Sometime in August 2008, in line with Tradition Group's motive of
expansion and diversification in Asia, petitioners Ient and Schulze were
FIRST DIVISION
[ G.R. No. 189158, January 11, 2017 ]
JAMES IENT AND MAHARLIKA SCHULZE, PETITIONERS, VS.
TULLETT PREBON (PHILIPPINES), INC., RESPONDENT.
DECISION
LEONARDO-DE CASTRO, J.:
In these consolidated Petitions for Review under Rule 45 of the Rules of
Court, petitioners James A. Ient (Ient) and Maharlika C. Schulze
(Schulze) assail the Court of Appeals Decision[1] dated August 12, 2009
in CA-G.R. SP No. 109094, which affirmed the Resolutions dated April
23, 2009[2] and May 15, 2009[3] of the Secretary of Justice in I.S. No.
08-J-8651. The Secretary of Justice, through the Resolutions dated April
23, 2009 and May 15, 2009, essentially ruled that there was probable
cause to hold petitioners, in conspiracy with certain former directors and
officers of respondent Tullet Prebon (Philippines), Inc. (Tullett),
criminally liable for violation of Sections 31 and 34 in relation to Section
144 of the Corporation
From an assiduous review of the records, we find that the relevant
factual and procedural antecedents for these petitions can be
summarized as
Petitioner Ient is a British national and the Chief Financial Officer of
Tradition Asia Pacific Pte. Ltd. (Tradition
Singapore.[4] Petitioner Schulze is a Filipino/German who does
Application Support for Tradition Financial Services Ltd. in London
(Tradition London).[5] Tradition Asia and Tradition London are
subsidiaries of Compagnie Financiere Tradition and are part of the
"Tradition Group." The Tradition Group is allegedly the third largest
group of Inter-dealer Brokers (IDB) in the world while the corporate
organization, of which respondent Tullett is a part, is supposedly the
second largest. In other words, the Tradition Group and Tullett are
competitors in the inter-dealer broking business. IDBs purportedly
"utilize the secondary fixed income and foreign exchange markets to
execute their banks and their bank customers' orders, trade for a profit
and manage their exposure to risk, including credit, interest rate and
exchange rate risks." In the Philippines, the clientele for IDBs is mainly
comprised of banks and financial institutions.[6]
Tullett was the first to establish a business presence in the Philippines
and had been engaged in the inter-dealer broking business or voice
brokerage here since 1995.[7] Meanwhile, on the part of the Tradition
Group, the needs of its Philippine clients were previously being serviced
by Tradition Asia in Singapore. The other IDBs in the Philippines are
Amstel and
tasked with the establishment of a Philippine subsidiary of Tradition Asia
to be known as Tradition Financial Services Philippines, Inc. (Tradition
Philippines).[9] Tradition Philippines was registered with the Securities
and Exchange Commission (SEC) on September 19, 2008[10] with
petitioners Ient and Schulze, among others, named as incorporators and
directors in its Articles of Incorporation.[11]
On October 15, 2008, Tullett, through one of its directors, Gordon
Buchan, filed a Complaint-Affidavit[12] with the City Prosecution Office
of Makati City against the officers/employees of the Tradition Group for
violation of the Corporation Code. Impleaded as respondents in the
Complaint-Affidavit were petitioners Ient and Schulze, Jaime Villalon
(Villalon), who was formerly President and Managing Director of Tullett,
Mercedes Chuidian (Chuidian), who was formerly a member of Tullett's
Board of Directors, and other John and Jane Does. Villalon and Chuidian
were charged with using their former positions in Tullett to sabotage said
company by orchestrating the mass resignation of its entire brokering
staff in order for them to join Tradition Philippines. With respect to
Villalon, Tullett claimed that the former held several meetings between
August 22 to 25, 2008 with members of Tullett's Spot Desk and
Code. brokering staff in order to convince them to leave the company. Villalon
likewise supposedly intentionally failed to renew the contracts of some
of the brokers. On August 25, 2008, a meeting was also allegedly held
in Howzat Bar in Makati City where petitioners and a lawyer of Tradition
follows: Philippines were present. At said meeting, the brokers of complainant
Tullett were purportedly induced, en masse, to sign employment
contracts with Tradition Philippines and were allegedly instructed by
Asia) in Tradition Philippines' lawyer as to how they should file their resignation
letters.
Complainant also claimed that Villalon asked the brokers present at the
meeting to call up Tullett's clients to inform them that they had already
resigned from the company and were moving to Tradition Philippines.
On August 26, 2008, Villalon allegedly informed Mr. Barry Dennahy,
Chief Operating Officer of Tullett Prebon in the Asia-Pacific, through
electronic mail that all of Tullett's brokers had resigned. Subsequently,
on September 1, 2008, in another meeting with Ient and Tradition
Philippines' counsel, indemnity contracts in favor of the resigning
employees were purportedly distributed by Tradition Philippines.
According to Tullett, respondents Villalon and Chuidian (who were still
its directors or officers at the times material to the Complaint-Affidavit)
violated Sections 31 and 34 of the Corporation Code which made them
criminally liable under Section 144. As for petitioners Ient and Schulze,
Tullett asserted that they conspired with Villalon and Chuidian in the
latter's acts of disloyalty against the company.[13]
Villalon and Chuidian filed their respective Counter-Affivadits.[14]
Icap.[8] Villalon alleged that frustration with management changes in Tullett
Prebon motivated his personal decision to move from Tullett and accept
the invitation of a Leonard Harvey (also formerly an executive of Tullett)
to enlist with the Tradition Group. As a courtesy to the brokers and staff,
he informed them of his move contemporaneously with the tender of his
resignation letter and claimed that his meetings with the brokers was not
done in bad faith as it was but natural, in light of their long working
relationship, that he share with them his plans. The affidavit of Engelbert
Wee should allegedly be viewed with great caution since Wee was one
of those who accepted employment with Tradition Philippines but
changed his mind and was subsequently appointed Managing Director
(Villalon's former position) as a prize for his return. Villalon further
argued that his resignation from Tullett was done in the exercise of his
fundamental rights to the pursuit of life and the exercise of his
profession; he can freely choose to avail of a better life by seeking
greener pastures; and his actions did not fall under any of the prohibited
acts under Sections 31 and 34 of the Corporation Code. It is likewise his
contention that Section 144 of the Corporation Code applies only to
violations of the Corporation Code which do not provide for a penalty
while Sections 31 and 34 already provide for the applicable penalties for
violations of said provisions - damages, accounting and restitution.
Citing the Department of Justice (DOJ) Resolution dated July 30, 2008
in UCPB v. Antiporda, Villalon claimed that the DOJ had previously
proclaimed that Section 31 is not a penal provision of law but only the
basis of a cause of action for civil liability. Thus, he concluded that there
was no probable cause that he violated the Corporation Code nor was
the charge of conspiracy properly substantiated.[15]
Chuidian claimed that she left Tullett simply to seek greener pastures.
She also insisted the complaint did not allege any act on her part that is
illegal or shows her participation in any conspiracy. She merely
exercised her right to exercise her chosen profession and pursue a
better life. Like Villalon, she stressed that her resignation from Tullett
and subsequent transfer to Tradition Philippines did not fall under any of
the prohibited acts under Sections 31 and 34. Section 144 of the
Corporation Code purportedly only applies to provisions of said Code
that do not provide for any penalty while Sections 31 and 34 already
provide for the penalties for their violation - damages, accounting and
restitution. In her view, that Section 34 provided for the ratification of the
acts of the erring corporate director, trustee or office evinced legislative
intent to exclude violation of Section 34 from criminal prosecution. She
argued that Section 144 as a penal provision should be strictly construed
against the State and liberally in favor of the accused and Tullett has
failed to substantiate its charge of bad faith on her part.[16]
In her Counter-Affidavit,[17] petitioner Schulze denied the charges
leveled against her. She pointed out that the Corporation Code is not a
"special law" within the contemplation of Article 10[18] of the Revised
Penal Code on the supplementary application of the Revised Penal
Code to special laws since said provision purportedly applies only to
"special penal laws." She further argued that "[s]ince the Corporation
Code does not expressly provide that the provisions of the Revised
Penal Code shall be made to apply suppletorily, nor does it adopt the
nomenclature of penalties of the Revised Penal Code, the provisions of
the latter cannot be made to apply suppletorily to the former as provided
for in the first sentence of Article 10 of the Revised Penal
Code."[19] Thus, she concluded that a charge of conspiracy which has
for its basis Article 8 of the Revised Penal Code cannot be made
applicable to the provisions of the Corporation Code.
Schulze also claimed that the resignations of Tullett's employees were
done out of their own free will without force, intimidation or pressure on
her and Ient's part and were well within said employees' right to "free
choice of employment."[20]
For his part, petitioner Ient alleged in his Counter-Affidavit that the
charges against him were merely filed to harass Tradition Philippines
and prevent it from penetrating the Philippine market. He further
asserted that due to the highly specialized nature of the industry, there
has always been a regular flow of brokers between the major players.
He claimed that Tradition came to the Philippines in good faith and with
a sincere desire to foster healthy competition with the other brokers. He
averred that he never forced anyone to join Tradition Philippines and the
Tullett employees' signing on with Tradition Philippines was their
voluntary act since they were discontented with the working environment
in Tullett. Adopting a similar line of reasoning as Schulze, Ient believed
that the Revised Penal Code could not be made suppletorily applicable
to the Corporation Code so as to charge him as a conspirator. According
to Ient, he merely acted within his rights when he offered job
opportunities to any interested person as it was within the employees'
rights to change their employment, especially since Article 23 of the
Universal Declaration of Human Rights (of which the Philippines is a
signatory) provides that "everyone has the right to work, to free choice
of employment, to just and favorable conditions of work and to protection
against unemployment."[21] He also denounced the ComplaintAffidavit
and the affidavits of Tullett employees attached thereto as self-serving
or as an exaggeration/twisting of the true events.[22]
In a Consolidated Reply-Affidavit[23] notarized on January 22, 2009,
Tullett argued that Villalon, Chuidian, Schulze, and Ient have mostly
admitted the acts attributed to them in the Complaint-Affidavit and only
attempted to characterize said acts as "normal," "innocent" or
"customary." It was allegedly evident from the Counter-Affidavits that the
resignation of Tullett's employees was an orchestrated plan and not
simply motivated by their seeking "greener pastures." Purported
employee movements in the industry between the major companies are
irrevelant since such movements are subject to contractual obligations.
Tullett likewise denied that its working environment was stringent and
"weird." Even assuming that Villalon and Chuidian were dissatisfied with
their employment in Tullett, this would supposedly not justify nor exempt
them from violating their duties as Tullett's officers/directors. There was
purportedly no violation of their constitutional rights to liberty or to
exercise their profession as such rights are not unbridled and subject to
the laws of the State. In the case of Villalon and Chuidian, they had to
comply with their duties found in Sections 31 and 34 of the Corporation
Code. Tullett asserts that Section 144 applies to the case at bar since
the DOJ Resolution in UCPB is not binding as it applies only to the
parties therein and it likewise involved facts different from the present
case. Relying on Home Insurance Company v. Eastern Shipping
Lines,[24] Tullett argued that Section 144 applies to all other violations
of the Corporation Code without exception. Article 8 of the Revised
Penal Code on conspiracy was allegedly applicable to the Corporation
Code as a special law with a penal provision.[25]
In a Supplemental Complaint-Affidavit[26] likewise notarized on January
22, 2009, Tullett included Leonard James Harvey (Harvey) in the case
and alleged that it learned of Harvey's complicity through the Counter
Affidavit of Villalon. Tullett claimed that Harvey, who was Chairman of
its Board of Directors at the time material to the Complaint, also
conspired to instigate the resignations of its employees and was an
indispensable part of the sabotage committed against it.
In his Rejoiner-Affidavit,[27] Ient vehemently denied that there was a
pre-arranged plan to sabotage Tullett. According to Ient, Gordon Buchan
of Tullett thought too highly of his employer to believe that the Tradition
Group's purpose in setting up Tradition Philippines was specifically to
sabotage Tullett. He stressed that Tradition Philippines was set up for
legitimate business purposes and Tullett employees who signed with
Tradition did so out of their own free will and without any force,
intimidation, pressure or inducement on his and Schulze's part. All he
allegedly did was confirm the rumors that the Tradition Group was
planning to set up a Philippine office. Echoing the arguments of Villalon
and Chuidian, Ient claimed that (a) there could be no violation of
Sections 31 and 34 of the Corporation as these sections refer to
corporate acts or corporate opportunity; (b) Section 144 of the same
Code cannot be applied to Sections 31 and 34 which already contains
the penalties or remedies for their violation; and (c) conspiracy under the
Revised Penal Code cannot be applied to the Sections 31 and 34 of the
Corporation Code.
In a Resolution[28] dated February 17, 2009, State Prosecutor
Cresencio F. Delos Trinos, Jr. (Prosecutor Delos Trinos), Acting City
Prosecutor of Makati City, dismissed the criminal complaints. He
reasoned that:
It is our considered view that the acts ascribed [to] respondents Villalon
and Chuidian did not constitute any of the prohibited acts of directors or
trustees enunciated under Section 31. Their cited actuations certainly
did not involve voting for or assenting to patently unlawful acts of [Tullett]
nor could the same be construed as gross negligence or bad faith in
directing the affairs of [Tullett]. There is also no showing that they
acquired any personal or pecuniary interest in conflict with their duty as
directors of [Tullett]. Neither was there a showing that they attempted to
acquire or acquired, in violation of their duty as directors, any interest
adverse to [Tullett] in respect [to] any matter which has been reposed in
them in confidence.
x x x x
The issue that respondent Villalon informed the brokers of his plan to
resign from [Tullett] and to subsequently transfer to Tradition is not in
dispute. However, we are unable to agree that the brokers were induced
or coerced into resigning from [Tullett] and transferring to Tradition
themselves. x x x As the record shows, Mr. Englebert Wee and the six
(6) members of the broking staff who stand as [Tullett]'s witnesses, also
initially resigned from [Tullett] and transferred to Tradition but backed
out from their contract of employment with Tradition and opted to remain
with [Tullett].
Even assuming ex gratia argumenti that the brokers were induced by
the respondents or anyone of them to leave their employment with
[Tullett], such inducement may only give rise to civil liability for damages
against the respondents but no criminal liability would attach on them. x
x x.
On the alleged inducements of clients of [Tullett] to transfer to Tradition,
there is no showing that clients of [Tullett] actually transferred to
Tradition. Also, the allegation that respondents orchestrated the mass
resignation of employees of [Tullett] to destroy or shut down its business
and to eliminate it from the market in order that Tradition could take its
place is baseless and speculative. Significantly, it is noted that despite
the resignations of respondents Villalon and Chuidian and the majority
of the broking staff and their subsequent transfer to Tradition, the
business of [Tullet] was not destroyed or shut down. [Tullett] was neither
eliminated from the market nor its place in the market taken by Tradition.
x x x
In the same vein, the "corporate opportunity doctrine" enunciated under
Section 34 does not apply herein and cannot be rightfully raised against
respondents Villalon and Chuidian. Under Section 34, a director of a
corporation is prohibited from competing with the business in which his
corporation is engaged in as otherwise he would be guilty of disloyalty
where profits that he may realize will have to go to the corporate funds
except if the disloyal act is ratified. Suffice it to say that their cited acts
did not involve any competition with the business of [Tullett].[29]
On the issue of conspiracy, Prosecutor Delos Trinos found that since
Villalon and Chuidian did not commit any acts in violation of Sections 31
and 34 of the Corporation Code, the charge of conspiracy against
Schulze and Ient had no basis. As for Harvey, said Resolution noted that
he was similarly situated as Villalon and Chuidian; thus, the
considerations in the latter's favor were applicable to the
former.[30] Lastly, on the applicability of Section 144 to Sections 31 and
34, Prosecutor Delos Trinos relied on the reasoning in the DOJ
Resolution dated July 30, 2008 in UCPB v. Antiporda issued by then
Secretary of Justice Raul M. Gonzalez, to wit:
We maintain and reiterate the ratiocination of the Secretary of Justice in
United Coconut Planters Bank vs. Tirso Antiporda, et al., I.S. No. 2007-
633 promulgated on July 30, 2008, thus - "It must be noted that Section
144 covers only those provisions 'not otherwise specifically penalized
therein.' In plain language, this means that the penalties under Section
144 apply only when the other provisions of the Corporation Code do
not yet provide penalties for non-compliance therewith."
A reading of Sections 31 and 34 shows that penalties for violations
thereof are already provided therein. Under Section 31, directors or
trustees are made liable for damages that may result from their
fraudulent or illegal acts. Also, directors, trustees or officers who attempt
to acquire or acquire any interest adverse to the corporation will have to
account for the profits which otherwise would have accrued to the
corporation. Section 34, on the other hand, penalizes directors who
would be guilty of disloyalty to the corporation by accounting to the
corporation all profits that they may realize by refunding the same.[31]
Consequently, Tullett filed a petition for review with the Secretary of
Justice to assail the foregoing resolution of the Acting City Prosecutor of
Makati City. In a Resolution[32] dated April 23, 2009, then Secretary of
Justice Raul M. Gonzalez reversed and set aside Prosecutor Delos
Trinos's resolution and directed the latter to file the information for
violation of Sections 31 and 34 in relation to Section 144 of the
Corporation Code against Villalon, Chuidian, Harvey, Schulze, and Ient
before the proper court. As can be gleaned from the April 23, 2009
Resolution, the Secretary of Justice ruled that:
It is evident from the case at bar that there is probable cause to indict
respondents Villalon, Chuidian and Harvey for violating Section 31 of the
Corporation Code. Indeed, there is prima facie evidence to show that
the said respondents acted in bad faith in directing the affairs of
complainant. Undeniably, respondents Villalon, Chuidian and Harvey
occupied positions of high responsibility and great trust as they were
members of the board of directors and corporate officers of complainant.
x x x As such, they are required to administer the corporate affairs of
complainant for the welfare and benefit of the stockholders and to
exercise the best care, skill and judgment in the management of the
corporate business and act solely for the interest of the corporation.
x x x x
Respondents Villalon and Chuidian acted with dishonesty and in fraud.
They went to the extent of having their several meetings away from
complainant's office so as to secretly entice and induce all its brokers to
transfer to Tradition. Respondents Villalon and Chuidian did not entice
merely one or two employees of complainant but admittedly, the entire
broking staff of the latter. This act would lead to the sure collapse of
complainant. x x x.
Further, respondents Villalon and Chuidian acquired personal and
pecuniary interest in conflict with their duties as directors of complainant.
Respondents Villalon and Chuidian committed the acts complained of in
order to transfer to Tradition, to have a higher salary and position and
bring the clients and business of complainant with them. The fact that
Tradition is not yet incorporated at that time is of no consequence.
Moreover, respondents Villalon and Chuidian violated Section 34 of the
Corporation Code when they acquired business opportunity adverse to
that of complainant. When respondents Villalon and Chuidian told the
brokers of complainant to convince their clients to transfer their business
to Tradition, the profits of complainant which rightly belonging to it will
be transferred to a competitor company to be headed by respondents.
The provision of Section 144 of the Corporation Code is also applicable
in the case at bar as the penal provision provided therein is made
applicable to all violations of the Corporation Code, not otherwise
specifically penalized. Moreover, the factual milieu of the case entitled
"Antiporda, et al., IS No. 2007-633" is inapplicable as the facts of the
above-entitled case is different.
x x x x
As for respondent Harvey's probable indictment, aside from not
submitting his counter-affidavit, the counter-affidavit of respondent
Villalon showed that he is also liable as such since the idea to transfer
the employment of complainant's brokers was broached by him.
Anent respondents Ient and Schulze, record revealed that they
conspired with respondents Villalon and Chuidian when they actively
participated in the acts complained of. They presented the employment
contracts and indemnity agreements with the brokers of complainant in
a series of meetings held with respondents Villalon and Chuidian.
Respondent Ient signed the contracts as CFO of Tradition Asia and even
confirmed the transfer of respondent Villalon to Tradition. Respondent
Schulze admitted that the purpose of her sojourn in the Philippines was
to assist in the formation of Tradition. Thus, it is clear that their role in
the acts complained of were instrumental for respondents Villalon and
Chuidian to violate their duties and responsibilities as directors and
officers of complainant.[33]
Ient and Schulze moved for reconsideration of the foregoing Resolution
by the Secretary of Justice. Meanwhile, on May 14, 2009, two
Informations, one for violation of Section 31 and another for violation of
Section 34, were filed by Prosecutor Delos Trinos with the Metropolitan
Trial Court of Makati City. In a Resolution dated May 15, 2009, the
Secretary of Justice denied the motion for reconsideration filed by
petitioners. Unsatisfied with this tum of events, petitioners Ient and
Schulze brought the matter to the Court of Appeals via a petition
for certiorari under Rule 65 which was docketed as CA-G.R. SP No.
109094.
In a Decision dated August 12, 2009, the Court of Appeals affirmed the
Secretary of Justice's Resolutions dated April 23, 2009 and May 15,
2009, after holding that: abuse of discretion was committed by the respondent Secretary in
reversing the city prosecutor's dismissal of the criminal complaint and
ordering the filing of the corresponding information against the accused,
Respondent Secretary correctly stressed that Sections 31 and 34 must
including herein petitioners.
be read in the light of the nature of the position of a director and officer
of the corporation as highly imbued with trust and confidence.
As to petitioners' contention that conspiracy had not been established
Petitioners' rigid interpretation of clear-cut instances of liability serves
by the evidence, suffice it to state that such stance is belied by their own
only to undermine the values of loyalty, honesty and fairness in
admission of the very acts complained of in the Complaint-Affidavit, the
managing the affairs of the corporation, which the law vested on their
defense put up by them consists merely in their common argument that
position. Besides, this Court can hardly deduce abuse of discretion on
no crime was committed because private respondent's brokers had the
the part of respondent Secretary in considering a conflict of interest
right to resign and transfer employment if they so decide.
scenario from petitioners' act of advancing the interest of an emerging
competitor in the field rather than fiercely protecting the business of their
It bears to reiterate that probable cause is such set of facts and
own company. As aptly pointed out by the private respondent, the issue
circumstances which would lead a reasonably discreet and prudent man
is not the right of the employee brokers to seek greener pastures or
to believe that the offense charged in the Information or any offense
better employment opportunities but the breach of fiduciary duty owed
included therein has been committed by the person sought to be
by its directors and officers.
arrested. In determining probable cause, the average man weighs the
facts and circumstances without resorting to the calibrations of the rules
In the commentary on the subject of duties of directors and controlling
of evidence of which he has no technical knowledge. He relies on
stockholders under the Corporation Code, Campos explained:
common sense. Thus, a finding of probable cause does not require an
inquiry into whether there is sufficient evidence to procure a conviction.
"Fiduciary Duties; Conflict of Interest It is enough that it is believed that the act or omission complained of
constitutes the offense charged. Precisely, there is a trial for the
"A director, holding as he does a position of trust, is a fiduciary of the reception of evidence of the prosecution in support of the charge.
corporation. As such, in case of conflict of his interest with those of the
corporation, he cannot sacrifice the latter without incurring liability for his Finally, the Court finds no merit in the argument of petitioners that Sec.
disloyal act. The fiduciary duty has many ramifications, and the possible 144 is not applicable since Sec. 31 already provides for liability for
conflict-of-interest situations are almost limitless, each possibility posing damages against the guilty director or corporate officer.
different problems. There will be cases where a breach of trust is clear.
Thus, where a director converts for his own use funds or property
"SEC. 144. Violations of the Code. - Violations of any of the provisions
belonging to the corporation, or accepts material benefits for exercising
of this Code or its amendments not otherwise specifically penalized
his powers in favor of someone seeking to do business with the
therein shall be punished by a fine of not less than one thousand
corporation, no court will allow him to keep the profit he derives from his
(P1,000.00) pesos but not more than ten thousand (P10,000.00) pesos
wrongdoing. In many other cases, however, the line of demarcation
or by imprisonment for not less than thirty (30) days but not more than
between the fiduciary relationship and a director's personal right is not
five (5) years, or both, in the discretion of the court. If the violation is
easy to define. The Code has attempted at least to lay down general
committed by a corporation, the same may, after notice and hearing, be
rules of conduct and although these serve as guidelines for directors to
dissolved in appropriate proceedings before the Securities and
follow, the determination as to whether in a given case the duty of loyalty
Exchange Commission; Provided, That such dissolution shall not
has been violated has ultimately to be decided by the court on the case's
preclude the institution of appropriate action against the director, trustee
own merits." x x x.
or officer of the corporation responsible for the said violation; Provided,

