. 2885, the Court finds accused CAMILO DE Philippines in the amount of Forty Eight Thousand Four Hundred
LETRAN JOSE SAYSON, RAMON QUIRANTE, ZOSIMO MENDEZ Thirty One Pesos and 85/100 (P 48,431.85); and, to pay their
and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co- proportionate share of the costs.15 (Emphasis supplied.)
principals in the crime of Estafa thru falsification of Public Documents
as defined and penalized in Articles 318 and 171, in relation to Article In Criminal Case No. 2856, the Court finds accused CAMILO DE
48 of the Revised Penal Code, and there being no modifying LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA
circumstances in attendance, hereby sentences each of them to an and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-
indeterminate penalty ranging from six (6) years of prision principals in the crime of Estafa thru falsification of Public Documents
correccional, as minimum, to ten (10) years, eight (8) months and one as defined and penalized in Articles 318 and 171, in relation to Article
(1) day of prision mayor, as maximum, with the accessory penalties 48 of the Revised Penal Code, and there being no modifying
provided by law, to pay a fine of Three Thousand Five Hundred Pesos circumstances in attendance, hereby sentences each of them to an
(P 3,500.00); to indemnify, jointly and severally the Republic of the indeterminate penalty ranging from six (6) years of prision
Philippines in the amount of Thirty Thousand Pesos (P 30,000.00); correccional, as minimum, to ten (10) years, eight (8) months and one
and, to pay their proportionate share of the costs.12 (Emphasis (1) day of prision mayor, as maximum, with the accessory penalties
supplied.) provided by law, to pay a fine of Three Thousand Five Hundred Pesos
(P 3,500.00); to indemnify, jointly and severally the Republic of the
In Criminal Case No. 2914, the Court finds accused CAMILO DE Philippines in the amount of Forty Eight Thousand Four Hundred
LETRAN, JOSE SAYSON, RAMON QUIRANTE, EXPEDITO Seventy Two Pesos and 84/100 (P 48,472.84); and, to pay their
TORREVILLAS and SIMON FERNAN, Jr., GUILTY beyond reasonable proportionate share of the costs.16 (Emphasis supplied.)
doubt as co-principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and 171, in In Criminal Case No. 2858, the Court finds accused CAMILO DE
relation to Article 48 of the Revised Penal Code, and there being no LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA
modifying circumstances in attendance, hereby sentences each of
Compiled by: Vim Malicay
and EXPEDITO TOREVILLAS, GUILTY beyond reasonable doubt as co- In Criminal Case No. 2914, the Court finds accused CAMILO DE
principals in the crime of Estafa thru Falsification of Public Documents LETRAN, JOSE SAYSON, RAMON QUIRANTE, EXPEDITO
as defined and penalized in Articles 318 and 171, in relation to Article TORREVILLAS and SIMON FERNAN, Jr., GUILTY beyond reasonable
48 of the Revised Penal relation to Article 48 of the Revised Penal doubt as co-principals in the crime of Estafa thru falsification of Public
Code, and there being no modifying circumstances in attendance, Documents as defined and penalized in Articles 318 and 171, in
hereby sentences each of them to an indeterminate penalty ranging relation to Article 48 of the Revised Penal Code, and there being no
from six (6) years of prision correccional, as minimum, to ten (10) modifying circumstances in attendance, hereby sentences each of
years, eight (8) months and one (1) day of prision mayor, as them to an indeterminate penalty ranging from six (6) years of prision
maximum, with the accessory penalties provided by law, to pay a fine correccional, as minimum, to ten (10) years, eight (8) months and one
of Three Thousand Five Hundred Pesos (P3,500.00); to indemnify, (1) day of prision mayor, as maximum, with the accessory penalties
jointly and severally the Republic of the Philippines in the amount of provided by law, to pay a fine of Three Thousand Five Hundred Pesos
Forty Seven Thousand Seven Hundred Thirteen Pesos and 9/100 (P 3,500.00); to indemnify, jointly and severally the Republic of the
(P47,713.09); and, to pay their proportionate share of the costs. Philippines in the amount of Twenty Seven Thousand Pesos (P
27,000.00); and, to pay their proportionate share of the costs.
In Criminal Case No. 2859, the Court finds accused CAMILO DE (Emphasis supplied.)
LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA
and EXPEDITO TOREVILLAS, GUILTY beyond reasonable doubt as co- In Criminal Case No. 2919, the Court finds accused CAMILO DE
principals in the crime of Estafa thru Falsification of Public Documents LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA,
as defined and penalized in Articles 318 and 171, in relation to Article ZOSIMO MENDEZ, EXPEDITO TORREVILLAS and ISMAEL SABIO, Jr.
48 of the Revised Penal Code, and there being no modifying GUILTY beyond reasonable doubt as co-principals in the crime of
circumstances in attendance, hereby sentences each of them to an Estafa thru falsification of Public Documents as defined and penalized
indeterminate penalty ranging from six (6) years of prision in Articles 318 and 171, in relation to Article 48 of the Revised Penal
correccional, as minimum, to ten (10) years, eight (8) months and one Code, and there being no modifying circumstances in attendance,
(1) day of prision mayor, as maximum, with the accessory penalties hereby sentences each of them to an indeterminate penalty ranging
provided by law, to pay a fine of Three Thousand Five Hundred Pesos from six (6) years of prision correccional, as minimum, to ten (10)
(P3,500.00); to indemnify, jointly and severally the Republic of the years, eight (8) months and one (1) day of prision mayor, as
Philippines in the amount of Thirty Four Thousand Six Hundred Eighty maximum, with the accessory penalties provided by law, to pay a fine
pesos and 65/100 (P34,680.65); and , to pay their proportionate share of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify,
of the costs.17 jointly and severally the Republic of the Philippines in the amount of
Thirty One Thousand Pesos (P 31,000.00); and, to pay their
In Criminal Case No. 2909, the Court finds accused CAMILO DE proportionate share of the costs.20 (Emphasis supplied.)
LETRAN, JOSE SAYSON, RAMON QUIRANTE, FLORO JAYME
and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co- In Criminal Case No. 2932, the Court finds accused CAMILO DE
principals in the crime of Estafa thru falsification of Public Documents LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA,
as defined and penalized in Articles 318 and 171, in relation to Article PEDRITO SEVILLE and EXPEDITO TORREVILLAS GUILTY beyond
48 of the Revised Penal Code, and there being no modifying reasonable doubt as co-principals in the crime of Estafa thru
circumstances in attendance, hereby sentences each of them to an falsification of Public Documents as defined and penalized in Articles
indeterminate penalty ranging from six (6) years of prision 318 and 171, in relation to Article 48 of the Revised Penal Code, and
correccional, as minimum, to ten (10) years, eight (8) months and one there being no modifying circumstances in attendance, hereby
(1) day of prision mayor, as maximum, with the accessory penalties sentences each of them to an indeterminate penalty ranging from six
provided by law, to pay a fine of Three Thousand Five Hundred Pesos (6) years of prision correccional, as minimum, to ten (10) years, eight
(P 3,500.00); to indemnify, jointly and severally the Republic of the (8) months and one (1) day of prision mayor, as maximum, with the
Philippines in the amount of Twenty Seven Thousand Nine Hundred accessory penalties provided by law, to pay a fine of Three Thousand
Pesos (P 27,900.00); and, to pay their proportionate share of the Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally
costs.18 (Emphasis supplied.) the Republic of the Philippines in the amount of Forty Four Thousand
Seven Hundred Sixty Two Pesos and 58/100 (P 44,762.58); and, to pay
In Criminal Case No. 2910, the Court finds accused CAMILO DE their proportionate share of the costs.21 (Emphasis supplied.)
LETRAN, JOSE SAYSON, RAMON QUIRANTE, FLORO JAYME
and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co- Petitioners made the supplication before the court a quo to recall the
principals in the crime of Estafa thru falsification of Public Documents adverse judgments against them which was declined by the August
as defined and penalized in Articles 318 and 171, in relation to Article 29, 2000 SB Resolution.
48 of the Revised Penal Code, and there being no modifying
circumstances in attendance, hereby sentences each of them to an Firm in their belief that they were innocent of any wrongdoing, they
indeterminate penalty ranging from six (6) years of prision now interpose the instant petition to clear their names.
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
The Issues
provided by law, to pay a fine of Three Thousand Five Hundred Pesos
(P 3,500.00); to indemnify, jointly and severally the Republic of the
Philippines in the amount of Twenty Seven Thousand Nine Hundred Petitioners put forward two (2) issues, viz:
Pesos (P 27,900.00); and, to pay their proportionate share of the
costs.19 (Emphasis supplied.) I

