1
G.R. Nos. 133448-53 October 6, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROSELINDO CUTAMORA and ALLAN CUTAMORA,
accused-appellants.
DECISION
YNARES-SANTIAGO, J.:
Accused-brothers Roselindo and Allan Cutamora were
each charged with three (3) counts of rape committed
against their nieces Virginia Cutamora, Gina Cutamora and
Beatriz Cutamora Tampos. The Informations read:
Crim. Case No. 647:
"The undersigned Prosecutor III, as Officer-in-Charge,
Office of the Provincial Prosecution, Agusan del Sur, upon
sworn complaint originally filed by the offended party,
accuses ROSELINDO CUTAMORA of the crime of RAPE,
committed as follows:
That sometime in the year 1989 up to May, 1993, inside the
house of Uldarico Cutamora, at Kalaitan, Bayugan, Agusan
del Sur, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there wilfully, unlawfully and feloniously have carnal
knowledge repeatedly with his niece one Virginia Cutamora
when she was seven (7) years old until she became eleven
(11) years old, against her will.
CONTRARY TO LAW: (Article 335, Revised Penal Code)
Government Center, Prosperidad, Agusan del Sur,
Philippines, September 8, 1993."
Crim. Case No. 651:
"The undersigned Prosecutor III, as Officer-in-Charge,
Office of the Provincial Prosecution, Agusan del Sur, upon
a sworn complaint originally filed by the offended party,
accuses ALLAN CUTAMORA of the crime of RAPE,
committed as follows:
That sometime in the year 1989 up to 1993, inside the
house of Uldarico Cutamora, at Kalaitan, Bayugan, Agusan
del Sur, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there wilfully, unlawfully and feloniously have carnal
knowledge repeatedly with his niece one Virginia Cutamora
when she was seven (7) years old until she became eleven
(11) years old against her will.
CONTRARY TO LAW: (Article 335, Revised Penal Code)
Government Center, Prosperidad, Agusan del Sur,
Philippines, September 8, 1993."
Crim. Case No. 648:
"The undersigned Prosecutor III, as Officer-in-Charge,
Office of the Provincial Prosecution, Agusan del Sur, upon
a sworn complaint originally filed by the offended party,
accuses ROSELINDO CUTAMORA of the crime of RAPE,
committed as follows:
That sometime in the year 1991 up to 1993, inside the
house of Uldarico Cutamora, at Kalaitan, Bayugan, Agusan
del Sur, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there wilfully, unlawfully and feloniously have carnal
knowledge repeatedly with his niece one Gina Cutamora
when she was six (6) years old until she became eight (8)
years old, against her will.
CONTRARY TO LAW: (Article 335, Revised Penal Code)
Government Center, Prosperidad, Agusan del Sur,
Philippines, September 8, 1993."
Crim. Case No. 649:
"The undersigned Prosecutor III, as Officer-in-Charge,
Officer of the Provincial Prosecution, Agusan del Sur, upon
a sworn complaint originally filed by the offended party,
accuses ALLAN CUTAMORA of the crime of RAPE,
committed as follows:
That sometime in the year 1991 up to 1993, inside the
house of Uldarico Cutamora, at Kalaitan, Bayugan, Agusan
del Sur, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there wilfully, unlawfully and feloniously have carnal
knowledge repeatedly with his niece one Gina Cutamora
when she was six (6) years old until she became eight (8)
years old, against her will.
CONTRARY TO LAW: (Article 335, Revised Penal Code)
Government Center, Prosperidad, Agusan del Sur,
Philippines, September 8, 1993."
Crim. Case No. 646:
"The undersigned Prosecutor III, as Officer-in-Charge,
Office of the Provincial Prosecution, Agusan del Sur, upon
a sworn complaint originally filed by the offended party,
accuses ROSELINDO CUTAMORA of the crime of RAPE,
committed as follows:
That sometime in the year 1990 up to 1993, inside the
house of Uldarico Cutamora, at Kalaitan, Bayugan, Agusan
del Sur, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there wilfully, unlawfully and feloniously have carnal
knowledge repeatedly with his niece one Beatriz Tampos y
Cutamora when she was ten (10) years old until she
became thirteen (13) years old, against her will.
CONTRARY TO LAW: (Article 335, Revised Penal Code)
Government Center, Prosperidad, Agusan del Sur,
Philippines, September 8, 1993."
Crim. Case No. 650:
"The undersigned Prosecutor III, as Officer-in-Charge,
Office of the Provincial Prosecution, Agusan del Sur, upon
sworn complaint originally filed by the offended party,
accuses ALLAN CUTAMORA of the crime of RAPE,
committed as follows:
That sometime in the year 1990 up to 1993, at Kalaitan,
Bayugan, Agusan del Sur, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, did then and there wilfully, unlawfully and
feloniously have carnal knowledge repeatedly with his
niece one Beatriz Tampos y Cutamora when she was ten
(10) years old until she became thirteen (13) years old,
against her will.

CONTRARY TO LAW: (Article 335, Revised Penal Code)
Government Center, Prosperidad, Agusan del Sur,
Philippines, September 8, 1993."
Accused-brothers entered a plea of "not guilty" to all the
charges. Trial on the merits thereafter ensued.
The prosecution satisfactorily established that the
complaining witnesses, Virginia Cutamora, Gina Cutamora,
and Beatriz Tampos y Cutamora were all staying at the
house of their grandparents Uldarico and Cedra Cutamora
at Kalaitan, Bayugan, Agusan del Sur. Also residing with
them were their uncles, accused Roselindo and Allan
Cutamora.
Virginia Cutamora was first sexually assaulted by her uncle
Roselindo Cutamora when she was only seven (7) years
old. She was ordered to bow down her head after which
accused Roselindo, having removed his pants and briefs,
inserted his penis into her anus. She felt excruciating pain
but could not do otherwise. Having satisfied himself,
Roselindo warned Virginia not to tell on him or she would
be hurt.
The following day, Virginia suffered the same fate at the
hands of accused Allan Cutamora. While inside the room,
Virginia was made to lie down. Allan took off his clothes,
mounted her and made push and pull movements. The
accused then warned her not to tell on him else she would
be killed.
Roselindo and Allan repeatedly performed those bestial
acts on Virginia until she became eleven (11) years old.
In 1991, Gina Cutamora was then six (6) years old. At such
a tender age, she already suffered at the hands of her
uncles Roselindo and Allan Cutamora. It was daytime when
she was first ravished by accused Allan inside the house of
her grandparents. Gina was made to lie down while
accused Allan positioned himself on top of her and made
push and pull movements.
Roselindo took his turn the following day. After all the other
members of the household have left for the farm, he
molested Gina inside their kitchen.
Beatriz was only ten (10) years old when she was
subjected to the lustful desires of Roselindo. Her ordeal at
the hands of Roselindo lasted until she was thirteen (13)
years old. Everytime she was raped, it was always at knife
point. Roselindo warned her not to tell on him else she
would be killed.
Accused Allan likewise did not spare Beatriz. Beatrizs first
sexual assault at the hands of Allan happened inside their
kitchen. Beatriz could not recall how may times she was
assaulted. She did not divulge to anybody her ordeal
because she feared for her life.
Accused-appellants denied the charges filed against them.
They averred that the accusations thrown against them are
devoid of any basis and are utterly meritless. They
maintained that they were at their farm at the time of the
supposed incidents.
After an exhaustive assessment of the evidence presented
by both parties, the trial court found the two accused guilty
as charged and accordingly sentenced them, thus:
2
"In Crim. Cases Nos. 646, 647 and 648, accused Roselindo
Cutamora is sentenced to:
1] Three separate penalties of reclusion perpetua;
2] Indemnify Virginia Cutamora, Gina Cutamora and
Beatriz Tampos the amount of P50,000.00 each;
3] Pay Virginia Cutamora, Gina Cutamora and Beatriz
Tampos P20,000.00 each representing moral damages;
and
4] Indemnify Virginia Cutamora, Gina Cutamora and
Beatriz Tampos P30,000.00 each for exemplary damages.
In Crim. Cases Nos. 649, 650 and 651, accused Allan
Cutamora is sentenced to:
1] Three separate penalties of Reclusion Perpetua;
2] Indemnify victims Gina Cutamora, Virginia Cutamora and
Beatriz Tampos the sum of P50,000.00 each;
3] Pay Virginia Cutamora, Gina Cutamora and Beatriz
Tampos P20,000.00 each for moral damages; and
4] Indemnify Virginia Cutamora, Gina Cutamora and
Beatriz Tampos P30,000.00 each representing exemplary
damages.
With costs.1
In the instant appeal, accused-appellants impute the
following errors on the part of the lower court:
I. THE TRIAL COURT GRAVELY ERRED IN NOT
CONSIDERING THE INFORMATIONS INSUFFICIENT TO
SUPPORT A JUDGMENT OF CONVICTION FOR ITS
FAILURE TO STATE THE DATES OF THE ALLEGED
COMMISSION OF SIX COUNTS OF RAPE, IT BEING AN
ESSENTIAL ELEMENT OF THE CRIME CHARGED.
II. ASSUMING ARGUENDO THAT THE INFORMATIONS
ARE SUFFICIENT, THE LOWER COURT GRAVELY
ERRED IN FINDING THAT ACCUSED-APPELLANTS (sic)
GUILT HAVE (sic) BEEN PROVEN BEYOND
REASONABLE DOUBT.2
Accused-appellants submit that the date and time of the
alleged commission of the rape incidents as stated in the
six (6) informations were "vague and ambiguous" and "too
indefinite to give herein appellants an opportunity to
prepare their defense".3
This Court is not persuaded. Section 6, Rule 110 of the
Rules of Court reads:
SEC. 6. Sufficiency of complaint or information. - A
complaint or information is sufficient if it states the name of
the accused, the designation of the offense by the statute,
the acts or omissions complained of as constituting the
offense; the name of the offended party; the approximate
time of the commission of the offense, and the place
wherein the offense was committed.
When an offense is committed by more than one person,
all of them shall be included in the complaint or information.
(Emphasis supplied)
The purpose of the above-quoted rule is to inform the
accused of the nature and cause of the accusation against
him, a right guaranteed by no less than the fundamental