Prescinding from the above, We agree with the Secretary of Justice that further, That nothing in this section shall be construed to repeal the other
the acts complained of in this case establish a prima facie case for causes for dissolution of a corporation provided in this Code." x x x.

violation of Sec. 31 such that the accused directors and officers of

"Damages" as the term is used in Sec. 31 cannot be deemed as
private respondent corporation are probably guilty of breach of bad faith
punishment or penalty as this appears in the above-cited criminal
in directing the affairs of the corporation. The breach of fiduciary duty as
provision of the Corporation Code. Such "damage" implies civil, rather
such director and corporate office (sic) are evident from their
than, criminal liability and hence does not fall under those provisions of
participation in recruiting the brokers employed in the corporation,
the Code which are not "specifically penalized" with fine or
inducing them to accept employment contracts with the newly formed
imprisonment.[34]
firm engaged in competing business, and securing these new hires
against possible breach of contract complaint by the corporation through In light of the adverse ruling of the Court of Appeals, petitioners Ient and
indemnity contracts provided by Tradition Philippines. Clearly, no grave Schulze filed separate petitions for review with this Court. After requiring
further pleadings from the parties, the Court directed the parties to
submit their memoranda to consolidate their positions on the issues.
At the outset, it should be noted that respondent Tullett interposed
several procedural objections which we shall dispose of first.
Anent respondent's contentions that the present petitions (assailing the
issuances of the Secretary of Justice on the question of probable cause)
had become moot and academic with the filing of the Informations in the
trial court and that under our ruling in Advincula v. Court of
Appeals[35] the filing of a petition for certiorari with the appellate court
was the improper remedy as findings of the Secretary of Justice on
probable cause must be respected, we hold that these cited rules are
not inflexible.
In Yambot v. Tuquero,[36] we observed that under exceptional
circumstances, a petition for certiorari assailing the resolution of the
Secretary of Justice (involving an appeal of the prosecutor's ruling on
probable cause) may be allowed, notwithstanding the filing of an
information with the trial court. We reiterated the doctrine in Ching v.
Secretary of Justice[37] that the acts of a quasi-judicial officer may be
assailed by the aggrieved party through a petition for certiorari and
enjoined (a) when necessary to afford adequate protection to the
constitutional rights of the accused; (b) when necessary for the orderly
administration of justice; (c) when the acts of the officer are without or in
excess of authority; (d) where the charges are manifestly false and
motivated by the lust for vengeance; and (e) when there is clearly
no prima facie case against the accused.
In the case at bar, it is unsettling to perceive a seeming lack of uniformity
in the rulings of the Secretary of Justice on the issue of whether a
violation of Section 31 entails criminal or only civil liability and such
divergent actions are explained with a terse declaration of an alleged
difference in factual milieu and nothing further. Such a state of affairs is
not only offensive to principles of fair play but also anathema to the
orderly administration of justice. Indeed, we have held that where the
action of the Secretary of Justice is tainted with arbitrariness, an
aggrieved party may seek judicial review via certiorari on the ground of
grave abuse of discretion.[38]
We likewise cannot give credit to respondent's claim of mootness. The
"moot and academic" principle is not a magical formula that can
automatically dissuade the courts in resolving a case.[39] The Court will
not hesitate to resolve the legal and constitutional issues raised to
formulate controlling principles to guide the bench, the bar, and the
public, particularly on a question capable of repetition, yet evading
review.[40]
As for the assertion that the present petitions are dismissible due to
forum shopping since they were filed during the pendency of petitioners'
motion to quash and their co-accused's motion for judicial determination
of probable cause with the trial court, we hold that there is no cause to
dismiss these petitions on such ground.
Forum shopping is an act of a party, against whom an adverse judgment
or order has been rendered in one forum, of seeking and possibly getting
a favorable opinion in another forum, other than by appeal or special civil
action for certiorari. It may also involve the institution of two or more
actions or proceedings grounded on the same cause on the supposition
that one or the other court would make a favorable disposition.[41] There
is no forum shopping where the suits involve different causes of action
or different reliefs.[42]
Jurisprudence explains that:
A motion to quash is the mode by which an accused assails, before
entering his plea, the validity of the criminal complaint or the criminal
information filed against him for insufficiency on its face in point of law,
or for defect apparent on the face of the Information. The motion, as a
rule, hypothetically admits the truth of the facts spelled out in the
complaint or information. The rules governing a motion to quash are
found under Rule 117 of the Revised Rules of Court. Section 3 of this
Rule enumerates the grounds for the quashal of a complaint or
information. x x x.[43] (Citation omitted.)
On the other hand, the action at bar is a review on certiorari of the
assailed Court of Appeals decision wherein the main issue is whether or
not the Secretary of Justice committed grave abuse of discretion in
reversing the City Prosecutor's dismissal of the criminal complaint.
These consolidated petitions may proceed regardless of whether or not
there are grounds to quash the criminal information pending in the
court a quo.
Neither do we find relevant the pendency of petitioners' co-accused's
motion for judicial determination of probable cause before the trial court.
The several accused in these consolidated cases had a number of
remedies available to them and they are each free to pursue the remedy
which they deem is their best option. Certainly, there is no requirement
that the different parties in a case must all choose the same remedy. We
have held that even assuming separate actions have been filed by
different parties involving essentially the same subject matter, no forum
shopping is committed where the parties did not resort to multiple judicial
remedies.[44] In any event, we have stated in the past that the rules on
forum shopping are not always applied with inflexibility.[45]
As a final point on the technical aspects of this case, we reiterate here
the principle that in the exercise of the Courts equity jurisdiction,
procedural lapses may be disregarded so that a case may be resolved
on its merits.[46] Indeed where strong considerations of substantive
justice are manifest in a petition, the strict application of the rules of
procedure may be relaxed.[47] This is particularly true in these
consolidated cases where legal issues of first impression have been
raised.
We now proceed to rule upon the parties' substantive arguments.
The main bone of disagreement among the parties in this case is the
applicability of Section 144 of the Corporation Code to Sections 31 and
34 of the same statute such that criminal liability attaches to violations
of Sections 31 and 34. For convenient reference, we quote the
contentious provisions here:
SECTION 31. Liability of Directors, Trustees or Officers. - Directors or
trustees who willfully and knowingly vote for or assent to patently
unlawful acts of the corporation or who are guilty of gross negligence or
bad faith in directing the affairs of the corporation or acquire any
personal or pecuniary interest in conflict with their duty as such directors
or trustees shall be liable jointly and severally for all damages resulting
therefrom suffered by the corporation, its stockholders or members and
other persons.
damages, accounting and restitution of profits. On the other hand,
respondent and the appellate court have taken the position that the term
"penalized" under Section 144 should be interpreted as referring to
criminal penalty, such as fine or imprisonment, and that it could not
possibly contemplate "civil" penalties such as damages, accounting or
restitution.
As Section 144 speaks, among others, of the imposition of criminal
penalties, the Court is guided by the elementary rules of statutory
construction of penal provisions. First, in all criminal prosecutions, the
existence of criminal liability for which the accused is made answerable
must be clear and certain. We have consistently held that "penal statutes
are construed strictly against the State and liberally in favor of the
accused. When there is doubt on the interpretation of criminal laws, all
must be resolved in favor of the accused. Since penal laws should not
be applied mechanically, the Court must determine whether their
application is consistent with the purpose and reason of the law."[48]

When a director, trustee or officer attempts to acquire or acquires, in

Intimately related to the in dubio pro reo[49] principle is the rule of lenity.
violation of his duty, any interest adverse to the corporation in respect of
The rule applies when the court is faced with two possible interpretations
any matter which has been reposed in him in confidence, as to which
of a penal statute, one that is prejudicial to the accused and another that
equity imposes a disability upon him to deal in his own behalf, he shall
is favorable to him. The rule calls for the adoption of an interpretation
be liable as a trustee for the corporation and must account for the profits
which is more lenient to the accused.[50]
which otherwise would have accrued to the corporation.

In American jurisprudence, there are two schools of thought regarding

SECTION 34. Disloyalty of a Director. - Where a director, by virtue of his
the application of the rule of lenity. Justice David Souter, writing for the
office, acquires for himself a business opportunity which should belong
majority in United States v. R.L.C.,[51] refused to resort to the rule and
to the corporation, thereby obtaining profits to the prejudice of such
held that lenity is reserved "for those situations in which a reasonable
corporation, he must account to the latter for all such profits by refunding
doubt persists about a statute's intended scope even after resort to 'the
the same, unless his act has been ratified by a vote of the stockholders
language and structure, legislative history, and motivating policies' of the
owning or representing at least two-thirds (2/3) of the outstanding capital
statute." Justice Antonin Scalia, although concurring in part and
stock. This provision shall be applicable, notwithstanding the fact that
concurring in the judgment, argued that "it is not consistent with the rule
the director risked his own funds in the venture.
of lenity to construe a textually ambiguous penal statute against a
criminal defendant on the basis of legislative history... The rule of lenity,
SECTION 144. Violations of the Code. - Violations of any of the
in my view, prescribes the result when a criminal statute is ambiguous:
provisions of this Code or its amendments not otherwise specifically
The more lenient interpretation must prevail."[52] In other words, for
penalized therein shall be punished by a fine of not less than one
Justice Scalia, textual ambiguity in a penal statute suffices for the rule
thousand (P1,000.00) pesos but not more than ten thousand
of lenity to be applied. Although foreign case law is merely persuasive
(P10,000.00) pesos or by imprisonment for not less than thirty (30) days
authority and this Court is not bound by either legal perspective
but not more than five (5) years, or both, in the discretion of the court. If
expounded in United States v. R.L.C., said case provides a useful
the violation is committed by a corporation, the same may, after notice
framework in our own examination of the scope and application of
and hearing, be dissolved in appropriate proceedings before the
Section 144.
Securities and Exchange Commission: Provided, That such dissolution
shall not preclude the institution of appropriate action against the
After a meticulous consideration of the arguments presented by both
director, trustee or officer of the corporation responsible for said
sides, the Court comes to the conclusion that there is textual ambiguity
violation: Provided, further, That nothing in this section shall be
in Section 144; moreover, such ambiguity remains even after an
construed to repeal the other causes for dissolution of a corporation
examination of its legislative history and the use of other aids to statutory
provided in this Code.
construction, necessitating the application of the rule of lenity in the case
Petitioners posit that Section 144 only applies to the provisions of the at bar.
Corporation Code or its amendments "not otherwise specifically
penalized" by said statute and should not cover Sections 31 and 34 Respondent urges this Court to strictly construe Section 144 as
which both prescribe the "penalties" for their violation; namely, contemplating only penal penalties. However, a perusal of Section 144
shows that it is not a purely penal provision. When it is a corporation that g) failure to provide certified voters and deactivated voters list to
commits a violation of the Corporation Code, it may be dissolved in candidates and heads or representatives of political parties upon written
appropriate proceedings before the Securities and Exchange request as provided in Section 30 hereof;
Commission. The involuntary dissolution of an erring corporation is not
imposed as a criminal sanction,[53] but rather it is an administrative h) failure to include the approved application form for registration of a
penalty. qualified voter in the book of voters of a particular precinct or the
omission of the name of a duly registered voter in the certified list of
The ambivalence in the language of Section 144 becomes more readily voters of the precinct where he is duly registered resulting in his failure
apparent in comparison to the penal provision[54] in Republic Act No. to cast his vote during an election, plebiscite, referendum, initiative
8189 (The Voter's Registration Act of 1996), which was the subject of and/or recall. The presence of the form or name in the book of voters or
our decision in Romualdez v. Commission on Elections.[55] In that case, certified list of voters in precincts other than where he is duly registered
we upheld the constitutionality of Section 45(j) of Republic Act No. 8189 shall not be an excuse hereof;
which made any violation of said statute a criminal offense. It is
respondent's opinion that the penal clause in Section 144 should receive i) The posting of a list of voters outside or at the door of a precinct on
similar treatment and be deemed applicable to any violation of the the day of an election, plebiscite, referendum, initiative and/or recall and
Corporation Code. The Court cannot accept this proposition for there which list is different in contents from the certified list of voters being
are weighty reasons to distinguish this case from Romualdez. used by the Board of Election Inspectors; and

We find it apropos to quote Sections 45 and 46 of Republic Act No. 8189 j) Violation of any of the provisions of this Act.
here:
SECTION 46. Penalties. - Any person found guilty of any Election
offense under this A.ct shall be punished with imprisonment of not less
SECTION 45. Election Offense. - The following shall be considered
than one (1) year but nor more than six (6) years and shall not be subject
election offenses under this Act:
to probation. In addition, the guilty party shall be sentenced to suffer
disqualification to hold public office and deprivation of the right of
a) to deliver, hand over, entrust or give, directly or indirectly, his voter's
suffrage. If he is a foreigner, he shall be deported after the prison term
identification card to another in consideration of money or other benefit
has been served. Any political party found guilty shall be sentenced to
or promise; or take or accept such voter's identification card, directly or
pay a fine of not less than One hundred thousand pesos (P100,000) but
indirectly, by giving or causing the giving of money or other benefit or
not more than Five hundred thousand pesos (P500,000).
making or causing the making of a promise therefor;
The crux of the Court's ruling in Romualdez is that, from the wording of
b) to fail, without cause, to post or give any of the notices or to make any Section 450), there is a clear legislative intent to treat as an election
of the reports required under this Act; offense any violation of the provisions of Republic Act No. 8189. For this
reason, we do not doubt that Section 46 contemplates the term "penalty"
c) to issue or cause the issuance of a voter's identification number to primarily in the criminal law or punitive concept of the term.
cancel or cause the cancellation thereof in violation of the provisions of
this Act; or to refuse the issuance of registered voters their voter's There is no provision in the Corporation Code using similarly emphatic
identification card; language that evinces a categorical legislative intent to treat as a
criminal offense each and every violation of that law. Consequently,
d) to accept an appointment, to assume office and to actually serve as there is no compelling reason for the Court to construe Section 144 as
a member of the Election Registration Board although ineligible thereto; similarly employing the term "penalized" or "penalty" solely in terms of
to appoint such ineligible person knowing him to be ineligible; criminal liability.

e) to interfere with, impede, abscond for purposes of gain or to prevent In People v. Temporada,[56] we held that in interpreting penal laws,
the installation or use of computers and devices and the processing, "words are given their ordinary meaning and that any reasonable doubt
storage, generation and transmission of registration data or information; about the meaning is decided in favor of anyone subjected to a criminal
statute." Black's Law Dictionary recognizes the numerous conceptions
f) to gain, cause access to, use, alter, destroy, or disclose any computer of the term penalty and discusses in part that it is "[a]n elastic term with
data, program, system software, network, or any computer related many different shades of meaning; it involves idea of
devices, facilities, hardware or equipment, whether classified or punishment, corporeal or pecuniary, or civil or criminal, although its
declassified; meaning is generally confined to pecuniary
punishment."[57]Persuasively, in Smith v. Doe,[58] the U.S. Supreme
Court, interpreting a statutory provision that covers both punitive and writing and file the same with the corporate secretary, shall be solidarily
non-punitive provisions, held that: liable with the stockholder concerned to the corporation and its creditors
for the difference between the fair value received at the time of issuance
of the stock and the par or issued value of the same.
The location and labels of a statutory provision do not by themselves
transform a civil remedy into a criminal one. In 89 Firearms, the Court
SECTION 66. Interest on unpaid subscriptions. - Subscribers for stock
held a forfeiture provision to be a civil sanction even though the
shall pay to the corporation interest on all unpaid subscriptions from the
authorizing statute was in the criminal code. The Court rejected the
date of subscription, if so required by, and at the rate of interest fixed in,
argument that the placement demonstrated Congress' "intention to
the by-laws. If no rate of interest is fixed in the bylaws, such rate shall
create an additional criminal sanction," observing that "both criminal and
be deemed to be the legal rate.
civil sanctions may be labeled 'penalties.'" (Emphasis supplied.)

Giving a broad and flexible interpretation to the term "penalized" in SECTION 67. Payment of balance of subscription. - Subject to the
Section 144 only has utility if there are provisions in the Corporation provisions of the contract of subscription, the board of directors of any
Code that specify consequences other than "penal" or "criminal" for stock corporation may at any time declare due and payable to the
violation of, or non-compliance with, the tenets of the Code. Petitioners corporation unpaid subscriptions to the capital stock and may collect the
point to the civil liability prescribed in Sections 31 and 34. Aside from same or such percentage of said unpaid subscriptions, in either case
Sections 31 and 34, we consider these provisions of interest: with interest accrued, if any, as it may deem necessary.

Payment of any unpaid subscription or any percentage thereof, together

SECTION 21. Corporation by Estoppel. - All persons who assume to act with the interest accrued, if any, shall be made on the date specified in
as a corporation knowing it to be without authority to do so shall be liable the contract of subscription or on the date stated in the call made by the
as general partners for all debts, liabilities and damages incurred or board. Failure to pay on such date shall render the entire balance due
arising as a result thereof: Provided, however, That when any such and payable and shall make the stockholder liable for interest at the legal
ostensible corporation is sued on any transaction entered by it as a rate on such balance, unless a different rate of interest is provided in the
corporation or on any tort committed by it as such, it shall not be allowed by-laws, computed from such date until full payment. If within thirty (30)
to use as a defense its lack of corporate personality. days from the said date no payment is made, all stocks covered by said
subscription shall thereupon become delinquent and shall be subject to
One who assumes an obligation to an ostensible corporation as such, sale as hereinafter provided, unless the board of directors orders
cannot resist performance thereof on the ground that there was in fact otherwise.
no corporation.