Compiled by: Vim Malicay


The honorable Sandiganbayan totally ignored petitioners ART. 171. Falsification by public officer, employee; or notary or
constitutional right to be presumed innocent when it ruled ecclesiastical minister. The penalty of prision mayor and a fine not
that the burden of convincing the hon. Court that the to exceed 5,000 pesos shall be imposed upon any public officer,
deliveries of the road materials attested to have been employee, or notary who, taking advantage of his official position,
received by them were not ghost deliveries rests with the shall falsify a document by committing any of the following acts:
accused and not with the prosecution.
xxxx
II
4. Making untruthful statements in a narration of facts;
The honorable sandiganbayan erred in convicting
petitioners as co-conspirators despite the prosecutions ART. 48. Penalty for complex crimes. When a single act constitutes
failure to specifically prove beyond reasonable doubt the two or more grave or less grave felonies, or when an offense is a
facts and circumstances that would implicate them as co- necessary means for committing the other, the penalty for the most
conspirators and justify their conviction. serious crime shall be imposed, the same to be applied in its
maximum period.
The Courts Ruling
The complex crime is pruned into the following essential elements:
We are not persuaded to nullify the verdict.
For estafa
Petitioners guilt was established beyond reasonable doubt
1. Deceit: Deceit is a specie of fraud. It is actual fraud, and
Petitioners mainly asseverate that their guilt was not shown beyond consists in any false representation or contrivance whereby
a peradventure of doubt and the State was unable to show that one person overreaches and misleads another, to his hurt.
government funds were illegally released based on alleged ghost There is deceit when one is misled, either by guile or
deliveries in conjunction with false or fake tally sheets and other trickery or by other means, to believe to be true what is
documents which they admittedly signed. really false.24