law of the land. Elaborating on the accuseds right to be
informed, this Court held in Pecho v. People (262 SCRA
518) that the objectives of this right are:
1. To furnish the accused with such a description of the
charge against him as will enable him to make the defense;
2. To avail himself of his conviction or acquittal for
protection against further prosecution for the same cause;
and
3. To inform the court of the facts alleged, so that it may
decide whether they are sufficient in law to support a
conviction if one should be had.
It is thus imperative that the Information filed with the trial
court be complete to the end that the accused may suitably
prepare his defense. Corollary to this, an indictment must
fully state the elements of the specific offense alleged to
have been committed as it is the recital of the essentials of
a crime which delineates the nature and cause of the
accusation against the accused.4 An information is
sufficient as long as it states the statutory designation of
the offense and the acts or omissions constituting the
same.5 It is likewise sufficient if the time averred is near the
actual date as the information of the prosecuting officer will
permit, and since that was done in this case, it was not
shown that the time proved did not surprise or substantially
prejudice the defense.6
The Constitution specifically provides that the accused
must "be informed of the nature and cause of the
accusation against him, in order for him to prepare his
defense." In People v. Manalili, this Court held:
"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 violative of this constitutional right.
Indeed, the accused cannot be convicted of a crime, even if
duly proven, unless it is alleged or necessarily included in
the information filed against him."7
The allegations in the informations filed in the instant case
against all the accused are sufficient and complete. The
names of accused Roselindo and Allan Cutamora were
mentioned. The crime of rape was specially designated.
The acts constituting the crime of rape were enumerated,
i.e., that the accused-appellants had carnal knowledge with
their nieces without their consent and against their will.
Virginia Cutamora, Gina Cutamora and Beatriz Tampos y
Cutamora were named as the offended parties. The
approximate time of the commission of the offense was
stated to be sometime "in the year 1990 up to 1993". The
offense was committed at Kalaitan, Bayugan, Agusan del
Sur.
The dates of the commission of the crimes are not "vague
and ambiguous" or "too indefinite" as to deprive accused-
appellants of their right to be informed of the charges filed
against them. It should be noted that the victims
continuously endured their ordeal at the hands of the
accused-appellants from 1990 until 1993. Moreover, the
victims were minors and, as such, are not expected to
closely monitor the dates of their defilement. Besides, each
of the accused-appellants was convicted only of one count
of rape committed against Virginia, Gina and Beatriz.
3
A rape victim is not and cannot be expected to keep an
accurate account of her traumatic experience. A court
cannot expect a rape victim to remember every ugly detail
of the appalling outrage especially so since she might in
fact have been trying not to remember them. Rape victims
do not cherish in their memories an accurate account of the
dates, number of times and manner they were violated.8
The precise time of the commission of the crime is not an
essential element in the crime of rape9 and therefore need
not be accurately stated.10
More importantly, it is too late at this stage for the accused-
appellants to raise the issue of sufficiency or insufficiency
of the informations filed against them. They should have
raised this issue prior to their arraignment. The records
bear out that accused-appellants did not offer any objection
in this regard before they entered their plea during the
arraignment. Consequently, they are deemed to have
waived any objection on this ground pursuant to Sec. 8 of
Rule 117. The defense should have moved for a bill of
particulars granting that the time of the commission of the
offense was not sufficiently and definitely alleged.
Accused-appellants next claim that the trial court erred in
finding their guilt proven beyond reasonable doubt. This
Court finds otherwise. The issue on this score really boils
down to credibility. Ordinarily, this Court will not disturb the
findings of the trial court as to the credibility of the witness
as it has a better vantage point in observing his candor and
behavior on the witness stand.11 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 and their demeanor,
conduct, and attitude, especially under cross-
examination.12 Its assessment is respected unless certain
facts of substance and value were overlooked which, if
considered, might affect the result of the case.13
In the case at bar, this Court finds the assessment of the
trial court as to the credibility of the witnesses binding and
conclusive, there being no tinge of arbitrariness or
oversight. Besides, and more importantly, this Court finds it
improbable for Virginia, Gina and Beatriz, who were all
minors, naive and innocent to the ways of the world, to
concoct and weave such sordid details of sexual assaults
as can be told only by those who have been personally
subjected to it. Needless to say, it is settled jurisprudence
that testimonies of child-victims are given full weight and
credit, since when a woman, more so if she is a minor, says
that she has been raped, she says in effect all that is
necessary to show that rape was committed.1wphi1 Youth
and immaturity are generally badges of truth and
sincerity.14
Moreover, victims testimonies of their respective
defilement were substantially corroborated by the results of
the medical examination conducted on them by a medico-
legal officer. The medical findings uniformly revealed that
the victims had hymenal lacerations resulting from vulvar
coitus.15
In addition, the defense failed to prove that the complaining
witnesses were impelled by ill-motive as to file serious
charges against them. The complainants lack of ill-motive
to file the rape charges is even more believable considering
that their complaints were filed against their own kin. There
is considerable receptivity on the part of this Tribunal to
lend credence to complainants vision of what transpired,
considering not only their relative vulnerability but also the
shame and embarrassment to which such a gruelling

experience as a court trial, where they are called upon to
lay bare what perhaps should be shrouded in secrecy, did
expose them to. This is not to say that an uncritical
acceptance should be the rule. It is only to emphasize that
skepticism should be kept under control.16
Lastly, accused-appellants denial and alibi are inherently
weak and unreliable.17 It becomes more suspect as
accused-appellants themselves were not consistent as to
the exact distance of the farm from their house. Accused-
appellant Roselindo averred that the farm was 10
kilometers away from their house. On the other hand,
accused-appellant Allan maintained that it was 500 meters
away from their residence. Both accused-appellants failed
to prove that they were at the farm or that it was physically
impossible for them to be at the locus criminis at the time of
the incident. In the absence of strong and convincing
evidence, alibi could not prevail over the positive
testimonies of the victim, who had no improper motive to
testify falsely against accused-appellants.18
The trial court correctly sentenced each of the accused-
appellants to three (3) separate penalties of reclusion
perpetua considering that at the time of the commission of
the offense, the imposable penalty for the crime of rape
was reclusion temporal in its maximum period to death.
Also, the trial court was correct in ordering each of the
accused-appellants to pay Virginia, Gina and Beatriz
P50,000.00 as civil indemnity.19 However, the award of
P20,000.00 to each of the victims representing moral
damages should be increased to P50,000.00 in line with
recent jurisprudence.20
WHEREFORE, in view of the foregoing, accused-
appellants Roselindo Cutamora and Allan Cutamora are
found GUILTY beyond reasonable doubt of three (3) counts
of rape. Accordingly, each is sentenced to three (3)
separate penalties of reclusion perpetua; to pay Virginia
Cutamora, Gina Cutamora, and Beatriz Tampos y
Cutamora P50,000.00 each as civil indemnity; to pay
Virginia Cutamora, Gina Cutamora, and Beatriz Tampos y
Cutamora P50,000.00 each as moral damages.
With costs. SO ORDERED.
G.R. No. 184274 February 23, 2011
MARK SOLEDAD y CRISTOBAL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
NACHURA, J.:
This is a Petition for Review on Certiorari under Rule 45 of
the Rules of Court, seeking to reverse and set aside the
Court of Appeals (CA) Decision1 dated June 18, 2008 and
Resolution2 dated August 22, 2008 in CA-G.R. CR. No.
30603. The assailed Decision affirmed with modification the
September 27, 2006 decision3 of the Regional Trial Court
(RTC), Branch 202, Las Pias City, finding petitioner Mark
C. Soledad guilty beyond reasonable doubt of Violation of
Section 9(e), Republic Act (R.A.) No. 8484, or the Access
Devices Regulations Act of 1998; while the assailed
Resolution denied petitioners motion for reconsideration.
The facts of the case, as narrated by the CA, are as
follows:
4
Sometime in June 2004, private complainant Henry C. Yu
received a call on his mobile phone from a certain "Tess" or
"Juliet Villar" (later identified as Rochelle Bagaporo), a
credit card agent, who offered a Citifinancing loan
assistance at a low interest rate. Enticed by the offer,
private complainant invited Rochelle Bagaporo to go to his
office in Quezon City. While in his office, Rochelle
Bagaporo indorsed private complainant to her immediate
boss, a certain "Arthur" [later identified as petitioner]. In
their telephone conversation, [petitioner] told private
complainant to submit documents to a certain "Carlo" (later
identified as Ronald Gobenchiong). Private complainant
submitted various documents, such as his Globe
handyphone original platinum gold card, identification cards
and statements of accounts. Subsequently, private
complainant followed up his loan status but he failed to get
in touch with either [petitioner] or Ronald Gobenchiong.
During the first week of August 2004, private complainant
received his Globe handyphone statement of account
wherein he was charged for two (2) mobile phone numbers
which were not his. Upon verification with the phone
company, private complainant learned that he had
additional five (5) mobile numbers in his name, and the
application for said cellular phone lines bore the picture of
[petitioner] and his forged signature. Private complainant
also checked with credit card companies and learned that
his Citibank Credit Card database information was altered
and he had a credit card application with Metrobank Card
Corporation (Metrobank).
Thereafter, private complainant and Metrobanks junior
assistant manager Jefferson Devilleres lodged a complaint
with the National Bureau of Investigation (NBI) which
conducted an entrapment operation.
During the entrapment operation, NBIs Special Investigator
(SI) Salvador Arteche [Arteche], together with some other
NBI operatives, arrived in Las Pias around 5:00 P.M.
[Arteche] posed as the delivery boy of the Metrobank credit
card. Upon reaching the address written on the delivery
receipt, [Arteche] asked for Henry Yu. [Petitioner]
responded that he was Henry Yu and presented to
[Arteche] two (2) identification cards which bore the name
and signature of private complainant, while the picture
showed the face of [petitioner]. [Petitioner] signed the
delivery receipt. Thereupon, [Arteche] introduced himself
as an NBI operative and apprehended [petitioner].
[Arteche] recovered from [petitioner] the two (2)
identification cards he presented to [Arteche] earlier. 4
Petitioner was thus charged with Violation of Section 9(e),
R.A. No. 8484 for "possessing a counterfeit access device
or access device fraudulently applied for." The accusatory
portion of the Information reads:
That on or about the 13th day of August 2004, or prior
thereto, in the City of Las Pias, and within the jurisdiction
of this Honorable Court, the above-named accused,
conspiring and confederating with certain Rochelle
Bagaporo a.k.a. Juliet Villar/Tess and a certain Ronald
Gobenciong a.k.a. Carlo and all of them mutually helping
and aiding each other, did then and there willfully,
unlawfully and feloniously defraud complainant HENRY YU
by applying a credit card, an access device defined under
R.A. 8484, from METROBANK CARD CORPORATION,
using the name of complainant Henry C. Yu and his
personal documents fraudulently obtained from him, and
which credit card in the name of Henry Yu was successfully
issued and delivered to said accused using a fictitious