SECTION 74. Books to be kept; stock transfer agent. - Every corporation

SECTION 22. Effects of non-use of corporate charter and continuous in
operation of a corporation. - If a corporation does not formally organize
and commence the transaction of its business or the construction of its
works within two (2) years from the date of its incorporation, its corporate
powers cease and the corporation shall be deemed dissolved. However,
if a corporation has commenced the transaction of its business but
subsequently becomes continuously inoperative for a period of at least
five (5) years, the same shall be a ground for the suspension or
revocation of its corporate franchise or certificate of incorporation.
This provision shall not apply if the failure to organize, commence the
transaction of its business or the construction of its works, or to
continuously operate is due to causes beyond the control of the
corporation as may be determined by the Securities and Exchange
Commission.
SECTION 65. Liability of directors for watered stocks. - Any director or
officer of a corporation consenting to the issuance of stocks for a
consideration less than its par or issued value or for a consideration in
any form other than cash, valued in excess of its fair value, or who,
having knowledge thereof, does not forthwith express his objection in
shall, at its principal office, keep and carefully preserve a record of all
business transactions, and minutes of all meetings of stockholders or
members, or of the board of directors or trustees, in which shall be set
forth in detail the time and place of holding the meeting, how authorized,
the notice given, whether the meeting was regular or special, if special
its object, those present and absent, and every act done or ordered done
at the meeting. Upon the demand of any director, trustee, stockholder or
member, the time when any director, trustee, stockholder or member
entered or left the meeting must be noted in the minutes; and on a similar
demand, the yeas and nays must be taken on any motion or proposition,
and a record thereof carefully made. The protest of any director, trustee,
stockholder or member on any action or proposed action must be
recorded in full on his demand.
The records of all business transactions of the corporation and the
minutes of any meeting shall be open to the inspection of any director,
trustee, stockholder or member of the corporation at reasonable hours
on business days and he may demand, in writing, for a copy of excerpts
from said records or minutes, at his expense.
Any officer or agent of the corporation who shall refuse to allow any
director, trustee, stockholder or member of the corporation to examine
and copy excerpts from its records or minutes, in accordance with the
provisions of this Code, shall be liable to such director, trustee,
stockholder or member for damages, and in addition, shall be guilty of
an offense which shall be punishable under Section 144 of this
Code: Provided, That if such refusal is pursuant to a resolution or order
of the board of directors or trustees, the liability under this section for
such action shall be imposed upon the directors or trustees who voted
for such refusal: and Provided, further, That it shall be a defense to any
action under this section that the person demanding to examine and
copy excerpts from the corporation's records and minutes has
improperly used any information secured through any prior examination
of the records or minutes of such corporation or of any other corporation,
or was not acting in good faith or for a legitimate purpose in making his
demand.
liabilities mentioned therein. Had it been the intention of the drafters of
the law to define Sections 31 and 34 as offenses, they could have easily
included similar language as that found in Section 74.
If we were to employ the same line of reasoning as the majority in United
States v. R.L.C., would the apparent ambiguities in the text of the
Corporation Code disappear with an analysis of said statute's legislative
history as to warrant a strict interpretation of its provisions? The answer
is a negative.
In his sponsorship speech of Cabinet Bill (C.B.) No. 3 (the bill that was
enacted into the Corporation Code), then Minister Estelito Mendoza
highlighted Sections 31 to 34 as among the significant innovations made
to the previous statute (Act 1459 or the Corporation Law), thusly:

There is a lot of jurisprudence on the liability of directors, trustees or

Stock corporations must also keep a book to be known as the "stock and
transfer book", in which must be kept a record of all stocks in the names
of the stockholders alphabetically arranged; the installments paid and
unpaid on all stock for which subscription has been made, and the date
of payment of any installment; a statement of every alienation, sale or
transfer of stock made, the date thereof, and by and to whom made; and
such other entries as the by laws may prescribe. The stock and transfer
book shall be kept in the principal office of the corporation or in the office
of its stock transfer agent and shall be open for inspection of any director
or stockholder of the corporation at reasonable hours on business days.
No stock transfer agent or one engaged principally in the business of
registering transfer of stocks in behalf of a stock corporation shall be
allowed to operate in the Philippines unless he secures a license from
the Securities and Exchange Commission and pays a fee as may be
fixed by the Commission, which shall be renewed annually: Provided,
That a stock corporation is not precluded from performing or making
transfer of its own stocks, in which case all the rules and regulations
imposed on stock transfer agents, except the payment of a license fee
herein provided, shall be applicable.
officers for breach of trust or acts of disloyalty to the corporation. Such
jurisprudence is not, of course, without any ambiguity of dissent.
Sections 31, 32, 33 and 34 of the code indicate in detail prohibited acts
in this area as well as consequences of the performance of such acts or
failure to perform or discharge the responsibility to direct the affairs of
the corporation with utmost fidelity.[59]
Alternatively stated, Sections 31 to 34 were introduced into the
Corporation Code to define what acts are covered, as well as the
consequences of such acts or omissions amounting to a failure to fulfil
a director's or corporate officer's fiduciary duties to the corporation. A
closer look at the subsequent deliberations on C.B. No. 3, particularly in
relation to Sections 31 and 34, would show that the discussions focused
on the civil liabilities or consequences prescribed in said provisions
themselves. We quote the pertinent portions of the legislative records:
On Section 31
(Period of Sponsorship, December 4, 1979 Session)

Section 22 imposes the penalty of involuntary dissolution for non-use of MR. LEGASPI. x x x.
corporate charter. The rest of the above-quoted provisions, like Sections
31 and 34, provide for civil or pecuniary liabilities for the acts covered In Section 31 page 22, it seems that the proviso is to make the directors
therein but what is significant is the fact that, of all these provisions that or the trustees who willfully and knowingly vote for or assent to patently
provide for consequences other than penal, only Section 74 expressly unlawful act or guilty of gross negligence or bad faith in directing the
states that a violation thereof is likewise considered an offense under affairs of the corporation would be solidarity liable with the
Section 144. If respondent and the Court of Appeals are correct, that officers concerned.
Section 144 automatically imposes penal sanctions on violations of
provisions for which no criminal penalty was imposed, then such Now, would this, Your Honor, not discourage the serving of competent
language in Section 74 defining a violation thereof as an offense would people as members of the Board of Directors, considering that they
have been superfluous. There would be no need for legislators to clarify might feel that in the event things would do badly against the
that, aside from civil liability, violators of Section 74 are exposed to corporation, they might be held liable personally for acts which should
criminal liability as well. We agree with petitioners that the lack of specific be attributed only to the corporation?
language imposing criminal liability in Sections 31 and 34 shows
legislative intent to limit the consequences of their violation to the civil MR. MENDOZA. Your Honor will note that the directors or trustees who
are held liable must be proven to have acted willfully and knowingly, or On Section 34
if not willfully and knowingly, it must be proven that they acted with gross
negligence or bad faith. It must also be demonstrated that the acts done
(Period of Sponsorship, November 5, 1979 Session)
were patently unlawful. So, the requirement for liability is somewhat
serious to the point of, in my opinion, being extreme. It will be noted that
MR. NUEZ. x x x
this provision does not merely require assenting to patently unlawful
acts. It does not merely require being negligent. The provision requires
May I go now to page 24, Section 34.
that they assent to patently unlawful acts willfully and with knowledge of
the illegality of the act.
"Disloyalty of a Director - Where a director by virtue of his office acquires
for himself a business opportunity which should belong to the
Now, it might be true, as Your Honor suggested, that some persons will
corporation thereby obtaining profits to the prejudice of the corporation,
be discouraged or disinclined to agree to serve the Board of Directors
he must account to the latter for all such profits, unless his act has been
because of this liability. But at the same time this provision - Section 31
ratified by a vote of the stockholders owning or representing at least two
- is really no more than a consequence of the requirement that the
thirds (2/3) of the outstanding capital stock. This provision shall be
position of membership in the Board of Directors is a position of high
applicable notwithstanding the fact that the director risked his own funds
responsibility and great trust. Unless a provision such as this is included,
in the venture."
then that requirement of responsibility and trust will not be as meaningful
as it should be. For after all, directors may take the attitude that unless
My question, Your Honor, is: is this not the so-called corporate
they themselves commit the act, they would not be liable. But the
opportunity doctrine found in the American jurisprudence?
responsibility of a director is not merely to act properly. The responsibility
of a director is to assure that the Board of Directors, which means his
MR. MENDOZA. Yes, Mr. Speaker, as I stated many of the changes that
colleagues acting together, docs not act in a manner that is unlawful or
have been incorporated in the Code were drawn from jurisprudence on
to the prejudice of the corporation because of personal or pecuniary
the matter, but even jurisprudence on several matters or several issues
interest of the directors.[60] (Emphases supplied.)
relating to the Corporation Code are sometimes ambiguous, sometimes
controversial. In order, therefore, to clarify those issues, what was done
(Period of Amendments, March 11, 1980 Session)
was to spell out in statutory language the rule that should be applied on
those matters and one of such examples is Section 34.
MR. MILLORA. On line 16, Section 31, referring to the phrase "patently
unlawful acts." Before I introduce my proposed amendment to delete the
MR. NUEZ. Does not His Honor believe that to codify this particular
word "patently'' is there a reason for placing this adjective before the
document into law may lead to absurdity or confusion as the cited
word "unlawful", Your Honor?
doctrine is subject to many qualifications depending on the peculiar
nature of the case?
MR. ABELLO. Probably the one who prepared this original draft of
Cabinet Bill No. 3 wanted to make sure that a director or trustee is not
Let us suppose that there is a business opportunity that the corporation
[made] liable for an act that is not clearly unlawful, so he used a better
did not take advantage of or was not interested in. Would you hold the
word than "clearly," he used the word "patently."
director responsible for acquiring the interest despite the fact that the
corporation did not take advantage of or was not interested in that
MR. MILLORA. So, in that case, Your Honor, a director may not be liable
particular business venture? Does not His Honor believe that this should
for certain unlawful acts. Is that right, Your Honor?
be subject to qualifications and should be dealt with on a case-to-case
basis depending on the circumstances of the case?
MR. ABELLO. Yes, if it is not patently unlawful. Precisely, the use of the
word "patently" is also to give some kind of protection to the directors or
MR. MENDOZA. If a director is prudent or wise enough, then he can
trustees. Because if you will hold the directors or trustees responsible
protect himself in such contingency. If he is aware of a business
for everything, then no one will serve as director or trustee of any
opportunity, he can make it known to the corporation, propose it to the
corporation. But, he is made liable so long as he willfully and knowingly
corporation, and allow the corporation to reject it, after which he,
votes for or assent to patently unlawful acts of the corporation. So it is
certainly, may avail of it without risk of the consequences provided for in
also to protect the director [or] trustees from liability for acts that was not
Section 34.
patently unlawful.

MR. NUEZ. I see. So that the position of Your Honor is that the matter
MR. MILLORA. With that explanation, Your Honor, I will not proceed with
should be communicated to the corporation, the matter of the director
my proposed amendment.[61]
acquiring the business opportunity should be communicated to the
corporation and that if it is not communicated to the corporation, the
director will be responsible. Is that the position of His Honor?
MR. MENDOZA. In my opinion it must not only be made known to the
corporation; the corporation must be formally advised and if he really
would like to be assured that he is protected against the consequences
provided for in Section 34, he should take such steps whereby the
opportunity is clearly presented to the corporation and the corporation
has the opportunity to decide on whether to avail of it or not and then let
the corporation reject it, after which then he may avail of it. Under such
circumstances I do not believe he would expose himself to the
consequences provided for under Section 34.
Precisely, the reason we have laid down this ruling in statutory language
is that for as long as the rule is not clarified there will be ambiguity in the
matter. And directors of corporations who may acquire knowledge of
such opportunities would always be risking consequences not knowing
how the courts will later on decide such issues. But now with the
statutory rule, any director who comes to know of an opportunity that
may be available to the corporation would be aware of the
consequences in case he avails of that opportunity without giving the
corporation the privilege of deciding beforehand on whether to take
advantage of it or not.
that may arise out of this particular provision. My question is: how can
we remedy the situation? Is there a necessity, Your Honor, of a formal
notice to the corporation that it should be placed in the agenda, in a
meeting or a special or regular meeting of the corporation that such a
business venture exists, that the corporation should take advantage of
this business venture before a director can be held not responsible for
acquiring this business venture?
MR. MENDOZA. Well, I believe, as I have stated, Mr. Speaker, that is
what a prudent director should do. If he does not wish to be in any way
handicapped in availing of business opportunities, he should, to the
same degree, be circumspect in accepting directorships in corporations.
If he wants to be completely free to avail of any opportunity which may
come his way, he should not accept the position of director in any
corporation which he may anticipate may be dealing in a business in
connection with which he may acquire a certain interest.
The purpose of all these provisions is to assure that directors or
corporations constantly - not only constantly remember but actually are
imposed with certain positive obligations that at least would assure that
they will discharge their responsibilities with utmost fidelity.[62]
(December 5, 1979 Session)

MR. NUEZ. Let us take the case of a corporation where, from all
indications, the corporation was aware of this business opportunity and
despite this fact, Your Honor, and the failure of the director to
communicate the venture to the corporation, the director entered into the
business venture. Is the director liable, Your Honor, despite the fact that
the corporation has knowledge, Your Honor, from all indications, from
all facts, from all circumstances of the case, the corporation is aware?
MR. MENDOZA. First of all, to say that a corporation has knowledge is
itself a point that can be subject of an argument. When does a
corporation have knowledge - when its president comes to know of the
fact, when its general manager knows of the fact, when one or two of
the directors know of that fact, when a majority of the directors come to
know of that fact? So that in itself is a matter of great ambiguity, when
one says it has knowledge.
That is why when I said that a prudent director, who would assure that
he does not become liable under Section 34, should not only be sure
that the corporation has official knowledge, that is, the Board of
Directors, but must take steps, positive steps, which will demonstrate
that the matter or opportunity was brought before the corporation for its
decision whether to avail of it or not, and the corporation rejected it.
MR. CAMARA. Thank you, Your Honor. May we go to page 24, lines 1
to 20, Section 34 - Disloyalty of a director.
Your Honor, it is provided that a director, who by virtue of his office
acquires for himself a business opportunity which should belong to the
corporation thereby obtaining profits to the prejudice of such
corporation, must account to the corporation for all such profits unless
his act has been ratified by a vote of the stockholders owning or
representing at least two-thirds (2/3) of the outstanding capital stock.
However, Your Honor, the right to ratification would serve to defeat the
intention of this pro-vision. This is possible if the director or officer is the
controlling stockholder.
It is, therefore, suggested, Your Honor, that the twenty per cent (20%)
stockholding limit be applied here in which case, over twenty per cent
limit, said director or officer is disallowed to participate in the ratification.
And this is precisely the point I was driving at in the previous section,
Your Honor.
MR. ABELLO. Your Honor, I see the point that Your Honor has raised
and that wi11 be considered by the committee at an appropriate time.

So, under those circumstances narrated by Your Honor, it is my view MR. CAMARA. Thank you, Your Honor.
that the director will be liable, unless his acts are ratified later by the vote
of stockholders holding at least 2/3 of the outstanding capital stock. Further, under the same provision, it is not clear as to what "account to
the corporation" means or what it includes. Is the offender liable for the
MR. NUEZ. Your Honor has already raised the possible complications profits in favor of the corporation?
 legislators intended both civil and penal liabilities to attach to corporate
MR. ABELLO. Yes, that is what it means. officers who violate the same, as was repeatedly stressed in the
excerpts from the legislative record quoted below:
MR. CAMARA. Or he be merely made to accow1t?
On Section 74:
MR. ABELLO. Well, Your Honor, when the law says "He must account
to the latter for all such profits," that means that he is liable to the
(Period of Sponsorship, December 10, 1979 Session)
corporation for such profits.

MR. TUPAZ. x x x I guess, Mr. Speaker, that the distinguished sponsor

MR. CAMARA. Who gets the profits then, Your Honor? MR. ABELLO.
has in mind a particular situation where a minority shareholder is one of
The corporation itself.
the thousands of shareholders. But I present a situation, Your Honor,
where the minority is 49% owner of a corporation and here comes this
MR. CAMARA. The corporation? MR. ABELLO. Correct.
minority shareholder wanting, but a substantial minority, and yet he
cannot even have access to the records of this corporation over which
MR. CAMARA. Thank you, Your Honor.
he owns almost one-half because, precisely, of this particular provision
of law.[65]
Supposing under the same section, Your Honor, the director took the
opportunity after resigning as director or officer? It is suggested, Your
MR. MENDOZA. He will not have access if the grounds expressed in the
Honor, that this should be clarified because the resigning director can
proviso are present. It must also be noted, Mr. Speaker, that the
take the opportunity of this transaction before he resigns.
provision before us would, let us say, make it very difficult for corporate
officers to act unreasonably because they are not only subject to a
MR. ABELLO. If Your Honor refers to the fact that he took that
suit which would compel them to allow the access to corporate records,
opportunity while he was a director, Section 34, would apply. But if the
they are also liable for damages and are in fact guilty of a penal
action was made after his resignation as a director of the corporation,
act under Section 143.[66]
then Section 34 would not apply.[63]

MR. TUPAZ. That is correct, Your Honor.

(Period of Amendments, March 11, 1980 Session)

MR. MENDOZA. So that when corporate officers deny access to a

MR. CAMARA. This is on Section 34, page 24, line 15, I propose to
shareholder, they do so under very serious consequences. If they should
insert between the word "profits" and the comma (,) the words BY
err in making that decision and it is demonstrated that they have erred
REFUNDING THE SAME. So that the first sentence, lines 11 to 18 of
deliberately, they expose themselves to damages and even to certain
said section, as modified, shall read as follows:
penal sanctions.

"SEC. 34. Disloyalty of a director. - Where a director by virtue of his x x x x

office acquires for himself a business opportunity which should belong
to the corporation thereby obtaining profits to the prejudice of such
corporation, he must account to the latter for all such profits BY
REFUNDING THE SAME, unless his act has been ratified by a vote of
the stockholders owning or representing at least two-thirds (2/3) of the
outstanding capital stock."
The purpose of this amendment, Mr. Speaker, is to clarify as to what to
account to the
MR. ABELLO. Mr. Speaker, the committee
amendment.[64] (Emphases and underscoring supplied.)
Verily, in the instances that Sections 31 and 34 were taken up on the
floor, legislators did not veer away from the civil consequences as stated
within the four corners of these provisions. Contrasted with the
interpellations on Section 74 (regarding the right to inspect the corporate
records), the discussions on said provision leave no doubt that
As I said, Your Honor, I think it is fair enough to assume that persons do
not act deliberately in bad faith, that they do not act deliberately to
expose themselves to damages, or to penal sanctions. In the ultimate, I
would agree that certain decisions may be unnecessarily harsh and
prejudicial. But by and large, I think, the probabilities are in favor of a
decision being reasonable and in accord with the interest of the
corporation.[67] (Emphases and underscoring supplied.)
corporation.
Quite apart that no legislative intent to criminalize Sections 31 and 34
accepts the was manifested in the deliberations on the Corporation Code, it is
noteworthy from the same deliberations that legislators intended to
codify the common law concepts of corporate opportunity and fiduciary
obligations of corporate officers as found in American jurisprudence into
said provisions. In common law, the remedies available in the event of
a breach of director's fiduciary duties to the corporation are civil
remedies. If a director or officer is found to have breached his duty of
loyalty, an injunction may be issued or damages may be awarded.[68] A
corporate officer guilty of fraud or mismanagement may be held liable
for lost profits.[69] A disloyal agent may also suffer forfeiture of his
compensation.[70] There is nothing in the deliberations to indicate that
drafters of the Corporation Code intended to deviate from common law
practice and enforce the fiduciary obligations of directors and corporate
officers through penal sanction aside from civil liability. On the contrary,
there appears to be a concern among the drafters of the Corporation
Code that even the imposition of the civil sanctions under Section 31
and 34 might discourage competent persons from serving as directors
in corporations.
In Crandon v. United States,[71] the U.S. Supreme Court had the
occasion to state that:
In determining the meaning of the statute, we look not only to the
particular statutory language, but to the design of the statute as a whole
and to its object and policy. Moreover, because the governing standard
is set forth in a criminal statute, it is appropriate to apply the rule of lenity
in resolving any ambiguity in the ambit of the statute's coverage. To the
extent that the language or history of [the statute] is uncertain, this "time-
honored interpretive guideline" serves to ensure both that there is fair
warning of the boundaries of criminal conduct and that legislatures, not
courts, define criminal liability. (Citations omitted; emphases supplied.)
Under the circumstances of this case, we are convinced to adopt a
similar view. For this reason, we take into account the avowed legislative
policy in the enactment of the Corporation Code as outlined in the
Sponsorship Speech of Minister Mendoza:
Cabinet Bill No. 3 is entitled "The Corporation Code of the Philippines."
Its consideration at this time in the history of our nation provides a fitting
occasion to remind that under our Constitution the economic system
known as "free enterprise" is recognized and protected. We
acknowledge as a democratic republic that the individual must be free
and that as a free man - "free to choose his work and to retain the fruits
of his labor" he may best develop his capabilities and will produce and
supply the economic needs of the nation.
x x x x
The formation and organization of private corporations, and I underscore
private corporations as distinguished from corporations owned or
controlled by the government or any subdivision or instrumentality
thereof, gives wider dimensions to free enterprise or free trade. For not
only is the right of individuals to organize collectively recognized; the
collective organization is vested with a juridical personality distinct from
their own. Thus "the skill, dexterity, and judgment" of a nation's labor
force need not be constricted in their application to those of an individual
or that which he alone may assemble but to those of a collective
organization.
While a code, such as the proposed code now before us, may appear
essentially regulatory in nature, it does not, and is not intended, to curb
or stifle the use of the corporate entity as a business organization.
Rather, the proposed code recognizes the value, and seeks to inspire
confidence in the value of the corporate vehicle in the economic life of
society.[72] (Emphases supplied.)
The Corporation Code was intended as a regulatory measure, not
primarily as a penal statute. Sections 31 to 34 in particular were intended
to impose exacting standards of fidelity on corporate officers and
directors but without unduly impeding them in the discharge of their work
with concerns of litigation. Considering the object and policy of the
Corporation Code to encourage the use of the corporate entity as a
vehicle for economic growth, we cannot espouse a strict construction of
Sections 31 and 34 as penal offenses in relation to Section 144 in the
absence of unambiguous statutory language and legislative intent to that
effect.
When Congress intends to criminalize certain acts it does so in plain,
categorical language, otherwise such a statute would be susceptible to
constitutional attack. As earlier discussed, this can be readily seen from
the text of Section 45G) of Republic Act No. 8189 and Section 74 of the
Corporation Code.
We stress that had the Legislature intended to attach penal sanctions to
Sections 31 and 34 of the Corporation Code it could have expressly
stated such intent in the same manner that it did for Section 74 of the
same Code.
At this point, we dispose of some related arguments raised in the
pleadings.
We do not agree with respondent Tullett that previous decisions of this
Court have already settled the matter in controversy in the consolidated
cases at bar. The declaration of the Court in Home Insurance Company
v. Eastern Shipping Lines[73] that "[t]he prohibition against doing
business without first securing a license [under Section 133] is now
given penal sanction which is also applicable to other violations of the
Corporation Code under the general provisions of Section 144 of the
Code" is unmistakably obiter dictum. We explained in another case:
An obiter dictum has been defined as an opinion expressed by a court
upon some question of law that is not necessary in the determination of
the case before the court. It is a remark made, or opinion expressed, by
a judge, in his decision upon a cause by the way, that
is, incidentally or collaterally, and not directly upon the question before
him, or upon a point not necessarily involved in the determination of the
cause, or introduced by way of illustration, or analogy or argument. It
does not embody the resolution or determination of the court, and is
made without argument, or full consideration of the point. It lacks the
force of an adjudication, being a mere expression of an opinion with no
binding force for purposes of res judicata.[74](Emphasis supplied.)
The issue in the Home Insurance Company case was whether or not a
foreign corporation previously doing business here without a license has SO ORDERED.
the capacity to sue in our courts when it had already acquired the
necessary license at the time of the filing of the complaints. The Court Sereno, C. J., (Chairperson), Del Castillo, Jardeleza,* and Caguioa, JJ.,
ruled in the affirmative. The statement regarding the supposed penal concur.
sanction for violation of Section 133 of the Corporation Code was not
essential to the resolution of the case as none of the parties was being
made criminally liable under Section 133.