We are not convinced. 2. Damage: Damage may consist in the offended party
being deprived of his money or property as a result of the
Our Constitution unequivocally guarantees that in all criminal defraudation, disturbance in property right, or temporary
prosecutions, the accused shall be presumed innocent until the prejudice.25
contrary is proved.22 This sacred task unqualifiedly means proving the
guilt of the accused beyond a reasonable doubt. Definitely, For falsification
"reasonable doubt" is not mere guesswork whether or not the
accused is guilty, but such uncertainty that "a reasonable man may 1. That the offender is a public officer, employee, or notary
entertain after a fair review and consideration of the evidence." public;
Reasonable doubt is present when
2. That he takes advantage of his official position;
after the entire comparison and consideration of all the evidences,
leaves the minds of the [judges] in that condition that they cannot say
3. That he falsifies a document by committing any of the
they feel an abiding conviction, to a moral certainty, of the truth of
acts defined under Article 171 of the Revised Penal Code.26
the charge; a certainty that convinces and directs the understanding,
and satisfies the reason and judgment of those who are bound to act
conscientiously upon it.23 Before the SB, a Memorandum of Agreement (MOA) dated
September 1, 1988 was entered into between the State and the
accused with the following stipulations and admissions:
A thorough scrutiny of the records is imperative to determine
whether or not reasonable doubt exists as to the guilt of accused
Fernan, Jr. and Torrevillas. (1) To expedite the early termination of the instant cases
and abbreviate the testimony of Mrs. Delia Preagido, the
prosecution and the accused have agreed to reproduce and
Petitioners were charged with the complex crime of estafa through
adopt as the testimony of Preagido in the instant cases, her
falsification of public documents as defined and penalized under
previous testimonies in Criminal Cases Nos. 889, etc.
Articles 318 and 171 in relation to Article 48 of the Revised Penal
(Mandaue City HED 78 cases), on May 18 and 19, 1982 and
Code, thus:
in Criminal Cases Nos. 1446-1789, etc. (Danao City HED 77
cases) on November 10, 1987 and March 14, 1988, both on
ART. 318. Other deceits. The penalty of arresto mayor and a fine of direct and cross examination x x x without prejudice to
not less than the amount of the damage caused and not more than whatever direct and/or cross examination question, that
twice such amount shall be imposed upon any person who shall may be propounded by the Prosecution and the accused on
defraud or damage another by any deceit not mentioned in the said State witness, which questions will only be limited to
preceding articles of this chapter. the fake or irregular LAAs and SACDCs issued to Cebu I HED
in 1977, the sale of such fake or irregular LAAs and SACDCs

Compiled by: Vim Malicay


issued to Cebu I HED in 1977, the sale of such fake or requests for supplies and materials, and other related documents
irregular LAAs and SACDCs in said engineering district in which became part of the supporting documents that led to the
the said year and the participation of the accused thereon; issuance of general vouchers and eventually the disbursement of
public funds.29 The tally sheets are statements of delivery that
(2) That in the event Mrs. Delia Preagido is presented to purportedly indicated the specified quantities of materials for the
testify as a State witness in the instant cases without construction and maintenance of roads that have been delivered on
reproducing and adopting her previous testimonies in the supposed project sites on given dates at specific places.
Mandaue City HED 78 and the Danao City HED 77 cases,
she will identify documents and exhibits which have been As a result of petitioners signatures in the tally sheets and/or delivery
previously marked and identified by other prosecution receipts, reports of inspection, requests for supplies and materials,
witness x x x. and other supporting documentswhich became the basis for
payment to supplierspublic funds were released via general
(3) That in the previous testimonies of Mrs. Delia Preagido vouchers and checks to the said suppliers despite the fact that the
in the Mandaue City HED 78 and the Danao City HED 77 latter did not make any deliveries in accordance with projects
cases, she identified twenty-six separate lists containing allegedly funded by mostly fake LAAs.
names of officials and employees of MPH, Regional Office
No. VII, of the various Highways Engineering Districts in The accusation that there were no actual deliveries of road
MPH, Region VII, and the MPH Central Office who have construction and maintenance materials in support of projects or
allegedly received money or various sums from 1977 to otherwise funded by LAAs was proven true by the testimonies of the
1978 out of the proceeds or sales of fake LAAs in 1977 and various barangay captains and residents of the barangay who were
1978 and, therefore, to obviate Mrs. Preagidos previous supposed to be benefited by the construction and repair activities of
testimony of these lists, the Prosecution hereby reproduces the Cebu First Highway Engineering District. The testimonies of these
and adopts specifically such testimony and the markings of barangay captains and residents are summarized as follows:30
the lists, i.e., Exhibits KKK, KKK-1 to KKK-25 in the
Mandaue City HED 78 cases and Exhibits 0000, 0000-1 to 1. MACARIO LIMALIMA, Barangay Captain of Barangay Antipolo,
0000-25 in the Danao City HED 77 cases, substituted or re- Medellin, Cebu, testified that his barangay is traversed by the national
marked accordingly as Exhibits LL, LL-1 to LL-25 in the highway stretching to a distance of 2 kilometers and 750 meters (Km.
instant cases.27 122; Km. 123 to 125). He described the road as full of potholes. Except
for filling up these potholes with "anapog" or crushed limestone, no
As a result of this MOA, the testimony of state witness Preagido on major repairs were undertaken on the said road in 1978 or in previous
the modus operandi of the conspirators, or the unique and distinct years. (TSN., pp. 6-14, June 5, 1986).31
method of procedure by which the malversation of public funds in
Region VII of the MPH was perpetrated and accomplished, dealt a 2. FELOMINO ORBISO, Barangay Captain of Cawit, Medellin, Cebu,
major blow to the defenses raised by petitioners. Preagidos vital from 1972 to 1981, testified that his barangay is traversed by the
testimony, wherein she identified the methods, documents, exhibits, national highway, stretching from Km. 125 to Km. 127.9. He described
and other pertinent papers that led to the crafting of fake Letters of the road as a rough or dirt road. No improvement was ever made on
Advice of Allotment (LAAs),28 general vouchers, disbursement of this road whether during the year when he gave his statement to the
funds for non-existent projects, general vouchers, and other NBI (1978) or in previous years. The road remained in bad shape, with
documents, was not even successfully refuted or overturned by numerous potholes which the camineros merely filled up with
petitioners. limestone. (TSN., pp.14-19, June 5, 1986).32