identity and addresses of Henry Yu, to the damage and
prejudice of the real Henry Yu.
CONTRARY TO LAW.5
Upon arraignment, petitioner pleaded "not guilty." Trial on
the merits ensued. After the presentation of the evidence
for the prosecution, petitioner filed a Demurrer to Evidence,
alleging that he was not in physical and legal possession of
the credit card presented and marked in evidence by the
prosecution. In an Order dated May 2, 2006, the RTC
denied the Demurrer to Evidence as it preferred to rule on
the merits of the case.6
On September 27, 2006, the RTC rendered a decision
finding petitioner guilty as charged, the dispositive portion
of which reads:
In the light of the foregoing, the Court finds accused Mark
Soledad y Cristobal a.k.a. "Henry Yu," "Arthur" GUILTY
beyond reasonable doubt of violation of Section 9(e),
Republic Act 8484 (Access Device Regulation Act of 1998).
Accordingly, pursuant to Section 10 of Republic Act 8484
and applying the Indeterminate Sentence Law, said
accused is hereby sentenced to suffer an imprisonment
penalty of six (6) years of prision correccional, as minimum,
to not more than ten (10) years of prision mayor, as
maximum. Further, accused is also ordered to pay a fine of
Ten Thousand Pesos (P10,000.00) for the offense
committed.
SO ORDERED.7
On appeal, the CA affirmed petitioners conviction, but
modified the penalty imposed by the RTC by deleting the
terms prision correccional and prision mayor.
Hence, this petition raising the following issues:
(1) Whether or not the Information is valid;
(2) Whether or not the Information charges an offense, or
the offense petitioner was found guilty of;
(3) Whether or not petitioner was sufficiently informed of
the nature of the accusations against him;
(4) Whether or not petitioner was legally in "possession" of
the credit card subject of the case.8
The petition is without merit.
Petitioner was charged with Violation of R.A. No. 8484,
specifically Section 9(e), which reads as follows:
Section 9. Prohibited Acts. The following acts shall
constitute access device fraud and are hereby declared to
be unlawful:
xxxx
(e) possessing one or more counterfeit access devices or
access devices fraudulently applied for.
Petitioner assails the validity of the Information and claims
that he was not informed of the accusation against him. He
explains that though he was charged with "possession of
an access device fraudulently applied for," the act of
"possession," which is the gravamen of the offense, was
not alleged in the Information.
We do not agree.
5
Section 6, Rule 110 of the Rules of Criminal Procedure lays
down the guidelines in determining the sufficiency of a
complaint or information. It states:
SEC. 6. Sufficiency of complaint or information. A
complaint or information is sufficient if it states the name of
the accused; the designation of the offense given by the
statute; the acts or omissions complained of as constituting
the offense; the name of the offended party; the
approximate date of the commission of the offense; and the
place where the offense was committed.
In the Information filed before the RTC, it was clearly stated
that the accused is petitioner "Mark Soledad y Cristobal
a.k.a. Henry Yu/Arthur." It was also specified in the
preamble of the Information that he was being charged with
Violation of R.A. No. 8484, Section 9(e) for possessing a
counterfeit access device or access device fraudulently
applied for. In the accusatory portion thereof, the acts
constituting the offense were clearly narrated in that
"[petitioner], together with other persons[,] willfully,
unlawfully and feloniously defrauded private complainant
by applying [for] a credit card, an access device defined
under R.A. [No.] 8484, from Metrobank Card Corporation,
using the name of complainant Henry C. Yu and his
personal documents fraudulently obtained from him, and
which credit card in the name of Henry Yu was successfully
issued, and delivered to said accused using a fictitious
identity and addresses of Henry Yu, to the damage and
prejudice of the real Henry Yu." Moreover, it was identified
that the offended party was private complainant Henry Yu
and the crime was committed on or about the 13th day of
August 2004 in the City of Las Pias. Undoubtedly, the
Information contained all the necessary details of the
offense committed, sufficient to apprise petitioner of the
nature and cause of the accusation against him. As aptly
argued by respondent People of the Philippines, through
the Office of the Solicitor General, although the word
"possession" was not used in the accusatory portion of the
Information, the word "possessing" appeared in its
preamble or the first paragraph thereof. Thus, contrary to
petitioners contention, he was apprised that he was being
charged with violation of R.A. No. 8484, specifically section
9(e) thereof, for possession of the credit card fraudulently
applied for.
The Courts discussion in People v. Villanueva9 on the
relationship between the preamble and the accusatory
portion of the Information is noteworthy, and we quote:
The preamble or opening paragraph should not be treated
as a mere aggroupment of descriptive words and phrases.
It is as much an essential part [of] the Information as the
accusatory paragraph itself. The preamble in fact
complements the accusatory paragraph which draws its
strength from the preamble. It lays down the predicate for
the charge in general terms; while the accusatory portion
only provides the necessary details. The preamble and the
accusatory paragraph, together, form a complete whole
that gives sense and meaning to the indictment. x x x.
xxxx
Moreover, the opening paragraph bears the operative word
"accuses," which sets in motion the constitutional process
of notification, and formally makes the person being
charged with the commission of the offense an accused.
Verily, without the opening paragraph, the accusatory
portion would be nothing but a useless and miserably
incomplete narration of facts, and the entire Information

would be a functionally sterile charge sheet; thus making it
impossible for the state to prove its case.
The Information sheet must be considered, not by sections
or parts, but as one whole document serving one purpose,
i.e., to inform the accused why the full panoply of state
authority is being marshaled against him. Our task is not to
determine whether allegations in an indictment could have
been more artfully and exactly written, but solely to ensure
that the constitutional requirement of notice has been
fulfilled x x x.10l
Besides, even if the word "possession" was not repeated in
the accusatory portion of the Information, the acts
constituting it were clearly described in the statement "[that
the] credit card in the name of Henry Yu was successfully
issued, and delivered to said accused using a fictitious
identity and addresses of Henry Yu, to the damage and
prejudice of the real Henry Yu." Without a doubt, petitioner
was given the necessary data as to why he was being
prosecuted.
Now on the sufficiency of evidence leading to his
conviction.
Petitioner avers that he was never in possession of the
subject credit card because he was arrested immediately
after signing the acknowledgement receipt. Thus, he did
not yet know the contents of the envelope delivered and
had no control over the subject credit card.11
Again, we find no value in petitioners argument.
The trial court convicted petitioner of possession of the
credit card fraudulently applied for, penalized by R.A. No.
8484. The law, however, does not define the word
"possession." Thus, we use the term as defined in Article
523 of the Civil Code, that is, "possession is the holding of
a thing or the enjoyment of a right." The acquisition of
possession involves two elements: the corpus or the
material holding of the thing, and the animus possidendi or
the intent to possess it.12 Animus possidendi is a state of
mind, the presence or determination of which is largely
dependent on attendant events in each case. It may be
inferred from the prior or contemporaneous acts of the
accused, as well as the surrounding circumstances.13
In this case, prior to the commission of the crime, petitioner
fraudulently obtained from private complainant various
documents showing the latters identity. He, thereafter,
obtained cellular phones using private complainants
identity. Undaunted, he fraudulently applied for a credit
card under the name and personal circumstances of private
complainant. Upon the delivery of the credit card applied
for, the "messenger" (an NBI agent) required two valid
identification cards. Petitioner thus showed two
identification cards with his picture on them, but bearing the
name and forged signature of private complainant. As
evidence of the receipt of the envelope delivered, petitioner
signed the acknowledgment receipt shown by the
messenger, indicating therein that the content of the
envelope was the Metrobank credit card.
Petitioner materially held the envelope containing the credit
card with the intent to possess. Contrary to petitioners
contention that the credit card never came into his
possession because it was only delivered to him, the above
narration shows that he, in fact, did an active part in
acquiring possession by presenting the identification cards
purportedly showing his identity as Henry Yu. Certainly, he
6
had the intention to possess the same. Had he not actively
participated, the envelope would not have been given to
him. Moreover, his signature on the acknowledgment
receipt indicates that there was delivery and that
possession was transferred to him as the recipient.
Undoubtedly, petitioner knew that the envelope contained
the Metrobank credit card, as clearly indicated in the
acknowledgment receipt, coupled with the fact that he
applied for it using the identity of private complainant.
Lastly, we find no reason to alter the penalty imposed by
the RTC as modified by the CA. Section 10 of R.A. No.
8484 prescribes the penalty of imprisonment for not less
than six (6) years and not more than ten (10) years, and a
fine of P10,000.00 or twice the value of the access device
obtained, whichever is greater. Thus, the CA aptly affirmed
the imposition of the indeterminate penalty of six years to
not more than ten years imprisonment, and a fine of
P10,000.00.
WHEREFORE, premises considered, the petition is
DENIED for lack of merit. The Court of Appeals Decision
dated June 18, 2008 and Resolution dated August 22,
2008 in CA-G.R. CR. No. 30603 are AFFIRMED. SO
ORDERED.
G.R. No. 188322 April 11, 2012
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
JOSEPH ASILAN y TABORNAL, Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
This is an appeal filed by the accused-appellant Joseph
Asilan y Tabornal (Asilan) to challenge the February 25,
2009 Decision1 of the Court of Appeals in CA-G.R. CR.-
H.C. No. 02686, which affirmed in toto his Murder
conviction, rendered by the Regional Trial Court (RTC),
Branch 20 of the City of Manila on January 8, 2007, in
Criminal Case No. 06-243060.
On March 31, 2006, Asilan was charged with the complex
crime of Direct Assault with Murder in an Information,2 the
pertinent portion of which reads:
That on or about March 27, 2006, in the City of Manila,
Philippines, the said accused, conspiring, and
confederating with another whose true name, real identity
and present whereabouts are still unknown and mutually
helping each other, did then and there willfully, unlawfully,
and feloniously attack, assault and use personal violence
upon the person of PO1 RANDY ADOVAS y PE-CAAT, a
member of the Philippine National Police assigned at Camp
Bagong Diwa, Bicutan, Taguig, MM, duly qualified,
appointed, and acting as such, and therefore an agent of a
person in authority, which fact was known to the said
accused, while PO1 RANDY ADOVAS y PE-CAAT was in
the performance of his official duty, that is, while
handcuffing the at-large co-conspirator for illegal
possession of deadly weapon, herein accused suddenly
appeared and with intent to kill, treachery and evident
premeditation, attack, assault, and use personal violence
upon said police officer by then and there repeatedly
stabbing the latter with a fan knife then grabbing his service
firearm and shooting him, thereby inflicting upon the said
PO1 RANDY ADOVAS y PE-CAAT mortal stab and

gunshot wounds which were the direct and immediate
cause of his death thereafter.
Asilan pleaded not guilty upon his arraignment3 on April 10,
2006. Pre-Trial Conference followed on April 26, 2006,
where the counsels agreed to stipulate that Asilan, who
was at that time present in the RTC, was the same Asilan
named in the Information, and that the victim, Police Officer
1 (PO1) Randy Adovas y Pe-caat (Adovas), was a police
officer in active duty at the time of his death.4 Trial on the
merits ensued after the termination of the pre-trial
conference.
Below is the prosecutions version, as succinctly
summarized by the Office of the Solicitor General (OSG)
from the testimony of Joselito Binosa (Binosa)5:
In the evening of March 27, 2006, around 10:00 oclock,
Joselito Binosa, a jeepney barker/carwash boy while
chatting with his friends at the El Nio Bakery along Teresa
Street, Sta. Mesa, Manila, heard a gunshot nearby. He
then went to the place where the sound came and from
where he was standing which was about three (3) to four
(4) meters away, he saw a uniformed policeman, who
seemed to be arresting someone and ordering the latter to
lay on the ground.
The police officer pushed the man to the wall, poked the
gun on him and was about to handcuff the latter when
another man, herein appellant Asilan arrived, drew
something from his back and stabbed the police officer on
his back several times until the latter fell to the ground.
The man who was being arrested by the police officer held
the latters hand while he was being stabbed repeatedly by
[Asilan]. The man who was being arrested then took the
officers gun and shot the latter with it.
The fellow barker of Joselito Binosa then threw stones at
the malefactors who subsequently left the place.
Joselito Binosa secretly followed [Asilan] and his
companion who walked towards the railroad track taking
Teresa St., Sta. Mesa, Manila. [Asilan] entered an alley and
thereafter returned to the place of the incident. The other
man walked on to the tracks.
At that moment, a policeman passed by and Binosa
pointed [Asilan] to him. [Asilan] was arrested and the knife
which was used in the
stabbing was confiscated by the policeman.6 (Citations
omitted.)
The above narration of events was largely corroborated by
Pol Justine San Diego (San Diego), a student, who also
witnessed the events that transpired on March 27, 2006. 7
The prosecution also submitted as evidence Medico Legal
Report No. M-219-06,8 accomplished and testified to by Dr.
Vladimir V. Villaseor. The pertinent portion of the Medico
Legal Report states:
SPECIMEN SUBMITTED:
Cadaver of Randy Pe-caat Adovas, 29 y/o male, married, a
policeman, 167 cm in height and a resident of 19 West
Bank Road, Floodway, Rosario Pasig City.
PURPOSE OF LABORATORY EXAMINATION:
7
To determine the cause of death.
FINDINGS:
Body belongs to a fairly nourished, fairly developed male
cadaver in rigor mortis with postmortem lividity at the
dependent portions of the body. Conjunctivae, lips and
nailbeds are pale. With exploratory laparotomy incision at
the anterior abdominal wall, measuring 29 cm long, along
the anterior midline.
Trunk & Upper Extremity:
1) Stab wound, right axillary region, measuring 6 x 4 cm, 16
cm from the anterior midline.
2) Stab wound, right hypochondriac region, measuring 2.3
x 0.7 cm, 2cm right of the anterior midline, 9 cm deep,
directed posteriorwards, downwards & medialwards,
lacerating the right lobe of the liver.
-over-
CONCLUSION:
Cause of death is MULTIPLE STAB WOUNDS &
GUNSHOT WOUND OF THE TRUNK AND UPPER
EXTREMITIES.
Meanwhile, Asilan, in his Appellants Brief,9 summed up his
defense as follows:
On March 27, 2006, at around 10:00 oclock p.m. JOSEPH
ASILAN [Asilan] was on board a passenger jeepney on his
way to Mandaluyong. As he had to transfer to another
jeepney, [Asilan] alighted at Old Sta. Mesa and waited for a
jeep bound for Pasig City. Suddenly, three (3) motorcycles
stopped in front of him, the passengers of which
approached and frisked him. He was thereafter brought to
the police station and in a small room, he was forced to
admit to the stabbing of a police officer. Thereafter, he was
brought to a nearby hospital and was medically examined.
Then he was again taken to the police station where he
was confronted with the knife which was allegedly used in
stabbing PO1 Adovas. He was mauled for refusing to
confess to the stabbing of the said policeman. Afterwards,
he was presented to alleged eyewitnesses. However, the
supposed eyewitnesses were not the ones presented by
the prosecution in court.10
The RTC convicted Asilan of Murder in its Decision11 dated
January 8, 2007, the dispositive portion of which reads:
WHEREFORE, premises considered, the Court finds the
Prosecution to have failed to establish and prove beyond
reasonable doubt the offense of direct assault. Where a
complex crime is charged and the evidence fails to support
the charge as to one of the component, the accused can be
convicted of the other (People v. Roma, 374 SCRA 457).
WHEREFORE, his guilt having been proven beyond
reasonable doubt for the crime of murder with the qualifying
circumstance of treachery, judgment is hereby rendered
finding accused Joseph Asilan y Tabornal GUILTY beyond
reasonable doubt of the crime of murder and is hereby
imposed the penalty of reclusion perpetua. He is hereby
ordered to pay the heirs of PO1 Randy Adovas y Pe-Caat
the sum of P 84,224.00 as actual damages, P 25,000.00
for moral damages and P 50,000.00 civil indemnity.12