As for respondent's allusion to Genuino v. National Labor Relations

Commission,[75] we find the same unavailing. Genuino involved the
appeal of an illegal dismissal case wherein it was merely mentioned in
the narration of facts that the employer-bank also filed criminal
complaints against its dismissed corporate officers for alleged violation
of Section 31 in relation to Section 144 of the Corporation Code. The
interpretation of said provisions of the Corporation Code in the context
of a criminal proceeding was not at issue in that case.

As additional support for its contentions, respondent cites several

opinions of the SEC, applying Section 144 to various violations of the
Corporation Code in the imposition of graduated fines. In respondent's
view, these opinions show a consistent administrative interpretation on
the applicability of Section 144 to the other provisions of the Corporation
Code and allegedly render absurd petitioners' concern regarding the
"over criminalization" of the Corporation Code. We find respondent's
reliance on these SEC opinions to be misplaced. As petitioners correctly
point out, the fines imposed by the SEC in these instances of violations
of the Corporation Code are in the nature of administrative fines and are
not penal in nature. Without ruling upon the soundness of the legal
reasoning of the SEC in these opinions, we note that these opinions in
fact support the view that even the SEC construes "penalty" as used in
Section 144 as encompassing administrative penalties, not only criminal
sanctions. In all, these SEC issuances weaken rather than strengthen
respondent's case.

With respect to the minutiae of other arguments cited in the parties'

pleadings, it is no longer necessary for the Court to pass upon the same
in light of our determination that there is no clear, categorical legislative
intent to define Sections 31 and 34 as offenses under Section 144 of the
Corporation Code. We likewise refrain from resolving the question on
the constitutionality of Section 144 of the Corporation Code. It is a long
standing principle in jurisprudence that "courts will not resolve the
constitutionality of a law, if the controversy can be settled on other
grounds. The policy of the courts is to avoid ruling on constitutional
questions and to presume that the acts of the poljtica1 departments are
valid, absent a clear and unmistakable showing to the contrary."[76]

WHEREFORE, the consolidated petitions are GRANTED. The Decision

dated August 12, 2009 of the Court of Appeals in CA-G.R. SP No.
109094 and the Resolutions dated April 23, 2009 and May 15, 2009 of
the Secretary of Justice in I.S. No. 08-J-8651 are REVERSED and SET
ASIDE.
FIRST DIVISION
[G.R. No. 142396. February 11, 2003]
KHOSROW MINUCHER, petitioner, vs. HON. COURT OF
APPEALS and ARTHUR SCALZO, respondents.
DECISION
VITUG, J.:
Sometime in May 1986, an Information for violation of Section 4 of
Republic Act No. 6425, otherwise also known as the Dangerous Drugs
Act of 1972, was filed against petitioner Khosrow Minucher and one
Abbas Torabian with the Regional Trial Court, Branch 151, of Pasig
City. The criminal charge followed a buy-bust operation conducted by
the Philippine police narcotic agents in the house of Minucher, an Iranian
national, where a quantity of heroin, a prohibited drug, was said to have
been seized. The narcotic agents were accompanied by private
respondent Arthur Scalzo who would, in due time, become one of the
principal witnesses for the prosecution. On 08 January 1988, Presiding
Judge Eutropio Migrino rendered a decision acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the
Regional Trial Court (RTC), Branch 19, of Manila for damages on
account of what he claimed to have been trumped-up charges of drug
trafficking made by Arthur Scalzo. The Manila RTC detailed what it had
found to be the facts and circumstances surrounding the case.
his address as US Embassy, Manila. At the back of the card appears a
telephone number in defendants own handwriting, the number of which
he can also be contacted.
It was also during this first meeting that plaintiff expressed his desire to
obtain a US Visa for his wife and the wife of a countryman named Abbas
Torabian. The defendant told him that he [could] help plaintiff for a fee
of $2,000.00 per visa. Their conversation, however, was more
concentrated on politics, carpets and caviar. Thereafter, the defendant
promised to see plaintiff again.
On May 19, 1986, the defendant called the plaintiff and invited the latter
for dinner at Mario's Restaurant at Makati. He wanted to buy 200 grams
of caviar. Plaintiff brought the merchandize but for the reason that the
defendant was not yet there, he requested the restaurant people to x x
x place the same in the refrigerator. Defendant, however, came and
plaintiff gave him the caviar for which he was paid. Then their
conversation was again focused on politics and business.
On May 26, 1986, defendant visited plaintiff again at the latter's
residence for 18 years at Kapitolyo, Pasig. The defendant wanted to buy
a pair of carpets which plaintiff valued at $27,900.00. After some
haggling, they agreed at $24,000.00. For the reason that defendant did
not yet have the money, they agreed that defendant would come back
the next day. The following day, at 1:00 p.m., he came back with his
$24,000.00, which he gave to the plaintiff, and the latter, in turn, gave
him the pair of carpets.

At about 3:00 in the afternoon of May 27, 1986, the defendant came
"The testimony of the plaintiff disclosed that he is an Iranian national. He
back again to plaintiff's house and directly proceeded to the latter's
came to the Philippines to study in the University of the Philippines in
bedroom, where the latter and his countryman, Abbas Torabian, were
1974. In 1976, under the regime of the Shah of Iran, he was appointed
playing chess. Plaintiff opened his safe in the bedroom and obtained
Labor Attach for the Iranian Embassies in Tokyo, Japan and Manila,
$2,000.00 from it, gave it to the defendant for the latter's fee in obtaining
Philippines. When the Shah of Iran was deposed by Ayatollah Khomeini,
a visa for plaintiff's wife. The defendant told him that he would be leaving
plaintiff became a refugee of the United Nations and continued to stay
the Philippines very soon and requested him to come out of the house
in the Philippines. He headed the Iranian National Resistance
for a while so that he can introduce him to his cousin waiting in a
Movement in the Philippines.
cab. Without much ado, and without putting on his shirt as he was only
He came to know the defendant on May 13, 1986, when the latter was in his pajama pants, he followed the defendant where he saw a parked
brought to his house and introduced to him by a certain Jose Iigo, an cab opposite the street. To his complete surprise, an American jumped
informer of the Intelligence Unit of the military. Jose Iigo, on the other out of the cab with a drawn high-powered gun. He was in the company
hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer of about 30 to 40 Filipino soldiers with 6 Americans, all armed.He was
for several Iranians whom plaintiff assisted as head of the anti-Khomeini handcuffed and after about 20 minutes in the street, he was brought
movement in the Philippines. inside the house by the defendant. He was made to sit down while in
handcuffs while the defendant was inside his bedroom. The defendant
During his first meeting with the defendant on May 13, 1986, upon the
came out of the bedroom and out from defendant's attach case, he took
introduction of Jose Iigo, the defendant expressed his interest in buying
something and placed it on the table in front of the plaintiff. They also
caviar. As a matter of fact, he bought two kilos of caviar from plaintiff and
took plaintiff's wife who was at that time at the boutique near his house
paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets,
and likewise arrested Torabian, who was playing chess with him in the
pistachio nuts and other Iranian products was his business after the
bedroom and both were handcuffed together. Plaintiff was not told why
Khomeini government cut his pension of over $3,000.00 per
he was being handcuffed and why the privacy of his house, especially
month. During their introduction in that meeting, the defendant gave the
his bedroom was invaded by defendant. He was not allowed to use the
plaintiff his calling card, which showed that he is working at the US
telephone. In fact, his telephone was unplugged. He asked for any
Embassy in the Philippines, as a special agent of the Drug Enforcement
warrant, but the defendant told him to `shut up. He was nevertheless
Administration, Department of Justice, of the United States, and gave
told that he would be able to call for his lawyer who can defend him.
The plaintiff took note of the fact that when the defendant invited him to
come out to meet his cousin, his safe was opened where he kept
the $24,000.00 the defendant paid for the carpets and another
$8,000.00 which he also placed in the safe together with a bracelet worth
$15,000.00 and a pair of earrings worth $10,000.00. He also discovered
missing upon his release his 8 pieces hand-made Persian carpets,
valued at $65,000.00, a painting he bought for P30,000.00 together with
his TV and betamax sets. He claimed that when he was handcuffed, the
defendant took his keys from his wallet. There was, therefore, nothing
left in his house.
That his arrest as a heroin trafficker x x x had been well publicized
throughout the world, in various newspapers, particularly in Australia,
America, Central Asia and in the Philippines. He was identified in the
papers as an international drug trafficker. x x x
No. 1-88; in any event, the Court added, Scalzo had failed to show that
the appellate court was in error in its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was
issued (a) declaring Scalzo in default for his failure to file a responsive
pleading (answer) and (b) setting the case for the reception of
evidence. On 12 March 1990, Scalzo filed a motion to set aside the order
of default and to admit his answer to the complaint. Granting the motion,
the trial court set the case for pre-trial. In his answer, Scalzo denied the
material allegations of the complaint and raised the affirmative defenses
(a) of Minuchers failure to state a cause of action in his complaint and
(b) that Scalzo had acted in the discharge of his official duties as being
merely an agent of the Drug Enforcement Administration of the United
States Department of Justice. Scalzo interposed a counterclaim of
P100,000.00 to answer for attorneys' fees and expenses of litigation.