Preagido confirmed and admitted under oath that the illegal 3. TIMOTEO ANCAJAS, Barangay Captain of Paypay, Daan Bantayan,
disbursement of public funds pertained to non-existent projects and Cebu, from 1972 to 1982, testified that his barangay is traversed by
was supported by fake LAAs, fake general vouchers, and other the national highway, stretching from Km. 132 to Km. 134 , or a
pertinent papers that were also falsified. The fake LAAs and general distance of 2 kilometers. He described the portion of the highway
vouchers were, in turn, supported by signed tally sheets that as a rough road with potholes. He stated that the only improvement
pertained to alleged ghost deliveries of road construction materials done on this road was the filling up of the potholes with "anapog" or
for non-existent or illegal projects. crushed limestone and this was done only once in 1977. It even took
the camineros three months from the time the limestones were
The fake tally sheets, delivery receipts, reports of inspection, requests delivered to start working on the road. (TSN., pp. 20-26, June 5,
for supplies and materials, and other related documents signed on 1986).33
separate occasions by petitioners, which were attached as supporting
documents to corresponding general vouchers; the alleged amounts 4. LUCIA PEAFLOR, Barangay Captain of Don Pedro, Bogo, Cebu,
and quantities of road construction materials delivered; and the from 1966 to 1982, testified that her barangay is traversed by the
specific fake general vouchers, checks, and other pertinent national highway, stretching from Km. 103 to Km. 105 , up to the
documents issued which led to the illegal disbursement of funds are boundary of San Remigio, and from the boundary to Daan Bantayan,
summarized as follows: a distance of more than 3 kilometers. It was only in 1984 or 1985
when this portion of the national highway was asphalted. Prior to
Petitioner Fernan, Jr. that, the road was maintained by filling up the potholes with crushed
limestone or "anapog." These potholes started to appear between
On the part of petitioners, they readily admitted that they either January and June of 1977. However, as alleged by her in her affidavit
signed the tally sheets and/or delivery receipts, reports of inspection,
Compiled by: Vim Malicay
(Exh. II-1-d), these potholes were filled up only from January to June, was a gravel road. It was properly maintained by the highways people,
1978. (TSN., pp. 28-46, June 5, 1986).34 and every time potholes appeared on the road, they would be filled-
up with anapog. This material was dumped along the road by trucks
5. MARCELO CONEJOS, Barangay Captain of Tapilon, Daan Bantayan, of the Bureau of Public Highways. On the other hand, the road leading
from 1972 to 1982, testified that his barangay is traversed by the to the heart of the poblacion was asphalted, but with potholes. In
national highway, stretching from Km. 130 to Km. 134, or a distance 1977, the potholes were filled up by camineros with gravel delivered
of 4 kilometers. In 1977, said portion of the national highway was in by dump trucks of the Bureau of Public Highways. It was only in 1978
bad condition and that nothing was done to improve it until 1982, when the road was re-asphalted and extended from the junction of
except for the time when the potholes were filled up with crushed the poblacion to the adjacent barrio of Looc. x x x (TSN., pp.36-45,
limestones. (TSN., pp. 48-56, June 5, 1986).35 June 6, 1986).41