The RTC, in acquitting Asilan of Direct Assault, held that
while it was confirmed that Adovas was in his police
uniform at the time of his death, the prosecution failed to
establish convincingly that he was in the performance of his
duty when he was assaulted by Asilan. The RTC explained
that there was no evidence to show that Adovas was
arresting somebody at the time Asilan stabbed him. 13 The
RTC added:
What the framers of the law wanted was to know the
reason of the assault upon a person in authority or his
agents. The prosecution failed to show why the victim was
pushing the man on the wall or why he poked his gun at the
latter. That the victim was assaulted while in the
performance of his duty or by reason thereof was not
conclusively proven.14
In convicting Asilan of Murder, the RTC held that his
defense of denial could not be "accorded more weight than
the categorical assertions of the witnesses who positively
identified him as the man who suddenly appeared from
behind [Adovas] and stabbed the latter repeatedly."15
Moreover, Asilan admitted that he was at the scene of the
crime when he was arrested, that he could not give any
reason for the witnesses to falsely testify against him, and
that he did not know them.
Anent the aggravating circumstances, the RTC found that
the killing of Adovas was proven to be attended with
treachery since Adovas was attacked from behind,
depriving him of the opportunity to defend himself.16
However, the RTC declared that the aggravating
circumstance of evident premeditation "could not be
appreciated x x x absent evidence that [Asilan] planned or
prepared to kill [Adovas] or of the time when the plot was
conceived."17
As to the damages, the RTC found the prosecutions
evidence, which consisted of Adovass wifes testimony,
and the receipts of the expenses she incurred in Adovass
hospitalization, wake, and burial, sufficient to award moral
and actual damages.
On January 19, 2007, Asilan appealed18 his conviction to
the Court of Appeals, mainly on the ground that the
prosecution failed to prove his guilt beyond reasonable
doubt. He subsequently filed a Motion to Litigate as a
Pauper, 19 which on February 28, 2007, was granted in an
Order20 by the RTC.
On February 25, 2009, the Court of Appeals rendered its
Decision, affirming in toto the RTCs ruling.
WHEREFORE, premises considered, the assailed Decision
dated 08 January 2007 of the Court a quo in Criminal Case
No. 06-243060, finding Accused-Appellant JOSEPH
ASILAN Y TABORNAL guilty beyond reasonable doubt of
Murder, is hereby AFFIRMED in toto.21
The Court of Appeals rejected Asilans arguments and
averred that his denial and bare attempt at exculpation by
trying to destroy the credibility of the candid, categorical,
and trustworthy testimonies of the witnesses must fail.
Aggrieved, Asilan is now appealing22 his case to this Court,
with the same assignment of errors he posited before the
Court of Appeals:
ASSIGNMENT OF ERRORS
I
8
THE TRIAL COURT GRAVELY ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE OFFENSE CHARGED BY
RELYING ON THE INCONSISTENT AND UNNATURAL
TESTIMONY OF THE ALLEGED EYEWITNESS.
II
THE COURT A QUO GRAVELY ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY OF THE CRIME
CHARGED DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.
III
THE TRIAL COURT GRAVELY ERRED IN
APPRECIATING THE QUALIFYING CIRCUMSTANCE OF
TREACHERY.23
Discussion
Asilan was convicted of the crime of Murder under Article
248 of the Revised Penal Code:
Art. 248. Murder. Any person who, not falling within the
provisions of Article 246 shall kill another, shall be guilty of
murder and shall be punished by reclusion perpetua to
death, if committed with any of the following attendant
circumstances:
1. With treachery, taking advantage of superior strength,
with the aid of armed men, or employing means to weaken
the defense or of means or persons to insure or afford
impunity;
2. In consideration of a price, reward, or promise;
3. By means of inundation, fire, poison, explosion,
shipwreck, stranding of a vessel, derailment or assault
upon a railroad, fall of an airship, by means of motor
vehicles, or with the use of any other means involving great
waste and ruin;
4. On occasion of any of the calamities enumerated in the
preceding paragraph, or of an earthquake, eruption of a
volcano, destructive cyclone, epidemic, or any other public
calamity;
5. With evident premeditation;
6. With cruelty, by deliberately and inhumanly augmenting
the suffering of the victim, or outraging or scoffing at his
person or corpse.
Asilan claims that the testimonies of the witnesses were not
only filled with inconsistencies, they were also incredible for
being contrary to the common experience and observation
that mankind can approve as probable under the
circumstance.24
Asilan insists that the testimony of Binosa should not be
given credence as he was selective in his recollection of
the events. Asilan claimed that Binosa seemed to have
recalled more details on cross-examination, thus
"improving" on the version he gave during his direct
examination. Asilan further claims that Binosas suggestion
that Asilan returned to the scene of the crime after he
committed the alleged crime is very unlikely. Asilan avers
that San Diegos testimony was likewise not credible as it
was clearly only a more refined version of Binosas account

of the events. Moreover, Asilan says that San Diegos
testimony is too good to be true as he is unlikely to have a
detailed recollection of an event, which according to him
happened within a span of two minutes.25
Credibility of Witnesses
It is a well-settled rule that the assessment of the trial court
regarding the credibility of witnesses will generally not be
disturbed on appeal. The rationale for this doctrine is that
the trial court is in a better position to decide the issue, as it
heard the witnesses themselves and observed their
deportment and manner of testifying during the trial.26 The
only exceptions to this rule are the following:
1. When patent inconsistencies in the statements of
witnesses are ignored by the trial court; or
2. When the conclusions arrived at are clearly unsupported
by the evidence.27
This Court sees no reason to apply the above exceptions
and disturb the findings of the RTC, which were affirmed by
the Court of Appeals.
Our perusal of the records showed that the RTC was
vigilant in its duty to ascertain the truth. The RTC itself
propounded clarificatory questions to Binosa and San
Diego while they were testifying. At the end of the trial, the
RTC found these witnesses credible, and believed their
eyewitness accounts because they were categorical in their
identification of Asilan as one of Adovass assailants. The
RTC also pointed out that it could not find any dubious
reason for Binosa and San Diego to falsely implicate Asilan
in a heinous crime.28
Alleged Inconsistencies
The alleged inconsistency in Binosas testimony does not
render his testimony fictitious. The fact that he was able to
provide more details of the events only during cross-
examination is not unusual, and on the contrary tends to
buttress, rather than weaken, his credibility, since it shows
that he was neither coached nor were his answers
contrived.29 After all, "[w]itnesses are not expected to
remember every single detail of an incident with perfect or
total recall."30
As for San Diegos testimony, it is not unnatural for him to
have a detailed recollection of the incident. "Different
persons have different reactions to similar situations. There
is no typical reaction to a sudden occurrence." 31 It is worthy
to note that San Diego was only sixteen years old when he
witnessed the stabbing of Adovas. It was his first time to
witness a person being stabbed right before his very eyes.
He testified that three months after that night, the events
were still vividly imprinted in his mind.32 It is thus not
improbable that he could, with certainty, identify Asilan as
the man who stabbed Adovas that fateful night.
Likewise, our scrutiny of the so-called inconsistencies
relied upon by Asilan showed that they only referred to
minor details, which did not affect the credibility of the
prosecution witnesses.33 In People v. Albarido,34 this Court
said:
It is elementary in the rule of evidence that inconsistencies
in the testimonies of prosecution witnesses with respect to
minor details and collateral matters do not affect the
substance of their declaration nor the veracity or weight of
their testimony. In fact, these minor inconsistencies
9
enhance the credibility of the witnesses, for they remove
any suspicion that their testimonies were contrived or
rehearsed. In People vs. Maglente, this Court ruled that
inconsistencies in details which are irrelevant to the
elements of the crime are not grounds for acquittal. x x x. 35
Credibility of the evidence
Asilan further asseverates that it is perplexing how none of
the witnesses, who were present during the incident,
warned Adovas of the impending danger to his life. He
contends that "for evidence to be believed, it must not only
proceed from the mouth of a credible witness, but must be
credible in itself such as the common experience and
observation of mankind can approve as probable under the
circumstance."36
This Court would like to reiterate that no standard form of
behavior is expected of an individual who witnesses
something shocking or gruesome like murder. This is
especially true when the assailant is near. It is not unusual
that some people would feel reluctant in getting involved in
a criminal incident.37
In the same manner, it is also not surprising that Asilan
returned to the scene of the crime after stabbing Adovas.
His "failure to flee and the apparent normalcy of his
behavior subsequent to the commission of the crime do not
imply his innocence."38 This Court, elucidating on this point,
declared:
Flight is indicative of guilt, but its converse is not
necessarily true. Culprits behave differently and even
erratically in externalizing and manifesting their guilt. Some
may escape or flee -- a circumstance strongly illustrative of
guilt -- while others may remain in the same vicinity so as to
create a semblance of regularity, thereby avoiding
suspicion from other members of the community.39
Defense of Denial
Unfortunately, Asilans bare denial, when juxtaposed with
the prosecution witnesses positive declarations, is not
worthy of credence. Denial, which is the usual refuge of
offenders, is an inherently weak defense, and must be
buttressed by other persuasive evidence of non-culpability
to merit credibility. The defense of denial fails even more
when the assailant, as in this case, was positively identified
by credible witnesses, against whom no ulterior motive
could be ascribed.40
Asilan not only admitted that he was at the scene of the
crime when he was arrested by the police authorities, he
also admitted that he did not know any of the prosecution
witnesses prior to his trial. Moreover, he had filed no case
against the police officers whom he accused of mauling
him to make him admit to the stabbing of Adovas. Asilans
"self-serving statements deserve no weight in law and
cannot be given greater evidentiary value over the
testimony of the witnesses who testified on positive
points."41
Qualifying Circumstance of Treachery
Asilan pleads that treachery cannot be appreciated in the
present case as the prosecution failed to establish that he
had consciously or deliberately adopted or chosen the
mode of attack employed upon Adovas to deprive him of an
opportunity to defend himself or retaliate. Asilan argues
that mere suddenness of the attack is not enough to