In fact, the arrest of defendant and Torabian was likewise on television, Then, on 14 June 1990, after almost two years since the institution of
not only in the Philippines, but also in America and in Germany. His the civil case, Scalzo filed a motion to dismiss the complaint on the
friends in said places informed him that they saw him on TV with said ground that, being a special agent of the United States Drug
news. Enforcement Administration, he was entitled to diplomatic immunity. He
attached to his motion Diplomatic Note No. 414 of the United States
After the arrest made on plaintiff and Torabian, they were brought to
Embassy, dated 29 May 1990, addressed to the Department of Foreign
Camp Crame handcuffed together, where they were detained for three
Affairs of the Philippines and a Certification, dated 11 June 1990, of Vice
days without food and water."[1]
Consul Donna Woodward, certifying that the note is a true and faithful
During the trial, the law firm of Luna, Sison and Manas, filed a special copy of its original. In an order of 25 June 1990, the trial court denied
appearance for Scalzo and moved for extension of time to file an answer the motion to dismiss.
pending a supposed advice from the United States Department of State
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with
and Department of Justice on the defenses to be raised.The trial court
this Court, docketed G.R. No. 94257 and entitled "Arthur W. Scalzo, Jr.,
granted the motion. On 27 October 1988, Scalzo filed another special
vs. Hon. Wenceslao Polo, et al.," asking that the complaint in Civil Case
appearance to quash the summons on the ground that he, not being a
No. 88-45691 be ordered dismissed. The case was referred to the Court
resident of the Philippines and the action being one in personam, was
of Appeals, there docketed CA-G.R. SP No. 22505, per this Courts
beyond the processes of the court. The motion was denied by the court,
resolution of 07 August 1990. On 31 October 1990, the Court of Appeals
in its order of 13 December 1988, holding that the filing by Scalzo of a
promulgated its decision sustaining the diplomatic immunity of Scalzo
motion for extension of time to file an answer to the complaint was a
and ordering the dismissal of the complaint against him. Minucher filed
voluntary appearance equivalent to service of summons which could
a petition for review with this Court, docketed G.R. No. 97765 and
likewise be construed a waiver of the requirement of formal
entitled "Khosrow Minucher vs. the Honorable Court of Appeals, et. al.
notice. Scalzo filed a motion for reconsideration of the court order,
(cited in 214 SCRA 242), appealing the judgment of the Court of
contending that a motion for an extension of time to file an answer was
Appeals. In a decision, dated 24 September 1992, penned by Justice
not a voluntary appearance equivalent to service of summons since it
(now Chief Justice) Hilario Davide, Jr., this Court reversed the decision
did not seek an affirmative relief. Scalzo argued that in cases involving
of the appellate court and remanded the case to the lower court for
the United States government, as well as its agencies and officials, a
trial. The remand was ordered on the theses (a) that the Court of
motion for extension was peculiarly unavoidable due to the need (1) for
Appeals erred in granting the motion to dismiss of Scalzo for lack of
both the Department of State and the Department of Justice to agree on
jurisdiction over his person without even considering the issue of the
the defenses to be raised and (2) to refer the case to a Philippine lawyer
authenticity of Diplomatic Note No. 414 and (b) that the complaint
who would be expected to first review the case. The court a quo denied
contained sufficient allegations to the effect that Scalzo committed the
the motion for reconsideration in its order of 15 October 1989.
imputed acts in his personal capacity and outside the scope of his official
Scalzo filed a petition for review with the Court of Appeals, there duties and, absent any evidence to the contrary, the issue on Scalzos
docketed CA-G.R. No. 17023, assailing the denial. In a decision, dated diplomatic immunity could not be taken up.
06 October 1989, the appellate court denied the petition and affirmed
The Manila RTC thus continued with its hearings on the case. On 17
the ruling of the trial court. Scalzo then elevated the incident in a petition
November 1995, the trial court reached a decision; it adjudged:
for review on certiorari, docketed G.R. No. 91173, to this Court. The
petition, however, was denied for its failure to comply with SC Circular
WHEREFORE, and in view of all the foregoing considerations, judgment
is hereby rendered for the plaintiff, who successfully established his
claim by sufficient evidence, against the defendant in the manner
following:
"`Adjudging defendant liable to plaintiff in actual and compensatory
damages of P520,000.00; moral damages in the sum of P10 million;
exemplary damages in the sum of P100,000.00; attorney's fees in the
sum of P200,000.00 plus costs.
`The Clerk of the Regional Trial Court, Manila, is ordered to take note of
the lien of the Court on this judgment to answer for the unpaid docket
fees considering that the plaintiff in this case instituted this action as a
pauper litigant."[2]
While the trial court gave credence to the claim of Scalzo and the
evidence presented by him that he was a diplomatic agent entitled to
immunity as such, it ruled that he, nevertheless, should be held
accountable for the acts complained of committed outside his official
duties.On appeal, the Court of Appeals reversed the decision of the trial
court and sustained the defense of Scalzo that he was sufficiently
clothed with diplomatic immunity during his term of duty and thereby
immune from the criminal and civil jurisdiction of the Receiving State
pursuant to the terms of the Vienna Convention.
Hence, this recourse by Minucher. The instant petition for review raises
a two-fold issue: (1) whether or not the doctrine of conclusiveness of
judgment, following the decision rendered by this Court in G.R. No.
97765, should have precluded the Court of Appeals from resolving the
appeal to it in an entirely different manner, and (2) whether or not Arthur
Scalzo is indeed entitled to diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res
judicata, would require 1) the finality of the prior judgment, 2) a valid
jurisdiction over the subject matter and the parties on the part of the
court that renders it, 3) a judgment on the merits, and 4) an identity of
the parties, subject matter and causes of action.[3] Even while one of
the issues submitted in G.R. No. 97765 - "whether or not public
respondent Court of Appeals erred in ruling that private respondent
Scalzo is a diplomat immune from civil suit conformably with the Vienna
Convention on Diplomatic Relations" - is also a pivotal question raised
in the instant petition, the ruling in G.R. No. 97765, however, has not
resolved that point with finality. Indeed, the Court there has made this
observation -
"It may be mentioned in this regard that private respondent himself, in
his Pre-trial Brief filed on 13 June 1990, unequivocally states that he
would present documentary evidence consisting of DEA records on his
investigation and surveillance of plaintiff and on his position and duties
as DEA special agent in Manila. Having thus reserved his right to
present evidence in support of his position, which is the basis for the
alleged diplomatic immunity, the barren self-serving claim in the belated
motion to dismiss cannot be relied upon for a reasonable, intelligent and
fair resolution of the issue of diplomatic immunity."[4]
Scalzo contends that the Vienna Convention on Diplomatic Relations, to
which the Philippines is a signatory, grants him absolute immunity from
suit, describing his functions as an agent of the United States Drugs
Enforcement Agency as conducting surveillance operations on
suspected drug dealers in the Philippines believed to be the source of
prohibited drugs being shipped to the U.S., (and) having ascertained the
target, (he then) would inform the Philippine narcotic agents (to) make
the actual arrest." Scalzo has submitted to the trial court a number of
documents -
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;
2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11
June 1990;
3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;
4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser,
Department of Foreign Affairs, dated 27 June 1990 forwarding Embassy
Note No. 414 to the Clerk of Court of RTC Manila, Branch 19 (the trial
court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement
(Exh. '3'); and
8. Exh. '8' - Letter dated 18 November 1992 from the Office of the
Protocol, Department of Foreign Affairs, through Asst. Sec. Emmanuel
Fernandez, addressed to the Chief Justice of this Court.[5]
The documents, according to Scalzo, would show that: (1) the United
States Embassy accordingly advised the Executive Department of the
Philippine Government that Scalzo was a member of the diplomatic staff
of the United States diplomatic mission from his arrival in the Philippines
on 14 October 1985 until his departure on 10 August 1988; (2) that the
United States Government was firm from the very beginning in asserting
the diplomatic immunity of Scalzo with respect to the case pursuant to
the provisions of the Vienna Convention on Diplomatic Relations; and
(3) that the United States Embassy repeatedly urged the Department of
Foreign Affairs to take appropriate action to inform the trial court of
Scalzos diplomatic immunity. The other documentary exhibits were
presented to indicate that: (1) the Philippine government itself, through
its Executive Department, recognizing and respecting the diplomatic
status of Scalzo, formally advised the Judicial Department of his
diplomatic status and his entitlement to all diplomatic privileges and
immunities under the Vienna Convention; and (2) the Department of
Foreign Affairs itself authenticated Diplomatic Note No. 414. Scalzo
additionally presented Exhibits "9" to "13" consisting of his reports of
investigation on the surveillance and subsequent arrest of Minucher, the
certification of the Drug Enforcement Administration of the United States
Department of Justice that Scalzo was a special agent assigned to the
Philippines at all times relevant to the complaint, and the special power
of attorney executed by him in favor of his previous counsel[6] to show
(a) that the United States Embassy, affirmed by its Vice Consul,
acknowledged Scalzo to be a member of the diplomatic staff of the
United States diplomatic mission from his arrival in the Philippines on 14
October 1985 until his departure on 10 August 1988, (b) that, on May
1986, with the cooperation of the Philippine law enforcement officials
and in the exercise of his functions as member of the mission, he
investigated Minucher for alleged trafficking in a prohibited drug, and (c)
that the Philippine Department of Foreign Affairs itself recognized that
Scalzo during his tour of duty in the Philippines (14 October 1985 up to
10 August 1988) was listed as being an Assistant Attach of the United
States diplomatic mission and accredited with diplomatic status by the
Government of the Philippines. In his Exhibit 12, Scalzo described the
functions of the overseas office of the United States Drugs Enforcement
Agency, i.e., (1) to provide criminal investigative expertise and
assistance to foreign law enforcement agencies on narcotic and drug
control programs upon the request of the host country, 2) to establish
and maintain liaison with the host country and counterpart foreign law
enforcement officials, and 3) to conduct complex criminal investigations
involving international criminal conspiracies which affect the interests of
the United States.
The Vienna Convention on Diplomatic Relations was a codification of
centuries-old customary law and, by the time of its ratification on 18 April
1961, its rules of law had long become stable. Among the city states of
ancient Greece, among the peoples of the Mediterranean before the
establishment of the Roman Empire, and among the states of India, the
person of the herald in time of war and the person of the diplomatic
envoy in time of peace were universally held sacrosanct.[7] By the end
of the 16th century, when the earliest treatises on diplomatic law were
published, the inviolability of ambassadors was firmly established as a
rule of customary international law.[8]Traditionally, the exercise of
diplomatic intercourse among states was undertaken by the head of
state himself, as being the preeminent embodiment of the state he
represented, and the foreign secretary, the official usually entrusted with
the external affairs of the state. Where a state would wish to have a more
prominent diplomatic presence in the receiving state, it would then send
to the latter a diplomatic mission.Conformably with the Vienna
Convention, the functions of the diplomatic mission involve, by and
large, the representation of the interests of the sending state and
promoting friendly relations with the receiving state.[9]
The Convention lists the classes of heads of diplomatic missions to
include (a) ambassadors or nuncios accredited to the heads of
state,[10] (b) envoys,[11] ministers or internuncios accredited to the
heads of states; and (c) charges d' affairs[12] accredited to the ministers
of foreign affairs.[13] Comprising the "staff of the (diplomatic) mission"
are the diplomatic staff, the administrative staff and the technical and
service staff. Only the heads of missions, as well as members of the
diplomatic staff, excluding the members of the administrative, technical
and service staff of the mission, are accorded diplomatic rank. Even
while the Vienna Convention on Diplomatic Relations provides for
immunity to the members of diplomatic missions, it does so,
nevertheless, with an understanding that the same be restrictively
applied. Only "diplomatic agents," under the terms of the Convention,
are vested with blanket diplomatic immunity from civil and criminal
suits. The Convention defines "diplomatic agents" as the heads of
missions or members of the diplomatic staff, thus impliedly withholding
the same privileges from all others. It might bear stressing that even
consuls, who represent their respective states in concerns of commerce
and navigation and perform certain administrative and notarial duties,
such as the issuance of passports and visas, authentication of
documents, and administration of oaths, do not ordinarily enjoy the
traditional diplomatic immunities and privileges accorded diplomats,
mainly for the reason that they are not charged with the duty of
representing their states in political matters. Indeed, the main yardstick
in ascertaining whether a person is a diplomat entitled to immunity is the
determination of whether or not he performs duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits 9 to 13, that he was an
Assistant Attach of the United States diplomatic mission and was
accredited as such by the Philippine Government. An attach belongs to
a category of officers in the diplomatic establishment who may be in
charge of its cultural, press, administrative or financial affairs. There
could also be a class of attaches belonging to certain ministries or
departments of the government, other than the foreign ministry or
department, who are detailed by their respective ministries or
departments with the embassies such as the military, naval, air,
commercial, agricultural, labor, science, and customs attaches, or the
like.Attaches assist a chief of mission in his duties and are
administratively under him, but their main function is to observe, analyze
and interpret trends and developments in their respective fields in the
host country and submit reports to their own ministries or departments
in the home government.[14] These officials are not generally regarded
as members of the diplomatic mission, nor are they normally designated
as having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented
Diplomatic Notes Nos. 414, 757 and 791, all issued post litem
motam, respectively, on 29 May 1990, 25 October 1991 and 17
November 1992. The presentation did nothing much to alleviate the
Court's initial reservations in G.R. No. 97765, viz:
"While the trial court denied the motion to dismiss, the public respondent
gravely abused its discretion in dismissing Civil Case No. 88-45691 on
the basis of an erroneous assumption that simply because of the
diplomatic note, the private respondent is clothed with diplomatic
immunity, thereby divesting the trial court of jurisdiction over his person.
xxxxxxxxx
And now, to the core issue - the alleged diplomatic immunity of the
private respondent. Setting aside for the moment the issue of
authenticity raised by the petitioner and the doubts that surround such
claim, in view of the fact that it took private respondent one (1) year,
eight (8) months and seventeen (17) days from the time his counsel filed
on 12 September 1988 a Special Appearance and Motion asking for a
first extension of time to file the Answer because the Departments of
State and Justice of the United States of America were studying the case
for the purpose of determining his defenses, before he could secure the
Diplomatic Note from the US Embassy in Manila, and even granting for
the sake of argument that such note is authentic, the complaint for
damages filed by petitioner cannot be peremptorily dismissed.
xxxxxxxxx
"There is of course the claim of private respondent that the acts imputed
to him were done in his official capacity. Nothing supports this self-
serving claim other than the so-called Diplomatic Note. x x x. The public
respondent then should have sustained the trial court's denial of the
motion to dismiss. Verily, it should have been the most proper and
appropriate recourse. It should not have been overwhelmed by the self-
serving Diplomatic Note whose belated issuance is even suspect and
whose authenticity has not yet been proved. The undue haste with which
respondent Court yielded to the private respondent's claim is arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08
November 1992, issued by the Office of Protocol of the Department of
Foreign Affairs and signed by Emmanuel C. Fernandez, Assistant
Secretary, certifying that "the records of the Department (would) show
that Mr. Arthur W. Scalzo, Jr., during his term of office in the Philippines
(from 14 October 1985 up to 10 August 1988) was listed as an Assistant
Attach of the United States diplomatic mission and was, therefore,
accredited diplomatic status by the Government of the Philippines." No
certified true copy of such "records," the supposed bases for the belated
issuance, was presented in evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative
of the executive branch of the government. In World Health
Organization vs. Aquino,[15] the Court has recognized that, in such
matters, the hands of the courts are virtually tied. Amidst apprehensions
of indiscriminate and incautious grant of immunity, designed to gain
exemption from the jurisdiction of courts, it should behoove the
Philippine government, specifically its Department of Foreign Affairs, to
be most circumspect, that should particularly be no less than compelling,
in its post litem motam issuances. It might be recalled that the privilege
is not an immunity from the observance of the law of the territorial
sovereign or from ensuing legal liability; it is, rather, an immunity from
the exercise of territorial jurisdiction.[16] The government of the United
States itself, which Scalzo claims to be acting for, has formulated its
standards for recognition of a diplomatic agent. The State Department
policy is to only concede diplomatic status to a person who possesses
an acknowledged diplomatic title and performs duties of diplomatic
nature.[17] Supplementary criteria for accreditation are the possession
of a valid diplomatic passport or, from States which do not issue such
passports, a diplomatic note formally representing the intention to assign
the person to diplomatic duties, the holding of a non-immigrant visa,
being over twenty-one years of age, and performing diplomatic functions
on an essentially full-time basis.[18]Diplomatic missions are requested
to provide the most accurate and descriptive job title to that which
currently applies to the duties performed. The Office of the Protocol
would then assign each individual to the appropriate functional
category.[19]
But while the diplomatic immunity of Scalzo might thus remain
contentious, it was sufficiently established that, indeed, he worked for
the United States Drug Enforcement Agency and was tasked to conduct
surveillance of suspected drug activities within the country on the dates
pertinent to this case. If it should be ascertained that Arthur Scalzo was
acting well within his assigned functions when he committed the acts
alleged in the complaint, the present controversy could then be resolved
under the related doctrine of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is
a long-standing rule of customary international law then closely
identified with the personal immunity of a foreign sovereign from
suit[20] and, with the emergence of democratic states, made to attach
not just to the person of the head of state, or his representative, but also
distinctly to the state itself in its sovereign capacity.[21] If the acts giving
rise to a suit are those of a foreign government done by its foreign agent,
although not necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of the foreign
sovereign from suit without its consent. Suing a representative of a state
is believed to be, in effect, suing the state itself. The proscription is not
accorded for the benefit of an individual but for the State, in whose
service he is, under the maxim - par in parem, non habet imperium
- that all states are sovereign equals and cannot assert jurisdiction over
one another.[22] The implication, in broad terms, is that if the judgment
against an official would require the state itself to perform an affirmative
act to satisfy the award, such as the appropriation of the amount needed
to pay the damages decreed against him, the suit must be regarded as
being against the state itself, although it has not been formally
impleaded.[23]
In United States of America vs. Guinto,[24] involving officers of the
United States Air Force and special officers of the Air Force Office of
Special Investigators charged with the duty of preventing the
distribution, possession and use of prohibited drugs, this Court has ruled
-
"While the doctrine (of state immunity) appears to prohibit only suits
against the state without its consent, it is also applicable to complaints
filed against officials of the state for acts allegedly performed by them in
the discharge of their duties. x x x. It cannot for a moment be imagined
that they were acting in their private or unofficial capacity when they
apprehended and later testified against the complainant. It follows that
for discharging their duties as agents of the United States, they cannot
be directly impleaded for acts imputable to their principal, which has not
given its consent to be sued. x x x As they have acted on behalf of the
government, and within the scope of their authority, it is that government,
and not the petitioners personally, [who were] responsible for their
acts."[25]
This immunity principle, however, has its limitations. Thus, Shauf vs.
Court of Appeals[26] elaborates:
It is a different matter where the public official is made to account in his consent, to the activities within Philippine territory of agent Scalzo of the
capacity as such for acts contrary to law and injurious to the rights of the United States Drug Enforcement Agency. The job description of Scalzo
plaintiff. As was clearly set forth by Justice Zaldivar in Director of the has tasked him to conduct surveillance on suspected drug suppliers and,
Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA after having ascertained the target, to inform local law enforcers who
368): `Inasmuch as the State authorizes only legal acts by its officers, would then be expected to make the arrest. In conducting surveillance
unauthorized acts of government officials or officers are not acts of the activities on Minucher, later acting as the poseur-buyer during the buy-
State, and an action against the officials or officers by one whose rights bust operation, and then becoming a principal witness in the criminal
have been invaded or violated by such acts, for the protection of his case against Minucher, Scalzo hardly can be said to have acted beyond
rights, is not a suit against the State within the rule of immunity of the the scope of his official function or duties.
State from suit. In the same tenor, it has been said that an action at law
All told, this Court is constrained to rule that respondent Arthur Scalzo,
or suit in equity against a State officer or the director of a State
an agent of the United States Drug Enforcement Agency allowed by the
department on the ground that, while claiming to act for the State, he
Philippine government to conduct activities in the country to help contain
violates or invades the personal and property rights of the plaintiff, under
the problem on the drug traffic, is entitled to the defense of state
an unconstitutional act or under an assumption of authority which he
immunity from suit.
does not have, is not a suit against the State within the constitutional
provision that the State may not be sued without its consent. The WHEREFORE, on the foregoing premises, the petition is DENIED. No
rationale for this ruling is that the doctrine of state immunity cannot be costs.
used as an instrument for perpetrating an injustice.
SO ORDERED.
xxxxxxxxx
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ.,
(T)he doctrine of immunity from suit will not apply and may not be concur
invoked where the public official is being sued in his private and personal
capacity as an ordinary citizen. The cloak of protection afforded the
officers and agents of the government is removed the moment they are
sued in their individual capacity. This situation usually arises where the
public official acts without authority or in excess of the powers vested in
him. It is a well-settled principle of law that a public official may be liable
in his personal private capacity for whatever damage he may have
caused by his act done with malice and in bad faith or beyond the scope
of his authority and jurisdiction.[27]