6. REMEDIOS FELICANO, Barangay Captain of Looc, San Remigio, Cebu The inescapable conclusion from the aforementioned testimonies of
from 1977 to 1982, testified that her barangay is traversed by the the barangay captains and residents of Cebu whose respective
national highway, stretching form Km. 109 to Km. 110. She described barangay are traversed by the national highway is that there were no
said portion of the national highway as "stoney." The only actual major repair works undertaken on the national highway except
maintenance work undertaken to improve the road was the filling up the filling of potholes by crushed limestone (anapog). Clearly, there
of potholes with crushed limestone which camineros gathered from were no deliveries of supplies and materials for asphalting and repair
the roadside. (TSN., pp.57-67, June 5, 1986).36 of roads described in the tally sheets and other supporting documents
signed by petitioners.
7. ALBERTO BRANSUELA, a resident of Barangay San Jose, Catmon,
Cebu, from 1974 to 1978, testified that barangay San Jose is traversed While petitioner Torrevillas presented Vice-Mayor Emigdio Tudlasan
by the national highway (Km. 58), covering a distance of kilometer of Tabuclan, Cebu, who testified that he saw the asphalting of the
more or less. He stated that while this portion of the national highway Tabuclan Road from kilometers 18 to 19, said testimony is not
was already asphalted as of 1977, there were potholes which the conclusive on the actual delivery of the supplies indicated in the tally
camineros filled up with anapog taken from the roadside. (TSN., pp. sheets, as Tudlasan was not present at the time of alleged delivery.
69-80), June 5, 1986).37 Moreover, his testimony runs counter to the testimonies of Barangay
Captain Remedios Feliciano of Looc, San Remigio, Cebu and Barangay
Captain Pedro Orsal of Poblacion, San Remigio, Cebu. Feliciano
8. CARIDAD PUNLA, Acting Barangay Captain of Barangay Corazon,
testified that she was Barangay Captain of Looc, San Remigio, Cebu
Catmon, Cebu, from 1977 to 1982, testified that the Poblacion of
from 1977 to 1982; that her barangay is traversed by the national
Catmon is traversed by the national highway, stretching from Km. 57
highway, stretching from km. 109 to km. 110; and that the only work
to Km. 58. In 1977, only more than of this portion of the national
undertaken to improve the road was the filling up of potholes with
highway was cemented while the remaining portion was asphalted.
crushed limestone which camineros gathered from the roadside. On
While said portion of the national highway already had cracks and
the other hand, Orsal testified that he was Barangay Captain of
potholes as of 1977, the real problem was the uneven elevation of the
Poblacion, San Remigio, Cebu, from January 1972 to 1980; that his
surface of the shoulder of the road. No general repair was undertaken
barangay is traversed by the national highway, from km. 107 to km.
by the authorities to correct the uneven elevation, except for the
110; that in 1977, the road from km. 107 to km. 108 was a gravel road
work done by the camineros who covered up the potholes. (TSN., pp.
maintained by the highways people, and every time potholes
81-89, June 5, 1986).38
appeared on the road, they would be filled-up with anapog, which
was dumped along the road by the Bureau of Public Highways; and
9. FELIPE MOLIT, Barangay Captain of Bao, Sugud, Cebu, from 1975 to that it was only in 1978 when the road was re-asphalted and extended
1982, testified that barangay Bao was traversed by the national from the junction of the poblacion to the adjacent barrio of Looc.
highway, stretching from Km. 59 to Km. 60 1/2. He described said
portion of the national highway as a gravel road surfaced with
Compared to the testimony of Vice-Mayor Tudlasan, the testimonies
anapog. In 1977, the said road already had potholes which
of Barangay Captains Feliciano and Orsal are entitled to more weight
maintenance men filled up with anapog beginning in March, 1977.
and credit, and are more credible considering the fact that they are
The anapog was hauled in from Km. 64, the usual excavation place of
residents of the area where the road supposedly to be repaired is
anapog. It took only 3 truckloads of anapog to cover the entire length
located plus the fact that they saw only limestone, not asphalt, that
of the 1 kilometers traversing their barangay. (TSN., pp. 90-99, June
was used in the repair of the road in 1977. The testimonies of
5, 1986).39
Feliciano and Orsal are further buttressed by the findings and
statements of government witnesses, namelyRuth Inting Paredes,
10. LEONARDO PINOTE, Barangay Captain of Barangay Argawanon, Supervising Commission on Audit (COA) Auditor assigned to Region
San Remigio, Cebu, from 1972 to 1980, testified that his barangay is VII; Felicitas Cruz Ona, Supervising COA Auditor assigned to the main
traversed by the national highway covering a distance of kilometers COA office; Federico A. Malvar, Senior National Bureau of
more or less. In 1977, this portion of the national highway was a rough Investigation (NBI) Agent of the Anti-Graft Section and member of the
road with potholes. In the same year, camineros worked on the road, COA NBI team assigned to investigate the anomalies; Rogelio C.
using wheelbarrows, shovels and rakes, pitching up the potholes with Mamaril, Supervising NBI Agent of the Anti-Fraud and Action Section;
anapog. (TSN., pp. 29-35, June 6, 1986).40 and Delia Comahig Preagido, Accountant III, MPH, Region VIIto the
effect that the general vouchers and LAAs that corresponded to the
11. PEDRO ORSAL, Barangay Captain of Poblacion, San Remigio, Cebu, aforementioned tally sheets signed by petitioner Torrevillas were fake
from January 1972 to 1980, testified that his barangay is traversed by or falsified. Undeniably, the government witnesses have no motive to
the national highway, from Km. 107 to Km. 110, or a distance of three testify falsely against petitioner Torrevillas and, hence, credible. We
kilometers more or less. In 1977, the road from Km. 107 to Km. 108 conclude that there were no actual deliveries of supplies for

Compiled by: Vim Malicay


asphalting of road and repair on kilometers 108 and 109, which were The essential elements of estafa through falsification of public
the subjects of Criminal Case Nos. 2855, 2856, 2858, and 2859. documents are present in the cases against petitioners, as follows:

Glaring is the finding of the SB that the Cebu First Highway 1. Deceit: Petitioners Fernan, Jr. and Torrevillas made it appear that
Engineering District, to which petitioners were assigned, had fake supplies for road construction and maintenance were delivered by
LAAs totaling to PhP 4,924,366.50, while the fake Cash Disbursement suppliers allegedly in furtherance of alleged lawful projects when in
Ceilings issued amounted to PhP 6,271,150.42 The Cebu First Highway fact said supplies were not delivered and no actual asphalting or
Engineering District had also issued checks per unrecorded reports in repair of road was implemented. In doing so, petitioners:
the total sum of PhP 1,135,176.82.43 Therefore, the total illegal
disbursements in the Cebu First Highway Engineering District alone 1.1. Were public officers or employees at the time of the commission
were a staggering PhP 12,330,693.32 circa 1977. of the offenses;

Of this total, petitioner Fernan, Jr. freely admitted signing tally sheets 1.2. Took advantage of their official position as highway engineers;
which pertained to non-existent deliveries of road construction and
supplies and materials totaling PhP 146,000,44 including PhP 27,000 in
Criminal Case No. 2914 where petitioner Torrevillas was among the
1.3. Made untruthful statements in several narrations of fact.
co-accused.45 These tally sheets were attached as the supporting
papers to fake general vouchers which facilitated the release of check
payments to suppliers. 2. Damage: The government disbursed PhP 146,000 in the case of
Fernan, Jr. and PhP 337,861.01 in the case of Torrevillas, as payments
to various suppliers for the delivery of non-existent supplies.
These checks were allegedly paid to suppliers Juliana de los Angeles
(Criminal Case Nos. 2879, 2880, 2881, 2885, and 2914) and Ismael
Sabio, Jr. (Criminal Case No. 2918).46 By way of defense, petitioners posit that the tally sheets and other
documents could in fact be traced to genuine LAAs that were in the
custody of the NBI. Unfortunately, these genuine LAAs were not
On his part, petitioner Torrevillas voluntarily admitted to signing tally
introduced in evidence. It is an age-old axiom that s/he who alleges
sheets, reports of inspection, requisitions of supplies and equipment,
something must prove it. Petitioners assertion that the documents
and other pertinent documents totaling an even greater amount of
they signed were all genuine and duly covered by genuine LAAs was
PhP 337,861.01,47 including PhP 27,000 in Criminal Case No. 2914
substantiated only by their own self-serving and uncorroborated
where petitioner Fernan, Jr. was among the co-accused.48 These
testimonies. We hesitate to give much weight and credit to their bare
documents signed by petitioner Torrevillas were likewise attached as
testimonies in the face of clear, convincing, overwhelming, and hard
supporting papers to fake general vouchers which facilitated the
evidence adduced by the State.
release of check payments to suppliers.