constitute treachery. He further posits that while it may be
true that he allegedly came from behind, the "mode of
attack could have occurred in a spur of the moment."42
The RTC correctly appreciated the qualifying circumstance
of treachery in the killing of Adovas.
The prosecution was able to sufficiently establish the
attendance of treachery in the case at bar. "It is basic in our
penal law that treachery is present when the offender
employs means, methods or forms which tend directly and
especially to insure the execution of the crime, without risk
to himself arising from the defense which the offended
party might make."43 In People v. Tan,44 this Court
expounded on the concept of treachery as follows:
The essence of treachery is the sudden and unexpected
attack, without the slightest provocation on the part of the
person attacked. Treachery is present when the offender
commits any of the crimes against persons, employing
means, methods or forms in the execution thereof, which
tend directly and especially to insure its execution, without
risk arising from the defense which the offended party
might make. In the case at bar, the attack on Magdalino
Olos was treacherous, because he was caught off guard
and was therefore unable to defend himself, as testified to
by the prosecution witnesses and as indicated by the
wounds inflicted on him.45
Both eyewitnesses testified on how Asilan attacked Adovas
from behind. Adovas could not have defended himself
because Asilan stabbed him at his back repeatedly sans
provocation or warning. The deciding factor is that Asilans
execution of his attack made it impossible for Adovas to
defend himself or retaliate.46
Sufficiency of the Information
Asilan also claims that his constitutional right to be
informed of the nature and cause of accusation against him
was infringed when he was convicted for Murder, since the
manner by which he carried out the killing with the
qualifying circumstance of treachery was not alleged in the
Information against him. Thus, he asserts, he was
effectively only charged with Homicide.47
This Court does not find merit in Asilans contention that he
cannot be convicted of murder because his acts of
treachery were not alleged with specificity in the
Information. Section 6, Rule 110 of the Rules on Criminal
Procedure states:
Sec. 6. Sufficiency of complaint or information. A
complaint or information is sufficient if it states the name of
the accused; the designation of the offense by the statute;
the acts or omissions complained of as constituting the
offense; the name of the offended party; the approximate
time of the commission of the offense; and the place
wherein the offense was committed.
When the offense is committed by more than one person,
all of them shall be included in the complaint or information.
This Court held that "[u]nder Section 6, the Information is
sufficient if it contains the full name of the accused, the
designation of the offense given by the statute, the acts or
omissions constituting the offense, the name of the
offended party, the approximate date, and the place of the
offense."48 The Information herein complied with these
conditions. Contrary to Asilans contention, the qualifying
10
circumstance of "treachery" was specifically alleged in the
Information. "The rule is that qualifying circumstances must
be properly pleaded in the Information in order not to
violate the accuseds constitutional right to be properly
informed of the nature and cause of the accusation against
him."49 Asilan never claimed that he was deprived of his
right to be fully apprised of the nature of the charges
against him due to the insufficiency of the Information.
This Court completely agrees with the Court of Appeals
pronouncement that "since treachery was correctly alleged
in the Information and duly established by the prosecution,
x x x [Asilan]s conviction for the crime of murder is
proper."50
In any case, it is now too late for Asilan to assail the
sufficiency of the Information on the ground that there was
failure to specifically allege therein how treachery was
carried out. Section 9, Rule 117 of the Rules of Court
provides:
SEC. 9. Failure to move to quash or to allege any ground
therefor.- The failure of the accused to assert any ground of
a motion to quash before he pleads to the complaint or
information, either because he did not file a motion to
quash or failed to allege the same in said motion, shall be
deemed a waiver of any objections except those based on
the grounds provided for in paragraphs (a), (b), (g), and (i)
of section 3 of this Rule.
Moreover, in People v. Candaza,51 this Court held that "[a]n
Information which lacks essential allegations may still
sustain a conviction when the accused fails to object to its
sufficiency during the trial, and the deficiency was cured by
competent evidence presented therein."52 In this case,
Asilan not only failed to question the sufficiency of the
Information at any time during the pendency of his case
before the RTC, he also allowed the prosecution to present
evidence, proving the elements of treachery in the
commission of the offense. Asilan is thus deemed to have
waived any objections against the sufficiency of the
Information.531wphi1
Pursuant to prevailing jurisprudence,54 this Court is
increasing the award of civil indemnity from Fifty Thousand
Pesos (P 50,000.00) to Seventy-Five Thousand Pesos (P
75,000.00), and the moral damages from Twenty-Five
Thousand Pesos (P 25,000.00) to Fifty Thousand Pesos (P
50,000.00). Moreover, in view of the presence of the
qualifying circumstance of treachery, an additional award of
Thirty Thousand Pesos (P 30,000.00), as exemplary
damages, in accordance with Article 2230 of the Civil
Code,55 should be awarded to the heirs of Adovas.56
As to actual damages, Adovass widow, Irene Adovas,
presented the receipts showing that she paid P 25,224.00
to Our Lady of Lourdes Hospital, Inc., as hospital
expenses,57 P 35,000.00 to Marulas Memorial Homes,58
and P 20,000.00 to Funeraria Saranay as funeral
expenses,59 or a total of P 80,224.00.
Both the RTC and the Court of Appeals failed to consider
that under Article 2206 of the Civil Code, Asilan is also
liable for the loss of the earning capacity of Adovas, and
such indemnity should be paid to his heirs60:
Art. 2206. The amount of damages for death caused by a
crime or quasi-delict shall be at least three thousand pesos,
even though there may have been mitigating
circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning
capacity of the deceased, and the indemnity shall be paid
to the heirs of the latter; such indemnity shall in every case
be assessed and awarded by the court, unless the
deceased on account of permanent physical disability not
caused by the defendant, had no earning capacity at the
time of his death;
Irene Adovas testified61 on the amount her husband
received as police officer and presented documentary
evidence to show that Adovas, who was only 29 years old
when he died, 62 earned P 8,605.00 a month63 at the time
of his death.
The following are the factors in computing the amount of
damages recoverable for the loss of earning capacity of the
deceased:
1) The number of years on the basis of which the damages
shall be computed. This is based on the formula (2/3 x 80
age of the deceased at the time of his death = life
expectancy), which is adopted from the American
Expectancy Table of Mortality; and
2) The rate at which the losses sustained by the heirs of
the deceased should be fixed.64
Net income is arrived at by deducting the amount of the
victims living expenses from the amount of his gross
income.65 The loss of earning capacity of Asilan is thus
computed as follows:
Net Earning Capacity = life expectancy x [gross annual
income living expenses]66
= 2/3 [80-age at time of death] x [gross annual income
50% of gross annual income]
= 2/3 [80-29] x [P 103,260.00 P 51,630.00]
= 34 x P 51,630.00
= P 1,755,420.00
WHEREFORE, the decision dated February 25, 2009 of
the Court of Appeals in CA-G.R. CR.-H.C. No. 02686 is
hereby AFFIRMED insofar as it found accused-appellant
Joseph Asilan y Tabornal guilty beyond reasonable doubt
of MURDER and sentenced to suffer the penalty of
reclusion perpetua, with MODIFICATION as to the
damages. Asilan is hereby ordered to indemnify the heirs of
Randy Adovas y Pe-caat the following: (a) P 75,000.00 as
civil indemnity; (b) P 50,000.00 as moral damages; (c) P
30,000.00 as exemplary damages; (d) P 80,224.00 as
actual damages; (e) P 1,755,420.00 as loss of earning
capacity; and (f) interest on all damages awarded at the
rate of 6% per annum from the date of finality of this
judgment. SO ORDERED.
G.R. No. 175528 September 30, 2009
PO3 BENITO SOMBILON, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
This resolves the petition for review which seeks to annul
and set aside the following rulings of the Court of Appeals
11
(CA) in C.A. C.R. No. 27729: a) the Decision1 dated July
28, 2005 which affirmed with modification the decision2
dated May 13, 2003 of the Regional Trial Court of Davao
City (RTC), convicting petitioner of acts of lasciviousness;
and b) the Resolution3 dated September 22, 2006 denying
petitioners Motion for Reconsideration of the aforesaid
Decision.
The facts found during trial, as succinctly stated by the CA,
are as follows:
The facts found during the trial reveal that on or about
August 15, 1998, AAA, a fifteen (15)-year old minor, was
investigated by Appellant at the Calinan Police Station,
Davao City in connection with a complaint for Theft filed by
a certain Aileen Dagoc.
AAA alleged that Appellant, in conducting the investigation,
took her inside a room and locked it. She testified that the
room had no window but had a cot, a table, and a
clothesline where some clothes were hanged. She claimed
that Appellant pointed a gun at her, with the end of the
barrel touching her forehead and pushed her with it,
causing her head to violently bang against the wall, and
asked her: "Did you steal the necklace?" She answered
that she did not. Appellant then took an electric wire from a
drawer and inserted its male plug to a socket. She was
ordered to place her two hands on top of the table where
her fingers were electrocuted with the end of the wire. She
was again asked the same question, which she kept
answering in the negative. Subsequently, she was asked:
"Dalaga ka na ba? (Are you a woman now?), and was told:
"I am single too." Simultaneously, she was touched all over
her body including her breasts, her belly, and her private
parts. She was also kissed on her cheek. She struggled to
resist the sexual advances but Appellant prevailed. She
claimed that they were inside the room for more than one
(1) hour.
Thereafter, they went out of the room where Appellant
announced to P03 Danilo Mendez and Aileen Dagoc that
she had already admitted having stolen the necklace. Pale,
AAA was trembling and crying; her hair disheveled, her
dress wet. She also had bruises on her forehead.
The police officers allowed AAA and her mother to go
home on the condition that they would pay the value of the
necklace. Because of AAAs condition, AAAs mother
brought her daughter to the Medical Clinic of St. Luke
where AAA was examined by Dr. Manuel Garcia, Sr.4 Dr.
Garcia gave AAA a tranquilizer to calm down the latter who
was trembling and incoherent.5 At first, AAA could not
answer the doctor when she was asked what happened to
her. Later, upon regaining her composure, she revealed
that she was electrocuted and sexually molested by
petitioner.6 The Medical Certificate7 issued by Dr. Garcia
disclosed the following injuries:
1. Slight contusion over occiput region.
2. Slight contusion over center area of forehead.
3. Multiple slight contusions of fingers of bilateral hands.
4. Multiple slight contusions of bilateral breast areas.
5. Slight body tremors.
Diagnosis: Slight Physical Injuries

