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
(ARTICLES 1 TO 113)
Article 2- English Rule vs French Rule
PEOPLE VS WONG CHENG
(46 PHIL 729)
ROMUALDEZ, J.:
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
and in which the appellee is accused of having illegally smoked opium,
aboard the merchant vessel Changsa of English nationality while said
vessel was anchored in Manila Bay two and a half miles from the
shores of the city.
The demurrer alleged lack of jurisdiction on the part of the lower
court, which so held and dismissed the case.
The question that presents itself for our consideration is whether such
ruling is erroneous or not; and it will or will not be erroneous
according as said court has or has no jurisdiction over said offense.
The point at issue is whether the courts of the Philippines have
jurisdiction over crime, like the one herein involved, committed
aboard merchant vessels anchored in our jurisdiction
waters. 1awph!l.net
There are two fundamental rules on this particular matter in
connection with International Law; to wit, the French rule, according
to which crimes committed aboard a foreign merchant vessels should
not be prosecuted in the courts of the country within whose territorial
jurisdiction they were committed, unless their commission affects the
peace and security of the territory; and the English rule, based on the
territorial principle and followed in the United States, according to
which, crimes perpetrated under such circumstances are in general
triable in the courts of the country within territory they were
committed. Of this two rules, it is the last one that obtains in this
jurisdiction, because at present the theories and jurisprudence
prevailing in the United States on this matter are authority in the
Philippines which is now a territory of the United States.
In the cases of The Schooner Exchange vs. M'Faddon and Others (7
Cranch [U. S.], 116), Chief Justice Marshall said:
. . . When merchant vessels enter for the purposes of trade,
it would be obviously inconvenient and dangerous to
society, and would subject the laws to continual infraction,
and the government to degradation, if such individuals or
merchants did not owe temporary and local allegiance, and
were not amenable to the jurisdiction of the country. . . .
In United States vs. Bull (15 Phil., 7), this court held:
. . . No court of the Philippine Islands had jurisdiction over
an offense or crime committed on the high seas or within
the territorial waters of any other country, but when she
territorial waters, and a new set of principles became
applicable. (Wheaton, International Law [Dana ed.], p. 255,
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
the jurisdiction of the territorial sovereign subject to such
limitations as have been conceded by that sovereignty
through the proper political agency. . . .
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:
. . . The principle which governs the whole matter is this:
Disorder which disturb only the peace of the ship or those
on board are to be dealt with exclusively by the sovereignty
of the home of the ship, but those which disturb the public
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
two jurisdictions a particular act of disorder belongs. Much
will undoubtedly depend on the attending circumstances of
the particular case, but all must concede that felonious
homicide is a subject for the local jurisdiction, and that if the
proper authorities are proceeding with the case in the
regular way the consul has no right to interfere to prevent
it.
Hence in United States vs. Look Chaw (18 Phil., 573), this court held
that:
Although the mere possession of an article of prohibited
use in the Philippine Islands, aboard a foreign vessel in
transit in any local port, does not, as a general rule,
constitute a crime triable by the courts of the Islands, such
vessels being considered as an extension of its own
nationality, the same rule does not apply when the article,
the use of which is prohibited in the Islands, is landed from
the vessels upon Philippine soil; in such a case an open
violation of the laws of the land is committed with respect
to which, as it is a violation of the penal law in force at the
place of the commission of the crime, no court other than
that established in the said place has jurisdiction of the
offense, in the absence of an agreement under an
international treaty.
As to whether the United States has ever consented by treaty or
otherwise to renouncing such jurisdiction or a part thereof, we find
nothing to this effect so far as England is concerned, to which nation
the ship where the crime in question was committed belongs.
Besides, in his work "Treaties, Conventions, etc.," volume 1, page 625,
Malloy says the following:
There shall be between the territories of the United States
of America, and all the territories of His Britanic Majesty in
Europe, a reciprocal liberty of commerce. The inhabitants
of the two countries, respectively, shall have liberty freely
and securely to come with their ships and cargoes to all such
places, ports and rivers, in the territories aforesaid, to which
other foreigners are permitted to come, to enter into the
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
warehouses for the purposes of their commerce; and,
generally, the merchants and traders of each nation
respectively shall enjoy the most complete protection and
security for their commerce, but subject always to the laws
and statutes of the two countries, respectively. (Art. 1,
Commerce and Navigation Convention.)
We have seen that the mere possession of opium aboard a foreign
vessel in transit was held by this court not triable by or courts,
because it being the primary object of our Opium Law to protect the
inhabitants of the Philippines against the disastrous effects entailed
by the use of this drug, its mere possession in such a ship, without
being used in our territory, does not being about in the said territory
those effects that our statute contemplates avoiding. Hence such a
mere possession is not considered a disturbance of the public order.
But to smoke opium within our territorial limits, even though aboard
a foreign merchant ship, is certainly a breach of the public order here
established, because it causes such drug to produce its pernicious
effects within our territory. It seriously contravenes the purpose that
our Legislature has in mind in enacting the aforesaid repressive
statute. Moreover, as the Attorney-General aptly observes:
. . . The idea of a person smoking opium securely on board
a foreign vessel at anchor in the port of Manila in open
defiance of the local authorities, who are impotent to lay
hands on him, is simply subversive of public order. It
requires no unusual stretch of the imagination to conceive
that a foreign ship may come into the port of Manila and
allow or solicit Chinese residents to smoke opium on board.
The order appealed from is revoked and the cause ordered remanded
to the court of origin for further proceedings in accordance with law,
without special findings as to costs. So ordered.
Araullo, C.J., Street, Malcolm, Avancea, Villamor, Ostrand and Johns,
JJ., concur.
US VS LOOK CHAW
(18 PHIL 573)
ARELLANO, C. J.:
The first complaint filed against the defendant, in the Court of First
Instance of Cebu, stated that he "carried, kept, possessed and had in
his possession and control, 96 kilogrammes of opium," and that "he
had been surprised in the act of selling 1,000 pesos worth prepared
opium."
The defense presented a demurrer based on two grounds, the second
of which was the more than one crime was charged in the complaint.
The demurrer was sustained, as the court found that the complaint
contained two charges, one, for the unlawful possession of opium,
and the other, for the unlawful sale of opium, and, consequence of
that ruling, it ordered that the fiscal should separated one charge
from the other and file a complaint for each violation; this, the fiscal
did, and this cause concerns only the unlawful possession of opium. It
is registered as No. 375, in the Court of First Instance of Cebu, and as
No. 5887 on the general docket of this court.
The facts of the case are contained in the following finding of the trial
court:
The evidence, it says, shows that between 11 and 12 o'clock
a. m. on the present month (stated as August 19, 1909),
several persons, among them Messrs. Jacks and Milliron,
chief of the department of the port of Cebu and internal-
revenue agent of Cebu, respectively, went abroad the
steamship Erroll to inspect and search its cargo, and found,
first in a cabin near the saloon, one sack (Exhibit A) and
afterwards in the hold, another sack (Exhibit B). The sack
referred to as Exhibit A contained 49 cans of opium, and the
other, Exhibit B, the larger sack, also contained several cans
of the same substance. The hold, in which the sack
mentioned in Exhibit B was found, was under the
defendant's control, who moreover, freely and of his own
will and accord admitted that this sack, as well as the other
referred to in Exhibit B and found in the cabin, belonged to
him. The said defendant also stated, freely and voluntarily,
that he had bought these sacks of opium, in Hongkong with
the intention of selling them as contraband in Mexico or
Vera Cruz, and that, as his hold had already been searched
several times for opium, he ordered two other Chinamen to
keep the sack. Exhibit A.
It is to be taken into account that the two sacks of opium, designated
as Exhibits A and B, properly constitute the corpus delicti. Moreover,
another lot of four cans of opium, marked, as Exhibit C, was the
subject matter of investigation at the trial, and with respect to which
the chief of the department of the port of Cebu testified that they
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
Philippines, because the firemen and crew of foreign vessels,
pursuant to the instructions he had from the Manila custom-house,
were permitted to retain certain amounts of opium, always provided
it should not be taken shore.
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
internal-revenue agent testified as follows:itc-alf
FISCAL. What is it?
WITNESS. It is a can opium which was bought from the
defendant by a secret-service agent and taken to the office
of the governor to prove that the accused had opium in his
possession to sell.
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
answer, the chief of the department of customs had already given this
testimony, to wit:
FISCAL. Who asked you to search the vessel?
WITNESS. The internal-revenue agent came to my office
and said that a party brought him a sample of opium and
that the same party knew that there was more opium on
board the steamer, and the agent asked that the vessel be
searched.
Compiled by: Vim Malicay
The defense moved that this testimony be rejected, on the ground of
its being hearsay evidence, and the court only ordered that the part
thereof "that there was more opium, on board the vessel" be stricken
out.
The defense, to abbreviate proceedings, admitted that the
receptacles mentioned as Exhibits A, B, and C, contained opium and
were found on board the steamship Erroll, a vessel of English
nationality, and that it was true that the defendant stated that these
sacks of opium were his and that he had them in his possession.
According to the testimony of the internal-revenue agent, the
defendant stated to him, in the presence of the provincial fiscal, of a
Chinese interpreter (who afterwards was not needed, because the
defendant spoke English), the warden of the jail, and four guards, that
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
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
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
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
it in their stateroom to avoid its being found in his room, which had
already been searched many times; and that, according to the
defendant, the contents of the large sack was 80 cans of opium, and
of the small one, 49, and the total number, 129.
It was established that the steamship Erroll was of English nationality,
that it came from Hongkong, and that it was bound for
Mexico, via the call ports of Manila and Cebu.
The defense moved for a dismissal of the case, on the grounds that
the court had no jurisdiction to try the same and the facts concerned
therein did not constitute a crime. The fiscal, at the conclusion of his
argument, asked that the maximum penalty of the law be imposed
upon the defendant, in view of the considerable amount of opium
seized. The court ruled that it did not lack jurisdiction, inasmuch as
the crime had been committed within its district, on the wharf of
Cebu.
The court sentenced the defendant to five years' imprisonment, to
pay a fine of P10,000, with additional subsidiary imprisonment in case
of insolvency, though not to exceed one third of the principal penalty,
and to the payment of the costs. It further ordered the confiscation,
in favor of the Insular Government, of the exhibits presented in the
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
not released from custody, but turned over to the customs authorities
for the purpose of the fulfillment of the existing laws on immigration.
From this judgment, the defendant appealed to this court.lawphi1.net
The appeal having been heard, together with the allegations made
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
transit, in any of their ports, does not, as a general rule, constitute a
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
does not apply when the article, whose use is prohibited within the
Philippine Islands, in the present case a can of opium, is landed from
the vessel upon Philippine soil, thus committing an open violation of
the 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 crime, only
the court established in that said place itself had competent
jurisdiction, in the absence of an agreement under an international
treaty.
It is also found: That, even admitting that the quantity of the drug
seized, the subject matter of the present case, was considerable, it
does not appear that, on such account, the two penalties fixed by the
law on the subject, should be imposed in the maximum degree.
Therefore, reducing the imprisonment and the fine imposed to six
months and P1,000, respectively, we affirm in all other respects the
judgment appealed from, with the costs of this instance against the
appellant. So ordered.
Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.
US VS AH SING
(36 PHIL 978)
MALCOLM, J.:
This is an appeal from a judgment of the Court of First Instance of
Cebu finding the defendant guilty of a violation of section 4 of Act No.
2381 (the Opium Law), and sentencing him to two years
imprisonment, to pay a fine of P300 or to suffer subsidiary
imprisonment in case of insolvency, and to pay the costs.
The following facts are fully proven: The defendant is a subject of
China employed as a fireman on the steamship Shun Chang. The Shun
Chang is a foreign steamer which arrived at the port of Cebu on April
25, 1917, after a voyage direct from the port of Saigon. The defendant
bought eight cans of opium in Saigon, brought them on board the
steamship Shun Chang, and had them in his possession during the trip
from Saigon to Cebu. When the steamer anchored in the port of Cebu
on April 25, 1917, the authorities on making a search found the eight
cans of opium above mentioned hidden in the ashes below the boiler
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
not confess, however, as to his purpose in buying the opium. He did
not say that it was his intention to import the prohibited drug into the
Philippine Islands. No other evidence direct or indirect, to show that
the intention of the accused was to import illegally this opium into the
Philippine Islands, was introduced.
Has the crime of illegal importation of opium into the Philippine
Islands been proven?
Two decisions of this Court are cited in the judgment of the trial court,
but with the intimation that there exists inconsistently between the
doctrines laid down in the two cases. However, neither decision is
directly a precedent on the facts before us.
In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in
the opinion handed down by the Chief Justice, it is found
That, although the mere possession of a thing of prohibited
use in these Islands, aboard a foreign vessel in transit, in any
of their ports, does not, as a general rule, constitute a crime
triable by the courts of this country, on account of such
Compiled by: Vim Malicay
 vessel being considered as an extension of its own
nationality, the same rule does no apply when the article,
whose use is prohibited within the Philippine Islands, in the
present case a can of opium, is landed from the vessel upon
Philippine soil, thus committing an open violation of the
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
crime, only the court established in the said place itself has
competent jurisdiction, in the absence of an agreement
under an international treaty.1awphil.net
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
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
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
United States vs. Jose ([1916], 34 Phil., 840), the main point, and the
one on which resolution turned, was that in a prosecution based on
the illegal importation of opium or other prohibited drug, the
Government must prove, or offer evidence sufficient to raise a
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
proved that the opium was imported from a foreign country; in the
present case there is no question but what the opium came from
Saigon to Cebu. However, in the opinion in the Jose case, we find the
following which may be obiter dicta, but which at least is interesting
as showing the view of the writer of the opinion:
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.
It was sufficient that the opium was brought into the waters
of the Philippine Islands on a boat destined for a Philippine
port and which subsequently anchored in a port of the
Philippine Islands with intent to discharge its cargo.
Resolving whatever doubt was exist as to the authority of the views
just quoted, we return to an examination of the applicable provisions
of the law. It is to be noted that section 4 of Act No. 2381 begins, "Any
person who shall unlawfully import or bring any prohibited drug into
the Philippine Islands." "Import" and "bring" are synonymous terms.
The Federal Courts of the United States have held that the mere act
of going into a port, without breaking bulk, is prima facie evidence of
importation. (The Mary [U. S.], 16 Fed. Cas., 932, 933.) And again, the
importation is not the making entry of goods at the custom house,
but merely the bringing them into port; and the importation is
complete before entry of the Custom House. (U. S. vs. Lyman [U. S.],
26, Fed. Cas., 1024, 1028; Perots vs. U. S., 19 Fed. Cas., 258.) As
applied to the Opium Law, we expressly hold that any person
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 jurisdictional limits of the Philippine Islands. In such case, a person
is guilty of illegal importation of the drug unless contrary
circumstances exist or the defense proves otherwise. Applied to the
facts herein, it would be absurb to think that the accused was merely
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 accused needed so large an amount of opium for his personal use.
No better explanation being possible, the logical deduction is that the
defendant intended this opium to be brought into the Philippine
Islands. We accordingly find that there was illegal importation of
opium from a foreign country into the Philippine Islands. To anticipate
any possible misunderstanding, let it be said that these statements do
not relate to foreign vessels in transit, a situation not present.
The defendant and appellant, having been proved guilty beyond a
reasonable doubt as charged and the sentence of the trial court being
within the limits provided by law, it results that the judgment must be
affirmed with the costs of this instance against the appellant. So
ordered.
Arellano, C.J., Johnson, Carson, Araullo and Street, JJ., concur.
Article 3- Felonies / Mala in se vs Mala Prohibita
Mala prohibita
PADILLA VS DIZON
(158 SCRA 127 [1988])
PER CURIAM:
This is an administrative complaint, dated August 6, 1987, filed by the
then Commissioner of Customs, Alexander Padilla, against
respondent Baltazar R. Dizon, RTC Judge, Branch 115, Pasay City, for
rendering a manifestly erroneous decision due, at the very least, to
gross incompetence and gross ignorance of the law, in Criminal Case
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.
Required by the Court to answer the complaint, the respondent judge
filed an Answer, dated October 6, 1987, reciting his "commendable
record as a fearless prosecutor" since his appointment as Assistant
City Fiscal of Manila on December 4, 1962, until his appointment
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
as prosecutor and judge is "tangible proof that would negate the
allegations of the petitioner" (should be complainant), whereas the
latter did not last long in the service for reasons only known to him;
that the decision involved in the complaint was promulgated by
respondent on September 29, 1986, but the complaint against him
was filed only on August 6, 1987, a clear indication of malice and ill-
will of the complainant to subject respondent to harassment,
humiliation and vindictiveness; that his decision, of which he submits
a copy (Annex A) as part of his Answer, is based on "fundamental
principles and the foundation of rights and justice" and that if there
are mistakes or errors in the questioned decision, they are committed
in good faith. Accordingly, respondent prays for the dismissal of the
petition (should be complaint).
The issue before the Court is whether or not the respondent judge is
guilty of gross incompetence or gross ignorance of the law in
rendering the decision in question. A judge can not be held to account
or answer, criminally, civilly or administratively, for an erroneous
decision rendered by him in good faith.
The case in which the respondent rendered a decision of acquittal
involved a tourist, Lo Chi Fai, who was caught by a Customs guard at
the Manila International Airport while attempting to smuggle foreign
Compiled by: Vim Malicay
currency and foreign exchange instruments out of the country. Lo Chi
Fai, was apprehended by a customs guard and two PAFSECOM
officers on July 9, 1986, while on board Flight PR 300 of the Philippine
Air Lines bound for Hongkong. At the time of his apprehension, he
was found carrying with him foreign currency and foreign exchange
instruments (380 pieces) amounting to US$ 355,349.57, in various
currency denominations, to wit: Japanese Yen, Swiss Franc, Australian
Dollar, Singapore Dollar, HFL Guilder, French Franc, U.S. Dollar,
English Pound, Malaysian Dollar, Deutsche Mark, Canadian Dollar and
Hongkong Dollar, without any authority as provided by law. At the
time the accused was apprehended, he was able to exhibit two
currency declarations which he was supposed to have accomplished
upon his arrival in Manila in previous trips, namely, CB Currency
Declaration No. 05048, dated May 4, 1986 for US$39,600.00 and
Japanese Yen 4,000,000.00, and CB Currency Declaration No. 06346,
dated June 29, 1986 for Japanese Yen 6,600,000.00.
An information was filed against Lo Chi Fai, with the RTC of Pasay City
for violation of Sec. 6, Central Bank Circular No. 960, as follows:
That on or about the 9th day of July, 1986, in the
City of Pasay, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court,
the above-named accused, Mr. LO CHI FAI, did
then and there wilfully, unlawfully and feloniously
attempt to take out of the Philippines through the
Manila International Airport the following foreign
currencies in cash and in checks:
The case, which was docketed as Criminal Case No. 86-10126-P, was
subsequently raffled to Branch 113, presided by herein respondent
Judge Baltazar A. Dizon.
Section 6 of Circular No. 960 of the Central Bank provides as follows:
Sec. 6. Export, import of foreign exchange;
exceptions. No person shall take out or
transmit or attempt to take out or transmit
foreign exchange in any form, out of the
Philippines directly, through other persons,
through the mails or through international
carriers except when specifically authorized by
the Central Bank or allowed under existing
international agreements or Central Bank
regulations.
Tourists and non-resident visitors may take out or
send out from the Philippine foreign exchange in
amounts not exceeding such amounts of foreign
exchange brought in by them. For purposes of
establishing the amount of foreign exchange
brought in or out of the Philippines, tourists and
non-resident temporary visitors bringing with
them more than US$3,000.00 or its equivalent in
other foreign currencies shall declare their
foreign exchange in the form prescribed by the
Central Bank at points of entries upon arrival in
the Philippines.
The penal sanction is provided by Section 1, P.D. No. 1883, which
reads as follows:
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
declared 8,600,000.00 Japanese Yen when he arrived on June 28,
1986 (Exh. 2). He also testified that his business associates, as per
their agreement to invest in some business with him in the
Philippines, started putting their money for this purpose in a common
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
court why he did not present all of these declarations when he was
apprehended at the airport, his answer was that he was not asked to
present the declaration papers of his associates, and besides, he does
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
bringing with him all the money intended to be invested in the
Philippines was because of the fear of his group that the "revolution"
taking place in Manila might become widespread. It was because of
this fear that he was urged by his associates to come to Manila on July
8, 1986 to bring the money out of the Philippines.
The respondent judge, in his decision acquitting the accused, stated:
The factual issue for this Court to determine is
whether or not the accused wilfully violated
Section 6 of Circular No. 960. The fact that the
accused had in his possession the foreign
currencies when he was about to depart from the
Philippines did not by that act alone make him
liable for Violation of Section 6.
What is imperative is the purpose for which the
act of bringing foreign currencies out of the
country was done the very intention. It is that
which qualifies the act as criminal or not. There
must be that clear intention to violate and benefit
from the act done. Intent is a mental state, the
existence of which is shown by overt acts of a
person.
The respondent proceeded to analyze the evidence which, according
to him, tended to show that the accused had no wilfull intention to
violate the law. According to the respondent in his decision:
... this Court is persuaded to accept the
explanation of the defense that the currencies
confiscated and/or seized from the accused
belong to him and his business associates
abovenamed. And from the unwavering and
unequivocal testimonies of Mr. Templo and all of
currencies in question came from abroad and not
from the local source which is what is being
prohibited by the government. Yes, simply
reading the provisions of said circular will, readily
show that the currency declaration is required for
the purpose of establishing the amount of
currency being brought by tourist or temporary
non-resident visitors into the country. The
currency declarations, therefore, is already (sic)
intended to serve as a guideline for the Customs
authorities to determine the amounts actually
brought in by them to correspond to the amounts
that could be allowed to be taken out. Indeed, this
Court is amazed and really has its misgivings in the
manner currency declarations were made as
testified to by the Central Bank employees. Why
the Bureau of Customs representative never took
part in all these declarations testified to by no less
than five (5) Central Bank employees? Seemingly,
these employees are the favorites of these
travellers. It is the hope of this Court that the
authorities must do something to remedy the
evident flaw in the system for effective
implementation of the questioned Central Bank
Circular No. 960.
But even with a doubtful mind this Court would
not be able to pin criminal responsibility on the
accused. This is due to its steadfast adherence
and devotion to the rule of law-a factor in
restoring the almost lost faith and erosion of
confidence of the people in the administration of
justice. Courts of Justice are guided only by the
rule of evidence.
The respondent-judge has shown gross incompetence or gross
ignorance of the law in holding that to convict the accused for
violation of Central Bank Circular No. 960, the prosecution must
establish that the accused had the criminal intent to violate the law.
The respondent ought to know that proof of malice or deliberate
intent (mens rea) is not essential in offenses punished by special laws,
which are mala prohibita. In requiring proof of malice, the respondent
has by his gross ignorance allowed the accused to go scot free. The
accused at the time of his apprehension at the Manila International
Airport had in his possession the amount of US$355,349.57 in
assorted foreign currencies and foreign exchange instruments (380
pieces), without any specific authority from the Central Bank as
required by law. At the time of his apprehension, he was able to
exhibit only two foreign currency declarations in his possession. These
were old declarations made by him on the occasion of his previous
trips to the Philippines.
Although lack of malice or wilfull intent is not a valid defense in a case
for violation of Central Bank Circular No. 960, the respondent
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
into the Philippines by him and his alleged business associates on
several previous occasions when they came to the Philippines,
supposedly to be used for the purpose of investing in some
unspecified or undetermined business ventures; that this money was
kept in the Philippines and he precisely came to the Philippines to take
the money out as he and his alleged business associates were afraid
that the "attempted revolution" which occurred on July 6,1986 might
spread. Such fantastic tale, although totally irrelevant to the matter
of the criminal liability of the accused under the information, was
swallowed by the respondent-judge "hook, line and sinker." It did not
matter to the respondent that the foreign currency and foreign
currency instruments found in the possession of the accused when he
was apprehended at the airport-380 pieces in all-and the amounts of
such foreign exchange did not correspond to the foreign currency
declarations presented by the accused at the trial. It did not matter to
the respondent that the accused by his own story admitted, in effect,
that he was a carrier" of foreign currency for other people. The
respondent closed his eyes to the fact that the very substantial
amounts of foreign exchange found in the possession of the accused
at the time of his apprehension consisted of personal checks of other
people, as well as cash in various currency denominations (12 kinds
of currency in all), which clearly belied the claim of the accused that
they were part of the funds which he and his supposed associates had
brought in and kept in the Philippines for the purpose of investing in
some business ventures. The respondent ignored the fact that most
of the CB Currency declarations presented by the defense at the trial
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
possession. Although contrary to ordinary human experience and
behavior, the respondent judge chose to give credence to the
fantastic tale of the accused that he and his alleged business
associates had brought in from time to time and accumulated and
kept in the Philippines foreign exchange (of very substantial amounts
in cash and checks in various foreign currency denominations) for the
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
story concocted by the accused so palpably unbelievable as to render
the findings of the respondent judge obviously contrived to favor the
acquittal of the accused, thereby clearly negating his claim that he
rendered the decision "in good faith." His actuations in this case
amount to grave misconduct prejudicial to the interest of sound and
fair administration of justice.
He not only acquitted the accused Lo Chi Fai, but directed in his
decision the release to the accused of at least the amount of
US$3,000.00, allowed, according to respondent, under Central Bank
Circular No. 960. This, in spite of the fact that forfeiture proceedings
had already been instituted by the Bureau of Customs over the
currency listed in the information, which according to the respondent
should be respected since the Bureau of Customs "has the exclusive
jurisdiction in the matter of seizure and forfeiture of the property
involved in the alleged infringements of the aforesaid Central Bank
Circular." In invoking the provisions of CB Circular No. 960 to justify
the release of US$ 3,000.00 to the accused, the respondent judge
again displayed gross incompetence and gross ignorance of the law.
There is nothing in the said CB Circular which could be taken as
authority for the trial court to release the said amount of U.S.
Currency to the accused. According to the above-cited CB Circular,
tourists may take out or send out from the Philippines foreign
exchange in amounts not exceeding such amounts of foreign
exchange brought in by them; for the purpose of establishing such
amount, tourists or non-resident temporary visitors bringing with
them more than US$3,000.00 or its equivalent in other foreign
currencies must declare their foreign exchange at points of entries
upon arrival in the Philippines. In other words, CB Circular No. 960
merely provides that for the purpose of establishing the amount of
foreign currency brought in or out of the Philippines, a tourist upon
arrival is required to declare any foreign exchange he is bringing in at
the time of his arrival, if the same exceeds the amount of US$3,000.00
or its equivalent in other foreign currencies. There is nothing in said
circular that would justify returning to him the amount of at least
US$3,000.00, if he is caught attempting to bring out foreign exchange
in excess of said amount without specific authority from the Central
Bank.
Accordingly, the Court finds the respondent Regional Trial Court
Judge, Baltazar R. Dizon, guilty of gross incompetence, gross
ignorance of the law and grave and serious misconduct affecting his
integrity and efficiency, and consistent with the responsibility of this
Court for the just and proper administration of justice and for the
attainment of the objective of maintaining the people's faith in the
judiciary (People vs. Valenzuela, 135 SCRA 712), it is hereby ordered
that the Respondent Judge be DISMISSED from the service. All leave
and retirement benefits and privileges to which he may be entitled
are hereby forfeited with prejudice to his being reinstated in any
branch of government service, including government-owned and/or
controlled agencies or corporations.
This resolution is immediately executory.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Melencio-Herrera, Gutierrez, Jr., Cruz,
Paras, Feliciano, Gancayco, Bidin, Sarmiento Cortes, and Grio-
Aquino, JJ., concur.
Padilla, Narvasa, JJ., took no part.
Mistake of Fact (Ignorantia Facti Excusat)
PEOPLE VS OANIS, ET, AL.
(74 PHIL 257)
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the accused
Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan
and corporal of the Philippine Constabulary, respectively, were, after
due trial, found guilty by the lower court of homicide through reckless
imprudence and were sentenced each to an indeterminate penalty of
from one year and six months to two years and two months of prison
correccional and to indemnify jointly and severally the heirs of the
deceased in the amount of P1,000. Defendants appealed separately
from this judgment.
In the afternoon of December 24, 1938. Captain Godofredo Monsod,
Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija,
received from Major Guido a telegram of the following tenor:
"Information received escaped convict Anselmo Balagtas
with bailarina and Irene in Cabanatuan get him dead or alive."
Captain Monsod accordingly called for his first sergeant and asked
that he be given four men. Defendant corporal Alberto Galanta, and
privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon
order of their sergeant, reported at the office of the Provincial
Inspector where they were shown a copy of the above-quoted
telegram and a newspaper clipping containing a picture of Balagtas.
They were instructed to arrest Balagtas and, if overpowered, to follow
the instruction contained in the telegram. The same instruction was
given to the chief of police Oanis who was likewise called by the
Provincial Inspector. When the chief of police was asked whether he
knew one Irene, a bailarina, he answered that he knew one of loose
morals of the same name. Upon request of the Provincial Inspector,
the chief of police tried to locate some of his men to guide the
constabulary soldiers in ascertaining Balagtas' whereabouts, and
failing to see anyone of them he volunteered to go with the party. The
Provincial Inspector divided the party into two groups with
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
one Brigida Mallare, who was then stripping banana stalks, and asked
her where Irene's room was. Brigida indicated the place and upon
further inquiry also said that Irene was sleeping with her paramour.
Brigida trembling, immediately returned to her own room which was
very near that occupied by Irene and her paramour. Defendants Oanis
and Galanta then went to the room of Irene, and an seeing a man
sleeping with his back towards the door where they were,
simultaneously or successively fired at him with their .32 and .45
caliber revolvers. Awakened by the gunshots, Irene saw her paramour
already wounded, and looking at the door where the shots came, she
saw the defendants still firing at him. Shocked by the entire scene.
Irene fainted; it turned out later that the person shot and killed was
not the notorious criminal Anselmo Balagtas but a peaceful and
innocent citizen named Serapio Tecson, Irene's paramour. The
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Provincial Inspector, informed of the killing, repaired to the scene and
when he asked as to who killed the deceased. Galanta, referring to
himself and to Oanis, answered: "We two, sir." The corpse was
thereafter brought to the provincial hospital and upon autopsy by Dr.
Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and a
.45 caliber revolvers were found on Tecson's body which caused his
death.
These are the facts as found by the trial court and fully supported by
the evidence, particularly by the testimony of Irene Requinea.
Appellants gave, however, a different version of the tragedy.
According to Appellant Galanta, when he and chief of police Oanis
arrived at the house, the latter asked Brigida where Irene's room was.
Brigida indicated the place, and upon further inquiry as to the
whereabouts of Anselmo Balagtas, she said that he too was sleeping
in the same room. Oanis went to the room thus indicated and upon
opening the curtain covering the door, he said: "If you are Balagtas,
stand up." Tecson, the supposed Balagtas, and Irene woke up and as
the former was about to sit up in bed. Oanis fired at him. Wounded,
Tecson leaned towards the door, and Oanis receded and shouted:
"That is Balagtas." Galanta then fired at Tecson.
On the other hand, Oanis testified that after he had opened the
curtain covering the door and after having said, "if you are Balagtas
stand up." Galanta at once fired at Tecson, the supposed Balagtas,
while the latter was still lying on bed, and continued firing until he had
exhausted his bullets: that it was only thereafter that he, Oanis,
entered the door and upon seeing the supposed Balagtas, who was
then apparently watching and picking up something from the floor,
he fired at him.
The trial court refused to believe the appellants. Their testimonies are
certainly incredible not only because they are vitiated by a natural
urge to exculpate themselves of the crime, but also because they are
materially contradictory. Oasis averred that be fired at Tecson when
the latter was apparently watching somebody in an attitudes of
picking up something from the floor; on the other hand, Galanta
testified that Oasis shot Tecson while the latter was about to sit up in
bed immediately after he was awakened by a noise. Galanta testified
that he fired at Tecson, the supposed Balagtas, when the latter was
rushing at him. But Oanis assured that when Galanta shot Tecson, the
latter was still lying on bed. It is apparent from these contradictions
that when each of the appellants tries to exculpate himself of the
crime charged, he is at once belied by the other; but their mutual
incriminating averments dovetail with and corroborate substantially,
the testimony of Irene Requinea. It should be recalled that, according
to Requinea, Tecson was still sleeping in bed when he was shot to
death by appellants. And this, to a certain extent, is confirmed by both
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
when Galanta shot Tecson, the latter was still lying in bed. Thus
corroborated, and considering that the trial court had the opportunity
to observe her demeanor on the stand, we believe and so hold that
no error was committed in accepting her testimony and in rejecting
the exculpatory pretensions of the two appellants. Furthermore, a
careful examination of Irene's testimony will show not only that her
version of the tragedy is not concocted but that it contains all indicia
of veracity. In her cross-examination, even misleading questions had
been put which were unsuccessful, the witness having stuck to the
truth in every detail of the occurrence. Under these circumstances,
we do not feel ourselves justified in disturbing the findings of fact
made by the trial court.
The true fact, therefore, of the case is that, while Tecson was sleeping
in his room with his back towards the door, Oanis and Galanta, on
sight, fired at him simultaneously or successively, believing him to be
Anselmo Balagtas but without having made previously any reasonable
inquiry as to his identity. And the question is whether or not they may,
upon such fact, be held responsible for the death thus caused to
Tecson. It is contended that, as appellants acted in innocent mistake
of fact in the honest performance of their official duties, both of them
believing that Tecson was Balagtas, they incur no criminal liability.
Sustaining this theory in part, the lower court held and so declared
them guilty of the crime of homicide through reckless imprudence.
We are of the opinion, however, that, under the circumstances of the
case, the crime committed by appellants is murder through specially
mitigated by circumstances to be mentioned below.
In support of the theory of non-liability by reasons of honest mistake
of fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488.
The maxim is ignorantia facti excusat, but this applies only when the
mistake is committed without fault or carelessness. In the Ah Chong
case, defendant therein after having gone to bed was awakened by
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
leaped from his bed and called out again., "If you enter the room I will
kill you." But at that precise moment, he was struck by a chair which
had been placed against the door and believing that he was then
being attacked, he seized a kitchen knife and struck and fatally
wounded the intruder who turned out to be his room-mate. A
common illustration of innocent mistake of fact is the case of a man
who was marked as a footpad at night and in a lonely road held up a
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
and that his life and property were in imminent danger at the hands
of the aggressor. In these instances, there is an innocent mistake of
fact committed without any fault or carelessness because the
accused, having no time or opportunity to make a further inquiry, and
being pressed by circumstances to act immediately, had no
alternative but to take the facts as they then appeared to him, and
such facts justified his act of killing. In the instant case, appellants,
unlike the accused in the instances cited, found no circumstances
whatsoever which would press them to immediate action. The person
in the room being then asleep, appellants had ample time and
opportunity to ascertain his identity without hazard to themselves,
and could even effect a bloodless arrest if any reasonable effort to
that end had been made, as the victim was unarmed, according to
Irene Requinea. This, indeed, is the only legitimate course of action
for appellants to follow even if the victim was really Balagtas, as they
were instructed not to kill Balagtas at sight but to arrest him, and to
get him dead or alive only if resistance or aggression is offered by him.
Although an officer in making a lawful arrest is justified in using such
force as is reasonably necessary to secure and detain the offender,
overcome his resistance, prevent his escape, recapture him if he
escapes, and protect himself from bodily harm (People vs. Delima, 46
Phil, 738), yet he is never justified in using unnecessary force or in
treating him with wanton violence, or in resorting to dangerous
means when the arrest could be effected otherwise (6 C.J.S., par. 13,
p. 612). The doctrine is restated in the new Rules of Court thus: "No
unnecessary or unreasonable force shall be used in making an arrest,
and the person arrested shall not be subject to any greater restraint
than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a
peace officer cannot claim exemption from criminal liability if he uses
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
was a notorious criminal, a life-termer, a fugitive from justice and a
menace to the peace of the community, but these facts alone
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
he is asleep. This, in effect, is the principle laid down, although upon
different facts, in U.S. vs. Donoso (3 Phil., 234, 242).
It is, however, suggested that a notorious criminal "must be taken by
storm" without regard to his right to life which he has by such
notoriety already forfeited. We may approve of this standard of
official conduct where the criminal offers resistance or does
something which places his captors in danger of imminent attack.
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
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
precipitate action of the appellants has cost an innocent life and there
exist no circumstances whatsoever to warrant action of such
character in the mind of a reasonably prudent man, condemnation
not condonation should be the rule; otherwise we should offer a
premium to crime in the shelter of official actuation.
The crime committed by appellants is not merely criminal negligence,
the killing being intentional and not accidental. In criminal negligence,
the injury caused to another should be unintentional, it being simply
the incident of another act performed without malice.
(People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se
celifique un hecho de imprudencia es preciso que no haya mediado
en el malicia ni intencion alguna de daar; existiendo esa intencion,
debera calificarse el hecho del delito que ha producido, por mas que
no haya sido la intencion del agente el causar un mal de tanta
gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal
Comentado, 5.a ed. pag. 7). And, as once held by this Court, a
deliberate intent to do an unlawful act is essentially inconsistent with
the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232;
People vs. Bindor, 56 Phil., 16), and where such unlawful act is wilfully
done, a mistake in the identity of the intended victim cannot be
considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to
support a plea of mitigated liability.
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
incomplete justifying circumstance defined in article 11, No. 5, of the
Revised Penal Code. According to such legal provision, a person incurs
no criminal liability when he acts in the fulfillment of a duty or in the
lawful exercise of a right or office. There are two requisites in order
that the circumstance may be taken as a justifying one: (a) that the
offender acted in the performance of a duty or in the lawful exercise
of a right; and (b) that the injury or offense committed be the
necessary consequence of the due performance of such duty or the
lawful exercise of such right or office. In the instance case, only the
first requisite is present appellants have acted in the performance
of a duty. The second requisite is wanting for the crime by them
committed is not the necessary consequence of a due performance
of their duty. Their duty was to arrest Balagtas or to get him dead or
alive if resistance is offered by him and they are overpowered. But
through impatience or over-anxiety or in their desire to take no
chances, they have exceeded in the fulfillment of such duty by killing
the person whom they believed to be Balagtas without any resistance
from him and without making any previous inquiry as to his identity.
According to article 69 of the Revised Penal Code, the penalty lower
by one or two degrees than that prescribed by law shall, in such case,
be imposed.
For all the foregoing, the judgment is modified and appellants are
hereby declared guilty of murder with the mitigating circumstance
above mentioned, and accordingly sentenced to an indeterminate
penalty of from five (5) years of prision correctional to fifteen (15)
years of reclusion temporal, with the accessories of the law, and to
pay the heirs of the deceased Serapio Tecson jointly and severally an
indemnity of P2,000, with costs.
Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.
Separate Opinions
PARAS, J., dissenting:
Anselmo Balagtas, a life termer and notorious criminal, managed to
escape and flee form Manila to the provinces. Receiving information
to the effect that he was staying with one Irene in Cabanatuan, Nueva
Ecija, the office of the Constabulary in Manila ordered the Provincial
Inspector in Cabanatuan by telegram dispatched on December 25,
1938, to get Balagtas "dead or alive". Among those assigned to the
task of carrying out the said order, were Antonio Z. Oanis, chief of
police of Cabanatuan, and Alberto Galanta, a Constabulary corporal,
to whom the telegram received by the Provincial Inspector and a
newspaper picture of Balagtas were shown. Oanis, Galanta and a
Constabulary private, after being told by the Provincial Inspector to
gather information about Balagtas, "to arrest him and, if
overpowered, to follow the instructions contained in the telegram,"
proceeded to the place where the house of Irene was located. Upon
arriving thereat, Oanis approached Brigida Mallari, who was then
gathering banana stalks in the yard, and inquired for the room of
Irene. After Mallari had pointed out the room, she was asked by Oanis
to tell where Irene's paramour, Balagtas, was, whereupon Mallari
answered that he was sleeping with Irene. Upon reaching the room
indicated, Oanis and Galanta, after the former had shouted "Stand up,
if you are Balagtas," started shooting the man who was found by them
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.
Consequently, Oanis and Galanta were charged with having
committed murder. The Court of First Instance of Nueva Ecija,
however, convicted them only of homicide through reckless
imprudence and sentenced them each to suffer the indeterminate
penalty of from 1 year and 6 months to 2 years and 2 months
of prision correctional, to jointly and severally indemnify the heirs of
Serapio Tecson in the amount of P1,000, and to pay the costs. Oanis
and Galanta have appealed.
In accomplishing the acts with which the appellants were charged,
they undoubtedly followed the order issued by the Constabulary
authorities in Manila requiring the Provincial Inspector in Cabanatuan
to get Balagtas dead or alive, in the honest belief that Serapio Tecson
was Anselmo Balagtas. As the latter became a fugitive criminal, with
revolvers in his possession and a record that made him extremely
dangerous and a public terror, the Constabulary authorities were
justified in ordering his arrest, whether dead or alive. In view of said
order and the danger faced by the appellants in carrying it out, they
cannot be said to have acted feloniously in shooting the person
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honestly believed by them to be the wanted man. Conscious of the
fact that Balagtas would rather kill than be captured, the appellants
did not want to take chances and should not be penalized for such
prudence. On the contrary, they should be commended for their
bravery and courage bordering on recklessness because, without
knowing or ascertaining whether the wanted man was in fact asleep
in his room, they proceeded thereto without hesitation and thereby
exposed their lives to danger.
The Solicitor-General, however, contends that the appellants were
authorized to use their revolvers only after being overpowered by
Balagtas. In the first place, the alleged instruction by the Provincial
Inspector to that effect, was in violation of the express order given by
the Constabulary authorities in Manila and which was shown to the
appellants. In the second place, it would indeed be suicidal for the
appellants or, for that matter, any agent of the authority to have
waited until they have been overpowered before trying to put our
such a character as Balagtas. In the third place, it is immaterial
whether or not the instruction given by the Provincial Inspector was
legitimate and proper, because the facts exist that the appellants
acted in conformity with the express order of superior Constabulary
authorities, the legality or propriety of which is not herein questioned.
The theory of the prosecution has acquired some plausibility, though
quite psychological or sentimental, in view only of the fact that it was
not Balagtas who was actually killed, but an "innocent man . . . while
he was deeply asleep." Anybody's heart will be profoundly grieved by
the trade, but in time will be consoled by the realization that the life
of Serapio Tecson was not vainly sacrificed, for the incident will
always serve as a loud warning to any one desiring to follow in the
footsteps of Anselmo Balagtas that in due time the duly constituted
authorities will, upon proper order, enforce the summary forfeiture
of his life.
In my opinion, therefore, the appellants are not criminally liable if the
person killed by them was in fact Anselmo Balagtas for the reason that
they did so in the fulfillment of their duty and in obedience to an order
issued by a superior for some lawful purpose (Revised Penal Code, art.
11, pars. 5 and 6). They also cannot be held criminally liable even if
the person killed by them was not Anselmo Balagtas, but Serapio
Tecson, because they did so under an honest mistake of fact not due
to negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil., 488).
It is true that, under article 4 of the Revised Penal Code, criminal
liability is incurred by any person committing a felony although the
wrongful act done be different from that which he intended; but said
article is clearly inapplicable since the killing of the person who was
believed to be Balagtas was, as already stated, not wrongful or
felonious.
The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-
General, is not in point, inasmuch as the defendant therein, who
intended to injure Hilario Lauigan with whom he had a quarrel, but
killed another by mistake, would not be exempted from criminal
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,
as it appears that the defendants therein killed one Pedro Almasan
after he had already surrendered and allowed himself to be bound
and that the said defendants did not have lawful instructions from
superior authorities to capture Almasan dead or alive.
The appealed judgment should therefore be reversed and the
appellants, Antonio Z. Oanis and Alberto Galanta, acquitted, with
costs de oficio.
HONTIVEROS, J., dissenting:
According to the opinion of the majority, it is proper to follow the rule
that a notorious criminal "must be taken by storm without regard to
his life which he has, by his conduct, already forfeited," whenever said
criminal offers resistance or does something which places his captors
in danger of imminent attack. Precisely, the situation which
confronted the accused-appellants Antonio Z. Oanis and Alberto
Galanta in the afternoon of December 24, 1938, was very similar to
this. It must be remembered that both officers received instructions
to get Balagtas "dead or alive" and according to the attitude of not
only the said appellants but also of Capt. Monsod, constabulary
provincial inspector of Nueva Ecija, it may be assumed that said
instructions gave more emphasis to the first part; namely, to take him
dead. It appears in the record that after the shooting, and having been
informed of the case, Capt. Monsod stated that Oanis and Galanta
might be decorated for what they had done. That was when all parties
concerned honestly believed that the dead person was Balagtas
himself, a dangerous criminal who had escaped from his guards and
was supposedly armed with a .45 caliber pistol Brigida Mallari, the
person whom the appellants met upon arriving at the house of Irene
Requinea, supposed mistress of Balagtas, informed them that said
Balagtas was upstairs. Appellants found there asleep a man closely
resembling the wanted criminal. Oanis said: If you are Balagtas stand
up," But the supposed criminal showed his intention to attack the
appellants, a conduct easily explained by the fact that he should have
felt offended by the intrusion of persons in the room where he was
peacefully lying down with his mistress. In such predicament, it was
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
by a person who, according to their belief, was Balagtas It was
unfortunate, however that an innocent man was actually killed. But
taking into consideration the facts of the case, it is, according to my
humble opinion, proper to apply herein the doctrine laid down in the
case of U.S. vs. Ah Chong (15 Phil., 488). In the instant case we have,
as in the case supra, an innocent mistake of fact committed without
any fault or carelessness on the part of the accused, who having no
time to make a further inquiry, had no alternative but to take the facts
as they appeared to them and act immediately.
The decision of the majority, in recognition of the special
circumstances of this case which favored the accused-appellants,
arrives at the conclusion that an incomplete justifying circumstance
may be invoked, and therefore, according to Article 69 of the Revised
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
Revised Penal Code, in favor of "a person who acts in the fulfillment
of a duty or in the lawful exercise of a right or office." I believe that
the application of this circumstance is not proper. Article 69 of the
Revised Penal Code provides as follows:
Art. 69. Penalty to be imposed when the crime committed is
not wholly excusable. A penalty lower by one or two
degrees than that prescribed by law shall be imposed if the
deed is not wholly excusable by reason of the lack of some
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
in the period which may be deemed proper, in view of the
number and nature of the conditions of exemption present
or lacking.
This provision has been copied almost verbatim from Article 84 of the
old Penal Code of the Philippines, and which was also taken from
Article 87 of the Spanish Penal Code of 1870.
Judge Guillermo Guevara, one of the members of the Committee
created by Administrative Order No. 94 of the Department of Justice
for the drafting of the Revised Penal Code, in commenting on Article
69, said that the justifying circumstances and circumstances
exempting from liability which are the subject matter of this article
are the following: self-defense, defense of relatives, defense of
strangers, state of necessity and injury caused by mere accident.
Accordingly, justifying circumstance No. 5 of Article 11 dealing with
the fulfillment of a duty or the lawful exercise of a right, calling or
office, cannot be placed within its scope.
The eminent treatiser of criminal law Mr. Groizard, in his commentary
of Article 87 of the Spanish Penal Code of 1870 which is the source of
Article 69 of our Code says:
Ni tratandose de la imbecilidad, ni de la locura, ni de la
menor edad, ni del que obra violentado por una fuerza
inrresistible o impulsado por miedo insuperable de un mal
igual o mayor, o en cumplimiento de un deber, o en el
ejercito legitimo de un derecho, oficio o cargo, o en virtud
de obediencia debida, ni del que incurre en alguna omision
hallandose impedido por causa legitima o insuperable,
puede tener aplicacion al articulo que comentamos. Y la
razon es obvia. En ninguna de estas execiones hay
pluralidad de requisitos. La irrespondabilidad depende de
una sola condicion. Hay o no perturbacion de la razon; el
autor del hecho es o no menor de nueve aos; existe o no
violencia material o moral irresistible, etc., etc.; tal es lo que
respectivamente hay que examinar y resolver para declarar
la culpabilidad o inculpabilidad. Es, por lo tanto, imposible
que acontezca lo que el texto que va al frente de estas lineas
rquiere, para que se imponga al autor del hecho la
penalidad excepcional que establece; esto es, que
falten algunos requisitos de los que la ley exige para eximir
de responsabilidad, y que concurran el mayor numero de
ellos, toda vez que, en los casos referidos, la ley no exige
multiples condiciones.
It must be taken into account the fact according to Article 69 a penalty
lower by one or two degrees than that prescribed by law shall be
imposed if the deed is not wholly excusable by reason of the lack of
some of the conditions required by the law to justify the same or
exempt from criminal liability. The word "conditions" should not be
confused with the word "requisites". In dealing with justifying
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
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
exercise of a right or office." It is evident that these two requisites
concur in the present case if we consider the intimate connection
between the order given to the appellant by Capt. Monsod, the
showing to them of the telegram from Manila to get Balagtas who was
with a bailarina named Irene, the conduct of said appellants in
questioning Brigida Mallari and giving a warning to the supposed
criminal when both found him with Irene, and the statement made by
Capt. Monsod after the shooting.
If appellant Oanis is entitled to a reversal of the decision of the court
below, there are more reasons in favor of the acquittal of appellant
Galanta. According to the evidence no bullet from the gun fired by
this accused ever hit Serapio Tecson. Galanta was armed in the
afternoon of December 24, 1938, with a .45 caliber revolver (Exhibit
L). He so testified and was corroborated by the unchallenged
testimony of his superior officer Sgt. Valeriano Serafica. According to
this witness, since Galanta was made a corporal of the Constabulary
he was given, as part of his equipment, revolver Exhibit L with a serial
No. 37121. This gun had been constantly used by Galanta, and,
according to Sgt. Pedro Marasigan, who accompanied said accused
when he took it from his trunk in the barracks on the night of
December 24, 1938, upon order of Captain Monsod, it was the same
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
of twenty bullets which he had on the morning of December 24, 1938,
when Sergeant Serafica made the usual inspection of the firearms in
the possession of the non-commissioned officers and privates of the
constabulary post at Cabanatuan. Galanta stated that he had fired
only one shot and missed. This testimony is corroborated by that of a
ballistic expert who testified that bullets exhibits F and O, the first
being extracted from the head of the deceased, causing wound No. 3
of autopsy report Exhibit C and the second found at the place of the
shooting, had not been fired from revolver Exhibit L nor from any
other revolver of the constabulary station in Cabanatuan. It was
impossible for the accused Galanta to have substituted his revolver
because when Exhibit L was taken from him nobody in the barracks
doubted that the deceased was none other than Balagtas. Moreover,
Exhibit L was not out of order and therefore there was no reason why
Galanta should carry along another gun, according to the natural
course of things. On the other hand, aside from wound No. 3 as above
stated, no other wound may be said to have been caused by a .45
caliber revolver bullet. Doctor Castro's record gives the conclusion
that wound No. 2 must have been caused by a .45 caliber revolver
bullet. Doctor Castro's record gives the conclusion that wound No. 2
must have been caused by a .45 caliber bullet, but inasmuch as the
diameter of the wound's entrance was only 8 mm., the caliber should
be .32 and not .45, because according to the medico-legal expert who
testified in this case, a bullet of a .45 caliber will produce a wound
entrance with either 11 mm. or 12 mm. diameter. All other wounds
found by the surgeon who performed the autopsy appeared to have
been caused by bullets of a lesser caliber. In consequence, it can be
stated that no bullet fired by Galanta did ever hit or kill Serapio Tecson
and therefore there is no reason why he should be declared criminally
responsible for said death.
U.S. VS AH CHONG
(15 PHIL 499)
CARSON, J.:
The evidence as to many of the essential and vital facts in this case is
limited to the testimony of the accused himself, because from the
very nature of these facts and from the circumstances surrounding
the incident upon which these proceedings rest, no other evidence as
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 doubt as to the weight of the evidence touching those details of
the incident as to which there can be said to be any doubt, the
following statement of the material facts disclose by the record may
be taken to be substantially correct:
The defendant, Ah Chong, was employed as a cook at "Officers'
quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same
place Pascual Gualberto, deceased, was employed as a house boy
or muchacho. "Officers' quarters No. 27" as a detached house situates
some 40 meters from the nearest building, and in August, 19087, was
occupied solely as an officers' mess or club. No one slept in the house
except the two servants, who jointly occupied a small room toward
the rear of the building, the door of which opened upon a narrow
porch running along the side of the building, by which communication
was had with the other part of the house. This porch was covered by
a heavy growth of vines for its entire length and height. The door of
the room was not furnished with a permanent bolt or lock, and
occupants, as a measure of security, had attached a small hook or
catch on the inside of the door, and were in the habit of reinforcing
this somewhat insecure means of fastening the door by placing
against it a chair. In the room there was but one small window, which,
like the door, opened on the porch. Aside from the door and window,
there were no other openings of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant,
who had received for the night, was suddenly awakened by some
trying to force open the door of the room. He sat up in bed and called
out twice, "Who is there?" He heard no answer and was convinced by
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
defendant, fearing that the intruder was a robber or a thief, leaped to
his feet and called out. "If you enter the room, I will kill you." At that
moment he was struck just above the knee by the edge of the chair
which had been placed against the door. In the darkness and
confusion the defendant thought that the blow had been inflicted by
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
chair was merely thrown back into the room by the sudden opening
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.
Pascual ran out upon the porch and fell down on the steps in a
desperately wounded condition, followed by the defendant, who
immediately recognized him in the moonlight. Seeing that Pascual
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
Pascual's wounds.
There had been several robberies in Fort McKinley not long prior to
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
defendant alleges, it was because of these repeated robberies he kept
a knife under his pillow for his personal protection.
The deceased and the accused, who roomed together and who
appear to have on friendly and amicable terms prior to the fatal
incident, had an understanding that when either returned at night, he
should knock at the door and acquiant his companion with his
identity. Pascual had left the house early in the evening and gone for
a walk with his friends, Celestino Quiambao and Mariano Ibaez,
servants employed at officers' quarters No. 28, the nearest house to
the mess hall. The three returned from their walk at about 10 o'clock,
and Celestino and Mariano stopped at their room at No. 28, Pascual
going on to his room at No. 27. A few moments after the party
separated, Celestino and Mariano heard cries for assistance and upon
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
and called Liuetenants Jacobs and Healy, who immediately went to
the aid of the wounded man.
The defendant then and there admitted that he had stabbed his
roommate, but said that he did it under the impression that Pascual
was "a ladron" because he forced open the door of their sleeping
room, despite defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of
Pascuals suggests itself, unless it be that the boy in a spirit of mischief
was playing a trick on his Chinese roommate, and sought to frightened
him by forcing his way into the room, refusing to give his name or say
who he was, in order to make Ah Chong believe that he was being
attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was
conveyed to the military hospital, where he died from the effects of
the wound on the following day.
The defendant was charged with the crime of assassination, tried, and
found guilty by the trial court of simple homicide, with extenuating
circumstances, and sentenced to six years and one day presidio
mayor, the minimum penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed
his roommate, Pascual Gualberto, but insisted that he struck the fatal
blow without any intent to do a wrongful act, in the exercise of his
lawful right of self-defense.
Article 8 of the Penal Code provides that
The following are not delinquent and are therefore exempt
from criminal liability:
xxx xxx xxx
4 He who acts in defense of his person or rights, provided
there are the following attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent
or repel it.
(3) Lack of sufficient provocation on the part of the person
defending himself.
Under these provisions we think that there can be no doubt that
defendant would be entitle to complete exception from criminal
liability for the death of the victim of his fatal blow, if the intruder who
forced open the door of his room had been in fact a dangerous thief
or "ladron," as the defendant believed him to be. No one, under such
circumstances, would doubt the right of the defendant to resist and
repel such an intrusion, and the thief having forced open the door
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notwithstanding defendant's thrice-repeated warning to desist, and
his threat that he would kill the intruder if he persisted in his attempt,
it will not be questioned that in the darkness of the night, in a small
room, with no means of escape, with the thief advancing upon him
despite his warnings defendant would have been wholly justified in
using any available weapon to defend himself from such an assault,
and in striking promptly, without waiting for the thief to discover his
whereabouts and deliver the first blow.
But the evidence clearly discloses that the intruder was not a thief or
a "ladron." That neither the defendant nor his property nor any of the
property under his charge was in real danger at the time when he
struck the fatal blow. That there was no such "unlawful aggression"
on the part of a thief or "ladron" as defendant believed he was
repelling and resisting, and that there was no real "necessity" for the
use of the knife to defend his person or his property or the property
under his charge.
The question then squarely presents it self, whether in this
jurisdiction one can be held criminally responsible who, by reason of
a mistake as to the facts, does an act for which he would be exempt
from criminal liability if the facts were as he supposed them to be, but
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
answer, and we hold that under such circumstances there is no
criminal liability, provided always that the alleged ignorance or
mistake or fact was not due to negligence or bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or
mistake of fact is sufficient to negative a particular intent which under
the law is a necessary ingredient of the offense charged (e.g., in
larcerny, animus furendi; in murder, malice; in crimes intent) "cancels
the presumption of intent," and works an acquittal; except in those
cases where the circumstances demand a conviction under the penal
provisions touching criminal negligence; and in cases where, under
the provisions of article 1 of the Penal Code one voluntarily
committing a crime or misdeamor incurs criminal liability for any
wrongful act committed by him, even though it be different from that
which he intended to commit. (Wharton's Criminal Law, sec. 87 and
cases cited; McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S.,
28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596;
Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213;
Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and
the only question worthy of consideration is whether malice or
criminal intent is an essential element or ingredient of the crimes of
homicide and assassination as defined and penalized in the Penal
Code. It has been said that since the definitions there given of these
as well as most other crimes and offense therein defined, do not
specifically and expressly declare that the acts constituting the crime
or offense must be committed with malice or with criminal intent in
order that the actor may be held criminally liable, the commission of
the acts set out in the various definitions subjects the actor to the
penalties described therein, unless it appears that he is exempted
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
States, the definitions of crimes and offenses as set out in the Penal
Code rarely contain provisions expressly declaring that malice or
criminal intent is an essential ingredient of the crime, nevertheless,
the general provisions of article 1 of the code clearly indicate that
malice, or criminal intent in some form, is an essential requisite of all
crimes and offense therein defined, in the absence of express
provisions modifying the general rule, such as are those touching
liability resulting from acts negligently or imprudently committed,
and acts done by one voluntarily committing a crime or misdemeanor,
where the act committed is different from that which he intended to
commit. And it is to be observed that even these exceptions are more
apparent than real, for "There is little distinction, except in degree,
between a will to do a wrongful thing and indifference whether it is
done or not. Therefore carelessness is criminal, and within limits
supplies the place of the affirmative criminal intent" (Bishop's New
Criminal Law, vol. 1, s. 313); and, again, "There is so little difference
between a disposition to do a great harm and a disposition to do harm
that one of them may very well be looked upon as the measure of the
other. Since, therefore, the guilt of a crime consists in the disposition
to do harm, which the criminal shows by committing it, and since this
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
own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as
it has been otherwise stated, the thing done, having proceeded from
a corrupt mid, is to be viewed the same whether the corruption was
of one particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and
ommissions punished by law.
Acts and omissions punished by law are always presumed
to be voluntarily unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor
shall incur criminal liability, even though the wrongful act
committed be different from that which he had intended to
commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the
word "voluntary" as used in this article, say that a voluntary act is
a free, intelligent, and intentional act, and roundly asserts that
without intention (intention to do wrong or criminal intention) there
can be no crime; and that the word "voluntary" implies and includes
the words "con malicia," which were expressly set out in the
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
code was redundant, being implied and included in the word
"voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the
crime can only be said to exempt from criminal responsibility when
the act which was actually intended to be done was in itself a lawful
one, and in the absence of negligence or imprudence, nevertheless
admits and recognizes in his discussion of the provisions of this article
of the code that in general without intention there can be no crime.
(Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions
insisted upon by Viada are more apparent than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which
declared that where there is no intention there is no crime
. . . 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
which must fall within the sphere of ethics if there is no
moral injury. (Vol. 2, the Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court of
Spain, as, for example in its sentence of May 31, 1882, in which it
made use of the following language:
It is necessary that this act, in order to constitute a crime,
involve all the malice which is supposed from the operation
of the will and an intent to cause the injury which may be
the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that
"considering that, whatever may be the civil effects of the inscription
of his three sons, made by the appellant in the civil registry and in the
parochial church, there can be no crime because of the lack of the
necessary element or criminal intention, which characterizes every
action or ommission punished by law; nor is he guilty of criminal
negligence."
And to the same effect in its sentence of December 30, 1896, it made
use of the following language:
. . . Considering that the moral element of the crime, that is,
intent or malice or their absence in the commission of an
act defined and punished by law as criminal, is not a
necessary question of fact submitted to the exclusive
judgment and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice
to be an essential element of the various crimes and misdemeanors
therein defined becomes clear also from an examination of the
provisions of article 568, which are as follows:
He who shall execute through reckless negligence an act
that, if done with malice, would constitute a grave crime,
shall be punished with the penalty of arresto mayor in its
maximum degree, to prision correccional in its minimum
degrees if it shall constitute a less grave crime.
He who in violation of the regulations shall commit a crime
through simple imprudence or negligence shall incur the
penalty of arresto mayor in its medium and maximum
degrees.
In the application of these penalties the courts shall
proceed according to their discretion, without being subject
to the rules prescribed in article 81.
The provisions of this article shall not be applicable if the
penalty prescribed for the crime is equal to or less than
those contained in the first paragraph thereof, in which case
the courts shall apply the next one thereto in the degree
which they may consider proper.
The word "malice" in this article is manifestly substantially equivalent
to the words "criminal intent," and the direct inference from its
provisions is that the commission of the acts contemplated therein, in
the absence of malice (criminal intent), negligence, and imprudence,
does not impose any criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would
seem to approximate in meaning the word "willful" as used in English
and American statute to designate a form of criminal intent. It has
been said that while the word "willful" sometimes means little more
than intentionally or designedly, yet it is more frequently understood
to extent a little further and approximate the idea of the milder kind
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
reasonable grounds to believe the thing lawful." And Shaw, C. J., once
said that ordinarily in a statute it means "not merely `voluntarily' but
with a bad purpose; in other words, corruptly." In English and the
American statutes defining crimes "malice," "malicious,"
"maliciously," and "malice aforethought" are words indicating intent,
more purely technical than "willful" or willfully," but "the difference
between them is not great;" the word "malice" not often being
understood to require general malevolence toward a particular
individual, and signifying rather the intent from our legal justification.
(Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases
cited.)
But even in the absence of express words in a statute, setting out a
condition in the definition of a crime that it be committed
"voluntarily," willfully," "maliciously" "with malice aforethought," or
in one of the various modes generally construed to imply a criminal
intent, we think that reasoning from general principles it will always
be found that with the rare exceptions hereinafter mentioned, to
constitute a crime evil intent must combine with an act. Mr. Bishop,
who supports his position with numerous citations from the decided
cases, thus forcely present this doctrine:
In no one thing does criminal jurisprudence differ more
from civil than in the rule as to the intent. In controversies
between private parties the quo animo with which a thing
was done is sometimes important, not always; but crime
proceeds only from a criminal mind. So that
There can be no crime, large or small, without an evil mind.
In other words, punishment is the sentence of wickedness,
without which it can not be. And neither in philosophical
speculation nor in religious or mortal sentiment would any
people in any age allow that a man should be deemed guilty
unless his mind was so. It is therefore a principle of our legal
system, as probably it is of every other, that the essence of
an offense is the wrongful intent, without which it can not
exists. We find this doctrine confirmed by
Legal maxims. The ancient wisdom of the law, equally
with the modern, is distinct on this subject. It consequently
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
actus, "an act done by me against my will is not my act;" and
others of the like sort. In this, as just said, criminal
jurisprudence differs from civil. So also
Moral science and moral sentiment teach the same thing.
"By reference to the intention, we inculpate or exculpate
others or ourselves without any respect to the happiness or
misery actually produced. Let the result of an action be
what it may, we hold a man guilty simply on the ground of
intention; or, on the dame ground, we hold him innocent."
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 The calm judgment of mankind keeps this doctrine among
its jewels. In times of excitement, when vengeance takes
the place of justice, every guard around the innocent is cast
down. But with the return of reason comes the public voice
that where the mind is pure, he who differs in act from his
neighbors does not offend. And
In the spontaneous judgment which springs from the nature
given by God to man, no one deems another to deserve
punishment for what he did from an upright mind, destitute
of every form of evil. And whenever a person is made to
suffer a punishment which the community deems not his
due, so far from its placing an evil mark upon him, it
elevates him to the seat of the martyr. Even infancy itself
spontaneously pleads the want of bad intent in justification
of what has the appearance of wrong, with the utmost
confidence that the plea, if its truth is credited, will be
accepted as good. Now these facts are only the voice of
nature uttering one of her immutable truths. It is, then, the
doctrine of the law, superior to all other doctrines, because
first in nature from which the law itself proceeds, that no
man is to be punished as a criminal unless his intent is
wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent
departure from this doctrine of abstract justice result from the
adoption of the arbitrary rule that Ignorantia juris non
excusat ("Ignorance of the law excuses no man"), without which
justice could not be administered in our tribunals; and compelled also
by the same doctrine of necessity, the courts have recognized the
power of the legislature to forbid, in a limited class of cases, the doing
of certain acts, and to make their commission criminal without regard
to the intent of the doer. Without discussing these exceptional cases
at length, it is sufficient here to say that the courts have always held
that unless the intention of the lawmaker to make the commission of
certain acts criminal without regard to the intent of the doer is clear
and beyond question the statute will not be so construed (cases cited
in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance
of the law excuses no man has been said not to be a real departure
from the law's fundamental principle that crime exists only where the
mind is at fault, because "the evil purpose need not be to break the
law, and if suffices if it is simply to do the thing which the law in fact
forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.)
But, however this may be, there is no technical rule, and no pressing
necessity therefore, requiring mistake in fact to be dealt with
otherwise that in strict accord with the principles of abstract justice.
On the contrary, the maxim here is Ignorantia facti
excusat ("Ignorance or mistake in point of fact is, in all cases of
supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed.,
190.)
Since evil intent is in general an inseparable element in every crime,
any such mistake of fact as shows the act committed to have
proceeded from no sort of evil in the mind necessarily relieves the
actor from criminal liability provided always there is no fault or
negligence on his part; and as laid down by Baron Parke, "The guilt of
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;
P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P.,
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
fell into the mistake is to be determined by the circumstances as they
appeared to him at the time when the mistake was made, and the
effect which the surrounding circumstances might reasonably be
expected to have on his mind, in forming the intent, criminal or other
wise, upon which he acted.
If, in language not uncommon in the cases, one
has reasonable cause to believe the existence of facts which
will justify a killing or, in terms more nicely in accord with
the principles on which the rule is founded, if without fault
or carelessness he does believe them he is legally
guiltless of the homicide; though he mistook the facts, and
so the life of an innocent person is unfortunately
extinguished. In other words, and with reference to the
right of self-defense and the not quite harmonious
authorities, it is the doctrine of reason and sufficiently
sustained in adjudication, that notwithstanding some
decisions apparently adverse, whenever a man undertakes
self-defense, he is justified in acting on the facts as they
appear to him. If, without fault or carelessness, he is misled
concerning them, and defends himself correctly according
to what he thus supposes the facts to be the law will not
punish him though they are in truth otherwise, and he was
really no occassion for the extreme measures. (Bishop's
New Criminal Law, sec. 305, and large array of cases there
cited.)
The common illustration in the American and English textbooks of the
application of this rule is the case where a man, masked and disguised
as a footpad, at night and on a lonely road, "holds up" his friends in a
spirit of mischief, and with leveled pistol demands his money or his
life, but is killed by his friend under the mistaken belief that the attack
is a real one, that the pistol leveled at his head is loaded, and that his
life and property are in imminent danger at the hands of the
aggressor. No one will doubt that if the facts were such as the slayer
believed them to be he would be innocent of the commission of any