If the genuine LAAs were vital to their defense, and they firmly
These checks were allegedly paid to suppliers Rufino V. Nuez
believed that the documents were indeed in the custody of the NBI,
(Criminal Case Nos. 2855, 2856, 2858, and 2859), Juliana de los
then petitioners could have easily procured the compulsory process
Angeles (Criminal Case Nos. 2909, 2910, and 2914), Ismael Sabio, Jr.
to compel the production of said documents. However, petitioners
(Criminal Case No. 2919), and Manuel Mascardo (Criminal Case No.
miserably failed to avail of subpoena duces tecum which the court a
2932).49
quo could have readily granted. The inability to produce such
important and exculpatory pieces of evidence proved disastrous to
These general vouchers and checks could not be traced to genuine petitioners cause. Their conviction was indeed supported by proof
LAAs. Ergo, there were no actual deliveries of supplies and materials beyond reasonable doubt which was not overturned by defense
for the road repair and rehabilitation in Region VII, which were the evidence.
subjects of the criminal cases where petitioners were charged.
Petitioners acted in conspiracy with one another
We find no reason to disturb the findings of the court a quo that all
the essential elements of the crime of estafa through falsification of
Petitioners vigorously claim error on the part of the lower court when
public documents were present. There is no question that petitioners,
it made the finding that they were co-conspirators with the other
at the time of the commission of the crime, were public officerscivil
parties accused despite the dearth of evidence to amply demonstrate
engineersassigned to the MPH. Their signing of tally sheets and
complicity.
related documents pertaining to the alleged deliveries of supplies for
road repair and construction constitutes intervention and/or taking
advantage of their official positions, especially considering that they We are not convinced by petitioners postulation.
had the duty to inspect the purported deliveries and ascertain the
veracity of the documents and the statements contained in them. Indeed, the burden of proving the allegation of conspiracy falls to the
shoulders of the prosecution. Considering, however, the difficulty in
The tally sheets bearing their signatures contained false recitals of establishing the existence of conspiracy, settled jurisprudence finds
material facts which the petitioners had the duty to verify and no need to prove it by direct evidence. In People v. Pagalasan, the
confirm. These tally sheets were attached as supporting documents Court explicated why direct proof of prior agreement is not necessary:
to fake LAAs and subsequently became the bases for the
disbursement of public funds to the damage and prejudice of the After all, secrecy and concealment are essential features of a
government. Indubitably, there exists not even an iota of doubt as to successful conspiracy. Conspiracies are clandestine in nature. It may
petitioners guilt. be inferred from the conduct of the accused before, during and after
Compiled by: Vim Malicay
the commission of the crime, showing that they had acted with a The four formed the nucleus of the nefarious conspiracy. Other
common purpose and design. Conspiracy may be implied if it is government employees, tempted by the prospect of earning big
proved that two or more persons aimed their acts towards the money, allowed their names to be used and signed spurious
accomplishment of the same unlawful object, each doing a part so documents.
that their combined acts, though apparently independent of each
other, were in fact, connected and cooperative, indicating a closeness xxxx
of personal association and a concurrence of sentiment. To hold an
accused guilty as a co-principal by reason of conspiracy, he must be
3. Cebu First Highway Engineering District Anomalies
shown to have performed an overt act in pursuance or furtherance of
the complicity. There must be intentional participation in the
transaction with a view to the furtherance of the common design and Focusing our attention now on the anomalies committed in the Cebu
purpose.50 First District Engineering District, hereinafter referred to as the Cebu
First HED for brevity, the Court finds that the same pattern of fraud
employed in the other highway engineering districts in MPH Region
In Estrada v. Sandiganbayan, we categorized two (2) structures of
VII was followed. The Cebu First HED received from Region VII thirty-
multiple conspiracies, namely: (1) the so-called "wheel" or "circle"
four Letters of Advice of Allotment (LAAs) in the total sum of
conspiracy, in which there is a single person or group (the "hub")
P4,734,336.50 and twenty-nine (29) corresponding Sub-Advices of
dealing individually with two or more other persons or groups (the
Cash Disbursement Ceiling (SACDCs), amounting to P5,160,677.04 for
"spokes"); and (2) the "chain" conspiracy, usually involving the
the period January 1, 1977 to December 31, 1977. But apart from this,
distribution of narcotics or other contraband, in which there is
the Cebu First HED appears to have also received for the same period
successive communication and cooperation in much the same way as
another set of eighty-four (84) LAAs amounting to P4,680,694.76
with legitimate business operations between manufacturer and
which however, could not be traced to any Sub-Advice of Allotment
wholesaler, then wholesaler and retailer, and then retailer and
(SAA) OR MATCHED TO THE Advices of Cash Disbursement Ceiling
consumer.51
(ACDCs) received from the MPH and Regional Office. This is highly
irregular and not in consonance with accounting procedures.
We find that the conspiracy in the instant cases resembles the
"wheel" conspiracy. The 36 disparate persons who constituted the
It was also made to appear that the payments were made for alleged
massive conspiracy to defraud the government were controlled by a
prior years obligations and chargeable to Account 81-400, obviously
single hub, namely: Rolando Mangubat (Chief Accountant), Delia
because, they were not properly funded. Furthermore, the list of
Preagido (Accountant III), Jose Sayson (Budget Examiner), and
projects in Region VII for 1977 showed that Cebu first HED completed
Edgardo Cruz (Clerk II), who controlled the separate "spokes" of the
rehabilitation and/or improvement of roads and bridges in its districts
conspiracy. Petitioners were among the many spokes of the wheel.
from February to May, 1977, with expenditures amounting to
P613,812.00. On the other hand, the expenditures for barangay roads
We recall the painstaking efforts of the SB through Associate Justice in the same district in 1977 amounted to P140,692.00, and these were
Cipriano A. Del Rosario, Chairperson of the Third Division, in all completed within the period from November to December, 1977.
elaborating the intricate web of conspiracy among the accused, thus: These completed projects were properly funded by legitimate LAAs
and CDCs in the total amount of only P754,504.00. However, an
Mangubat enticed Preagido, Cruz and Sayson to join him. All three additional amount of P3,839,810.74, was spent by the Cebu First HED
agreed to help him carry out his plan. They typed fake LAAs during for maintenance of roads and bridges for the same year (1977) but
Saturdays. Cruz and Sayson also took charge of negotiating or selling the same could not be traced to any authoritative document coming
fake LAAs to contractors at 26% of the gross amount. Preagido from the MPH.
manipulated the general ledger, journal vouchers and general journal
through negative entries to conceal the illegal disbursements. In the The following payments for materials purchased for the year 1977
initial report of COA auditors Victoria C. Quejada and Ruth I. Paredes were made to appear as payment for prior years obligation and were
it was discovered that the doubtful allotments and other anomalies paid out of fake LAAs:
escaped notice due to the following manipulations:

Supplier No. of
"The letter-advices covering such allotments (LAA) were not signed by Kind of Materials Measurement
Vouchers
the Finance Officer nor (sic) recorded in the books of accounts.
Disbursements made on the basis of these fake LAAs were charged to Rufino Nuez 29 Item 310 4,640,275 mt
the unliquidated obligations (Account 8-81-400), although the J. delos Angeles 21 Item 108 22,290 cu.m.
obligations being paid were not among those certified to the Iluminada Vega 11 Item 108 8,325 cu.m.
unliquidated obligations (Account 8-81-400) at the end of the Florencio Gacayan 10 Item 108 7,800 cu.m.
preceding year. To conceal the overcharges to authorized allotments,
Ismael Sabio, Jr. 6 Item 108 6,198 cu.m.
account 8-81-400 (sic) and the excess of checks issued over
authorized cash disbursements ceiling, adjustments were prepared FBS Marketing 3 Lumber
monthly through journal vouchers to take up the negative debit to Cebu Hollow Blocks 2 Hollow Blocks
Account 8-81-400 and a negative credit to the Treasury Checking Bienvenido Presillas 4 Equip. Rental
Account for Agencies Account 8-70-790. These journal vouchers in T.R. Eustaquio Ent. 1 Office Supplies
effect cancelled the previous entry to record the disbursements made Santrade Mktg. 1 Johnson Products
on the basis of fake LAAs. Thus the affected accounts (Accounts 8-81-
400 and 8-70-790), as appearing in the trial balance, would not show Pelagia Gomez 1 Item 108 2,000 cu.m.
the irregularity. The checks, however, were actually issued."52 M & M Ent. 1 Paints