In an Information8 dated August 23, 1999, petitioner was
charged with the crime of Acts of Lasciviousness
committed as follows:
The undersigned accuses the above-named accused of the
crime of Acts of Lasciviousness, under Art. 336, in relation
to Art. 344 of the Revised Penal Code, upon the instance of
the complainant AAA, who is 15 years old, whose affidavit
is hereto attached to form part of this Information. The
crime is committed as follows:
That on or about August 14, 1998, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable
Court, the above-mentioned accused, motivated by lewd
design, willfully, unlawfully, and feloniously upon the person
of AAA, by then and there embracing, mashing the breast,
and touching the private part, against her will.
CONTRARY TO LAW.
Upon arraignment, petitioner pleaded "not guilty." Trial
ensued thereafter.
On May 13, 2003, after trial on the merits, the RTC
rendered a decision finding petitioner guilty of acts of
lasciviousness with the aggravating circumstance of
petitioners taking advantage of his public position and
sentenced him to six (6) months of arresto mayor, as
minimum, to five (5) years, four (4) months and twenty-one
(21) days of prision correccional, as maximum. The
dispositive portion of the Decision reads:
For the foregoing judgment is hereby rendered, finding
accused P03 Benito Sombilon, GUILTY beyond reasonable
doubt of the crime of Acts of Lasciviousness, under Article
366 of the Revised Penal Code, and is hereby sentenced
to suffer imprisonment under the Indeterminate Sentence
Law from Six (6) months of Arresto Mayor, as minimum to
Five (5) years, Four (4) months and Twenty-one (21) days
of Prision Correccional, as maximum and directed to pay
private complainant AAA the following:
a.) by way of moral Damages, the amount of Ten
Thousand Pesos (PhP10,000.00); and
b.) by way of Exemplary Damages, the amount of ten
Thousand Pesos (Php10,000.00).9
From the above decision, petitioner interposed an appeal to
the CA, which was docketed as CA-G.R. CV No. 40419.
On July 28, 2005, the CA rendered the herein challenged
Decision affirming with modification the RTCs judgment of
conviction. Appreciating the aggravating circumstance of
taking advantage of public position which was adequately
established during the trial, the CA increased the maximum
penalty imposed against petitioner to its maximum period of
six years of prision correccional. The dispositive portion of
the Decision reads:
WHEREFORE, the Decision of the Regional Trial Court, Br.
8, Davao City in Criminal Case No. 43, 810-99 is hereby
AFFIRMED with MODIFICATION. Appellant P03 Benito
Sombilon, as found guilty beyond reasonable doubt of the
crime of acts of lasciviousness, defined and penalized
under article 336 of the Revised Penal Code, is hereby
sentenced to suffer the indeterminate penalty of 6 months
of arresto mayor as minimum, to 6 years of prision
correccional, as maximum. Appellant is likewise ordered to
pay the victim, AAA, the amount of Php10,000.00 as moral
12
damages and another Php10,000.00 as exemplary
damages.
With costs.
SO ORDERED.10
Thus, petitioner filed the instant petition, with the following
allegations:
I
THE HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE TRIAL COURT THAT THE ACCUSED IS
GUILTY OF THE CRIME CHARGED BEYOND
REASONABLE DOUBT;
II
ASSUMING BUT NOT ADMITTING, THE HONORABLE
COURT OF APPEALS ERRED IN AFFIRMING THE
APPRECIATION OF THE AGGRAVATING
CIRCUMSTANCE OF TAKING ADVANTAGE OF HIS
PUBLIC POSITION FOR FAILURE TO ALLEGE IN THE
INFORMATION;
III
THE HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE AWARD OF DAMAGES.11
Petitioner contends that the CA erred in affirming his
conviction for acts of lasciviousness. Even as he admits
having merely touched the victim, petitioner argues that the
act of touching did not constitute lewdness. At most, he
could only be convicted of unjust vexation. Petitioner
likewise asserts that while the victim was being touched,
the latter tried to cover her body with her arms. Lastly
petitioner posits that the police station does not favor the
perpetration of the crime of acts of lasciviousness.
Petitioners contention deserves scant consideration.
The crime of acts of lasciviousness as punished under
Article 336 of the Revised Penal Code provides:
ART. 336. Acts of lasciviousness.- Any person who shall
commit any act of lasciviousness upon other persons of
either sex, under any of the circumstances mentioned in
the preceding article, shall be punished by prision
correccional.
For an accused to be convicted of acts of lasciviousness
under the foregoing provision, the prosecution is burdened
to prove the confluence of the following essential elements:
(1) that the offender commits any act of lasciviousness or
lewdness; and (2) that it is done under any of the following
circumstances: (a) by using force or intimidation; (b) when
the offended woman is deprived of reason or otherwise
unconscious; or (c) when the offended party is under
twelve (12) years of age.12
In the case of Amployo v. People,13 the Court expounded
on the definition of the term lewd, thus:
The term "lewd" is commonly defined as something
indecent or obscene; it is characterized by or intended to
excite crude sexual desire. That an accused is entertaining
a lewd or unchaste design is necessarily a mental process
the existence of which can be inferred by overt acts
carrying out such intention, i.e., by conduct that can only be

interpreted as lewd or lascivious. The presence or absence
of lewd designs is inferred from the nature of the acts
themselves and the environmental circumstances. What is
or what is not lewd conduct, by its very nature, cannot be
pigeonholed into a precise definition. As early as U.S. v.
Gomez we had already lamented that
It would be somewhat difficult to lay down any rule
specifically establishing just what conduct makes one
amenable to the provisions of article 439 of the Penal
Code. What constitutes lewd or lascivious conduct must be
determined from the circumstances of each case. It may be
quite easy to determine in a particular case that certain
acts are lewd and lascivious, and it may be extremely
difficult in another case to say just where the line of
demarcation lies between such conduct and the amorous
advances of an ardent lover.
Undoubtedly, petitioner committed acts which fall within the
above described lascivious conduct. It cannot be viewed as
mere unjust vexation as petitioner would have the Court do.
The intention of petitioner was intended neither to merely
annoy or irritate the victim nor to force her to confess the
theft. He could have easily achieved that when he
electrocuted the latter. Petitioner intended to gratify his
sexual desires.
As found by the RTC and affirmed by the CA, petitioners
acts of kissing the victim, fondling her breasts and touching
her private parts constitute lascivious conduct intended to
quench his salacious desire. Petitioners lewd intent was
betrayed when he asked AAA, "Dalaga ka na ba?" as a
prelude to his lustful advances on the victim, and thereafter
conveyed to her that "I am single too." We quote with
approval the CAs ratiocination:
Undeniably, appellant committed lewd acts against AAA.
"Lewd" is defined as obscene, lustful, indecent, and
lecherous. It signifies that form of immorality which has
relation to moral impurity; or that which is carried on a
wanton manner. The evidence shows that appellant
committed lewd acts against AAA when he touched her "all
over her body" which includes mashing her breasts,
touching her private parts, and kissing her on the cheek.
These acts were clearly done with lewd designs as
appellant even previously asked AAA, as if it was a prelude
for things to come, "Dalaga ka na ba?" and thereafter
conveyed to her that "he is single too."14
The fact that the victim tried to cover her body with her
arms does not negate petitioners lascivious conduct.
Petitioner succeeded in fondling the victims breasts
intense enough to cause multiple slight contusions of
bilateral breast areas.
As aptly observed by the CA, petitioner employed force and
intimidation against AAA:
Moreover, appellant employed force and intimidation when
he committed these acts on AAA. In fact, as found by the
trial court, appellant pointed a gun at the forehead of AAA
as evidenced by the bruises on her forehead. Further, the
medical Certificate shows that AAA suffered slight physical
injuries which include "multiple slight contusion of bilateral
breast areas" which supports AAAs claim.15
In People v. Victor,16 the Court held that in cases of acts of
lasciviousness, it is not necessary that intimidation be
irresistible. It being sufficient that some compulsion
equivalent to intimidation annuls or subdues the free
13
exercise of the will of the offended party. Here, the victim
was locked inside a windowless room together with her
aggressor who poked a gun at her forehead. Even a grown
man would be paralyzed with fear if threatened at gunpoint,
what more the hapless victim who was only 15 years old
when she was subjected to such atrocity.
Petitioners assertion that the locus criminis i.e., the police
station makes it unlikely for him to commit the crime of acts
of lasciviousness is specious. The presence of other
policemen on duty and of the victims mother outside the
room where the incident took place does not render
commission of the offense impossible. It has been shown
that there was a room in the precinct which, except for two
doors which could be locked, was totally enclosed.17 During
the commission of the acts of lasciviousness, petitioner and
AAA were the only persons inside the room. Lust, as we
have often held, is no respecter of either place or time. 18
As to the appreciation of the aggravating circumstance of
taking advantage of public position, petitioner points out
that said circumstance was not alleged in the information.
The Solicitor General shares the same view.
Sections 8 and 9 of Rule 110 of the Revised Rules of
Criminal Procedure, which took effect on December 1,
2000, provide:
Sec. 8. Designation of the offense. The complaint or
information shall state the designation of the offense given
by the statute, aver the acts or omissions constituting the
offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense,
reference shall be made to the section or subsection of the
statute punishing it.
Sec. 9. Cause of the accusations. The acts or omissions
complained of as constituting the offense and the qualifying
and aggravating circumstances must be stated in ordinary
and concise language and not necessarily in the language
used in the statute but in terms sufficient to enable a
person of common understanding to know what offense is
being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment.
Clearly, it is now a requirement that the aggravating as well
as the qualifying circumstances be expressly and
specifically alleged in the complaint or information.
Otherwise, they cannot be considered by the trial court in
its judgment, even, if they are subsequently proved during
trial.19 A reading of the Information shows that there was no
allegation of any aggravating circumstance.
In People v. Buayaban,20 the crime was committed and the
Information was filed in 1990. Still, the Court gave the 2000
Rules of Criminal Procedure retroactive application since it
benefited the accused and disregarded the generic
aggravating circumstance of band because it was not
alleged in the Information. The Court explained, viz:
Section 8 simply provides that the information or complaint
must state the designation of the offense given by the
statute and specify its qualifying and generic aggravating
circumstances. With regard to Section 9, we held in People
vs. Nerio Suela that the use of the word "must" in said
Section 9 indicates that the requirement is mandatory and
therefore, the failure to comply with sec. 9, Rule 110,
means that generic aggravating circumstances, although
proven at the trial, cannot be appreciated against the