crime and wholly exempt from criminal liability, although if he knew
the real state of the facts when he took the life of his friend he would
undoubtedly be guilty of the crime of homicide or assassination.
Under such circumstances, proof of his innocent mistake of the facts
overcomes the presumption of malice or criminal intent, and (since
malice or criminal intent is a necessary ingredient of the "act punished
by law" in cases of homicide or assassination) overcomes at the same
time the presumption established in article 1 of the code, that the
"act punished by law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that
the person slain had a felonious design against him, and
under that supposition killed him, although it should
afterwards appear that there was no such design, it will not
be murder, but it will be either manslaughter or excusable
homicide, according to the degree of caution used and the
probable grounds of such belief. (Charge to the grand jury
in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of
the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine
as follows:
Compiled by: Vim Malicay
 A, in the peaceable pursuit of his affairs, sees B rushing
rapidly toward him, with an outstretched arms and a pistol
in his hand, and using violent menaces against his life as he
advances. Having approached near enough in the same
attitude, A, who has a club in his hand, strikes B over the
head before or at the instant the pistol is discharged; and of
the wound B dies. It turns out the pistol was loaded
with powder only, and that the real design of B was only
to terrify A. Will any reasonable man say that A is more
criminal that he would have been if there had been a bullet
in the pistol? Those who hold such doctrine must require
that a man so attacked must, before he strikes the assailant,
stop and ascertain how the pistol is loaded a doctrine
which would entirely take away the essential right of self-
defense. And when it is considered that the jury who try the
cause, and not the party killing, are to judge of the
reasonable grounds of his apprehension, no danger can be
supposed to flow from this principle. (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of
Spain, cited by Viada, a few of which are here set out in full because
the facts are somewhat analogous to those in the case at bar.
QUESTION III. When it is shown that the accused was sitting
at his hearth, at night, in company only of his wife, without
other light than reflected from the fire, and that the man
with his back to the door was attending to the fire, there
suddenly entered a person whom he did not see or know,
who struck him one or two blows, producing a contusion on
the shoulder, because of which he turned, seized the person
and took from his the stick with which he had undoubtedly
been struck, and gave the unknown person a blow,
knocking him to the floor, and afterwards striking him
another blow on the head, leaving the unknown lying on the
floor, and left the house. It turned out the unknown person
was his father-in-law, to whom he rendered assistance as
soon as he learned his identity, and who died in about six
days in consequence of cerebral congestion resulting from
the blow. The accused, who confessed the facts, had always
sustained pleasant relations with his father-in-law, whom
he visited during his sickness, demonstrating great grief
over the occurrence. Shall he be considered free from
criminal responsibility, as having acted in self-defense, with
all the circumstances related in paragraph 4, article 8, of the
Penal Code? The criminal branch of the Audiencia of
Valladolid found that he was an illegal aggressor, without
sufficient provocation, and that there did not exists rational
necessity for the employment of the force used, and in
accordance with articles 419 and 87 of the Penal Code
condemned him to twenty months of imprisonment, with
accessory penalty and costs. Upon appeal by the accused,
he was acquitted by the supreme court, under the following
sentence: "Considering, from the facts found by the
sentence to have been proven, that the accused was
surprised from behind, at night, in his house beside his wife
who was nursing her child, was attacked, struck, and
beaten, without being able to distinguish with which they
might have executed their criminal intent, because of the
there was no other than fire light in the room, and
considering that in such a situation and when the acts
executed demonstrated that they might endanger his
existence, and possibly that of his wife and child, more
especially because his assailant was unknown, he should
have defended himself, and in doing so with the same stick
with which he was attacked, he did not exceed the limits of
self-defense, nor did he use means which were not
rationally necessary, particularly because the instrument
with which he killed was the one which he took from his
assailant, and was capable of producing death, and in the
darkness of the house and the consteration which naturally
resulted from such strong aggression, it was not given him
to known or distinguish whether there was one or more
assailants, nor the arms which they might bear, not that
which they might accomplish, and considering that the
lower court did not find from the accepted facts that there
existed rational necessity for the means employed, and that
it did not apply paragraph 4 of article 8 of the Penal Code, it
erred, etc." (Sentence of supreme court of Spain, February
28, 1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house,
which was situated in a retired part of the city, upon arriving
at a point where there was no light, heard the voice of a
man, at a distance of some 8 paces, saying: "Face down,
hand over you money!" because of which, and almost at the
same money, he fired two shots from his pistol,
distinguishing immediately the voice of one of his friends
(who had before simulated a different voice) saying, "Oh!
they have killed me," and hastening to his assistance,
finding the body lying upon the ground, he cried, "Miguel,
Miguel, speak, for God's sake, or I am ruined," realizing that
he had been the victim of a joke, and not receiving a reply,
and observing that his friend was a corpse, he retired from
the place. Shall he be declared exempt in toto from
responsibility as the author of this homicide, as having
acted in just self-defense under the circumstances defined
in paragraph 4, article 8, Penal Code? The criminal branch
of the Audiencia of Malaga did not so find, but only found
in favor of the accused two of the requisites of said article,
but not that of the reasonableness of the means employed
to repel the attack, and, therefore, condemned the accused
to eight years and one day of prison mayor, etc. The
supreme court acquitted the accused on his appeal from
this sentence, holding that the accused was acting under a
justifiable and excusable mistake of fact as to the identity of
the person calling to him, and that under the circumstances,
the darkness and remoteness, etc., the means employed
were rational and the shooting justifiable. (Sentence
supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.)
QUESTION VI. The owner of a mill, situated in a remote spot,
is awakened, at night, by a large stone thrown against his
window at this, he puts his head out of the window and
inquires what is wanted, and is answered "the delivery of all
of his money, otherwise his house would be burned"
because of which, and observing in an alley adjacent to the
mill four individuals, one of whom addressed him with
blasphemy, he fired his pistol at one the men, who, on the
next morning was found dead on the same spot. Shall this
man be declared exempt from criminal responsibility as
having acted in just self-defense with all of the requisites of
law? The criminal branch of the requisites of law? The
criminal branch of the Audiencia of Zaragoza finds that
there existed in favor of the accused a majority of the
requisites to exempt him from criminal responsibility, but
not that of reasonable necessity for the means, employed,
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 and condemned the accused to twelve months of prision
correctional for the homicide committed. Upon appeal, the
supreme court acquitted the condemned, finding that the
accused, in firing at the malefactors, who attack his mill at
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,
p. 128.)
A careful examination of the facts as disclosed in the case at bar
convinces us that the defendant Chinaman struck the fatal blow
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
assault he was in imminent peril, both of his life and of his property
and of the property committed to his charge; that in view of all the
circumstances, as they must have presented themselves to the
defendant at the time, he acted in good faith, without malice, or
criminal intent, in the belief that he was doing no more than
exercising his legitimate right of self-defense; that had the facts been
as he believed them to be he would have been wholly exempt from
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
falling into his mistake as to the facts, or in the means adopted by him
to defend himself from the imminent danger which he believe
threatened his person and his property and the property under his
charge.
The judgment of conviction and the sentence imposed by the trial
court should be reversed, and the defendant acquitted of the crime
with which he is charged and his bail bond exonerated, with the costs
of both instance de oficio. So ordered.
Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.
Separate Opinions
TORRES, J., dissenting:
The writer, with due respect to the opinion of the majority of the
court, believes that, according to the merits of the case, the crime of
homicide by reckless negligence, defined and punishes in article 568
of the Penal Code, was committed, inasmuch as the victim was
wilfully (voluntariomente) killed, and while the act was done without
malice or criminal intent it was, however, executed with real
negligence, for the acts committed by the deceased could not warrant
the aggression by the defendant under the erroneous belief on the
part of the accused that the person who assaulted him was a
malefactor; the defendant therefore incurred responsibility in
attacking with a knife the person who was accustomed to enter said
room, without any justifiable motive.
By reason of the nature of the crime committed, in the opinion of the
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
the heirs of the deceased, with the costs of both instances, thereby
reversing the judgment appealed from.
Article 4
Proximate Cause
US VS VALDEZ
(41 PHIL 497)
STREET, J.:
The rather singular circumstances attending the commission of the
offense of homicide which is under discussion in the present appeal
are these:
At about noon, on November 29, 1919, while the interisland
steamer Vigan was anchored in the Pasig River a short distance from
the lighthouse and not far from where the river debouches into the
Manila Bay, a small boat was sent out to raise the anchor. The crew
of this boat consisted of the accused, Calixto Valdez y Quiri, and six
others among whom was the deceased, Venancio Gargantel. The
accused was in charge of the men and stood at the stern of the boat,
acting as helmsman, while Venancio Gargantel was at the bow.
The work raising the anchor seems to have proceeded too slowly to
satisfy the accused, and he accordingly began to abuse the men with
offensive epithets. Upon this Venancio Gargantel remonstrated,
saying that it would be better, and they would work better, if he
would not insult them. The accused took this remonstrance as a
display of insubordination; and rising in rage he moved towards
Venancio, with a big knife in hand, threatening to stab him. At the
instant when the accused had attained to within a few feet of
Venancio, the latter, evidently believing himself in great and
immediate peril, threw himself into the water and disappeared
beneath its surface to be seen no more.
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
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
water and was drowned.
Two witnesses who were on the boat state that, immediately after
Venancio leaped into the water, the accused told the remaining
members of the crew to keep quiet or he would kill them. For this
reason they made no movement looking to rescue; but inasmuch as
there witnesses are sure that Venancio did not again come to the
surface, efforts at rescue would have been fruitless. The fact that the
accused at his juncture threatened the crew with violence is,
therefore, of no moment except tho show the temporary excitement
under which he was laboring.
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
friendly vigil lasted three days nothing came of it.
It may be added that Venancio has not returned to his lodging in
Manila, where he lived as a bachelor in the house of an acquaintance;
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
relatives, it is needless to say, take it for granted that he is dead.
The circumstances narrated above are such in our opinion as to
exclude all reasonable possibility that Venancio Gargantel may have
survived; and we think that the trial judge did not err in holding that
he is dead and that he came to his death by drowning under the
circumstances stated. The proof is direct that he never rose to the
surface after jumping into the river, so far as the observers could see;
and this circumstance, coupled with the known fact that human life
must inevitably be extinguished by asphyxiation under water, is
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
occasioned the likewise can be no doubt; for it is obvious that the
deceased, in throwing himself in the river, acted solely in obedience
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
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
sense of dander which causes such person to try to escape, and in so
doing he injuries himself, the person who creates such a state of mind
is responsible for the injuries which result." (Reg. vs. Halliday, 61 L. T.
Rep. [N.S.], 701.
In this connection a pertinent decision from the Supreme Court of
Spain, of July 13, 1882, is cited in the brief of The Attorney-General,
as follows: It appeared that upon a certain occasion an individual,
after having inflicted sundry injuries upon another with a cutting
weapon, pointed a shotgun at the injured person and to escape the
discharge the latter had to jump into a river where he perished by
drowning. The medical authorities charged with conducting the
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
received no succour, and that by throwing himself in the river he in
fact died of asphyxia from submersion. Having been convicted as the
author of the homicide, the accused alleged upon appeal that he was
only guilty of the offense of inflicting serious physical injuries, or at
most of frustrated homicide. The Supreme Court, disallowing the
appeal, enunciated the following doctrine: "That even though the
death of the injured person should not be considered as the exclusive
and necessary effect of the very grave wound which almost
completely severed his axillary artery, occasioning a hemorrhage
impossible to stanch under the circumstances in which that person
was placed, nevertheless as the persistence of the aggression of the
accused compelled his adversary, in order to escape the attack, to
leap into the river, an act which the accused forcibly compelled the
injured person to do after having inflicted, among others, a mortal
wound upon him and as the aggressor by said attack manifested a
determined resolution to cause the death of the deceased, by
depriving him of all possible help and putting him in the very serious
situation narrated in the decision appealed from, the trial court, in
qualifying the act prosecuted as consummated homicide, did not
commit any error of law, as the death of the injured person was due
to the act of the accused." (II Hidalgo, Codigo Penal, p. 183.)
The accused must, therefore, be considered the responsible author of
the death of Venancio Gargantel, and he was properly convicted of
the offense of homicide. The trial judge appreciated as an attenuating
circumstance the fact that the offender had no intention to commit
so great a wrong as that committed. (Par. 3, art. 9 Penal Code.) In
accordance with this finding the judge sentenced the accused to
undergo imprisonment for twelve years and one day, reclusion
temporal, to suffer the corresponding accessories, to indemnify the
family of the deceased in the sum of P500, and to pay the costs. Said
sentenced is in accordance with law; and it being understood that the
accessories appropriate to the case are those specified in article 59 of
the Penal Code, the same is affirmed, with costs against the appellant.
So ordered.
Mapa, C.J., Malcolm, Avancea and Villamor, JJ., concur.
Separate Opinions
ARAULLO, J., dissenting:
I dissent from the majority opinion in this case.
The only fact that the evidence shows in that Venancio Gargantel, one
of those who were in a boat of the steamer Vigan subject to the
orders of the accused Calixto Valdez and who at the time was engaged
in the work of raising the anchor of that vessel, which was then lying
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
approaching him, armed with a big knife, and in the attitude of
attacking him, threw himself into the water and disappeared from the
surface and had not been seen again. This event took place at noon
on November 29, 1919, the boat being then about 30 or 40 yards from
land and about 10 steps from the Vigan, there being two lighters
moored to the shore and at a distance of about 18 or 20 yards from
the boat. All of these facts are stated in the decision itself.
The original information in the present case, charging Calixto Valdez
y Quiri with the crime of homicide and alleging that as a result of his
having thrown himself into the river under the circumstances
mentioned, Venancio Gargantel was drowned, was presented on
December 8, 1919, that is, nine days afterwards.
There is no evidence whatever that the corpse of Venancio Gargantel
had been found or, what is the same thing, that he had died. From
November 28, the day when the event occurred, until December 8,
when the information was filed, it cannot in any manner be
maintained that the necessary time had passed for us to properly
conclude, as is alleged in the information, that said Gargantel had died
by drowning, as a consequence of his having thrown himself into the
water upon seeing himself threatened and attacked by the accused.
Neither does it appear in the evidence that all the precaution
necessary for us to assure ourselves, as a sure and proven fact, that
Venancio Gargantel then died by drowning, were taken; nor is there
any evidence that it would have been impossible for him, by
swimming or by any other means to rise to the surface at a place other
than the Pasig River or that where the boat was, from which he threw
himself into the river, and in that manner save himself from death.
From the evidence of the witnesses for the prosecution which is the
only evidence in the record, for the accused di not take the stand, it
only appears that Venancio Gargantel, after having jumped from the
boat, did not rise again to the surface. Such was the statement of two
Compiled by: Vim Malicay
of those witnesses who were members of the boat's crew at the time.
Another witness also declared that Gargantel was afterwards not
again seen at the house where he lived in this city, No. 711 San Nicolas
Street, where he kept his trunks and some effects, a fact which caused
his mother, who lived in the municipality of Guimbal, in the Province
of Iloilo, upon being informed of it and upon the failure of Venancio
to appear in said place, to give special power on the 28th of that
month of December, that is, one month afterwards, to a student,
Ignacio Garzon, to get the trunks and effects of Venancio from said
house. Sid Garzon himself testified, upon being asked whether
Venancio Gargantel had returned to the house of his parents since
November 29, 1919, that he had no information about it, and another
witness, Pedro Garcia, of the prosecution, stated that he had probably
died, because he had not seen Venancio Gargantel.
Therefore, in short, the only fact proved is that since Venancio
Gargantel threw himself into the river, upon being threatened with a
knife by the accused, his whereabouts has remained unknown even
at the moment of rendering judgment in this case, or, February 9,
1920, that is, two and one-half months after the occurrence of the
event.
It is stated in the decision that the friend and parents of Gargantel
give him up for dead. There is nevertheless in the record no statement
of any parent of Gargantel to that effect; for his mother Maria
Gatpolitan, a resident of the municipality of Guimbal, merely stated
in the power of attorney executed in favor of Ignacio Garzon that the
latter should take steps in order that the city fiscal might investigate
the death of her son which, according to information, was caused by
another members, of the crew of the steamer Vigan; and none of his
friends, that is, none of the two members of the party in the boat at
that time and of the crew of the steamer Vigan, nor Maximo Gumbog,
the owner of the house in which Gargantel lived in this city, nor Pedro
Garcia, another member of the crew of that steamer, and finally, nor
Ignacio Garzon himself has stated that he gave up Gargantel for dead,
for the simple reason that this was not possible, for they only knew
that he did not again rise to the surface and was not seen again after
having thrown himself into the river from the boat.
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
circumstance that never rose to the surface after having jumped into
the river, as witnessed by the persons present, together with the
admitted fact that human life is necessarily asphyxiated under the
water, is conclusive that he died. Then, there is nothing more than a
deduction that Gargantel had died based upon those facts and
circumstances.
In my opinion this is not sufficient to convict the accused as guilty of
homicide, because there is the possibility that Gargantel had risen to
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
out of it in the bay and had gone abroad, or to some province of these
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 the necessary investigation has been made in order to
determined even with only some measure of certainty, not to say
beyond all reasonable doubt, that it was and is impossible to find said
person or determined his whereabouts.
Furthermore, there is not even a presumption juris tantum that he
had died, for in order that this presumption may exist, according to
section 334 of the Code of Civil Procedure, it is necessary that no
information about him should have been received for seven years
from his disappearance upon his throwing himself into the river,
which occurred on November 29, 1919, that is, only about one year
and four months ago. And if, in order that a finding of a civil character
in favor of or against some person, may be made, by virtue of that
presumption, it is necessary that seven years should have elapsed
without any notice being received of the person whose whereabouts
is unknown, it is not just, reasonable, or legal that the period of one
year and four months from his disappearance or since Venancio
Gargantel threw himself into the water should suffice for us to impose
upon the accused Calixto Valdez such a grave penalty as that of twelve
years and one day of reclusion temporal, merely assuming without
declaring it, as a proven fact, that Gargantel has died and at the same
time finding said accused to be the author of that death.
Lastly, the decision of the English Supreme Court or that of the
Spanish Supreme Court dated July 13, 1882, cited by the majority
opinion is not applicable. The first, is not applicable because in the
present case it is not proved, beyond reasonable doubt, that some
damage resulted to Gargantel, just as it cannot be considered as
proved that he had died, or that he had been injured or that he had
suffered some injury after having thrown himself into the river as a
result of the threat of the accused. The second is not applicable
because the decision of the Supreme Court of Spain refers to a case,
in which the injured party had already been wounded with a cutting
instrument by the accused before throwing himself into the river
upon the latter aiming at him with his gun, it having afterwards been
proved upon his being taken out of the river that the wound inflicted
upon him by the accused was mortal; and, consequently, it was
declared by said court that, even if the death of the deceased be
considered as not having resulted exclusively and necessarily from
that most grave wound, the persistence of the aggression of the
accused compelled his adversary to escape it and threw himself into
the river, by depriving him of all possible help and placing him in the
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 the reasons above stated, I am of the opinion, with due respect to
the opinion of the majority, that the accused Calixto Valdez y Quiri
cannot be found guilty of homicide and should be acquitted.
PEOPLE VS ALMONTE
(56 PHIL 54)
IMPERIAL, J.:
Purificacion Almonte is charged with the crime of homicide, the
information reading as follows:
"The undersigned provincial fiscal charges Purificacion Almonte with
the crime of homicide, committed as follows:
"That on or about October 1, 1930, in the municipality of Sorsogon,
Province of Sorsogon, Philippine Islands, and within the jurisdiction of
this court, the aforementioned accused did willfully, unlawfully, and
feloniously beat, attack, and assault one Felix Te Sue with a knife,
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.
(Sgd.) "JACINTO YAMZON
"Provincial Fiscal"
The accused pleaded not guilty, and after the trial, at which she was
represented by counsel, she was convicted of the said crime of
homicide, and sentenced to fourteen years, eight months, and one
day of reclusion temporal, to indemnify the heirs of the deceased in
the sum of P1,000, and to pay the costs. The defendant appealed.
The facts which have been proved beyond question are as follows:
Until a week before the crime, the accused lived maritally with the
Chinaman Felix Te Sue who was a married man. Because one Miguela
Dawal, with whom he had also lived maritally, threatened to bring suit
against him unless he rejoined her, the Chinaman and the accused
voluntarily agreed to separate. From that time on Te Sue lived in the
barrio of Guinlajon, municipality of Sorsogon, Province of Sorsogon,
together with the said Miguela Dawal. On the morning of October 1,
1930, the accused visited her former paramour and on entering the
house, found him with Miguela. When Te Sue saw her, he approached
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
on being pushed by Te Sue and Miguela, feeling that she was being
unjustly treated, took hold of a small penknife she carried and
stabbed the man in the abdomen. Horrified, perhaps, at her deed, she
fled to the street, leaving the blade sticking in her victims abdomen,
and, taking the first bus that chanced to pass, finally went home. The
injured man was at once taken to the provincial hospital where he
was given first aid treatment, and Doctor Ortega performed a slight
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
on the sixth day the patient succumbed to complications which we
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.
In this instance the defense assigns the following alleged errors as
committed by the trial court in its judgment:
"I. The trial judge erred in holding that the unnecessary movements
of the deceased while in the provincial hospital of Sorsogon for
medical treatment were caused by the pain of the wound inflicted by
the accused.
"II. The trial judge erred in holding the accused criminally responsible
for the secondary hemorrhage which caused the death of the
deceased.
"III. The trial judge erred in holding the accused responsible for the
death of the offended party as the direct and immediate consequence
of the wound inflicted by the accused.
"IV. The trial judge erred in convicting the accused of the crime of
homicide as charged in the information instead of lesiones leves as
supported by the evidence in this case.
The first three assignments of error raise questions of fact and what
really caused the death of the deceased. It is strongly argued that the
judgment appealed from is erroneous in finding that the deceaseds
movements, which Doctor Ortega declares were the cause of the
secondary hemorrhage that produced his death, were due to the pain
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
deceased himself declared, the excessive warmth of the bed and the
fact that he was unaccustomed to such a bed. To ascertain this
important point requires a careful examination of the evidence upon
this particular.
Doctor Eduardo Ortega, in charge of the Sorsogon Provincial Hospital,
a physician of admitted ability and skill, speaking of the patients
physical condition when he entered the hospital, testified as
follows:jgc:chanrobles.com.ph
"Q. What was the result of your examination?
"A. I found a wound in the abdomen, on the left side near the
umbilical region; it was not deep and did not penetrate very far, but
it passed through the muscle tissue.
"Q. What caused the death of Felix Te Sue?
"A. He died of a secondary internal hemorrhage.
"Q. How?
"A. The wound was caused by a certain blow, because the penknife
was not very sharp; the force of the blow which introduced the knife
into the flesh produced a secondary congestion of the internal organ
so that any unnecessary movement on the patients part would cause
congestion of the veins, or would make them more congested and
cause them to bleed.
"Q. And in the case of Felix Te Sue, did they bleed?
"A. He began to bleed after he had been twenty-four hours in the
hospital.
"Q. Why do you call it a secondary hemorrhage?
"A. There are many kinds of hemorrhages: Primary, in this particular
case, if the wound had reached the internal organs and severed the
veins of those organs it would be called a primary hemorrhage
because it was directly caused by the wound; but there was no
immediate hemorrhage after the wound was inflicted, but twenty-
four hours later; in other words, there was what is called a secondary
hemorrhage.
"Q. You also said that Felix Te Sue had made an unnecessary
movement?
"A. Yes, sir.
"Q. Can you tell the court what were those unnecessary movements?
"A. Those movements were the following: The patient began by
moving from side to side; then he would sit up at night, and perhaps
jump out of bed, and begin walking about; when asked why he did
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
lying in bed.
"Q. Do you mean to say that the patients movements brought on the
secondary internal hemorrhage?
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"A. Yes, sir, they produced the secondary internal hemorrhage.
"Q. And he died because of that secondary internal hemorrhage?
"A. Yes, sir.
"Q. Was the wound alone, as treated by you, sufficient to cause the
death of Felix Te Sue?
"A. If the patient had lain in bed quietly, in order to avoid increasing
the congestion of the internal veins, there would have been no
secondary hemorrhage.
"Q. But the wound you treated could have been healed?
"A. Yes, sir; it could have been.
"Q. In how many days could it have been healed?
"A. That wound, if there had been no secondary infection, would have
healed up in a week.
"Q. You said that Felix Te Sue had been asked why he moved about
contrary to the physicians instructions; what instructions did you give
him?
"A. As soon as he had been admitted into the hospital, he was
examined, and then made to lie in bed. Medical treatment was then
administered, and he was given to understand that he should remain
in bed, for any unnecessary movement might aggravate his condition,
and that what he needed was complete rest.
"Q. If he had not made those movements, do you think death would
have ensued?
"A. I am very sure he would not have had that secondary hemorrhage,
because as a matter of fact, during the first twenty-four hours he had
no symptoms of having an internal hemorrhage.
"Q. And that internal congestion of the veins, although those veins
contained more blood than usual, would not have caused the
hemorrhage? That is to say, the veins would not have burst, if the
patient Felix Te Sue had not moved about, as you have said?
"A. Yes, sir; that internal congestion would not have burst if the
patient had not moved about.
"Q. Can you tell us, doctor, why strangers who know nothing about
the care of the sick are placed in charge of a patient so delicate that
his moving may cause his death, as indeed it did, in this case?
"A. The patient was not placed in the care of strangers; we have
nurses to attend and see to the patient as often as it is needed,
besides the physicians visits to him; but even in the presence of the
doctor and the hospital attendants, and after we had put the patient
to bed, he continued to struggle with us.
"Q. Do you mean to say, then, that Felix Te Sue was fastened in his
bed, and in spite of that he was able to leave it and walk about?
"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
violent." (Pages 16-22, transcript of the stenographic notes.)
From the foregoing testimony it may be inferred: That the deceased
was stabbed on the left side of the abdominal region, near the navel;
that the wound did not involve any internal organ; that upon arriving
at the hospital, he was submitted to a minor operation which
consisted in cleaning, medicating, and suturing the wound; that upon
his arrival, the patient was in a nervous state; that during the
operation they tied down the patient; that immediately after the
operation Doctor Ortega admonished him to keep quiet because any
movement he might make would change his pathological state for the
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,
already congested because of the wound, bled, and the hemorrhage
thus produced caused his death.
The defense contends, with which the Attorney-General agrees, that
according to Doctor Ortegas testimony the determining cause of Te
Sues death was not the wound inflicted by the accused, but his own
carelessness in moving about against the doctors orders, which
produced the internal hemorrhage. We agree with both parties that
according to Doctor Ortega, the immediate and determining cause of
the death was none other than the internal hemorrhage produced by
the rupture of the abdominal blood vessels; but we cannot agree, in
view of the evidence, that the real cause of said death was not the
wound inflicted upon the victim. Carefully analyzing Doctor Ortegas
testimony, we reach the inevitable conclusion that the internal veins
were congested from the beginning because of the force of the blow
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
penknife was not very sharp, the force of the blow which introduced
the knife into the flesh produced a secondary congestion of the
internal organ so that an unnecessary movement on the patients part
would cause congestion of the veins, or would make them more
congested, causing them to bleed" ; and that what really impelled the
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
aggravate the criminal liability of the accused, but simply his nervous
condition, which was noted from the moment he entered the
provincial hospital. It was not the warmth of the bed or his not being
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
was suffering. We are convinced that under normal conditions, if the
patient had not been ill, he would not have violated the doctors
orders, knowing, as he did, that the slightest movement might
occasion a complication or internal hemorrhage capable of causing
death.
The point raised by Viada in volume 3 of his work, pages 41 and 42,
involves facts similar to those established in this case, and we believe
the decision of the Supreme Court of Spain is perfectly applicable to
this case:.ph
"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
in thirty or forty days, as to the patients purely nervous
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
nowise lessen the evil, the seriousness whereof is to be judged, not
by the violence of the means employed, but by the result actually
produced and as the wound which the appellant inflicted upon the
deceased was the cause which determined his death, without his
being able to counteract its effects, it is evident that the act in
question should be qualified as homicide, etc. (Decision of April 3,
1879, published in the Gazette on the 16th of June.)"
In the case cited the doctors were of the opinion that death was not
an immediate consequence of the wound received, but was rather
due to the victims purely nervous temperament, his irritability and
other causes, peculiar to his physical constitution. In the case in
question, it is sought to attribute the internal hemorrhage that
directly caused death, not to the wound or injury, but to the patients
movements, overlooking the fact that they were due to his nervous
condition, and that this state of nervousness could only be the result
of the wound inflicted by the appellant. We hold, therefore, that the
real cause of death in this case was not the bodily movements
referred to, but the congestion of the internal veins produced
beforehand by the force of the blow which caused the wound and the
nervous condition of the deceased.
In United States v. Sornito (4 Phil., 357), we held that "In crimes
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 seriousness and extent of the evil or injury produced and to define
the crime in accordance with the law. It must also be taken into
consideration that the guilty parties are responsible under the law for
all the unlawful acts executed by them in violation of its principles and
for all the consequences of those acts."cralaw virtua1aw library
In United States v. Montes (6 Phil., 443), we also held that "Where a
person voluntarily and with intent of injuring another commits an act
which is notoriously unlawful, he shall be held responsible for the
consequences of his criminal action, even though when such wrongful
act constitutes the crime of homicide it appears that he had no
intention of killing the deceased."cralaw virtua1aw library
In United States v. Navarro (7 Phil., 713), we reaffirmed the same
principle holding that" the firm and unalterable jurisprudence of the
Supreme Court (interpreting the Penal Code now in force and effect)
is that the crime of homicide is committed when death ensues or
follows, as the result of a wound inflicted by another, whether the
death be the precise and necessary consequence of the injuries or
wounds, or whether death resulted from accidents caused or brought
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
and unalterable doctrine, and so held by the Court of Cassation, that
the aggressor is responsible for all the natural consequences of the
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.)"
The same doctrine was laid down in United States v. Monasterial (14
Phil., 391). Here it was held, among other things, "persons who are
responsible for an act constituting a crime are also liable for all the
consequences arising therefrom and inherent therein, other than
those due to incidents entirely foreign to the act executed, or which
originate through the fault or carelessness of the injured person,
which are exceptions to the rule not arising in the present case.
At this juncture it is well to remember that, as we stated in the
beginning, the patients nervous condition when the complication or
internal hemorrhage which caused death set in, was an inherent
physiological condition produced by the wound in the abdomen. It
goes without saying that if he had not been wounded he would not
have undergone that extraordinary state and condition, nor have had
to leave his bed during the critical stage of his illness.
Lastly, in United States v. Zamora (32 Phil., 218), we held that "One
who performs a criminal act should be held to liability for the act and
for all of its consequences, although both were inflicted upon a
person other than the one whom the felon intended to injure.
The cases which the Attorney-General cites in his brief are not
applicable, for the reason that in them all the deaths were due to alien
acts, malicious and imprudent, performed by the injured persons
themselves. We have shown that in the case at bar the real and actual
cause of death of the deceased was the hemorrhage of the internal
veins, which had already been congested by the wound produced and
the patients nervous condition, rather than the so-called bodily
movements, and that these, if they were the immediate cause of his
death, were the direct consequence of the patients pathological
condition or nervousness. At any rate, they are both traceable to the
wound inflicted by the accused.
The last assignment of error is but a corollary to the first three, which
have just been refuted, and it is contended that the accused can only
be convicted of slight physical injuries, instead of the serious crime of
homicide. If the appellant must answer for all the consequences of
her acts voluntarily performed, as we have shown, it necessarily and
logically follows that she must be convicted of the graver offense.
The appellant is entitled to the mitigating circumstances of not having
intended to commit so serious a crime as that committed, and of
having acted with passion and obfuscation. The first is shown by the
fact that she made use of a small penknife, and the second, by the
fact that before the attack she had been pushed out of the room
where the victim was, and that she considered such treatment as an
offense or abuse. The penalty must therefore be reduced one degree
or to prision mayor.
Wherefore, the judgment appealed from is modified and the
appellant is sentenced to eight years and one day of prision mayor, to
indemnify the heirs of the deceased in the amount of P500, to suffer
the accessory penalties of article 61 of the Penal Code, and to pay the
costs of both instances. So ordered.
Avancea, C.J., Johnson, Street and Villamor, JJ., concur.
Separate Opinions
VILLA-REAL, J., dissenting:chanrob1es virtual 1aw library
It appears from the testimony of Dr. Eduardo Ortega that immediately
after being wounded by the accused, Felix Te Sue went to the hospital
of Sorsogon where he was examined by said doctor, who found that
he had a wound on the left side of the abdomen near the umbilical
region, which while it penetrated the muscle tissue, was not deep and
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,
given medical treatment, and told to keep quiet because he needed
complete rest and any unnecessary movement might aggravate his
condition. Besides the hospital nurses and attendants, two relatives
of the injured person watched him night and day.
As the penknife was not sharp, the force of the blow by which it was
introduced into the flesh produced a secondary congestion in the
internal organ, which, through any unnecessary movement on the
patients part might cause congestion of the veins. After twenty-four
hours had passed without any indication of an internal hemorrhage,
it set in with the bursting of the congested veins, because the patient,
disobeying the doctors orders, moved from side to side, sat up in bed
at night, got up, and paced about the room, notwithstanding the
warnings of the nurses and relatives who attended him, saying that
he could not remain lying down because the bed was too warm for
him, and that he was not used to that kind of furniture. In the opinion
of the physician, the patient would not have suffered a secondary
hemorrhage and death would not have occurred, if he had not moved
about.
In finding the defendant-appellant guilty of the crime of homicide and
not merely of slight physical injuries, the majority rely upon the
holding that the movements made by the patient against the doctors
orders, which caused the rupture of the veins already congested by
the impact of the blow, were due to his nervous condition and not to
the excessive warmth he felt or to his not being used to sleeping in a
bed.
The doctor who examined the deceased, and upon whose testimony
the majority base their conclusion, said nothing about the victims
nervous temperament, nor has the latter said he was so. The doctor
said quite plainly and we have no reason to doubt him that the
patients restlessness was due to the fact that the bed was to warm
for him, and that he was not used to it. One need not have a nervous
temperament in order to look for coolness and comfort in sleeping. If
the injured man, for the sake of a cooler and more comfortable bed,
wished to risk his life by a purely conscious and voluntary act
violating the doctors instructions and refusing to listen to his
warnings and those of the persons attending him, he alone must be
held responsible for his own death, which resulted from his
carelessness; and such death cannot be attributed to the person who
wounded him slightly, and who is, indeed, responsible for the natural
and logical consequences of such a voluntary act, but not for the
death, which as we have seen, was not a natural and logical
consequence of the wound.
Very similar to this are the cases cited by Viada in volume V of the fifth
edition of his commentaries, where the Supreme Court of Spain laid
down the following doctrines:
"QUESTION 22. If the immediate cause of death was traumatic
erysipelas complicated with meningoencephalitis arising from the
erysipelas itself, and the remote and original cause of the latter was
the wound inflicted by the defendant on the upper part of the
offended partys left parietal bone, although if the victim were not
predisposed to erysipelas, had not gone out in the open, and had
been given proper medicine, it is probable the accident would have
been avoided and the wound healed in thirty days. Is the person who
inflicted the wound guilty of homicide or of physical injuries? The
Supreme Court has held in favor of the latter and lighter offense,
arguing that to make the special circumstances stated above qualify
the act prosecuted as homicide would be to hold the accused
responsible for the consequences of grossly imprudent acts and
omissions of the injured person, which unfortunately brought on his
death, and which in all justice and reason can only be imputed to the
latter, and not to the defendant, who had no share in them and could
not have prevented them. (Decision of June 15, 1874, Gazette for
August 26th.)" 5 Viada, 5th edition, page 80.
"QUESTION 23. When a wound in the head, which is essentially a less
serious physical injury, gives rise to traumatic erysipelas, which in turn
produces cerebral meningitis from which the person injured dies in
eleven days, and the doctors declare that the erysipelas may have
been due to the patients carelessness in constantly exposing himself
to a draft: Is the act homicide or merely less serious physical injuries?
The Audiencia of Granada held in favor of the former, but upon appeal
on the ground that articles 419 and 433 of the Code had been
violated, because the crime of less serious physical injuries was
penalized as if it were homicide, the Supreme Court held that the
appeal had been well taken, because, according to the opinion of the
doctors, the erysipelas which preceded the meningitis that produced
death may have been due to the patients carelessness in constantly
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
it actually occasioned the death, there is some doubt, for a crime is
determined by the act wherein it consists, apart from the event, the
cause of which is unknown, and if this be so, the crime in question is
none other than less serious physical injuries. (Decision of December
17, 1878, Gazette of February 7, 1879.)" 5 Viada, 5th edition, page 81.
"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
of the arm, had it not been for complications due to mistakes
committed by the doctor in the surgical operation and treatment: Is
the crime homicide? It was so held by the Audiencia of Jaen; but upon
appeal taken by the accused, the Supreme Court only found him guilty
of the crime of serious physical injuries: Whereas, although as this
court has repeatedly held, a person is liable for all justiciable acts
contrary to law and for all the consequences thereof, having inflicted
physical injuries, from which or from whose direct or immediate
consequences death results, either incidentally or accidentally, the
offender must answer for the ultimate result of his act, i.e., for the
death resulting from the injury he inflicted, yet this principle is not
applicable where it clearly appears that the injury would not have
caused death, in the ordinary course of events, but would have healed
in so many days, and where it is shown beyond all doubt that the
death is due to the malicious or careless acts of the injured person or
a third person, because it is a more and equitable principle universally
recognized and constantly applied, that one is only accountable for
his own acts and their natural or logical consequences, and not for
those which bear no relation to the initial cause and are due to the
carelessness, fault, or lack of skill of another, whether it be the injured
man himself or a third person: Whereas, the proper jury having found,
upon the strength of the evidence before it, that the wounds inflicted
by the appellant Jeronimo Navarro upon Bartolome Martinez would
have healed, with the loss of an arm, had it not been for certain
complications due to the mistakes committed by the doctor in the
surgical operations and treatment thereof, it is obvious that following
the doctrine set forth in the foregoing reasonings, the appellant
should not have been convicted of the crime of homicide, but merely
of serious physical injuries with the loss of a principal member, this
being the only consequence imputable to him in view of his act,
inasmuch as the death was due wholly to another persons
carelessness or lack of skill, etc. (Decision of April 2, 1903, Gazette of
May 23d.)" 5 Viada, 5th edition, page 81.)
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In the first two cases cited, it will be observed that the deceased
received less serious physical injuries and that death was due to their
own carelessness or abuses committed by them. In the third case, the
deceased had been seriously injured, but died as a result of the
mistakes of the doctor in the surgical operation and treatment of the
injuries. The Supreme Court of Spain held them criminally liable for
the crime of less serious physical injuries in the first two, and of
serious physical injuries in the third, because these, and not homicide
were the natural consequences of their unlawful acts, inasmuch as
death was the result of carelessness and abuses committed by the
injured persons themselves, and of the mistakes of the doctor in the
surgical operation and treatment of the wounds.
In United States v. Embate (3 Phil., 640), where the real cause of death
could not be determined, this court, through Chief Justice Arellano,
held:
"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
body and give his certificate as to certain bruises on the thighs, in his
testimony states that the body showed unequivocal signs of a serious
disease of the heart, and that the bruises could not have caused the
death of the child, but might have contributed to accelerate the fatal
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
the affection of the heart, was such that it might have died without
the blows which were inflicted upon him, the witness replied that if
in the first place the age of the child is taken into consideration, and
in the second its surrounding circumstances, its condition was such as
to lead one to expect a fatal result, no physician being in attendance.
"Upon being further questioned as to whether he believed that the
blows inflicted upon the child and which produced the bruises were
the cause of its death, he replied that as no other approximate cause
is known than the great excitement produced by those blows, it may
be inferred that they were the sole cause which precipitated the fatal
result of the illness of the child.
"We do not find in this testimony, given solely upon the result of the
examination of the body, sufficient evidence as to the true cause of
the death of the child. But it is true tha the accused did strike him for
the purpose of inflicting punishment, and as by this he committed a
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
For all the foregoing, I am of the opinion that the defendant- appellant
can only be made to answer for the misdemeanor of slight physical
injuries as defined and penalized in article 587 of the Penal Code,
inasmuch as the wound inflicted by her might have been healed in
seven days, the penalty fixed being arresto menor.
Malcolm and Romualdez, JJ., concur.
PEOPLE VS TOLENG ET. AL.
(G.R. NO. L-33535)
AQUINO, J.:
Antonio Toling and Jose Toling, brothers, appealed from the decision
of the Court of First Instance of Laguna, finding them guilty of multiple
murder and attempted murder, sentencing them to death and
ordering them to indemnify each set of heirs of (1) Teresita B.
Escanan, (2) Antonio B. Mabisa, (3) Isabelo S. Dando, (4) Elena B.
Erminio (5) Modesta R. Brondial (6) Isabel Felices and (7) Teodoro F.
Bautista in the sum of P6,000 and to pay Amanda Mapa the sum of
P500 (Criminal Case No. SC-966). The judgment of conviction was
based on the following facts:
Antonio Toling and Jose Toling, twins, both married, are natives of
Barrio Nenita which is about eighteen (or nine) kilometers away from
Mondragon, Northern Samar. They are illiterate farmers tilling their
own lands. They were forty-eight years old in 1966. Antonio is one
hour older than Jose. Being twins, they look alike very much.
However, Antonio has a distinguishing cut in his ear (44 tsn Jan. 14,
1966).
Antonio's daughter, Leonora, was working in Manila as a
laundrywoman since September, 1964. Jose's three children one girl
and two boys, had stayed in Manila also since 1964.
Antonio decided to go to Manila after receiving a letter from Leonora
telling him that she would give him money. To have money for his
expenses, Antonio killed a pig and sold the meat to Jose's wife for sixty
pesos. Jose decided to go with Antonio in order to see his children. He
was able to raise eighty-five pesos for his expenses.
On January 6, 1965, with a bayong containing their pants and shirts,
the twins left Barrio Nenita and took a bus to Allen. From there, they
took a launch to Matnog, Sorsogon. From Matnog, they went to
Daraga, Albay on board an Alatco bus, and from Daraga, they rode on
the train, arriving at the Paco railroad station in Manila at about seven
o'clock in the morning of January 8th. It was their first trip to the big
city.
At the Paco station, the twins took a jeepney which brought them to
Tondo. By means of a letter which Aniano Espenola a labor-recruiter,
had given them, they were able to locate an employment agency
where they learned the address of the Eng Heng Glassware. Antonio's
daughter was working in that store. Accompanied by Juan, an
employee of the agency, they proceeded to her employer's
establishment. Leonora gave her father fifty pesos. Sencio Rubis
Antonio's grandson, gave him thirty pesos. Antonio placed the eighty
pesos in the right pocket of his pants. It was then noontime.
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.
From the agency, Juan took the twins to the Tutuban railroad station
that same day, January 8th, for their homeward trip.
After buying their tickets, they boarded the night Bicol express train
at about five o'clock in the afternoon. The train left at six o'clock that
evening.
The twins were in coach No. 9 which was the third from the rear of
the dining car. The coach had one row of two-passenger seats and
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
back door. Jose was seated between Antonio, who was near the
window, and a three-year old boy. Beside the boy was a woman
breast-feeding her baby who was near the aisle. That woman was
Corazon Bernal. There were more than one hundred twenty
passengers in the coach. Some passengers were standing on the aisle.
Compiled by: Vim Malicay
Sitting on the third seat and facing the brothers were two men and an
old woman who was sleeping with her head resting on the back of the
seat (Exh. 2). on the two-passenger seat across the aisle in line with
the seat where the brothers were sitting, there were seated a fat
woman, who was near the window, and one Cipriano Reganet who
was on her left. On the opposite seat were seated a woman, her
daughter and Amanda Mapa with an eight-month old baby. They
were in front of Reganet.
Two chico vendors entered the coach when the train stopped at
Cabuyao, Laguna. The brothers bought some chicos which they put
aside. The vendors alighted when the train started moving. It was
around eight o'clock in the evening.
Not long after the train had resumed its regular speed, Antonio stood
up and with a pair of scissors (Exh. B) stabbed the man sitting directly
in front of him. The victim stood up but soon collapsed on his seat.
For his part, Jose stabbed with a knife (Exh. A) the sleeping old woman
who was seated opposite him. She was not able to get up anymore. 1
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
supporting her child (Exh. D-2). The blade entered the dorsal side and
passed through the palm. Fortunately, the child was not injured. Most
of the passengers scurried away for safety but the twins, who had run
amuck, stabbed everyone whom they encountered inside the coach. 2
Among the passengers in the third coach was Constabulary Sergeant
Vicente Z. Rayel, a train escort who, on that occasion, was not on duty.
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
there was a stabbing inside the coach where he had come from. He
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
separating coaches Nos. 8 and 9, holding a knife between the thumb
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
person in authority and Rayel ordered him to lay down his knife (Exh.
A) upon the count of three, or he would be shot.
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)
and, in a suicidal impulse, stabbed himself on his left breast. He slowly
sank to the floor and was prostrate thereon. Near the platform where
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.
Rayel learned from his wife that the man sitting opposite her was
stabbed to death.
Constabulary Sergeant Vicente Aldea was also in the train. He was in
the dining car when he received the information that there were
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
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.
Aldea shouted at Antonio to surrender but the latter made a thrust at
him with the scissors. When Antonio was about to stab another
person, Aldea stood on a seat and repeatedly struck Antonio on the
head with the butt of his pistol, knocking him down. Aldea then
jumped and stepped on Antonio's buttocks and wrested the scissors
away from him. Antonio offered resistance despite the blows
administered to him.
When the train arrived at the Calamba station, four Constabulary
soldiers escorted the twins from the train and turned them over to
the custody of the Calamba police. Sergeant Rayel took down their
names. The bloodstained scissors and knife were turned over to the
Constabulary Criminal Investigation Service (CIS).
Some of the victims were found dead in the coach while others were
picked up along the railroad tracks between Cabuyao and Calamba.
Those who were still alive were brought to different hospitals for first-
aid treatment. The dead numbering twelve in all were brought to
Funeraria Quiogue, the official morgue of the National Bureau of
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).
Of the twelve persons who perished, eight, whose bodies were found
in the train, died from stab wounds, namely:
(1) Isabel Felices, 60, housewife, Ginlajon, Sorsogon.
(2) Antonio B. Mabisa, 28, married, laborer, Guinayangan, Quezon.
(3) Isabelo S. Dando, 45, married, Paracale, Camarines Norte.
(4) Susana C. Hernandez, 46, married, housekeeper, Jose Panganiban,
Camarines Norte.
(5) Teodoro F. Bautista, 72, married, Nawasa employee, San Juan,
Rizal.
(6) Modesta R. Brondial 58, married, housekeeper, Legaspi City.
(7) Elena B. Erminio 10, student, 12 Liberty Avenue, Cubao, Quezon
City and
(8) Teresita B. Escanan, 25, housemaid, 66 Menlo Street, Pasay City
(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,
Q to Q-2, R to R-2 and T to T-2)
Four dead persons were found near the railroad tracks. Apparently,
they jumped from the moving train to avoid being killed. They were:
(1) Timoteo U. Dimaano, 53 married, carpenter, Miguelin, Sampaloc,
Manila. .
(2) Miguel C. Oriarte, 45, married, Dalagan, Lopez, Quezon.
(3) Salvador A. Maqueda 52, married, farmer, Lopez, Quezon and
Compiled by: Vim Malicay
(4) Shirley A. Valenciano, 27, married, housekeeper, 657-D Jorge
Street, Pasay City (Exh. C-4. C-5, C-6, C-10, J, J-1, J-2, K to K-2, M to M-
3 and S to S-2).
Among the injured were Lucila Pantoja, Baby X, Mrs. X, Mrs. Armanda
Mapa-Dizon, Brigida Sarmiento-Palma, Cipriano Reganet and Corazon
Bernal-Astrolavio (Exh. D to D-5). Mrs. Astrolavio supposedly died
later (43 tsn January 14, 1966).
Mrs. Mapa declared that because of the stab wound inflicted upon
her right hand by Jose Toling, she was first brought to the Calamba
Emergency Hospital. Later, she was transferred to the hospital of the
Philippine National Railways at Caloocan City where she was confined
for thirteen days free of charge. As a result of her injury, she was not
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
for safety with her child, she lost clothing materials valued at three
hundred pesos aside from two hundred pesos cash in a paper bag
which was lost.
The case was investigated by the Criminal Investigation Service of the
Second Constabulary Zone headquarters at Camp Vicente Lim,
Canlubang, Laguna. On January 9, 1965 Constabulary investigators
took down the statements of Mrs. Mapa-Dizon, Cipriano Reganet,
Corazon Bernal, Brigida de Sarmiento and Sergeant Aldea. On that
date, the statements of the Toling brothers were taken at the North
General Hospital. Sergeant Rayel also gave a statement.
Antonio Toling told the investigators that while in the train he was
stabbed by a person "from the station" who wanted to get his money.
He retaliated by stabbing his assailant. He said that he stabbed
somebody "who might have died and others that might not". He
clarified that in the train four persons were asking money from him.
He stabbed one of them. "It was a hold-up".
He revealed that after stabbing the person who wanted to rob him,
he stabbed other persons because, inasmuch as he "was already
bound to die", he wanted "to kill everybody" (Exh. X or 8, 49 tsn Sept.
3, 1965).
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
said that he stabbed two persons who were demanding money from
him and who were armed with knives and iron bars.
When Jose Toling was informed that several persons died due to the
stabbing, he commented that everybody was trying "to kill each
other" (Exh. I-A).
According to Jose Toling, two persons grabbed the scissors in his
pocket and stabbed him in the back with the scissors and then
escaped. Antonio allegedly pulled out the scissors from his back, gave
them to him and told him to avenge himself with the scissors.
On January 20, 1965 a Constabulary sergeant filed against the Toling
brothers in the municipal court of Cabuyao, Laguna a criminal
complaint for multiple murder and multiple frustrated murder.
Through counsel, the accused waived the second stage of the
preliminary investigation. The case was elevated to the Court of First
Instance of Laguna where the Provincial Fiscal on March 10, 1965 filed
against the Toling brothers an information for multiple murder (nine
victims), multiple frustrated murder (six victims) and triple homicide
(as to three persons who died after jumping from the running train to
avoid being stabbed).
At the arraignment, the accused, assisted by their counsel de
oficio pleaded not guilty. After trial, Judge Arsenio Naawa rendered
the judgment of conviction already mentioned. The Toling brothers
appealed.
In this appeal, appellants' counsel de oficio assails the credibility of
the prosecution witnesses, argues that the appellants acted in self-
defense and contends, in the alternative, that their criminal liability
was only for two homicides and for physical injuries.
According to the evidence for the defense (as distinguished from
appellants' statements, Exhibits 1 and 8), when the Toling twins were
at the Tutuban Railroad Station in the afternoon of January 8, 1965,
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
his pants and later put back the remainder in the same pocket. The
two brothers noticed that four men at some distance from them were
allegedly observing them, whispering among themselves and making
signs. The twins suspected that the four men harbored evil intentions
towards them.
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
on a two passenger seat facing the front door of the coach, the
window being on the right of Antonio and Jose being to his left. Two
of the four men, whom they were suspecting of having evil intentions
towards them, sat on the seat facing them, while the other two seated
themselves behind them. Some old women were near them. When
the train was already running, the man sitting near the aisle allegedly
stood up, approached Antonio and pointed a balisong knife at his
throat while the other man who was sitting near the window and who
was holding also a balisong knife attempted to pick Antonio's right
pocket, threatening him with death if he would not hand over the
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.
When Antonio felt some pain in his throat, he suddenly drew out his
hunting knife or small bolo (eight inches long including the handle)
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
whom he had stabbed as those shown in the photographs of Antonio
B. Mabisa (Exh. L-1 and L-2 or 5-A and
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
allegedly stabbed him on the forehead, causing him to lose
consciousness and to fall on the floor (Antonio has two scars on his
forehead and a scar on his chest and left forearm, 85, 87 tsn). He
regained consciousness when two Constabulary soldiers raised him.
His money was gone.
Seeing his brother in a serious condition, Jose stabbed with the
scissors the man who had wounded his brother. Jose hit the man in
the abdomen. Jose was stabbed in the back by somebody. Jose
stabbed also that assailant in the middle part of the abdomen,
inflicting a deep wound.
Compiled by: Vim Malicay
However, Jose did not see what happened to the two men whom he
had stabbed because he was already weak. He fell down and became
unconscious. He identified Exhibit A as the knife used by Antonio and
Exhibit B as the scissors which he himself had used. He recovered
consciousness when a Constabulary soldier brought him out of the
train.
The brothers presented Doctor Leonardo del Rosario, a physician of
the North General Hospital who treated them during the early hours
of January 9, 1965 and who testified that he found the following
injuries on Antonio Toling:
Wound, incised, 1-1/4 inches (sutured), frontal,
right; 3-1/2 inches each, mid-frontal (wound on
the forehead) and
Wound, stabbed, 3/4 inch, 1 inch medial to
anterior axillary line level of 3rd ICS right,
penetrating thoracic cavity (chest wound (Exh.
11).
and on Jose Toling a stab wound, one inch long on the paravertebral
level of the fifth rib on the left, penetrating the thoracic cavity (Exh.
10). The wound was on the spinal column in line with the armpit or
"about one inch from the midline to the left" (113 tsn). The twins were
discharged from the hospital on January 17th.
The trial court, in its endeavor to ascertain the motive for the twins'
rampageous behavior, which resulted in the macabre deaths of
several innocent persons, made the following observations:
What could be the reason or motive that actuated
the accused to run amuck? It appears that the
accused travelled long over land and sea spending
their hard earned money and suffering privations,
even to the extent of foregoing their breakfast,
only to receive as recompense with respect to
Antonio the meager sum of P50 from his daughter
and P30 from his grandson and with respect to
Jose to receive nothing at all from any of his three
children whom he could not locate in Manila.
It also appears that the accused, who are twins,
are queerly alike, a fact which could easily invite
some people to stare or gaze at them and wonder
at their very close resemblance. Like some
persons who easily get angry when stared at,
however, the accused, when stared at by the
persons in front of them, immediately suspected
them as having evil intention towards them
(accused).
To the mind of the Court, therefore, it is
despondency on the part of the accused coupled
with their unfounded suspicion of evil intention
on the part of those who happened to stare at
them that broke the limit of their self-control and
actuated them to run amuck.
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,
their co-passengers had no choice but to notice and gaze at, was a
novelty. Through some telepathic or extra-sensory perception the
twins must have sensed that their co-passengers were talking about
them in whispers and making depreciatory remarks or jokes about
their humble persons. In their parochial minds, they might have
entertained the notion or suspicion that their male companions,
taking advantage of their ignorance and naivete, might victimize them
by stealing their little money. Hence, they became hostile to their co-
passengers. Their pent-up hostility erupted into violence and
murderous fury.
A painstaking examination of the evidence leads to the conclusion
that the trial court and the prosecution witnesses confounded one
twin for the other. Such a confusion was unavoidable because the
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
risk of identifying who was Antonio and who was Jose. They confessed
that they might be mistaken in making such a specific identification
(28 tsn September 3, 1965; 32 tsn November 5, 1965).
In our opinion, to ascertain who is Antonio and who is Jose, the
reliable guides would be their sworn statements (Exh. 1 and 8),
executed one day after the killing, their own testimonies and the
medical certificates (Exh. 10 and 11). Those parts of the evidence
reveal that the one who was armed with the knife was Antonio and
the one who was armed with the scissors was Jose. The prosecution
witnesses and the trial court assumed that Antonio was armed with
the scissors (Exh. B) and Jose was armed with the knife (Exh. A). That
assumption is erroneous.
In his statement and testimony, Antonio declared that he was armed
with a knife, while Jose declared that he was armed with the scissors
which Antonio had purchased at the Tutuban station, before he
boarded the train and which he gave to Jose because the latter is a
barber whose old pair of scissors was already rusty. As thus clarified,
the person whom Sergeant Rayel espied as having attempted to
commit suicide on the platform of the train by stabbing himself on the
chest would be Antonio (not Jose). That conclusion is confirmed by
the medical certificate, Exhibit 11, wherein it is attested that Antonio
had a wound in the chest. And the person whom Sergeant Aldea
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
contained in his statement of January 9, 1965 (p. 9, Record).
The mistake of the prosecution witnesses in taking Antonio for Jose
and vice-versa does not detract from their credibility. The controlling
fact is that those witnesses confirmed the admission of the twins that
they stabbed several passengers.
Appellants' counsel based his arguments on the summaries of the
evidence found in the trial court's decision. He argues that the
testimonies of Sergeants Rayel and Aldea are contradictory but he
does not particularize on the supposed contradictions.
The testimonies of the two witnesses do not cancel each other. The
main point of Rayel's testimony is that he saw one of the twins
stabbing himself in the chest and apparently trying to commit suicide.
Aldea's testimony is that he knocked down the other twin, disabled
him and prevented him from committing other killings.
Compiled by: Vim Malicay
It may be admitted that Rayel's testimony that Aldea took the knife of
Jose Toling was not corroborated by Aldea. Neither did Aldea testify
that Antonio was near Jose on the platform of the train. Those
discrepancies do not render Rayel and Aldea unworthy of belief. They
signify that Aldea and Rayel did not give rehearsed testimonies or did
not compare notes.
Where, as in this case, the events transpired in rapid succession in the
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
Comments on the Rules of Court, 1970 Ed. 139-140; People vs.
Resayaga, L-23234, December 26, 1963, 54 SCRA 350). There is no
doubt that Aldea and Rayel witnessed some of the acts of the twins
but they did not observe the same events and their powers of
perception and recollection are not the same.
Appellants' counsel assails the testimony of Mrs. Mapa. He contends
that no one corroborated her testimony that one of the twins stabbed
a man and a sleeping woman sitting on the seat opposite the seat
occupied by the twins. The truth is that Mrs. Mapa's testimony was
confirmed by the necropsy reports and by the twins themselves who
admitted that they stabbed some persons.
On the other hand, the defense failed to prove that persons, other
than the twins, could have inflicted the stab wounds. There is no
doubt as to the corpus delicti. And there can be no doubt that the
twins, from their own admissions (Exh. 1 and 8) and their testimonies,
not to mention the testimonies of Rayel, Aldea, Mrs. Mapa and the
CIS investigators, were the authors of the killings.
Apparently, because there was no doubt on the twins' culpability,
since they were caught in flagrante delicto the CIS investigators did
not bother to get the statements of the other passengers in Coach No.
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
it in order to save his life. The ensuing commotion and confusion
prevented the passengers from having a full personal knowledge of
how the twins consummated all the killings.
On the other hand, the twins' theory of self-defense is highly
incredible. In that crowded coach No. 9, which was lighted, it was
improbable that two or more persons could have held up the twins
without being readily perceived by the other passengers. The twins
would have made an outcry had there really been an attempt to rob
them. The injuries, which they sustained, could be attributed to the
blows which the other passengers inflicted on them to stop their
murderous rampage.
Appellants' view is that they should be held liable only for two
homicides, because they admittedly killed Antonio B. Mabisa and
Isabelo S. Dando, and for physical injuries because they did not deny
that Jose Toling stabbed Mrs. Mapa. We have to reject that view.
Confronted as we are with the grave task of passing judgment on the
aberrant behavior of two yokels from the Samar hinterland who
reached manhood without coming into contact with the mainstream
of civilization in urban areas, we exercised utmost care and solicitude
in reviewing the evidence. We are convinced that the record
conclusively establishes appellants' responsibility for the eight
killings.
To the seven dead persons whose heirs should be indemnified,
according to the trial court, because they died due to stab wounds,
should be added the name of Susana C. Hernandez (Exh. P, P-1 and P-
2). The omission of her name in judgment was probably due to
inadvertence. According to the necropsy reports, four persons,
namely, Shirley A. Valenciano, Salvador A. Maqueda, Miguel C. Oriarte
and Timoteo U. Dimaano, died due to multiple traumatic injuries
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
S-2).
The conjecture is that they jumped from the moving tracing to avoid
being killed but in so doing they met their untimely and horrible
deaths. The trial court did not adjudge them as victims whose heirs
should be indemnified. As to three of them, the information charges
that the accused committed homicide. The trial court dismissed that
charge for lack of evidence.
No one testified that those four victims jumped from the train. Had
the necropsy reports been reinforced by testimony showing that the
proximate cause of their deaths was the violent and murderous
conduct of the twins, then the latter would be criminally responsible
for their deaths.
Article 4 of the Revised Penal Code provides that "criminal liability
shall be incurred by any person committing a felony (delito) although
the wrongful act done be different from that which he intended". The
presumption is that "a person intends the ordinary consequences of
his voluntary act" (Sec. 5[c], Rule 131, Rules of Court).
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
doing he injures himself, the person who creates such a state of mind
is responsible for the injuries which result" (Reg. vs. Halliday 61 L. T.
Rep. [N.S.] 701, cited in U.S. vs. Valdez, 41 Phil. 4911, 500).
Following that rule, is was held that "if a person against whom a
criminal assault is directed reasonably believes himself to be in danger
of death or great bodily harm and in order to escape jumps into the
water, impelled by the instinct of self-preservation, the assailant is
responsible for homicide in case death results by drowning" (Syllabus,
U.S. vs. Valdez, supra, See People vs. Buhay, 79 Phil. 371).
The absence of eyewitness-testimony as to the jumping from the train
of the four victims already named precludes the imputation of
criminal responsibility to the appellants for the ghastly deaths of the
said victims.
The same observation applies to the injuries suffered by the other
victims. The charge of multiple frustrated murder based on the
injuries suffered by Cipriano Pantoja, Dinna Nosal, Corazon Bernal and
Brigida Sarmiento (Exh. D, D-3 to D-5) was dismissed by the trial court
for lack of evidence. Unlike Mrs. Mapa, the offended parties involved
did not testify on the injuries inflicted on them.
The eight killings and the attempted killing should be treated as
separate crimes of murder and attempted murder qualified be
treachery (alevosia) (Art. 14[16], Revised Penal Code). The
unexpected, surprise assaults perpetrated by the twins upon their co-
passengers, who did not anticipate that the twins would act
like juramentados and who were unable to defend themselves (even
if some of them might have had weapons on their persons) was a
mode of execution that insured the consummation of the twins'
Compiled by: Vim Malicay
diabolical objective to butcher their co-passengers. The conduct of
the twins evinced conspiracy and community of design.
The eight killings and the attempted murder were perpetrated by
means of different acts. Hence, they cannot be regarded as
constituting a complex crime under article 48 of the Revised Penal
Code which refers to cases where "a single act constitutes two or
more grave felonies, or when an offense is a necessary means for
committing the other".
As noted by Cuello Calon, the so-called "concurso formal o ideal de
delitos reviste dos formas: (a) cuando un solo hecho constituye dos o
mas delitos (el llamado delito compuesto); (b) cuando uno de ellos
sea medio necesario para cometer otro (el llamado delito complejo)."
(1 Derecho Penal, 12th Ed. 650).
On the other hand, "en al concurso real de delitos", the rule, when
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
la justicia que el agente soporte la carga de cada uno de los delitos"
(Ibid, p. 652, People vs. Mori, L-23511, January 31, 1974, 55 SCRA 382,
403).
The twins are liable for eight (8) murders and one attempted murder.
(See People vs. Salazar, 105 Phil. 1058 where the accused Moro, who
ran amuck, killed sixteen persons and wounded others, was convicted
of sixteen separate murders, one frustrated murder and two
attempted murders; People vs. Mortero, 108 Phil. 31, the
Panampunan massacre case, where six defendants were convicted of
fourteen separate murders; People vs. Remollino, 109 Phil. 607,
where a person who fired successively at six victims was convicted of
six separate homicides; U. S. Beecham, 15 Phil. 272, involving four
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,
271. Contra: People vs. Cabrera, 43 Phil. 82, 102-103; People vs.
Floresca, 99 Phil. 1044; People vs. Sakam, 61 Phil. 27; People vs.
Lawas, 97 Phil. 975; People vs. Manantan, 94 Phil. 831; People vs.
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
theory that they were the product of a single criminal impulse or
intent).
As no generic mitigating and aggravating circumstances were proven
in this case, the penalty for murder should be imposed in its medium
period or reclusion perpetua (Arts. 64[l] and 248, Revised Penal Code.
The death penalty imposed by the trial court was not warranted.
A separate penalty for attempted murder should be imposed on the
appellants. No modifying circumstances can be appreciated in the
attempted murder case.
WHEREFORE, the trial court's judgment is modified by setting aside
the death sentence. Defendants-appellants Antonio Toling and Jose
Toling are found guilty, as co-principals, of eight (8) separate murders
and one attempted murder. Each one of them is sentenced to eight
(8) reclusion perpetuas for the eight murders and to an indeterminate
penalty of one (1) year of prision correccional as minimum to six (6)
years and one (1) day of prision mayor as maximum for the attempted
murder and to pay solidarily an indemnity of P12,000 to each set of
heirs of the seven victims named in the dispositive part of the trial
court's decision and of the eight victim, Susana C. Hernandez, or a
total indemnity of P96,000, and an indemnity of P500 to Amanda
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
be observed. Costs against the appellants.
SO ORDERED.
Makalintal, C.J., Castro, Fernando, Teehankee, Barredo, Antonio,
Esguerra, Fernandez and Muoz Palma, JJ., concur.
Makasiar, J., took no part.
PEOPLE VS ORTEGA, JR.
(276 SCRA 166)
PANGANIBAN, J.:
A person who commits a felony is liable for the direct, natural and
logical consequences of his wrongful act even where the resulting
crime is more serious than that intended. Hence, an accused who
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
as an accessory, where it is proven that the said victim was actually
alive but subsequently died as a direct result of such concealment and
burial. Nonetheless, in the present case, Appellant Garcia cannot be
held liable as a principal because the prosecution failed to allege such
death through drowning in the Information. Neither may said
appellant be held liable as an accessory due to his relationship with
the principal killer, Appellant Ortega, who is his brother-in-law.
Statement of the Case
This case springs from the joint appeal interposed by Appellants
Benjamin Ortega, Jr. and Manuel Garcia from the Decision, 1 dated
February 9, 1994 written by Judge Adriano R. Osorio, 2 finding them
guilty of murder.
Appellants were charged by State Prosecutor Bernardo S. Razon in an
Information 3 dated October 19, 1992, as follows:
That on or about October 17, 1992 in Valenzuela,
Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-
named accused, conspiring together and mutually
helping one another, without any justifiable
cause, with treachery and evident premeditation
and with abuse of superior strenght (sic) and with
deliberate intent to kill, did then and there
willfully, unlawfully and feloniously attack, assault
and stab repeatedly with a pointed weapon on
the different parts of the body one ANDRE MAR
MASANGKAY y ABLOLA, thereby inflicting upon
the latter serious physical injuries which directly
caused his death.
During arraignment, Appellants Ortega and Garcia, assisted by
counsel de oficio, 4 pleaded not guilty to the charge. 5Accused "John
Doe" was then at large. 6 After trial in due course, the court a
quo promulgated the questioned Decision. The dispositive portion
reads: 7
Compiled by: Vim Malicay
 WHEREFORE, finding accused Benjamin Ortega,
Jr. y Conje and Manuel Garcia y Rivera [g]uilty
beyond reasonable doubt of the crime charged,
the Court hereby sentenced (sic) them to suffer
the penalty of RECLUSION PERPETUA and to pay
the costs of suit.
Accused are hereby ordered to pay the offended
party the sum of P35,000.00 for funeral expenses
of deceased Andre Mar Masangkay and death
indemnity of P50,000.00.
The Notice of Appeal, dated March 9, 1994, was thus filed by Atty.
Evaristo P. Velicaria 8 who took over from the Public Attorney's Office
as counsel for the accused.
The Facts
Evidence for the Prosecution
The trial court summarized the testimonies of the prosecution
witnesses as follows: 9
Diosdado Quitlong substantially testified that on
October 15, 1992 at about 5:30 in the afternoon,
he, the victim Andre Mar Masangkay, Ariel
Caranto, Romeo Ortega, Roberto San Andres
were having a drinking spree in the compound
near the house of Benjamin Ortega, Jr. at
Daangbakal, Dalandanan, Valenzuela, Metro
Manila. That while they were drinking, accused
Benjamin Ortega, Jr. and Manuel Garcia who
were [already] drunk arrived and joined them.
That victim Andre Mar Masangkay answered the
call of nature and went to the back portion of the
house. That accused Benjamin Ortega, Jr.
followed him and later they [referring to the
participants in the drinking session] heard the
victim Andre Mar shouted, "Don't, help me!"
(Huwag, tulungan ninyo ako!) That he and Ariel
Caranto ran towards the back portion of the
house and [they] saw accused Benjamin Ortega,
Jr., on top of Andre Mar Masangkay who was lying
down in a canal with his face up and stabbing the
latter with a long bladed weapon. That Ariel
Caranto ran and fetched Benjamin Ortega, Sr., the
father of accused Benjamin, Jr. That he [Quitlong]
went to Romeo Ortega in the place where they
were having the drinking session [for the latter] to
pacify his brother Benjamin, Jr. That Romeo
Ortega went to the place of the stabbing and
together with Benjamin Ortega, Jr. and Manuel
Garcia lifted Andre Mar Masangkay from the
canal and brought Andre Mar to the well and
dropped the latter inside the well. That Romeo
Ortega, Benjamin Ortega, Jr. and Manuel Garcia
then dropped stones measuring 11 to 12 inches
high, 2 feet in length and 11 to 12 inches in weight
to the body of Andre Mar Masangkay inside the
well. That Romeo Ortega warned him [Quitlong]
not to tell anybody of what he saw. That he
answered in the affirmative and he was allowed
to go home. That his house is about 200 meters
from Romeo Ortega's house. That upon reaching
home, his conscience bothered him and he told
his mother what he witnessed. That he went to
the residence of Col. Leonardo Orig and reported
the matter. That Col. Orig accompanied him to
the Valenzuela Police Station and some police
officers went with them to the crime scene. That
accused Benjamin Ortega, Jr. and Manuel Garcia
were apprehended and were brought to the
police station.
On cross-examination, he said that he did not talk
to the lawyer before he was presented as witness
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
5:30 in the afternoon when he arrived, victim
Andre Mar Masangkay, Romeo Ortega, Serafin
and one Boyet were already having [a] drinking
spree and he joined them. That accused Benjamin
Ortega, Jr. and Manuel Garcia were not yet in the
place. That the stabbing happened between
12:00 midnight and 12:30 a.m. That they drank
gin with finger foods such as pork and shell fish.
That he met the victim Andre Mar Masangkay
only on that occasion. That accused Benjamin
Ortega, Jr. and Manuel Garcia joined them at
about 11:00 p.m. That there was no altercation
between Benjamin Ortega, Jr. and Manuel Garcia
in one hand and Andre Mar Masangkay, during
the drinking session. That at about 12:30 a.m.
Andre Mar Masangkay answered the call of
nature and went to the back portion of the house.
That he cannot see Andre Mar Masangkay from
the place they were having the drinking session.
That he did not see what happened to Andre Mar
Masangkay. That he only heard Masangkay asking
for help. That accused Manuel Garcia was still in
the drinking session when he heard Masangkay
was asking for help. That Benjamin Ortega, Jr. and
Manuel Garcia are his friends and neighbors. That
when he heard Andre Mar Masangkay was asking
for help, he and Ariel Caranto ran to the back
portion of the house and saw Benjamin Ortega, Jr.
on top of Andre Mar Masangkay and stabbing the
latter. That Andre Mar Masangkay was lying down
with his back in the canal and Benjamin Ortega,
Jr. on top stabbing the former. That he did not see
any injuries on Benjamin Ortega, Jr. That he called
Romeo Ortega to pacify his brother Benjamin, Jr.
That he did not do anything to separate Benjamin
Ortega, Jr. and Masangkay. That he knows that
Andre Mar Masangkay was courting Raquel
Ortega. That Raquel Ortega asked permission
from Andre Mar Masangkay when she left