Compiled by: Vim Malicay


Freent Ind. 1 Office Supplies agreement
590.20 by petitioners with the other accused, for such
requirement,
Total in many cases, would border on near impossibility. The
P2,505,147.00
State needs to adduce proof only when the accused committed acts
that constitute a vital connection to the chain of conspiracy or in
The NBI also discovered that there were purchases of materials in furtherance of the objective of the conspiracy. In the case at bench,
1977 that were charged to current obligations but paid out of the signing of the fake tally sheets and/or delivery receipts, reports of
spurious LAAs, to wit: inspection, and requests for supplies and materials by petitioners on
separate occasions is vital to the success of the Mangubat Group in
Supplier No. of siphoning off government funds. Without such fabricated documents,
Kind of Materials Measurement theAmount
general vouchers covering the supply of materials cannot be
Vouchers
Rufino Nuez 11 Item 310 162,549 m.t. properly accomplished and submitted to the disbursing officer for the
preparation of checks.
P529,475.00
Item 108 5,000 cu.m.
State witness Ruth Paredes, Supervising COA Auditor, elaborated on
Juliana delos Angeles 16 Item 108 13,280 cu.m. P276,400.00
the procedure regarding the award of the contract more specifically
to the payment of the contractor or supplier. Once the Request for
Item 111 1,00 cu.m. 24,000.00
Supplies and Equipment is approved by the Regional Office, the
Request for Obligation of Allotment (ROA) or the request for funds is
Item 200 307 cu.m. signed by the District Engineer pursuant to the approved plans and
7,982.00
Iluminada Vega 3 Item 108 3,600 cu.m. budget and signed by the district accountant as to availability of
72,090.00
funds.
Florencio Gacayan 2 Item 108 2,400.00 cu.m. 48,000.00
Vicon Ent. 1 Steel Frame 19,042.74
The district office will advertise the invitation to bid and award the
Ismael Sabio, Jr. 5 Item 108 6,950 cu.m. 139,000.00
contract to the lowest bidder. The Purchase Order (PO) is prepared
Jabcyl Mktg. 3 Bridge Materials and128,764.80
addressed to the winning bidder. Upon delivery of the supplies
Total andP1,339,663.74
materials, the supplier bills the district office for payment.
Consequently, the requisitioning officer will prepare the general
Grand Total . P3,839,810.74 voucher which must be accompanied by the following documents:

A total of 132 General Vouchers, emanating from fake LAAs and a. The ROA;
ACDCs, were traced back to Rolando Mangubat, Regional Accountant
of Region VII and Adventor Fernandez, Regional Highway Engineer, b. The PO;
also of Region VII. Those LAAs and ACDCs became the vehicles in the
disbursement of funds amounting to P3,839,810.74, through the c. The abstract of Bid together with the Bid quotations;
vouchers purportedly issued for the purchase and delivery of the
aforementioned materials allegedly used for the maintenance and
d. The delivery receipts together with the tally sheets; and
repair of the national highways within the Cebu First HED. Despite the
enormous additional expenditure of P3,839,810.74, the roads and
bridges in the district, as found out by the NBI, did not show any e. The tax clearance and tax certificate of the supplier.
improvement (Exhibit II). As testified to by several barangay captains,
the road maintenance consisted merely of spreading anapog or After the preparation and submission of the general voucher and the
limestone on potholes of the national Highway. supporting documents, the disbursing officer shall prepare and draw
a check based on said voucher. The check is countersigned by an
Obviously, the vouchers for payments of alleged maintenance of officer of the district office and/or the COA Regional Director based
roads and bridges in the additional amount of P3,839,810.74 were on the amount of the check.
prepared for no other purpose than to siphon off the said amount
from the government coffer into the pockets of some officials and Thus, it is clear that without the tally sheets and delivery receipts, the
employees of Region VII and the Cebu First HED, as well as the general voucher cannot be prepared and completed. Without the
suppliers and contractors who conspired and confederated with general voucher, the check for the payment of the supply cannot be
them.53 made and issued to the supplier. Without the check payment, the
defraudation cannot be committed and successfully consummated.
After a close re-examination of the records, the Court finds no reason Thus, petitioners acts in signing the false tally sheets and/or delivery
to disturb the finding of the anti-graft court that petitioners are co- receipts are indispensable to the consummation of the crime of estafa
conspirators of the other accused, headed by Chief Accountant thru falsification of public documents. Surely, there were ghost or
Rolando Mangubat, who were similarly convicted in practically all the false deliveries of supplies and materials as convincingly shown by the
119 counts of estafa. Undisturbed is the rule that this Court is not a testimonies of the barangay captains, officials, and