accused if such circumstances are not stated in the
information.
In this case, we cannot properly appreciate the ordinary
aggravating circumstance of band in the commission of the
crime since there was no allegation in the information that
"more than three armed malefactors acted together in the
commission of the crime.
Here, the crime was committed in 1998, the generic
aggravating circumstance of taking advantage of public
position was not alleged in the information. As such, it
cannot be appreciated as an aggravating circumstance.
Consequently, the penalty imposed must be modified.
Section 1 of the Indeterminate Sentence Law21 (ISL) states
that (i)n imposing a prison sentence for an offense
punished by the Revised Penal Code, or its amendments,
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 said Code, and the
minimum which shall be within the range of the penalty
next lower to that prescribed by the Code for the offense.
Under Article 366 of the Revised Penal Code, the penalty
for acts of lasciviousness is prision correccional. Since no
aggravating or mitigating circumstance attended the
commission of the offense in this case, the penalty should
be applied in its medium period, the duration of which is
two (2) years, four (4) months and one (1) day to four (4)
years and two months, as maximum. The minimum shall be
within the range of the penalty next lower in degree which
is arresto mayor, with the duration of one (1) month and
one (1) day to six (6) months.1avvphi1
Applying the ISL, the proper penalty would be
imprisonment of six (6) months of arresto mayor as
minimum to four (4) years and two (2) months of prision
correccional as maximum.22
As to the damages awarded, Article 2230 of the Civil Code
provides that in criminal offenses, exemplary damages as
part of the civil liability may be imposed when the crime
was committed with one or more aggravating
circumstances. Since the generic aggravating circumstance
of taking advantage of public position was not alleged in
the Information against petitioner it cannot be appreciated
in the imposition of the penalty. But as regards the award of
exemplary damages, in the case of People v. Catubig,23 the
Court declined retroactive application of the 2000 Rules of
Criminal Procedure, to wit:
The retroactive application of procedural rules,
nevertheless, cannot adversely affect the rights of the
private offended party that have become vested prior to the
effectivity of said rules. Thus, in the case at bar, although
relationship has not been alleged in the information, the
offense having been committed, however, prior to the
effectivity of the new rules, the civil liability already incurred
by appellant remains unaffected thereby.
Thus, in accordance with the foregoing pronouncement, the
Court affirms the CAs award of exemplary damages to the
victim in the amount of P10,000.00.
With regard to the awarded moral damages in the amount
of P10,000.00, the same should be increased to
P30,000.00. In People v. Solmoro24 we declared that upon
a finding of guilt of the accused for acts of lasciviousness,
the amount of P30,000.00 as moral damages may be
14
further awarded to the victim in the same way that moral
damages are awarded to victims of rape even without need
of proof because it is assumed that they suffered moral
injury. Considering the immeasurable pain and anguish that
the victim had to suffer in the hands of the petitioner; the
trauma that she had to endure even after the incident; and
the sexual perversity of petitioner, who is a police officer,
the award of moral damages in the amount of P30,000.00
is proper.
WHEREFORE, the petition is hereby denied and the
Decision dated July 28, 2005 of the Court of Appeals
finding petitioner P03 Benito Sombilon GUILTY of the crime
of acts of lasciviousness under Article 336 of the Revised
Penal Code is AFFIRMED with Modification that he is
sentenced to suffer an indeterminate penalty of
imprisonment of six (6) months of arresto mayor as
minimum to four (4) years and two (2) months of prision
correccional as maximum, and to pay the victim the amount
of P30,000 as moral damages and P10,000.00 as
exemplary damages. SO ORDERED.
G.R. No. 174461 September 11, 2013
LETICIA I. KUMMER, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:
We decide the appeal tiled by petitioner Leticia I. Kummer
assailing the April 28, 2006 decision1 of the Court of
Appeals (CA) in CA-G.R. CR No. 27609. The CA decision
affirmed the July 27, 2000 judgment2 of the Regional Trial
Court (RTC), Branch 4, Tuguegarao City, Cagayan, finding
the petitioner and her co-accused Freiderich Johan I.
Kummer guilty beyond reasonable doubt of the crime of
homicide in Criminal Case No. 1130.
The Facts
The prosecution's evidence revealed that on June 19,
1988, between 9:00 and 10:00 p.m., Jesus Mallo, Jr.,
accompanied by Amiel Malana, went to the house of the
petitioner. Mallo knocked at the front door with a stone and
identified himself by saying, "Auntie, ako si Boy Mallo."
The petitioner opened the door and at this point, her son
and co-accused, Johan, using his left hand, shot Mallo
twice using a gun about six (6) inches long.3 Malana, who
was with Mallo and who witnessed the shooting,
immediately ran towards the west, followed by Mallo. When
Malana turned his back, he saw the petitioner leveling and
firing her long gun at Mallo, hitting the latters back and
causing him to fall flat on the ground.4
Thereafter, the petitioner went inside the house and came
out with a flashlight. Together with her co-accused, she
scoured the pathway up to the place where Mallo was lying
flat.5 At that point, the petitioner uttered,"Johan, patay na,"
in a loud voice.6 The petitioner and her co-accused
putdown the guns and the flashlight they were holding, held
Mallos feet and pulled him to about three (3) to four (4)
meters away from the house. Thereafter, they returned to
the house and turned off all the lights.7
The following morning, policeman Danilo Pelovello went to
the petitioners house and informed her that Mallo had
been found dead in front of her house. Pelovello conducted

an investigation through inquiries among the neighbors,
including the petitioner, who all denied having any
knowledge of the incident.
The prosecution filed an information8 for homicide on
January 12,1989 against the petitioner and Johan,
docketed as Criminal Case No. 1130.Both accused were
arraigned and pleaded not guilty to the crime charged.
They waived the pre-trial, and the trial on the merits
accordingly followed.
The petitioner denied the charge and claimed in her
defense that she and her children, Johan, Melanie and
Erika, were already asleep in the evening of June 19, 1988.
She claimed that they were awakened by the sound of
stones being thrown at their house, a gun report, and the
banging at their door.
Believing that the noise was caused by the members of the
New Peoples Army prevalent in their area, and sensing the
possible harm that might be inflicted on them, Johan got a
.38 cal. gun from the drawer and fired it twice outside to
scare the people causing the disturbance. The noise
continued, however, with a stone hitting the window and
breaking the glass; another stone hit Melanie who was then
sick. This prompted Johan to get the shotgun placed
beside the door and to fire it. The noise thereafter stopped
and they all went back to sleep.
In its judgment dated July 27, 2000, the RTC found the
prosecutions evidence persuasive based on the
testimonies of prosecution eyewitnesses Ramon Cuntapay
and Malana who both testified that the petitioner shot
Mallo. The testimonial evidence, coupled by the positive
findings of gunpowder nitrates on the left hand of Johan
and on the petitioners right hand, as well as the
corroborative testimony of the other prosecution witnesses,
led the RTC to find both the petitioner and Johan guilty
beyond reasonable doubt of the crime charged.
Johan, still a minor at the time of the commission of the
crime, was released on the recognizance of his father,
Moises Kummer. Johan subsequently left the country
without notifying the court; hence, only the petitioner
appealed the judgment of conviction with the CA.
She contended before the CA that the RTC committed
reversible errors in its appreciation of the evidence,
namely: (1) in giving credence to the testimonial evidence
of Cuntapay and of Malana despite the discrepancies
between their sworn statements and direct testimonies; (2)
in not considering the failure of the prosecution to cite the
petitioners motive in killing the victim; (3) in failing to
consider that the writer of the decision, Judge Lyliha L.
Abella-Aquino, was not the judge who heard the
testimonies; and (4) in considering the paraffin test results
finding the petitioner positive for gunpowder residue.
The CA rejected the petitioners arguments and affirmed
the RTC judgment, holding that the discrepancies between
the sworn statement and the direct testimony of the
witnesses do not necessarily discredit them because the
contradictions are minimal and reconcilable. The CA also
ruled that the inconsistencies are minor lapses and are
therefore not substantial. The petitioners positive
identification by the eyewitnesses as one of the assailants
remained unrefuted. The CA, moreover, held that proof of
motive is only necessary when a serious doubt arises on
the identity of the accused. That the writer of the decision
was not the judge who heard the testimonies of the
15
witnesses does not necessarily make the decision
erroneous.
In sum, the CA found Malana and Cuntapays positive
identification and the corroborative evidence presented by
the prosecution more than sufficient to convict the
petitioner of the crime charged.
On further appeal to this Court, the petitioner submits the
issue of whether the CA committed a reversible error in
affirming the RTCs decision convicting her of the crime of
homicide.
In essence, the case involves the credibility of the
prosecution eyewitnesses and the sufficiency of the
prosecutions evidence.
Our Ruling
We find the petition devoid of merit.
The petitioners conviction is anchored on the positive and
direct testimonies of the prosecution eyewitnesses, which
testimonies the petitioner submits to be both inconsistent
and illogical. The petitioner essentially impugns the
credibility of the witnesses on these grounds. The petitioner
moreover claims that her conviction was based on doctrinal
precepts that should not apply to her case.
Variance between the eyewitnesses
testimonies in open court and their
affidavits does not affect their
credibility
In her attempt to impugn the credibility of prosecution
eyewitnesses Malana and Cuntapay, the petitioner pointed
to the following in consistencies: First, in paragraph 7 of
Malanas July 21, 1988 affidavit, he stated that after
hearing two gunshots, he dived to the ground for cover and
heard another shot louder than the first two. This statement
is allegedly inconsistent with his declaration during the
direct examination that he saw the petitioner and Johan fire
their guns at Mallo. Second, the July 22, 1988affidavit of
Cuntapay likewise stated that he heard two burst of gun fire
coming from the direction of the petitioners house and
heard another burst from the same direction, which
statement is allegedly inconsistent with his direct testimony
where he claimed that he saw the petitioner shoot Mallo.
Third, in his affidavit, Malana declared that he ran away as
he felt the door being opened and heard two shots, while in
his testimony in court, he stated that he ran away after
Mallo was already hit. According to the petitioner, these
and some other trivial and minor inconsistencies in the
testimony of the two witnesses effectively destroyed their
credibility.
We find these claims far from convincing. The Court has
consistently held that inconsistencies between the
testimony of a witness in open court, on one hand, and the
statements in his sworn affidavit, on the other hand,
referring only to minor and collateral matters, do not affect
his credibility and the veracity and weight of his testimony
as they do not touch upon the commission of the crime
itself. Slight contradictions, in fact, even serve to strengthen
the credibility of the witnesses, as these may be considered
as badges of truth rather than indicia of bad faith; they tend
to prove that their testimonies have not been rehearsed.
Nor are such inconsistencies, and evenimpro babilities,
unusual, for no person has perfect faculties of senses or
recall.9

A close scrutiny of the records reveals that Malana and
Cuntapay positively and firmly declared in open court that
they saw the petitioner and Johan shoot Mallo. The
inconsistencies in their affidavit, they reasoned, were due
to the oversight of the administering official in typing the
exact details of their narration.
It is oft repeated that affidavits are usually abbreviated and
inaccurate. Oftentimes, an affidavit is incomplete, resulting
in its seeming contradiction with the declarants testimony
in court. Generally, the affiant is asked standard questions,
coupled with ready suggestions intended to elicit answers,
that later turn out not to be wholly descriptive of the series
of events as the affiant knows them.10 Worse, the process
of affidavit-taking may sometimes amount to putting words
into the affiants mouth, thus allowing the whole statement
to be taken out of context.
The court is not unmindful of these on-the-ground realities.
In fact, we have ruled that the discrepancies between the
statements of the affiant in his affidavit and those made by
him on the witness stand do not necessarily discredit him
since ex parte affidavits are generally incomplete.11 As
between the joint affidavit and the testimony given in open
court, the latter prevails because affidavits taken ex-parte
are generally considered to be inferior to the testimony
given in court.12
In the present case, we find it undeniable that Malana and
Cuntapay positively identified the petitioner as one of the
assailants. This is the critical point, not the inconsistencies
that the petitioner repeatedly refers to, which carry no direct
bearing on the crucial issue of the identity of the perpetrator
of the crime. Indeed, the inconsistencies refer only to minor
details that are not critical to the main outcome of the case.
Moreover, the basic rule is that the Supreme Court accords
great respect and even finality to the findings of credibility
of the trial court, more so if the same were affirmed by the
CA, as in this case.13 We find no reason to break this rule
and thus find that both the RTC and the CA were correct in
giving credence to the testimonies of Malana and
Cuntapay.
It is not necessary for the validity of
the judgment that it be rendered by
the judge who heard the case
The petitioner contends that the CA, in affirming the
judgment of the RTC, failed to recognize that the trial court
that heard the testimonies of Malana and Cuntapay was
not the same court that rendered the decision.14
We do not share this view.
The rule is settled that the validity of a judgment is not
rendered erroneous solely because the judge who heard
the case was not the same judge who rendered the
decision. In fact, it is not necessary for the validity of a
judgment that the judge who penned the decision should
actually hear the case in its entirety, for he can merely rely
on the transcribed stenographic notes taken during the trial
as the basis for his decision.15
Thus, the contention - that since Judge Lyliha L. Abella-
Aquino was not the one who heard the evidence and
thereby did not have the opportunity to observe the
demeanor of the witnesses - must fail. It is sufficient that
the judge, in deciding the case, must base her ruling
completely on the records before her, in the way that
appellate courts do when they review the evidence of the
16
case raised on appeal.16 Thus, a judgment of conviction
penned by a different trial judge is not erroneous if she
relied on the records available to her.
Motive is irrelevant when the
accused has been positively identified
by an eyewitness
We agree with the CAs ruling that motive gains importance
only when the identity of the assailant is in doubt. As held
in a long line of cases, the prosecution does not need to
prove the motive of the accused when the latter has been
identified as the author of the crime.17
Once again, we point out that the petitioner was positively
identified by Malana and Cuntapay. Thus, the prosecution
did not have to identify and prove the motive for the killing.
It is a matter of judicial knowledge that persons have been
killed for no apparent reason at all, and that friendship or
even relationship is no deterrent to the commission of a
crime.18
The petitioner attempts to offer the justification that the
witnesses did not really witness the shooting as their
affidavits merely attested that they heard the shooting of
Mallo (and did not state that they actually witnessed it). We
find this to be a lame argument whose merit we cannot
recognize.
That Malana and Cuntapay have been eyewitnesses to the
crime remains unrefuted. They both confirmed in their
direct testimony before the RTC that they saw the petitioner
fire a gun at Mallo. This was again re-affirmed by the
witnesses during their cross examination. The fact that their
respective affidavits merely stated that they heard the
gunshots does not automatically foreclose the possibility
that they also saw the actual shoot in gas this was in fact
what the witnesses claimed truly happened. Besides, it has
been held that the claim that "whenever a witness discloses
in his testimony in court facts which he failed to state in his
affidavit taken ante litem motam, then an inconsistency
exists between the testimony and the affidavit" is
erroneous. If what were stated in open court are but details
or additional facts that serve to supplement the
declarations made in the affidavit, these statements cannot
be ruled out as inconsistent and may be considered by the
court.
Thus, in light of the direct and positive identification of the
petitioner as one of the perpetrators of the crime by not one
but two prosecution eye witnesses, the failure to cite the
motive of the petitioner is of no moment.
At any rate, we find it noteworthy that the lack or absence
of motive for committing the crime does not preclude
conviction where there are reliable witnesses who fully and
satisfactorily identified the petitioner as the perpetrator of
the felony, such as in this case.
There is no absolute uniformity
nor a fixed standard form of human
behavior
The petitioner imputes error to the CA in giving credence to
the testimonies of Malana and Cuntapay on the claim that
these are riddled not only by inconsistencies and
contradictions, but also by improbabilities and illogical
claims. She laboriously pointed out the numerous