between 8:00 and 9:00 p.m. That there was no
trouble that occurred during the drinking session.
PNP Superintendent Leonardo Orig substantially
testified that Diosdado Quitlong is his neighbor
for about 9 years. That on October 16, 1992 at
5:00 in the morning, he was summoned by
Compiled by: Vim Malicay
Diosdado Quitlong and reported to him the
stabbing incident that occurred at Daangbakal
near the subdivision he is living. That he relayed
the information to the Valenzuela Police Station
and a police team under police officer Param
accompanied them to the place. That he asked
the police officers to verify if there is a body of
person inside the well. That the well was covered
with stones and he asked the police officers to
seek the help of theneighbors (sic) to remove the
stones inside the well. That after the stones were
removed, the body of the victim was found inside
the well. That the lifeless body was pulled out
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
arrested by the police officers.
On cross-examination, he said that he saw the
body when taken out of the well with several stab
wounds. That Diosdado Quitlong told him that he
was drinking with the victim and the assailants at
the time of the incident. That Benjamin Ortega, Jr.
stabbed the victim while the latter was answering
the call of nature.
NBI Medico Legal Officer Dr. Ludivico J. Lagat
substantially testified that he conducted [an]
autopsy on the cadaver of Andre Mar Masangkay
on October 16, 1992 at the Valenzuela Memorial
Homes located at Macarthur Highway. That he
prepared the autopsy report and the sketch of
human head and body indicating the location of
the stab wounds. That the cause of death is
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
body, 2 at the back and there were contused
abrasions around the neck and on the left arm.
There was stab wound at the left side of the neck.
That the contused abrasion could be produced by
cord or wire or rope. That there is (an) incised
wound on the left forearm. That the stab wounds
which were backward downward of the body
involved the lungs. That the victim was in front of
the assailant. That the stab wound on the upper
left shoulder was caused when the assailant was
in front of the victim. That the assailant was in
front of the victim when the stab wound near the
upper left armpit was inflicted as well as the stab
wound on the left chest wall. That the stab wound
on the back left side of the body and the stab
wound on the back right portion of the body may
be produced when the assailant was at the back
of the victim. That the assailant was in front of the
victim when the stab wound[s] on the left elbow
and left arm were inflicted. That the large airway
is filled with muddy particles indicating that the
victim was alive when the victim inhaled the
muddy particles. The heart is filled with multiple
hemorrhage, loss of blood or decreased of blood.
The lungs is filled with water or muddy particles.
The brain is pale due to loss of blood. The stomach
is one half filled with muddy particles which could
[have been] taken in when submerged in water.
On cross-examination, he said that he found 13
stab wounds on the body of the victim. That he
cannot tell if the assailant or the victim were
standing. That it is possible that the stab wounds
was (sic) inflicted when both [referring to
participants] were standing or the victim was
lying down and the assailant was on top. That he
cannot tell the number of the assailants.
Evidence for the Appellants
Appellant Manuel Garcia testified that in the early morning of
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
clothes and went to work. 10 After office hours, he and Benjamin
Ortega, Jr. passed by the canteen at their place of work. After drinking
beer, they left at eight o'clock in the evening and headed home. En
route, they chanced on Diosdado Quitlong alias Mac-mac and Andre
Mar Masangkay, who invited them to join their own drinking spree.
Thereupon, Appellant Garcia's wife came and asked him to go home
because their daughter was still sick. To alleviate his daughter's
illness, he fetched his mother-in-law who performed a ritual called
"tawas." After the ritual, he remained at home and attended to his
sick daughter. He then fell asleep but was awakened by police officers
at six o'clock in the morning of the following day.
Maritess Garcia substantially corroborated the testimony of her
husband. She however added two other participants in the drinking
session aside from Diosdado Quitlong alias Mac-mac and Andre Mar
Masangkay, namely, a Mang Serafin and Boyet Santos. 11
Benjamin Ortega, Jr. likewise substantially corroborated the
testimony of Appellant Manuel Garcia. 12 According to him, between
eleven and twelve o'clock in the evening, Masangkay left the drinking
session. Thirty (30) minutes after Masangkay left, he also left the
drinking place to urinate. 13 He went behind the house where he saw
Masangkay peeping through the room of his sister Raquel. He ignored
Masangkay and continued urinating. 14 After he was through,
Masangkay approached him and asked where his sister was. He
answered that he did not know. Without warning, Masangkay
allegedly boxed him in the mouth, an attack that induced bleeding
and caused him to fall on his back. When he was about to stand up,
Masangkay drew a knife and stabbed him, hitting him on the left arm,
thereby immobilizing him. Masangkay then gripped his neck with his
left arm and threatened to kill him. Unable to move, Ortega shouted
for help. Quitlong came and, to avoid being stabbed, grabbed
Masangkay's right hand which was holding the knife. Quitlong was
able to wrest the knife from Masangkay and, with it, he stabbed
Masangkay ten (10) times successively, in the left chest and in the
middle of the stomach. When
the stabbing started, Ortega moved to the left side of Masangkay to
avoid being hit. 15 Quitlong chased Masangkay who ran towards the
direction of the well. Thereafter, Ortega went home and treated his
injured left armpit and lips. Then, he slept.
When he woke up at six o'clock the following morning, he saw police
officers in front of his house. Taking him with them, the lawmen
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
the well. He came to know the identity of the dead person only after
the body was taken to the police headquarters. 16
The Trial Court's Discussion
The trial court explained its basis for appellants' conviction as
follows: 17
The Court is convinced that the concerted acts of
accused Benjamin Ortega, Jr., Manuel Garcia, Jr.
and one Romeo Ortega in lifting, carrying and
dumping the victim Andre Mar Masangkay who
was still alive and breathing inside the deep well
filled with water, head first and threw big
stones/rocks inside the well to cover the victim is
a clear indication of the community of design to
finish/kill victim Andre Mar Masangkay.
Wounded and unarmed victim Andre Mar
Masangkay was in no position to flee and/or
defend himself against the three malefactors.
Conspiracy and the taking advantage of superior
strength were in attendance. The crime
committed by the accused is Murder.
Concert of action at the moment of
consummating the crime and the form and
manner in which assistance is rendered to the
person inflicting the fatal wound may determine
complicity where it would not otherwise be
evidence (People vs. Yu, 80 SCRA 382 (1977)).
Every person criminally liable for a felony is also
civilly liable. Accused (m)ust reimburse the heirs
of victim Andre Mar Masangkay the amount of
P35,000.00 for the funeral expenses of the
deceased.
The Issues
In their ten-page brief, appellants fault the trial court with the
following: 18
I. The trial court erred in holding that there is conspiracy on the basis
of the prosecution's evidence that at the time both accused and one
Romeo Ortega lifted the body of Andrew Masangkay from where he
succumbed due to stab wounds and brought and drop said body of
Andrew Masangkay to the well to commit murder;
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;
III. The trial court erred in convicting Manuel Garcia and in not
acquitting the latter of the crime charged; and
IV. The trial court erred in not finding that if at all Benjamin Ortega Jr.
is guilty only of homicide alone.
On the basis of the records and the arguments raised by the
appellants and the People, we believe that the question to be
resolved could be simplified thus: What are the criminal liabilities, if
any, of Appellants Ortega and Garcia?
The Court's Ruling
We find the appeal partly meritorious. Appellant Ortega is guilty only
of homicide. Appellant Garcia deserves acquittal.
First Issue: Liability of Appellant Ortega
The witnesses for the prosecution and defense presented conflicting
narrations. The prosecution witnesses described the commission of
the crime and positively identified appellants as the perpetrators. The
witnesses for the defense, on the other hand, attempted to prove
denial and alibi. As to which of the two contending versions speaks
the truth primarily rests on a critical evaluation of the credibility of
the witnesses and their stories. In this regard, the trial court held: 19
The Court has listened intently to the narration of
the accused and their witnesses and the
prosecution witnesses and has keenly observed
their behavior and demeanor on the witness
stand and is convinced that the story of the
prosecution is the more believable version.
Prosecution eyewitness Diosdado Quitlong
appeared and sounded credible and his credibility
is reinforced by the fact that he has no reason to
testify falsely against the accused. It was
Diosdado Quitlong who reported the stabbing
incident to the police authorities. If Quitlong
stabbed and killed the victim Masangkay, he will
keep away from the police authorities and will go
in hiding. . . .
Because the trial court had the opportunity to observe the witnesses'
demeanor and deportment on the stand as they rendered their
testimonies, its evaluation of the credibility of witnesses is entitled to
the highest respect. Therefore, unless the trial judge plainly
overlooked certain facts of substance and value which, if considered,
might affect the result of the case, his assessment of credibility must
be respected. 20
In the instant case, we have meticulously scoured the records and
found no reason to reverse the trial court's assessment of the
credibility of the witnesses and their testimonies 21 insofar as
Appellant Ortega is concerned. The narration of Eyewitness Diosdado
Quitlong appears to be spontaneous and consistent. It is
straightforward, detailed, vivid and logical. Thus, it clearly deserves
full credence.
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
injuries and slept. 22 This is not the ordinary reaction of a person
assaulted. If Ortega's version of the assault was true, he should have
immediately reported the matter to the police authorities, if only out
of gratitude to Quitlong who came to his rescue. Likewise, it is difficult
to believe that a man would just sleep after someone was stabbed in
his own backyard. Further, we deem it incredible that Diosdado
Quitlong would stab Masangkay ten (10) times successively,
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
from the alleged successive stabbing of Quitlong. 23 The natural
tendency of a person under attack is to defend himself and not to
persist in choking a defenseless third person.
Murder or Homicide?
Although treachery, evident premeditation and abuse of superior
strength were alleged in the information, the trial court found the
presence only of abuse of superior strength.
We disagree with the trial court's finding. Abuse of superior strength
requires deliberate intent on the part of the accused to take
advantage of such superiority. It must be shown that the accused
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
necessary to evaluate not only the physical condition and weapon of
the protagonists but also the various incidents of the event. 25
In his testimony, Witness Dominador Quitlong mentioned nothing
about Appellant Ortega's availment of force excessively out of
proportion to the means of defense available to the victim to defend
himself. Quitlong described the assault made by Appellant Ortega as
follows: 26
ATTY. ALTUNA:
Q Will you please tell me the place and date wherein you have a
drinking spree with Andrew Masangkay and where you witnessed a
stabbing incident?
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
Ortega, Jr. are near each other.
Q Mr. Witness, who were the companions of said persons, Benjamin
Ortega, Jr., Manuel Garcia, you (sic) in drinking in said place?
A The other companions in the drinking session were Ariel Caranto y
Ducay, Roberto San Andres and Romeo Ortega.
Q What about this victim, Andrew Masangkay, where was he at that
time?
A Also the victim, Andrew Masangkay, he was also there.
Q You said that the two accused, Manuel Garcia and Benjamin Ortega,
Jr. arrived drunk and joined the group?
A Yes, sir.
Q What happened next?
A While we were there together and we were drinking ... (interrupted
by Atty. Altuna)
Q Who is that "we"?
A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto,
Romeo Ortega, Roberto San Andres, myself and Andrew Masangkay.
Andrew Masangkay answer to a call of nature and went to the back
portion of the house, and Benjamin Ortega, Jr. followed him where he
was.
Q What happened next?
A And afterwards we heard a shout and the shout said "Huwag,
tulungan n'yo ako".
Q From whom did you hear this utterance?
A The shout came from Andrew Masangkay.
Q After Benjamin Ortega, Jr. followed Andrew Masangkay to answer
a call of nature and after you heard "huwag, tulungan n'yo ako"
coming from the mouth of the late Andrew Masangkay, what
happened next?
A Ariel Caranto and I ran towards the back portion of the house.
Q And what did you see?
A And I saw that Benjamin Ortega, Jr. was on top of Andrew
Masangkay and he was stabbing Masangkay.
Q Will you please demonstrate to the Honorable Court how the
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?
INTERPRETER:
(At this juncture, the witness demonstrating.)
Andrew Masangkay was lying down on a canal with his face up, then
Benjamin Ortega, Jr. was "nakakabayo" and with his right hand with
closed fist holding the weapon, he was thrusting this weapon on the
body of the victim, he was making downward and upward motion
thrust.
ATTY. ALTUNA: (To the witness)
Q How many times did Benjamin Ortega, Jr. stabbed Andrew
Masangkay?
A I cannot count the number of times.
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
the victim were already grappling when Quitlong arrived. Nothing in
the foregoing testimony and circumstances can be interpreted as
abuse of superior strength. Hence, Ortega is liable only for homicide,
not murder.
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:
Q Will you please explain this in simple language the last portion of
Exhibit N, beginning with "tracheo-bronchial tree", that is sentence
immediately after paragraph 10, 2.5 cms. Will you please explain this?
A The paleness of the brain and other visceral organs is due to loss of
blood.
Q And, of course, loss of blood could be attributed to the stab wound
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
now came in, in that particular portion of the body and caused
admixing of granular materials?
A Yes, sir.
Q Continuing with your report, particularly, the last two portions, will
you please explain the same?
A The hemoperitoneum there are 900 cc of blood that accumulated
inside the abdomen.
Q And what could have cause the same?
A [T]he stab wound of the abdomen.
Q The last one, stomach 1/2 filled with muddy particles. Please
explain the same?
A The victim could have taken these when he was submerged in
water.
Q What is the take in?
A Muddy particles.
Q And he was still alive at that time?
A Yes, sir. (Emphasis supplied)
A Filipino authority on forensic medicine opines that any of the
following medical findings may show that drowning is the cause of
death:
1. The presence of materials or foreign bodies in the hands of
the victim. The clenching of the hands is a manifestation of
cadaveric spasm in the effort of the victim to save himself
from drowning.
2. Increase in volume (emphysema aquosum) and edema of
the lungs (edema aquosum).
3. Presence of water and fluid in the stomach contents
corresponding to the medium where the body was
recovered.
4. Presence of froth, foam or foreign bodies in the air passage
found in the medium where the victim was found.
5. Presence of water in the middle ear.
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
muddy particles which were residues at the bottom of the
well. Even his stomach was half-filled with such muddy
particles. The unrebutted testimony of the medico-legal
officer that all these muddy particles were ingested when
the victim was still alive proved that the victim died of
drowning inside the well.
The drowning was the direct, natural and logical consequence of the
felony that. Appellant Garcia had intended to commit; it
exemplifies praeter intentionem covered by Article 4, par. 1, of the
Revised Penal Code. Under this paragraph, a person may be convicted
of homicide although he had no original intent to kill. 35
In spite of the evidence showing that Appellant Garcia could be held
liable as principal in the crime of homicide, there are, however, two
legal obstacles barring his conviction, even as an accessory as
prayed for by appellants' counsel himself.
First. The Information accused Appellant Garcia (and Appellant
Ortega) of "attack[ing], assault[ing], and stab[bing] repeatedly with a
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
perpetrated by Appellant Ortega. His responsibility relates only to the
attempted concealment of the crime and the resulting drowning of
Victim Masangkay. The hornbook doctrine in our jurisdiction is that
an accused cannot be convicted of an offense, unless it is clearly
charged in the complaint or information. Constitutionally, he has a
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
complaint or information would be a violation of this constitutional
right. 36 Section 14, par. 2, of the 1987 Constitution explicitly
guarantees the following:
(2) In all criminal prosecutions, the accused shall
be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by
himself and counsel, to be informed of the nature
and cause of the accusation against him, to have
a speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory
process to secure the attendance of witnesses
and the production of evidence in his behalf.
However, after arraignment, trial may proceed
notwithstanding the absence of the accused
provided that he has been duly notified and his
failure to appear is unjustifiable. (Emphasis
supplied)
In People vs. Pailano, 37 this Court ruled that there can be no
conviction for rape on a woman "deprived of reason or otherwise
unconscious" where the information charged the accused of sexual
assault "by using force or intimidation," thus:
The criminal complaint in this case alleged the
commission of the crime through the first method
although the prosecution sought to establish at
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.
If the prosecution was seeking to convict the
accused-appellant on the ground that he violated
Anita while she was deprived of reason or
unconscious, such conviction could not have been
possible under the criminal complaint as worded.
This described the offense as having been
committed by "Antonio Pailano, being then
provided with a scythe, by means of violence and
intimidation, (who) did, then and there, wilfully,
unlawfully and feloniously have carnal knowledge
of the complainant, Anita Ibaez, 15 years of age,
Compiled by: Vim Malicay
 against her will'. No mention was made of the
second circumstance.
Conviction of the accused-appellant on the
finding that he had raped Anita while she was
unconscious or otherwise deprived of reason
and not through force and intimidation, which
was the method alleged would have violated
his right to be informed of the nature and cause
of the accusation against him. [Article IV, Sec. 19,
Constitution of 1973; now Article III, Sec. 14(2)]
This right is safeguarded by the Constitution to
every accused so he can prepare an adequate
defense against the charge against him.
Convicting him of a ground not alleged while he is
concentrating his defense against the ground
alleged would plainly be unfair and underhanded.
This right was, of course, available to the herein
accused-appellant.
In People vs. Ramirez, [fn: 69 SCRA 144] we held
that a person charged with rape could not be
found guilty of qualified seduction, which had not
been alleged in the criminal complaint against
him. In the case of People vs. Montes, [fn: 122
SCRA 409] the Court did not permit the conviction
for homicide of a person held responsible for the
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
the point is Tubb v. People of the Philippines, [fn:
101 Phil. 114] where the accused was charged
with the misappropriation of funds held by him in
trust with the obligation to return the same under
Article 315, paragraph l(b) of the Revised Penal
Code, but was convicted of swindling by means of
false pretenses, under paragraph 2(b) of the said
Article, which was not alleged in the information.
The Court said such conviction would violate the
Bill of Rights.
By parity of reasoning, Appellant Garcia cannot be convicted of
homicide through drowning in an information that charges murder by
means of stabbing.
Second. Although the prosecution was able to prove that Appellant
Garcia assisted in "concealing . . . the body of the crime, . . . in order
to prevent its discovery," he can neither be convicted as an accessory
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
Appellant Ortega, 38 the latter's sister, Maritess, being his
wife. 39 Such relationship exempts Appellant Garcia from criminal
liability as provided by Article 20 of the Revised Penal Code:
Art. 20. Accessories who are exempt from criminal
liability. The penalties prescribed for
accessories shall not be imposed upon those who
are such with respect to their spouses,
ascendants, descendants, legitimate, natural, and
adopted brothers and sisters, or relatives by
affinity within the same degrees with the single
exception of accessories falling within the
provisions of paragraph 1 of the next preceding
article.
On the other hand, "the next preceding article" provides:
Art. 19. Accessories. Accessories are those
who, having knowledge of the commission of the
crime, and without having participated therein,
either as principals or accomplices, take part
subsequent to its commission in any of the
following manners:
1. By profiting themselves or assisting the offender to profit by the
effects of the crime.
2. By concealing or destroying the body of the crime, or the effects
or instruments thereof, in order to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the
principal of the crime, provided the accessory acts with abuse of
his public functions or whenever the author of the crime is guilty
of treason, parricide, murder, or an attempt to take the life of
the Chief Executive, or is known to be habitually guilty of some
other crime.
Appellant Garcia, being a covered relative by affinity of the principal
accused, Benjamin Ortega, Jr., is legally entitled to the aforequoted
exempting provision of the Revised Penal Code. This Court is thus
mandated by law to acquit him.
Penalty and Damages
The award of actual damages should be reduced to P31,790.00 from
P35,000.00. The former amount was proven both by documentary
evidence and by the testimony of Melba Lozano, a sister of the
victim. 38 Of the expenses alleged to have been incurred, the Court
can give credence only to those that are supported by receipts and
appear to have been genuinely incurred in connection with the death
of the victim. 39 However, in line with current
jurisprudence, 40 Appellant Ortega shall also indemnify the heirs of
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
The penalty for homicide is reclusion temporal under Article 249 of
the Revised Penal Code, which is imposable in its medium period,
absent any aggravating or mitigating circumstance, as in the case of
Appellant Ortega. Because he is entitled to the benefits of the
Indeterminate Sentence Law, the minimum term shall be one degree
lower, that is, prision mayor.
WHEREFORE, premises considered, the joint appeal is PARTLY
GRANTED. Appellant Benjamin Ortega, Jr. is found GUILTY of homicide
and sentenced to ten (10) years of prision mayor medium, as
minimum, to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal medium, as maximum. Appellant Ortega, Jr. is
also ORDERED to pay the heirs of the victim P50,000.00 as indemnity
and P31,790.00 as actual damages. Appellant Manuel Garcia is
ACQUITTED. His immediate release from confinement is ORDERED
unless he is detained for some other valid cause.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.
Compiled by: Vim Malicay
 URBANO VS IAC
(157 SCRA 10[1988])
GUTIERREZ, JR., J.:
This is a petition to review the decision of the then Intermediate
Appellate Court which affirmed the decision of the then Circuit
Criminal Court of Dagupan City finding petitioner Filomeno Urban
guilty beyond reasonable doubt of the crime of homicide.
The records disclose the following facts of the case.
At about 8:00 o'clock in the morning of October 23, 1980, petitioner
Filomeno Urbano went to his ricefield at Barangay Anonang, San
Fabian, Pangasinan located at about 100 meters from the tobacco
seedbed of Marcelo Javier. He found the place where he stored his
palay flooded with water coming from the irrigation canal nearby
which had overflowed. Urbano went to the elevated portion of the
canal to see what happened and there he saw Marcelo Javier and
Emilio Erfe cutting grass. He asked them who was responsible for the
opening of the irrigation canal and Javier admitted that he was the
one. Urbano then got angry and demanded that Javier pay for his
soaked palay. A quarrel between them ensued. Urbano unsheathed
his bolo (about 2 feet long, including the handle, by 2 inches wide)
and hacked Javier hitting him on the right palm of his hand, which was
used in parrying the bolo hack. Javier who was then unarmed ran
away from Urbano but was overtaken by Urbano who hacked him
again hitting Javier on the left leg with the back portion of said bolo,
causing a swelling on said leg. When Urbano tried to hack and inflict
further injury, his daughter embraced and prevented him from
hacking Javier.
Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe
brought Javier to his house about 50 meters away from where the
incident happened. Emilio then went to the house of Barangay
Captain Menardo Soliven but not finding him there, Emilio looked for
barrio councilman Felipe Solis instead. Upon the advice of Solis, the
Erfes together with Javier went to the police station of San Fabian to
report the incident. As suggested by Corporal Torio, Javier was
brought to a physician. The group went to Dr. Guillermo Padilla, rural
health physician of San Fabian, who did not attend to Javier but
instead suggested that they go to Dr. Mario Meneses because Padilla
had no available medicine.
After Javier was treated by Dr. Meneses, he and his companions
returned to Dr. Guillermo Padilla who conducted a medico-legal
examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C"
dated September 28, 1981) which reads:
TO WHOM IT MAY CONCERN:
This is to certify that I have examined the wound
of Marcelo Javier, 20 years of age, married,
residing at Barangay Anonang, San Fabian,
Pangasinan on October 23, 1980 and found the
following:
1 -Incised wound 2 inches in length at the upper
portion of the lesser palmar prominence, right.
As to my observation the incapacitation is from
(7-9) days period. This wound was presented to
me only for medico-legal examination, as it was
already treated by the other doctor. (p. 88,
Original Records)
Upon the intercession of Councilman Solis, Urbano and Javier agreed
to settle their differences. Urbano promised to pay P700.00 for the
medical expenses of Javier. Hence, on October 27, 1980, the two
accompanied by Solis appeared before the San Fabian Police to
formalize their amicable settlement. Patrolman Torio recorded the
event in the police blotter (Exhibit A), to wit:
xxx xxx xxx
Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592
on page 257 both parties appeared before this
Station accompanied by brgy. councilman Felipe
Solis and settled their case amicably, for they are
neighbors and close relatives to each other.
Marcelo Javier accepted and granted forgiveness
to Filomeno Urbano who shoulder (sic) all the
expenses in his medical treatment, and promising
to him and to this Office that this will never be
repeated anymore and not to harbour any grudge
against each other. (p. 87, Original Records.)
Urbano advanced P400.00 to Javier at the police station. On
November 3, 1980, the additional P300.00 was given to Javier at
Urbano's house in the presence of barangay captain Soliven.
At about 1:30 a.m. on November 14, 1980, Javier was rushed to the
Nazareth General Hospital in a very serious condition. When admitted
to the hospital, Javier had lockjaw and was having convulsions. Dr.
Edmundo Exconde who personally attended to Javier found that the
latter's serious condition was caused by tetanus toxin. He noticed the
presence of a healing wound in Javier's palm which could have been
infected by tetanus.
On November 15, 1980 at exactly 4:18 p.m., Javier died in the
hospital. The medical findings of Dr. Exconde are as follows:
Date Diagnosis
11-14-80 ADMITTED due to trismus
adm. at DX TETANUS
1:30 AM Still having frequent muscle spasm. With diffi-
#35, 421 culty opening his mouth. Restless at times. Febrile
11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessation of
respiration and HR after muscular spasm.
02 inhalation administered. Ambo bag resuscitation and cardiac
massage done but to no avail.
Pronounced dead by Dra. Cabugao at 4:18 P.M.
PMC done and cadaver brought home by relatives. (p. 100, Original
Records)
In an information dated April 10, 1981, Filomeno Urbano was charged
with the crime of homicide before the then Circuit Criminal Court of
Dagupan City, Third Judicial District.
Upon arraignment, Urbano pleaded "not guilty." After trial, the trial
court found Urbano guilty as charged. He was sentenced to suffer an
indeterminate prison term of from TWELVE (12) YEARS of prision
mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and
ONE (1) DAY of reclusion temporal, as maximum, together with the
accessories of the law, to indemnify the heirs of the victim, Marcelo
Compiled by: Vim Malicay
Javier, in the amount of P12,000.00 without subsidiary imprisonment
in case of insolvency, and to pay the costs. He was ordered confined
at the New Bilibid Prison, in Muntinlupa, Rizal upon finality of the
decision, in view of the nature of his penalty.
The then Intermediate Appellate Court affirmed the conviction of
Urbano on appeal but raised the award of indemnity to the heirs of
the deceased to P30,000.00 with costs against the appellant.
The appellant filed a motion for reconsideration and/or new trial. The
motion for new trial was based on an affidavit of Barangay Captain
Menardo Soliven (Annex "A") which states:
That in 1980, I was the barrio captain of Barrio
Anonang, San Fabian, Pangasinan, and up to the
present having been re-elected to such position in
the last barangay elections on May 17, 1982;
That sometime in the first week of November,
1980, there was a typhoon that swept Pangasinan
and other places of Central Luzon including San
Fabian, a town of said province;
That during the typhoon, the sluice or control
gates of the Bued irrigation dam which irrigates
the ricefields of San Fabian were closed and/or
controlled so much so that water and its flow to
the canals and ditches were regulated and
reduced;
That due to the locking of the sluice or control
gates of the dam leading to the canals and ditches
which will bring water to the ricefields, the water
in said canals and ditches became shallow which
was suitable for catching mudfishes;
That after the storm, I conducted a personal
survey in the area affected, with my secretary
Perfecto Jaravata;
That on November 5, 1980, while I was
conducting survey, I saw the late Marcelo Javier
catching fish in the shallow irrigation canals with
some companions;
That few days there after,or on November l5,
l980, I came to know that said Marcelo Javier died
of tetanus. (p. 33, Rollo)
The motion was denied. Hence, this petition.
In a resolution dated July 16, 1986, we gave due course to the
petition.
The case involves the application of Article 4 of the Revised Penal
Code which provides that "Criminal liability shall be incurred: (1) By
any person committing a felony (delito) although the wrongful act
done be different from that which he intended ..." Pursuant to this
provision "an accused is criminally responsible for acts committed by
him in violation of law and for all the natural and logical consequences
resulting therefrom." (People v. Cardenas, 56 SCRA 631).
The record is clear that Marcelo Javier was hacked by the petitioner
who used a bolo as a result of which Javier suffered a 2-inch incised
wound on his right palm; that on November 14, 1981 which was the
22nd day after the incident, Javier was rushed to the hospital in a very
serious condition and that on the following day, November 15, 1981,
he died from tetanus.
Under these circumstances, the lower courts ruled that Javier's death
was the natural and logical consequence of Urbano's unlawful act.
Hence, he was declared responsible for Javier's death. Thus, the
appellate court said:
The claim of appellant that there was an efficient
cause which supervened from the time the
deceased was wounded to the time of his death,
which covers a period of 23 days does not deserve
serious consideration. True, that the deceased did
not die right away from his wound, but the cause
of his death was due to said wound which was
inflicted by the appellant. Said wound which was
in the process of healing got infected with tetanus
which ultimately caused his death.
Dr. Edmundo Exconde of the Nazareth General
Hospital testified that the victim suffered lockjaw
because of the infection of the wound with
tetanus. And there is no other way by which he
could be infected with tetanus except through the
wound in his palm (tsn., p. 78, Oct. 5, 1981).
Consequently, the proximate cause of the victim's
death was the wound which got infected with
tetanus. And the settled rule in this jurisdiction is
that an accused is liable for all the consequences
of his unlawful act. (Article 4, par. 1, R.P.C. People
v. Red, CA 43 O.G. 5072; People v. Cornel 78 Phil.
418).
Appellant's allegation that the proximate cause of
the victim's death was due to his own negligence
in going back to work without his wound being
properly healed, and lately, that he went to catch
fish in dirty irrigation canals in the first week of
November, 1980, is an afterthought, and a
desperate attempt by appellant to wiggle out of
the predicament he found himself in. If the
wound had not yet healed, it is impossible to
conceive that the deceased would be reckless
enough to work with a disabled hand. (pp. 20-21,
Rollo)
The petitioner reiterates his position that the proximate cause of the
death of Marcelo Javier was due to his own negligence, that Dr. Mario
Meneses found no tetanus in the injury, and that Javier got infected
with tetanus when after two weeks he returned to his farm and
tended his tobacco plants with his bare hands exposing the wound to
harmful elements like tetanus germs.
The evidence on record does not clearly show that the wound
inflicted by Urbano was infected with tetanus at the time of the
infliction of the wound. The evidence merely confirms that the
wound, which was already healing at the time Javier suffered the
symptoms of the fatal ailment, somehow got infected with tetanus
Compiled by: Vim Malicay
However, as to when the wound was infected is not clear from the
record.
In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the
following definition of proximate cause:
xxx xxx xxx
... A satisfactory definition of proximate cause is
found in Volume 38, pages 695-696 of American
Jurisprudence, cited by plaintiffs-appellants in
their brief. It is as follows:
... "that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the
result would not have occurred."And more
comprehensively, "the proximate legal cause is
that acting first and producing the injury, either
immediately or by setting other events in motion,
all constituting a natural and continuous chain of
events, each having a close causal connection
with its immediate predecessor, the final event in
the chain immediately effecting the injury as a
natural and probable result of the cause which
first acted, under such circumstances that the
person responsible for the first event should, as
an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his
act or default that an injury to some person might
probably result therefrom." (at pp. 185-186)
The issue, therefore, hinges on whether or not there was an efficient
intervening cause from the time Javier was wounded until his death
which would exculpate Urbano from any liability for Javier's death.
We look into the nature of tetanus-
The incubation period of tetanus, i.e., the time
between injury and the appearance of
unmistakable symptoms, ranges from 2 to 56
days. However, over 80 percent of patients
become symptomatic within 14 days. A short
incubation period indicates severe disease, and
when symptoms occur within 2 or 3 days of injury
the mortality rate approaches 100 percent.
Non-specific premonitory symptoms such as
restlessness, irritability, and headache are
encountered occasionally, but the commonest
presenting complaints are pain and stiffness in
the jaw, abdomen, or back and difficulty
swallowing. As the progresses, stiffness gives way
to rigidity, and patients often complain of
difficulty opening their mouths. In fact, trismus in
the commonest manifestation of tetanus and is
responsible for the familiar descriptive name of
lockjaw. As more muscles are involved, rigidity
becomes generalized, and sustained contractions
called risus sardonicus. The intensity and
sequence of muscle involvement is quite variable.
In a small proportion of patients, only local signs
and symptoms develop in the region of the injury.
In the vast majority, however, most muscles are
involved to some degree, and the signs and
symptoms encountered depend upon the major
muscle groups affected.
Reflex spasm usually occur within 24 to 72 hours
of the first symptom, an interval referred to as the
onset time. As in the case of the incubation
period, a short onset time is associated with a
poor prognosis. Spasms are caused by sudden
intensification of afferent stimuli arising in the
periphery, which increases rigidity and causes
simultaneous and excessive contraction of
muscles and their antagonists. Spasms may be
both painful and dangerous. As the disease
progresses, minimal or inapparent stimuli
produce more intense and longer lasting spasms
with increasing frequency. Respiration may be
impaired by laryngospasm or tonic contraction of
respiratory muscles which prevent adequate
ventilation. Hypoxia may then lead to irreversible
central nervous system damage and death.
Mild tetanus is characterized by an incubation
period of at least 14 days and an onset time of
more than 6 days. Trismus is usually present, but
dysphagia is absent and generalized spasms are
brief and mild. Moderately severe tetanus has a
somewhat shorter incubation period and onset
time; trismus is marked, dysphagia and
generalized rigidity are present, but ventilation
remains adequate even during spasms. The
criteria for severe tetanus include a short
incubation time, and an onset time of 72 hrs., or
less, severe trismus, dysphagia and rigidity and
frequent prolonged, generalized convulsive
spasms. (Harrison's Principle of Internal
Medicine, 1983 Edition, pp. 1004-1005; Emphasis
supplied)
Therefore, medically speaking, the reaction to tetanus found inside a
man's body depends on the incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right
palm when he parried the bolo which Urbano used in hacking him.
This incident took place on October 23, 1980. After 22 days, or on
November 14, 1980, he suffered the symptoms of tetanus, like
lockjaw and muscle spasms. The following day, November 15, 1980,
he died.
If, therefore, the wound of Javier inflicted by the appellant was
already infected by tetanus germs at the time, it is more medically
probable that Javier should have been infected with only a mild cause
of tetanus because the symptoms of tetanus appeared on the 22nd
day after the hacking incident or more than 14 days after the
infliction of the wound. Therefore, the onset time should have been
more than six days. Javier, however, died on the second day from
the onset time. The more credible conclusion is that at the time
Javier's wound was inflicted by the appellant, the severe form of
tetanus that killed him was not yet present. Consequently, Javier's
wound could have been infected with tetanus after the hacking
Compiled by: Vim Malicay
incident. Considering the circumstance surrounding Javier's death, his
wound could have been infected by tetanus 2 or 3 or a few but not 20
to 22 days before he died.
The rule is that the death of the victim must be the direct, natural,
and logical consequence of the wounds inflicted upon him by the
accused. (People v. Cardenas, supra) And since we are dealing with a
criminal conviction, the proof that the accused caused the victim's
death must convince a rational mind beyond reasonable doubt. The
medical findings, however, lead us to a distinct possibility that the
infection of the wound by tetanus was an efficient intervening cause
later or between the time Javier was wounded to the time of his
death. The infection was, therefore, distinct and foreign to the crime.
(People v. Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was but
the remote cause and its subsequent infection, for failure to take
necessary precautions, with tetanus may have been
the proximate cause of Javier's death with which the petitioner had
nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al.
(99 Phil. 118).
"A prior and remote cause cannot be made the be
of an action if such remote cause did nothing
more than furnish the condition or give rise to the
occasion by which the injury was made possible,
if there intervened between such prior or remote
cause and the injury a distinct, successive,
unrelated, and efficient cause of the injury, even
though such injury would not have happened but
for such condition or occasion. If no danger
existed in the condition except because of the
independent cause, such condition was not the
proximate cause. And if an independent negligent
act or defective condition sets into operation the
instances which result in injury because of the
prior defective condition, such subsequent act or
condition is the proximate cause." (45 C.J. pp.
931-932). (at p. 125)
It strains the judicial mind to allow a clear aggressor to go scot free of
criminal liability. At the very least, the records show he is guilty of
inflicting slight physical injuries. However, the petitioner's criminal
liability in this respect was wiped out by the victim's own act. After
the hacking incident, Urbano and Javier used the facilities of barangay
mediators to effect a compromise agreement where Javier forgave
Urbano while Urbano defrayed the medical expenses of Javier. This
settlement of minor offenses is allowed under the express provisions
of Presidential Decree G.R. No. 1508, Section 2(3). (See also People v.
Caruncho, 127 SCRA 16).
We must stress, however, that our discussion of proximate cause and
remote cause is limited to the criminal aspects of this rather unusual
case. It does not necessarily follow that the petitioner is also free of
civil liability. The well-settled doctrine is that a person, while not
criminally liable, may still be civilly liable. Thus, in the recent case
of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987),
we said:
xxx xxx xxx
... While the guilt of the accused in a criminal
prosecution must be established beyond
reasonable doubt, only a preponderance of
evidence is required in a civil action for damages.
(Article 29, Civil Code). The judgment of acquittal
extinguishes the civil liability of the accused only
when it includes a declaration that the facts from
which the civil liability might arise did not exist.
(Padilla v. Court of Appeals, 129 SCRA 559).
The reason for the provisions of article 29 of the
Civil Code, which provides that the acquittal of
the accused on the ground that his guilt has not
been proved beyond reasonable doubt does not
necessarily exempt him from civil liability for the
same act or omission, has been explained by the
Code Commission as follows:
The old rule that the acquittal of the accused in a criminal
case also releases him from civil liability is one of the most
serious flaws in the Philippine legal system. It has given use
to numberless instances of miscarriage of justice, where the
acquittal was due to a reasonable doubt in the mind of the
court as to the guilt of the accused. The reasoning followed
is that inasmuch as the civil responsibility is derived from
the criminal offense, when the latter is not proved, civil
liability cannot be demanded.
This is one of those causes where confused thinking leads to
unfortunate and deplorable consequences. Such reasoning fails to
draw a clear line of demarcation between criminal liability and civil
responsibility, and to determine the logical result of the distinction.
The two liabilities are separate and distinct from each other. One
affects the social order and the other, private rights. One is for the
punishment or correction of the offender while the other is for
reparation of damages suffered by the aggrieved party. The two
responsibilities are so different from each other that article 1813 of
the present (Spanish) Civil Code reads thus: "There may be a
compromise upon the civil action arising from a crime; but the public
action for the imposition of the legal penalty shall not thereby be
extinguished." It is just and proper that, for the purposes of the
imprisonment of or fine upon the accused, the offense should be
proved beyond reasonable doubt. But for the purpose of indemnity
the complaining party, why should the offense also be proved beyond
reasonable doubt? Is not the invasion or violation of every private
right to be proved only by a preponderance of evidence? Is the right
of the aggrieved person any less private because the wrongful act is
also punishable by the criminal law?
"For these reasons, the Commission recommends the adoption of the
reform under discussion. It will correct a serious defect in our law. It
will close up an inexhaustible source of injustice-a cause for
disillusionment on the part of the innumerable persons injured or
wronged."
The respondent court increased the P12,000.00 indemnification
imposed by the trial court to P30,000.00. However, since the
indemnification was based solely on the finding of guilt beyond
reasonable doubt in the homicide case, the civil liability of the
petitioner was not thoroughly examined. This aspect of the case calls
for fuller development if the heirs of the victim are so minded.
Compiled by: Vim Malicay
WHEREFORE, the instant petition is hereby GRANTED. The questioned
decision of the then Intermediate Appellate Court, now Court of
Appeals, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of
the crime of homicide. Costs de oficio.
SO ORDERED.
Fernan, (Chairman), Feliciano, Bidin and,Cortes, JJ., concur.
PEOPLE VS ABARCA
(153 SCRA 735[1987])
SARMIENTO, J.:
This is an appeal from the decision of the Regional Trial Court of Palo,
Leyte, sentencing the accused-appellant Francisco Abarca to death for
the complex crime of murder with double frustrated murder.
The case was elevated to this Court in view of the death sentence
imposed. With the approval of the new Constitution, abolishing the
penalty of death and commuting all existing death sentences to life
imprisonment, we required the accused-appellant to inform us
whether or not he wished to pursue the case as an appealed case. In
compliance therewith, he filed a statement informing us that he
wished to continue with the case by way of an appeal.
The information (amended) in this case reads as follows:
xxx xxx xxx
The undersigned City Fiscal of the City of Tacloban
accuses Francisco Abarca of the crime of Murder
with Double Frustrated Murder, committed as
follows:
That on or about the 15th day of July, 1984, in the
City of Tacloban, Philippines and within the
jurisdiction of this Honorable Court, the above-
named accused, with deliberate intent to kill and
with evident premeditation, and with treachery,
armed with an unlicensed firearm (armalite), M-
16 rifle, did then and there wilfully, unlawfully
and feloniously attack and shot several times
KHINGSLEY PAUL KOH on the different parts of his
body, thereby inflicting upon said KHINGSLEY
PAUL KOH gunshot wounds which caused his
instantaneous death and as a consequence of
which also caused gunshot wounds to LINA
AMPARADO and ARNOLD AMPARADO on the
different parts of their bodies thereby inflicting
gunshot wounds which otherwise would have
caused the death of said Lina Amparado and
Arnold Amparado, thus performing all the acts of
execution which should have produced the
crimes of murders as a consequence, but
nevertheless did not produce it by reason of
causes independent of his will, that is by the
timely and able medical assistance rendered to
Lina Amparado and Arnold Amparado which
prevented their death. 1
xxx xxx xxx
On arraignment, the accused-appellant pleaded not guilty. The
Solicitor General states accurately the facts as follows:
Khingsley Paul Koh and the wife of accused
Francisco Abarca, Jenny, had illicit relationship.
The illicit relationship apparently began while the
accused was in Manila reviewing for the 1983 Bar
examinations. His wife was left behind in their
residence in Tacloban, Leyte (pp. 45-47, 65, tsn,
Sept. 24, 1984).
On July 15, 1984, the accused was in his residence
in Tacloban, Leyte. On the morning of that date
he went to the bus station to go to Dolores,
Eastern Samar, to fetch his daughter. However,
he was not able to catch the first trip (in the
morning). He went back to the station in the
afternoon to take the 2:00 o'clock trip but the bus
had engine trouble and could not leave (pp. 5-8,
tsn, Nov. 28, 1985). The accused, then proceeded
to the residence of his father after which he went
home. He arrived at his residence at the V & G
Subdivision in Tacloban City at around 6:00
o'clock in the afternoon (pp. 8-9, tsn, Id.).
Upon reaching home, the accused found his wife,
Jenny, and Khingsley Koh in the act of sexual
intercourse. When the wife and Koh noticed the
accused, the wife pushed her paramour who got
his revolver. The accused who was then peeping
above the built-in cabinet in their room jumped
and ran away (pp. 9-13, tsn, Id.).
The accused went to look for a firearm at
Tacloban City. He went to the house of a PC
soldier, C2C Arturo Talbo, arriving there at around
6:30 p.m. He got Talbo's firearm, an M-16 rifle,
and went back to his house at V & G Subdivision.
He was not able to find his wife and Koh there. He
proceeded to the "mahjong session" as it was the
"hangout" of Kingsley Koh. The accused found
Koh playing mahjong. He fired at Kingsley Koh
three times with his rifle (pp. 13-19, tsn, Id.). Koh
was hit. Arnold and Lina Amparado who were
occupying a room adjacent to the room where
Koh was playing mahjong were also hit by the
shots fired by the accused (pp. 34-49, tsn, Sept.
24, 1984). Kingsley Koh died instantaneously of
cardiorespiratory arrest due to shock and
hemorrhage as a result of multiple gunshot
wounds on the head, trunk and abdomen (pp. 28-
29, tsn, Sept. 24, 1984; see also exh. A): Arnold
Amparado was hospitalized and operated on in
the kidney to remove a bullet (pp. 17-23, tsn, Oct.
17, 1984; see also exh. C). His wife, Lina
Amparado, was also treated in the hospital as she
was hit by bullet fragments (p. 23, tsn, Id.). Arnold
Amparado who received a salary of nearly
P1,000.00 a month was not able to work for 1-1/2
months because of his wounds. He spent
Compiled by: Vim Malicay
 P15,000.00 for medical expenses while his wife
spent Pl,000.00 for the same purpose (pp. 24-25,
tsn, Id. ). 2
On March 17, 1986, the trial court rendered the appealed judgment,
the dispositive portion whereof reads as follows:
xxx xxx xxx
WHEREFORE, finding the accused, Francisco
Abarca guilty beyond reasonable doubt of the
complex crime of murder with double frustrated
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
or aggravating circumstances when the law
prescribes a single indivisible penalty in relation
to Art. 48, he is hereby sentenced to death, to
indemnify the heirs of Khingsley Paul Koh in the
sum of P30,000, complainant spouses Arnold and
Lina Amparado in the sum of Twenty Thousand
Pesos (P20,000.00), without subsidiary
imprisonment in case of insolvency, and to pay
the costs.
It appears from the evidence that the deceased
Khingsley Paul Koh and defendant's wife had illicit
relationship while he was away in Manila; that the
accused had been deceived, betrayed, disgraced
and ruined by his wife's infidelity which disturbed
his reasoning faculties and deprived him of the
capacity to reflect upon his acts. Considering all
these circumstances this court believes the
accused Francisco Abarca is deserving of
executive clemency, not of full pardon but of a
substantial if not a radical reduction or
commutation of his death sentence.
Let a copy of this decision be furnished her
Excellency, the President of the Philippines, thru
the Ministry of Justice, Manila.
SO ORDERED. 3
xxx xxx xxx
The accused-appellant assigns the following errors committed by the
court a quo:
I.
IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD
OF ENTERING A JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF
THE REVISED PENAL CODE;
II.
IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING
CIRCUMSTANCE OF TREACHERY. 4
The Solicitor General recommends that we apply Article 247 of the
Revised Penal Code defining death inflicted under exceptional
circumstances, complexed with double frustrated murder. Article 247
reads in full:
ART. 247. Death or physical injuries inflicted under
exceptional circumstances. Any legally married
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
the act or immediately thereafter, or shall inflict
upon them any serious physical injury, shall suffer
the penalty of destierro.
If he shall inflict upon them physical injuries of any
other kind, he shall be exempt from punishment.
These rules shall be applicable, under the same
circumstances, to parents with respect to their
daughters under eighteen years of age, and their
seducers, while the daughters are living with their
parents.
Any person who shall promote or facilitate
prostitution of his wife or daughter, or shall
otherwise have consented to the infidelity of the
other spouse shall not be entitled to the benefits
of this article.
We agree with the Solicitor General that the aforequoted provision
applies in the instant case. There is no question that the accused
surprised his wife and her paramour, the victim in this case, in the act
of illicit copulation, as a result of which, he went out to kill the
deceased in a fit of passionate outburst. Article 247 prescribes the
following elements: (1) that a legally married person surprises his
spouse in the act of committing sexual intercourse with another
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
trial court, in convicting the accused-appellant of murder, therefore
erred.
Though quite a length of time, about one hour, had passed between
the time the accused-appellant discovered his wife having sexual
intercourse with the victim and the time the latter was actually shot,
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
them . . . immediately" after surprising his spouse in the act of
intercourse, does not say that he should commit the killing instantly
thereafter. It only requires that the death caused be the proximate
result of the outrage overwhelming the accused after chancing upon
his spouse in the basest act of infidelity. But the killing should have
been actually motivated by the same blind impulse, and must not
have been influenced by external factors. The killing must be the
direct by-product of the accused's rage.
It must be stressed furthermore that Article 247, supra, does not
define an offense. 5 In People v. Araque, 6 we said:
xxx xxx xxx
Compiled by: Vim Malicay
As may readily be seen from its provisions and its
place in the Code, the above-quoted article, far
from defining a felony, merely provides or grants
a privilege or benefit amounting practically to
an exemption from an adequate punishment
to a legally married person or parent who shall
surprise his spouse or daughter in the act of
committing sexual intercourse with another, and
shall kill any or both of them in the act or
immediately thereafter, or shall inflict upon them
any serious physical injury. Thus, in case of death
or serious physical injuries, considering the
enormous provocation and his righteous
indignation, the accused who would otherwise
be criminally liable for the crime of homicide,
parricide, murder, or serious physical injury, as
the case may be is punished only
with destierro. This penalty is mere banishment
and, as held in a case, is intended more for the
protection of the accused than a punishment.
(People vs. Coricor, 79 Phil., 672.) And where
physical injuries other than serious are inflicted,
the offender is exempted from punishment. In
effect, therefore, Article 247, or the exceptional
circumstances mentioned therein, amount to an
exempting circumstance, for even where death or
serious physical injuries is inflicted, the penalty is
so greatly lowered as to result to no punishment
at all. A different interpretation, i.e., that it
defines and penalizes a distinct crime, would
make the exceptional circumstances which
practically exempt the accused from criminal
liability integral elements of the offense, and
thereby compel the prosecuting officer to plead,
and, incidentally, admit them, in the information.
Such an interpretation would be illogical if not
absurd, since a mitigating and much less an
exempting circumstance cannot be an integral
element of the crime charged. Only "acts or
omissons . . . constituting the offense" should be
pleaded in a complaint or information, and a
circumstance which mitigates criminal liability or
exempts the accused therefrom, not being an
essential element of the offense charged-but a
matter of defense that must be proved to the
satisfaction of the court-need not be pleaded.
(Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo,
23 Phil., 368.)
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)
was found under the General Provisions (Chapter
VIII) of Title VIII covering crimes against persons.
There can, we think, hardly be any dispute that as
part of the general provisions, it could not have
possibly provided for a distinct and separate
crime.
xxx xxx xxx
We, therefore, conclude that Article 247 of the
Revised Penal Code does not define and provide
for a specific crime, but grants a privilege or
benefit to the accused for the killing of another or
the infliction of serious physical injuries under the
circumstances therein mentioned. ... 7
xxx xxx xxx
Punishment, consequently, is not inflicted upon the accused. He is
banished, but that is intended for his protection. 8
It shall likewise be noted that inflicting death under exceptional
circumstances, not being a punishable act, cannot be qualified by
either aggravating or mitigating or other qualifying circumstances, We
cannot accordingly appreciate treachery in this case.
The next question refers to the liability of the accused-appellant for
the physical injuries suffered by Lina Amparado and Arnold Amparado
who were caught in the crossfire as the accused-appellant shot the
victim. The Solicitor General recommends a finding of double
frustrated murder against the accused-appellant, and being the more
severe offense, proposes the imposition of reclusion temporal in its
maximum period pursuant to Article 48 of the Revised Penal Code.
This is where we disagree. The accused-appellant did not have the
intent to kill the Amparado couple. Although as a rule, one
committing an offense is liable for all the consequences of his act, that
rule presupposes that the act done amounts to a felony. 9
But the case at bar requires distinctions. Here, the accused-appellant
was not committing murder when he discharged his rifle upon the
deceased. Inflicting death under exceptional circumstances is not
murder. We cannot therefore hold the appellant liable for frustrated
murder for the injuries suffered by the Amparados.
This does not mean, however, that the accused-appellant is totally
free from any responsibility. Granting the fact that he was not
performing an illegal act when he fired shots at the victim, he cannot
be said to be entirely without fault. While it appears that before firing
at the deceased, he uttered warning words ("an waray labot
kagawas,") 10 that is not enough a precaution to absolve him for the
injuries sustained by the Amparados. We nonetheless find negligence
on his part. Accordingly, we hold him liable under the first part,
second paragraph, of Article 365, that is, less serious physical injuries
through simple imprudence or negligence. (The records show that
Arnold Amparado was incapacitated for one and one-half
months; 11 there is no showing, with respect to Lina Amparado, as to
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
For the separate injuries suffered by the Amparado spouses, we
therefore impose upon the accused-appellant arresto mayor (in its
medium and maximum periods) in its maximum period, arresto to
being the graver penalty (than destierro). 13
WHEREFORE, the decision appealed from is hereby MODIFIED. The
accused-appellant is sentenced to four months and 21 days to six
months of arresto mayor. The period within which he has been in
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
P1,500.00 as and for Arnold Amparado's loss of earning capacity. No
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
at 5:30 in the afternoon. She vomitted and then went to bed, The
accused then left for the fields and returned at around 9:00 in the
evening and found his wife dead on her bed. He reported this death
to their barrio captain.
Despite these statements, (Exhibits "A" and "B") admitting his guilt,
Ulep retracted his statement in court by narrating that more than a
year before that, and while his wife went to have their palay milled,
their bullcart loaded with sacks of rice turned upside down and
pinned his wife on her breast. With the pain in her chest, she was
treated by a country quack doctor or "arbularyo."
The accused took exception to his conviction when he raised the
following errors:
I
THE LOWER COURT ERRED IN HOLDING THAT THE CAUSE OF DEATH
OF ASUNCION PABLO WAS DUE TO THE ELBOW BLOWS BY THE
ACCUSED-APPELLANT ON HER BREAST, AS ADMIRED BY HIM IN HIS
AFFIDAVITS, EXHIBIT "A" AND EXHIBIT "A-1," ENGLISH TRANSLATION,
WHEN SUCH ADMISSION IS BUT A MERE BELIEF ON HIS PART.
II
THE LOWER COURT ERRED IN NOT HOLDING THAT THE CAUSE OF
DEATH OF SAID ASUNCION PABLO WAS DUE TO A LONG STANDING
PROCESS OR CONDITION IN HER BODY SYSTEM, AS TESTIFIED TO BY
DR. PEDRO BLANCO FOR THE DEFENSE.
III
THE LOWER COURT ERRED CONSEQUENTLY IN NOT ACQUITTING HIM
OF THE CRIME OF PARRICIDE.
Our primary concern is to determine the cause of death of Asuncion
Pablo, the wife, of the accused. Was her death a result of cardiac
arrest and primary shock due to fractured ribs? The appellant alleges
that the gradual weakening of the heart due to a long standing illness
of the body system caused the cardiac arrest which claimed the life of
Asuncion Pablo.
The post-mortem report on the deceased was prepared by Dr. Eliseo
V. Bonoan who conducted an autopsy at the behest of a daughter of
tile deceased by a previous marriage. The husband who previously
denied permission to conduct an autopsy was present when the
autopsy was performed shortly before the body was buried at the
cemetery of San Nicolas, Ilocos Norte. In the necropsy report of Dr.
Bonoan, the cause of death was manifestly due to cardiac arrest and
primary shock. We agree and see no fault in this finding made in the
necropsy report of Dr. Bonoan.
The defense took exception to Dr. Bonoan's testimony that the
fractures in the chest could have been caused by blows or physical
pressure. Could such injuries not have been inflicted by elbow blows
when the victim was standing or by knee or feet blows when the
victim was lying on her back or was sitting with her back against the
wall?
While the accused admitted that he delivered several elbow blows on
the chest of his wife immediately before her death and the
prosecution attributed these blows as the proximate cause of the
cardiac arrest and primary shock which resulted in the wife's death,
the defense assails this theory of the prosecution in the following
manner:
First, there were no contusions on the chest of the
victim. This indicates that the elbow blows were
not of sufficient force to fracture the ribs. This is
so because a fracture necessarily results in the
extravasation of blood in the fractured area and it
is the extravasated blood that causes the swelling
or contusion. 2 Dr. Blanco attributes the absence
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
repairs has happened and that sufficient time
have elapsed for the swelling to disappear (t.s.n.,
p. 180).
Second, even on the theory that fractures of the
ribs as that found by Dr. Bonoan were present,
the same could have not caused cardiac arrest
and primary shock. This is so because only
extravasated blood was present around the
immediate area of the fractures, This means that
the fractures were not depressed or that the
fractured ends did not cave-in, so as to injure the
heart and impede its functions to cause cardiac
arrest. The claim of Dr. Bonoan that the chest is
pliant and is like an accordion which can be
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
how pliant it could be. And even on the theory
that the fractures were caused by stamping the
foot on a piece of wood placed on the chest, while
the victim was lying on her back, still the fractures
could not have injured the heart or impede its
functions to cause cardiac arrest, because the
fractures, were not depressed fractures or cave-
in fractures. The fractures merely caused the
extravasation of blood within the fractured areas.
And neither would the fractures cause primary
shock because they were merely complete
fractures; which means a mere breakage that
would not cause the stoppage of the heart,
because it does not tend to compress the heart. 3
And third, although the pleura or thoracic cavity
was lacerated at the points of fracture, the same
could not have caused cardiac arrest or primary
shock because the lacerations were limited to the
pleura. The points of fracture did not cave-in or
were not depressed and they did not injure or
impede the heart to cause cardiac arrest. Neither
did the lacerations of the pleura cause primary
shock because blood did not spill into the pleura,
which indicates that the hemorrhage was nil. This
is so because the serous fluid in the pleura -as not
reddish.
Compiled by: Vim Malicay
 On the contrary, the evidence of the prosecution
shows that the deceased died of cardiac arrest
because of the weakening of the heart due to a
long standing process or condition in her body
system. Thus the theory of the defense is
strengthened by the very evidence of the
prosecution. 4
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
normal whereas the prosecution says that the pleura normally
contains 100 to 200 cc. of serous fluid and that this is normal. Anyway
both agree that there should be enough serous fluid to lubricate the
tissues.
The presence of 500 cc. of serous fluid in the abdominal cavity which,
according to Dr. Blanco, the physician, witness for the appellant, may
be due to the chronic condition of the kidney like nephritis and edema
or the hardening of the liver or a long progressively weakening of the
heart. 5 Dr. Bonoan did not concur in this view when he said that the
fluid was rather increased as a result of the diffusion of the medicine
used in the embalming. 6 We find cogent basis in the explanation
given by Dr. Bonoan.
Another point raised in the necropsy report pertains to the presence
of clotted blood in the heart and blood vessels as well as the
congestion of the meningeal vessels. The appellant bares that this is
a sign of the hardening of the heart. Dr. Bonoan of the prosecution
disclosed that there were no signs of circulatory weakening and that
blood clots were not found adherent to the heart and such being the
condition there could be no abnormality and thus he further declares
that such clots are normally found in the heart of a dead person or in
any part of the circulatory system. 7
There is an admission by Dr. Blanco, the appellant's witness, that he
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
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
A resume of the evidence presented by the parties establishes the fact
of death of Asuncion Pablo on May 21, 1970. She was legally married
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
wife. This attack caused the complete fracture of the 4th, 5th, 6th and
7th ribs on her left chest and the 3rd, and 4th ribs, right chest of
Asuncion Pablo on the same evening of May 21, 1970. The trial judge
observed: "There was never any attempt on the part of the accused
to repudiate the sworn statements wherein he admitted that the
cause of death of his wife was his having elbowed her many times on
her breast." 10
Having realized the gravity of his act, the appellant presented a
witness to prove that sometime in February or March, 1969 his wife
was pinned down by a sack of rice and the side portion of a bullcart
and was attended to by a town quack doctor called an arbularyo. This
witness said that two (2) ribs on each side of the chest were fractured,
without stating which particular ribs were so affected.
From all these observations, findings, and an incisive study of the
necropsy report, the cause of death of the wife-victim in this case is
cardiac arrest and primary shock caused by the strong pressure
applied on the upper front chest bone. This happens when one steps,
kneels or presses the body of a victim against a wall. The man-size
blows coming from the elbow of the aggressor upon a thin-framed
woman can only bring about fatal results.
We find relevance in Wharton and Stilles' findings in their
book, Medical Jurisprudence under the title of "SHOCK," to wit:
Sec. 225. Shock. Death may also be due to the
shock associated with the injury. The possibility of
a person dying from the shock attendant upon an
injury which, by itself appears to be unimportant
is attested by experience. No satisfactory
explanation of the cause of the shock seems to
have been found, though it is due in some way to
the upsetting of the nervous equilibrium of the
body. Shock from an injury may be fatal even
when the blow leaves no trace behind it; as, for
instance, when a person receives a violent blow
upon the pit of the stomach, or behind the ear, or
to the larynx. ... In the case of Reg. v. Slane, et
al., 11 the deceased had received injuries to the
abdomen by kick and blows, but there were no
marks of bruises present, or anything to show the
cause of death. Death however, had followed
twenty minutes after the maltreatment and was
evidently due to the shock. The prisoners were
convicted of murder. 12
We have previously stated that:
Even if the victim is suffering from an internal
ailment, liver or heart disease, or tuberculosis, if
the blow delivered by the accused
(a) is the efficient cause of death; or
(b) accelerated his death; or
(c) is the proximate cause of death; then there is
criminal liability. 13
Apropos to all these is that time-respected doctrine: "He who is the
cause of the cause is the cause of the evil caused." This is the rationale
in Article 4 of the Revised Penal Code which provides that "criminal
liability shall be incurred by a person committing a felony (delito)
although the wrongful act done be different from that which he
intended."
Again, We elucidated that: even though a blow with the fist or a kick
does not cause any external wound, it may easily produce
inflammation of the spleen and peritonitis and cause death, and even
though the victim may have been previously affected by some
internal malady, yet if the blow with the fist or foot accelerated death,
he who caused such acceleration is responsible for the death as the
result of an injury willfully and unlawfully inflicted. 14
We are, therefore, convinced that there is no fundamental
disagreement between the two medical witnesses as to the cause of
Compiled by: Vim Malicay
the victim's death and that cardiac arrest and primary shock took
away the life of the victim, Asuncion Pablo.
There is that clear and categorical showing that on the appellant fell
the blame for these in human acts on his wife. He should answer for
her tragic death.
The indemnity to the heirs of his deceased wife should be increased
to P30,000.00.
WHEREFORE, with the above modification as to indemnity, the
judgment appealed from is hereby AFFIRMED in all other respects.
SO ORDERED.
Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.
PEOPLE VS BINDOY
(56 PHIL 15)
VILLAMOR, J.:
The appellant was sentenced by the Court of First Instance of
Occidental Misamis to the penalty of twelve years and one day
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
following information:
That on or about the 6th of May, 1930, in the barrio of
Calunod, municipality of Baliangao, Province of Occidental
Misamis, the accused Donato Bindoy willfully, unlawfully,
and feloniously attacked and with his bolo wounded
Emigdio Omamdam, inflicting upon the latter a serious
wound in the chest which caused his instant death, in
violation of article 404 of the Penal Code.
The accused appealed from the judgment of the trial court, and his
counsel in this instance contends that the court erred in finding him
guilty beyond a reasonable doubt, and in convicting him of the crime
of homicide.
The record shows that in the afternoon of May 6, 1930, a disturbance
arose in a tuba wineshop in the barrio market of Calunod,
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,
offered some tuba to Pacas' wife; and as she refused to drink having
already done so, Bindoy threatened to injure her if she did not accept.
There ensued an interchange of words between Tibay and Bindoy,
and Pacas stepped in to defend his wife, attempting to take away
from Bindoy the bolo he carried. This occasioned a disturbance which
attracted the attention of Emigdio Omamdam, who, with his family,
lived near the market. Emigdio left his house to see what was
happening, while Bindoy and Pacas were struggling for the bolo. In
the course of this struggle, Bindoy succeeded in disengaging himself
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.
There is no evidence that Emigdio took part in the fight between
Bindoy and Pacas. Neither is there any indication that the accused was
aware of Emigdio Omamdam's presence in the place, for, according
to the testimony of the witnesses, the latter passed behind the
combatants when he left his house to satisfy his curiosity. There was
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
Pacas, and instead of wounding him, he hit Omamdam; he was only
defending his possession of the bolo, which Pacas was trying to
wrench away from him, and his conduct was perfectly lawful.
The wound which Omamdam received in the chest, judging by the
description given by the sanitary inspector who attended him as he
lay dying, tallies with the size of the point of Bindoy's bolo.
There is no doubt that the latter caused the wound which produced
Emigdio Omamdam's death, but the defendant alleges that it was
caused accidentally and without malicious intent.
Pacas and the widow of the deceased, Carmen Angot, testified having
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
husband's wound being caused by Bindoy from his statement to her
before his death.
The testimony of the witnesses for the prosecution tends to show that
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
the chest; but, as we have stated, there is no evidence to show that
he did so deliberately and with the intention of committing a crime.
If, in his struggle with Pacas, the defendant had attempted to wound
his opponent, and instead of doing so, had wounded Omamdam, he
would have had to answer for his act, since whoever willfully commits
a felony or a misdemeanor incurs criminal liability, although the
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 witness for the defense, Gaudencio Cenas, corroborates the
defendant to the effect that Pacas and Bindoy were actually struggling
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
very moment when Emigdio Omamdam came up, who was therefore
hit in the chest, without Donato's seeing him, because Emigdio had
passed behind him. The same witness adds that he went to see
Omamdam at his home later, and asked him about his wound when
he replied: "I think I shall die of this wound." And then continued:
"Please look after my wife when I die: See that she doesn't starve,"
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
not contradicted by any rebuttal evidence adduced by the fiscal.
We have searched the record in vain for the motive of this kind,
which, had it existed, would have greatly facilitated the solution of
this case. And we deem it well to repeat what this court said in United
States vs. Carlos (15 Phil., 47), to wit:
The attention of prosecuting officers, and especially of
provincial fiscals, directed to the importance of definitely
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 ascertaining and proving, when possible, the motives which
actuated the commission of a crime under investigation.
In many criminal cases one of the most important aids in
completing the proof of the commission of the crime by the
accused is the introduction of evidence disclosing the
motives which tempted the mind of the guilty person to
indulge the criminal act.
In view of the evidence before us, we are of opinion and so hold, that
the appellant is entitled to acquittal according to article 8, No. 8, Penal
Code. Wherefore, the judgment appealed from is reversed, and the
accused Donato Bindoy is hereby acquitted with costs de oficio. So
ordered.
Avancea, C.J., Johnson, Street, Malcolm, Romualdez, Villa-Real, and
Imperial, JJ., concur.
BELBIS VS PEOPLE
(685 SCRA 518)
PERALTA, J.:
This is a Petition for Review on Certiorari1 under Rule 45, dated
February 22, 2008, of Rodolfo Belbis, Jr. and Alberto Brucales that
seeks to reverse and set aside the Decision2 of the Court of Appeals
(CA), dated August 17, 2007, and its Resolution dated January 4, 2008,
at1irrning with modification the Decision3 dated December 23, 2004
of the Regional Trial Court (RTC), Tabaco City, AI bay, Branch 17,
finding petitioners guilty beyond reasonable doubt of the crime off
Homicide.
The factual antecedents follow.
Jose Bahillo (Jose), the victim, was a Barangay Tanod of Sitio Bano,
Barangay Naga, Tiwi, Albay. Around 9:00 p.m. of December 9, 1997,
Jose left his house and proceeded to the area assigned to him. Later
on, around 10:00 p.m., Veronica Dacir (Veronica), Jose's live-in
partner, heard Jose shouting and calling her name and went to where
Jose was and saw blood at his back and shorts. It was there that Jose
told Veronica that he was held by Boboy (petitioner Alberto Brucales),
while Paul (petitioner Rodolfo Belbis, Jr.) stabbed him. Jose was taken
to St. Claire Medical Clinic at Tiwi, Albay, about four kilometers from
Barangay Naga where he was initially attended by Dr. Bernardo Corral
(Dr. Corral). Jose was later referred to Ziga Memorial District Hospital
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
physician, issued a medical certificate, which stated the following
wounds found on Jose's body: (1) stab wound, 3 cm., lumbar area,
right; (2) stab wound, 3 cm., lumbar area, left; (3) stab wound, 3 cm.,
left buttock, medial aspect; and (4) stab wound, 3 cm., left buttock,
lateral aspect. He was also found positive for alcoholic breath, his
blood level was monitored and was given I.V. (intravenous) fluids and
antibiotics. He was finally discharged on December 15 1997. Dr.
Reduta issued Jose prescriptions and instructed the latter to go back
to the hospital after the medicines prescribed are consumed. Jose
remained bedridden and should have returned to the hospital on
December 22, 1997, but failed to do so due to financial constraints.
During that time, the wounds of Jose were not yet fully healed.
Veronica brought Jose back to St. Claire Medical Clinic on January 1,
1998, because the latter was complaining of urinary retention and
pains in his left and right lumbar regions. Dr. Corral suspected that
Jose had septicemia; thus, he was given I.V. fluids, antibiotics and
diuretics, and a catheter was used to relieve Jose of urinary retention.
Upon Jose's request, he was discharged on January 3, 1998. He was
brought back to the same hospital on January 7, 1998 and was
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
Police-Tiwi went to the hospital to secure Jose's ante-mortem
statement. Later, in the afternoon of the same day, Jose was brought
to the clinic of Dr. Marilou Compuesto upon the advice of Dr. Corral
where he underwent ultrasound scanning. It was found that Jose's
kidney had acute inflammation due to infection. He was returned to
St. Claire Medical Clinic and was advised to go to Manila. However,
Jose died at 10:00 p.m. of the same day.
Dr. Corral issued a Death Certificate which shows the following:
a) Immediate cause Uremia, secondary to renal shutdown
b) Antecedent cause Septicemia, renal inflammatory
disease.
Dr. Wilson Moll Lee, Medical Officer III of the National Bureau of
Investigation (NBI) of Naga City, Region V, conducted an autopsy on
the victim's cadaver on January 14, 1998 and issued Autopsy Report
No. BRO No. 98-02, which indicated multiple organ failure as the
cause of the victim's death. Thus, petitioners were charged with the
crime of homicide. The Information reads:
That on or about the 9th day of December 1997, at about 10:30
o'clock in the evening, more or less, at Barangay Naga, Municipality
of Tiwi, Province of Albay, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, with intent to kill,
conspiring, confederating and helping one another, did then and
there willfully, unlawfully, and feloniously assault, attack, and stab
JOSE BAHILLO, thereby inflicting upon the latter stab wounds which
caused his death on January 8, 1998, to the damage and prejudice of
the latter's heirs.
CONTRARY TO LAW.
On February 17, 1999, petitioners entered a plea of not guilty.
Thereafter, trial on the merits ensued.
The prosecution presented documentary evidence as well as the
testimonies of Dr. Marilou Compuesto, Dr. Sancho Reduta, Dr.
Bernardo Corral, Dr. Wilson Moll Lee, SPO1 Lerma Bataller and Calixto
Dacullo.
Petitioners claimed that they are entitled to the justifying
circumstance of self-defense. Through the testimonies of petitioners,
Dr. Olga Bausa and Dr. Edwin Lino Romano, their version of the
incident is as follows:
Around 10:00 p.m. of December 9, 1997, petitioners were outside a
store in Naga, Tiwi, Albay, engaged in a conversation with other
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
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following them. Petitioner Rodolfo asked Jose what is the matter and
the latter replied, "What about?" Suddenly, Jose thrust a nightstick on
petitioner Rodolfo, but the latter was able to evade it. Afterwards,
Jose held the nightstick horizontally with both hands and tried to hit
petitioner Rodolfo's forehead. Petitioner Rodolfo held the nightstick
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
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
holding. Petitioner Rodolfo managed to take the bolo away from Jose
and, thereafter, the latter embraced petitioner Rodolfo while trying
to get the bolo back. Petitioner Rodolfo held the bolo with his right
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
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.
Thereafter, petitioner Alberto accompanied petitioner Rodolfo to the
latter's house because he suffered a hand injury. Petitioner Rodolfo
was then brought to Tabaco General Hospital before he was referred
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.
Romano.
Petitioner Rodolfo brought the bolo used in the incident with him in
his house and reported the matter to the police station of Tiwi and
surrendered the same bolo to the police authorities.
The RTC convicted the petitioners of the crime charged against them,
but appreciated the mitigating circumstance of incomplete self-
defense. The dispositive portion of the decision follows:
WHEREFORE, premises considered, the accused Rodolfo Belbis, Jr.
and Alberto Brucales are found guilty beyond reasonable doubt for
the death of Jose Bahillo. Considering the privileged mitigating
circumstance of incomplete self-defense in their favor, and applying
the Indeterminate
Sentence Law, they are hereby sentenced to suffer the indeterminate
penalty of four (4) years and two (2) months of prision correccional as
minimum to eight (8) years and one (1) day of prision mayor as
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.
Costs against the accused.
SO ORDERED.4
After the denial of their motion for reconsideration, the petitioners
elevated the case to the CA. However, the latter denied their appeal
and affirmed the RTC decision with modification that there was no
mitigating circumstance of incomplete self-defense. The decretal
portion of the decision reads:
WHEREFORE, the decision dated 23 December 2004 of the Regional
Trial Court of Tabaco City, Albay, Branch 17 is hereby AFFIRMED with
MODIFICATION as to the penalty imposed. Accused-appellants
Rodolfo C. Belbis, Jr. and Alberto Brucales are sentenced to suffer the
indeterminate sentence of six (6) years and one (1) day of prision
mayor as minimum to fourteen (14) years, eight (8) months and one
(1) day of reclusion temporal as maximum.
Costs de oficio.
SO ORDERED.5
Petitioners' motion for reconsideration was denied. Hence, the
present petition.
Raised are the following issues:
I
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
DEATH. CONSTITUTES A DYING DECLARATION WITHIN THE
CONTEMPLATION OF SECTION 37, RULE 130 OF THE RULES
OF COURT?
II
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
RULING THAT PETITIONERS-APPELLANTS ARE NOT
ENTITLED TO THE JUSTIFYING CIRCUMSTANCE OF SELF-
DEFENSE AND THE MITIGATING CIRCUMSTANCE OF
INCOMPLETE SELF-DEFENSE?
III
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
RULING THAT THE STAB WOUNDS WERE THE PROXIMATE
CAUSE OF THE VICTIM'S DEATH?
IV
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
RULING THAT THE MITIGATING CIRCUMSTANCE OF
VOLUNTARY SURRENDER IS NOT PRESENT IN THE CASE AT
BAR?6
The petition lacks merit.
In a criminal case, factual findings of the trial court are generally
accorded great weight and respect on appeal, especially when such
findings are supported by substantial evidence on record.7 This rule,
however, is not without exceptions, one of which is when there is a
conflict between the factual findings of the Court of Appeals and the
trial court which necessitates a review of such factual findings.8
Petitioners claim that there is discrepancy in the findings of the RTC
and the CA. According to them, the RTC never mentioned about a
dying declaration which the CA discussed in its decision. They then
argue that the CA erred in ruling that the statements made by the
victim in the presence of witnesses Veronica Dacir right after being
stabbed, and SPO1 Lerma Bataller before he died, are dying
declarations within the contemplation of the law as the victim still
lived for one month after the said dying declaration was made.
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A dying declaration is a statement made by the victim of homicide,
referring to the material facts which concern the cause and
circumstances of the killing and which is uttered under a fixed belief
that death is impending and is certain to follow immediately, or in a
very short time, without an opportunity of retraction and in the
absence of all hopes of recovery. In other words, it is a statement
made by a person after a mortal wound has been inflicted, under a
belief that death is certain, stating the facts concerning the cause and
circumstances surrounding his/her death.9
declarant when he made the statement; (4) the presence or absence
of intervening events between the occurrence and the statement
relative thereto; and (5) the nature and circumstances of the
statement itself.13
Clearly, the statement made by the victim identifying his assailants
was made immediately after a startling occurrence which is his being
stabbed, precluding any chance to concoct a lie. As shown in the
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