A foreign agent, operating within a territory, can be cloaked with

immunity from suit but only as long as it can be established that he is
acting within the directives of the sending state. The consent of the host
state is an indispensable requirement of basic courtesy between the two
sovereigns. Guinto and Shauf both involve officers and personnel of the
United States, stationed within Philippine territory, under the RP-US
Military Bases Agreement. While evidence is wanting to show any
similar agreement between the governments of the Philippines and of
the United States (for the latter to send its agents and to conduct
surveillance and related activities of suspected drug dealers in the
Philippines), the consent or imprimatur of the Philippine government to
the activities of the United States Drug Enforcement Agency, however,
can be gleaned from the facts heretofore elsewhere mentioned. The
official exchanges of communication between agencies of the
government of the two countries, certifications from officials of both the
Philippine Department of Foreign Affairs and the United States
Embassy, as well as the participation of members of the Philippine
Narcotics Command in the buy-bust operation conducted at the
residence of Minucher at the behest of Scalzo, may be inadequate to
support the "diplomatic status" of the latter but they give enough
indication that the Philippine government has given its imprimatur, if not
FIRST DIVISION
[G.R. No. 125865. January 28, 2000]
JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian Development Bank
(ADB). Sometime in 1994, for allegedly uttering defamatory words
against fellow ADB worker Joyce Cabal, he was charged before the
Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of
grave oral defamation docketed as Criminal Cases Nos. 53170 and
53171. Petitioner was arrested by virtue of a warrant issued by the
MeTC. After fixing petitioners bail at P2,400.00 per criminal charge, the
MeTC released him to the custody of the Security Officer of ADB. The
next day, the MeTC judge received an "office of protocol" from the
Department of Foreign Affairs (DFA) stating that petitioner is covered by
immunity from legal process under Section 45 of the Agreement
between the ADB and the Philippine Government regarding the
Headquarters of the ADB (hereinafter Agreement) in the country. Based
on the said protocol communication that petitioner is immune from suit,
the MeTC judge without notice to the prosecution dismissed the two
criminal cases. The latter filed a motion for reconsideration which was
opposed by the DFA. When its motion was denied, the prosecution filed
a petition for certiorariand mandamus with the Regional Trial Court
(RTC) of Pasig City which set aside the MeTC rulings and ordered the
latter court to enforce the warrant of arrest it earlier issued. After the
motion for reconsideration was denied, petitioner elevated the case to
this Court via a petition for review arguing that he is covered by immunity
under the Agreement and that no preliminary investigation was held
before the criminal cases were filed in court.
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the
communication from the DFA that petitioner is covered by any immunity.
The DFAs determination that a certain person is covered by immunity is
only preliminary which has no binding effect in courts. In receiving ex-
parte the DFAs advice and in motu proprio dismissing the two criminal
cases without notice to the prosecution, the latters right to due process
was violated. It should be noted that due process is a right of the
accused as much as it is of the prosecution. The needed inquiry in what
capacity petitioner was acting at the time of the alleged utterances
requires for its resolution evidentiary basis that has yet to be presented
at the proper time.[1] At any rate, it has been ruled that the mere
invocation of the immunity clause does not ipso facto result in the
dropping of the charges.[2]
Second, under Section 45 of the Agreement which provides:
"Officers and staff of the Bank including for the purpose of this Article
experts and consultants performing missions for the Bank shall enjoy
the following privileges and immunities:
a.).......immunity from legal process with respect to acts performed by
them in their official capacity except when the Bank waives the
immunity."
the immunity mentioned therein is not absolute, but subject to the
exception that the act was done in "official capacity." It is therefore
necessary to determine if petitioners case falls within the ambit of
Section 45(a). Thus, the prosecution should have been given the chance
to rebut the DFA protocol and it must be accorded the opportunity to
present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by the
immunity agreement because our laws do not allow the commission of
a crime, such as defamation, in the name of official duty.[3] The
imputation of theft is ultra vires and cannot be part of official functions. It
is well-settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have caused by
his act done with malice or in bad faith or beyond the scope of his
authority or jurisdiction.[4] It appears that even the governments chief
legal counsel, the Solicitor General, does not support the stand taken by
petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a
diplomatic agent, assuming petitioner is such, enjoys immunity from
criminal jurisdiction of the receiving state except in the case of an action
relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving state outside his official functions.[5] As
already mentioned above, the commission of a crime is not part of official
duty.
Finally, on the contention that there was no preliminary investigation
conducted, suffice it to say that preliminary investigation is not a matter
of right in cases cognizable by the MeTC such as the one at
bar.[6] Being purely a statutory right, preliminary investigation may be
invoked only when specifically granted by law.[7] The rule on criminal
procedure is clear that no preliminary investigation is required in cases
falling within the jurisdiction of the MeTC.[8] Besides, the absence of
preliminary investigation does not affect the courts jurisdiction nor does
it impair the validity of the information or otherwise render it defective.[9]
WHEREFORE, the petition is DENIED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ.,
concur.2/22/00 9:47 AM
THIRD DIVISION
[G.R. No. 111709. August 30, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER P.
TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, ANDRES C.
INFANTE, CHEONG SAN HIONG, and JOHN DOES, accused-
appellants.
DECISION
MELO, J.:
This is one of the older cases which unfortunately has remained in
docket of the Court for sometime. It was reassigned, together with other
similar cases, to undersigned ponente in pursuance of A.M. No. 00-9-
03-SC dated February 27, 2001.
In the evening of March 2, 1991, M/T Tabangao, a cargo vessel owned
by the PNOC Shipping and Transport Corporation, loaded with 2,000
barrels of kerosene, 2,600 barrels of regular gasoline, and 40,000
barrels of diesel oil, with a total value of P40,426,793,87. was sailing off
the coast of Mindoro near Silonay Island.
The vessel, manned by 21 crew members, including Captain Edilberto
Libo-on, Second Mate Christian Torralba, and Operator Isaias Ervas,
was suddenly boarded, with the use of an aluminum ladder, by seven
fully armed pirates led by Emilio Changco, older brother of accused-
appellant Cecilio Changco. The pirates, including accused-appellants
Tulin, Loyola, and Infante, Jr. were armed with M-16 rifles, .45 and .38
caliber handguns, and bolos. They detained the crew and took complete
control of the vessel. Thereafter, accused-appellant Loyola ordered
three crew members to paint over, using black paint, the name "M/T
Tabangao" on the front and rear portions of the vessel, as well as the
PNOC logo on the chimney of the vessel. The vessel was then painted
with the name "Galilee," with registry at San Lorenzo, Honduras. The
crew was forced to sail to Singapore, all the while sending misleading
radio messages to PNOC that the ship was undergoing repairs.
PNOC, after losing radio contact with the vessel, reported the
disappearance of the vessel to the Philippine Coast Guard and secured
the assistance of the Philippine Air Force and the Philippine Navy.
However, search and rescue operations yielded negative results. On
March 9, 1991, the ship arrived in the vicinity of Singapore and cruised
around the area presumably to await another vessel which, however,
failed to arrive. The pirates were thus forced to return to the Philippines
on March 14, 1991, arriving at Calatagan, Batangas on March 20, 1991
where it remained at sea.
On March 28, 1991, the "M/T Tabangao" again sailed to and anchored
about 10 to 18 nautical miles from Singapore's shoreline where another
vessel called "Navi Pride" anchored beside it. Emilio Changco ordered
the crew of "M/T Tabangao" to transfer the vessel's cargo to the hold of
"Navi Pride". Accused-appellant Cheong San Hiong supervised the crew
of "Navi Pride" in receiving the cargo. The transfer, after an interruption,
with both vessels leaving the area, was completed on March 30,1991.
On March 30, 1991, "M/T Tabangao" returned to the same area and
completed the transfer of cargo to "Navi Pride."
On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas, but
the vessel remained at sea. On April 10, 1991, the members of the crew
were released in three batches with the stern warning not to report the
incident to government authorities for a period of two days or until April
12, 1991, otherwise they would be killed. The first batch was fetched
from the shoreline by a newly painted passenger jeep driven by
accused-appellant Cecilio Changco, brother of Emilio Changco, who
brought them to Imus, Cavite and gave P20,000.00 to Captain Libo-on
for fare of the crew in proceeding to their respective homes. The second
batch was fetched by accused-appellant Changco at midnight of April
10, 1991 and were brought to different places in Metro Manila.
On April 12, 1991, the Chief Engineer, accompanied by the members of
the crew, called the PNOC Shipping and Transport Corporation office to
report the incident. The crew members were brought to the Coast Guard
Office for investigation. The incident was also reported to the National
Bureau of Investigation where the officers and members of the crew
executed sworn statements regarding the incident.
A series of arrests was thereafter effected as follows:
a. On May 19, 1991, the NBI received verified information that the
pirates were present at U.K. Beach, Balibago, Calatagan, Batangas.
After three days of surveillance, accused-appellant Tulin was arrested
and brought to the NBI headquarters in Manila.
b. Accused-appellants Infante, Jr. and Loyola were arrested by chance
at Aguinaldo Hi-way by NBI agents as the latter were pursuing the
mastermind, who managed to evade arrest.
c. On May 20, 1991, accused-appellants Hiong and Changco were
arrested at the lobby of Alpha Hotel in Batangas City.
On October 24 1991, an Information charging qualified piracy or violation
of Presidential Decree No. 532 (piracy in Philippine Waters) was filed
against accused-appellants, as follows:
The undersigned State Prosecutor accuses ROGER P. TULIN,
VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, ANDRES C. INFANTE,
and CHEONG SAN HIONG, and nine (9) other JOHN DOES of qualified
piracy (Violation of P.D. No. 532), committed as follows:
That on or about and during the period from March 2 to April 10, 1991,
both dates inclusive, and for sometime prior and subsequent thereto,
and within the jurisdiction of this Honorable Court, the said accused,
then manning a motor launch and armed with high powered guns,
conspiring and confederating together and mutually helping one
another, did then and there, wilfully, unlawfully and feloniously fire upon,
board and seize while in the Philippine waters M/T PNOC TABANGCO
loaded with petroleum products, together with the complement and crew
members, employing violence against or intimidation of persons or force
upon things, then direct the vessel to proceed to Singapore where the
cargoes were unloaded and thereafter returned to the Philippines on
April 10, 1991, in violation of the aforesaid law.
CONTRARY TO LAW.
(pp. 119-20, Rollo.)
This was docketed as Criminal Case No. 91-94896 before Branch 49 of
the Regional Trial Court of the National Capital Judicial Region stationed
in Manila. Upon arraignment, accused-appellants pleaded not guilty to
the charge. Trial thereupon ensued.
Accused-appellants Tulin, Infante, Jr., and Loyola, notwithstanding
some inconsistencies in their testimony as to where they were on March
1, 1991, maintained the defense of denial, and disputed the charge, as
well as the transfer of any cargo from "M/T Tabangao" to the "Navi
Pride." All of them claimed having their own respective sources of
livelihood. Their story is to the effect that on March 2, 1991, while they
were conversing by the beach, a red speedboat with Captain Edilberto
Liboon and Second Mate Christian Torralba on board, approached the
seashore. Captain Liboon inquired from the three if they wanted to work
in a vessel. They were told that the work was light and that each worker
was to be paid P3,000.00 a month with additional compensation if they
worked beyond that period. They agreed even though they had no sea-
going experience. On board, they cooked, cleaned the vessel, prepared
coffee, and ran errands for the officers. They denied having gone to
Singapore, claiming that the vessel only went to Batangas. Upon arrival
thereat in the morning of March 21, 1991, they were paid P1,000.00
each as salary for nineteen days of work, and were told that the balance
would be remitted to their addresses. There was neither receipt nor
contracts of employment signed by the parties.
Accused-appellant Changco categorically denied the charge, averring
that he was at home sleeping on April 10, 1991. He testified that he is
the younger brother of Emilio Changco, Jr.
Accused-appellant Cheong San Hiong, also known as Ramzan Ali,
adduced evidence that he studied in Sydney, Australia, obtaining the
"Certificate" as Chief Officer, and later completed the course as a
"Master" of a vessel, working as such for two years on board a
vessel. He was employed at Navi Marine Services, Pte., Ltd. as Port
Captain. The company was engaged in the business of trading
petroleum, including shipoil, bunker lube oil, and petroleum to domestic
and international markets. It owned four vessels, one of which was "Navi
Pride."
On March 2, 1991, the day before "M/T Tabangao" was seized by Emilio
Changco and his cohorts, Hiong's name was listed in the company's
letter to the Mercantile Section of the Maritime Department of the
Singapore government as the radio telephone operator on board the
vessel "Ching Ma."
The company was then dealing for the first time with Paul Gan, a
Singaporean broker, who offered to sell to the former bunker oil for the
amount of 300,000.00 Singapore dollars. After the company paid over
one-half of the aforesaid amount to Paul Gan, the latter, together with
Joseph Ng, Operations Superintendent of the firm, proceeded to the
high seas on board "Navi Pride" but failed to locate the contact vessel.
The transaction with Paul Gan finally pushed through on March 27,
1991. Hiong, upon his return on board the vessel "Ching Ma," was
assigned to supervise a ship-to-ship transfer of diesel oil off the port of
Singapore, the contact vessel to be designated by Paul Gan. Hiong was
ordered to ascertain the quantity and quality of the oil and was given the
amount of 300,000.00 Singapore Dollars for the purchase. Hiong,
together with Paul Gan, and the surveyor William Yao, on board "Navi
Pride" sailed toward a vessel called "M/T Galilee". Hiong was told that
"M/T Galilee" would be making the transfer. Although no inspection of
"Navi Pride" was made by the port authorities before departure, Navi
Marine Services, Pte., Ltd. was able to procure a port clearance upon
submission of General Declaration and crew list. Hiong, Paul Gan, and
the brokers were not in the crew list submitted and did not pass through
the immigration. The General Declaration falsely reflected that the
vessel carried 11,900 tons.
On March 28, 1991, "Navi Pride" reached the location of "M/T Galilee".
The brokers then told the Captain of the vessel to ship-side with "M/T
Galilee" and then transfer of the oil transpired. Hiong and the surveyor
William Yao met the Captain of "M/T Galilee," called "Captain Bobby"
(who later turned out to be Emilio Changco). Hiong claimed that he did
not ask for the full name of Changco nor did he ask for the latter's
personal card.
Upon completion of the transfer, Hiong took the soundings of the tanks
in the "Navi Pride" and took samples of the cargo. The surveyor
prepared the survey report which "Captain Bobby" signed under the
name "Roberto Castillo." Hiong then handed the payment to Paul Gan
and William Yao. Upon arrival at Singapore in the morning of March 29,
1991, Hiong reported the quantity and quality of the cargo to the
company.
Thereafter, Hiong was again asked to supervise another transfer of oil
purchased by the firm " from "M/T Galilee" to "Navi Pride." The same
procedure as in the first transfer was observed. This time, Hiong was
told that that there were food and drinks, including beer, purchased by
the company for the crew of "M/T Galilee. The transfer took ten hours
and was completed on March 30, 1991. Paul Gan was paid in full for the
transfer.
On April 29 or 30, 1991, Emilio Changco intimated to Hiong that he had
four vessels and wanted to offer its cargo to cargo operators. Hiong was
asked to act as a broker or ship agent for the sale of the cargo in
Singapore. Hiong went to the Philippines to discuss the matter with
Emilio Changco, who laid out the details of the new transfer, this time
with "M/T Polaris" as contact vessel. Hiong was told that the vessel was
scheduled to arrive at the port of Batangas that weekend. After being
billeted at Alpha Hotel in Batangas City, where Hiong checked in under
the name "SONNY CSH." A person by the name of "KEVIN OCAMPO,"
who later turned out to be Emilio Changco himself, also checked in at
Alpha Hotel. From accused-appellant Cecilio Changco, Hiong found out
that the vessel was not arriving. Hiong was thereafter arrested by NBI
agents.
After trial, a 95-page decision was rendered convicting accused-
appellants of the crime charged. The dispositive portion of said decision
reads:
WHEREFORE, in the light of the foregoing considerations, judgment is
hereby rendered by this Court finding the accused Roger Tulin, Virgilio
Loyola, Andres Infante, Jr. and Cecilio Changco guilty beyond
reasonable doubt, as principals, of the crime of piracy in Philippine
Waters defined in Section 2(d) of Presidential Decree No. 532 and the
accused Cheong San Hiong, as accomplice, to said crime. Under
Section 3(a) of the said law, the penalty for the principals of said crime
is mandatory death. However, considering that, under the 1987
Constitution, the Court cannot impose the death penalty, the accused
Roger Tulin, Virgilio Loyola, Andres Infante, ]r., and Cecilio Changco are
hereby each meted the penalty of RECLUSION PERPETUA, with all the
accessory penalties of the law. The accused Cheong San Hiong is
hereby meted the penalty of RECLUSION PERPETUA, pursuant to
Article 52 of the Revised Penal Code in relation to Section 5 of PD 532.
The accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio
Changco are hereby ordered to return to the PNOC Shipping and
Transport Corporation the "M/T Tabangao" or if the accused can no
longer return the same, the said accused are hereby ordered to remit,
jointly and severally, to said corporation the value thereof in the amount
of P11,240,000.00 Philippine Currency, with interests thereon, at the
rate of 6% per annum from March 2, 1991 until the said amount is paid
in full. All the accused including Cheong San Hiong are hereby ordered
to return to the Caltex Philippines, Inc. the cargo of the "M/T Tabangao",
or if the accused can no longer return the said cargo to said corporation,
all the accused are hereby condemned to pay, jointly and severally, to
the Caltex Refinery, Inc., the value of said cargo in the amount of
P40,426,793.87, Philippine Currency plus interests until said amount is
paid in full. After the accused Cheong San Hiong has served his
sentence, he shall be deported to Singapore.
All the accused shall be credited for the full period of their detention at
the National Bureau of Investigation and the City Jail of Manila during
the pendency of this case provided that they agreed in writing to abide
by and comply strictly with the rules and regulations of the City Jail of
Manila and the National Bureau of Investigation. With costs against all
the accused.
SO ORDERED.
(pp. 149-150, Rollo.)
The matter was then elevated to this Court. The arguments of accused-
appellants may be summarized as follows:
Roger P. Tulin Virgilio Loyola Andres C. Infante Jr., and Cecilio O.
Changco
Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco
assert that the trial court erred in allowing them to adopt the proceedings
taken during the time they were being represented by Mr. Tomas
Posadas, a non-lawyer, thereby depriving them of their constitutional
right to procedural due process.
In this regard, said accused-appellants narrate that Mr. Posadas entered
his appearance as counsel for all of them. However, in the course of the
proceedings, or on February 11, 1992, the trial court discovered that Mr.
Posadas was not a member of the Philippine Bar. This was after Mr.
Posadas had presented and examined seven witnesses for the
accused.
Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco
uniformly contend that during the custodial investigation, they were
subjected to physical violence; were forced to sign statements without
being given the opportunity to read the contents of the same; were
denied assistance of counsel, and were not informed of their rights, in
violation of their constitutional rights,
Said accused-appellants also argue that the trial court erred in finding
that the prosecution proved beyond reasonable doubt that they
committed the crime of qualified piracy. They allege that the pirates were
outnumbered by the crew who totaled 22 and who were not guarded at
all times. The crew, so these accused-appellants conclude, could have
overpowered the alleged pirates.
Cheong San Hiong
In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect
obliterated the crime committed by him; (2) the trial court erred in
declaring that the burden is lodged on him to prove by clear and
convincing evidence that he had no knowledge that Emilio Changco and
his cohorts attacked and seized the "M/T Tabangao" and/or that the
cargo of the vessel was stolen or the subject of theft or robbery or piracy;
(3) the trial court erred in finding him guilty as an accomplice to the crime
of qualified piracy under Section 4 of Presidential Decree No. 532 (Anti-
Piracy and Anti-Robbery Law of 1974); (4) the trial court erred in
convicting and punishing him as an accomplice when the acts allegedly
committed by him were done or executed outside of Philippine waters
and territory, stripping the Philippine courts of jurisdiction to hold him for
trial, to convict, and sentence; (5) the trial court erred in making factual
conclusions without evidence on record to prove the same and which in
fact are contrary to the evidence adduced during trial; (6) the trial court
erred in convicting him as an accomplice under Section 4 of Presidential
Decree No. 532 when he was charged as a principal by direct
participation under said decree, thus violating his constitutional right to
be informed of the nature and cause of the accusation against him.
Cheong also posits that the evidence against the other accused-
appellants do not prove any participation on his part in the commission
of the crime of qualified piracy. He further argues that he had not in any
way participated in the seajacking of "M/T Tabangao" and in committing
the crime of qualified piracy, and that he was not aware that the vessel
and its cargo were pirated.
As legal basis for his appeal, he explains that he was charged under the
information with qualified piracy as principal under Section 2 of
Presidential Decree No. 532 which refers to Philippine waters. In the
case at bar, he argues that he was convicted for acts done outside
Philippine waters or territory. For the State to have criminal jurisdiction,
the act must have been committed within its territory.
We affirm the conviction of all the accused-appellants.
The issues of the instant case may be summarized as follows: (1) what
are the legal effects and implications of the fact that a non-lawyer
represented accused-appellants during the trial?; (2) what are the legal
effects and implications of the absence of counsel during the custodial
investigation?; (3) did the trial court err in finding that the prosecution
was able to prove beyond reasonable doubt that accused-appellants
committed the crime of qualified piracy?; (4) did Republic Act No. 7659
obliterate the crime committed by accused-appellant Cheong?; and (5)
can accused-appellant Cheong be convicted as accomplice when he
was not charged as such and when the acts allegedly committed by him
were done or executed outside Philippine waters and territory?
On the first issue, the record reveals that a manifestation (Exhibit "20",
Record) was executed by accused-appellants Tulin, Loyola, Changco,
and Infante, Jr. on February 11, 1991, stating that they were adopting
the evidence adduced when they were represented by a non-lawyer.
Such waiver of the right to sufficient representation during the trial as
covered by the due process clause shall only be valid if made with the