improbabilities that, taken as a whole, allegedly cast
serious doubt on their reliability and credibility.
She alleged, among others: (1) that it was abnormal and
contrary to the ways of the farmers in the rural areas for
Cuntapay to go home from his corral at about 9:00 p.m.,
while everybody else goes home from his farm much
earlier, as working late in the farm (that is, before and after
sunset) is taboo to farming; (2) that the act of the petitioner
of putting down her gun in order to pull the victim away
does not make any sense because a criminal would not
simply part with his weapon in this manner; (3) that it is
highly incredible that Malana, who accompanied Mallo, was
left unharmed and was allowed to escape if indeed he was
just beside the victim; (4) that it is unbelievable that when
Malana heard the cocking of guns and the opening of the
door, he did not become scared at all; (5) that Malana and
Cuntapay did not immediately report the incident to the
authorities; (6) that it was highly improbable for Malana to
turn his head while running; and (7) that it was unusual that
Cuntapay did not run away when he saw the shooting.
We rule, without descending to particulars and going over
each and every one of these claims, that without more and
stronger indicators, we cannot accord them credit. Human
nature suggests that people may react differently when
confronted with a given situation. Witnesses to a crime
cannot be expected to demonstrate an absolute uniformity
and conformity inaction and reaction. People may act
contrary to the accepted norm, react differently and act
contrary to the expectation of mankind. There is no
standard human behavioral response when one is
confronted with an unusual, strange, startling or frightful
experience.19
We thus hold that the CA was correct in brushing aside the
improbabilities alleged by the petitioner who, in her present
plight, can be overcritical in her attempt to seize every
detail that can favor her case. Unfortunately, if at all, her
claims refer only to minor and even inconsequential details
that do not touch on the core of the crime itself.
Public documents are admissible in
court without further proof of their
due execution and authenticity
A public document is defined in Section 19, Rule 132 of the
Rules of Court as follows:
SEC. 19. Classes of Documents. For the purpose of their
presentation in evidence, documents are either public or
private.
Public documents are:
(a) The written official acts, or records of the official acts of
the sovereign authority, official bodies and tribunals, and
public officers, whether of the Philippines, or of a foreign
country;
(b) Documents acknowledged before a notary public except
last wills and testaments; and
(c) Public records, kept in the Philippines, or private
documents required by law to be entered therein.
All other writings are private. [emphasis and underscore
ours]
The chemistry report showing a positive result of the
paraffin test is a public document. As a public document,
17
the rule on authentication does not apply. It is admissible in
evidence without further proof of its due execution and
genuineness; the person who made the report need not be
presented in court to identify, describe and testify how the
report was conducted. Moreover, documents consisting of
entries in public records made in the performance of a duty
by a public officer are prima facie evidence of the facts
stated therein.20
In the present case, notwithstanding the fact that it was
Captain Benjamin Rubio who was presented in court to
identify the chemistry report and not the forensic chemist
who actually conducted the paraffin test on the petitioner,
the report may still be admitted because the requirement
for authentication does not apply to public documents. In
other words, the forensic chemist does not need to be
presented as witness to identify and authenticate the
chemistry report. Furthermore, the entries in the chemistry
report are prima facie evidence of the facts they state, that
is, of the presence of gunpowder residue on the left hand of
Johan and on the right hand of the petitioner. As a matter
of fact, the petitioner herself admitted the presence of
gunpowder nitrates on her fingers, albeit ascribing their
presence from a match she allegedly lighted.21 Accordingly,
we hold that the chemistry report is admissible as
evidence.
On the issue of the normal process versus the actual
process conducted during the test raised by the petitioner,
suffice it to say that in the absence of proof to the contrary,
it is presumed that the forensic chemist who conducted the
report observed the regular procedure. Stated otherwise,
the courts will not presume irregularity or negligence in the
performance of ones duties unless facts are shown
dictating a contrary conclusion. The presumption of
regularity in favor of the forensic chemist compels us to
reject the petitioners contention that an explanation has to
be given on how the actual process was conducted. Since
the petitioner presented no evidence of fabrication or
irregularity, we presume that the standard operating
procedure has been observed.
We note at this point that while the positive finding of
gunpowder residue does not conclusively show that the
petitioner indeed fired a gun, the finding nevertheless
serves to corroborate the prosecution eyewitnesses
testimony that the petitioner shot the victim. Furthermore,
while it is true that cigarettes, fertilizers, urine or even a
match may leave traces of nitrates, experts confirm that
these traces are minimal and may be washed off with tap
water, unlike the evidence nitrates left behind by
gunpowder.
Change in the date of the
commission of the crime, where the
disparity is not great, is merely a
formal amendment, thus, no
arraignment is required
The petitioner claims that she was not arraigned on the
amended information for which she was convicted. The
petitioners argument is founded on the flawed
understanding of the rules on amendment and
misconception on the necessity of arraignment in every
case. Thus, we do not see any merit in this claim.
Section 14, Rule 110 of the Rules of Court permits a formal
amendment of a complaint even after the plea but only if it
is made with leave of court and provided that it can be

done without causing prejudice to the rights of the accused.
Section 14 provides:
Section 14. Amendment or substitution. A complaint or
information may be amended, in form or in substance,
without leave of court, at any time before the accused
enters his plea. After the plea and during the trial, a formal
amendment may only be made with leave of court and
when it can be done without causing prejudice to the rights
of the accused.
However, any amendment before plea, which downgrades
the nature of the offense charged in or excludes any
accused from the complaint or information, can be made
only upon motion by the prosecutor, with notice to the
offended party and with leave of court. The court shall state
its reasons in resolving the motion and copies of its order
shall be furnished all parties, especially the offended party.
If it appears at any time before judgment that a mistake has
been made in charging the proper offense, the court shall
dismiss the original complaint or information upon the filing
of a new one charging the proper offense in accordance
with section 19, Rule 119, provided the accused would not
be placed in double jeopardy. The court may require the
witnesses to give bail for their appearance at the trial.
[emphasis and underscore ours]
A mere change in the date of the commission of the crime,
if the disparity of time is not great, is more formal than
substantial. Such an amendment would not prejudice the
rights of the accused since the proposed amendment
would not alter the nature of the offense.
The test as to when the rights of an accused are prejudiced
by the amendment of a complaint or information is when a
defense under the complaint or information, as it originally
stood, would no longer be available after the amendment is
made, when any evidence the accused might have would
no longer be available after the amendment is made, and
when any evidence the accused might have would be
inapplicable to the complaint or information, as amended. 22
In People, et al. v. Borromeo, et al.,23 we ruled that the
change of the date of the commission of the crime from
June 24, 1981 to August 28, 1981 is a formal amendment
and would not prejudice the rights of the accused because
the nature of the offense of grave coercion would not be
altered. In that case, the difference in the date was only
about two months and five days, which difference, we
ruled, would neither cause substantial prejudice nor cause
surprise on the part of the accused.
It is not even necessary to state in the complaint or
information the precise time at which the offense was
committed except when time is a material ingredient of the
offense.24 The act may be alleged to have been committed
at any time as near as to the actual date at which date the
offense was committed, as the information will permit.
Under the circumstances, the precise time is not an
essential ingredient of the crime of homicide.
Having established that a change of date of the
commission of a crime is a formal amendment, we proceed
to the next question of whether an arraignment is
necessary.
Arraignment is indispensable in bringing the accused to
court and in notifying him of the nature and cause of the
accusations against him. The importance of arraignment is
18
based on the constitutional right of the accused to be
informed.25 Procedural due process requires that the
accused be arraigned so that he may be informed of the
reason for his indictment, the specific charges he is bound
to face, and the corresponding penalty that could be
possibly meted against him. It is at this stage that the
accused, for the first time, is given the opportunity to know
the precise charge that confronts him. It is only imperative
that he is thus made fully aware of the possible loss of
freedom, even of his life, depending on the nature of the
imputed crime.26
The need for arraignment is equally imperative in an
amended information or complaint. This however, we
hastily clarify, pertains only to substantial amendments and
not to formal amendments that, by their very nature, do not
charge an offense different from that charged in the original
complaint or information; do not alter the theory of the
prosecution; do not cause any surprise and affect the line
of defense; and do not adversely affect the substantial
rights of the accused, such as an amendment in the date of
the commission of the offense.
We further stress that an amendment done after the plea
and during trial, in accordance with the rules, does not call
for a second plea since the amendment is only as to form.
The purpose of an arraignment, that is, to inform the
accused of the nature and cause of the accusation against
him, has already been attained when the accused was
arraigned the first time. The subsequent amendment could
not have conceivably come as a surprise to the accused
simply because the amendment did not charge a new
offense nor alter the theory of the prosecution.
Applying these rules and principles to the prevailing case,
the records of the case evidently show that the amendment
in the complaint was from July 19, 1988 to June 19, 1988,
or a difference of only one month. It is clear that consistent
with the rule on amendments and the jurisprudence cited
above, the change in the date of the commission of the
crime of homicide is a formal amendment - it does not
change the nature of the crime, does not affect the essence
of the offense nor deprive the accused of an opportunity to
meet the new averment, and is not prejudicial to the
accused. Further, the defense under the complaint is still
available after the amendment, as this was, in fact, the
same line of defenses used by the petitioner. This is also
true with respect to the pieces of evidence presented by
the petitioner. The effected amendment was of this nature
and did not need a second plea.
To sum up, we are satisfied after a review of the records of
the case that the prosecution has proven the guilt of the
petitioner beyond reasonable doubt. The constitutional
presumption of innocence has been successfully
overcome.
WHEREFORE, premises considered, the appealed
decision dated April 28, 2006, convicting the petitioner of
the crime of homicide, is hereby AFFIRMED. Costs against
petitioner Leticia I. Kummer.
SO ORDERED.