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Q What did you observe from Jose Bahillo your live-in partner before
you brought him to the hospital?
A He was bloody and he was weak.
Q Could you tell us where did you see the blood?
A At his back and on his shorts.14
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
gestae, because petitioner Rodolfo admitted stabbing the victim but
insists that he had done the deed to defend himself. It is settled that
when an accused admits killing the victim but invokes self-defense to
escape criminal liability, the accused assumes the burden to establish
his plea by credible, clear and convincing evidence; otherwise,
conviction would follow from his admission that he killed the
victim.15 Self-defense cannot be justifiably appreciated when
uncorroborated by independent and competent evidence or when it
is extremely doubtful by itself.16 Indeed, in invoking self-defense, the
burden of evidence is shifted and the accused claiming self-defense
must rely on the strength of his own evidence and not on the
weakness of the prosecution.17
The essential requisites of self-defense are the following: (1) unlawful
aggression on the part of the victim; (2) reasonable necessity of the
means employed to prevent or repel such aggression; and (3) lack of
sufficient provocation on the part of the person resorting to self-
defense.18 Verily, to invoke self-defense successfully, there must have
been an unlawful and unprovoked attack that endangered the life of
the accused, who was then forced to inflict severe wounds upon the
assailant by employing reasonable means to resist the attack.19
Petitioners argue that the unlawful aggression that was started by the
victim continued even if petitioner Rodolfo was already in possession
of the bladed weapon used in the victim's stabbing. Petitioner Alberto
narrated the event as follows:
Q: What happened?
A: Rodolfo Belbis Jr. was able to fend off or parry the blow.
Q: Then what happened again?
A: The next action of Jose Bahillo was to hold the wood horizontally
and push it towards Rodolfo Belbis, Jr. and Rodolfo Belbis, Jr. was able
to get hold of it.
Q: Then what happened after Rodolfo Belbis, Jr. was able to get hold
of this stick?
A: The piece of wood was detached. The one Rodolfo Belbis, Jr. was
holding was the scabbard, while the one with the sharp instrument
was held by Jose Bahillo.
Q: Then what happened after this?
A: Jose Bahillo embraced Rodolfo Belbis, Jr.
Q: Then?
A: Wanting to get hold of that sharp instrument.
Q: Then what did Rodolfo Belbis, Jr. do when Jose Bahillo embraced
him and tried to wrest the sharp instrument from him?
A: While this Jose Bahillo was embracing this Rodolfo Belbis, Jr.,
Rodolfo Belbis. Jr. was moving his hands while holding the sharp
instrument, holding it away and thrusting it towards the back of Jose
Bahillo, near the waistline at the back.
Q: Then what happened when you saw this?
A: When Jose Bahillo was not able to get hold of that sharp
instrument, this Jose Bahillo pushed the body of Rodolfo Belbis, Jr.
away from him and Rodolfo Belbis, Jr. fell down.
Q: Then what happened to the sharp instrument which Rodolfo
Belbis, Jr. was holding when Rodolfo Belbis, Jr. fell down?
A: That sharp instrument got loose from his hand but it was situated
just near him.
Q: Who are you referring as "him?"
A: Rodolfo Belbis, Jr.
Q: Then after this sharp instrument was loosened from the hand of
Rodolfo Belbis, Jr. after he fell down, would you kindly inform this
Court what happened next?
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
instrument and thrust it towards Jose Bahillo.20
From the above testimony, it is apparent that the unlawful aggression
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
involved between the victim and petitioner Rodolfo, there is no doubt
that the latter, who was in possession of the same weapon, already
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-
defense the aggression still existed when the aggressor was injured
by the accused.21 Such an aggression can also be surmised on the four
stab wounds sustained by the victim on his back. It is hard to believe
based on the location of the stab wounds, all at the back portion of
the body (right lumbar area, left lumbar area, left buttock, medial
aspect and left buttock, lateral aspect), that petitioner Rodolfo was
defending himself. It would have been different if the wounds
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
when it found that:
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
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
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
the pointed end of the bolo. The location and nature of the injuries
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which were stab wounds clearly showed that they were not caused
by swinging thrust. They were caused by direct thrust. It was the
pointed end of the bolo that caused the injuries which hit the same
spot the lumbar area and the buttock.22
The means employed by a person claiming self-defense must be
commensurate to the nature and the extent of the attack sought to
be averted, and must be rationally necessary to prevent or repel an
unlawful aggression.23 In the present case, four stab wounds that are
the product of direct thrusting of the bladed weapon are not
necessary to prevent what the petitioners claim to be the continuous
unlawful aggression from the victim as the latter was already without
any weapon. In connection therewith, having established that there
was no unlawful aggression on the part of the victim when he was
stabbed, petitioners cannot avail of the mitigating circumstance of
incomplete self-defense.
Anent the contention of petitioners that the CA failed to consider the
testimony of the doctor who performed the autopsy in its entirety,
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
and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not
have occurred."24 The autopsy report indicated that the cause of the
victim's death is multiple organ failure. According to Dr. Wilson Moll
Lee, the doctor who conducted the autopsy, the kidneys suffered the
most serious damage. Although he admitted that autopsy alone
cannot show the real culprit, he stated that by having a long standing
infection caused by an open wound, it can be surmised that multiple
organ failure was secondary to a long standing infection secondary to
stab wound which the victim allegedly sustained.25 What is important
is that the other doctors who attended to the wounds sustained by
the victim, specially those on the left and right lumbar area, opined
that they affected the kidneys and that the wounds were deep
enough to have caused trauma on both kidneys. On that point, the
Office of the Solicitor General (OSG), in its Comment,26 is correct in
stating the following:
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
on cross-examination that the stab wounds sustained by Bahillo are
not the cause of his death because he lived for quite sometime and
that there was no direct injury on his vital organs. There was,
however, a qualification to Dr. Lee's statement on cross-examination.
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
records of the patient. Petitioners-appellants' reliance of the said
statement of Dr. Lee is misplaced because the doctor only examined
the cadaver of Bahillo. This explains why he has no direct knowledge
of Bahillo's medical records. The opinions of the other doctors who
testified for the prosecution and who examined Bahillo while he was
still alive are more conclusive than those of Dr. Lee. They had direct
knowledge of the causal relation between the stab wounds, the
kidney failure and the death of Bahillo.27
Thus, it can be concluded that without the stab wounds, the victim
could not have been afflicted with an infection which later on caused
multiple organ failure that caused his death. The offender is criminally
liable for the death of the victim if his delictual act caused, accelerated
or contributed to the death of the victim.28
As to the claim of petitioners that they are entitled to the mitigating
circumstance of voluntary surrender, the same does not deserve
merit. For voluntary surrender to be appreciated, the following
requisites should be present: (1) the offender has not been actually
arrested; (2) the offender surrendered himself to a person in
authority or the latter's agent; and (3) the surrender was
voluntary.29 The essence of voluntary surrender is spontaneity and
the intent of the accused to give himself up and submit himself to the
authorities either because he acknowledges his guilt or he wishes to
save the authorities the trouble and expense that may be incurred for
his search and capture.30 Without these elements, and where the
clear reasons for the supposed surrender are the inevitability of arrest
and the need to ensure his safety, the surrender is not spontaneous
and, therefore, cannot be characterized as "voluntary surrender" to
serve as a mitigating circumstance.31 In the present case, when the
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,
there was no spontaneity, because they only surrendered after a
warrant of their arrest had already been issued.
WHEREFORE, the Petition for Review on Certiorari under Rule 45,
dated February 22, 2008, of Rodolfo Belbis, Jr. and Alberto Brucales,
is hereby DENIED. Consequently, the Decision of the Court of Appeals,
dated August 17, 2007, and its Resolution dated January 4, 2008,
affirming with modification the Decision dated December 23, 2004 of
the Regional Trial Court, Tabaco City, Albay, Branch 17, finding
petitioners guilty beyond reasonable doubt of the crime of Homicide
are hereby AFFIRMED.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
Causes that produce a different result
PEOPLE VS GONA
(54 PHIL 605)
OSTRAND, J.:
The defendant was charged before the Court of First Instance of the
Province of Davao with the crime of homicide, the information
reading as follows:
That on or about October 26, 1928, in the municipal district
of Pantukan, Province of Davao, Philippine Islands, as within
the jurisdiction of the court, the said accused voluntarily,
illegally, and criminally and with a bolo which he then
carried, assaulted the Mansaca Mapudul, causing him a
mortal wound on the left side of the neck and that as a
consequence of said wound, the said Mapudul died.
Upon trial the court below found the defendant guilty as charged in
the information and taking into consideration the extenuating
circumstance of non-habitual intoxication, sentenced him to suffer
twelve years and one of reclusion temporal with the accessory
penalties prosecuted by law to indemnity the heirs of the deceased in
the sum of P1,000, and to the costs. From this sentenced the
defendant appealed.
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It appears from the evidence that on the evening of October 26, 1928,
a number of Mansacas celebrated a reunion in the house of
the Mansaca Gabriel. There seems to have been liberal supply of
alcoholic drinks and some of the men present became intoxicated,
with the result that a quarrel took the place between
the Mansaca Dunca and the defendant. Dunca and his son Aguipo
eventually left the house and were followed by Mapudul and one
Award. The defendant left the house about the same time with
intention of assaulting Dunca, but in the darkness of the evening and
in the intoxicated condition of the defendant, the mistook Mapudul
for Dunca and inflicated on him a mortal wound with a bolo.
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
fact that said defendant had no intention to kill the deceased and
committed the crime by mistake, he should have been found guilty of
homicide through negligence under paragraph 1 of article 568 of the
Penal Code and not of the graver crime of intentional homicide.
This contention is contrary to earlier decisions of this court. In these
case of United State vs. Mendieta(34 Phil., 242), the court said:
Even admitting that the defendant intended to injure
Hilario Lauigan instead of Pedro Acierto, even that, in view
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
another, when it is proved that he acted maliciously and
willfully, cannot relieve him from criminal responsibility.
Neither do we believe that the fact that he made a mistake
in killing the wrong man should be considered as a
mitigating circumstances.
The appealed sentence is affirmed with the costs against the
defendant. So ordered.
Johnson, Malcolm, Villamor, Johns, Romualdez and Villa-Real, JJ.,
concur.
PEOPLE VS MABUG-AL
(51 PHIL 967)
ROMUALDEZ, J.:
The Court of First Instance of Oriental Negros imposed upon Ramon
Mabug-at the penalty of twelve years and one day cadena temporal,
with the accessories of the law, to indemnify the offended party in
the sum of P700 and to pay the costs, for the crime of frustrated
murder.
The appellant appealed from this judgment, making two assignments
of error as committed by the trial court, to wit:
1. In holding that the crime committed is frustrated murder,
and
2. In not giving any credit to the evidence presented by the
defense, finding the defendant guilty beyond a reasonable
doubt.
The evidence of the prosecution shows that the accused and Juana
Buralo was sweethearts. Juana had been jealous of the accused on
account of the latter having frequently visited the house of one
Carmen. Their relations were such that the accused invited Juana to
take a walk on the afternoon of August 9, 1925. Juana refused him,
later sending him a note of excuse. On the third day, or the night of
August 11th, the accused went to the threshold of Cirilo Banyan's
house where Juana Buralo had gone to take part in some devotion.
There the accused, revolver in hand, requested Francisco Abellon to
ask Juana to come downstairs and as Abellon refused to do so, the
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."
The accused waited until Juana and her niece Perfecta Buralo came
downstairs, when they went in the direction of their house. The
accused, who was seen by the two girls, followed them without saying
a word. It is only a short distance from the house where the devotion
took place to that of the offended party, the houses being adjacent.
As the two girls were going upstairs, the accused, while standing at
the foot of the stairway, fired a shot from his revolver which wounded
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
attention, Perfecta Buralo did not die and is on e of the witnesses who
testified at the trial of this case.
The defense, without abandoning its allegation that the accused is not
responsible for the crime, contends that the crime proven is not
frustrated murder but the discharge of a firearm, with injuries, it not
having been proven that it was the accused's intention to kill.
The relations existing between the accused and Juana Buralo, his
disappointment at her not accepting his invitation to take a walk, the
fact that the accused, revolver in hand, went to look for Juana Buralo
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
that, in firing the shot, it was the accused's intention to kill.
In the decision of this court in the case of United States vs.
Montenegro (15 Phil., 1), it was held:
We do not doubt that there may be cases wherein the
discharge of a firearm at another is not in itself sufficient to
sustain a finding of the intention to kill, and there are many
cases in the books wherein the attendant circumstances
conclusively establish that on discharging a firearm at
another the actor was not in fact animated by the intent to
kill. But, in seeking to ascertain the intention with which a
specific act is committed, it is always proper and necessary
to look not merely to the act itself but to all the attendant
circumstances so far as they are developed by the evidence;
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
but little additional evidence to establish the intent to kill
beyond a reasonable doubt.
The fact that a person received the shot which was intended for
another, does not alter his criminal liability. (Art. 1, par. 3, Penal
Code.)
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The circumstances qualifying the murder alleged in the complaint are
evidence premeditation and treachery. Even when there is sufficient
proof of premeditation (which we do not believe has been sufficiently
established), yet, it cannot be considered as a qualifying circumstance
in the present case, because the person whom the accused intended
to kill was not Perfecta Buralo, who was hit by the bullet, but her aunt
Juana Buralo. Had evident premeditation been proven, and there
being no other qualifying circumstance of frustrated murder present
in this case, the acts should be held to be frustrated homicide and
punished with the maximum degree of the penalty prescribed by law.
(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
which tended to insure the execution of the crime without running
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
present in this case because the offended party Perfecta Buralo and
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
not homicide, stated the following:
Considering that, according to the concept of treachery as
it is explained in article 10 of the Civil code dealing with said
circumstance, it is evident that in firing the gun which
Alejandro Sola was carrying which caused the death of
Nazario Iigo, he employed means which tended to insure
the commission of the crime without any risk to himself
arising from any defense that might be made by the
offended party, for neither the wounded party Bartolome
Lobejano, at whom the shot was aimed in order to kill him
so that he might not testify as to the assault committed
upon him shortly before, as held by the trial court, was not
in a position to defend himself in any way, nor could Nazario
Iigo become aware of any attack so unjustified, rapid and
unforeseen; considering, further, that the purely accidental
circumstance that as a result of the shot a person other than
the one intended was killed, does not modify, in the instant
case, the elements constituting the crime of murder
qualified by the treachery with which Alejandro Sola acted,
whether with respect to the wounded Bartolome Lobejano
or to the deceased Nazario Iigo, for which reason the rules
of article 65 are not applicable herein, the culprit not
having, in fact, committed a crime different from that which
he intended, taking into consideration the substantial and
intrinsical meaning thereof, etc.
Although the case just cited refers to the crime of consummated
murder, the doctrine sustained therein is applicable to the case at bar
so far as the concurrence of treachery as a qualifying circumstance is
concerned.
The crime now before us is frustrated murder, the accused having
intended to kill and performed all the acts of execution, which would
have produced the crime of murder but which, nevertheless, did not
produce it by reason of causes independent of his will. (Art. 3, Penal
Code.)
We find no merit in the first assignment of error.
In regard to the second, it appears beyond a reasonable doubt that
the facts enumerated above constitute the crime of frustrated
murder.
With the exception of the qualifying circumstance of treachery, we
find no other aggravating circumstance.
The judgment appealed from being in accordance with the law and
the facts proven, the same is hereby affirmed in all its parts costs
against the appellant. So ordered.
Avancea, C.J., Street, Villamor, Ostrand, Johns and Villa-Real JJ.,
concur.
PEOPLE VS CAGOCO
(58 PHIL 524)
VICKERS, J.:
The accused was charged in the Court of First Instance of Manila with
the crime of asesinato, committed as follows:
That on or about the 24th day of July, 1932, in the City of
Manila, Philippine Islands, the said accused did then and
there willfully, unlawfully and feloniously, without any just
cause therefor and with intent to kill and treachery, assault
and attack one Yu Lon by suddenly giving him a fist blow on
the back part of the head, under conditions which intended
directly and especially to insure, the accomplishment of his
purpose without risk to himself arising from any defense the
victim Yu Lon might make, thus causing him to fall on the
ground as a consequence of which he suffered a lacerated
wound on the scalp and a fissured fracture on the left
occipital region, which were necessarily mortal and which
caused the immediate death of the said Yu Lon.
After hearing the evidence, Judge Luis P. Torres found the defendant
guilty as charged, and sentenced him to suffer reclusion perpetua,
with the accessory penalties of the law, to indemnify the heirs of the
deceased Yu Lon in the sum of P1,000, without subsidiary
imprisonment in case of insolvency, and to pay the costs.
Appellant's attorney de oficio makes the following assignments of
error:
1. The trial court erred in finding that the appellant the
person who committed the assault on Yu Lon, the victim to
the crime charged in the information.
2. Assuming that the appellant is the person who
committed the assault on Yu Lon (a fact which we
specifically deny), the trial court erred in finding that the
appellant struck his supposed victim.
3. Assuming that the appellant is the person who
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.
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 4. The trial court erred in finding that the identity of the
appellant was fully established.
5. Assuming that the four preceding errors assigned are
without merit, the trial court erred in convicting the
appellant of the crime of murder, under article 248 of the
Revised Penal Code, instead of convicting him of the crime
of maltreatment, under article 266 of the said Code.
It appears from the evidence that about 8:30 on the night of July 24,
1932 Yu Lon and Yu Yee, father and son, stopped to talk on the
sidewalk at the corner of Mestizos and San Fernando Streets in the
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
passed back and forth behind Yu Lon once or twice, and when Yu Yee
was about to take leave of his father, the man that had been passing
back the forth behind Yu Lon approached him from behind and
suddenly and without warning struck him with his fist on the back part
of the head. Yu Lon tottered and fell backwards. His head struck the
asphalt pavement; the lower part of his body fell on the sidewalk. His
assailants immediately ran away. Yu Yee pursued him through San
Fernando, Camba, and Jaboneros Streets, and then lost sight of him.
Two other Chinese, Chin Sam and Yee Fung, who were walking along
Calle Mestizos, saw the incident and joined him in the pursuit of Yu
Lon's assailant. The wounded man was taken to the Philippine
General Hospital, were he died about midnight. A post-mortem
examination was made the next day by Dr. Anastacia Villegas, who
found that the deceased had sustained a lacerated wound and
fracture of the skull in the occipital region, and that he had died from
cerebral hemorrhage; that he had tuberculosis, though not in an
advanced stage, and a tumor in the left kidney.
Yu Yee promptly reported the incident to the police, and about 3
o'clock the next morning Sergeant Sol Cruz and other detectives,
accompanied by Yu Yee, went to the scene of the crime and found
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,
25 or 30 years old, with long hair and wearing a suit of dark clothes.
After Sergeant Sol Cruz had been working on the case for three or four
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
dark wool suit. Yu Yee was immediately called to the police station.
The accused was placed near the middle of a line of some eleven
persons that had been detained for investigation. They were wearing
different kinds of clothes. Yu Yee without hesitation pointed out the
defendant as the person that had assaulted Yu Lon. He identified him
not only by his long hair combed towards the back and worn long on
the sides in the form of side-whiskers (patillas), but also by his high
cheek-bones and the fact that his ears have no lobes. The defendant
was identified at the trial not only by Yu Yee, but also by Chin Sam and
Yee Fung.
With respect to the first four assignment of error, which raise
questions of fact as to the identification of the accused, and whether
or not be struck the deceased, and if he did assault the deceased,
whether he did so in a treacherous manner, we see no sufficient
reason, after considering the evidence and arguments of counsel, to
doubt the correctness of the findings of the trial judge. The accused
was identified by Yu Yee and two other Chinese, and although Yu Yee
may have overstated at the trial some of the facial peculiarities in the
defendant that he claimed to have observed at the time of the
incident, it must be remembered that Yu Yee without hesitation
picked the defendant out of a group of eleven persons as his father's
assailant, and that he had exceptional opportunities for observing his
father's assailant, because while that person was walking back and
forth behind Yu Lon, Yu Yee was facing the assailant.
We find the testimony of the defendant and his witnesses as to the
whereabouts of the defendant on the night in question unworthy of
credit.1awphil.net
The testimony of the three Chinese that a man struck the deceased
and then ran away is corroborated by the testimony of a 15-year old
boy, Dominador Sales.
As to the contention that the deceased would have fallen on his face
if he had been struck on the back of the head, the expert testimony
shows that in such a case a person instinctively makes an effort to
preserve or regain his balance, and that as result thereof the
deceased may have fallen backwards. Another consideration is that
sidewalks almost invariably slope towards the pavement, and this
being true, when the deceased straightened up, he naturally tended
to fall backwards. The evidence leaves no room for doubt that the
accused struck the deceased on the back of the head, because when
the deceased was assaulted he and Yu Yee were standing on the
sidewalk, facing each other, and if the accused had not struck the
deceased on the back of the head, it would have been necessary for
him to go between the deceased and Yu Yee. Since the accused struck
the deceased from behind and without warning, he acted with
treachery. "There is treachery when the offender commits any of the
crimes against the person, employing means, methods, or forms in
the execution thereof which tend directly and especially to insure its
execution, without risk to himself arising from the defense which the
offended party might make." (Article 14, No. 16, of the Revised Penal
Code.)
The fourth assignment of error is a repetition of the first.
In the fifth assignment of error it is contended that the appellant if
guilty at all, should be punished in accordance with article 266 of the
Revised Penal Code, or for slight physical injuries instead of murder.
Paragraph No. 1 of article 4 of the Revised Penal Code provide that
criminal liability shall be incurred by any person committing a felony
(delito) although the wrongful act done be different from that which
he intended; but in order that a person may be criminally liable for a
felony different from that which he proposed to commit, it is
indispensable that the two following requisites be present, to wit: (a)
That a felony was committed; and (b) that the wrong done to the
aggrieved person be the direct consequence of the crime committed
by the offender. U.S. vs. Brobst, 14 Phil., 310; U.S. vs. Mallari, 29 Phil.,
14 U.S. vs. Diana, 32 Phil., 344.)
In the Brobst case, supra, it was held that death may result from a
blow over or near the heart or in the abdominal region,
notwithstanding the fact that the blow leaves no outward mark of
violence; that where death result as the direct consequence of the
use of illegal violence, the mere fact that the diseased or weakened
condition of the injured person contributed to his death, does not
relieve the illegal aggressor of criminal responsibility; that one is not
relieved, under the law in these Islands, from criminal liability for the
natural consequences of one's illegal acts, merely because one does
not intend to produce such consequences; but that in such cases, the
lack of intention, while it does not exempt from criminal liability, is
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taken into consideration as an extenuating circumstance. (U.S. vs.
Luciano, 2 Phil., 96.)
The reasoning of the decisions cited is applicable to the case at bar.
There can be no reasonable doubt as to the cause of the death of Yu
Lon. There is nothing to indicate that it was due to some extraneous
case. It was clearly the direct consequence of defendants felonious
act, and the fact that the defendant did not intend to cause so great
an injury does not relieve him from the consequence of his unlawful
act, but is merely a mitigating circumstance (U.S. vs. Rodriguez, 23
Phil., 22).
The next question is whether the crime committed by the defendant
should be classified as homicide or murder. Can the defendant be
convicted of murder when he did not intend to kill the deceased?
We have seen that under the circumstances of this case the
defendant is liable for the killing of Yu Lon, because his death was the
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,
although he did not intend to kill the deceased; and since the
defendant did commit the crime with treachery, he is guilty of
murder, because of the presence of the qualifying circumstance of
treachery.
The Supreme Court of Spain has held that there is no incompatibility,
moral or legal, between alevosia and the mitigating circumstance of
not having intended to cause so great an injury:
Considering that there is no moral or legal incompatibility
between treachery and the mitigating circumstance No. 3
of article 9 of the Penal Code, because the former depends
upon the manner of execution of the crime and the latter
upon the tendency of the will towards a definite purpose,
and therefore there is no obstacle, in case treacherous
means, modes or forms are employed, to the appreciation
of the first of said circumstances and simultaneously of the
second if the injury produced exceeds the limits intended
by the accused; and for that reason it cannot be held in the
instant case that this mitigating circumstances excludes
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,
although with mitigation corresponding to the disparity
between the act intended and the act consummated, etc.
(Decision of May 10, 1905, Gazette of April 20, 906; Viada:
5th edition, Vol. 2, p. 156.)
In the case of the United States vs. Candelaria (2 Phil., 104), this court
speaking through Chief Justice Arellano said:
In trying Jacinto to a tree the three defendants acted
treacherously (alevosamente). Whether it was to prevent
him from making resistance, whether it was to torture him
for the purpose of making him give information, or whether
it was for the purpose of inflicting further punishment, the
fact is that by this means the defendants secured
themselves against any risk which might have arisen from
an attempt at self-defense on the part of the victim. We are
of opinion that they had no intention to cause so great an
evil as that which resulted, but this does not neutralize that
other qualifying circumstance of the resulting death,
because if there was no alevosia for the purpose of killing
there was alevosia for the purpose of the illtreating. The
means employed were not made use of for the precise
purpose of making certain the death of Jacinto de Jesus but
as a safe means of illtreating him without risk to the persons
who were doing so. If by this means the ill treatment was
aggravated, it follows that it is a qualifying circumstances in
the death which resulted. It was not a condition of the
purpose, but it was a condition of the criminal act itself, in
whatever sense this be taken.
The penalty of murder (article 248 of the Revised Penal Code)
is reclusion temporal in its maximum period to death, and there being
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
decision appealed from is affirmed, with the costs against the
appellant.
Avancea, C.J., Street, Abad Santos, and Butte, JJ., concur.
PEOPLE VS BINDOY
(56 PHIL 15)
VILLAMOR, J.:
The appellant was sentenced by the Court of First Instance of
Occidental Misamis to the penalty of twelve years and one day
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
following information:
That on or about the 6th of May, 1930, in the barrio of
Calunod, municipality of Baliangao, Province of Occidental
Misamis, the accused Donato Bindoy willfully, unlawfully,
and feloniously attacked and with his bolo wounded
Emigdio Omamdam, inflicting upon the latter a serious
wound in the chest which caused his instant death, in
violation of article 404 of the Penal Code.
The accused appealed from the judgment of the trial court, and his
counsel in this instance contends that the court erred in finding him
guilty beyond a reasonable doubt, and in convicting him of the crime
of homicide.
The record shows that in the afternoon of May 6, 1930, a disturbance
arose in a tuba wineshop in the barrio market of Calunod,
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,
offered some tuba to Pacas' wife; and as she refused to drink having
already done so, Bindoy threatened to injure her if she did not accept.
There ensued an interchange of words between Tibay and Bindoy,
and Pacas stepped in to defend his wife, attempting to take away
from Bindoy the bolo he carried. This occasioned a disturbance which
attracted the attention of Emigdio Omamdam, who, with his family,
lived near the market. Emigdio left his house to see what was
happening, while Bindoy and Pacas were struggling for the bolo. In
the course of this struggle, Bindoy succeeded in disengaging himself
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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.
There is no evidence that Emigdio took part in the fight between
Bindoy and Pacas. Neither is there any indication that the accused was
aware of Emigdio Omamdam's presence in the place, for, according
to the testimony of the witnesses, the latter passed behind the
combatants when he left his house to satisfy his curiosity. There was
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
Pacas, and instead of wounding him, he hit Omamdam; he was only
defending his possession of the bolo, which Pacas was trying to
wrench away from him, and his conduct was perfectly lawful.
The wound which Omamdam received in the chest, judging by the
description given by the sanitary inspector who attended him as he
lay dying, tallies with the size of the point of Bindoy's bolo.
There is no doubt that the latter caused the wound which produced
Emigdio Omamdam's death, but the defendant alleges that it was
caused accidentally and without malicious intent.
Pacas and the widow of the deceased, Carmen Angot, testified having
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
husband's wound being caused by Bindoy from his statement to her
before his death.
The testimony of the witnesses for the prosecution tends to show that
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
the chest; but, as we have stated, there is no evidence to show that
he did so deliberately and with the intention of committing a crime.
If, in his struggle with Pacas, the defendant had attempted to wound
his opponent, and instead of doing so, had wounded Omamdam, he
would have had to answer for his act, since whoever willfully commits
a felony or a misdemeanor incurs criminal liability, although the
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 witness for the defense, Gaudencio Cenas, corroborates the
defendant to the effect that Pacas and Bindoy were actually struggling
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
very moment when Emigdio Omamdam came up, who was therefore
hit in the chest, without Donato's seeing him, because Emigdio had
passed behind him. The same witness adds that he went to see
Omamdam at his home later, and asked him about his wound when
he replied: "I think I shall die of this wound." And then continued:
"Please look after my wife when I die: See that she doesn't starve,"
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
not contradicted by any rebuttal evidence adduced by the fiscal.
We have searched the record in vain for the motive of this kind,
which, had it existed, would have greatly facilitated the solution of
this case. And we deem it well to repeat what this court said in United
States vs. Carlos (15 Phil., 47), to wit:
The attention of prosecuting officers, and especially of
provincial fiscals, directed to the importance of definitely
ascertaining and proving, when possible, the motives which
actuated the commission of a crime under investigation.
In many criminal cases one of the most important aids in
completing the proof of the commission of the crime by the
accused is the introduction of evidence disclosing the
motives which tempted the mind of the guilty person to
indulge the criminal act.
In view of the evidence before us, we are of opinion and so hold, that
the appellant is entitled to acquittal according to article 8, No. 8, Penal
Code. Wherefore, the judgment appealed from is reversed, and the
accused Donato Bindoy is hereby acquitted with costs de oficio. So
ordered.
Avancea, C.J., Johnson, Street, Malcolm, Romualdez, Villa-Real, and
Imperial, JJ., concur.
Impossible Crime
INTOD ET. AL. VS CA
(G.R. NO. 103119)
CAMPOS, JR., J.:
Petitioner, Sulpicio Intod, filed this petition for review of the decision
of the Court of Appeals 1 affirming in toto the judgment of the
Regional Trial Court, Branch XIV, Oroquieta City, finding him guilty of
the crime of attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian,
Santos Tubio and Avelino Daligdig went to Salvador Mandaya's house
in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go
with them to the house of Bernardina Palangpangan. Thereafter,
Mandaya and Intod, Pangasian, Tubio and Daligdig had a meeting with
Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan
to be killed because of a land dispute between them and that
Mandaya should accompany the four (4) men, otherwise, he would
also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner,
Mandaya, Pangasian, Tubio and Daligdig, all armed with firearms,
arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis
Occidental. At the instance of his companions, Mandaya pointed the
location of Palangpangan's bedroom. Thereafter, Petitioner,
Pangasian, Tubio and Daligdig fired at said room. It turned out,
however, that Palangpangan was in another City and her home was
then occupied by her son-in-law and his family. No one was in the
room when the accused fired the shots. No one was hit by the gun
fire.
Petitioner and his companions were positively identified by
witnesses. One witness testified that before the five men left the
premises, they shouted: "We will kill you (the witness) and especially
Bernardina Palangpangan and we will come back if (sic) you were not
injured". 2
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After trial, the Regional Trial Court convicted Intod of attempted
murder. The court (RTC), as affirmed by the Court of Appeals, holding
that Petitioner was guilty of attempted murder. Petitioner seeks from
this Court a modification of the judgment by holding him liable only
for an impossible crime, citing Article 4(2) of the Revised Penal Code
which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal
Responsibility shall be incurred:
xxx xxx xxx
2. By any person performing an act which would
be an offense against persons or property, were it
not for the inherent impossibility of its
accomplishment or on account of the
employment of inadequate or ineffectual means.
Petitioner contends that, Palangpangan's absence from her
room on the night he and his companions riddled it with
bullets made the crime inherently impossible.
On the other hand, Respondent People of the Philippines argues that
the crime was not impossible. Instead, the facts were sufficient to
constitute an attempt and to convict Intod for attempted murder.
Respondent alleged that there was intent. Further, in its Comment to
the Petition, respondent pointed out that:
. . . The crime of murder was not consummated,
not because of the inherent impossibility of its
accomplishment (Art. 4(2), Revised Penal Code),
but due to a cause or accident other than
petitioner's and his accused's own spontaneous
desistance (Art. 3., Ibid.) Palangpangan did not
sleep at her house at that time. Had it not been
for this fact, the crime is possible, not
impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code.
This seeks to remedy the void in the Old Penal Code where:
. . . it was necessary that the execution of the act
has been commenced, that the person conceiving
the idea should have set about doing the deed,
employing appropriate means in order that his
intent might become a reality, and finally, that the
result or end contemplated shall have been
physically possible. So long as these conditions
were not present, the law and the courts did not
hold him criminally liable. 5
This legal doctrine left social interests entirely unprotected. 6 The
Revised Penal Code, inspired by the Positivist School, recognizes in the
offender his formidability, 7 and now penalizes an act which were it
not aimed at something quite impossible or carried out with means
which prove inadequate, would constitute a felony against person or
against property. 8 The rationale of Article 4(2) is to punish such
criminal tendencies. 9
Under this article, the act performed by the offender cannot produce
an offense against person or property because: (1) the commission of
the offense is inherently impossible of accomplishment: or (2) the
means employed is either (a) inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission of the
offense is inherently impossible of accomplishment is the focus of this
petition. To be impossible under this clause, the act intended by the
offender must be by its nature one impossible of
accomplishment. 11 There must be either impossibility of
accomplishing the intended act 12 in order to qualify the act an
impossible crime.
Legal impossibility occurs where the intended acts, even if completed,
would not amount to a crime. 13 Thus:
Legal impossibility would apply to those
circumstances where (1) the motive, desire and
expectation is to perform an act in violation of the
law; (2) there is intention to perform the physical
act; (3) there is a performance of the intended
physical act; and (4) the consequence resulting
from the intended act does not amount to a
crime. 14
The impossibility of killing a person already dead 15 falls in this
category.
On the other hand, factual impossibility occurs when extraneous
circumstances unknown to the actor or beyond his control prevent
the consummation of the intended crime. 16 One example is the man
who puts his hand in the coat pocket of another with the intention to
steal the latter's wallet and finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the place
where he thought his victim would be, although in reality, the victim
was not present in said place and thus, the petitioner failed to
accomplish his end.
One American case had facts almost exactly the same as this one.
In People vs. Lee Kong, 18 the accused, with intent to kill, aimed and
fired at the spot where he thought the police officer would be. It
turned out, however, that the latter was in a different place. The
accused failed to hit him and to achieve his intent. The Court
convicted the accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where
the attacking party imagined where he was, and
where the bullet pierced the roof, renders it no
less an attempt to kill. It is well settled principle of
criminal law in this country that where the
criminal result of an attempt is not accomplished
simply because of an obstruction in the way of the
thing to be operated upon, and these facts are
unknown to the aggressor at the time, the
criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to
accomplish his intent to kill the victim because the latter did not pass
by the place where he was lying-in wait, the court held him liable for
attempted murder. The court explained that:
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 It was no fault of Strokes that the crime was not
committed. . . . It only became impossible by
reason of the extraneous circumstance that Lane
did not go that way; and further, that he was
arrested and prevented from committing the
murder. This rule of the law has application only
where it is inherently impossible to commit the
crime. It has no application to a case where it
becomes impossible for the crime to be
committed, either by outside interference or
because of miscalculation as to a supposed
opportunity to commit the crime which fails to
materialize; in short it has no application to the
case when the impossibility grows out of
extraneous acts not within the control of the
party.
In the case of Clark vs. State, 20 the court held defendant liable for
attempted robbery even if there was nothing to rob. In disposing of
the case, the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant
deserves punishment by reason of his criminal
intent, no one can seriously doubt that the
protection of the public requires the punishment
to be administered, equally whether in the
unseen depths of the pocket, etc., what was
supposed to exist was really present or not. The
community suffers from the mere alarm of crime.
Again: Where the thing intended (attempted) as a
crime and what is done is a sort to create alarm,
in other words, excite apprehension that the evil;
intention will be carried out, the incipient act
which the law of attempt takes cognizance of is in
reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the
window of victim's room thinking that the latter was inside. However,
at that moment, the victim was in another part of the house. The
court convicted the accused of attempted murder.
The aforecited cases are the same cases which have been relied upon
by Respondent to make this Court sustain the judgment of attempted
murder against Petitioner. However, we cannot rely upon these
decisions to resolve the issue at hand. There is a difference between
the Philippine and the American laws regarding the concept and
appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly
provided for impossible crimes and made the punishable. Whereas,
in the United States, the Code of Crimes and Criminal Procedure is
silent regarding this matter. What it provided for were attempts of
the crimes enumerated in the said Code. Furthermore, in said
jurisdiction, the impossibility of committing the offense is merely a
defense to an attempt charge. In this regard, commentators and the
cases generally divide the impossibility defense into two categories:
legal versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court held
that:
. . . factual impossibility of the commission of the
crime is not a defense. If the crime could have
been committed had the circumstances been as
the defendant believed them to be, it is no
defense that in reality the crime was impossible
of commission.
Legal impossibility, on the other hand, is a defense which can be
invoked to avoid criminal liability for an attempt. In U.S.
vs. Berrigan, 24 the accused was indicated for attempting to smuggle
letters into and out of prison. The law governing the matter made the
act criminal if done without knowledge and consent of the warden. In
this case, the offender intended to send a letter without the latter's
knowledge and consent and the act was performed. However,
unknown to him, the transmittal was achieved with the warden's
knowledge and consent. The lower court held the accused liable for
attempt but the appellate court reversed. It held unacceptable the
contention of the state that "elimination of impossibility as a defense
to a charge of criminal attempt, as suggested by the Model Penal
Code and the proposed federal legislation, is consistent with the
overwhelming modern view". In disposing of this contention, the
Court held that the federal statutes did not contain such provision,
and thus, following the principle of legality, no person could be
criminally liable for an act which was not made criminal by law.
Further, it said:
Congress has not yet enacted a law that provides
that intent plus act plus conduct constitutes the
offense of attempt irrespective of legal
impossibility until such time as such legislative
changes in the law take place, this court will not
fashion a new non-statutory law of criminal
attempt.
To restate, in the United States, where the offense sought to be
committed is factually impossible or accomplishment, the offender
cannot escape criminal liability. He can be convicted of an attempt to
commit the substantive crime where the elements of attempt are
satisfied. It appears, therefore, that the act is penalized, not as an
impossible crime, but as an attempt to commit a crime. On the other
hand, where the offense is legally impossible of accomplishment, the
actor cannot be held liable for any crime neither for an attempt not
for an impossible crime. The only reason for this is that in American
law, there is no such thing as an impossible crime. Instead, it only
recognizes impossibility as a defense to a crime charge that is,
attempt.
This is not true in the Philippines. In our jurisdiction, impossible crimes
are recognized. The impossibility of accomplishing the criminal intent
is not merely a defense, but an act penalized by itself. Furthermore,
the phrase "inherent impossibility" that is found in Article 4(2) of the
Revised Penal Code makes no distinction between factual or physical
impossibility and legal impossibility. Ubi lex non distinguit nec nos
distinguere debemos.
The factual situation in the case at bar present a physical impossibility
which rendered the intended crime impossible of accomplishment.
And under Article 4, paragraph 2 of the Revised Penal Code, such is
sufficient to make the act an impossible crime.
To uphold the contention of respondent that the offense was
Attempted Murder because the absence of Palangpangan was a
supervening cause independent of the actor's will, will render useless
the provision in Article 4, which makes a person criminally liable for
an act "which would be an offense against persons or property, were
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it not for the inherent impossibility of its accomplishment . . ." In that
case all circumstances which prevented the consummation of the
offense will be treated as an accident independent of the actor's will
which is an element of attempted and frustrated felonies.
WHEREFORE, PREMISES CONSIDERED. the petition is hereby
GRANTED, the decision of respondent Court of Appeals holding
Petitioner guilty of Attempted Murder is hereby MODIFIED. We
hereby hold Petitioner guilty of an impossible crime as defined and
penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code,
respectively. Having in mind the social danger and degree of
criminality shown by Petitioner, this Court sentences him to suffer the
penalty of six (6) months of arresto mayor, together with the
accessory penalties provided by the law, and to pay the costs.
SO ORDERED.
Feliciano, Regalado and Nocon, JJ., concur.
Narvasa, C.J., is on leave.
PEOPLE VS DOMASIAN
(G.R. NO. 95322)
CRUZ, J.:
The boy was detained for only about three hours and was released
even before his parents received the ransom note. But it spawned a
protracted trial spanning all of 8 years and led to the conviction of the
two accused.
The victim was Enrico Paulo Agra, who was 8 years old at the time of
the incident in question. The accused were Pablito Domasian and
Samson Tan, the latter then a resident physician in the hospital owned
by Enrico's parents. They were represented by separate lawyers at the
trial and filed separate briefs in this appeal.
The evidence of the prosecution showed that in the morning of March
11, 1982, while Enrico was walking with a classmate along Roque
street in the poblacion of Lopez, Quezon, he was approached by a
man who requested his assistance in getting his father's signature on
a medical certificate. Enrico agreed to help and rode with the man in
a tricycle to Calantipayan, where he waited outside while the man
went into a building to get the certificate. Enrico became
apprehensive and started to cry when, instead of taking him to the
hospital, the man flagged a minibus and forced him inside, holding
him firmly all the while. The man told him to stop crying or he would
not be returned to his father. When they alighted at Gumaca, they
took another tricycle, this time bound for the municipal building from
where they walked to the market. Here the man talked to a jeepney
driver and handed him an envelope addressed to Dr. Enrique Agra,
the boy's father. The two then boarded a tricycle headed for San
Vicente, with the man still firmly holding Enrico, who continued
crying. This aroused the suspicion of the driver, Alexander Grate, who
asked the man about his relationship with the boy. The man said he
and the boy were brothers, making Grate doubly suspicious because
of the physical differences between the two and the wide gap
between their ages. Grate immediately reported the matter to two
barangay tanods when his passengers alighted from the tricycle.
Grate and the tanods went after the two and saw the man dragging
the boy. Noticing that they were being pursued, the man told Enrico
to run fast as their pursuers might behead them. Somehow, the man
managed to escape, leaving Enrico behind. Enrico was on his way
home in a passenger jeep when he met his parents, who were riding
in the hospital ambulance and already looking for him. 2
At about 1:45 in the afternoon of the same day, after Enrico's return,
Agra received an envelope containing a ransom note. The note
demanded P1 million for the release of Enrico and warned that
otherwise the boy would be killed. Agra thought the handwriting in
the note was familiar. After comparing it with some records in the
hospital, he gave the note to the police, which referred it to the NBI
for examination. 3
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 be could identify the man who had detained him, and he pointed
to the picture of Pablito Domasian.5 Domasian and Tan were
subsequently charged with the crime of kidnapping with serious
illegal detention in the Regional Trial Court of Quezon. 6
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
friend's house and later went to an optical clinic with his wife for the
refraction of his eyeglasses. 7Dr. Tan for his part said he was in
Manila. 8
After trial Judge Enrico A. Lanzanas found both accused guilty as
charged and sentenced them to suffer the penalty of reclusion
perpetua and all accessory penalties. They were also required to pay
P200,000.00 to Dr. and Mrs. Enrique Agra as actual and moral
damages and attorney's fees.
In the present appeal, the accused-appellants reiterate their denial of
any participation in the incident in question. They belittle the
credibility of the prosecution witnesses and submit that their own
witnesses are more believable. Tan specifically challenges the findings
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
that in any case, the crime alleged is not kidnapping with serious
illegal detention as no detention in an enclosure was involved. If at
all, it should be denominated and punished only as grave coercion.
Finally, both Domasian and Tan insist that there is no basis for the
finding of a conspiracy between them to make them criminally liable
in equal degree.
First, on the credibility of the witnesses. This is assessed in the first
instance by the trial judge, whose finding in this regard is received
with much respect by the appellate court because of his opportunity
to directly observe the demeanor of the witnesses on the stand.
In the case at bar, Judge Lanzanas relied heavily on the testimony of
the victim himself, who positively identified Domasian as the person
who detained him for three hours. The trial court observed that the
boy was "straight-forward, natural and consistent" in the narration of
his detention. The boy's naivete made him even more believable.
Tirso Ferreras, Enrico's classmate and also his age, pointed to
Domasian with equal certainty, as the man who approached Enrico
when they were walking together that morning of March 11, 1982.
Grate, the tricycle driver who suspected Enrico's companion and later
chased him, was also positive in identifying Domasian. All these three
witnesses did not know Domasian until that same morning and could
have no ill motive in testifying against him. By contrast, Eugenia
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Agtay, who testified for the defense, can hardly be considered a
disinterested witness because she admitted she had known Domasian
for 3 years.
The defense asks why Domasian openly took Enrico to several public
places if the intention was to kidnap and detain him. That is for
Domasian himself to answer. We do no have to probe the reasons for
the irrational conduct of an accused. The more important question,
as we see it, is why Domasian detained Enrico in the first place after
pretending he needed the boy's help. That is also for Domasian to
explain. As for Enrico's alleged willingness to go with Domasian, this
was manifested only at the beginning, when he believed the man
sincerely needed his assistance. But he was soon disabused. His initial
confidence gave way to fear when Domasian, after taking him so far
away from the hospital where he was going, restrained and
threatened him if he did not stop crying.
Domasian's alibi cannot stand against his positive identification by
Enrico, Grate and Ferreras, let alone the contradictions made by his
corroborating witness, Dr. Irene Argosino, regarding the time he was
in the optical clinic and the manner of his payment for the
refraction. 9 Tan's alibi is not convincing either. The circumstance that
he may have been in Manila at the time of the incident does not prove
that he could not have written the ransom note except at that time.
Concerning the note, Rule 132, Section 22, of the Rules of Court
provides as follows:
The handwriting of a person may be proved by
any witness who believes it to be the handwriting
of such person and has seen the person write, or
has seen writing purporting to be his upon which
the witness has acted or been charged and has
thus acquired knowledge of the handwriting of
such person. Evidence respecting the handwriting
may also be given by a comparison, made by the
witness or the court with writings admitted or
treated as genuine by the party against whom the
evidence is offered or proved to be genuine to the
satisfaction of the judge.
Two expert witnesses were presented in the case at bar, one from the
NBI, 10 who opined that the ransom note and the standard documents
were written by one and the same person, and another from the
PC/INP 11 who expressed a contrary conclusion. The trial court chose
to believe the NBI expert because his examination and analysis "was
more comprehensive than the one conducted by the PC/INP
handwriting expert, who virtually limited his reliance on the perceived
similarities and dissimilarities in the pattern and style of the writing,
thereby disregarding the basic principle in handwriting identification
that it is not the form alone nor anyone feature but rather a
combination of all the qualities that identify."
We have held that the value of the opinion of a handwriting expert
depends not upon his mere statements of whether a writing is
genuine or false, but upon the assistance he may afford in pointing
out distinguishing marks, characteristics and discrepancies in and
between genuine and false specimens of writing which would
ordinarily escape notice or detection from an unpracticed
observer. 12 The test of genuineness ought to be the resemblance, not
the formation of letters in some other specimens but to the general
character of writing, which is impressed on it as the involuntary and
unconscious result
of constitution, habit or other permanent course, and is, therefore
itself permanent. 13
Presented with the conflicting opinions of the witnesses in the case at
bar, the Court feels that the scales should tilt in favor of the
prosecution. Significantly, the NBI opinion was bolstered by the
testimony of Agra, who believed that the ransom note was written by
Tan, with whose handwriting he was familiar because they had been
working in the hospital for four years and he had seen that
handwriting every day in Tan's prescriptions and daily reports. 14
Cesar v. Sandiganbayan 15 is not applicable because that case
involved a forgery or the deliberate imitation of another person's
signature. In the case before us, there was in fact an effort
to disguise the ransom note writer's penmanship to prevent his
discovery.
As for the nature of the crime committed, Article 267 of the Revised
Penal Code provides as follows:
Art. 267. Kidnapping and serious illegal detention.
Any private individual who shall kidnap or
detain another, or in any manner deprive him of
his liberty, shall suffer the penalty of reclusion
perpetua to death:
1. If the kidnapping or detention shall have lasted
more than five days.
2. If it shall have been committed simulating
public authority.
3. If any serious physical injuries shall have been
inflicted upon the person kidnapped or detained;
of if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a
minor, female or a public officer.
The penalty shall be death where the kidnapping
or detention was committed for the purpose of
extorting ransom from the victim or any other
person; even if none of the circumstances above-
mentioned were present in the commission of the
offense.
Contrary to Tan's submission, this crime may consist not only in
placing a person in an enclosure but also in detaining him or depriving
him in any manner of his liberty. 16 In the case at bar, it is noted that
although the victim was not confined in an enclosure, he was deprived
of his liberty when Domasian restrained him from going home and
dragged him first into the minibus that took them to the municipal
building in Gumaca, thence to the market and then into the tricycle
bound for San Vicente. The detention was committed by Domasian,
who was a private individual, and Enrico was a minor at that time. The
crime clearly comes under Par. 4 of the above-quoted article.
Tan claims that the lower court erred in not finding that the sending
of the ransom note was an impossible crime which he says is not
punishable. His reason is that the second paragraph of Article 4 of the
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Revised Penal Code provides that criminal liability shall be incurred
"by any person performing an act which would be an offense against
persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or
ineffectual means." As the crime alleged is not against persons or
property but against liberty, he argues that it is not covered by the
said provision.
Tan conveniently forgets the first paragraphs of the same article,
which clearly applies to him, thus:
Art. 4. Criminal liability. Criminal liability shall
be incurred:
1. By any person committing a felony (delito)
although the wrongful act done be different from
that which he intended.
xxx xxx xxx
Even before the ransom note was received, the crime of kidnapping
with serious illegal detention had already been committed. The act
cannot be considered an impossible crime because there was no
inherent improbability of its accomplishment or the employment of
inadequate or ineffective means. The delivery of the ransom note
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
only of increasing the penalty to death under the last paragraph of
Article 267 although this too would not have been possible under the
new Constitution.
On the issue of conspiracy, we note first that it exists when two or
more persons come to an agreement concerning the commission of a
felony and decide to commit it, whether they act through physical
volition of one or all, proceeding severally or collectively. 17
It is settled that conspiracy can be inferred from and proven by the
acts of the accused themselves when said acts point to a joint purpose
and design, concerted action and community of interests. 18 In the
instant case, the trial court correctly held that conspiracy was proved
by the act of Domasian in detaining Enrico; the writing of the ransom
note by Tan; and its delivery by Domasian to Agra. These acts were
complementary to each other and geared toward the attainment of
the common ultimate objective, viz., to extort the ransom of P1
million in exchange for Enrico's life.
The motive for the offense is not difficult to discover. According to
Agra, Tan approached him six days before the incident happened and
requested a loan of at least P15,000.00. Agra said he had no funds at
that moment and Tan did not believe him, angrily saying that Agra
could even raise a million pesos if he really wanted to help. 19 The
refusal obviously triggered the plan to kidnap Enrico and demand P1
million for his release.
The constitutional issues raised by Domasian do not affect the
decision in this case. His claim that he was arrested without warrant
and then tortured and held incommunicado to extort a confession
from him does not vitiate his conviction. He never gave any
confession. As for the allegation that the seizure of the documents
used for comparison with the ransom note was made without a
search warrant, it suffices to say that such documents were taken by
Agra himself and not by the NBI agents or other police authorities. We
held in the case of People vs. Andre Marti, 20 that the Bill of Rights
cannot be invoked against acts of private individuals, being directed
only against the government and its law-enforcement agencies and
limitation on official action.
We are satisfied that Tan and Domasian, in conspiracy with each
other, committed the crime of kidnapping as defined and penalized
under Article 267 of the Revised Penal Code and so deserve the
penalty imposed upon them by the trial court.
WHEREFORE, the appealed decision is AFFIRMED, with costs against
the accused-appellants.
Let a copy of this decision be sent to the Commission on Human Rights
for investigation of the alleged violation of the constitutional rights of
Pablito Domasian.
SO ORDERED.
Grio-Aquino, Bellosillo and Quiason, JJ., concur.
JACINTO VS PEOPLE
(G.R. NO. 162540)
PERALTA, J.:
Before us is a petition for review on certiorari filed by petitioner
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,
affirming petitioner's conviction of the crime of Qualified Theft, and
its Resolution2 dated March 5, 2004 denying petitioner's motion for
reconsideration.
Petitioner, along with two other women, namely, Anita Busog de
Valencia y Rivera and Jacqueline Capitle, was charged before the
Regional Trial Court (RTC) of Caloocan City, Branch 131, with the crime
of Qualified Theft, allegedly committed as follows:
That on or about and sometime in the month of July 1997, in Kalookan
City, Metro Manila, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring together and mutually
helping one another, being then all employees of MEGA FOAM
INTERNATIONAL INC., herein represented by JOSEPH DYHENGCO Y
CO, and as such had free access inside the aforesaid establishment,
with grave abuse of trust and confidence reposed upon them with
intent to gain and without the knowledge and consent of the owner
thereof, did then and there willfully, unlawfully and feloniously take,
steal and deposited in their own account, Banco De Oro Check No.
0132649 dated July 14, 1997 in the sum of P10,000.00, representing
payment made by customer Baby Aquino to the Mega Foam Int'l. Inc.
to the damage and prejudice of the latter in the aforesaid stated
amount of P10,000.00.
CONTRARY TO LAW.3
The prosecution's evidence, which both the RTC and the CA found to
be more credible, reveals the events that transpired to be as follows.
Compiled by: Vim Malicay
In the month of June 1997, Isabelita Aquino Milabo, also known as
Baby Aquino, handed petitioner Banco De Oro (BDO) Check Number
0132649 postdated July 14, 1997 in the amount of P10,000.00. The
check was payment for Baby Aquino's purchases from Mega Foam
Int'l., Inc., and petitioner was then the collector of Mega Foam.
Somehow, the check was deposited in the Land Bank account of
Generoso Capitle, the husband of Jacqueline Capitle; the latter is the
sister of petitioner and the former pricing, merchandising and
inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam,
received a phone call sometime in the middle of July from one of their
customers, Jennifer Sanalila. The customer wanted to know if she
could issue checks payable to the account of Mega Foam, instead of
issuing the checks payable to CASH. Said customer had apparently
been instructed by Jacqueline Capitle to make check payments to
Mega Foam payable to CASH. Around that time, Ricablanca also
received a phone call from an employee of Land Bank, Valenzuela
Branch, who was looking for Generoso Capitle. The reason for the call
was to inform Capitle that the subject BDO check deposited in his
account had been dishonored.
Ricablanca then phoned accused Anita Valencia, a former
employee/collector of Mega Foam, asking the latter to inform
Jacqueline Capitle about the phone call from Land Bank regarding the
bounced check. Ricablanca explained that she had to call and relay
the message through Valencia, because the Capitles did not have a
phone; but they could be reached through Valencia, a neighbor and
former co-employee of Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino,
and instructed Ricablanca to ask Baby Aquino to replace the check
with cash. Valencia also told Ricablanca of a plan to take the cash and
divide it equally into four: for herself, Ricablanca, petitioner Jacinto
and Jacqueline Capitle. Ricablanca, upon the advise of Mega Foam's
accountant, reported the matter to the owner of Mega Foam, Joseph
Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to
confirm that the latter indeed handed petitioner a BDO check
for P10,000.00 sometime in June 1997 as payment for her purchases
from Mega Foam.4 Baby Aquino further testified that, sometime in
July 1997, petitioner also called her on the phone to tell her that the
BDO check bounced.5 Verification from company records showed that
petitioner never remitted the subject check to Mega Foam. However,
Baby Aquino said that she had already paid Mega Foam P10,000.00
cash in August 1997 as replacement for the dishonored check.6
Generoso Capitle, presented as a hostile witness, admitted depositing
the subject BDO check in his bank account, but explained that the
check came into his possession when some unknown woman arrived
at his house around the first week of July 1997 to have the check
rediscounted. He parted with his cash in exchange for the check
without even bothering to inquire into the identity of the woman or
her address. When he was informed by the bank that the check
bounced, he merely disregarded it as he didnt know where to find
the woman who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of
Investigation (NBI) and worked out an entrapment operation with its
agents. Ten pieces of P1,000.00 bills provided by Dyhengco were
marked and dusted with fluorescent powder by the NBI. Thereafter,
the bills were given to Ricablanca, who was tasked to pretend that she
was going along with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's
house. Petitioner, who was then holding the bounced BDO check,
handed over said check to Ricablanca. They originally intended to
proceed to Baby Aquino's place to have the check replaced with cash,
but the plan did not push through. However, they agreed to meet
again on August 21, 2007.
On the agreed date, Ricablanca again went to petitioners house,
where she met petitioner and Jacqueline Capitle. Petitioner, her
husband, and Ricablanca went to the house of Anita Valencia;
Jacqueline Capitle decided not to go with the group because she
decided to go shopping. It was only petitioner, her husband,
Ricablanca and Valencia who then boarded petitioner's jeep and went
on to Baby Aquino's factory. Only Ricablanca alighted from the jeep
and entered the premises of Baby Aquino, pretending that she was
getting cash from Baby Aquino. However, the cash she actually
brought out from the premises was the P10,000.00 marked money
previously given to her by Dyhengco. Ricablanca divided the money
and upon returning to the jeep, gave P5,000.00 each to Valencia and
petitioner. Thereafter, petitioner and Valencia were arrested by NBI
agents, who had been watching the whole time.
Petitioner and Valencia were brought to the NBI office where the
Forensic Chemist found fluorescent powder on the palmar and dorsal
aspects of both of their hands. This showed that petitioner and
Valencia handled the marked money. The NBI filed a criminal case for
qualified theft against the two and one Jane Doe who was later
identified as Jacqueline Capitle, the wife of Generoso Capitle.
The defense, on the other hand, denied having taken the subject
check and presented the following scenario.
Petitioner admitted that she was a collector for Mega Foam until she
resigned on June 30, 1997, but claimed that she had stopped
collecting payments from Baby Aquino for quite some time before her
resignation from the company. She further testified that, on the day
of the arrest, Ricablanca came to her mothers house, where she was
staying at that time, and asked that she accompany her (Ricablanca)
to Baby Aquino's house. Since petitioner was going for a pre-natal
check-up at the Chinese General Hospital, Ricablanca decided to hitch
a ride with the former and her husband in their jeep going to Baby
Aquino's place in Caloocan City. She allegedly had no idea why
Ricablanca asked them to wait in their jeep, which they parked
outside the house of Baby Aquino, and was very surprised when
Ricablanca placed the money on her lap and the NBI agents arrested
them.
Anita Valencia also admitted that she was the cashier of Mega Foam
until she resigned on June 30, 1997. It was never part of her job to
collect payments from customers. According to her, on the morning
of August 21, 1997, Ricablanca called her up on the phone, asking if
she (Valencia) could accompany her (Ricablanca) to the house of Baby
Aquino. Valencia claims that she agreed to do so, despite her
admission during cross-examination that she did not know where
Baby Aquino resided, as she had never been to said house. They then
met at the house of petitioner's mother, rode the jeep of petitioner
and her husband, and proceeded to Baby Aquino's place. When they
arrived at said place, Ricablanca alighted, but requested them to wait
for her in the jeep. After ten minutes, Ricablanca came out and, to her
Compiled by: Vim Malicay
surprise, Ricablanca gave her money and so she even asked, "What is
this?" Then, the NBI agents arrested them.
The trial of the three accused went its usual course and, on October
4, 1999, the RTC rendered its Decision, the dispositive portion of
which reads:
WHEREFORE, in view of the foregoing, the Court finds
accused Gemma Tubale De Jacinto y Latosa, Anita Busog De
Valencia y Rivera and Jacqueline Capitle GUILTY beyond reasonable
doubt of the crime of QUALIFIED THEFT and each of them is hereby
sentenced to suffer imprisonment of FIVE (5) YEARS, FIVE (5)
MONTHS AND ELEVEN (11) DAYS, as minimum, to SIX (6) YEARS,
EIGHT (8) MONTHS AND TWENTY (20) DAYS, as maximum.
SO ORDERED.7
The three appealed to the CA and, on December 16, 2003, a Decision
was promulgated, the dispositive portion of which reads, thus:
IN VIEW OF THE FOREGOING, the decision of the trial court
is MODIFIED, in that:
(a) the sentence against accused Gemma Jacinto stands;
(b) the sentence against accused Anita Valencia is reduced
to 4 months arresto mayor medium.
(c) The accused Jacqueline Capitle is acquitted.
SO ORDERED.
A Partial Motion for Reconsideration of the foregoing CA Decision was
filed only for petitioner Gemma Tubale Jacinto, but the same was
denied per Resolution dated March 5, 2004.
Hence, the present Petition for Review on Certiorari filed by
petitioner alone, assailing the Decision and Resolution of the CA. The
issues raised in the petition are as follows:
1. Whether or not petitioner can be convicted of a crime not
charged in the information;
2. Whether or not a worthless check can be the object of
theft; and
3. Whether or not the prosecution has proved petitioner's
guilt beyond reasonable doubt.8
The petition deserves considerable thought.
The prosecution tried to establish the following pieces of evidence to
constitute the elements of the crime of qualified theft defined under
Article 308, in relation to Article 310, both of the Revised Penal Code:
(1) the taking of personal property - as shown by the fact that
petitioner, as collector for Mega Foam, did not remit the customer's
check payment to her employer and, instead, appropriated it for
herself; (2) said property belonged to another the check belonged
to Baby Aquino, as it was her payment for purchases she made; (3)
the taking was done with intent to gain this is presumed from the
act of unlawful taking and further shown by the fact that the check
was deposited to the bank account of petitioner's brother-in-law; (4)
it was done without the owners consent petitioner hid the fact that
she had received the check payment from her employer's customer
by not remitting the check to the company; (5) it was accomplished
without the use of violence or intimidation against persons, nor of
force upon things the check was voluntarily handed to petitioner by
the customer, as she was known to be a collector for the company;
and (6) it was done with grave abuse of confidence petitioner is
admittedly entrusted with the collection of payments from
customers.
However, as may be gleaned from the aforementioned Articles of the
Revised Penal Code, the personal property subject of the theft must
have some value, as the intention of the accused is to gain from the
thing stolen. This is further bolstered by Article 309, where the law
provides that the penalty to be imposed on the accused is dependent
on the value of the thing stolen.
In this case, petitioner unlawfully took the postdated check belonging
to Mega Foam, but the same was apparently without value, as it was
subsequently dishonored. Thus, the question arises on whether the
crime of qualified theft was actually produced.
The Court must resolve the issue in the negative.
Intod v. Court of Appeals9 is highly instructive and applicable to the
present case. In Intod, the accused, intending to kill a person,
peppered the latters bedroom with bullets, but since the intended
victim was not home at the time, no harm came to him. The trial court
and the CA held Intod guilty of attempted murder. But upon review
by this Court, he was adjudged guilty only of an impossible crime as
defined and penalized in paragraph 2, Article 4, in relation to Article
59, both of the Revised Penal Code, because of the factual
impossibility of producing the crime. Pertinent portions of said
provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be
incurred:
xxxx
2. By any person performing an act which would be an offense against
persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate to
ineffectual means. (emphasis supplied)
Article 59. Penalty to be imposed in case of failure to commit the crime
because the means employed or the aims sought are impossible. -
When the person intending to commit an offense has already
performed the acts for the execution of the same but nevertheless
the crime was not produced by reason of the fact that the act
intended was by its nature one of impossible accomplishment or
because the means employed by such person are essentially
inadequate to produce the result desired by him, the court, having in
mind the social danger and the degree of criminality shown by the
offender, shall impose upon him the penalty of arresto mayor or a
fine ranging from 200 to 500 pesos.
Compiled by: Vim Malicay
Thus, the requisites of an impossible crime are: (1) that the act
performed would be an offense against persons or property; (2) that
the act was done with evil intent; and (3) that its accomplishment was
inherently impossible, or the means employed was either inadequate
or ineffectual. The aspect of the inherent impossibility of
accomplishing the intended crime under Article 4(2) of the Revised
Penal Code was further explained by the Court in Intod10 in this wise:
Under this article, the act performed by the offender cannot produce
an offense against persons or property because: (1) the commission
of the offense is inherently impossible of accomplishment; or (2) the
means employed is either (a) inadequate or (b) ineffectual.
That the offense cannot be produced because the commission of the
offense is inherently impossible of accomplishment is the focus of this
petition. To be impossible under this clause, the act intended by the
offender must be by its nature one impossible of accomplishment.
There must be either (1) legal impossibility, or (2) physical
impossibility of accomplishing the intended act in order to qualify the
act as an impossible crime.
Legal impossibility occurs where the intended acts, even if completed,
would not amount to a crime.
xxxx
The impossibility of killing a person already dead falls in this category.
On the other hand, factual impossibility occurs when extraneous
circumstances unknown to the actor or beyond his control prevent
the consummation of the intended crime. x x x 11
In Intod, the Court went on to give an example of an offense that
involved factual impossibility, i.e., a man puts his hand in the coat
pocket of another with the intention to steal the latter's wallet, but
gets nothing since the pocket is empty.
Herein petitioner's case is closely akin to the above example of factual
impossibility given in Intod. In this case, petitioner performed all the
acts to consummate the crime of qualified theft, which is a crime
against property. Petitioner's evil intent cannot be denied, as the
mere act of unlawfully taking the check meant for Mega Foam
showed her intent to gain or be unjustly enriched. Were it not for the
fact that the check bounced, she would have received the face value
thereof, which was not rightfully hers. Therefore, it was only due to
the extraneous circumstance of the check being unfunded, a fact
unknown to petitioner at the time, that prevented the crime from
being produced. The thing unlawfully taken by petitioner turned out
to be absolutely worthless, because the check was eventually
dishonored, and Mega Foam had received the cash to replace the
value of said dishonored check.1avvphi1
The fact that petitioner was later entrapped receiving the P5,000.00
marked money, which she thought was the cash replacement for the
dishonored check, is of no moment. The Court held in Valenzuela v.
People12 that under the definition of theft in Article 308 of the Revised
Penal Code, "there is only one operative act of execution by the actor
involved in theft the taking of personal property of another."
Elucidating further, the Court held, thus:
x x x Parsing through the statutory definition of theft under Article
308, there is one apparent answer provided in the language of the law
that theft is already "produced" upon the "tak[ing of] personal
property of another without the latters consent."
xxxx
x x x when is the crime of theft produced? There would be all but
certain unanimity in the position that theft is produced when there is
deprivation of personal property due to its taking by one with intent
to gain. Viewed from that perspective, it is immaterial to the product
of the felony that the offender, once having committed all the acts of
execution for theft, is able or unable to freely dispose of the property
stolen since the deprivation from the owner alone has already ensued
from such acts of execution. x x x
xxxx
x x x we have, after all, held that unlawful taking, or apoderamiento,
is deemed complete from the moment the offender gains possession
of the thing, even if he has no opportunity to dispose of the same. x x
x
x x x Unlawful taking, which is the deprivation of ones personal
property, is the element which produces the felony in its
consummated stage. x x x 13
From the above discussion, there can be no question that as of the
time that petitioner took possession of the check meant for Mega
Foam, she had performed all the acts to consummate the crime of
theft, had it not been impossible of accomplishment in this case. The
circumstance of petitioner receiving the P5,000.00 cash as supposed
replacement for the dishonored check was no longer necessary for
the consummation of the crime of qualified theft. Obviously, the plan
to convince Baby Aquino to give cash as replacement for the check
was hatched only after the check had been dishonored by the drawee
bank. Since the crime of theft is not a continuing offense, petitioner's
act of receiving the cash replacement should not be considered as a
continuation of the theft. At most, the fact that petitioner was caught
receiving the marked money was merely corroborating evidence to
strengthen proof of her intent to gain.
Moreover, the fact that petitioner further planned to have the
dishonored check replaced with cash by its issuer is a different and
separate fraudulent scheme. Unfortunately, since said scheme was
not included or covered by the allegations in the Information, the
Court cannot pronounce judgment on the accused; otherwise, it
would violate the due process clause of the Constitution. If at all, that
fraudulent scheme could have been another possible source of
criminal liability.
IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision
of the Court of Appeals, dated December 16, 2003, and its Resolution
dated March 5, 2004, are MODIFIED. Petitioner Gemma T. Jacinto is
found GUILTY of an IMPOSSIBLE CRIME as defined and penalized in
Articles 4, paragraph 2, and 59 of the Revised Penal Code,
respectively. Petitioner is sentenced to suffer the penalty of six (6)
months of arrresto mayor, and to pay the costs.
SO ORDERED.
Compiled by: Vim Malicay
 Article 5- Duty of the Court
Article 6- Consummated/ Frustrated/ Attempted Stages
PEOPLE VS PANCHO
(416 SCRA 506)
SANDOVAL-GUTIERREZ, J.:
This is an appeal from the Joint Decision[1] dated June 19,
1998 of the Regional Trial Court, Branch 15, Malolos, Bulacan, finding
appellant Manolito Pancho guilty beyond reasonable doubt of rape in
Criminal Case No. 837-M-96 and attempted rape in Criminal Case No.
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-
96, the penalty of 10 years and 1 day, as minimum, to 12 years, as
maximum of prision mayor, was imposed upon him.
The Informations in both Criminal Case Nos. 837-M-96 and 838-
M-96 read:
For Criminal Case No. 837-M-96 (For Rape):
That in or about the month of August, 1994, in the municipality of
Malolos, province of Bulacan, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, did then and
there wilfully, unlawfully and feloniously, by means of force, threats
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.
Contrary to law.
For Criminal Case No. 838-M-96 (For Attempted Rape):
That in or about the month of December, 1995, in the municipality
of Malolos, province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did
then and there wilfully, unlawfully and feloniously, by means of
force, threats 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.
Contrary to law.
Upon arraignment, appellant, assisted by counsel, pleaded not
guilty to the crimes charged.
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
Michelles father passed away, her mother contracted a second
marriage with appellant. Michelle and her two (2) brothers live with
the couple at Look First, Malolos, Bulacan.
On August 1, 1994, at around 6:00 oclock in the morning,
Michelle, who was then only ten years old, went home after spending
the night at her aunts house. While she was about to undress,
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
he took off his clothing. Appellant started kissing and holding her
breast and eventually had carnal knowledge of her. She felt pain
when he inserted his organ into her vagina which bled. She tried to
resist but he held her both arms.He was on top of her making push
and pull movements for four (4) minutes. Then he dressed up,
threatening to kill her should she complain or tell anyone about the
incident.
Sometime in December, 1995 at the familys new residence at
Bayugo, Meycauayan, Bulacan, appellant arrived from work. When
Michelle opened the door and saw him, she got scared. While he was
approaching her, she managed to hit him. Then she attempted to
jump out of the window, but he dragged her by her feet. At that
instance, her uncle (Tito Onio) suddenly arrived.[3] Immediately,
appellant stopped, thus thwarting his bestial desire.
After sometime, Michelle mustered enough courage to report
the incidents to her mother, but the latter casually ignored her. So,
she turned to her grandmother Natividad Lacanilao, who brought her,
sometime in February, 1996, to the National Bureau of Investigation
(NBI) for examination by a medico-legal officer.[4] Thereafter, they
proceeded to the Malolos Police Station where she executed a sworn
statement.[5]
Dr. Ida P. Daniel, a Medico-Legal Officer of the NBI, testified that
she conducted a medico-genital examination of Michelle dela
Torre. Her findings,[6] which she confirmed on the witness stand, are
as follows:
GENERAL PHYSICAL EXAMINATION:
Height: 132.0 cms
Weight: 78.0 cms
Normally developed, fairly nourished, conscious, coherent,
cooperative, ambulatory subject.
Breasts, developing, conical, firm. Areolae, brown, 2.5 cms in
diameter. Nipples, brown, protruding, 0.5 cm in diameter.
No sign of extragenital physical injury noted.
GENETAL EXAMINATION:
Pubic hair, fine, scanty. Labia majora and minora, coaptated.
Fourchette, tense. Vestibular mucosa, pinkish. Hymen, moderately
tall, moderately thick, intact. Hymenal orifice, annular, admits a tube
2.0 cms in diameter with moderate resistance. Vaginal walls, tight.
Rugosities, prominent.
CONCLUSIONS:
1. No evident sign of extragenital physical injury noted on the body
of the subject at the time of examination.
2. Hymen, intact and its orifice small (2.0 cms in diameter) as to
preclude complete penetration by an average sized adult Filipino
male organ in full erection without producing any genital injury.
For his part, appellant strongly denied the charges, contending
that it was impossible for him to commit the crimes considering that
during the incidents, his wife and her two sons were also inside the
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
intact with no sign of extra-genital or genital injuries.
After trial, the lower court rendered a Joint Decision dated June
19, 1998, the dispositive portion of which reads:
In view of all the foregoing and by proof beyond reasonable doubt,
the Court hereby renders judgment as follows:
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
of RECLUSION PERPETUA.
2. With respect to Criminal Case No. 838-M-96, the Court finds the
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)
YEARS.
3. To indemnify the victim Michelle dela Torre the amount
of P20,000.00 each case.
The period of the accuseds detention is credited in his favor.
SO ORDERED.
In this appeal, appellant ascribes to the trial court the following
errors:
I
THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF THE CRIMES OF RAPE AND
ATTEMPTED RAPE, DESPITE INSUFFICIENCY OF EVIDENCE.
II
THE LOWER COURT ERRED IN DISREGARDING THE DEFENSE PUT UP
BY ACCUSED-APPELLANT.
As alleged in the Informations, the crimes charged were
committed sometime in August, 1994 and December, 1995. Thus, the
governing law is Article 335[8] of the Revised Penal Code which, as
amended by Republic Act No. 7659 (The Death Penalty
Law),[9]provides:
ART. 335. When and how rape is committed. Rape is committed by
having carnal knowledge of a woman under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious;
and
3. When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
xxx
The death penalty shall also be imposed if the crime or rape is
committed with any of the following attendant circumstances:
1. When the victim is under eighteen (18) years of age and the
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.
2. xxx.
A. G.R. No. 136592 for rape:
Rape under the above provisions is either simple or qualified. It
is qualified when the age of the victim (below 18) and her relationship
with the appellant are both alleged in the Information and
proved.[10] In this case, the prosecution failed to allege in the
Information the qualifying circumstance that appellant is the victims
step-parent. Thus, he may only be convicted of simple rape.
Simple rape is committed under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious; and
3. When the woman is under twelve years of age
(statutory rape) or is demented.
In the Information, appellant is being charged of statutory rape
considering that Michelle was then below 12 years old.
The gravamen of the offense of statutory rape is carnal
knowledge of a woman below twelve (12) years old.[11] In statutory
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
carnal knowledge took place.[13]
As shown by her Certificate of Live Birth,[14] Michelle was born
on April 2, 1984. Thus, on August 1, 1994 when the incident took
place, she was only 10 years and 3 months old.
Michelle identified appellant in open court as the culprit who
raped her. She testified as follows:
FISCAL:
Q: Ms. Witness, you claim in your testimony that you
were raped by your step father Manolito Pancho
last August 1, 1994, will you please tell this
Honorable Court how Manolito Pancho raped you?
A: About 6:00 oclock in the morning I went home, sir.
Q: And where is your home located?
A: I went home at Look First, Malolos, Bulacan.
Compiled by: Vim Malicay
Q: And what happened when you went home at Look,
Malolos, Bulacan?
A: Manolito Pancho dragged me and forced me to lie on
the floor.
Q: And what happened when after Manolito Pancho lay
you on the floor?
A: He took off all my clothes.
Q: And what clothes you are wearing at that time, Ms.
witness?
A: I was wearing a t-shirt and short, sir.
Q: What else Manolito Pancho removed?
A: My clothes, short and panty, sir.
Q: And what was your appearance after these clothes
were removed by Manolito Pancho?
A: I was naked, sir.
Q: How about Manolito Pancho, what did he do after he
removed your dress?
A: He also took-off his clothes, sir.
Q: What clothes did he remove?
A: His t-shirt, short and brief, sir.
Q: After Manolito removed all these: his short, brief and
t-shirt, what did he do?
A: He placed himself on top of me.
Q: And what happened after he placed himself on top of
you?
A: He inserted his penis on my vagina.
Q: Were you able to see his organ when he inserted it on
your vagina?
A: Yes, sir.
Q: What happened when he inserted his organ on your
vagina?
A: He was kissing me and touching my body, sir.
Q: What particular parts of your body did Manolito
Pancho kiss and touch, Ms. witness?