full assistance of a bona fide lawyer. During the trial, accused-
appellants, as represented by Atty. Abdul Basar, made a categorical
manifestation that said accused-appellants were apprised of the nature
and legal consequences of the subject manifestation, and that they
voluntarily and intelligently executed the same. They also affirmed the
truthfulness of its contents when asked in open court (tsn, February 11,
1992, pp. 7-59). It is true that an accused person shall be entitled to be
present and to defend himself in person and by counsel at every stage
of the proceedings, from arraignment to promulgation of judgment
(Section 1, Rule 115, Revised Rules of Criminal Procedure). This is
hinged on the fact that a layman is not versed on the technicalities of
trial. However, it is also provided by law that "[r]ights may be waived,
unless the waiver is contrary to law, public order, public policy, morals,
or good customs or prejudicial to a third person with right recognized by
law." (Article 6, Civil Code of the Philippines). Thus, the same section of
Rule 115 adds that "[u]pon motion, the accused may be allowed to
defend himself in person when it sufficiently appears to the court that he
can properly protect his rights without the assistance of counsel." By
analogy , but without prejudice to the sanctions imposed by law for the
illegal practice of law, it is amply shown that the rights of accused-
appellants were sufficiently and properly protected by the appearance
of Mr. Tomas Posadas. An examination of the record will show that he
knew the technical rules of procedure. Hence, we rule that there was a
valid waiver of the right to sufficient representation during the trial,
considering that it was unequivocally, knowingly, and intelligently made
and with the full assistance of a bona fide lawyer, Atty. Abdul Basar.
Accordingly, denial of due process cannot be successfully invoked
where a valid waiver of rights has been made (People vs. Serzo, 274
SCRA 553 [1997]; Sayson vs. People, 166 SCRA 680 [1988]).
However, we must quickly add that the right to counsel during custodial
investigation may not be waived except in writing and in the presence of
counsel.
Section 12, Article III of the Constitution reads:
SEC. 12. (1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent
and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and
in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means
which vitiate the free will shall be used against him. Secret detention
places, solitary, incommunicado, or other similar forms of detention are
prohibited.
(3) Any confession or admission obtained in violation of this or Section
17 hereof shall be inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of
this section as well as compensation to and rehabilitation of victims of
torture or similar practices, and their families.
Such rights originated from Miranda v. Arizona (384 U. S. 436 [1966])
which gave birth to the so-called Miranda doctrine which is to the effect
that prior to any questioning during custodial investigation, the person
must be warned that he has a right to remain silent, that any statement
he gives may be used as evidence against him, and that he has the right
to the presence of an attorney, either retained or appointed. The
defendant may waive effectuation of these rights, provided the waiver is
made voluntarily, knowingly, and intelligently. The Constitution even
adds the more stringent requirement that the waiver must be in writing
and made in the presence of counsel.
Saliently, the absence of counsel during the execution of the so-called
confessions of the accused-appellants make them invalid. In fact, the
very basic reading of the Miranda rights was not even shown in the case
at bar. Paragraph [3] of the aforestated Section 12 sets forth the so-
called "fruit from the poisonous tree doctrine," a phrase minted by Mr.
Justice Felix Frankfurter in the celebrated case of Nardone vs. United
States (308 U.S. 388 [1939]). According to this rule, once the primary
source (the "tree") is shown to have been unlawfully obtained, any
secondary or derivative evidence (the "fruit") derived from it is also
inadmissible. The rule is based on the principle that evidence illegally
obtained by the State should not be used to gain other evidence
because the originally illegally obtained evidence taints all evidence
subsequently obtained (People vs. Alicando, 251 SCRA 293
[1995]). Thus, in this case, the uncounselled extrajudicial confessions of
accused-appellants, without a valid waiver of the right to counsel, are
inadmissible and whatever information is derived therefrom shall be
regarded as likewise inadmissible in evidence against them.
However, regardless of the inadmissibility of the subject confessions,
there is sufficient evidence to convict accused-appellants with moral
certainty.We agree with the sound deduction of the trial court that
indeed, Emilio Changco (Exhibits "U" and "UU") and accused-appellants
Tulin, Loyola, .and Infante, Jr. did conspire and confederate to commit
the crime charged. In the words of then trial judge, now Justice Romeo
J. Callejo of the Court of Appeals -
...The Prosecution presented to the Court an array of witnesses, officers
and members of the crew of the "M/T Tabangao" no less, who identified
and pointed to the said Accused as among those who attacked and
seized, the "M/T Tabangao" on March 2, 1991, at about 6:30 o'clock in
the afternoon, off Lubang Island, Mindoro, with its cargo, and brought
the said vessel, with its cargo, and the officers and crew of the vessel,
in the vicinity of Horsebough Lighthouse, about sixty-six nautical miles
off the shoreline of Singapore and sold its cargo to the Accused Cheong
San Hiong upon which the cargo was discharged from the "M/T
Tabangao" to the "Navi Pride" for the price of about $500,000.00
(American Dollars) on March 29, and 30, 1991...
xxx
xxx
xxx
The Master, the officers and members of the crew of the "M/T
Tabangao" were on board the vessel with the Accused and their cohorts
from March 2, 1991 up to April 10, 1991 or for more than one (1)
month. There can be no scintilla of doubt in the mind of the Court that
the officers and crew of the vessel could and did see and identify the
seajackers and their leader. In fact, immediately after the Accused were
taken into custody by the operatives of the National Bureau of
Investigation, Benjamin Suyo, Norberto Senosa, Christian Torralba and
Isaias Wervas executed their "Joint Affidavit" (Exhibit "B") and pointed
to and identified the said Accused as some of the pirates.
xxx
xxx
xxx
Indeed, when they testified before this Court on their defense, the three
(3) Accused admitted to the Court that they, in fact, boarded the said
vessel in the evening of March 2 1991 and remained on board when the
vessel sailed to its, destination, which turned out to be off the port of
Singapore.
(pp. 106-112, Rollo.)
We also agree with the trial court's finding that accused-appellants'
defense of denial is not supported by any hard evidence but their bare
testimony.Greater weight is given to the categorical identification of the
accused by the prosecution witnesses than to the accused's plain denial
of participation in the commission of the crime (People v. Baccay, 284
SCRA 296 [1998]). Instead, accused-appellants Tulin, Loyola, and
Infante, Jr. narrated a patently desperate tale that they were hired by
three complete strangers (allegedly Captain Edilberto Liboon, Second
Mate Christian Torralba, and their companion) while said accused-
appellants were conversing with one another along the seashore at
Apkaya, Balibago, Calatagan, Batangas, to work on board the "M/T
Tabangao" which was then anchored off-shore. And readily, said
accused-appellants agreed to work as cooks and handymen for an
indefinite period of time without even saying goodbye to their families,
without even knowing their destination or the details of their voyage,
without the personal effects needed for a long voyage at sea. Such
evidence is incredible and clearly not in accord with human
experience. As pointed out by the trial court, it is incredible that Captain
Liboon, Second Mate Torralba, and their companion "had to leave the
vessel at 9:30 o'clock in the evening and venture in a completely
unfamiliar place merely to recruit five (5) cooks or handymen (p. 113,
Rollo)."
Anent accused-appellant Changco's defense of denial with the alibi that
on May 14 and 17, he was at his place of work and that on April 10,
1991, he was in his house in Bacoor, Cavite, sleeping, suffice it to state
that alibi is fundamentally and inherently a weak defense, much more so
when uncorroborated by other witnesses (People v. Adora, 275 SCRA
441 [1997]) considering that it is easy to fabricate and concoct, and
difficult to disprove. Accused-appellant must adduce clear and
convincing evidence that, at about midnight on April 10, 1991, it was
physically impossible for him to have been in Calatagan, Batangas.
Changco not only failed to do this, he was likewise unable to prove that
he was in his place of work on the dates aforestated.
It is doctrinal that the trial court's evaluation of the credibility of a
testimony is accorded the highest respect, for trial courts have an
untrammeled opportunity to observe directly the demeanor of witnesses
and, thus, to determine whether a certain witness is telling the truth
(People v. Obello, 284 SCRA 79 [1998]).
We likewise uphold the trial court's finding of conspiracy. A conspiracy
exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it (Article 8, Revised Penal
Code). To be a conspirator, one need not participate in every detail of
execution; he need not even take part in every act or need not even
know the exact part to be performed by the others in the execution of
the conspiracy. As noted by the trial court, there are times when
conspirators are assigned separate and different tasks which may
appear unrelated to one another, but in fact, constitute a whole and
collective effort to achieve a common criminal design.
We affirm the trial court's finding that Emilio Changco, accused-
appellants Tulin, Loyola, and Infante, Jr. and others, were the ones
assigned to attack and seize the "M/T Tabangao" off Lubang, Mindoro,
while accused-appellant Cecilio Changco was to fetch the master and
the members of the crew from the shoreline of Calatagan, Batangas
after the transfer, and bring them to Imus, Cavite, and to provide the
crew and the officers of the vessel with money for their fare and food
provisions on their way home. These acts had to be well-coordinated.
Accused-appellant Cecilio Changco need not be present at the time of
the attack and seizure of "M/T Tabangao" since he performed his task
in view of an objective common to all other accused- appellants.
Of notable importance is the connection of accused-appellants to one
another. Accused-appellant Cecilio Changco is the younger brother of
Emilio Changco (aka Captain Bobby/Captain Roberto Castillo/Kevin
Ocampo), owner of Phil-Asia Shipping Lines. Cecilio worked for his
brother in said corporation. Their residences are approximately six or
seven kilometers away from each other. Their families are close.
Accused-appellant Tulin, on the other hand, has known Cecilio since
their parents were neighbors in Aplaya, Balibago, Calatagan,
Batangas. Accused-appellant Loyola's wife is a relative of the Changco
brothers by affinity .Besides, Loyola and Emilio Changco had both been
accused in a seajacking case regarding "M/T Isla Luzon" and its cargo
of steel coils and plates off Cebu and Bohol in 1989. Emilio Changco
(aka Kevin Ocampo) was convicted of the crime while Loyola at that time
remained at large.
As for accused-appellant Hiong, he ratiocinates that he can no longer
be convicted of piracy in Philippine waters as defined and penalized in
Sections 2[d] and 3[a], respectively of Presidential Decree No. 532
because Republic Act No. 7659 (effective January 1, 1994) which
amended Article 122 of the Revised Penal Code, has impliedly
superseded Presidential Decree No. 532. He reasons out that
Presidential Decree No. 532 has been rendered "superfluous or
duplicitous" because both Article 122 of the Revised Penal Code, as
amended, and Presidential Decree No. 532 punish piracy committed in
Philippine waters. He maintains that in order to reconcile the two laws,
the word "any person" mentioned in Section 1 [d] of Presidential Decree
No. 532 must be omitted such that Presidential Decree No. 532 shall
only apply to offenders who are members of the complement or to
passengers of the vessel, whereas Republic Act No. 7659 shall apply to
offenders who are neither members of the complement or passengers
of the vessel, hence, excluding him from the coverage of the law.
Article 122 of the Revised Penal Code, used to provide:
Article 122. Piracy in general and mutiny on the high seas. -The penalty
of reclusion temporal shall be inflicted upon any person who, on the high
seas, shall attack or seize a vessel or, not being a member of its
complement nor a passenger, shall seize the whole or part of the cargo
of said vessel, its equipment, or personal belongings of its complement
or passengers.
(Underscoring supplied.)
Article 122, as amended by Republic Act No. 7659 January 1, 1994),
reads:
Article 122. Piracy in general and mutiny on the high seas or in Philippine
waters. -The penalty of reclusion perpetua shall be inflicted upon any
person who, on the high seas, or in Philippine waters, shall attack or
seize a vessel or, being a member of its complement nor a
passenger, shall seize the whole or part of the cargo of said vessel, its
equipment, or personal belongings of its complement or passengers.
(Underscoring ours)
On the other hand, Section 2 of Presidential Decree No. 532 provides:
SEC. 2. Definition of Terms. - The following shall mean and be
understood, as follows:
d. Piracy. -Any attack upon or seizure of any vessel, or the taking away
of the whole or part thereof or its cargo, equipment, or the personal
belongings of its complement or passengers, irrespective of the value
thereof, by means of violence against or intimidation of persons or force
upon things, committed by any person. including a passenger or
member of the complement of said vessel in Philippine waters, shall be
considered as piracy. The offenders shall be considered as pirates and
punished as hereinafter provided (underscoring supplied).
To summarize, Article 122 of the Revised Penal Code, before its
amendment, provided that piracy must be committed on the high seas
by any person not a member of its complement nor a passenger
thereof. Upon its amendment by Republic Act No. 7659, the coverage
of the pertinent provision was widened to include offenses committed "in
Philippine waters." On the other hand, under Presidential Decree No.
532 (issued in 1974), the coverage of the law on piracy embraces any
person including "a passenger or member of the complement of said
vessel in Philippine waters." Hence, passenger or not, a member of the
complement or not, any person is covered by the law.
Republic Act No. 7659 neither superseded nor amended the provisions
on piracy under Presidential Decree No. 532. There is no contradiction
between the two laws. There is likewise no ambiguity and hence, there
is no need to construe or interpret the law. All the presidential decree
did was to widen the coverage of the law, in keeping with the intent to
protect the citizenry as well as neighboring states from crimes against
the law of nations. As expressed in one of the "whereas" clauses of
Presidential Decree No. 532, piracy is "among the highest forms of
lawlessness condemned by the penal statutes of all countries." For this
reason, piracy under the Article 122, as amended, and piracy under
Presidential Decree No. 532 exist harmoniously as separate laws.
As regards the contention that the trial court did not acquire jurisdiction
over the person of accused-appellant Hiong since the crime was
committed outside Philippine waters, suffice it to state that
unquestionably, the attack on and seizure of "M/T Tabangao" (renamed
"M/T Galilee" by the pirates) and its cargo were committed in Philippine
waters, although the captive vessel was later brought by the pirates to
Singapore where its cargo was off-loaded, transferred, and sold. And
such transfer was done under accused-appellant Hiong's direct
supervision. Although Presidential Decree No. 532 requires that the
attack and seizure of the vessel and its cargo be committed in Philippine
waters, the disposition by the pirates of the vessel and its cargo is still
deemed part of the act of piracy, hence, the same need not be
committed in Philippine waters.
Moreover, piracy falls under Title One of Book Two of the Revised Penal
Code. As such, it is an exception to the rule on territoriality in criminal
law. The same principle applies even if Hiong, in the instant case, were
charged, not with a violation of qualified piracy under the penal code but
under a special law, Presidential Decree No. 532 which penalizes piracy
in Philippine waters. Verily, Presidential Decree No. 532 should be
applied with more force here since its purpose is precisely to discourage
and prevent piracy in Philippine waters (People v. Catantan, 278 SCRA
761 [1997]). It is likewise, well-settled that regardless of the law
penalizing the same, piracy is a reprehensible crime against the whole
world (People v. Lol-lo, 43 Phil. 19 [1922]).
However, does this constitute a violation of accused-appellant's
constitutional right to be informed of the nature and cause of the
accusation against him on the ground that he was convicted as an
accomplice under Section 4 of Presidential Decree No. 532 even though
he was charged as a principal by direct participation under Section 2 of
said law?
The trial court found that there was insufficiency of evidence showing:
(a) that accused-appellant Hiong directly participated in the attack and
seizure of "M/T Tabangao" and its cargo; (b) that he induced Emilio
Changco and his group in the attack and seizure of "M/T Tabangao" and
its cargo; ( c) and that his act was indispensable in the attack on and
seizure of "M/T Tabangao" and its cargo. Nevertheless, the trial court
found that accused-appellant Hiong's participation was indisputably one
which aided or abetted Emilio Changco and his band of pirates in the
disposition of the stolen cargo under Section 4 of Presidential Decree
No. 532 which provides:
SEC. 4. Aiding pirates or highway robbers/brigands or abetting piracy or
highway robbery brigandage. -Any person who knowingly and in any
manner aids or protects pirates or highway robbers/brigands, such as
giving them information about the movement of police or other peace
officers of the government, or acquires or receives property taken by
such pirates or brigands or in any manner derives any benefit therefrom;
or any person who directly or indirectly abets the commission of piracy
or highway robbery or brigandage, shall be considered as an accomplice
of the principal officers and be punished in accordance with Rules
prescribed by the Revised Penal Code.
It shall be presumed that any person who does any of the acts provided
in this Section has performed them knowingly, unless the contrary is
proven.
The ruling of the trial court is Within well-settle jurisprudence that if there
is lack of complete evidence of conspiracy, the liability is that of an
accomplice and not as principal (People v. Tolentino, 40 SCRA 514
[1971]). Any doubt as to the participation of an individual in the
commission of the crime is always resolved in favor of lesser
responsibility (People v. Corbes, 270 SCRA 465 [1997]; People vs.
Elfano, Jr., 125 SCRA 792 [1983]; People v. Pastores, 40 SCRA 498
[1971]).
Emphasis must also be placed on the last paragraph of Section 4 of
Presidential Decree No 532 which presumes that any person who does
any of the acts provided in said section has performed them knowingly,
unless the contrary is proven. In the case at bar, accused-appellant
Hiong had failed to overcome the legal presumption that he knowingly
abetted or aided in the commission of piracy, received property taken by
such pirates and derived benefit therefrom.
The record discloses that accused-appellant Hiong aided the pirates in
disposing of the stolen cargo by personally directing its transfer from
"M/T Galilee" to "M/T Navi Pride". He profited therefrom by buying the
hijacked cargo for Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992,
pp. 15-23). He even tested the quality and verified the quantity of the
petroleum products, connived with Navi Marine Services personnel in
falsifying the General Declarations and Crew List to ensure that the
illegal transfer went through, undetected by Singapore Port Authorities,
and supplied the pirates with food, beer, and other provisions for their
maintenance while in port (tsn, June 3, 1992, pp. 133-134).
We believe that the falsification of the General Declaration (Arrival and
Departure) and Crew List was accomplished and utilized by accused-
appellant Hiong and Navi Marine Services personnel in the execution of
their scheme to avert detection by Singapore Port Authorities. Hence,
had accused-appellant Hiong not falsified said entries, the Singapore
Port Authorities could have easily discovered the illegal activities that
took place and this would have resulted in his arrest and prosecution in
Singapore. Moreover, the transfer of the stolen cargo from "M/T Galilee"
to "Navi Pride" could not have been effected.
We completely uphold the factual findings of the trial court showing in
detail accused-appellant Hiong's role in the disposition of the pirated
goods summarized as follows: that on March 27, 1991, Hiong with
Captain Biddy Santos boarded the "Navi Pride," one of the vessels of
the Navi Marine, to rendezvous with the "M/T Galilee"; that the firm
submitted the crew list of the vessel (Exhibit "8-CSH", Record) to the
port authorities, excluding the name of Hiong; that the "General
Declaration" (for departure) of the "Navi Pride" for its voyage off port of
Singapore (Exhibits "HH" and "8-A CSH", Record) falsely stated that the
vessel was scheduled to depart at 2200 (10 o'clock in the evening), that
there were no passengers on board, and the purpose of the voyage was
for "cargo operation" and that the vessel was to unload and transfer
1,900 tons of cargo; that after the transfer of the fuel from "M/T Galilee"
with' Emilio Changco a. k. a. Captain Bobby a. k. a. Roberto Castillo at
the helm, the surveyor prepared the "Quantity Certificate" (Exhibit "11-
C CSH, Record) stating that the cargo transferred to the "Navi Pride"
was 2,406 gross cubic meters; that although Hiong was not the Master
of the vessel, he affixed his signature on the "Certificate" above the word
"Master" (Exhibit "11-C-2 CSH", Record); that he then paid $150,000.00
but did not require any receipt for the amount; that Emilio Changco also
did not issue one; and that in the requisite "General Declaration" upon
its arrival at Singapore on March 29, 1991, at 7 o'clock in the evening,
(Exhibits "JJ" and "13-A CSH", Record), it was made to falsely appear Timothy. Thereafter, he could have refused to follow orders to conclude
that the "Navi Pride" unloaded 1,700 tons of cargo on the high seas the deal and to effect the transfer of the cargo to the Navi Pride. He did
during said voyage when in fact it acquired from the "M/T Galilee" 2,000 not do so, for which reason, he must now suffer the consequences of
metric tons of diesel oil. The second transfer transpired with the same his actions.
irregularities as discussed above. It was likewise supervised by
WHEREFORE, finding the conviction of accused-appellants justified by
accused- appellant Cheong from his end while Emilio Changco
the evidence on record, the Court hereby AFFIRMS the judgment of the
supervised the transfer from his end.
trial court in toto.
Accused-appellant Hiong maintains that he was merely following the
SO ORDERED.
orders of his superiors and that he has no knowledge of the illegality of
the source of the cargo. Vitug, Panganiban, Gonzaga-Reyes, and Sandoval-Gutierrez,
JJ., concur.
First and foremost, accused-appellant Hiong cannot deny knowledge of
the source and nature of the cargo since he himself received the same
from "M/T Tabangao". Second, considering that he is a highly educated
mariner, he should have avoided any participation in the cargo transfer
given the very suspicious circumstances under which it was
acquired. He failed to show a single piece of deed or bill of sale or even
a purchase order or any contract of sale for the purchase by the firm; he
never bothered to ask for and scrutinize the papers and documentation
relative to the "M/T Galilee"; he did not even verify the identity of Captain
Robert Castillo whom he met for the first time nor did he check the
source of the cargo; he knew that the transfer took place 66 nautical
miles off Singapore in the dead of the night which a marine vessel of his
firm did not ordinarily do; it was also the first time Navi Marine transacted
with Paul Gan involving a large sum of money without any receipt issued
therefor; he was not even aware if Paul Gan was a Singaporean national
and thus safe to deal with. It should also be noted that the value of the
cargo was P40,426,793.87 or roughly more than US$l,000,000.00
(computed at P30.00 to $1, the exchange rate at that time). Manifestly,
the cargo was sold for less than one-half of its value. Accused-appellant
Hiong should have been aware of this irregularity. Nobody in his right
mind would go to far away Singapore, spend much time and money for
transportation -only to sell at the aforestated price if it were legitimate
sale involved. This, in addition to the act of falsifying records, clearly
shows that accused-appellant Hiong was well aware that the cargo that
his firm was acquiring was purloined.