A: My both breasts, sir.
Q: And what did you feel when Manolito Pancho inserted
his organ on your vagina?
A: It hurts, sir.
Q: What motion did he do if you can still remember when
Manolito Pancho was on top of you?
A: He was kissing me, touching me and then I tried to
struggle against him but he was holding my both
hands so that I could not struggle.
Q: And what happened to your vagina after he inserted
his penis?
A: It bled, sir.
Q: How long did Manolito Pancho stay on top of you?
A: Four (4) minutes, sir.
Q: And after four (4) minutes, what did Manolito Pancho
do?
A: I already dressed up because he already dressed-up,
sir.
Q: And what did Manolito Pancho tell you, if any?
A: He said, do not complain because if you do so, I am
going to kill you.
Q: How are you related with Manolito Pancho, Ms.
witness?
A: My step father, sir.
Q: At the time you claimed that you were raped by
Manolito Pancho, will you please tell this Honorable
Court, how young were you then?
A: Ten (10) years old, sir.
Q: Do you have evidence to show Ms. witness that you are
ten (10) years old at that time?
A: My birth certificate, sir.
Q: Do you have with you your birth certificate?
A: Yes, sir. (The grandmother is producing the Live Birth
Certificate of the complainant Michelle dela Torre.)
Q: Will you please tell this Honorable Court what is your
date of birth, Ms. witness?
A: April 2, 1984.
Q: And you claimed that you were 10 years old when you
were raped by Manolito Pancho?
A: Yes, sir.
xxx.[15]
Michelles testimony is straightforward, unflawed by significant
inconsistency, and unshaken by rigid cross-examination. It deserves
full faith and credence. In rape cases, the accused may be convicted
solely on the testimony of the rape victim if her testimony is credible,
natural, and convincing.[16]
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
testimony meets the test of credibility, the accused may be convicted
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 crime so serious as rape to her step-father if it were not true.
Appellant vigorously denied the charge, contending that per the
Medical Report of Dr. Ida Daniel, Michelles hymen has remained
intact.[18]
We are not persuaded.
Appellant heavily relies on the virgo intacta theory.[19] He
disregards Dr. Daniels testimony that there are two types of hymen:
(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
cases the absence of fresh lacerations does not preclude the finding
of rape,[21] especially when the victim is of tender age.[22] Moreover,
laceration of the hymen is not an element of the crime of
rape.[23] Hymenal rupture or any indication of vaginal laceration or
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
rule is well settled that rape is consummated by the slightest penile
penetration of the labia majora or pudendum of the female
organ.[26] Indeed, the evidentiary weight of the medical examination
of the victim, as well as the medical certificate, is merely
corroborative in character and is not an indispensable element for
conviction for rape.[27]
Appellants denial is an inherently weak defense. It has always
been viewed upon with disfavor by the courts due to the ease with
which it can be concocted.[28] Inherently weak, denial as a defense
crumbles in the light of positive identification of the accused, as in this
case. The defense of denial assumes significance only when the
prosecutions evidence is such that it does not prove guilt beyond
reasonable doubt.[29] Verily, mere denial, unsubstantiated by clear
and convincing evidence, is negative self-serving evidence which
cannot be given greater evidentiary weight than the testimony of the
complaining witness who testified on affirmative matters.[30]
B. G.R. No. 136593 for attempted rape:
Appellant also contends that his conviction of attempted rape
in Criminal Case No. 838-M-96 is not supported by evidence.
Michelle testified that when appellant was coming near me, I
hit him and I saw that our door was opened. I tried to jump and that
was the time he dragged and he held my feet.[31]Appellant and
Michelle were in this snap situation when his Tito Onio arrived.[32] Her
testimony regarding this incident is quoted as follows:
FISCAL:
xxx
Q: And what happened in that place at Bayugo,
Meycauayan, Bulacan?
A: When the door opened I thought it was my mother and
when I saw him I was scared, sir.
Q: And what happened when you saw Manolito Pancho?
A: I closed the door, sir.
Q: Thereafter, what happened?
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
the time he dragged and he held my feet.
Q: And what happened after Manolito Pancho held your
feet?
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
rape was not committed.
xxx.[33]
Under Art. 6, in relation to Art. 335, of the Revised Penal Code,
rape is attempted when the offender commences the commission of
rape directly by overt acts, but does not perform all the acts of
execution which should produce the crime of rape by reason of some
cause or accident other than his own spontaneous desistance. [34]
In this second case, the prosecution failed to prove that
appellant started to rape the victim and had commenced the
performance of acts of carnal knowledge. He did not force her to lie
down or remove her garment. In short, there was no showing that he
did commence at all the performance of any act indicative of an intent
or attempt to rape the victim. What he did was to drag her and hold
her feet. At this juncture, we can not safely conclude that he was
attempting to rape her.
In People vs. Campuhan,[35] we held that the thin line that
separates attempted rape from consummated rape is the entrance of
the male organ into the labial threshold of the female genitalia. In that
case, the accused was caught by the mother of the victim kneeling on
top of her. The victim testified that the accuseds organ merely
touched but did not penetrate her vagina. We held that he could not
be convicted of statutory rape but only attempted rape.
In the instant case, appellant was merely holding complainants
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.
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
ruled that upon a finding of the fact of rape, the award of civil
indemnity is mandatory. If the death penalty is imposed, the
indemnity ex delicto should be P75,000.00.Where, as here, the death
penalty is not decreed, the victim should be entitled to P50,000.00
only.[36]
In line with current jurisprudence, we also award the victim
moral damages in the amount of P50,000.00 without need of pleading
or proof of the basis thereof.[37] The anguish and pain she has endured
are evident.
WHEREFORE, the Decision dated June 19, 1998 of the Regional
Trial Court, Branch 15, Malolos, Bulacan, in Criminal Case No. 837-M-
96, convicting appellant Manolito Pancho of rape and sentencing him
to suffer the penalty of reclusion perpetua is AFFIRMED, with
the MODIFICATION that he is ordered to pay the victim, Michelle dela
Torre, P50,000.00 as civil indemnity, and P50,000.00 as moral
damages.
In Criminal Case No. 838-M-96, the trial courts judgment
convicting the appellant of attempted rape is REVERSED AND SET
ASIDE and a new one is entered ACQUITTING him of the crime
charged.
Costs de oficio.
SO ORDERED.
PEOPLE VS LAMAHANG
(91 PHIL 703)
RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from
a decision of the Court of First Instance of Iloilo, finding him guilty of
Compiled by: Vim Malicay
attempted robbery and sentencing him to suffer two years and four
months of prision correccional and to an additional penalty of ten
years and one day of prision mayor for being an habitual delinquent,
with the accessory penalties of the law, and to pay the costs of the
proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who
was patrolling his beat on Delgado and C.R. Fuentes streets of the City
of Iloilo, caught the accused in the act of making an opening with an
iron bar on the wall of a store of cheap goods located on the last
named street. At that time the owner of the store, Tan Yu, was
sleeping inside with another Chinaman. The accused had only
succeeded in breaking one board and in unfastening another from the
wall, when the policeman showed up, who instantly arrested him and
placed him under custody.
The fact above stated was considered and declared unanimously by
the provincial fiscal of Iloilo, the trial judge and the Solicitor-General,
as constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the
Penal Code punishes is that which has a logical relation to a particular,
concrete offense; that, which is the beginning of the execution of the
offense by overt acts of the perpetrator, leading directly to its
realization and consummation. The attempt to commit an
indeterminate offense, inasmuch as its nature in relation to its
objective is ambiguous, is not a juridical fact from the standpoint of
the Penal Code. There is no doubt that in the case at bar it was the
intention of the accused to enter Tan Yu's store by means of violence,
passing through the opening which he had started to make on the
wall, in order to commit an offense which, due to the timely arrival of
policeman Tomambing, did not develop beyond the first steps of its
execution. But it is not sufficient, for the purpose of imposing penal
sanction, that an act objectively performed constitute a mere
beginning of execution; it is necessary to establish its unavoidable
connection, like the logical and natural relation of the cause and its
effect, with the deed which, upon its consummation, will develop into
one of the offenses defined and punished by the Code; it is necessary
to prove that said beginning of execution, if carried to its complete
termination following its natural course, without being frustrated by
external obstacles nor by the voluntary desistance of the perpetrator,
will logically and necessarily ripen into a concrete offense. Thus, in
case of robbery, in order that the simple act of entering by means of
force or violence another person's dwelling may be considered an
attempt to commit this offense, it must be shown that the offender
clearly intended to take possession, for the purpose of gain, of some
personal property belonging to another. In the instant case, there is
nothing in the record from which such purpose of the accused may
reasonably be inferred. From the fact established and stated in the
decision, that the accused on the day in question was making an
opening by means of an iron bar on the wall of Tan Yu's store, it may
only be inferred as a logical conclusion that his evident intention was
to enter by means of force said store against the will of its owner. That
his final objective, once he succeeded in entering the store, was to
rob, to cause physical injury to the inmates, or to commit any other
offense, there is nothing in the record to justify a concrete
finding.1avvphil.et
It must be borne in mind (I Groizard, p. 99) that in offenses
not consummated, as the material damage is wanting, the
nature of the action intended (accion fin) cannot exactly be
ascertained, but the same must be inferred from the nature
of the acts executed (accion medio). Hence, the necessity
that these acts be such that by their very nature, by the
facts to which they are related, by the circumstances of the
persons performing the same, and by the things connected
therewith, they must show without any doubt, that they are
aimed at the consummation of a crime. Acts susceptible of
double interpretation , that is, in favor as well as against the
culprit, and which show an innocent as well as a punishable
act, must not and can not furnish grounds by themselves for
attempted nor frustrated crimes. The relation existing
between the facts submitted for appreciation and the
offense which said facts are supposed to produce must be
direct; the intention must be ascertained from the facts and
therefore it is necessary, in order to avoid regrettable
instances of injustice, that the mind be able to directly infer
from them the intention of the perpetrator to cause a
particular injury. This must have been the intention of the
legislator in requiring that in order for an attempt to exist,
the offender must commence the commission of the felony
directly by overt acts, that is to say, that the acts performed
must be such that, without the intent to commit an offense,
they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the
overt acts leading to the commission of the offense, are not punished
except when they are aimed directly to its execution, and therefore
they must have an immediate and necessary relation to the offense."
Considering says the Supreme Court of Spain in its
decision of March 21, 1892 that in order to declare that
such and such overt acts constitute an attempted offense it
is necessary that their objective be known and established,
or that said acts be of such nature that they themselves
should obviously disclose the criminal objective necessarily
intended, said objective and finality to serve as ground for
the designation of the offense: . . . .
In view of the foregoing, we are of the opinion, and so hold that the
fact under consideration does not constitute attempted robbery but
attempted trespass to dwelling (People vs. Tayag and Morales, 59
Phil., 606, and decisions of the Supreme Court of Spain therein cited).
Under article 280 of the Revised Penal Code, this offense is committed
when a private person shall enter the dwelling of another against the
latter's will. The accused may be convicted and sentenced for an
attempt to commit this offense in accordance with the evidence and
the following allegation contained in the information: "... the accused
armed with an iron bar forced the wall of said store by breaking a
board and unfastening another for the purpose of entering said store
... and that the accused did not succeed in entering the store due to
the presence of the policeman on beat Jose Tomambing, who upon
hearing the noise produced by the breaking of the wall, promptly
approached the accused ... ." Under the circumstances of this case the
prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2
Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67;
U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs.
Panes, 25 Phil., 292.) Against the accused must be taken into
consideration the aggravating circumstances of nighttime and former
convictions, inasmuch as the record shows that several final
judgments for robbery and theft have been rendered against him
and in his favor, the mitigating circumstance of lack of instruction. The
breaking of the wall should not be taken into consideration as an
aggravating circumstance inasmuch as this is the very fact which in
this case constitutes the offense of attempted trespass to dwelling.
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The penalty provided by the Revised Penal Code for the
consummated offense of trespass to dwelling, if committed with
force, is prision correccional in its medium and maximum periods and
a fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty
corresponding to attempted trespass to dwelling is to degrees lower
(art. 51), or, arresto mayor in its minimum and medium periods.
Because of the presence of two aggravating circumstances and one
mitigating circumstance the penalty must be imposed in its maximum
period. Pursuant to article 29 of the same Code, the accused is not
entitled to credit for one-half of his preventive imprisonment.
Wherefore, the sentence appealed from is revoked and the accused
is hereby held guilty of attempted trespass to dwelling, committed by
means of force, with the aforesaid aggravating and mitigating
circumstances and sentenced to three months and one day of arresto
mayor, with the accessory penalties thereof and to pay the costs.
Avancea, C.J., Abad Santos, Hull, and Vickers, JJ., concur.
VALENZUELA VS PEOPLE
(525 SCRA 306)
TINGA, J.:
This case aims for prime space in the firmament of our criminal law
jurisprudence. Petitioner effectively concedes having performed the
felonious acts imputed against him, but instead insists that as a result,
he should be adjudged guilty of frustrated theft only, not the felony
in its consummated stage of which he was convicted. The proposition
rests on a common theory expounded in two well-known
decisions1 rendered decades ago by the Court of Appeals, upholding
the existence of frustrated theft of which the accused in both cases
were found guilty. However, the rationale behind the rulings has
never been affirmed by this Court.
As far as can be told,2 the last time this Court extensively considered
whether an accused was guilty of frustrated or consummated theft
was in 1918, in People v. Adiao.3 A more cursory
treatment of the question was followed in 1929, in People v.
Sobrevilla,4 and in 1984, in Empelis v. IAC.5 This petition now gives
occasion for us to finally and fully measure if or how frustrated theft
is susceptible to commission under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from
an Information6 charging petitioner Aristotel Valenzuela (petitioner)
and Jovy Calderon (Calderon) with the crime of theft. On 19 May
1994, at around 4:30 p.m., petitioner and Calderon were sighted
outside the Super Sale Club, a supermarket within the ShoeMart (SM)
complex along North EDSA, by Lorenzo Lago (Lago), a security guard
who was then manning his post at the open parking area of the
supermarket. Lago saw petitioner, who was wearing an identification
card with the mark "Receiving Dispatching Unit (RDU)," hauling a push
cart with cases of detergent of the well-known "Tide" brand.
Petitioner unloaded these cases in an open parking space, where
Calderon was waiting. Petitioner then returned inside the
supermarket, and after five (5) minutes, emerged with more cartons
of Tide Ultramatic and again unloaded these boxes to the same area
in the open parking space.7
Thereafter, petitioner left the parking area and haled a taxi. He
boarded the cab and directed it towards the parking space where
Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic
inside the taxi, then boarded the vehicle. All these acts were eyed by
Lago, who proceeded to stop the taxi as it was leaving the open
parking area. When Lago asked petitioner for a receipt of the
merchandise, petitioner and Calderon reacted by fleeing on foot, but
Lago fired a warning shot to alert his fellow security guards of the
incident. Petitioner and Calderon were apprehended at the scene,
and the stolen merchandise recovered.8 The filched items seized from
the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra
25 grams, and three (3) additional cases of detergent, the goods with
an aggregate value of P12,090.00.9
Petitioner and Calderon were first brought to the SM security office
before they were transferred on the same day to the Baler Station II
of the Philippine National Police, Quezon City, for investigation. It
appears from the police investigation records that apart from
petitioner and Calderon, four (4) other persons were apprehended by
the security guards at the scene and delivered to police custody at the
Baler PNP Station in connection with the incident. However, after the
matter was referred to the Office of the Quezon City Prosecutor, only
petitioner and Calderon were charged with theft by the Assistant City
Prosecutor, in Informations prepared on 20 May 1994, the day after
the incident.10
After pleading not guilty on arraignment, at the trial, petitioner and
Calderon both claimed having been innocent bystanders within the
vicinity of the Super Sale Club on the afternoon of 19 May 1994 when
they were haled by Lago and his fellow security guards after a
commotion and brought to the Baler PNP Station. Calderon alleged
that on the afternoon of the incident, he was at the Super Sale Club
to withdraw from his ATM account, accompanied by his neighbor,
Leoncio Rosulada.11 As the queue for the ATM was long, Calderon and
Rosulada decided to buy snacks inside the supermarket. It was while
they were eating that they heard the gunshot fired by Lago, leading
them to head out of the building to check what was
transpiring. As they were outside, they were suddenly "grabbed" by a
security guard, thus commencing their detention.12 Meanwhile,
petitioner testified during trial that he and his cousin, a Gregorio
Valenzuela,13 had been at the parking lot, walking beside the nearby
BLISS complex and headed to ride a tricycle going to Pag-asa, when
they saw the security guard Lago fire a shot. The gunshot caused him
and the other people at the scene to start running, at which point he
was apprehended by Lago and brought to the security office.
Petitioner claimed he was detained at the security office until around
9:00 p.m., at which time he and the others were brought to the Baler
Police Station. At the station, petitioner denied having stolen the
cartons of detergent, but he was detained overnight, and eventually
brought to the prosecutors office where he was charged with
theft.14 During petitioners cross-examination, he admitted that he
had been employed as a "bundler" of GMS Marketing, "assigned at
the supermarket" though not at SM.15
In a Decision16 promulgated on 1 February 2000, the Regional Trial
Court (RTC) of Quezon City, Branch 90, convicted both petitioner and
Calderon of the crime of consummated theft. They were sentenced
to an indeterminate prison term of two (2) years of prision
correccional as minimum to seven (7) years of prision mayor as
maximum.17 The RTC found credible the testimonies of the
prosecution witnesses and established the convictions on the positive
identification of the accused as perpetrators of the crime.
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Both accused filed their respective Notices of Appeal,18 but only
petitioner filed a brief19 with the Court of Appeals, causing the
appellate court to deem Calderons appeal as abandoned and
consequently dismissed. Before the Court of Appeals, petitioner
argued that he should only be convicted of frustrated theft since at
the time he was apprehended, he was never placed in a position to
freely dispose of the articles stolen.20 However, in its Decision dated
19 June 2003,21the Court of Appeals rejected this contention and
affirmed petitioners conviction.22 Hence the present Petition for
Review,23 which expressly seeks that petitioners conviction "be
modified to only of Frustrated Theft."24
Even in his appeal before the Court of Appeals, petitioner effectively
conceded both his felonious intent and his actual participation in the
theft of several cases of detergent with a total value of P12,090.00 of
which he was charged.25 As such, there is no cause for the Court to
consider a factual scenario other than that presented by the
prosecution, as affirmed by the RTC and the Court of Appeals. The
only question to consider is whether under the given facts, the theft
should be deemed as consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft,
petitioner cites26 two decisions rendered many years ago by the Court
of Appeals: People v. Dio27 and People v. Flores.28 Both decisions
elicit the interest of this Court, as they modified trial court convictions
from consummated to frustrated theft and involve a factual milieu
that bears similarity to the present case. Petitioner invoked the same
rulings in his appeal to the Court of Appeals, yet the appellate court
did not expressly consider the import of the rulings when it affirmed
the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift
to the Dio and Flores rulings since they have not yet been expressly
adopted as precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not
come to pass before us. Yet despite the silence on our part, Dio and
Flores have attained a level of renown reached by very few other
appellate court rulings. They are comprehensively discussed in the
most popular of our criminal law annotations,29 and studied in
criminal law classes as textbook examples of frustrated crimes or even
as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the
fanciful scenarios that populate criminal law exams more than they
actually occur in real life. Indeed, if we finally say that Dio and Flores
are doctrinal, such conclusion could profoundly influence a multitude
of routine theft prosecutions, including commonplace shoplifting.
Any scenario that involves the thief having to exit with the stolen
property through a supervised egress, such as a supermarket
checkout counter or a parking area pay booth, may easily call for the
application of Dio and Flores. The fact that lower courts have not
hesitated to lay down convictions for frustrated theft further validates
that Dio and Flores and the theories offered therein on frustrated
theft have borne some weight in our jurisprudential system. The time
is thus ripe for us to examine whether those theories are correct and
should continue to influence prosecutors and judges in the future.
III.
To delve into any extended analysis of Dio and Flores, as well as the
specific issues relative to "frustrated theft," it is necessary to first
refer to the basic rules on the three stages of crimes under our
Revised Penal Code.30
Article 6 defines those three stages, namely the consummated,
frustrated and attempted felonies. A felony is consummated "when
all the elements necessary for its execution and accomplishment are
present." It is frustrated "when the offender performs all the acts of
execution which would produce the felony as a consequence but
which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator." Finally, it is attempted
"when the offender commences the commission of a felony directly
by overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident other
than his own spontaneous desistance."
Each felony under the Revised Penal Code has a "subjective phase,"
or that portion of the acts constituting the crime included between
the act which begins the commission of the crime and the last act
performed by the offender which, with prior acts, should result in the
consummated crime.31 After that point has been breached, the
subjective phase ends and the objective phase begins. 32 It has been
held that if the offender never passes the subjective phase of the
offense, the crime is merely attempted. 33 On the other hand, the
subjective phase is completely passed in case of frustrated crimes, for
in such instances, "[s]ubjectively the crime is complete."34
Truly, an easy distinction lies between consummated and frustrated
felonies on one hand, and attempted felonies on the other. So long as
the offender fails to complete all the acts of execution despite
commencing the commission of a felony, the crime is undoubtedly in
the attempted stage. Since the specific acts of execution that define
each crime under the Revised Penal Code are generally enumerated
in the code itself, the task of ascertaining whether a crime is
attempted only would need to compare the acts actually performed
by the accused as against the acts that constitute the felony under the
Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or
consummated necessitates an initial concession that all of the acts of
execution have been performed by the offender. The critical
distinction instead is whether the felony itself was actually produced
by the acts of execution. The determination of whether the felony was
"produced" after all the acts of execution had been performed hinges
on the particular statutory definition of the felony. It is the statutory
definition that generally furnishes the elements of each crime under
the Revised Penal Code, while the elements in turn unravel the
particular requisite acts of execution and accompanying criminal
intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit
rea" supplies an important characteristic of a crime, that "ordinarily,
evil intent must unite with an unlawful act for there to be a crime,"
and accordingly, there can be no crime when the criminal mind is
wanting.35 Accepted in this jurisdiction as material in crimes mala in
se,36 mens rea has been defined before as "a guilty mind, a guilty or
wrongful purpose or criminal intent,"37 and "essential for criminal
liability."38 It follows that the statutory definition of our mala in se
crimes must be able to supply what the mens rea of the crime is, and
indeed the U.S. Supreme Court has comfortably held that "a criminal
law that contains no mens rea requirement infringes on
Compiled by: Vim Malicay
constitutionally protected rights."39 The criminal statute must also
provide for the overt acts that constitute the crime. For a crime to
exist in our legal law, it is not enough that mens rea be shown; there
must also be an actus reus.40
It is from the actus reus and the mens rea, as they find expression in
the criminal statute, that the felony is produced. As a postulate in the
craftsmanship of constitutionally sound laws, it is extremely
preferable that the language of the law expressly provide when the
felony is produced. Without such provision, disputes would inevitably
ensue on the elemental question whether or not a crime was
committed, thereby presaging the undesirable and legally dubious
set-up under which the judiciary is assigned the legislative role of
defining crimes. Fortunately, our Revised Penal Code does not suffer
from such infirmity. From the statutory definition of any felony, a
decisive passage or term is embedded which attests when the felony
is produced by the acts of execution. For example, the statutory
definition of murder or homicide expressly uses the phrase "shall kill
another," thus making it clear that the felony is produced by the death
of the victim, and conversely, it is not produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of
the Revised Penal Code, its elements are spelled out as follows:
Art. 308. Who are liable for theft. Theft is committed by any person
who, with intent to gain but without violence against or intimidation
of persons nor force upon things, shall take personal property of
another without the latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the
same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of
another, shall remove or make use of the fruits or object of the
damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where
trespass is forbidden or which belongs to another and without the
consent of its owner, shall hunt or fish upon the same or shall gather
cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and three
alternative and highly idiosyncratic means by which theft may be
committed.41 In the present discussion, we need to concern ourselves
only with the general definition since it was under it that the
prosecution of the accused was undertaken and sustained. On the
face of the definition, there is only one operative act of execution by
the actor involved in theft the taking of personal property of
another. It is also clear from the provision that in order that such
taking may be qualified as theft, there must further be present the
descriptive circumstances that the taking was with intent to gain;
without force upon things or violence against or intimidation of
persons; and it was without the consent of the owner of the property.
Indeed, we have long recognized the following elements of theft as
provided for in Article 308 of the Revised Penal Code, namely: (1) that
there be taking of personal property; (2) that said property belongs to
another; (3) that the taking be done with intent to gain; (4) that the
taking be done without the consent of the owner; and (5) that the
taking be accomplished without the use of violence against or
intimidation of persons or force upon things.42
In his commentaries, Judge Guevarra traces the history of the
definition of theft, which under early Roman law as defined by Gaius,
was so broad enough as to encompass "any kind of physical handling
of property belonging to another against the will of the owner,"43 a
definition similar to that by Paulus that a thief "handles (touches,
moves) the property of another."44 However, with the Institutes of
Justinian, the idea had taken hold that more than mere physical
handling, there must further be an intent of acquiring gain from the
object, thus: "[f]urtum est contrectatio rei fraudulosa, lucri faciendi
causa vel ipsius rei, vel etiam usus ejus possessinisve."45 This
requirement of animo lucrandi, or intent to gain, was maintained in
both the Spanish and Filipino penal laws, even as it has since been
abandoned in Great Britain.46
In Spanish law, animo lucrandi was compounded with
apoderamiento, or "unlawful taking," to characterize theft. Justice
Regalado notes that the concept of apoderamiento once had a
controversial interpretation and application. Spanish law had already
discounted the belief that mere physical taking was constitutive of
apoderamiento, finding that it had to be coupled with "the intent to
appropriate the object in order to constitute apoderamiento; and to
appropriate means to deprive the lawful owner of the
thing."47 However, a conflicting line of cases decided by the Court of
Appeals ruled, alternatively, that there must be permanency in the
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
disturbance of the proprietary rights of the owner already constituted
apoderamiento.50 Ultimately, as Justice Regalado notes, the Court
adopted the latter thought that there was no need of an intent to
permanently deprive the owner of his property to constitute an
unlawful taking.51
So long as the "descriptive" circumstances that qualify the taking are
present, including animo lucrandi and apoderamiento, the
completion of the operative act that is the taking of personal property
of another establishes, at least, that the transgression went beyond
the attempted stage. As applied to the present case, the moment
petitioner obtained physical possession of the cases of detergent and
loaded them in the pushcart, such seizure motivated by intent to gain,
completed without need to inflict violence or intimidation against
persons nor force upon things, and accomplished without the consent
of the SM Super Sales Club, petitioner forfeited the extenuating
benefit a conviction for only attempted theft would have afforded
him.
On the critical question of whether it was consummated or frustrated
theft, we are obliged to apply Article 6 of the Revised Penal Code to
ascertain the answer. Following that provision, the theft would have
been frustrated only, once the acts committed by petitioner, if
ordinarily sufficient to produce theft as a consequence, "do not
produce [such theft] by reason of causes independent of the will of
the perpetrator." There are clearly two determinative factors to
consider: that the felony is not "produced," and that such failure is
due to causes independent of the will of the perpetrator. The second
factor ultimately depends on the evidence at hand in each particular
case. The first, however, relies primarily on a doctrinal definition
attaching to the individual felonies in the Revised Penal Code52 as to
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
frustrated, it is necessary to inquire as to how exactly is the felony of
theft "produced." Parsing through the statutory definition of theft
under Article 308, there is one apparent answer provided in the
language of the law that theft is already "produced" upon the
"tak[ing of] personal property of another without the latters
consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a customs
inspector was charged with theft after he abstracted a leather belt
from the baggage of a foreign national and secreted the item in his
desk at the Custom House. At no time was the accused able to "get
the merchandise out of the Custom House," and it appears that he
"was under observation during the entire transaction." 54 Based
apparently on those two circumstances, the trial court had found him
guilty, instead, of frustrated theft. The Court reversed, saying that
neither circumstance was decisive, and holding instead that the
accused was guilty of consummated theft, finding that "all the
elements of the completed crime of theft are present."55 In support
of its conclusion that the theft was consummated, the Court cited
three (3) decisions of the Supreme Court of Spain, the discussion of
which we replicate below:
The defendant was charged with the theft of some fruit from the land
of another. As he was in the act of taking the fruit[,] he was seen by a
policeman, yet it did not appear that he was at that moment caught
by the policeman but sometime later. The court said: "[x x x] The trial
court did not err [x x x ] in considering the crime as that of
consummated theft instead of frustrated theft inasmuch as nothing
appears in the record showing that the policemen who saw the
accused take the fruit from the adjoining land arrested him in the act
and thus prevented him from taking full possession of the thing stolen
and even its utilization by him for an interval of time." (Decision of the
Supreme Court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter
was hearing mass in a church. The latter on account of the solemnity
of the act, although noticing the theft, did not do anything to prevent
it. Subsequently, however, while the defendant was still inside the
church, the offended party got back the money from the defendant.
The court said that the defendant had performed all the acts of
execution and considered the theft as consummated. (Decision of the
Supreme Court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by
means of a key opened up a case, and from the case took a small box,
which was also opened with a key, from which in turn he took a purse
containing 461 reales and 20 centimos, and then he placed the money
over the cover of the case; just at this moment he was caught by two
guards who were stationed in another room near-by. The court
considered this as consummated robbery, and said: "[x x x] The
accused [x x x] having materially taken possession of the money from
the moment he took it from the place where it had been, and having
taken it with his hands with intent to appropriate the same, he
executed all the acts necessary to constitute the crime which was
thereby produced; only the act of making use of the thing having been
frustrated, which, however, does not go to make the elements of the
consummated crime." (Decision of the Supreme Court of Spain, June
13, 1882.)56
It is clear from the facts of Adiao itself, and the three (3) Spanish
decisions cited therein, that the criminal actors in all these cases had
been able to obtain full possession of the personal property prior to
their apprehension. The interval between the commission of the acts
of theft and the apprehension of the thieves did vary, from "sometime
later" in the 1898 decision; to the very moment the thief had just
extracted the money in a purse which had been stored as it was in the
1882 decision; and before the thief had been able to spirit the item
stolen from the building where the theft took place, as had happened
in Adiao and the 1897 decision. Still, such intervals proved of no
consequence in those cases, as it was ruled that the thefts in each of
those cases was consummated by the actual possession of the
property belonging to another.
In 1929, the Court was again confronted by a claim that an accused
was guilty only of frustrated rather than consummated theft. The case
is People v. Sobrevilla,57 where the accused, while in the midst of a
crowd in a public market, was already able to abstract a pocketbook
from the trousers of the victim when the latter, perceiving the theft,
"caught hold of the [accused]s shirt-front, at the same time shouting
for a policeman; after a struggle, he recovered his pocket-book and
let go of the defendant, who was afterwards caught by a
policeman."58 In rejecting the contention that only frustrated theft
was established, the Court simply said, without further comment or
elaboration:
We believe that such a contention is groundless. The [accused]
succeeded in taking the pocket-book, and that determines the crime
of theft. If the pocket-book was afterwards recovered, such recovery
does not affect the [accuseds] criminal liability, which arose from the
[accused] having succeeded in taking the pocket-book.59
If anything, Sobrevilla is consistent with Adiao and the Spanish
Supreme Court cases cited in the latter, in that the fact that the
offender was able to succeed in obtaining physical possession of the
stolen item, no matter how momentary, was able to consummate the
theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited
therein contradict the position of petitioner in this case. Yet to simply
affirm without further comment would be disingenuous, as there is
another school of thought on when theft is consummated, as
reflected in the Dio and Flores decisions.
Dio was decided by the Court of Appeals in 1949, some 31 years after
Adiao and 15 years before Flores. The accused therein, a driver
employed by the United States Army, had driven his truck into the
port area of the South Harbor, to unload a truckload of materials to
waiting U.S. Army personnel. After he had finished unloading, accused
drove away his truck from the Port, but as he was approaching a
checkpoint of the Military Police, he was stopped by an M.P. who
inspected the truck and found therein three boxes of army rifles. The
accused later contended that he had been stopped by four men who
had loaded the boxes with the agreement that they were to meet him
and retrieve the rifles after he had passed the checkpoint. The trial
court convicted accused of consummated theft, but the Court of
Appeals modified the conviction, holding instead that only frustrated
theft had been committed.
In doing so, the appellate court pointed out that the evident intent of
the accused was to let the boxes of rifles "pass through the
checkpoint, perhaps in the belief that as the truck had already
unloaded its cargo inside the depot, it would be allowed to pass
through the check point without further investigation or
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checking."60 This point was deemed material and indicative that the
theft had not been fully produced, for the Court of Appeals
pronounced that "the fact determinative of consummation is the
ability of the thief to dispose freely of the articles stolen, even if it
were more or less momentary."61 Support for this proposition was
drawn from a decision of the Supreme Court of Spain dated 24
January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea
determinate de la consumacion del delito de hurto es preciso que so
haga en circunstancias tales que permitan al sustractor la libre
disposicion de aquella, siquiera sea mas o menos momentaneamente,
pues de otra suerte, dado el concepto del delito de hurto, no puede
decirse en realidad que se haya producido en toda su extension, sin
materializar demasiado el acto de tomar la cosa ajena.62
Integrating these considerations, the Court of Appeals then
concluded:
This court is of the opinion that in the case at bar, in order to make
the booty subject to the control and disposal of the culprits, the
articles stolen must first be passed through the M.P. check point, but
since the offense was opportunely discovered and the articles seized
after all the acts of execution had been performed, but before the
loot came under the final control and disposal of the looters, the
offense can not be said to have been fully consummated, as it was
frustrated by the timely intervention of the guard. The offense
committed, therefore, is that of frustrated theft.63
Dio thus laid down the theory that the ability of the actor to freely
dispose of the items stolen at the time of apprehension is
determinative as to whether the theft is consummated or frustrated.
This theory was applied again by the Court of Appeals some 15 years
later, in Flores, a case which according to the division of the court that
decided it, bore "no substantial variance between the circumstances
[herein] and in [Dio]."64 Such conclusion is borne out by the facts in
Flores. The accused therein, a checker employed by the Luzon
Stevedoring Company, issued a delivery receipt for one empty sea van
to the truck driver who had loaded the purportedly empty sea van
onto his truck at the terminal of the stevedoring company. The truck
driver proceeded to show the delivery receipt to the guard on duty at
the gate of the terminal. However, the guards insisted on inspecting
the van, and discovered that the "empty" sea van had actually
contained other merchandise as well.65 The accused was prosecuted
for theft qualified by abuse of confidence, and found himself
convicted of the consummated crime. Before the Court of Appeals,
accused argued in the alternative that he was guilty only of attempted
theft, but the appellate court pointed out that there was no
intervening act of spontaneous desistance on the part of the accused
that "literally frustrated the theft." However, the Court of Appeals,
explicitly relying on Dio, did find that the accused was guilty only of
frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found "no substantial
variance" between Dio and Flores then before it. The prosecution
in Flores had sought to distinguish that case from Dio, citing a
"traditional ruling" which unfortunately was not identified in the
decision itself. However, the Court of Appeals pointed out that the
said "traditional ruling" was qualified by the words "is placed in a
situation where [the actor] could dispose of its contents at
once."66 Pouncing on this qualification, the appellate court noted that
"[o]bviously, while the truck and the van were still within the
compound, the petitioner could not have disposed of the goods at
once." At the same time, the Court of Appeals conceded that "[t]his
is entirely different from the case where a much less bulk and more
common thing as money was the object of the crime, where freedom
to dispose of or make use of it is palpably less restricted,"67 though no
further qualification was offered what the effect would have been
had that alternative circumstance been present instead.
Synthesis of the Dio and Flores rulings is in order. The determinative
characteristic as to whether the crime of theft was produced is the
ability of the actor "to freely dispose of the articles stolen, even if it
were only momentary." Such conclusion was drawn from an 1888
decision of the Supreme Court of Spain which had pronounced that in
determining whether theft had been consummated, "es preciso que
so haga en circunstancias tales que permitan al sustractor de aquella,
siquiera sea mas o menos momentaneamente." The qualifier
"siquiera sea mas o menos momentaneamente" proves another
important consideration, as it implies that if the actor was in a
capacity to freely dispose of the stolen items before apprehension,
then the theft could be deemed consummated. Such circumstance
was not present in either Dio or Flores, as the stolen items in both
cases were retrieved from the actor before they could be physically
extracted from the guarded compounds from which the items were
filched. However, as implied in Flores, the character of the item stolen
could lead to a different conclusion as to whether there could have
been "free disposition," as in the case where the chattel involved was
of "much less bulk and more common x x x, [such] as money x x x."68
In his commentaries, Chief Justice Aquino makes the following
pointed observation on the import of the Dio ruling:
There is a ruling of the Court of Appeals that theft is consummated
when the thief is able to freely dispose of the stolen articles even if it
were more or less momentary. Or as stated in another case[69 ], theft
is consummated upon the voluntary and malicious taking of property
belonging to another which is realized by the material occupation of
the thing whereby the thief places it under his control and in such a
situation that he could dispose of it at once. This ruling seems to have
been based on Viadas opinion that in order the theft may be
consummated, "es preciso que se haga en circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino, concluding from
Adiao and other cases, also states that "[i]n theft or robbery the crime
is consummated after the accused had material possession of the
thing with intent to appropriate the same, although his act of making
use of the thing was frustrated."72
There are at least two other Court of Appeals rulings that are at
seeming variance with the Dio and Flores rulings. People v.
Batoon73 involved an accused who filled a container with gasoline
from a petrol pump within view of a police detective, who followed
the accused onto a passenger truck where the arrest was made. While
the trial court found the accused guilty of frustrated qualified theft,
the Court of Appeals held that the accused was guilty of
consummated qualified theft, finding that "[t]he facts of the cases of
U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual
taking with intent to gain is enough to consummate the crime of
theft."74
In People v. Espiritu,75 the accused had removed nine pieces of
hospital linen from a supply depot and loaded them onto a truck.
However, as the truck passed through the checkpoint, the stolen
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items were discovered by the Military Police running the checkpoint.
Even though those facts clearly admit to similarity with those in Dio,
the Court of Appeals held that the accused were guilty of
consummated theft, as the accused "were able to take or get hold of
the hospital linen and that the only thing that was frustrated, which
does not constitute any element of theft, is the use or benefit that the
thieves expected from the commission of the offense."76
In pointing out the distinction between Dio and Espiritu, Reyes wryly
observes that "[w]hen the meaning of an element of a felony is
controversial, there is bound to arise different rulings as to the stage
of execution of that felony."77 Indeed, we can discern from this survey
of jurisprudence that the state of the law insofar as frustrated theft is
concerned is muddled. It fact, given the disputed foundational basis
of the concept of frustrated theft itself, the question can even be
asked whether there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty
of frustrated, and not consummated, theft. As we undertake this
inquiry, we have to reckon with the import of this Courts 1984
decision in Empelis v. IAC.78
As narrated in Empelis, the owner of a coconut plantation had espied
four (4) persons in the premises of his plantation, in the act of
gathering and tying some coconuts. The accused were surprised by
the owner within the plantation as they were carrying with them the
coconuts they had gathered. The accused fled the scene, dropping the
coconuts they had seized, and were subsequently arrested after the
owner reported the incident to the police. After trial, the accused
were convicted of qualified theft, and the issue they raised on appeal
was that they were guilty only of simple theft. The Court affirmed that
the theft was qualified, following Article 310 of the Revised Penal
Code,79 but further held that the accused were guilty only of
frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether
the theft was consummated or frustrated was raised by any of the
parties. What does appear, though, is that the disposition of that issue
was contained in only two sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft
because petitioners were not able to perform all the acts of execution
which should have produced the felony as a consequence. They were
not able to carry the coconuts away from the plantation due to the
timely arrival of the owner.80
No legal reference or citation was offered for this averment, whether
Dio, Flores or the Spanish authorities who may have bolstered the
conclusion. There are indeed evident problems with this formulation
in Empelis.
Empelis held that the crime was only frustrated because the actors
"were not able to perform all the acts of execution which should have
produced the felon as a consequence."81 However, per Article 6 of the
Revised Penal Code, the crime is frustrated "when the offender
performs all the acts of execution," though not producing the felony
as a result. If the offender was not able to perform all the acts of
execution, the crime is attempted, provided that the non-
performance was by reason of some cause or accident other than
spontaneous desistance. Empelis concludes that the crime was
frustrated because not all of the acts of execution were performed
due to the timely arrival of the owner. However, following Article 6 of
the Revised Penal Code, these facts should elicit the conclusion that
the crime was only attempted, especially given that the acts were not
performed because of the timely arrival of the owner, and not
because of spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we
consider the present petition. Even if the two sentences we had cited
actually aligned with the definitions provided in Article 6 of the
Revised Penal Code, such passage bears no reflection that it is the
product of the considered evaluation of the relevant legal or
jurisprudential thought. Instead, the passage is offered as if it were
sourced from an indubitable legal premise so settled it required no
further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even
cited as authority on theft. Indeed, we cannot see how Empelis can
contribute to our present debate, except for the bare fact that it
proves that the Court had once deliberately found an accused guilty
of frustrated theft. Even if Empelis were considered as a precedent
for frustrated theft, its doctrinal value is extremely compromised by
the erroneous legal premises that inform it, and also by the fact that
it has not been entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given
that frustrated theft is viable in this jurisdiction. Considering the
flawed reasoning behind its conclusion of frustrated theft, it cannot
present any efficacious argument to persuade us in this case. Insofar
as Empelis may imply that convictions for frustrated theft are beyond
cavil in this jurisdiction, that decision is subject to reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870
Codigo Penal de Espaa was then in place. The definition of the crime
of theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las
personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
voluntad de su dueo.
2. Los que encontrndose una cosa perdida y sabiendo quin es su
dueo se la apropriaren co intencin de lucro.
3. Los daadores que sustrajeren o utilizaren los frutos u objeto del
dao causado, salvo los casos previstos en los artculos 606, nm. 1.0;
607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo
del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited
Spanish Supreme Court decisions were handed down. However, the
said code would be revised again in 1932, and several times
thereafter. In fact, under the Codigo Penal Espaol de 1995, the crime
of theft is now simply defined as "[e]l que, con nimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueo ser
castigado"82
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Notice that in the 1870 and 1995 definition of theft in the penal code
of Spain, "la libre disposicion" of the property is not an element or a
statutory characteristic of the crime. It does appear that the principle
originated and perhaps was fostered in the realm of Spanish
jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his
1926 commentaries on the 1870 Codigo Penal de Espaa. Therein, he
raised at least three questions for the reader whether the crime of
frustrated or consummated theft had occurred. The passage cited in
Dio was actually utilized by Viada to answer the question whether
frustrated or consummated theft was committed "[e]l que en el
momento mismo de apoderarse de la cosa ajena, vindose
sorprendido, la arroja al suelo."83 Even as the answer was as stated in
Dio, and was indeed derived from the 1888 decision of the Supreme
Court of Spain, that decisions factual predicate occasioning the
statement was apparently very different from Dio, for it appears that
the 1888 decision involved an accused who was surprised by the
employees of a haberdashery as he was abstracting a layer of clothing
off a mannequin, and who then proceeded to throw away the
garment as he fled.84
Nonetheless, Viada does not contest the notion of frustrated theft,
and willingly recites decisions of the Supreme Court of Spain that have
held to that effect.85 A few decades later, the esteemed Eugenio
Cuello Caln pointed out the inconsistent application by the Spanish
Supreme Court with respect to frustrated theft.
Hay frustracin cuando los reos fueron sorprendidos por las guardias
cuando llevaban los sacos de harino del carro que los conducia a otro
que tenan preparado, 22 febrero 1913; cuando el resultado no tuvo
efecto por la intervencin de la policia situada en el local donde se
realiz la sustraccin que impidi pudieran los reos disponer de lo
sustrado, 30 de octubre 1950. Hay "por lo menos" frustracin, si
existe apoderamiento, pero el culpale no llega a disponer de la cosa,
12 abril 1930; hay frustracin "muy prxima" cuando el culpable es
detenido por el perjudicado acto seguido de cometer la sustraccin,
28 febrero 1931. Algunos fallos han considerado la existencia de
frustracin cuando, perseguido el culpable o sorprendido en el
momento de llevar los efectos hurtados, los abandona, 29 mayo 1889,
22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible,
stos, conforme a lo antes expuesto, son hurtos consumados.86
Ultimately, Cuello Caln attacked the very idea that frustrated theft is
actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se
consuma cuando la cosa queda de hecho a la disposicin del agente.
Con este criterio coincide la doctrina sentada ltimamente porla
jurisprudencia espaola que generalmente considera consumado el
hurto cuando el culpable coge o aprehende la cosa y sta quede por
tiempo ms o menos duradero bajo su poder. El hecho de que ste
pueda aprovecharse o no de lo hurtado es indiferente. El delito no
pierde su carcter de consumado aunque la cosa hurtada sea
devuelta por el culpable o fuere recuperada. No se concibe la
frustracin, pues es muy dificil que el que hace cuanto es necesario
para la consumacin del hurto no lo consume efectivamente, los raros
casos que nuestra jurisprudencia, muy vacilante, declara hurtos
frustrados son verdaderos delitos consumados.87 (Emphasis supplied)
Cuello Calns submissions cannot be lightly ignored. Unlike Viada,
who was content with replicating the Spanish Supreme Court
decisions on the matter, Cuello Caln actually set forth his own
thought that questioned whether theft could truly be frustrated, since
"pues es muy dificil que el que hace cuanto es necesario para la
consumacin del hurto no lo consume efectivamente." Otherwise
put, it would be difficult to foresee how the execution of all the acts
necessary for the completion of the crime would not produce the
effect of theft.
This divergence of opinion convinces us, at least, that there is no
weighted force in scholarly thought that obliges us to accept
frustrated theft, as proposed in Dio and Flores. A final ruling by the
Court that there is no crime of frustrated theft in this jurisdiction will
not lead to scholastic pariah, for such a submission is hardly heretical
in light of Cuello Calns position.
Accordingly, it would not be intellectually disingenuous for the Court
to look at the question from a fresh perspective, as we are not bound
by the opinions of the respected Spanish commentators, conflicting
as they are, to accept that theft is capable of commission in its
frustrated stage. Further, if we ask the question whether there is a
mandate of statute or precedent that must compel us to adopt the
Dio and Flores doctrines, the answer has to be in the negative. If we
did so, it would arise not out of obeisance to an inexorably higher
command, but from the exercise of the function of statutory
interpretation that comes as part and parcel of judicial review, and a
function that allows breathing room for a variety of theorems in
competition until one is ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that
it lies in the province of the legislature, through statute, to define
what constitutes a particular crime in this jurisdiction. It is the
legislature, as representatives of the sovereign people, which
determines which acts or combination of acts are criminal in nature.
Judicial interpretation of penal laws should be aligned with what was
the evident legislative intent, as expressed primarily in the language
of the law as it defines the crime. It is Congress, not the courts, which
is to define a crime, and ordain its punishment. 88 The courts cannot
arrogate the power to introduce a new element of a crime which was
unintended by the legislature, or redefine a crime in a manner that
does not hew to the statutory language. Due respect for the
prerogative of Congress in defining crimes/felonies constrains the
Court to refrain from a broad interpretation of penal laws where a
"narrow interpretation" is appropriate. "The Court must take heed of
language, legislative history and purpose, in order to strictly
determine the wrath and breath of the conduct the law forbids."89
With that in mind, a problem clearly emerges with
the Dio/Flores dictum. The ability of the offender to freely dispose
of the property stolen is not a constitutive element of the crime of
theft. It finds no support or extension in Article 308, whether as a
descriptive or operative element of theft or as the mens rea or actus
reus of the felony. To restate what this Court has repeatedly held: the
elements of the crime of theft as provided for in Article 308 of the
Revised Penal Code are: (1) that there be taking of personal property;
(2) that said property belongs to another; (3) that the taking be done
with intent to gain; (4) that the taking be done without the consent of
the owner; and (5) that the taking be accomplished without the use
of violence against or intimidation of persons or force upon things.90
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Such factor runs immaterial to the statutory definition of theft, which
is the taking, with intent to gain, of personal property of another
without the latters consent. While the Dio/Flores dictum is
considerate to the mindset of the offender, the statutory definition of
theft considers only the perspective of intent to gain on the part of
the offender, compounded by the deprivation of property on the part
of the victim.
For the purpose of ascertaining whether theft is susceptible of
commission in the frustrated stage, the question is again, when is the
crime of theft produced? There would be all but certain unanimity in
the position that theft is produced when there is deprivation of
personal property due to its taking by one with intent to gain. Viewed
from that perspective, it is immaterial to the product of the felony
that the offender, once having committed all the acts of execution for
theft, is able or unable to freely dispose of the property stolen since
the deprivation from the owner alone has already ensued from such
acts of execution. This conclusion is reflected in Chief Justice Aquinos
commentaries, as earlier cited, that "[i]n theft or robbery the crime is
consummated after the accused had material possession of the thing
with intent to appropriate the same, although his act of making use
of the thing was frustrated."91
It might be argued, that the ability of the offender to freely dispose of
the property stolen delves into the concept of "taking" itself, in that
there could be no true taking until the actor obtains such degree of
control over the stolen item. But even if this were correct, the effect
would be to downgrade the crime to its attempted, and not frustrated
stage, for it would mean that not all the acts of execution have not
been completed, the "taking not having been accomplished." Perhaps
this point could serve as fertile ground for future discussion, but our
concern now is whether there is indeed a crime of frustrated theft,
and such consideration proves ultimately immaterial to that question.
Moreover, such issue will not apply to the facts of this particular case.
We are satisfied beyond reasonable doubt that the taking by the
petitioner was completed in this case. With intent to gain, he acquired
physical possession of the stolen cases of detergent for a considerable
period of time that he was able to drop these off at a spot in the
parking lot, and long enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or
apoderamiento, is deemed complete from the moment the offender
gains possession of the thing, even if he has no opportunity to dispose
of the same.92 And long ago, we asserted in People v. Avila:93
x x x [T]he most fundamental notion in the crime of theft is the taking
of the thing to be appropriated into the physical power of the thief,
which idea is qualified by other conditions, such as that the taking
must be effected animo lucrandi and without the consent of the
owner; and it will be here noted that the definition does not require
that the taking should be effected against the will of the owner but
merely that it should be without his consent, a distinction of no slight
importance.94
Insofar as we consider the present question, "unlawful taking" is most
material in this respect. Unlawful taking, which is the deprivation of
ones personal property, is the element which produces the felony in
its consummated stage. At the same time, without unlawful taking as
an act of execution, the offense could only be attempted theft, if at
all.
With these considerations, we can only conclude that under Article
308 of the Revised Penal Code, theft cannot have a frustrated stage.
Theft can only be attempted or consummated.
Neither Dio nor Flores can convince us otherwise. Both fail to
consider that once the offenders therein obtained possession over
the stolen items, the effect of the felony has been produced as there
has been deprivation of property. The presumed inability of the
offenders to freely dispose of the stolen property does not negate the
fact that the owners have already been deprived of their right to
possession upon the completion of the taking.
Moreover, as is evident in this case, the adoption of the rule that
the inability of the offender to freely dispose of the stolen property
frustrates the theft would introduce a convenient defense for the
accused which does not reflect any legislated intent,95 since the Court
would have carved a viable means for offenders to seek a mitigated
penalty under applied circumstances that do not admit of easy
classification. It is difficult to formulate definite standards as to when
a stolen item is susceptible to free disposal by the thief. Would this
depend on the psychological belief of the offender at the time of the
commission of the crime, as implied in Dio?
Or, more likely, the appreciation of several classes of factual
circumstances such as the size and weight of the property, the
location of the property, the number and identity of people present
at the scene of the crime, the number and identity of people whom
the offender is expected to encounter upon fleeing with the stolen
property, the manner in which the stolen item had been housed or
stored; and quite frankly, a whole lot more. Even the fungibility or
edibility of the stolen item would come into account, relevant as that
would be on whether such property is capable of free disposal at any
stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath
all the colorful detail, the owner was indeed deprived of property by
one who intended to produce such deprivation for reasons of gain.
For such will remain the presumed fact if frustrated theft were
recognized, for therein, all of the acts of execution, including the
taking, have been completed. If the facts establish the non-
completion of the taking due to these peculiar circumstances, the
effect could be to downgrade the crime to the attempted stage, as
not all of the acts of execution have been performed. But once all
these acts have been executed, the taking has been completed,
causing the unlawful deprivation of property, and ultimately the
consummation of the theft.
Maybe the Dio/Flores rulings are, in some degree, grounded in
common sense. Yet they do not align with the legislated framework
of the crime of theft. The Revised Penal Code provisions on theft have
not been designed in such fashion as to accommodate said rulings.
Again, there is no language in Article 308 that expressly or impliedly
allows that the "free disposition of the items stolen" is in any way
determinative of whether the crime of theft has been produced. Dio
itself did not rely on Philippine laws or jurisprudence to bolster its
conclusion, and the later Flores was ultimately content in relying on
Dio alone for legal support. These cases do not enjoy the weight of
stare decisis, and even if they did, their erroneous appreciation of our
law on theft leave them susceptible to reversal. The same holds true
of Empilis, a regrettably stray decision which has not since found favor
from this Court.
Compiled by: Vim Malicay
We thus conclude that under the Revised Penal Code, there is no
crime of frustrated theft. As petitioner has latched the success of his
appeal on our acceptance of the Dio and Flores rulings, his petition
must be denied, for we decline to adopt said rulings in our jurisdiction.
That it has taken all these years for us to recognize that there can be
no frustrated theft under the Revised Penal Code does not detract
from the correctness of this conclusion. It will take considerable
amendments to our Revised Penal Code in order that frustrated theft
may be recognized. Our deference to Viada yields to the higher
reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
CANCERAN VS PEOPLE
(761 SCRA 293)
MENDOZA, J.:
This is a petition for review on certiorari seeking to reverse and set
aside the August 10, 2012 Decision1 and the March 7, 2013
Resolution2 of the Court of Appeals (CA), in CA-G.R. CR No. 00559,
which affirmed and modified the September 20, 2007 Judgment 3 of
the Regional Trial Court, Branch 39, Misamis Oriental, Cagayan de Oro
City (RTC), in Criminal Case No. 2003-141, convicting petitioner Jovito
Canceran (Canceran) for consummated Theft.
The records disclose that Canceran, together with Frederick Vequizo
and Marcial Diaz, Jr., was charged with "Frustrated Theft." The
Information reads:
That on or about October 6, 2002, at more or less 12:00 noon, at
Ororama Mega Center Grocery Department, Lapasan, Cagayan de Oro
City, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, Jovito Canceran, conspiring,
confederating together and mutually helping one another with his co-
accused Frederick Vequizo, URC Merchandiser, and Marcial Diaz, Jr.,
a Unilever Philippines merchandiser both of Ororama Mega Center,
with intent to gain and without the knowledge and consent of the
owner thereof, did then and there wilfully, unlawfully and feloniously
take, steal and carry away 14 cartons of Ponds White Beauty Cream
valued at P28,627,20, belonging to Ororama Mega Center,
represented by William Michael N. Arcenio, thus, performing all the
acts of execution which would produce the crime of theft as a
consequence but, nevertheless, did not produce it by reason of some
cause independent of accuseds will, that is, they were discovered by
the employees of Ororama Mega Center who prevented them from
further carrying away said 14 cartons of Ponds White Beauty Cream,
to the damage and prejudice of the Ororama Mega Center.
Article 308 in relation to Article 309, and 6 of the Revised Penal Code.4
Version of the Prosecution
To prove the guilt of the accused, the prosecution presented Damalito
Ompoc (Ompoc),a security guard; and William Michael N. Arcenio
(Arcenio), the Customer Relation Officer of Ororama Mega Center
(Ororama),as its witnesses. Through their testimonies, the
prosecution established that on or about October 6, 2002, Ompoc
saw Canceran approach one of the counters in Ororama; that
Canceran was pushing a cart which contained two boxes of Magic
Flakes for which he paid P1,423.00; that Ompoc went to the packer
and asked if the boxes had been checked; that upon inspection by
Ompoc and the packer, they found out that the contents of the two
boxes were not Magic Flakes biscuits, but 14 smaller boxes of Ponds
White Beauty Cream worth P28,627.20; that Canceran hurriedly left
and a chase ensued; that upon reaching the Don Mariano gate,
Canceran stumbled as he attempted to ride a jeepney; that after
being questioned, he tried to settle with the guards and even offered
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
the office of Arcenio.5
Version of the Defense
Canceran vehemently denied the charges against him. He claimed
that he was a promo merchandiser of La Tondea, Inc. and that on
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
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
gavehim P1,440.00 for payment of two boxes labelled Magic Flakes;
that he obliged with the request of the unnamed person because he
was struck by his conscience; that he denied knowing the contents of
the said two boxes; that after paying at the cashier, he went out of
Ororama towards Limketkai to take a jeepney; that three persons ran
after him, and he was caught; that he was brought to the 4th floor of
Ororama, where he was mauled and kicked by one of those who
chased him; that they took his Nokia 5110 cellular phone and cash
amounting to P2,500.00; and that Ompoc took his Seiko watch and
ring, while a certain Amion took his necklace.6
Canceran further claimed that an earlier Information for theft was
already filed on October 9,2002 which was eventually dismissed. In
January 2003, a second Information was filed for the same offense
over the same incident and became the subject of the present case.7
The Ruling of the Regional Trial Court
In its Judgment, dated September 20, 2007, the RTC found Canceran
guilty beyond reasonable doubt of consummated Theft in line with
the ruling of the Court in Valenzuela v. People8 that under Article 308
of the Revised Penal Code (RPC),there is no crime of "Frustrated
Theft." Canceran was sentenced to suffer the indeterminate penalty
of imprisonment from ten (10) years and one (1) day to ten (10) years,
eight (8) months of prision mayor, as minimum, to fourteen (14)
years, eight (8) months of reclusion temporal, as maximum.9
The RTC wrote that Cancerans denial deserved scant consideration
because it was not supported by sufficient and convincing evidence
and no disinterested witness was presented to corroborate his claims.
As such, his denial was considered self-serving and deserved no
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
Paderanga was already dismissed, was not persuasive. The dismissal
was merely a release order signed by the Clerk of Court because he
had posted bail.10
The Ruling of the Court of Appeals
Aggrieved, Canceran filed an appeal where he raised the issue of
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
jeopardy never attached.11
The CA also debunked Cancerans contention that there was no taking
because he merely pushed the cart loaded with goods to the cashiers
booth for payment and stopped there. The appellate court held that
unlawful taking was deemed complete from the moment the offender
gained possession of the thing, even if he had no opportunity to
dispose of the same.12
The CA affirmed with modification the September 20, 2007 judgment
of the RTC, reducing the penalty ranging from two (2) years, four (4)
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
maximum. Canceran moved for the reconsideration of the said
decision, but his motion was denied by the CA in its March 7, 2013
resolution.
Hence, this petition.
As can be synthesized from the petition and other pleadings, the
following are the issues: 1] whether Canceran should be acquitted in
the crime of theft as it was not charged in the information; and 2]
whether there was double jeopardy.
Canceran argues that the CA erred in affirming his conviction. He
insists that there was already double jeopardy as the first criminal
case for theft was already dismissed and yet he was convicted in the
second case. Canceran also contends that there was no taking of the
Ponds cream considering that "the information in Criminal Case No.
2003-141 admits the act of the petitioner did not produce the crime
of theft."13 Thus, absent the element of taking, the felony of theft was
never proved.
Comment,14
In its the Office of the Solicitor General (OSG)contended
that there was no double jeopardy as the first jeopardy never
attached. The trial court dismissed the case even before Canceran
could enter a plea during the scheduled arraignment for the first case.
Further, the prosecution proved that all the elements of theft were
present in this case.
In his Reply,15 Canceran averred that when the arraignment of the
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
or the evidence lacked the element to constitute the crime of theft.
He also stressed that there was no unlawful taking as the items were
assessed and paid for.
The Court's Ruling
The Court finds the petition partially meritorious.
Constitutional Right of the Accused to be Informed of the Nature and
Cause of Accusation against Him.
No less than the Constitution guarantees the right of every person
accused in a criminal prosecution to be informed of the nature and
cause of accusation against him.16 It is fundamental that every
element of which the offense is composed must be alleged in the
complaint or information. The main purpose of requiring the various
elements of a crime to be set out in the information is to enable the
accused to suitably prepare his defense. He is presumed to have no
independent knowledge of the facts that constitute the offense. 17
Under Article 308 of the RPC, the essential elements of theft are (1)
the taking of personal property; (2) the property belongs to another;
(3) the taking away was done with intent of gain; (4) the taking away
was done without the consent of the owner; and (5) the taking away
is accomplished without violence or intimidation against person or
force upon things. "Unlawful taking, which is the deprivation of ones
personal property, is the element which produces the felony in its
consummated stage. At the same time, without unlawful taking as an
act of execution, the offense could only be attempted theft, if at all."18
"It might be argued, that the ability of the offender to freely dispose
of the property stolen delves into the concept of taking itself, in that
there could be no true taking until the actor obtains such degree of
control over the stolen item. But even if this were correct, the effect
would be to downgrade the crime to its attempted, and not frustrated
stage, for it would mean that not all the acts of execution have not
been completed, the "taking not having been accomplished."19
A careful reading of the allegations in the Information would show
that Canceran was charged with "Frustrated Theft" only. Pertinent
parts of the Information read:
x x x did then and there wilfully, unlawfully and feloniously take, steal
and carry away 14 cartons of Ponds White Beauty Cream valued
at P28,627,20, belonging to Ororama Mega Center, represented by
William Michael N. Arcenio, thus performing all the acts of execution
which would produce the crime of theft as a consequence, but
nevertheless, did not produce it by reason of some cause
independent of accuseds will x x x.
[Emphasis and Underscoring Supplied]
As stated earlier, there is no crime of Frustrated Theft. The
Information can never be read to charge Canceran of consummated
Theft because the indictment itself stated that the crime was never
produced. Instead, the Information should be construed to mean that
Canceran was being charged with theft in its attempted stage only.
Necessarily, Canceran may only be convicted of the lesser crime of
Attempted Theft.
"[A]n accused cannot be convicted of a higher offense than that with
which he was charged in the complaint or information and on which
he was tried. It matters not how conclusive and convincing the
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
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
that charged in the complaint or information on which he is tried
would be an unauthorized denial of that right."20 Indeed, an accused
cannot be convicted of a crime, even if duly proven, unless it is alleged
or necessarily included in the information filed against him.21 An
offense charged necessarily includes the offense proved when some
of the essential elements or ingredients of the former, as alleged in
the complaint or information, constitute the latter.22
The crime of theft in its consummated stage undoubtedly includes the
crime in its attempted stage. In this case, although the evidence
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
overwhelming evidence to convict him for consummated Theft,
because the Information did not charge him with consummated
Theft, the Court cannot do so as the same would violate his right to
be informed of the nature and cause of the allegations against him, as
he so protests.
The Court is not unmindful of the rule that "the real nature of the
criminal charge is determined, not from the caption or preamble of
the information nor from the specification of the law alleged to have
been violated these being conclusions of law but by the actual
recital of facts in the complaint or information."23 In the case of
Domingo v. Rayala,24 it was written:
What is controlling is not the title of the complaint, nor the
designation of the offense charged or the particular law or part
thereof allegedly violated, these being mere conclusions of law made
by the prosecutor, but the description of the crime charged and the
particular facts therein recited. The acts or omissions complained of
must be alleged in such form as is sufficient to enable a person of
common understanding to know what offense is intended to be
charged, and enable the court to pronounce proper judgment. No
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
offense must be stated in the information. What facts and
circumstances are necessary to be included therein must be
determined by reference to the definitions and essentials of the
specified crimes. The requirement of alleging the elements of a crime
in the information is to inform the accused of the nature of the
accusation against him so as to enable him to suitably prepare his
defense.25
In the subject information, the designation of the prosecutor of the
offense, which was "Frustrated Theft," may be just his conclusion.
Nevertheless, the fact remains that the charge was qualified by the
additional allegation, "but, nevertheless, did not produce it by reason
of some cause independent of accuseds will, that is, they were
discovered by the employees of Ororama Mega Center who
prevented them from further carrying away said 14 cartons of Ponds
White Beauty Cream, x x x.26 This averment, which could also be
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
informed that the charge against him was consummated theft.
No double jeopardy when
the first jeopardy never
attached
Anent the issue of double jeopardy, the Court finds no reason to
deviate from the ruling of the CA.
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
jurisdiction. It means that when a person is charged with an offense
and the case is terminated either by acquittal or conviction or in any
other manner without the consent of the accused, the latter cannot
again be charged with the same or identical offense. This principle is
founded upon the law of reason, justice and conscience. 27
Canceran argues that double jeopardy exists as the first case was
scheduled for arraignment and he, already bonded, was ready to
enter a plea. It was the RTC who decided that there was insufficient
evidence to constitute the crime of theft.
To raise the defense of double jeopardy, three requisites must be
present: (1) a first jeopardy must have attached prior to the second;
(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.
Legal jeopardy attaches only (a) upon a valid indictment, (b) before a
competent court, (c) after arraignment, (d) a valid plea having been
entered; and (e) the case was dismissed or otherwise terminated
without the express consent of the accused.28
Here, the CA correctly observed that Canceran never raised the issue
of double jeopardy before the RTC.1wphi1 Even assuming that he
was able to raise the issue of double jeopardy earlier, the same must
still fail because legal jeopardy did not attach. First, he never entered
a valid plea. He himself admitted that he was just about to enter a
plea, but the first case was dismissed even before he was able to do
so. Second, there was no unconditional dismissal of the complaint.
The case was not terminated by reason of acquittal nor conviction but
simply because he posted bail. Absent these two elements, there can
be no double jeopardy.
Penalty of Attempted Theft
The penalty for consummated theft is prision mayor in its minimum
and medium periods.29 The penalty lower by two degrees than that
prescribed by law for the consummated felony shall be imposed upon
principals in an attempt to commit a felony.30 The basis for reduction
of penalty by two degrees is the penalty prescribed by law for the
consummated crime. Also, when the offenses defined in the RPC are
punished with a penalty composed of two periods, like in the crime of
theft, the penalty lower by one degree is formed by two periods to be
taken from the same penalty prescribed.31
Here, the products stolen were worth P28,627.20. Following Article
309 par. 1 of the RPC, the penalty shall be the maximum period of the
penalty prescribed in. the same paragraph, because the value of the
things stolen exceeded P22,000.00. In other words, a special
aggravating circumstance shall affect the imposable penalty.
Applying the Indeterminate Sentence Law, the minimum penalty
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
Maximum to Prision Correccional Minimum in its maximum period.
WHEREFORE, the petition is PARTIALLY GRANTED. The August 10,
2012 Decision and the March 7, 2013 Resolution of the Court of
Appeals in CA-G.R. CR No. 00559 are hereby MODIFIED, in that, the
Court finds accused Jovito Canceran guilty beyond reasonable doubt
of the crime of Attempted Theft.
Accordingly, the Court sentences the accused to suffer the
indeterminate prison term ranging from Four (4) Months of Arresto
Mayor, as minimum, to Two (2) Years, Four (4) Months of Prision
Correccional, as maximum.
SO ORDERED.
PEOPLE VS ERINA
Compiled by: Vim Malicay
 (50 PHIL 998)
OSTRAND, J.:
This is an appeal from a judgment of the Court of First Instance of
Manila finding the defendant guilty of the crime of consummated
rape and sentencing him to suffer seventeen years, four months and
one day of reclusion temporal, with the accessory penalties provided
by law and to pay the costs.
The victim of the crime was a child of 3 years and 11 months old and
the evidence is conclusive that the defendant endeavored to have
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
physician who examined the genital organ of the child a few hours
after the commission of the crime found a slight inflammation of the
exterior parts of the organ, indicating that an effort had been made
to enter the vagina, but in testifying before the court he expressed
doubts as to whether the entry had been effected. The mother of the
child testified that she found its genital organ covered with a sticky
substance, but that cannot be considered conclusive evidence of
penetration.
It has been suggested that the child was of such tender age that
penetration was impossible; that the crime of rape consequently was
impossible of consummation; and that, therefore, the offense
committed should be treated only as abusos deshonestos. We do not
think so. It is probably true that a complete penetration was
impossible, but such penetration is not essential to the commission of
the crime; it is sufficient if there is a penetration of the labia. In the
case of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L. R. A.,
316) where the offended party was a child of the age of 3 years and 8
months the testimony of several physicians was to the effect that her
labia of the privates of a child of that age can be entered by a man's
male organ to the hymen and the defendant was found guilty of the
consummated crime rape.
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
view of the fact that he was living in the house of the parents of the
child as their guest, the aggravating circumstance of abuse of
confidence existed and the penalty must therefore be imposed in its
maximum degree.
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
prescribed by law, and with the costs in both instances. So ordered.
Johnson, Street, Villamor, Romualdez and Villa-Real, JJ., concur.
Separate Opinions
MALCOLM, J., dissenting:
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.
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.
State (65 L. R. A., 316), cited in the majority decision. In the Kenny
case, the penalty was death, and here for this horrible crime, should
be placed in the maximum degree or seventeen years, four months,
and one day imprisonment, as imposed by the trial court. Accordingly,
my vote is for affirmance of the judgment.
PEOPLE VS ORITA
(G.R. NO. 86164)
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of
rape in Criminal Case No. 83-031-B before the Regional Trial Court,
Branch II, Borongan, Eastern Samar. The information filed in the said
case reads as follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon
prior complaint under oath by the offended party, accuses
CEILITO ORITA alias LITO of the crime of Rape committed as
follows:
That on March 20, 1983, at about 1:30 o'clock in the
morning inside a boarding house at Victoria St., Poblacion,
Borongan, Eastern Samar, Philippines, and within the
jurisdiction of this Honorable Court, above named accused
with lewd designs and by the use of a Batangas knife he
conveniently provided himself for the purpose and with
threats and intimidation, did, then and there wilfully,
unlawfully and feloniously lay with and succeeded in having
sexual intercourse with Cristina S. Abayan against her will
and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to
the offense charged. After the witnesses for the People testified and
the exhibits were formally offered and admitted, the prosecution
rested its case. Thereafter, the defense opted not to present any
exculpatory evidence and instead filed a Motion to Dismiss. On
August 5, 1985, the trial court rendered its decision, the dispositive
portion of which reads (pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of
accused CEILITO ORITA @ LITO, of the crime of Frustrated
Rape (Art. 335, RPC), beyond reasonable doubt, with the
aggravating circumstances of dwelling and nightime (sic)
with no mitigating circumstance to offset the same, and
considering the provisions of the Indeterminate Sentence
Law, imposes on accused an imprisonment of TEN (10)
YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to
TWELVE (12) YEARS PRISION MAYOR, maximum; to
indemnify CRISTINA S. ABAYAN, the amount of Four
Thousand (P4,000.00) Pesos, without subsidiary
imprisonment in case of insolvency, and to pay costs.
SO ORDERED.
Compiled by: Vim Malicay
Not satisfied with the decision, the accused appealed to the Court of
Appeals. On December 29, 1988, the Court of Appeals rendered its
decision, the dispositive portion of which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby
MODIFIED, and the appellant found guilty of the crime of
rape, and consequently, sentenced to suffer imprisonment
of reclusion perpetua and to indemnify the victim in the
amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting
aside its December 29, 1988 decision and forwarded the case to this
Court, considering the provision of Section 9, paragraph 3 of Batas
Pambansa Blg. 129 in conjunction with Section 17, paragraph 3,
subparagraph 1 of the Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as
follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman
student at the St. Joseph's College at Borongan, Eastern
Samar. Appellant was a Philippine Constabulary (PC)
soldier.
In the early morning of March 20, 1983, complainant
arrived at her boarding house. Her classmates had just
brought her home from a party (p. 44, tsn, May 23, 1984).
Shortly after her classmates had left, she knocked at the
door of her boarding house (p. 5, ibid). All of a sudden,
somebody held her and poked a knife to her neck. She then
recognized appellant who was a frequent visitor of another
boarder (pp. 8-9, ibid).
She pleaded with him to release her, but he ordered her to
go upstairs with him. Since the door which led to the first
floor was locked from the inside, appellant forced
complainant to use the back door leading to the second
floor (p. 77, ibid). With his left arm wrapped around her
neck and his right hand poking a "balisong" to her neck,
appellant dragged complainant up the stairs (p. 14, ibid).
When they reached the second floor, he commanded her to
look for a room. With the Batangas knife still poked to her
neck, they entered complainant's room.
Upon entering the room, appellant pushed complainant
who hit her head on the wall. With one hand holding the
knife, appellant undressed himself. He then ordered
complainant to take off her clothes. Scared, she took off her
T-shirt. Then he pulled off her bra, pants and panty (p.
20, ibid).
He ordered her to lie down on the floor and then mounted
her. He made her hold his penis and insert it in her vagina.
She followed his order as he continued to poke the knife to
her. At said position, however, appellant could not fully
penetrate her. Only a portion of his penis entered her as she
kept on moving (p. 23, ibid).
As aforementioned, the trial court convicted the accused of frustrated
rape.
Appellant then lay down on his back and commanded her
to mount him. In this position, only a small part again of his
penis was inserted into her vagina. At this stage, appellant
had both his hands flat on the floor. Complainant thought
of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in.
Appellant pursued her and climbed the partition. When she
saw him inside the room, she ran to another room.
Appellant again chased her. She fled to another room and
jumped out through a window (p. 27, ibid).
Still naked, she darted to the municipal building, which was
about eighteen meters in front of the boarding house, and
knocked on the door. When there was no answer, she ran
around the building and knocked on the back door. When
the policemen who were inside the building opened the
door, they found complainant naked sitting on the stairs
crying. Pat. Donceras, the first policeman to see her, took
off his jacket and wrapped it around her. When they
discovered what happened, Pat. Donceras and two other
policemen rushed to the boarding house. They heard a
sound at the second floor and saw somebody running away.
Due to darkness, they failed to apprehend appellant.
Meanwhile, the policemen brought complainant to the
Eastern Samar Provincial Hospital where she was physically
examined.
Dr. Ma. Luisa Abude, the resident physician who examined
complainant, issued a Medical Certificate (Exhibit "A")
which states:
Physical Examination Patient is fairly built,
came in with loose clothing with no under-
clothes; appears in state of shock, per
unambulatory.
PE Findings Pertinent Findings only.
Neck- Circumscribed hematoma at Ant. neck.
Breast Well developed, conical in shape with
prominent nipples; linear abrasions below (L)
breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L) knees.
Vulva No visible abrasions or marks at the
perineal area or over the
vulva, errythematous (sic) areas noted
surrounding vaginal orifice, tender, hymen intact;
no laceration fresh and old noted; examining
finger can barely enter and with difficulty; vaginal
canal tight; no discharges noted.
Compiled by: Vim Malicay
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies
in the testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape
was committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras
because they "show remarkable and vital inconsistencies and its
incredibility amounting to fabrication and therefore casted doubt to
its candor, truth and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer
to trivial inconsistencies which are not sufficient to blur or cast doubt
on the witnesses' straightforward attestations. Far from being badges
of fabrication, the inconsistencies in their testimonies may in fact be
justifiably considered as manifestations of truthfulness on material
points. These little deviations also confirm that the witnesses had not
been rehearsed. The most candid witnesses may make mistakes
sometimes but such honest lapses do not necessarily impair their
intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988,
160 SCRA 98). Rather than discredit the testimonies of the
prosecution witnesses, discrepancies on minor details must be
viewed as adding credence and veracity to such spontaneous
testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-
41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete
uniformity in details would be a strong indication of untruthfulness
and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June 27,
1988, 162 SCRA 609). However, one of the alleged inconsistencies
deserves a little discussion which is, the testimony of the victim that
the accused asked her to hold and guide his penis in order to have
carnal knowledge of her. According to the accused, this is strange
because "this is the only case where an aggressor's advances is being
helped-out by the victim in order that there will be a consumation of
the act." (p. 34, Rollo). The allegation would have been meritorious
had the testimony of the victim ended there. The victim testified
further that the accused was holding a Batangas knife during the
aggression. This is a material part of the victim's testimony which the
accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule that
the findings of fact of the trial court on the credibility of witnesses
should be accorded the highest respect because it has the advantage
of observing the demeanor of witnesses and can discern if a witness
is telling the truth (People v. Samson, G.R. No. 55520, August 25,
1989). We quote with favor the trial court's finding regarding the
testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the
People, there is not much to be desired as to the sincerity
of the offended party in her testimony before the court. Her
answer to every question profounded (sic), under all
circumstances, are plain and straightforward. To the Court
she was a picture of supplication hungry and thirsty for the
immediate vindication of the affront to her honor. It is
inculcated into the mind of the Court that the accused had
wronged her; had traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect
all that is necessary to show that rape was committed provided her
testimony is clear and free from contradiction and her sincerity and
candor, free from suspicion (People v Alfonso, G.R. No. 72573, August
31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February
28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December
16, 1985, 140 SCRA 400). The victim in this case did not only state that
she was raped but she testified convincingly on how the rape was
committed. The victim's testimony from the time she knocked on the
door of the municipal building up to the time she was brought to the
hospital was corroborated by Pat. Donceras. Interpreting the findings
as indicated in the medical certificate, Dr. Reinerio Zamora (who was
presented in view of the unavailability of Dr. Abude) declared that the
abrasions in the left and right knees, linear abrasions below the left
breast, multiple pinpoint marks, circumscribed hematoma at the
anterior neck, erythematous area surrounding the vaginal orifice and
tender vulva, are conclusive proof of struggle against force and
violence exerted on the victim (pp. 52-53, Rollo). The trial court even
inspected the boarding house and was fully satisfied that the
narration of the scene of the incident and the conditions therein is
true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a
condition safe enough to carry the weight of both accused
and offended party without the slightest difficulty, even in
the manner as narrated. The partitions of every room were
of strong materials, securedly nailed, and would not give
way even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape
complaints (People v. Torio, et al., G.R. No. L-48731, December 21,
1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that
balcony (opening) to the ground which was correctly
estimated to be less than eight (8) meters, will perhaps
occasion no injury to a frightened individual being pursued.
Common experience will tell us that in occasion of
conflagration especially occuring (sic) in high buildings,
many have been saved by jumping from some considerable
heights without being injured. How much more for a
frightened barrio girl, like the offended party to whom
honor appears to be more valuable than her life or limbs?
Besides, the exposure of her private parts when she sought
assistance from authorities, as corroborated, is enough
indication that something not ordinary happened to her
unless she is mentally deranged. Sadly, nothing was
adduced to show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30,
1982, 117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is
her having been rendered entirely naked by appellant and
that even in her nudity, she had to run away from the latter
and managed to gain sanctuary in a house owned by
spouses hardly known to her. All these acts she would not
have done nor would these facts have occurred unless she
was sexually assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present
other witnesses to corroborate the allegations in the complaint and
the non-presentation of the medico-legal officer who actually
examined the victim. Suffice it to say that it is up to the prosecution
to determine who should be presented as witnesses on the basis of
Compiled by: Vim Malicay
its own assessment of their necessity (Tugbang v. Court of Appeals, et
al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589,
May 31, 1989). As for the non-presentation of the medico-legal officer
who actually examined the victim, the trial court stated that it was by
agreement of the parties that another physician testified inasmuch as
the medico-legal officer was no longer available. The accused did not
bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first
assignment of error fall flat on its face. Some were not even
substantiated and do not, therefore, merit consideration. We are
convinced that the accused is guilty of rape. However, We believe the
subject matter that really calls for discussion, is whether or not the
accused's conviction for frustrated rape is proper. The trial court was
of the belief that there is no conclusive evidence of penetration of the
genital organ of the victim and thus convicted the accused of
frustrated rape only.
The accused contends that there is no crime of frustrated rape. The
Solicitor General shares the same view.
Article 335 of the Revised Penal Code defines and enumerates the
elements of the crime of rape:
Art. 335. When and how rape is committed. Rape is
committed by having carnal knowledge of a woman under
any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious and
3. When the woman is under twelve years of age, even
though neither of the circumstances mentioned in the two
next preceding paragraphs shall be present.
xxx xxx xxx
Carnal knowledge is defined as the act of a man in having sexual bodily
connections with a woman (Black's Law Dictionary. Fifth Edition, p.
193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies.
Consummated felonies as well as those which are
frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary
for its execution and accomplishment are present; and it is
frustrated when the offender performs all the acts of
execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by
reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his
own spontaneous desistance.
Correlating these two provisions, there is no debate that the
attempted and consummated stages apply to the crime of
rape.1wphi1 Our concern now is whether or not the frustrated stage
applies to the crime of rape.
The requisites of a frustrated felony are: (1) that the offender has
performed all the acts of execution which would produce the felony
and (2) that the felony is not produced due to causes independent of
the perpetrator's will. In the leading case of United States v. Eduave,
36 Phil. 209, 212, Justice Moreland set a distinction between
attempted and frustrated felonies which is readily understood even
by law students:
. . . A crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime by
overt acts, is prevented, against his will, by some outside
cause from performing all of the acts which should produce
the crime. In other words, to be an attempted crime the
purpose of the offender must be thwarted by a foreign
force or agency which intervenes and compels him to stop
prior to the moment when he has performed all of the acts
which should produce the crime as a consequence, which
acts it is his intention to perform. If he has performed all of
the acts which should result in the consummation of the
crime and voluntarily desists from proceeding further, it can
not be an attempt. The essential element which
distinguishes attempted from frustrated felony is that, in
the latter, there is no intervention of a foreign or
extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the
acts have been performed which should result in the
consummated crime; while in the former there is such
intervention and the offender does not arrive at the point
of performing all of the acts which should produce the
crime. He is stopped short of that point by some cause apart
from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has carnal
knowledge of his victim he actually attains his purpose and, from that
moment also all the essential elements of the offense have been
accomplished. Nothing more is left to be done by the offender,
because he has performed the last act necessary to produce the
crime. Thus, the felony is consummated. In a long line of cases (People
v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v.
Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v.
Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have
set the uniform rule that for the consummation of rape, perfect
penetration is not essential. Any penetration of the female organ by
the male organ is sufficient. Entry of the labia or lips of the female
organ, without rupture of the hymen or laceration of the vagina is
sufficient to warrant conviction. Necessarily, rape is attempted if
there is no penetration of the female organ (People v. Tayaba, 62 Phil.
559 People v. Rabadan et al., 53 Phil. 694; United States v. Garcia: 9
Phil. 434) because not all acts of execution was performed. The
offender merely commenced the commission of a felony directly by
overt acts. Taking into account the nature, elements and manner of
execution of the crime of rape and jurisprudence on the matter, it is
hardly conceivable how the frustrated stage in rape can ever be
committed.
Compiled by: Vim Malicay
Of course, We are aware of our earlier pronouncement in the case of
People v. Eria 50 Phil. 998 [1927] where We found the offender
guilty of frustrated rape there being no conclusive evidence of
penetration of the genital organ of the offended party. However, it
appears that this is a "stray" decision inasmuch as it has not been
reiterated in Our subsequent decisions. Likewise, We are aware of
Article 335 of the Revised Penal Code, as amended by Republic Act
No. 2632 (dated September 12, 1960) and Republic Act No. 4111
(dated March 29, 1965) which provides, in its penultimate paragraph,
for the penalty of death when the rape is attempted or frustrated and
a homicide is committed by reason or on the occasion thereof. We
are of the opinion that this particular provision on frustrated rape is a
dead provision. The Eria case, supra, might have prompted the law-
making body to include the crime of frustrated rape in the
amendments introduced by said laws.
In concluding that there is no conclusive evidence of penetration of
the genital organ of the victim, the trial court relied on the testimony
of Dr. Zamora when he "categorically declared that the findings in the
vulva does not give a concrete disclosure of penetration. As a matter
of fact, he tossed back to the offended party the answer as to whether
or not there actually was penetration." (p. 53, Rollo) Furthermore, the
trial court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical
certificate (Exhibit "A") as interpreted by Dr. Reinerio
Zamora and the equivocal declaration of the latter of
uncertainty whether there was penetration or not. It is true,
and the Court is not oblivious, that conviction for rape could
proceed from the uncorroborated testimony of the
offended party and that a medical certificate is not
necessary (People v. Royeras People v. Orteza, 6 SCRA 109,
113). But the citations the people relied upon cannot be
applicable to the instant case. The testimony of the
offended party is at variance with the medical certificate. As
such, a very disturbing doubt has surfaced in the mind of
the court. It should be stressed that in cases of rape where
there is a positive testimony and a medical certificate, both
should in all respect, compliment each other, for otherwise
to rely on the testimony alone in utter disregard of the
manifest variance in the medical certificate, would be
productive of mischievous results.
The alleged variance between the testimony of the victim and the
medical certificate does not exist. On the contrary, it is stated in the
medical certificate that the vulva was erythematous (which means
marked by abnormal redness of the skin due to capillary congestion,
as in inflammation) and tender. It bears emphasis that Dr. Zamora did
not rule out penetration of the genital organ of the victim. He merely
testified that there was uncertainty whether or not there was
penetration. Anent this testimony, the victim positively testified that
there was penetration, even if only partially (pp. 302, 304, t.s.n., May
23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx xxx xxx
Q What do you mean when you said comply, or what act do
you referred (sic) to, when you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be
convicted even on the sole basis of the victim's testimony if credible
(People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65;
People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA
569; People v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987,
154 SCRA 349). Moreover, Dr. Zamora's testimony is merely
corroborative and is not an indispensable element in the prosecution
of this case (People v. Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt
the scale in favor of the accused because after a thorough review of
the records, We find the evidence sufficient to prove his guilt beyond
reasonable doubt of the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that
whenever the crime of rape is committed with the use of a deadly
weapon, the penalty shall be reclusion perpetua to death. The trial
court appreciated the aggravating circumstances of dwelling and
nighttime. Thus, the proper imposable penalty is death. In view,
however, of Article 111, Section 19(1) of the 1987 Constitution and
Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February
9, 1989, that the cited Constitutional provision did not declare the
abolition of the death penalty but merely prohibits the imposition of
the death penalty, the Court has since February 2, 1987 not imposed
the death penalty whenever it was called for under the Revised Penal
Code but instead reduced the same to reclusion perpetua (People v.
Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion
perpetua, being a single indivisible penalty under Article 335,
paragraph 3, is imposed regardless of any mitigating or aggravating
circumstances (in relation to Article 63, paragraph 1, Revised Penal
Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA
615; People v. Manzano, G.R. No. L38449, November 25, 1982, 118
SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA
702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby
MODIFIED. The accused Ceilito Orita is hereby found guilty beyond
reasonable doubt of the crime of rape and sentenced to reclusion
perpetua as well as to indemnify the victim in the amount of
P30,000.00.
SO ORDERED.
Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.
PEOPLE VS LABIAGA
(701 SCRA 214)
CARPIO, J.:
The Case
Before the Court is an appeal assailing the Decision1 dated 18 October
2011 of the Court of Appeals-Cebu (CA-Cebu) in CA-G.R. CEB CR-HC
Compiled by: Vim Malicay
No. 01000. The CA-Cebu affirmed with modification the Joint
Decision2 dated 10 March 2008 of the Regional Trial Court of Barotac
Viejo, Iloilo, Branch 66 (RTC), in Criminal Case No. 2001-155)
convicting Regie Labiaga alias "Banok" (appellant) of murder and
Criminal Case No. 2002-1777 convicting appellant of frustrated
murder.
The Facts
In Criminal Case No. 2001-1555, appellant, together with a certain
Alias Balatong Barcenas and Cristy Demapanag (Demapanag), was
charged with Murder with the Use of Unlicensed Firearm under an
Information3 which reads:
That on or about December 23, 2000 in the Municipality of Ajuy,
Province of Iloilo, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring,
confederating and helping one another, armed with unlicensed
firearm, with deliberate intent and decided purpose to kill, by means
of treachery and with evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault and shoot JUDY
CONDE alias JOJO with said unlicensed firearm, hitting her and
inflicting gunshot wounds on the different parts of her breast which
caused her death thereafter.
CONTRARY TO LAW.
The same individuals were charged with Frustrated Murder with the
Use of Unlicensed Firearm in Criminal Case No. 2002-1777, under an
Information4 which states:
That on or about December 23, 2000 in the Municipality of Ajuy,
Province of Iloilo, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring,
confederating and helping one another, armed with unlicensed
firearm, with deliberate intent and decided purpose to kill, by means
of treachery and with evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault and shoot Gregorio
Conde with said unlicensed firearm, hitting him on the posterior
aspect, middle third right forearm 1 cm. In diameter; thereby
performing all the acts of execution which would produce the crime
of Murder as a consequence, but nevertheless did not produce it by
reason of causes independent of the will of the accused; that is by the
timely and able medical assistance rendered to said Gregorio Conde
which prevented his death.
CONTRARY TO LAW.
Alias Balatong Barcenas remained at large. Both appellant and
Demapanag pled not guilty in both cases and joint trial ensued
thereafter. The prosecution presented four witnesses: Gregorio
Conde, the victim in Criminal Case No. 2002-1777; Glenelyn Conde,
his daughter; and Dr. Jeremiah Obaana and Dr. Edwin Jose Figura,
the physicians at the Sara District Hospital where the victims were
admitted. The defense, on the other hand, presented appellant,
Demapanag, and the latters brother, Frederick.
Version of the prosecution
The prosecutions version of the facts is as follows: At around 7:00
p.m. on 23 December 2000, Gregorio Conde, and his two daughters,
Judy and Glenelyn Conde, were in their home at Barangay Malayu-an,
Ajuy, Iloilo. Thereafter, Gregorio stepped outside. Glenelyn was in
their store, which was part of their house.
Shortly thereafter, appellant, who was approximately five meters
away from Gregorio, shot the latter. Gregorio called Judy for help.
When Judy and Glenelyn rushed to Gregorios aid, appellant shot Judy
in the abdomen. The two other accused were standing behind the
appellant. Appellant said, "she is already dead," and the three fled the
crime scene.
Gregorio and Judy were rushed to the Sara District Hospital. Judy was
pronounced dead on arrival while Gregorio made a full recovery after
treatment of his gunshot wound.
Dr. Jeremiah Obaana conducted the autopsy of Judy. His report
stated that her death was caused by "cardiopulmonary arrest
secondary to Cardiac Tamponade due to gunshot wound."5
Dr. Jose Edwin Figura, on the other hand, examined Gregorio after the
incident. He found that Gregorio sustained a gunshot wound
measuring one centimeter in diameter in his right forearm and
"abrasion wounds hematoma formation" in his right shoulder.6
Version of the defense
Appellant admitted that he was present during the shooting incident
on 23 December 2000. He claimed, however, that he acted in self-
defense. Gregorio, armed with a shotgun, challenged him to a fight.
He attempted to shoot appellant, but the shotgun jammed. Appellant
tried to wrest the shotgun from Gregorio, and during the struggle, the
shotgun fired. He claimed that he did not know if anyone was hit by
that gunshot.
Demapanag claimed that at the time of the shooting, he was in D&D
Ricemill, which is approximately 14 kilometers away from the crime
scene. This was corroborated by Frederick, Demapanags brother.
The Ruling of the RTC
In its Joint Decision, the RTC acquitted Demapanag due to
insufficiency of evidence. Appellant, however, was convicted of
murder and frustrated murder. The dispositive portion of the Joint
Decision reads:
WHEREFORE, in light of the foregoing, the court hereby finds the
accused Regie Labiaga @ "Banok" GUILTY beyond reasonable doubt
of the Crime of Murder in Crim. Case No. 2001-1555 and hereby
sentences the said accused to reclusion perpetua together with
accessory penalty provided by law, to pay the heirs of Judy
Conde P50,000.00 as civil indemnity, without subsidiary
imprisonment in case of insolvency and to pay the costs.
In Crim. Case No. 2002-1777, the court finds accused Regie Labiaga @
"Banok" GUILTY beyond reasonable doubt of the crime of Frustrated
Murder and hereby sentences the said accused to a prison term
ranging from six (6) years and one (1) day of prision mayor as
minimum to ten (10) years and one (1) day of reclusion temporal as
maximum, together with the necessary penalty provided by law and
without subsidiary imprisonment in case of insolvency and to pay the
costs.
Compiled by: Vim Malicay
Accuseds entire period of detention shall be deducted from the
penalty herein imposed when the accused serves his sentence.
For lack of sufficient evidence, accused Cristy Demapanag is acquitted
of the crimes charged in both cases. The Provincial Warden, Iloilo
Rehabilitation Center, Pototan, Iloilo is hereby directed to release
accused Cristy Demapanag from custody unless he is being held for
some other valid or lawful cause.
SO ORDERED.7
The Ruling of the CA-Cebu
Appellant impugned the RTCs Joint Decision, claiming that "the RTC
gravely erred in convicting the appellant of the crime charged despite
failure of the prosecution to prove his guilt beyond reasonable
doubt."8 The CA-Cebu, however, upheld the conviction for murder
and frustrated murder.
The CA-Cebu also modified the Joint Decision by imposing the
payment of moral and exemplary damages in both criminal cases. The
CA-Cebu made a distinction between the civil indemnity awarded by
the RTC in Criminal Case No. 2001-1555 and the moral damages. The
CA-Cebu pointed out that:
The trial court granted the amount of P50,000.00 as civil indemnity in
Criminal Case No. 2001-1555. It did not award moral damages.
Nonetheless, the trial court should have awarded both, considering
that they are two different kinds of damages. For death indemnity,
the amount of P50,000.00 is fixed "pursuant to the current judicial
policy on the matter, without need of any evidence or proof of
damages. Likewise, the mental anguish of the surviving family should
be assuaged by the award of appropriate and reasonable moral
damages."9
The dispositive portion of the Decision of the CA-Cebu reads:
WHEREFORE, premises considered, the appeal is DENIED. The Joint
Decision dated March 10, 2008 of the Regional Trial Court, Branch 66,
in Barotac Viejo, Iloilo is AFFIRMED with MODIFICATIONS. The
dispositive portion of the said Joint Decision should now read as
follows:
WHEREFORE, in light of the foregoing, the court hereby finds the
accused Regie Labiaga @ "Banok" GUILTY beyond reasonable doubt
of the crime of Murder in Crim. Case No. 2001-1555 and hereby
sentences the said accused to reclusion perpetua together with the
accessory penalty provided by law, to pay the heirs of Judy
Conde P50,000.00 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.
In Crim. Case No. 2002-1777 the court finds accused Regie Labiaga @
"Banok" GUILTY beyond reasonable doubt of the crime of Frustrated
Murder and hereby sentences the said accused to suffer the
indeterminate penalty of eight (8) years and one (1) day of prision
mayor, as minimum, to fourteen (14) years and eight (8) months of
reclusion temporal, as maximum, together with the accessory penalty
provided by law, to pay Gregorio Conde P25,000.00 as moral damages
and P25,000.00 as exemplary damages, without subsidiary
imprisonment in case of insolvency and to pay the costs Accused(s)
entire period of detention shall be deducted from the penalty herein
imposed when the accused serves his sentence.
For lack of sufficient evidence, accused Cristy Demapanag is acquitted
of the crime(s) charged in both cases. The Provincial Warden, Iloilo
Rehabilitation Center, Pototan, Iloilo is hereby directed to release
accused Cristy Demapanag from custody unless he is being held for
some other valid or lawful cause.
SO ORDERED.
SO ORDERED.10
Hence, this appeal.
The Ruling of the Court
Our review of the records of Criminal Case No. 2002-1777 convinces
us that appellant is guilty of attempted murder and not frustrated
murder. We uphold appellants conviction in Criminal Case No. 2001-
1555 for murder, but modify the civil indemnity awarded in Criminal
Case No. 2001-1555, as well as the award of moral and exemplary
damages in both cases.
Justifying circumstance of self-defense
Appellants feeble attempt to invoke self-defense in both cases was
correctly rejected by the RTC and the CA-Cebu. This Court, in People
v. Damitan,11 explained that:
When the accused admits killing a person but pleads self-defense, the
burden of evidence shifts to him to prove by clear and convincing
evidence the elements of his defense. However, appellants version
of the incident was uncorroborated. His bare and self-serving
assertions cannot prevail over the positive identification of the two
(2) principal witnesses of the prosecution.12
Appellants failure to present any other eyewitness to corroborate his
testimony and his unconvincing demonstration of the struggle
between him and Gregorio before the RTC lead us to reject his claim
of self-defense. Also, as correctly pointed out by the CA-Cebu,
appellants theory of self-defense is belied by the fact that:
x x x The appellant did not even bother to report to the police
Gregorios alleged unlawful aggression and that it was Gregorio who
owned the gun, as appellant claimed. And, when appellant was
arrested the following morning, he did not also inform the police that
what happened to Gregorio was merely accidental.13
Appellants claim that he did not know whether Gregorio was hit
when the shotgun accidentally fired is also implausible.
In contrast, we find that the Condes account of the incident is
persuasive. Both the CA-Cebu and the RTC found that the testimonies
of the Condes were credible and presented in a clear and convincing
manner. This Court has consistently put much weight on the trial
courts assessment of the credibility of witnesses, especially when
affirmed by the appellate court.14 In People v. Mangune,15 we stated
that:
Compiled by: Vim Malicay
It is well settled that the evaluation of the credibility of witnesses and
their testimonies is a matter best undertaken by the trial court
because of its unique opportunity to observe the witnesses first hand
and to note their demeanor, conduct, and attitude under grilling
examination. These are important in determining the truthfulness of
witnesses and in unearthing the truth, especially in the face of
conflicting testimonies. For, indeed, the emphasis, gesture, and
inflection of the voice are potent aids in ascertaining the witness
credibility, and the trial court has the opportunity to take advantage
of these aids.16
Since the conclusions made by the RTC regarding the credibility of the
witnesses were not tainted with arbitrariness or oversight or
misapprehension of relevant facts, the same must be sustained by
this Court.
Attempted and Frustrated Murder
Treachery was correctly appreciated by the RTC and CA-Cebu. A
treacherous attack is one in which the victim was not afforded any
opportunity to defend himself or resist the attack.17 The existence of
treachery is not solely determined by the type of weapon used. If it
appears that the weapon was deliberately chosen to insure the
execution of the crime, and to render the victim defenseless, then
treachery may be properly appreciated against the accused.18
In the instant case, the Condes were unarmed when they were shot
by appellant. The use of a 12-gauge shotgun against two unarmed
victims is undoubtedly treacherous, as it denies the victims the
chance to fend off the offender.
We note, however, that appellant should be convicted of attempted
murder, and not frustrated murder in Criminal Case No. 2002-1777.
Article 6 of the Revised Penal Code defines the stages in the
commission of felonies:
Art. 6. Consummated, frustrated, and attempted felonies.
Consummated felonies as well as those which are frustrated and
attempted, are punishable.
A felony is consummated when all the elements necessary for its
execution and accomplishment are present; and it is frustrated when
the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce
it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission
of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause
or accident other than his own spontaneous desistance.
In Serrano v. People,19 we distinguished a frustrated felony from an
attempted felony in this manner:
1.) In a frustrated felony, the offender has performed all the
acts of execution which should produce the felony as a
consequence; whereas in an attempted felony, the offender
merely commences the commission of a felony directly by
overt acts and does not perform all the acts of execution.
2.) In a frustrated felony, the reason for the non-
accomplishment of the crime is some cause independent of
the will of the perpetrator; on the other hand, in an
attempted felony, the reason for the non-fulfillment of the
crime is a cause or accident other than the offenders own
spontaneous desistance.20
In frustrated murder, there must be evidence showing that the wound
would have been fatal were it not for timely medical intervention.21 If
the evidence fails to convince the court that the wound sustained
would have caused the victims death without timely medical
attention, the accused should be convicted of attempted murder and
not frustrated murder.
In the instant case, it does not appear that the wound sustained by
Gregorio Conde was mortal. This was admitted by Dr. Edwin Figura,
who examined Gregorio after the shooting incident:
Prosecutor Con-El:
Q: When you examined the person of Gregorio Conde, can you tell
the court what was the situation of the patient when you examined
him?
A: He has a gunshot wound, but the patient was actually ambulatory
and not in distress.
xxxx
Court (to the witness)
Q: The nature of these injuries, not serious?
A: Yes, Your Honor, not serious. He has also abrasion wounds
hematoma formation at the anterior aspect right shoulder.22
Since Gregorios gunshot wound was not mortal, we hold that
appellant should be convicted of attempted murder and not
frustrated murder. Under Article 51 of the Revised Penal Code, the
corresponding penalty for attempted murder shall be two degrees
lower than that prescribed for consummated murder under Article
248, that is, prision correccional in its maximum period to prision
mayor in its medium period. Section 1 of the Indeterminate Sentence
Law provides:
x x x the court shall sentence the accused to an indeterminate
sentence the maximum term of which shall be that which, in view of
the attending circumstances, could be properly imposed under the
rules of the Revised Penal Code, and the minimum which shall be
within the range of the penalty next lower to that prescribed by the
Code for the offense.1wphi1
Thus, appellant should serve an indeterminate sentence ranging from
two (2) years, four (4) months and one (1) day of prision correccional
in its medium period to eight (8) years and one (1) day of prision
mayor in its medium period.
Award of damages
Compiled by: Vim Malicay
In light of recent jurisprudence, we deem it proper to increase the
amount of damages imposed by the lower court in both cases. In
Criminal Case No. 2001-1555, this Court hereby awards P75,000.00 as
civil indemnity23 and P30,000.00 as exemplary damages.24 The award
of P50,000.00 as moral damages in the foregoing case is sustained.
Appellant is also liable to pay P40,000.00 as moral damages
and P30,000.00 as exemplary damages, in relation to Criminal Case
No. 2002-1777.
WHEREFORE, we AFFIRM the 18 October 2011 Decision of the Court
of Appeals-Cebu in CA-G.R. CEB CR-HC No. 01000 with
MODIFICATIONS. In Criminal Case No. 2002-1777, we find that
appellant Regie Labiaga is GUILTY of Attempted Murder and shall
suffer an indeterminate sentence ranging from two (2) years, four (4)
months and one (1) day of prision correccional as minimum, to eight
(8) years and one (1) day of prision mayor as maximum, and
pay P40,000.00 as moral damages and P30,000.00 as exemplary
damages. In Criminal Case No. 2001-1555, appellant shall
pay P75,000.00 as civil indemnity, P50,000.00 as moral damages,
and P30,000.00 as exemplary damages.
SO ORDERED.
Article 7- When light felonies punishable
Article 8. Conspiracy- Levels of Conspiracy
FERNAN JR. ET.AL. VS PEOPLE
(531 SCRA 1[2 STRUCTURES OF MULTIPLE CONSPIRACIES)
VELASCO, JR., J.:
The instant petition under Rule 45 originated from 119 criminal
cases2 filed with the Sandiganbayan (SB) involving no less than 36
former officials and employees of the then Ministry of Public
Highways (MPH) and several suppliers of construction materials for
defalcation of public funds arising from numerous transactions in the
Cebu First Highway Engineering District in 1977. Because of the sheer
magnitude of the illegal transactions, the number of people involved,
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.
The Case
Petitioners Simon Fernan, Jr. and Expedito Torrevillas seek the
reversal of the December 4, 1997 Decision3 of the SB in the
consolidated Criminal Case Nos.,4 all entitled People of the Philippines
v. Rocilo Neis, et al., finding them guilty of multiple instances of estafa
through falsification of public documents;5 and the subsequent
August 29, 2000 SB Resolution which denied their separate pleas for
reconsideration.
Petitioner Fernan, Jr. disputes the adverse judgment in only six (6)
cases, namely: 2879, 2880, 2881, 2885, 2914, and 2918; while
petitioner Torrevillas seeks exoneration in nine (9) cases, namely:
2855, 2856, 2858, 2859, 2909, 2910, 2914, 2919, and 2932.
Both petitioners assert their strong belief that their guilt has not been
established beyond reasonable doubt and, hence, exculpation is in
order.
The Facts
The SB culled the facts6 this way:
On June 21, 1978, COA Regional Director Sofronio Flores Jr. of COA
Regional Office No. 7, directed auditors Victoria C. Quejada and Ruth
I. Paredes to verify and submit a report on sub-allotment advises
issued to various highway engineering districts in Cebu, particularly,
the Cebu City, Cebu 1st, Cebu 2nd and the Mandaue City Highway
Engineering Districts. Complying with the directive, they conducted
an investigation and in due course submitted their findings. Their
report (Exhibit C) confirmed the issuance of fake Letters of Advice of
Allotments (LAAs) in the districts mentioned. They discovered that
two sets of LAAs were received by the districts. One set consists of
regular LAAs which clearly indicated the covering sub-allotment
advices and were duly signed by Mrs. Angelina Escao, Finance Officer
of the MPH Regional Office. The LAAs were numbered in proper
sequence and duly recorded in the logbook of the Accounting, Budget
and Finance Division. The other set consists of fake LAAs which do not
indicate the covering sub-allotment advice and were signed by Chief
Accountant Rolando Mangubat and Engr. Jose Bagasao, instead of the
Finance Officer. These fake LAAs were not numbered in proper
sequence; they were mostly undated and were sometimes
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-
Payable Unliquidated Obligations (8-81-400) and credited to the
Checking Account with the Bureau of Treasury (8-70-790).
Nevertheless, the expenditures were taken from obligations of the
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-
81-400 (unliquidated or prior years obligation), 8-83-000 (liquidated
or current year obligations) and 8-70-700 (Treasury/Agency Account).
All of these were approved for the Finance Officer by Chief
Accountant Rolando Mangubat. Mangubat, however, had no
authority to approve them because since October 1977, he had
already been detailed to the MPH Central Office. There were
indications that the practice had been going on for years.
xxxx
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
representatives from the Finance Ministry Intelligence Bureau (FMIB),
National Bureau of Investigation (NBI), the Bureau of Treasury and the
Commission on Audit. The mission of the task force was to conduct a
wider and more extended investigation in all the fifteen (15) highway
engineering districts of MPH Region VII, including the Cebu First
Highway Engineering District, the 1977 questionable disbursements
of which are the subject matter of these cases.
xxxx
For a better understanding of these highways cases, the flow in the
release of funds to the various agencies of the government and the
control devices set up for disbursement and accounting of public
funds should first be explained. A chart (Exhibit B) graphically shows
the flow of allotments from the Ministry down to the district level.
On the basis of appropriation laws and upon request made by heads
of agencies, the then Ministry of Budget released funds to the various
agencies of the government by means of an Advice of Allotment (AA)
Compiled by: Vim Malicay
and a Cash Disbursement Ceiling (CDC). The Advice of Allotment is an
authority for the agency to incur obligations within a specified
amount in accordance with approved programs and projects. The
Cash Disbursement Ceiling is an authority to pay. Upon receipt of the
AA and CDC from the Budget, the Central Office of the agency
prepares the Sub-Advice of Allotment (SAA) and the Advice of Cash
Disbursement Ceiling (ACDC) for each region, in accordance with the
disbursement allotment. These are sent to the Regional Office. Upon
receipt, the Budget Officer of the region prepares the corresponding
Letters of Advice of Allotment (LAA) which are forwarded to the
various districts of the region (The amount that goes to each district
is already indicated in the Advice of Allotment). Only upon receipt of
the LAA is the district office authorized to incur obligations.
Now, how are funds released by the Regional Office to the different
districts and ultimately paid out to contractors, the District Engineer
submits to the Regional Director a request for allotment in
accordance with the program of work prepared by the former. This
procedure starts with the preparation of a Requisition for Supplies
and Equipment (RSE) in the District Office by the Senior Civil Engineer,
approved by the District Engineer, and signed by the Chief Accountant
of the Highway Engineering District, who certifies as to the availability
of funds. The RSE is then submitted to the Regional Director for
approval. Once it is approved, a Request for Obligation of Allotment
(ROA) is prepared by the Chief Accountant of the district Senior Civil
Engineer. The ROA signifies that a certain amount of district funds has
been set aside or earmarked for the particular expenditures stated in
the RSE. On the basis of the ROA, the District Office puts up
advertisements, [conducts] biddings, makes awards and prepares
purchase orders which are served on the winning bidder. The District
Office also prepares a summary of deliveries with the corresponding
delivery receipts and tally sheets, conducts inspection and prepares
the General Voucher for the payment of deliveries. Once the General
Voucher (GV) has been prepared, the corresponding check in the form
of a Treasury Check Account for Agency (TCAA) is drawn by the
Disbursing Officer and finally released to the contractor.
At the end of every month, the Report of Checks Issued by Deputized
Disbursing Officer (RCIDD) is prepared, listing all the checks issued
during that period. The RCIDDO is submitted to the accounting
division of the region. Upon receipt of the RCIDDO, the Regional
Office draws a journal voucher, debiting the account obligation
(liquidated or unliquidated obligation, whichever is applicable), and
crediting the account Treasury Check Account for Agency (TCAA). The
RCIDDO is recorded in the Journal of Checks Issued by Deputized
Disbursing Officers (JCIDDO) and posted in the general ledger at the
end of each month.
Simultaneous with the flow of the RCIDDO, the ROAs are summarized
in the Reports of Obligations Incurred (ROI) in the District Office, once
or twice a month, depending upon the volume of transactions. The
ROI is then submitted to the Regional Office. Upon receipt of the ROI,
the accountant of the Regional Office draws a journal voucher taking
up the following entry: debiting the appropriation allotted (0-90-000)
and crediting the obligation incurred (0-82-000). This is recorded in
the general voucher and posted to the general ledger at the end of
each month. The journal voucher is prepared, closing the account 8-
70-709 to 8-71-100-199 at the end of each month. It is also recorded
and posted to the general ledger. At the end of the month, the
balances of each account shown in the general ledger are summarized
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.
xxxx
The elaborate accounting procedure described above with its system
of controls was set up obviously to make sure that government funds
are properly released, disbursed and accounted for. In the hands of
untrustworthy guardians of the public purse, however, it proved to be
inadequate. There were loopholes which an unscrupulous person
adroit in government accounting could take advantage of to
surreptitiously draw enormous sums of money from the government.
Sometime in February, 1977, accused Rolando Mangubat (Chief
Accountant), Delia Preagido (Accountant III), Jose Sayson (Budget
Examiner), and Edgardo Cruz (Clerk II), all of MPH Region VII, met at
the Town and Country Restaurant in Cebu City and hatched an
ingenious plan to siphon off large sums of money from government
coffers. Mangubat had found a way to withdraw government money
through the use of fake LAAs, vouchers and other documents and to
conceal traces thereof with the connivance of other government
officials and employees. In fine, the fraudulent scheme involved the
splitting of LAAs and RSEs so that the amount covered by each general
voucher is less than P50,000.00 to do away with the approval of the
Regional Auditor; the charging of disbursements to unliquidated
obligations due the previous year to provide the supposed source of
funds; and the manipulation of the books of account by negation or
adjustment, i.e., the cancellation of checks through journal vouchers
to conceal disbursements in excess of the cash disbursement ceiling
(CDC), so as not to reflect such disbursements in the trial balances
submitted to the Regional Office.
Mangubat enticed Preagido, Cruz and Sayson to join him. All three
agreed to help him carry out his plan. They typed the fake LAAs during
Saturdays. Cruz and Sayson also took charge of negotiating or selling
the fake LAAs to contractors at 26% of the gross amount. Preagido on
her part manipulated the General Ledger, Journal Vouchers and
General Journal thru negative entries to conceal the illegal
disbursements. Thus, in the initial report of the auditors (Exhibit D), it
was discovered that the doubtful allotments and other anomalies
escaped notice due to the following manipulations:
"The letter-advices covering such allotments (LAA) were generally not
signed by the Finance Officer nor recorded in the books of accounts.
Disbursements made on the basis of these fake LAAs were charged to
the unliquidated Obligations (Account 8-81-400), although the
obligations being paid were not among those certified to the
unliquidated obligations (Account 8-81-400) at the end of the
preceding year. To conceal the overcharges to authorized allotments,
account 8-81-400 and the excess of checks issued over authorized
cash disbursements ceiling, adjustments were prepared monthly
through journal vouchers to take up the negative debit to Account 8-
81-400 and a negative credit to the Treasury Checking Account for
Agencies Account 8-70-790. These journal vouchers in effect
cancelled the previous entry to record the disbursements made on
the basis of the fake LAAs. Thus, the affected accounts (Accounts 8-
81-400 and 8-70-790), as appearing in the trial balance would not
show the irregularity. The checks, however, were actually issued."
The four formed the nucleus of the nefarious conspiracy. Other
government employees, tempted by the prospect of earning big
money, allowed their names to be used and signed spurious
documents.
Compiled by: Vim Malicay
Although the anomalies had been going on for sometime (February
1977 to June 1978), the PNB and Bureau of Treasury had no inkling
about it until the NBI busted the illegal operations. (Some of the
recipients of the stolen funds spent lavishly and bought two cars at a
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
branch of the PNB did not receive independent advice from the PNB
head office in Manila. There were no deposits of money made with
the PNB from which withdrawals could be charged. Only CDCs were
presented to it, and not knowing that some of the CDCs were fake,
the PNB branch paid out the checks drawn against them. The bank
had also no way of knowing what amount was appropriated for the
district; consequently, it did not know if the limit had already been
exceeded. Only an insider steep in government accounting, auditing
and banking procedures, particularly their flaws and loopholes, could
have pulled off such an ingenious and audacious plan.
xxxx
Focusing our attention now on the anomalies committed in the Cebu
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
VII was followed. The Cebu First HED received from Region VII thirty-
four Letters of Advice of Allotment (LAAs) in the total sum of
P4,734,336.50 and twenty-nine (29) corresponding Sub-Advices of
Cash Disbursement Ceiling (SACDCs), amounting to P5,160,677.04 for
the period January 1, 1977 to December 31, 1977. But apart from this,
the Cebu First HED appears to have also received for the same period
another set of eighty-four (84) LAAs amounting to P4,680,694.76
which however, could not be traced to any Sub-Advice of Allotment
(SAA) or matched to the Advices of Cash Disbursement Ceiling
(ACDCs) received from the MPH and Regional Office. This is highly
irregular and not in consonance with accounting procedures.
It was also made to appear that the payments were made for alleged
prior years obligations and chargeable to Account 8-81-400,
obviously because, they were not properly funded. Furthermore, the
list of projects in Region VII for 1977 showed that Cebu First HED
completed rehabilitation and/or improvement of roads and bridges in
its districts from February to May 1977, with expenditures amounting
to P613,812.00. On the other hand, the expenditures for barangay
roads in the same district in 1977 amounted to P140,692.00, and
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.
However, an additional amount of P3,839,810.74 was spent by the
Cebu First HED for maintenance of roads and bridges for the same
year (1977) but the same could not be traced to any authoritative
document coming from the MPH.
xxxx
A total of 132 General Vouchers, emanating from fake LAAs and
ACDCs, were traced back to Rolando Mangubat, Regional Accountant
of Region VII and Adventor Fernandez, Regional Highway Engineer,
also of Region VII. Those LAAs and ACDCs became the vehicles in the
disbursement of funds amounting to P3,839,810.74, through the
vouchers purportedly issued for the purchase and delivery of the
aforementioned materials allegedly used for the maintenance 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
improvement. As testified to by several barangay captains, the road
maintenance consisted merely of spreading anapog or limestone on
potholes of the national highway.
Obviously, the vouchers for payments of alleged maintenance of
roads and bridges in the additional amount of P3,839,810.74 were
prepared for no other purpose than to siphon the said amount from
the government coffer into the pockets of some officials and
employees of Region VII and the Cebu First HED, as well as the
suppliers and contractors who conspired and confederated with
them.
The nuclei of this massive conspiracy, namely: Rolando Mangubat,
Jose Sayson, and Edgardo Cruz, all of MPH Region VII, were found
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
cases, became a state witness in the remainder. On the basis of her
testimony and pertinent documents, Informations were filed,
convictions were obtained, and criminal penalties were imposed on
the rest of the accused.
On the other hand, petitioners were both Civil Engineers of the MPH
assigned to the Cebu First Highway Engineering District. Petitioner
Fernan, Jr. was included among the accused in Criminal Case Nos.
2879, 2880, 2881, 2885, 2914, and 2918 allegedly for having signed
six (6) tally sheets or statements of deliveries of materials, used as
bases for the preparation of the corresponding number of general
vouchers. Fund releases were made to the suppliers, contractors, and
payees based on these general vouchers.
The Information against Fernan, Jr. in SB Criminal Case No. 2879 reads
as follows:
The undersigned accuses Rocilo Neis, Rolando Mangubat, Adventor
Fernandez, Angelina Escao, Delia Preagido, Camilo de Letran,
Manuel de Veyra, Heracleo Faelnar, Basilisa Galvan, Matilde Jabalde,
Josefina Luna, Jose Sayson, Edgardo Cruz, Leonila del Rosario,
Engracia Escobar, Abelardo Cardona, Leonardo Tordecilla, Agripino
Pagdanganan, Ramon Quirante, Mariano Montera, Mariano Jarina,
Leo Villagonzalo, Asterio Buqueron, Zosimo Mendez, Simon Fernan,
Jr. and Juliana de los Angeles for estafa thru falsification of public and
commercial documents, committed as follows:
That on, about and during the period from December 1, 1976 up to
January 31, 1977, both dates inclusive, in the City of Cebu and in Cebu
Province, and within the jurisdiction of this Honorable Court, the
accused Rocilo Neis, Assistant District Engineer of Cebu HED I;
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
defraud the Philippine Government with the indispensable
cooperation and assistance of Angelina Escao, Finance Officer of
Region VII of the Ministry of Public Highways; Delia Preagido,
Assistant Chief Accountant of same 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, Budget Officer, MPH, Region VII; Matilde
Jabalde, Supervising Accounting Clerk, MPH, Region VII; Josefina
Luna, Accountant II, MPH, Region VII; Jose Sayson, Budget Examiner,
MPH, Region VII, Edgardo Cruz, Accountant I, MPH, Region VII; Leonila
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
Criminal Case Nos. 2855, 2856, 2858, 2859, 2909, 2910, 2914, 2919,
and 2932.
The Information against Torrevillas in SB Criminal Case No. 2855 reads
as follows:
The undersigned accuses Rocilo Neis, Rolando Mangubat, Adventor
Fernandez, Angelina Escao, Delia Preagido, Camilo de Letran,
Manuel de Veyra, Heracleo Faelnar, Basilisa Galvan, Matilde Jabalde,
Josefina Luna, Jose Sayson, Edgardo Cruz, Leonila del Rosario,
Engracia Escobar, Abelardo Cardona, Leonardo Tordecilla, Agripino
Pagdanganan, Ramon Quirante, Jorge de la Pea, Leo Villagonzalo,
Asterio Buqueron, Expedito Torrevillas, Mariano Montera and Rufino
V. Nuez for estafa thru falsification of public and commercial
documents, committed as follows:
That on, about and during the period from June 1, 1977 up to June 30,
1977, both dates inclusive, in the City of Cebu and in Cebu Province,
and within the jurisdiction of this Honorable Court, the accused Rocilo
Neis, Assistant District Engineer of Cebu HED I; 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 defraud the Philippine
Government with the indispensable cooperation and assistance of
Angelina Escao, Finance Officer of Region VII of the Ministry of Public
Highways; Delia Preagido, Assistant Chief Accountant of same
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,
Budget Officer, MPH, Region VII; Matilde Jabalde, Supervising
Accounting Clerk, MPH, Region VII; Josefina Luna, Accountant II, MPH,
Region VII; Jose Sayson, Budget Examiner, MPH, Region VII, Edgardo
Cruz, Accountant I, MPH, Region VII; Leonila del Rosario, Chief Finance
and Management Service, MPH, Central Office; Engracia Escobar,
Chief Accountant, MPH, Central Office; Abelardo Cardona, Assistant
Chief Accountant, MPH, Central Office; Leonardo Tordecilla,
Supervising Accountant, MPH, Central Office; Agripino Pagdanganan,
Budget Officer III, MPH, Central Office; Ramon Quirante, Property
Custodian of Cebu I HED; Jorge de la Pea, Auditor of Cebu I HED; Leo
Villagonzalo, Auditors Aide of Cebu I HED; Asterio Buqueron,
Administrative Officer of Cebu I HED; Expedito Torrevillas,
representative of the Engineers Office, Cebu I HED; Mariano
Montera, Senior Civil Engineer Engineer of Cebu I HED; and Rufino V.
By making it appear that Regional Office No. VII of the Ministry of
Public Highways regularly issued an advice of cash disbursement
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
asphalting of the Toledo-Tabuelan road at Km. 108.34 to Km. 109.52,
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
available and that there were appropriate requests for allotments
(ROA) to pay the aforesaid purchase; that a requisition for said item
was made and approved; that a regular bidding was held; that a
corresponding purchase order was issued in favor of the winning
bidder; that the road construction materials were delivered,
inspected and used in the supposed project and that the alleged
supplier was entitled to payment when in truth and in fact, as all the
accused know, all of the foregoing were false and incorrect and
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
(P48,431.85), Philippine Currency, in payment of the non-existing
deliveries; that the said amount of P48,431.85 was not reflected in
the monthly trial balance submitted to the Central Office by Region
VII showing its financial condition as the same was negated thru the
journal voucher, as a designed means to cover-up the fraud; and the
accused, once in possession of the said amount, misappropriated,
converted and misapplied the same for their personal needs, to the
damage and prejudice of the Philippine Government in the total
amount of FORTY EIGHT THOUSAND FOUR HUNDRED THIRTY ONE
PESOS & 85/100 (P48,431.85), Philippine Currency.
CONTRARY TO LAW.
The Torrevillas cases were substantially the same save for the details
highlighted in the aforequoted typical accusatory pleading. For ease
of reference, Torrevillas criminal cases are particularized as follows:
Criminal Dates of Main Items Allegedly Amount
Case Commission Documents Purchased of Fraud
No. Falsified
2855 June 1, 1977 1. Request 153.63 m. t. of PhP
up to June for item 310 for 48,431.85
30, 1977 Allocation use in
of Allotment asphalting of
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
(8) months and one (1) day of prision mayor, as maximum, with the
accessory penalties 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 Eight
Thousand Pesos (P 28,000.00); and, to pay their proportionate share
of the costs.9 (Emphasis supplied.)
In Criminal Case No. 2880, the Court finds accused CAMILO DE
LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA,
ZOSIMO MENDEZ, and SIMON FERNAN, Jr., GUILTY beyond
reasonable doubt as co-principals in the crime of Estafa thru
falsification of Public Documents as defined and penalized in Articles
318 and 171, in relation to Article 48 of the Revised Penal Code, and
there being no modifying circumstances in attendance, hereby
sentences each of them to an indeterminate penalty ranging from six
(6) years of prision correccional, as minimum, to ten (10) years, eight
(8) months and one (1) day of prision mayor, as maximum, with the
accessory penalties 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 Eight
Thousand Pesos (P 28,000.00); and, to pay their proportionate share
of the costs.10 (Emphasis supplied.)
In Criminal Case No. 2881, the Court finds accused CAMILO DE
LETRAN, JOSE SAYSON, RAMON QUIRANTE, ZOSIMO MENDEZ
and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru falsification of Public Documents
as defined and penalized in Articles 318 and 171, in relation to Article
48 of the Revised Penal Code, and there being no modifying
circumstances in attendance, hereby sentences each of them to an
indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
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 Thirty One Thousand Pesos (P
31,000.00); and, to pay their proportionate share of the
costs.11(Emphasis supplied.)
In Criminal Case No. 2885, the Court finds accused CAMILO DE
LETRAN JOSE SAYSON, RAMON QUIRANTE, ZOSIMO MENDEZ
and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru falsification of Public Documents
as defined and penalized in Articles 318 and 171, in relation to Article
48 of the Revised Penal Code, and there being no modifying
circumstances in attendance, hereby sentences each of them to an
indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
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 Thirty Thousand Pesos (P 30,000.00);
and, to pay their proportionate share of the costs.12 (Emphasis
supplied.)
In Criminal Case No. 2914, the Court finds accused CAMILO DE
LETRAN, JOSE SAYSON, RAMON QUIRANTE, EXPEDITO
TORREVILLAS and SIMON FERNAN, Jr., GUILTY beyond reasonable
doubt as co-principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
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 Pesos (P
27,000.00); and, to pay their proportionate share of the
costs.13(Emphasis supplied.)
In Criminal Case No. 2918, the Court finds accused CAMILO DE
LETRAN, JOSE SAYSON, RAMON QUIRANTE, ZOSIMO MENDEZ, SIMON
FERNAN, Jr. and ISMAEL SABIO, Jr. GUILTY beyond reasonable doubt
as co-principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
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 Thirty Thousand Pesos (P 30,000.00);
and, to pay their proportionate share of the costs.14 (Emphasis
supplied.)
Petitioner Torrevillas suffered the same fate and was convicted in the
nine (9) criminal cases, to wit:
In Criminal Case No. 2855, the Court finds accused CAMILO DE
LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA,
and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru falsification of Public Documents
as defined and penalized in Articles 318 and 171, in relation to Article
48 of the Revised Penal Code, and there being no modifying
circumstances in attendance, hereby sentences each of them to an
indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
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 Forty Eight Thousand Four Hundred
Thirty One Pesos and 85/100 (P 48,431.85); and, to pay their
proportionate share of the costs.15 (Emphasis supplied.)
In Criminal Case No. 2856, the Court finds accused CAMILO DE
LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA
and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru falsification of Public Documents
as defined and penalized in Articles 318 and 171, in relation to Article
48 of the Revised Penal Code, and there being no modifying
circumstances in attendance, hereby sentences each of them to an
indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
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 Forty Eight Thousand Four Hundred
Seventy Two Pesos and 84/100 (P 48,472.84); and, to pay their
proportionate share of the costs.16 (Emphasis supplied.)
In Criminal Case No. 2858, the Court finds accused CAMILO DE
LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA
Compiled by: Vim Malicay
and EXPEDITO TOREVILLAS, GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru Falsification of Public Documents
as defined and penalized in Articles 318 and 171, in relation to Article
48 of the Revised Penal relation to Article 48 of the Revised Penal
Code, and there being no modifying circumstances in attendance,
hereby sentences each of them to an indeterminate penalty ranging
from six (6) years of prision correccional, as minimum, to ten (10)
years, eight (8) months and one (1) day of prision mayor, as
maximum, with the accessory penalties provided by law, to pay a fine
of Three Thousand Five Hundred Pesos (P3,500.00); to indemnify,
jointly and severally the Republic of the Philippines in the amount of
Forty Seven Thousand Seven Hundred Thirteen Pesos and 9/100
(P47,713.09); and, to pay their proportionate share of the costs.
In Criminal Case No. 2859, the Court finds accused CAMILO DE
LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA
and EXPEDITO TOREVILLAS, GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru Falsification of Public Documents
as defined and penalized in Articles 318 and 171, in relation to Article
48 of the Revised Penal Code, and there being no modifying
circumstances in attendance, hereby sentences each of them to an
indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five Hundred Pesos
(P3,500.00); to indemnify, jointly and severally the Republic of the
Philippines in the amount of Thirty Four Thousand Six Hundred Eighty
pesos and 65/100 (P34,680.65); and , to pay their proportionate share
of the costs.17
In Criminal Case No. 2909, the Court finds accused CAMILO DE
LETRAN, JOSE SAYSON, RAMON QUIRANTE, FLORO JAYME
and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru falsification of Public Documents
as defined and penalized in Articles 318 and 171, in relation to Article
48 of the Revised Penal Code, and there being no modifying
circumstances in attendance, hereby sentences each of them to an
indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
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
Pesos (P 27,900.00); and, to pay their proportionate share of the
costs.18 (Emphasis supplied.)
In Criminal Case No. 2910, the Court finds accused CAMILO DE
LETRAN, JOSE SAYSON, RAMON QUIRANTE, FLORO JAYME
and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru falsification of Public Documents
as defined and penalized in Articles 318 and 171, in relation to Article
48 of the Revised Penal Code, and there being no modifying
circumstances in attendance, hereby sentences each of them to an
indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
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
Pesos (P 27,900.00); and, to pay their proportionate share of the
costs.19 (Emphasis supplied.)
In Criminal Case No. 2914, the Court finds accused CAMILO DE
LETRAN, JOSE SAYSON, RAMON QUIRANTE, EXPEDITO
TORREVILLAS and SIMON FERNAN, Jr., GUILTY beyond reasonable
doubt as co-principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
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 Pesos (P
27,000.00); and, to pay their proportionate share of the costs.
(Emphasis supplied.)
In Criminal Case No. 2919, the Court finds accused CAMILO DE
LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA,
ZOSIMO MENDEZ, EXPEDITO TORREVILLAS and ISMAEL SABIO, Jr.
GUILTY beyond reasonable doubt as co-principals in the crime of
Estafa thru falsification of Public Documents as defined and penalized
in Articles 318 and 171, in relation to Article 48 of the Revised Penal
Code, and there being no modifying circumstances in attendance,
hereby sentences each of them to an indeterminate penalty ranging
from six (6) years of prision correccional, as minimum, to ten (10)
years, eight (8) months and one (1) day of prision mayor, as
maximum, with the accessory penalties 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
Thirty One Thousand Pesos (P 31,000.00); and, to pay their
proportionate share of the costs.20 (Emphasis supplied.)
In Criminal Case No. 2932, the Court finds accused CAMILO DE
LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA,
PEDRITO SEVILLE and EXPEDITO TORREVILLAS GUILTY beyond
reasonable doubt as co-principals in the crime of Estafa thru
falsification of Public Documents as defined and penalized in Articles
318 and 171, in relation to Article 48 of the Revised Penal Code, and
there being no modifying circumstances in attendance, hereby
sentences each of them to an indeterminate penalty ranging from six
(6) years of prision correccional, as minimum, to ten (10) years, eight
(8) months and one (1) day of prision mayor, as maximum, with the
accessory penalties 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 Forty Four Thousand
Seven Hundred Sixty Two Pesos and 58/100 (P 44,762.58); and, to pay
their proportionate share of the costs.21 (Emphasis supplied.)
Petitioners made the supplication before the court a quo to recall the
adverse judgments against them which was declined by the August
29, 2000 SB Resolution.
Firm in their belief that they were innocent of any wrongdoing, they
now interpose the instant petition to clear their names.
The Issues
Petitioners put forward two (2) issues, viz:
I
Compiled by: Vim Malicay
 The honorable Sandiganbayan totally ignored petitioners
constitutional right to be presumed innocent when it ruled
that the burden of convincing the hon. Court that the
deliveries of the road materials attested to have been
received by them were not ghost deliveries rests with the
accused and not with the prosecution.
II
The honorable sandiganbayan erred in convicting
petitioners as co-conspirators despite the prosecutions
failure to specifically prove beyond reasonable doubt the
facts and circumstances that would implicate them as co-
conspirators and justify their conviction.
The Courts Ruling
We are not persuaded to nullify the verdict.
Petitioners guilt was established beyond reasonable doubt
Petitioners mainly asseverate that their guilt was not shown beyond
a peradventure of doubt and the State was unable to show that
government funds were illegally released based on alleged ghost
deliveries in conjunction with false or fake tally sheets and other
documents which they admittedly signed.
We are not convinced.
Our Constitution unequivocally guarantees that in all criminal
prosecutions, the accused shall be presumed innocent until the
contrary is proved.22 This sacred task unqualifiedly means proving the
guilt of the accused beyond a reasonable doubt. Definitely,
"reasonable doubt" is not mere guesswork whether or not the
accused is guilty, but such uncertainty that "a reasonable man may
entertain after a fair review and consideration of the evidence."
Reasonable doubt is present when
after the entire comparison and consideration of all the evidences,
leaves the minds of the [judges] in that condition that they cannot say
they feel an abiding conviction, to a moral certainty, of the truth of
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
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.
Petitioners were charged with the complex crime of estafa through
falsification of public documents as defined and penalized under
Articles 318 and 171 in relation to Article 48 of the Revised Penal
Code, thus:
ART. 318. Other deceits. The penalty of arresto mayor and a fine of
not less than the amount of the damage caused and not more than
twice such amount shall be imposed upon any person who shall
defraud or damage another by any deceit not mentioned in the
preceding articles of this chapter.
ART. 171. Falsification by public officer, employee; or notary or
ecclesiastical minister. The penalty of prision mayor and a fine not
to exceed 5,000 pesos shall be imposed upon any public officer,
employee, or notary who, taking advantage of his official position,
shall falsify a document by committing any of the following acts:
xxxx
4. Making untruthful statements in a narration of facts;
ART. 48. Penalty for complex crimes. When a single act constitutes
two or more grave or less grave felonies, or when an offense is a
necessary means for committing the other, the penalty for the most
serious crime shall be imposed, the same to be applied in its
maximum period.
The complex crime is pruned into the following essential elements:
For estafa
1. Deceit: Deceit is a specie of fraud. It is actual fraud, and
consists in any false representation or contrivance whereby
one person overreaches and misleads another, to his hurt.
There is deceit when one is misled, either by guile or
trickery or by other means, to believe to be true what is
really false.24
2. Damage: Damage may consist in the offended party
being deprived of his money or property as a result of the
defraudation, disturbance in property right, or temporary
prejudice.25
For falsification
1. That the offender is a public officer, employee, or notary
public;
2. That he takes advantage of his official position;
3. That he falsifies a document by committing any of the
acts defined under Article 171 of the Revised Penal Code.26
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:
(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
adopt as the testimony of Preagido in the instant cases, her
previous testimonies in Criminal Cases Nos. 889, etc.
(Mandaue City HED 78 cases), on May 18 and 19, 1982 and
in Criminal Cases Nos. 1446-1789, etc. (Danao City HED 77
cases) on November 10, 1987 and March 14, 1988, both on
direct and cross examination x x x without prejudice to
whatever direct and/or cross examination question, that
may be propounded by the Prosecution and the accused on
said State witness, which questions will only be limited to
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
irregular LAAs and SACDCs in said engineering district in
the said year and the participation of the accused thereon;
(2) That in the event Mrs. Delia Preagido is presented to
testify as a State witness in the instant cases without
reproducing and adopting her previous testimonies in the
Mandaue City HED 78 and the Danao City HED 77 cases,
she will identify documents and exhibits which have been
previously marked and identified by other prosecution
witness x x x.
(3) That in the previous testimonies of Mrs. Delia Preagido
in the Mandaue City HED 78 and the Danao City HED 77
cases, she identified twenty-six separate lists containing
names of officials and employees of MPH, Regional Office
No. VII, of the various Highways Engineering Districts in
MPH, Region VII, and the MPH Central Office who have
allegedly received money or various sums from 1977 to
1978 out of the proceeds or sales of fake LAAs in 1977 and
1978 and, therefore, to obviate Mrs. Preagidos previous
testimony of these lists, the Prosecution hereby reproduces
and adopts specifically such testimony and the markings of
the lists, i.e., Exhibits KKK, KKK-1 to KKK-25 in the
Mandaue City HED 78 cases and Exhibits 0000, 0000-1 to
0000-25 in the Danao City HED 77 cases, substituted or re-
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
As a result of this MOA, the testimony of state witness Preagido on
the modus operandi of the conspirators, or the unique and distinct
method of procedure by which the malversation of public funds in
Region VII of the MPH was perpetrated and accomplished, dealt a
major blow to the defenses raised by petitioners. Preagidos vital
testimony, wherein she identified the methods, documents, exhibits,
and other pertinent papers that led to the crafting of fake Letters of
Advice of Allotment (LAAs),28 general vouchers, disbursement of
funds for non-existent projects, general vouchers, and other
documents, was not even successfully refuted or overturned by
petitioners.
Preagido confirmed and admitted under oath that the illegal
disbursement of public funds pertained to non-existent projects and
was supported by fake LAAs, fake general vouchers, and other
pertinent papers that were also falsified. The fake LAAs and general
vouchers were, in turn, supported by signed tally sheets that
pertained to alleged ghost deliveries of road construction materials
for non-existent or illegal projects.
The fake tally sheets, delivery receipts, reports of inspection, requests
for supplies and materials, and other related documents signed on
separate occasions by petitioners, which were attached as supporting
documents to corresponding general vouchers; the alleged amounts
and quantities of road construction materials delivered; and the
specific fake general vouchers, checks, and other pertinent
documents issued which led to the illegal disbursement of funds are
summarized as follows:
Petitioner Fernan, Jr.
On the part of petitioners, they readily admitted that they either
signed the tally sheets and/or delivery receipts, reports of inspection,
requests for supplies and materials, and other related documents
which became part of the supporting documents that led to the
issuance of general vouchers and eventually the disbursement of
public funds.29 The tally sheets are statements of delivery that
purportedly indicated the specified quantities of materials for the
construction and maintenance of roads that have been delivered on
supposed project sites on given dates at specific places.
As a result of petitioners signatures in the tally sheets and/or delivery
receipts, reports of inspection, requests for supplies and materials,
and other supporting documentswhich became the basis for
payment to supplierspublic funds were released via general
vouchers and checks to the said suppliers despite the fact that the
latter did not make any deliveries in accordance with projects
allegedly funded by mostly fake LAAs.
The accusation that there were no actual deliveries of road
construction and maintenance materials in support of projects or
otherwise funded by LAAs was proven true by the testimonies of the
various barangay captains and residents of the barangay who were
supposed to be benefited by the construction and repair activities of
the Cebu First Highway Engineering District. The testimonies of these
barangay captains and residents are summarized as follows:30
1. MACARIO LIMALIMA, Barangay Captain of Barangay Antipolo,
Medellin, Cebu, testified that his barangay is traversed by the national
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
major repairs were undertaken on the said road in 1978 or in previous
years. (TSN., pp. 6-14, June 5, 1986).31
2. FELOMINO ORBISO, Barangay Captain of Cawit, Medellin, Cebu,
from 1972 to 1981, testified that his barangay is traversed by the
national highway, stretching from Km. 125 to Km. 127.9. He described
the road as a rough or dirt road. No improvement was ever made on
this road whether during the year when he gave his statement to the
NBI (1978) or in previous years. The road remained in bad shape, with
numerous potholes which the camineros merely filled up with
limestone. (TSN., pp.14-19, June 5, 1986).32
3. TIMOTEO ANCAJAS, Barangay Captain of Paypay, Daan Bantayan,
Cebu, from 1972 to 1982, testified that his barangay is traversed by
the national highway, stretching from Km. 132 to Km. 134 , or a
distance of 2 kilometers. He described the portion of the highway
as a rough road with potholes. He stated that the only improvement
done on this road was the filling up of the potholes with "anapog" or
crushed limestone and this was done only once in 1977. It even took
the camineros three months from the time the limestones were
delivered to start working on the road. (TSN., pp. 20-26, June 5,
1986).33
4. LUCIA PEAFLOR, Barangay Captain of Don Pedro, Bogo, Cebu,
from 1966 to 1982, testified that her barangay is traversed by the
national highway, stretching from Km. 103 to Km. 105 , up to the
boundary of San Remigio, and from the boundary to Daan Bantayan,
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
that, the road was maintained by filling up the potholes with crushed
limestone or "anapog." These potholes started to appear between
January and June of 1977. However, as alleged by her in her affidavit
Compiled by: Vim Malicay
(Exh. II-1-d), these potholes were filled up only from January to June,
1978. (TSN., pp. 28-46, June 5, 1986).34
5. MARCELO CONEJOS, Barangay Captain of Tapilon, Daan Bantayan,
from 1972 to 1982, testified that his barangay is traversed by the
national highway, stretching from Km. 130 to Km. 134, or a distance
of 4 kilometers. In 1977, said portion of the national highway was in
bad condition and that nothing was done to improve it until 1982,
except for the time when the potholes were filled up with crushed
limestones. (TSN., pp. 48-56, June 5, 1986).35
6. REMEDIOS FELICANO, Barangay Captain of Looc, San Remigio, Cebu
from 1977 to 1982, testified that her barangay is traversed by the
national highway, stretching form Km. 109 to Km. 110. She described
said portion of the national highway as "stoney." The only
maintenance work undertaken to improve the road was the filling up
of potholes with crushed limestone which camineros gathered from
the roadside. (TSN., pp.57-67, June 5, 1986).36
7. ALBERTO BRANSUELA, a resident of Barangay San Jose, Catmon,
Cebu, from 1974 to 1978, testified that barangay San Jose is traversed
by the national highway (Km. 58), covering a distance of kilometer
more or less. He stated that while this portion of the national highway
was already asphalted as of 1977, there were potholes which the
camineros filled up with anapog taken from the roadside. (TSN., pp.
69-80), June 5, 1986).37
8. CARIDAD PUNLA, Acting Barangay Captain of Barangay Corazon,
Catmon, Cebu, from 1977 to 1982, testified that the Poblacion of
Catmon is traversed by the national highway, stretching from Km. 57
to Km. 58. In 1977, only more than of this portion of the national
highway was cemented while the remaining portion was asphalted.
While said portion of the national highway already had cracks and
potholes as of 1977, the real problem was the uneven elevation of the
surface of the shoulder of the road. No general repair was undertaken
by the authorities to correct the uneven elevation, except for the
work done by the camineros who covered up the potholes. (TSN., pp.
81-89, June 5, 1986).38
9. FELIPE MOLIT, Barangay Captain of Bao, Sugud, Cebu, from 1975 to
1982, testified that barangay Bao was traversed by the national
highway, stretching from Km. 59 to Km. 60 1/2. He described said
portion of the national highway as a gravel road surfaced with
anapog. In 1977, the said road already had potholes which
maintenance men filled up with anapog beginning in March, 1977.
The anapog was hauled in from Km. 64, the usual excavation place of
anapog. It took only 3 truckloads of anapog to cover the entire length
of the 1 kilometers traversing their barangay. (TSN., pp. 90-99, June
5, 1986).39
10. LEONARDO PINOTE, Barangay Captain of Barangay Argawanon,
San Remigio, Cebu, from 1972 to 1980, testified that his barangay is
traversed by the national highway covering a distance of kilometers
more or less. In 1977, this portion of the national highway was a rough
road with potholes. In the same year, camineros worked on the road,
using wheelbarrows, shovels and rakes, pitching up the potholes with
anapog. (TSN., pp. 29-35, June 6, 1986).40
11. PEDRO ORSAL, Barangay Captain of Poblacion, San Remigio, Cebu,
from January 1972 to 1980, testified that his barangay is traversed by
the national highway, from Km. 107 to Km. 110, or a distance of three
kilometers more or less. In 1977, the road from Km. 107 to Km. 108
was a gravel road. It was properly maintained by the highways people,
and every time potholes appeared on the road, they would be filled-
up with anapog. This material was dumped along the road by trucks
of the Bureau of Public Highways. On the other hand, the road leading
to the heart of the poblacion was asphalted, but with potholes. In
1977, the potholes were filled up by camineros with gravel delivered
by dump trucks of the Bureau of Public Highways. It was only in 1978
when the road was re-asphalted and extended from the junction of
the poblacion to the adjacent barrio of Looc. x x x (TSN., pp.36-45,
June 6, 1986).41
The inescapable conclusion from the aforementioned testimonies of
the barangay captains and residents of Cebu whose respective
barangay are traversed by the national highway is that there were no
actual major repair works undertaken on the national highway except
the filling of potholes by crushed limestone (anapog). Clearly, there
were no deliveries of supplies and materials for asphalting and repair
of roads described in the tally sheets and other supporting documents
signed by petitioners.
While petitioner Torrevillas presented Vice-Mayor Emigdio Tudlasan
of Tabuclan, Cebu, who testified that he saw the asphalting of the
Tabuclan Road from kilometers 18 to 19, said testimony is not
conclusive on the actual delivery of the supplies indicated in the tally
sheets, as Tudlasan was not present at the time of alleged delivery.
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
testified that she was Barangay Captain of Looc, San Remigio, Cebu
from 1977 to 1982; that her barangay is traversed by the national
highway, stretching from km. 109 to km. 110; and that the only work
undertaken to improve the road was the filling up of potholes with
crushed limestone which camineros gathered from the roadside. On
the other hand, Orsal testified that he was Barangay Captain of
Poblacion, San Remigio, Cebu, from January 1972 to 1980; that his
barangay is traversed by the national highway, from km. 107 to km.
110; that in 1977, the road from km. 107 to km. 108 was a gravel road
maintained by the highways people, and every time potholes
appeared on the road, they would be filled-up with anapog, which
was dumped along the road by the Bureau of Public Highways; and
that it was only in 1978 when the road was re-asphalted and extended
from the junction of the poblacion to the adjacent barrio of Looc.
Compared to the testimony of Vice-Mayor Tudlasan, the testimonies
of Barangay Captains Feliciano and Orsal are entitled to more weight
and credit, and are more credible considering the fact that they are
residents of the area where the road supposedly to be repaired is
located plus the fact that they saw only limestone, not asphalt, that
was used in the repair of the road in 1977. The testimonies of
Feliciano and Orsal are further buttressed by the findings and
statements of government witnesses, namelyRuth Inting Paredes,
Supervising Commission on Audit (COA) Auditor assigned to Region
VII; Felicitas Cruz Ona, Supervising COA Auditor assigned to the main
COA office; Federico A. Malvar, Senior National Bureau of
Investigation (NBI) Agent of the Anti-Graft Section and member of the
COA NBI team assigned to investigate the anomalies; Rogelio C.
Mamaril, Supervising NBI Agent of the Anti-Fraud and Action Section;
and Delia Comahig Preagido, Accountant III, MPH, Region VIIto the
effect that the general vouchers and LAAs that corresponded to the
aforementioned tally sheets signed by petitioner Torrevillas were fake
or falsified. Undeniably, the government witnesses have no motive to
testify falsely against petitioner Torrevillas and, hence, credible. We
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 subjects of Criminal Case Nos. 2855, 2856, 2858, and 2859.
Glaring is the finding of the SB that the Cebu First Highway
Engineering District, to which petitioners were assigned, had fake
LAAs totaling to PhP 4,924,366.50, while the fake Cash Disbursement
Ceilings issued amounted to PhP 6,271,150.42 The Cebu First Highway
Engineering District had also issued checks per unrecorded reports in
the total sum of PhP 1,135,176.82.43 Therefore, the total illegal
disbursements in the Cebu First Highway Engineering District alone
were a staggering PhP 12,330,693.32 circa 1977.
Of this total, petitioner Fernan, Jr. freely admitted signing tally sheets
which pertained to non-existent deliveries of road construction
supplies and materials totaling PhP 146,000,44 including PhP 27,000 in
Criminal Case No. 2914 where petitioner Torrevillas was among the
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.
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
On his part, petitioner Torrevillas voluntarily admitted to signing tally
sheets, reports of inspection, requisitions of supplies and equipment,
and other pertinent documents totaling an even greater amount of
PhP 337,861.01,47 including PhP 27,000 in Criminal Case No. 2914
where petitioner Fernan, Jr. was among the co-accused.48 These
documents signed by petitioner Torrevillas were likewise attached as
supporting papers to fake general vouchers which facilitated the
release of check payments to suppliers.
These checks were allegedly paid to suppliers Rufino V. Nuez
(Criminal Case Nos. 2855, 2856, 2858, and 2859), Juliana de los
Angeles (Criminal Case Nos. 2909, 2910, and 2914), Ismael Sabio, Jr.
(Criminal Case No. 2919), and Manuel Mascardo (Criminal Case No.
2932).49
These general vouchers and checks could not be traced to genuine
LAAs. Ergo, there were no actual deliveries of supplies and materials
for the road repair and rehabilitation in Region VII, which were the
subjects of the criminal cases where petitioners were charged.
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
public documents were present. There is no question that petitioners,
at the time of the commission of the crime, were public officerscivil
engineersassigned to the MPH. Their signing of tally sheets and
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
had the duty to inspect the purported deliveries and ascertain the
veracity of the documents and the statements contained in them.
The tally sheets bearing their signatures contained false recitals of
material facts which the petitioners had the duty to verify and
confirm. These tally sheets were attached as supporting documents
to fake LAAs and subsequently became the bases for the
disbursement of public funds to the damage and prejudice of the
government. Indubitably, there exists not even an iota of doubt as to
petitioners guilt.
The essential elements of estafa through falsification of public
documents are present in the cases against petitioners, as follows:
1. Deceit: Petitioners Fernan, Jr. and Torrevillas made it appear that
supplies for road construction and maintenance were delivered by
suppliers allegedly in furtherance of alleged lawful projects when in
fact said supplies were not delivered and no actual asphalting or
repair of road was implemented. In doing so, petitioners:
1.1. Were public officers or employees at the time of the commission
of the offenses;
1.2. Took advantage of their official position as highway engineers;
and
1.3. Made untruthful statements in several narrations of fact.
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.
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
introduced in evidence. It is an age-old axiom that s/he who alleges
something must prove it. Petitioners assertion that the documents
they signed were all genuine and duly covered by genuine LAAs was
substantiated only by their own self-serving and uncorroborated
testimonies. We hesitate to give much weight and credit to their bare
testimonies in the face of clear, convincing, overwhelming, and hard
evidence adduced by the State.
If the genuine LAAs were vital to their defense, and they firmly
believed that the documents were indeed in the custody of the NBI,
then petitioners could have easily procured the compulsory process
to compel the production of said documents. However, petitioners
miserably failed to avail of subpoena duces tecum which the court a
quo could have readily granted. The inability to produce such
important and exculpatory pieces of evidence proved disastrous to
petitioners cause. Their conviction was indeed supported by proof
beyond reasonable doubt which was not overturned by defense
evidence.
Petitioners acted in conspiracy with one another
Petitioners vigorously claim error on the part of the lower court when
it made the finding that they were co-conspirators with the other
parties accused despite the dearth of evidence to amply demonstrate
complicity.
We are not convinced by petitioners postulation.
Indeed, the burden of proving the allegation of conspiracy falls to the
shoulders of the prosecution. Considering, however, the difficulty in
establishing the existence of conspiracy, settled jurisprudence finds
no need to prove it by direct evidence. In People v. Pagalasan, the
Court explicated why direct proof of prior agreement is not necessary:
After all, secrecy and concealment are essential features of a
successful conspiracy. Conspiracies are clandestine in nature. It may
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
common purpose and design. Conspiracy may be implied if it is
proved that two or more persons aimed their acts towards the
accomplishment of the same unlawful object, each doing a part so
that their combined acts, though apparently independent of each
other, were in fact, connected and cooperative, indicating a closeness
of personal association and a concurrence of sentiment. To hold an
accused guilty as a co-principal by reason of conspiracy, he must be
shown to have performed an overt act in pursuance or furtherance of
the complicity. There must be intentional participation in the
transaction with a view to the furtherance of the common design and
purpose.50
In Estrada v. Sandiganbayan, we categorized two (2) structures of
multiple conspiracies, namely: (1) the so-called "wheel" or "circle"
conspiracy, in which there is a single person or group (the "hub")
dealing individually with two or more other persons or groups (the
"spokes"); and (2) the "chain" conspiracy, usually involving the
distribution of narcotics or other contraband, in which there is
successive communication and cooperation in much the same way as
with legitimate business operations between manufacturer and
wholesaler, then wholesaler and retailer, and then retailer and
consumer.51
We find that the conspiracy in the instant cases resembles the
"wheel" conspiracy. The 36 disparate persons who constituted the
massive conspiracy to defraud the government were controlled by a
single hub, namely: Rolando Mangubat (Chief Accountant), Delia
Preagido (Accountant III), Jose Sayson (Budget Examiner), and
Edgardo Cruz (Clerk II), who controlled the separate "spokes" of the
conspiracy. Petitioners were among the many spokes of the wheel.
We recall the painstaking efforts of the SB through Associate Justice
Cipriano A. Del Rosario, Chairperson of the Third Division, in
elaborating the intricate web of conspiracy among the accused, thus:
Mangubat enticed Preagido, Cruz and Sayson to join him. All three
agreed to help him carry out his plan. They typed fake LAAs during
Saturdays. Cruz and Sayson also took charge of negotiating or selling
fake LAAs to contractors at 26% of the gross amount. Preagido
manipulated the general ledger, journal vouchers and general journal
through negative entries to conceal the illegal disbursements. In the
initial report of COA auditors Victoria C. Quejada and Ruth I. Paredes
it was discovered that the doubtful allotments and other anomalies
escaped notice due to the following manipulations:
The four formed the nucleus of the nefarious conspiracy. Other
government employees, tempted by the prospect of earning big
money, allowed their names to be used and signed spurious
documents.
xxxx
3. Cebu First Highway Engineering District Anomalies
Focusing our attention now on the anomalies committed in the Cebu
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
VII was followed. The Cebu First HED received from Region VII thirty-
four Letters of Advice of Allotment (LAAs) in the total sum of
P4,734,336.50 and twenty-nine (29) corresponding Sub-Advices of
Cash Disbursement Ceiling (SACDCs), amounting to P5,160,677.04 for
the period January 1, 1977 to December 31, 1977. But apart from this,
the Cebu First HED appears to have also received for the same period
another set of eighty-four (84) LAAs amounting to P4,680,694.76
which however, could not be traced to any Sub-Advice of Allotment
(SAA) OR MATCHED TO THE Advices of Cash Disbursement Ceiling
(ACDCs) received from the MPH and Regional Office. This is highly
irregular and not in consonance with accounting procedures.
It was also made to appear that the payments were made for alleged
prior years obligations and chargeable to Account 81-400, obviously
because, they were not properly funded. Furthermore, the list of
projects in Region VII for 1977 showed that Cebu first HED completed
rehabilitation and/or improvement of roads and bridges in its districts
from February to May, 1977, with expenditures amounting to
P613,812.00. On the other hand, the expenditures for barangay roads
in the same district in 1977 amounted to P140,692.00, and 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. However, an
additional amount of P3,839,810.74, was spent by the Cebu First HED
for maintenance of roads and bridges for the same year (1977) but
the same could not be traced to any authoritative document coming
from the MPH.
The following payments for materials purchased for the year 1977
were made to appear as payment for prior years obligation and were
paid out of fake LAAs:

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
ACDCs, were traced back to Rolando Mangubat, Regional Accountant
of Region VII and Adventor Fernandez, Regional Highway Engineer,
also of Region VII. Those LAAs and ACDCs became the vehicles in the
disbursement of funds amounting to P3,839,810.74, through the
vouchers purportedly issued for the purchase and delivery of the
aforementioned materials allegedly used for the maintenance 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
improvement (Exhibit II). As testified to by several barangay captains,
the road maintenance consisted merely of spreading anapog or
limestone on potholes of the national Highway.
Obviously, the vouchers for payments of alleged maintenance of
roads and bridges in the additional amount of P3,839,810.74 were
prepared for no other purpose than to siphon off the said amount
from the government coffer into the pockets of some officials and
employees of Region VII and the Cebu First HED, as well as the
suppliers and contractors who conspired and confederated with
them.53
After a close re-examination of the records, the Court finds no reason
to disturb the finding of the anti-graft court that petitioners are co-
conspirators of the other accused, headed by Chief Accountant
Rolando Mangubat, who were similarly convicted in practically all the
119 counts of estafa. Undisturbed is the rule that this Court is not a
trier of facts and in the absence of strong and compelling reasons or
justifications, it will accord finality to the findings of facts of the SB.
The feeble defense of petitioners that they were not aware of the
ingenuous plan of the group of accused Mangubat and the
indispensable acts to defraud the government does not merit any
consideration. The State is not tasked to adduce direct proof of the
a. The ROA;
b. The PO;
c. The abstract of Bid together with the Bid quotations;
d. The delivery receipts together with the tally sheets; and
e. The tax clearance and tax certificate of the supplier.
After the preparation and submission of the general voucher and the
supporting documents, the disbursing officer shall prepare and draw
a check based on said voucher. The check is countersigned by an
officer of the district office and/or the COA Regional Director based
on the amount of the check.
Thus, it is clear that without the tally sheets and delivery receipts, the
general voucher cannot be prepared and completed. Without the
general voucher, the check for the payment of the supply cannot be
made and issued to the supplier. Without the check payment, the
defraudation cannot be committed and successfully consummated.
Thus, petitioners acts in signing the false tally sheets and/or delivery
receipts are indispensable to the consummation of the crime of estafa
thru falsification of public documents. Surely, there were ghost or
false deliveries of supplies and materials as convincingly shown by the
testimonies of the barangay captains, officials, and residents of the
areas where the materials were allegedly used. More importantly, if
there were actual deliveries of materials made, then there would be
no need to fake the LAAs because the suppliers will have to be paid
the cost of said materials plus a reasonable profit. As a result, there is
nothing or not much to share with the more than 30 or so co-
conspirators, for the suppliers would not be too dim-witted to part

Compiled by: Vim Malicay

with even their cost in buying the materials they allegedly supplied.
Moreover, the fake delivery receipts and tally sheets signed by
petitioners were linked to the general vouchers upon which check
payments were made to the suppliers who were found guilty of
participating in the fraud. With respect to petitioner Fernan, Jr., he
signed tally sheets on the ghost deliveries of Juliana de los Angeles
and Ismael Sabio, Jr. On the part of petitioner Torrevillas, he signed
false tally sheets and delivery receipts on supplies allegedly delivered
by Rufino V. Nuez, Juliana de los Angeles, Ismael Sabio, Jr., and
Manuel Mascardo. Lastly, the checks issued to these suppliers based
on general vouchers supported by the false tally sheets and general
vouchers signed by petitioners cannot be traced to any genuine LAAs,
resulting in the inescapable conclusion that these LAAs were
unauthorized; hence, fake or fabricated. These are undisputed tell-
tale signs of the complicity by petitioners with the Mangubat
syndicate.
In People v. Mangubat, the court a quo elucidated the conspiracy in
the Cebu highway scam in a trenchant manner:
Where the acts of each of the accused constitute an essential link in a
chain and the desistance of even one of them would prevent the chain
from being completed, then no conspiracy could result as its
consummation would then be impossible or aborted. But when each
and everyone of the accused in the instant cases performed their
assigned tasks and roles with martinet-like precision and accuracy, by
individually performing essential overt acts, so much so that the
common objective is attained, which is to secure the illegal release of
public funds under the guise of fake or simulated public documents,
then each and everyone of said accused are equally liable as co-
principals under the well-established and universally-accepted
principle that, once a conspiracy is directly or impliedly proven, the
act of one is the act of all and such liability exists notwithstanding no-
participation in every detail in the execution of the offense.54
In sum, the required quantum of proof has been adduced by the State
on the conspiracy among the accused including petitioners. The
conviction of petitioners must perforce be sustained.
WHEREFORE, we DENY the petition and AFFIRM the December 4,
1997 Decision of the SB in the consolidated criminal cases subject of
this petition.
No costs.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
Article 9- Grave, Less Grave and Light Felonies
Article 10- Offenses not subject to the provisions of this Code
GO-TAN VS TAN
(567 SCRA 231)
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45
of the Rules of Court assailing the Resolution1 dated March 7, 2005 of
the Regional Trial Court (RTC), Branch 94, Quezon City in Civil Case No.
Q-05-54536 and the RTC Resolution2 dated July 11, 2005 which
denied petitioner's Verified Motion for Reconsideration.
The factual background of the case:
On April 18, 1999, Sharica Mari L. Go-Tan (petitioner) and Steven L.
Tan (Steven) were married.3Out of this union, two female children
were born, Kyra Danielle4 and Kristen Denise.5 On January 12, 2005,
barely six years into the marriage, petitioner filed a Petition with
Prayer for the Issuance of a Temporary Protective Order
(TPO)6 against Steven and her parents-in-law, Spouses Perfecto C. Tan
and Juanita L. Tan (respondents) before the RTC. She alleged that
Steven, in conspiracy with respondents, were causing verbal,
psychological and economic abuses upon her in violation of Section 5,
paragraphs (e)(2)(3)(4), (h)(5), and (i)7 of Republic Act (R.A.) No.
9262,8 otherwise known as the "Anti-Violence Against Women and
Their Children Act of 2004."
On January 25, 2005, the RTC issued an Order/Notice9 granting
petitioner's prayer for a TPO.
On February 7, 2005, respondents filed a Motion to Dismiss with
Opposition to the Issuance of Permanent Protection Order Ad
Cautelam and Comment on the Petition,10 contending that the RTC
lacked jurisdiction over their persons since, as parents-in-law of the
petitioner, they were not covered by R.A. No. 9262.
On February 28, 2005, petitioner filed a Comment on Opposition11 to
respondents' Motion to Dismiss arguing that respondents were
covered by R.A. No. 9262 under a liberal interpretation thereof aimed
at promoting the protection and safety of victims of violence.
On March 7, 2005, the RTC issued a Resolution12 dismissing the case
as to respondents on the ground that, being the parents-in-law of the
petitioner, they were not included/covered as respondents under
R.A. No. 9262 under the well-known rule of law "expressio unius est
exclusio alterius."13
On March 16, 2005, petitioner filed her Verified Motion for
Reconsideration14 contending that the doctrine of necessary
implication should be applied in the broader interests of substantial
justice and due process.
On April 8, 2005, respondents filed their Comment on the Verified
Motion for Reconsideration15arguing that petitioner's liberal
construction unduly broadened the provisions of R.A. No. 9262 since
the relationship between the offender and the alleged victim was an
essential condition for the application of R.A. No. 9262.
On July 11, 2005, the RTC issued a Resolution16 denying petitioner's
Verified Motion for Reconsideration. The RTC reasoned that to
include respondents under the coverage of R.A. No. 9262 would be a
strained interpretation of the provisions of the law.
Hence, the present petition on a pure question of law, to wit:
WHETHER OR NOT RESPONDENTS-SPOUSES PERFECTO & JUANITA,
PARENTS-IN-LAW OF SHARICA, MAY BE INCLUDED IN THE PETITION
FOR THE ISSUANCE OF A PROTECTIVE ORDER, IN ACCORDANCE WITH
Compiled by: Vim Malicay
REPUBLIC ACT NO. 9262, OTHERWISE KNOWN AS THE "ANTI-
VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004".17
Petitioner contends that R.A. No. 9262 must be understood in the
light of the provisions of Section 47 of R.A. No. 9262 which explicitly
provides for the suppletory application of the Revised Penal Code
(RPC) and, accordingly, the provision on "conspiracy" under Article 8
of the RPC can be suppletorily applied to R.A. No. 9262; that Steven
and respondents had community of design and purpose in tormenting
her by giving her insufficient financial support; harassing and
pressuring her to be ejected from the family home; and in repeatedly
abusing her verbally, emotionally, mentally and physically; that
respondents should be included as indispensable or necessary parties
for complete resolution of the case.
On the other hand, respondents submit that they are not covered by
R.A. No. 9262 since Section 3 thereof explicitly provides that the
offender should be related to the victim only by marriage, a former
marriage, or a dating or sexual relationship; that allegations on the
conspiracy of respondents require a factual determination which
cannot be done by this Court in a petition for review; that
respondents cannot be characterized as indispensable or necessary
parties, since their presence in the case is not only unnecessary but
altogether illegal, considering the non-inclusion of in-laws as
offenders under Section 3 of R.A. No. 9262.
The Court rules in favor of the petitioner.
Section 3 of R.A. No. 9262 defines ''[v]iolence against women and
their children'' as "any act or a series of acts committed by any person
against a woman who is his wife, former wife, or against a woman
with whom the person has or had a sexual or dating relationship, or
with whom he has a common child, or against her child whether
legitimate or illegitimate, within or without the family abode, which
result in or is likely to result in physical, sexual, psychological harm or
suffering, or economic abuse including threats of such acts, battery,
assault, coercion, harassment or arbitrary deprivation of liberty."
While the said provision provides that the offender be related or
connected to the victim by marriage, former marriage, or a sexual or
dating relationship, it does not preclude the application of the
principle of conspiracy under the RPC.
Indeed, Section 47 of R.A. No. 9262 expressly provides for the
suppletory application of the RPC, thus:
SEC. 47. Suppletory Application. - For purposes of this Act, the Revised
Penal Code and other applicable laws, shall have suppletory
application. (Emphasis supplied)
Parenthetically, Article 10 of the RPC provides:
ART. 10. Offenses not subject to the provisions of this Code.
Offenses which are or in the future may be punishable under special
laws are not subject to the provisions of this Code. This Code shall be
supplementary to such laws, unless the latter should specially
provide the contrary. (Emphasis supplied)
Hence, legal principles developed from the Penal Code may be
applied in a supplementary capacity to crimes punished under special
laws, such as R.A. No. 9262, in which the special law is silent on a
particular matter.
Thus, in People v. Moreno,18 the Court applied suppletorily the
provision on subsidiary penalty under Article 39 of the RPC to cases of
violations of Act No. 3992, otherwise known as the "Revised Motor
Vehicle Law," noting that the special law did not contain any provision
that the defendant could be sentenced with subsidiary imprisonment
in case of insolvency.
In People v. Li Wai Cheung,19 the Court applied suppletorily the rules
on the service of sentences provided in Article 70 of the RPC in favor
of the accused who was found guilty of multiple violations of R.A. No.
6425, otherwise known as the "Dangerous Drugs Act of 1972,"
considering the lack of similar rules under the special law.
In People v. Chowdury,20 the Court applied suppletorily Articles 17, 18
and 19 of the RPC to define the words "principal," "accomplices" and
"accessories" under R.A. No. 8042, otherwise known as the "Migrant
Workers and Overseas Filipinos Act of 1995," because said words
were not defined therein, although the special law referred to the
same terms in enumerating the persons liable for the crime of illegal
recruitment.
In Yu v. People,21 the Court applied suppletorily the provisions on
subsidiary imprisonment under Article 39 of the RPC to Batas
Pambansa (B.P.) Blg. 22, otherwise known as the "Bouncing Checks
Law," noting the absence of an express provision on subsidiary
imprisonment in said special law.
Most recently, in Ladonga v. People,22 the Court applied suppletorily
the principle of conspiracy under Article 8 of the RPC to B.P. Blg. 22 in
the absence of a contrary provision therein.
With more reason, therefore, the principle of conspiracy under Article
8 of the RPC may be applied suppletorily to R.A. No. 9262 because of
the express provision of Section 47 that the RPC shall be
supplementary to said law. Thus, general provisions of the RPC, which
by their nature, are necessarily applicable, may be applied
suppletorily.
Thus, the principle of conspiracy may be applied to R.A. No. 9262. For
once conspiracy or action in concert to achieve a criminal design is
shown, the act of one is the act of all the conspirators, and the precise
extent or modality of participation of each of them becomes
secondary, since all the conspirators are principals.23
It must be further noted that Section 5 of R.A. No. 9262 expressly
recognizes that the acts of violence against women and their children
may be committed by an offender through another, thus:
SEC. 5. Acts of Violence Against Women and Their Children. - The
crime of violence against women and their children is committed
through any of the following acts:
xxx
(h) Engaging in purposeful, knowing, or reckless conduct,
personally or through another, that alarms or causes
substantial emotional or psychological distress to the
Compiled by: Vim Malicay
 woman or her child. This shall include, but not be limited to, legislative intent which is not otherwise manifest and should not be
the following acts: permitted to defeat the plainly indicated purpose of the legislature.25

(1) Stalking or following the woman or her child in
public or private places;
(2) Peering in the window or lingering outside the
residence of the woman or her child;
(3) Entering or remaining in the dwelling or on the
property of the woman or her child against
her/his will;
(4) Destroying the property and personal
belongings or inflicting harm to animals or pets of
the woman or her child; and
(5) Engaging in any form of harassment or
violence; x x x. (Emphasis supplied)
In addition, the protection order that may be issued for the purpose
of preventing further acts of violence against the woman or her child
may include
individuals other than the offending husband, thus:
SEC. 8. Protection Orders. x x x The protection orders that may be
issued under this Act shall include any, some or all of the following
reliefs:
The Court notes that petitioner unnecessarily argues at great length
on the attendance of circumstances evidencing the conspiracy or
connivance of Steven and respondents to cause verbal, psychological
and economic abuses upon her. However, conspiracy is an evidentiary
matter which should be threshed out in a full-blown trial on the merits
and cannot be determined in the present petition since this Court is
not a trier of facts.26 It is thus premature for petitioner to argue
evidentiary matters since this controversy is centered only on the
determination of whether respondents may be included in a petition
under R.A. No. 9262. The presence or absence of conspiracy can be
best passed upon after a trial on the merits.
Considering the Court's ruling that the principle of conspiracy may be
applied suppletorily to R.A. No. 9262, the Court will no longer delve
on whether respondents may be considered indispensable or
necessary parties. To do so would be an exercise in superfluity.
WHEREFORE, the instant petition is GRANTED. The assailed
Resolutions dated March 7, 2005 and July 11, 2005 of the Regional
Trial Court, Branch 94, Quezon City in Civil Case No. Q-05-54536 are
hereby PARTLY REVERSED and SET ASIDE insofar as the dismissal of
the petition against respondents is concerned.
SO ORDERED.

(a) Prohibition of the respondent from threatening to

commit or committing, personally or through another, any
of the acts mentioned in Section 5 of this Act; 1avvphi1.net

(b) Prohibition of the respondent from harassing, annoying,

telephoning, contacting or otherwise communicating with
the petitioner, directly or indirectly; x x x (Emphasis
supplied)

Finally, Section 4 of R.A. No. 9262 calls for a liberal construction of the
law, thus:

SEC. 4. Construction. - This Act shall be liberally construed to promote

the protection and safety of victims of violence against women and
their children. (Emphasis supplied)

It bears mention that the intent of the statute is the law 24 and that
this intent must be effectuated by the courts. In the present case, the
express language of R.A. No. 9262 reflects the intent of the legislature
for liberal construction as will best ensure the attainment of the
object of the law according to its true intent, meaning and spirit - the
protection and safety of victims of violence against women and
children.

Thus, contrary to the RTC's pronouncement, the maxim "expressio

unios est exclusio alterius" finds no application here. It must be
remembered that this maxim is only an "ancillary rule of statutory
construction." It is not of universal application. Neither is it
conclusive. It should be applied only as a means of discovering

Compiled by: Vim Malicay