Lastly, it cannot be correctly said that accused-appellant was "merely

following the orders of his superiors." An individual is justified in
performing an act in obedience to an order issued by a superior if such
order, is for some lawful purpose and that the means used by the
subordinate to carry out said order is lawful (Reyes, Revised Penal
Code, Vol. 1, 1981 ed., p. 212). Notably, the alleged order of Hiong's
superior Chua Kim Leng Timothy, is a patent violation not only of
Philippine, but of international law. Such violation was committed on
board a Philippine-operated vessel. Moreover, the means used by Hiong
in carrying out said order was equally unlawful. He misled port and
immigration authorities, falsified records, using a mere clerk, Frankie
Loh, to consummate said acts. During the trial, Hiong presented himself,
and the trial court was convinced, that he was an intelligent and
articulate Port Captain. These circumstances show that he must have
realized the nature and the implications of the order of Chua Kim Leng

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 122846 January 20, 2009
WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA.
MESA TOURIST & DEVELOPMENT CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S.
LIM, Respondent.
DECISION
Tinga, J.:
With another city ordinance of Manila also principally involving the tourist
district as subject, the Court is confronted anew with the incessant clash
between government power and individual liberty in tandem with the
archetypal tension between law and morality.
In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a
city ordinance barring the operation of motels and inns, among other
establishments, within the Ermita-Malate area. The petition at bar
assails a similarly-motivated city ordinance that prohibits those same
establishments from offering short-time admission, as well as pro-rated
or "wash up" rates for such abbreviated stays. Our earlier decision
tested the city ordinance against our sacred constitutional rights to
liberty, due process and equal protection of law. The same parameters
apply to the present petition.
This Petition2 under Rule 45 of the Revised Rules on Civil Procedure,
which seeks the reversal of the Decision3 in C.A.-G.R. S.P. No. 33316
of the Court of Appeals, challenges the validity of Manila City Ordinance
No. 7774 entitled, "An Ordinance Prohibiting Short-Time Admission,
Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels,
Motels, Inns, Lodging Houses, Pension Houses, and Similar
Establishments in the City of Manila" (the Ordinance).
I.
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed
into law the Ordinance.4 The Ordinance is reproduced in full, hereunder:
SECTION 1. Declaration of Policy. It is hereby the declared policy of the
City Government to protect the best interest, health and welfare, and the
morality of its constituents in general and the youth in particular.
SEC. 2. Title. This ordinance shall be known as "An Ordinance"
prohibiting short time admission in hotels, motels, lodging houses,
pension houses and similar establishments in the City of Manila.
SEC. 3. Pursuant to the above policy, short-time admission and rate
[sic], wash-up rate or other similarly concocted terms, are hereby
prohibited in hotels, motels, inns, lodging houses, pension houses and
similar establishments in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall mean
admittance and charging of room rate for less than twelve (12) hours at
any given time or the renting out of rooms more than twice a day or any
other term that may be concocted by owners or managers of said
establishments but would mean the same or would bear the same
meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall violate any
provision of this ordinance shall upon conviction thereof be punished by
a fine of Five Thousand (P5,000.00) Pesos or imprisonment for a period
of not exceeding one (1) year or both such fine and imprisonment at the
discretion of the court; Provided, That in case of [a] juridical person, the
president, the manager, or the persons in charge of the operation thereof
shall be liable: Provided, further, That in case of subsequent conviction
for the same offense, the business license of the guilty party shall
automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions of City ordinances not
consistent with or contrary to this measure or any portion hereof are
hereby deemed repealed.
SEC. 7. Effectivity. This ordinance shall take effect immediately upon
approval.
Enacted by the city Council of Manila at its regular session today,
November 10, 1992.
Approved by His Honor, the Mayor on December 3, 1992.
On December 15, 1992, the Malate Tourist and Development
Corporation (MTDC) filed a complaint for declaratory relief with prayer
for a writ of preliminary injunction and/or temporary restraining order (
TRO)5 with the Regional Trial Court (RTC) of Manila, Branch 9
impleading as defendant, herein respondent City of Manila (the City)
represented by Mayor Lim.6 MTDC prayed that the Ordinance, insofar
as it includes motels and inns as among its prohibited establishments,
be declared invalid and unconstitutional. MTDC claimed that as owner
and operator of the Victoria Court in Malate, Manila it was authorized by
Presidential Decree (P.D.) No. 259 to admit customers on a short time
basis as well as to charge customers wash up rates for stays of only
three hours.
On December 21, 1992, petitioners White Light Corporation (WLC),
Titanium Corporation (TC) and Sta. Mesa Tourist and Development
Corporation (STDC) filed a motion to intervene and to admit attached
complaint-in-intervention7 on the ground that the Ordinance directly
affects their business interests as operators of drive-in-hotels and
motels in Manila.8 The three companies are components of the Anito
Group of Companies which owns and operates several hotels and
motels in Metro Manila.9
On December 23, 1992, the RTC granted the motion to intervene.10 The
RTC also notified the Solicitor General of the proceedings pursuant to
then Rule 64, Section 4 of the Rules of Court. On the same date, MTDC
moved to withdraw as plaintiff.11
On December 28, 1992, the RTC granted MTDC's motion to
withdraw.12 The RTC issued a TRO on January 14, 1993, directing the
City to cease and desist from enforcing the Ordinance.13 The City filed
an Answer dated January 22, 1993 alleging that the Ordinance is a
legitimate exercise of police power.14
On February 8, 1993, the RTC issued a writ of preliminary injunction
ordering the city to desist from the enforcement of the Ordinance.15 A
month later, on March 8, 1993, the Solicitor General filed his Comment
arguing that the Ordinance is constitutional.
During the pre-trial conference, the WLC, TC and STDC agreed to
submit the case for decision without trial as the case involved a purely
legal question.16 On October 20, 1993, the RTC rendered a decision
declaring the Ordinance null and void. The dispositive portion of the
decision reads:
WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the
City of Manila is hereby declared null and void.
Accordingly, the preliminary injunction heretofor issued is hereby made
permanent.
SO ORDERED.17
The RTC noted that the ordinance "strikes at the personal liberty of the
individual guaranteed and jealously guarded by the
Constitution."18 Reference was made to the provisions of the
Constitution encouraging private enterprises and the incentive to
needed investment, as well as the right to operate economic enterprises.
Finally, from the observation that the illicit relationships the Ordinance
sought to dissuade could nonetheless be consummated by simply
paying for a 12-hour stay, the RTC likened the law to the ordinance
annulled in Ynot v. Intermediate Appellate Court,19 where the legitimate
purpose of preventing indiscriminate slaughter of carabaos was sought
to be effected through an inter-province ban on the transport of carabaos
and carabeef.
The City later filed a petition for review on certiorari with the Supreme
Court.20 The petition was docketed as G.R. No. 112471. However in a
resolution dated January 26, 1994, the Court treated the petition as a
petition for certiorari and referred the petition to the Court of Appeals.21
Before the Court of Appeals, the City asserted that the Ordinance is a
valid exercise of police power pursuant to Section 458 (4)(iv) of the Local
Government Code which confers on cities, among other local
government units, the power:
[To] regulate the establishment, operation and maintenance of cafes,
restaurants, beerhouses, hotels, motels, inns, pension houses, lodging
houses and other similar establishments, including tourist guides and
transports.22
The Ordinance, it is argued, is also a valid exercise of the power of the
City under Article III, Section 18(kk) of the Revised Manila Charter, thus:
"to enact all ordinances it may deem necessary and proper for the
sanitation and safety, the furtherance of the prosperity and the
promotion of the morality, peace, good order, comfort, convenience and
general welfare of the city and its inhabitants, and such others as be
necessary to carry into effect and discharge the powers and duties
conferred by this Chapter; and to fix penalties for the violation of
ordinances which shall not exceed two hundred pesos fine or six months
imprisonment, or both such fine and imprisonment for a single
offense.23
Petitioners argued that the Ordinance is unconstitutional and void since
it violates the right to privacy and the freedom of movement; it is an
invalid exercise of police power; and it is an unreasonable and
oppressive interference in their business.
The Court of Appeals reversed the decision of the RTC and affirmed the
constitutionality of the Ordinance.24 First, it held that the Ordinance did
not violate the right to privacy or the freedom of movement, as it only
penalizes the owners or operators of establishments that admit
individuals for short time stays. Second, the virtually limitless reach of
police power is only constrained by having a lawful object obtained
through a lawful method. The lawful objective of the Ordinance is
satisfied since it aims to curb immoral activities. There is a lawful method
since the establishments are still allowed to operate. Third, the adverse
effect on the establishments is justified by the well-being of its
constituents in general. Finally, as held in Ermita-Malate Motel
Operators Association v. City Mayor of Manila, liberty is regulated by
law.
TC, WLC and STDC come to this Court via petition for review on
certiorari.25 In their petition and Memorandum, petitioners in essence
repeat the assertions they made before the Court of Appeals. They
contend that the assailed Ordinance is an invalid exercise of police
power.
II.
We must address the threshold issue of petitioners standing. Petitioners
allege that as owners of establishments offering "wash-up" rates, their
business is being unlawfully interfered with by the Ordinance. However,
petitioners also allege that the equal protection rights of their clients are
also being interfered with. Thus, the crux of the matter is whether or not
these establishments have the requisite standing to plead for protection
of their patrons' equal protection rights.
Standing or locus standi is the ability of a party to demonstrate to the
court sufficient connection to and harm from the law or action challenged
to support that party's participation in the case. More importantly, the
doctrine of standing is built on the principle of separation of
powers,26 sparing as it does unnecessary interference or invalidation
by the judicial branch of the actions rendered by its co-equal branches
of government.
The requirement of standing is a core component of the judicial system
derived directly from the Constitution.27 The constitutional component
of standing doctrine incorporates concepts which concededly are not
susceptible of precise definition.28 In this jurisdiction, the extancy of "a
direct and personal interest" presents the most obvious cause, as well
as the standard test for a petitioner's standing.29 In a similar vein, the
United States Supreme Court reviewed and elaborated on the meaning
of the three constitutional standing requirements of injury, causation,
and redressability in Allen v. Wright.30
Nonetheless, the general rules on standing admit of several exceptions
such as the overbreadth doctrine, taxpayer suits, third party standing
and, especially in the Philippines, the doctrine of transcendental
importance.31
For this particular set of facts, the concept of third party standing as an
exception and the overbreadth doctrine are appropriate. In Powers v.
Ohio,32 the United States Supreme Court wrote that: "We have
recognized the right of litigants to bring actions on behalf of third parties,
provided three important criteria are satisfied: the litigant must have
suffered an injury-in-fact, thus giving him or her a "sufficiently concrete
interest" in the outcome of the issue in dispute; the litigant must have a
close relation to the third party; and there must exist some hindrance to
the third party's ability to protect his or her own interests."33 Herein, it is
clear that the business interests of the petitioners are likewise injured by
the Ordinance. They rely on the patronage of their customers for their
continued viability which appears to be threatened by the enforcement
of the Ordinance. The relative silence in constitutional litigation of such
special interest groups in our nation such as the American Civil Liberties
Union in the United States may also be construed as a hindrance for
customers to bring suit.34
American jurisprudence is replete with examples where parties-in-
interest were allowed standing to advocate or invoke the fundamental
due process or equal protection claims of other persons or classes of
persons injured by state action. In Griswold v. Connecticut,35 the United
States Supreme Court held that physicians had standing to challenge a
reproductive health statute that would penalize them as accessories as
well as to plead the constitutional protections available to their patients.
The Court held that:
"The rights of husband and wife, pressed here, are likely to be diluted or
adversely affected unless those rights are considered in a suit involving
those who have this kind of confidential relation to them."36
An even more analogous example may be found in Craig v.
Boren,37 wherein the United States Supreme Court held that a licensed
beverage vendor has standing to raise the equal protection claim of a
male customer challenging a statutory scheme prohibiting the sale of
beer to males under the age of 21 and to females under the age of 18.
The United States High Court explained that the vendors had standing
"by acting as advocates of the rights of third parties who seek access to
their market or function."38
Assuming arguendo that petitioners do not have a relationship with their
patrons for the former to assert the rights of the latter, the overbreadth
doctrine comes into play. In overbreadth analysis, challengers to
government action are in effect permitted to raise the rights of third
parties. Generally applied to statutes infringing on the freedom of
speech, the overbreadth doctrine applies when a statute needlessly
restrains even constitutionally guaranteed rights.39 In this case, the
petitioners claim that the Ordinance makes a sweeping intrusion into the
right to liberty of their clients. We can see that based on the allegations
in the petition, the Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the
constitutional rights of their clients to patronize their establishments for
a "wash-rate" time frame.
III.
To students of jurisprudence, the facts of this case will recall to mind not
only the recent City of Manila ruling, but our 1967 decision in Ermita-
Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor
of Manila.40Ermita-Malate concerned the City ordinance requiring
patrons to fill up a prescribed form stating personal information such as
name, gender, nationality, age, address and occupation before they
could be admitted to a motel, hotel or lodging house. This earlier
ordinance was precisely enacted to minimize certain practices deemed
harmful to public morals. A purpose similar to the annulled ordinance
in City of Manila which sought a blanket ban on motels, inns and similar
establishments in the Ermita-Malate area. However, the constitutionality
of the ordinance in Ermita-Malate was sustained by the Court.
The common thread that runs through those decisions and the case at
bar goes beyond the singularity of the localities covered under the
respective ordinances. All three ordinances were enacted with a view of
regulating public morals including particular illicit activity in transient
lodging establishments. This could be described as the middle case,
wherein there is no wholesale ban on motels and hotels but the services
offered by these establishments have been severely restricted. At its
core, this is another case about the extent to which the State can intrude
into and regulate the lives of its citizens.
The test of a valid ordinance is well established. A long line of decisions
including City of Manila has held that for an ordinance to be valid, it must
not only be within the corporate powers of the local government unit to
enact and pass according to the procedure prescribed by law, it must
also conform to the following substantive requirements: (1) must not
contravene the Constitution or any statute; (2) must not be unfair or
oppressive; (3) must not be partial or discriminatory; (4) must not prohibit
but may regulate trade; (5) must be general and consistent with public
policy; and (6) must not be unreasonable.41
The Ordinance prohibits two specific and distinct business practices,
namely wash rate admissions and renting out a room more than twice a
day. The ban is evidently sought to be rooted in the police power as
conferred on local government units by the Local Government Code
through such implements as the general welfare clause.
A.
Police power, while incapable of an exact definition, has been purposely
veiled in general terms to underscore its comprehensiveness to meet all
exigencies and provide enough room for an efficient and flexible
response as the conditions warrant.42 Police power is based upon the
concept of necessity of the State and its corresponding right to protect
itself and its people.43 Police power has been used as justification for
numerous and varied actions by the State. These range from the
regulation of dance halls,44 movie theaters,45 gas stations46 and
cockpits.47 The awesome scope of police power is best demonstrated
by the fact that in its hundred or so years of presence in our nations
legal system, its use has rarely been denied.
The apparent goal of the Ordinance is to minimize if not eliminate the
use of the covered establishments for illicit sex, prostitution, drug use
and alike. These goals, by themselves, are unimpeachable and certainly
fall within the ambit of the police power of the State. Yet the desirability
of these ends do not sanctify any and all means for their achievement.
Those means must align with the Constitution, and our emerging
sophisticated analysis of its guarantees to the people. The Bill of Rights
stands as a rebuke to the seductive theory of Macchiavelli, and,
sometimes even, the political majorities animated by his cynicism.
Even as we design the precedents that establish the framework for
analysis of due process or equal protection questions, the courts are
naturally inhibited by a due deference to the co-equal branches of
government as they exercise their political functions. But when we are
compelled to nullify executive or legislative actions, yet another form of
caution emerges. If the Court were animated by the same passing
fancies or turbulent emotions that motivate many political decisions,
judicial integrity is compromised by any perception that the judiciary is
merely the third political branch of government. We derive our respect
and good standing in the annals of history by acting as judicious and
neutral arbiters of the rule of law, and there is no surer way to that end
than through the development of rigorous and sophisticated legal
standards through which the courts analyze the most fundamental and
far-reaching constitutional questions of the day.
B.
The primary constitutional question that confronts us is one of due
process, as guaranteed under Section 1, Article III of the Constitution.
Due process evades a precise definition.48 The purpose of the guaranty
is to prevent arbitrary governmental encroachment against the life,
liberty and property of individuals. The due process guaranty serves as
a protection against arbitrary regulation or seizure. Even corporations
and partnerships are protected by the guaranty insofar as their property
is concerned.
The due process guaranty has traditionally been interpreted as imposing
two related but distinct restrictions on government, "procedural due
process" and "substantive due process." Procedural due process refers
to the procedures that the government must follow before it deprives a
person of life, liberty, or property.49 Procedural due process concerns
itself with government action adhering to the established process when
it makes an intrusion into the private sphere. Examples range from the
form of notice given to the level of formality of a hearing.
If due process were confined solely to its procedural aspects, there
would arise absurd situation of arbitrary government action, provided the
proper formalities are followed. Substantive due process completes the
protection envisioned by the due process clause. It inquires whether the
government has sufficient justification for depriving a person of life,
liberty, or property.50
The question of substantive due process, moreso than most other fields
of law, has reflected dynamism in progressive legal thought tied with the
expanded acceptance of fundamental freedoms. Police power,
traditionally awesome as it may be, is now confronted with a more
rigorous level of analysis before it can be upheld. The vitality though of
constitutional due process has not been predicated on the frequency
with which it has been utilized to achieve a liberal result for, after all, the
libertarian ends should sometimes yield to the prerogatives of the State.
Instead, the due process clause has acquired potency because of the
sophisticated methodology that has emerged to determine the proper
metes and bounds for its application.
C.
The general test of the validity of an ordinance on substantive due
process grounds is best tested when assessed with the evolved footnote
4 test laid down by the U.S. Supreme Court in U.S. v. Carolene
Products.51 Footnote 4 of the Carolene Products case acknowledged
that the judiciary would defer to the legislature unless there is a
discrimination against a "discrete and insular" minority or infringement
of a "fundamental right."52 Consequently, two standards of judicial
review were established: strict scrutiny for laws dealing with freedom of
the mind or restricting the political process, and the rational basis
standard of review for economic legislation.
A third standard, denominated as heightened or immediate scrutiny, was
later adopted by the U.S. Supreme Court for evaluating classifications
based on gender53 and legitimacy.54 Immediate scrutiny was adopted
by the U.S. Supreme Court in Craig,55 after the Court declined to do so
in Reed v. Reed.56 While the test may have first been articulated in
equal protection analysis, it has in the United States since been applied
in all substantive due process cases as well.
We ourselves have often applied the rational basis test mainly in
analysis of equal protection challenges.57 Using the rational basis
examination, laws or ordinances are upheld if they rationally further a
legitimate governmental interest.58 Under intermediate review,
governmental interest is extensively examined and the availability of
less restrictive measures is considered.59 Applying strict scrutiny, the
focus is on the presence of compelling, rather than substantial,
governmental interest and on the absence of less restrictive means for
achieving that interest.
In terms of judicial review of statutes or ordinances, strict scrutiny refers
to the standard for determining the quality and the amount of
governmental interest brought to justify the regulation of fundamental
freedoms.60 Strict scrutiny is used today to test the validity of laws
dealing with the regulation of speech, gender, or race as well as other
fundamental rights as expansion from its earlier applications to equal
protection.61 The United States Supreme Court has expanded the
scope of strict scrutiny to protect fundamental rights such as
suffrage,62 judicial access63and interstate travel.64
If we were to take the myopic view that an Ordinance should be analyzed
strictly as to its effect only on the petitioners at bar, then it would seem
that the only restraint imposed by the law which we are capacitated to
act upon is the injury to property sustained by the petitioners, an injury
that would warrant the application of the most deferential standard the
rational basis test. Yet as earlier stated, we recognize the capacity of the
petitioners to invoke as well the constitutional rights of their patrons
those persons who would be deprived of availing short time access or
wash-up rates to the lodging establishments in question.
Viewed cynically, one might say that the infringed rights of these
customers were are trivial since they seem shorn of political
consequence. Concededly, these are not the sort of cherished rights
that, when proscribed, would impel the people to tear up their cedulas.
Still, the Bill of Rights does not shelter gravitas alone. Indeed, it is those
"trivial" yet fundamental freedoms which the people reflexively
exercise any day without the impairing awareness of their constitutional
consequence that accurately reflect the degree of liberty enjoyed by
the people. Liberty, as integrally incorporated as a fundamental right in
the Constitution, is not a Ten Commandments-style enumeration of what
may or what may not be done; but rather an atmosphere of freedom
where the people do not feel labored under a Big Brother presence as
they interact with each other, their society and nature, in a manner
innately understood by them as inherent, without doing harm or injury to
others.
D.
The rights at stake herein fall within the same fundamental rights to
liberty which we upheld in City of Manila v. Hon. Laguio, Jr. We
expounded on that most primordial of rights, thus:
Liberty as guaranteed by the Constitution was defined by Justice
Malcolm to include "the right to exist and the right to be free from
arbitrary restraint or servitude. The term cannot be dwarfed into mere
freedom from physical restraint of the person of the citizen, but is
deemed to embrace the right of man to enjoy the facilities with which he
has been endowed by his Creator, subject only to such restraint as are
necessary for the common welfare."[65] In accordance with this case,
the rights of the citizen to be free to use his faculties in all lawful ways;
to live and work where he will; to earn his livelihood by any lawful calling;
and to pursue any avocation are all deemed embraced in the concept of
liberty.[66]
The U.S. Supreme Court in the case of Roth v. Board of Regents, sought
to clarify the meaning of "liberty." It said:
While the Court has not attempted to define with exactness the liberty .
. . guaranteed [by the Fifth and Fourteenth Amendments], the term
denotes not merely freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common occupations of
life, to acquire useful knowledge, to marry, establish a home and bring
up children, to worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long recognized . . .
as essential to the orderly pursuit of happiness by free men. In a
Constitution for a free people, there can be no doubt that the meaning
of "liberty" must be broad indeed.67 [Citations omitted]
It cannot be denied that the primary animus behind the ordinance is the
curtailment of sexual behavior. The City asserts before this Court that
the subject establishments "have gained notoriety as venue of
prostitution, adultery and fornications in Manila since they provide the
necessary atmosphere for clandestine entry, presence and exit and thus
became the ideal haven for prostitutes and thrill-seekers."68 Whether
or not this depiction of a mise-en-scene of vice is accurate, it cannot be
denied that legitimate sexual behavior among willing married or
consenting single adults which is constitutionally protected69 will be
curtailed as well, as it was in the City of Manila case. Our holding therein
retains significance for our purposes:
The concept of liberty compels respect for the individual whose claim to
privacy and interference demands respect. As the case of Morfe v.
Mutuc, borrowing the words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His
separateness, his isolation, are indefeasible; indeed, they are so
fundamental that they are the basis on which his civic obligations are
built. He cannot abandon the consequences of his isolation, which are,
broadly speaking, that his experience is private, and the will built out of
that experience personal to himself. If he surrenders his will to others,
he surrenders himself. If his will is set by the will of others, he ceases to
be a master of himself. I cannot believe that a man no longer a master
of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized
in Morfe, the invasion of which should be justified by a compelling state
interest. Morfe accorded recognition to the right to privacy
independently of its identification with liberty; in itself it is fully deserving
of constitutional protection. Governmental powers should stop short of
certain intrusions into the personal life of the citizen.70
We cannot discount other legitimate activities which the Ordinance
would proscribe or impair. There are very legitimate uses for a wash rate
or renting the room out for more than twice a day. Entire families are
known to choose pass the time in a motel or hotel whilst the power is
momentarily out in their homes. In transit passengers who wish to wash
up and rest between trips have a legitimate purpose for abbreviated
stays in motels or hotels. Indeed any person or groups of persons in
need of comfortable private spaces for a span of a few hours with
purposes other than having sex or using illegal drugs can legitimately
look to staying in a motel or hotel as a convenient alternative.
E.
That the Ordinance prevents the lawful uses of a wash rate depriving
patrons of a product and the petitioners of lucrative business ties in with
another constitutional requisite for the legitimacy of the Ordinance as a
police power measure. It must appear that the interests of the public
generally, as distinguished from those of a particular class, require an
interference with private rights and the means must be reasonably
necessary for the accomplishment of the purpose and not unduly
oppressive of private rights.71 It must also be evident that no other
alternative for the accomplishment of the purpose less intrusive of
private rights can work. More importantly, a reasonable relation must
exist between the purposes of the measure and the means employed
for its accomplishment, for even under the guise of protecting the public
interest, personal rights and those pertaining to private property will not
be permitted to be arbitrarily invaded.72
Lacking a concurrence of these requisites, the police measure shall be
struck down as an arbitrary intrusion into private rights. As held in Morfe
v. Mutuc, the exercise of police power is subject to judicial review when
life, liberty or property is affected.73 However, this is not in any way
meant to take it away from the vastness of State police power whose
exercise enjoys the presumption of validity.74
Similar to the Comelec resolution requiring newspapers to donate
advertising space to candidates, this Ordinance is a blunt and heavy
instrument.75 The Ordinance makes no distinction between places
frequented by patrons engaged in illicit activities and patrons engaged
in legitimate actions. Thus it prevents legitimate use of places where
illicit activities are rare or even unheard of. A plain reading of section 3
of the Ordinance shows it makes no classification of places of lodging,
thus deems them all susceptible to illicit patronage and subject them
without exception to the unjustified prohibition.
The Court has professed its deep sentiment and tenderness of the
Ermita-Malate area, its longtime home,76 and it is skeptical of those who
wish to depict our capital city the Pearl of the Orient as a modern-
day Sodom or Gomorrah for the Third World set. Those still steeped in
Nick Joaquin-dreams of the grandeur of Old Manila will have to accept
that Manila like all evolving big cities, will have its problems. Urban
decay is a fact of mega cities such as Manila, and vice is a common
problem confronted by the modern metropolis wherever in the world.
The solution to such perceived decay is not to prevent legitimate
businesses from offering a legitimate product. Rather, cities revive
themselves by offering incentives for new businesses to sprout up thus
attracting the dynamism of individuals that would bring a new grandeur
to Manila.
The behavior which the Ordinance seeks to curtail is in fact already
prohibited and could in fact be diminished simply by applying existing
laws. Less intrusive measures such as curbing the proliferation of
prostitutes and drug dealers through active police work would be more
effective in easing the situation. So would the strict enforcement of
existing laws and regulations penalizing prostitution and drug use.
These measures would have minimal intrusion on the businesses of the
petitioners and other legitimate merchants. Further, it is apparent that
the Ordinance can easily be circumvented by merely paying the whole
day rate without any hindrance to those engaged in illicit activities.
Moreover, drug dealers and prostitutes can in fact collect "wash rates"
from their clientele by charging their customers a portion of the rent for
motel rooms and even apartments.
IV.
We reiterate that individual rights may be adversely affected only to the
extent that may fairly be required by the legitimate demands of public
interest or public welfare. The State is a leviathan that must be
restrained from needlessly intruding into the lives of its citizens. However
well-intentioned the Ordinance may be, it is in effect an arbitrary and
whimsical intrusion into the rights of the establishments as well as their
patrons. The Ordinance needlessly restrains the operation of the
businesses of the petitioners as well as restricting the rights of their
patrons without sufficient justification. The Ordinance rashly equates
wash rates and renting out a room more than twice a day with immorality
without accommodating innocuous intentions.
The promotion of public welfare and a sense of morality among citizens
deserves the full endorsement of the judiciary provided that such
measures do not trample rights this Court is sworn to protect.77 The
notion that the promotion of public morality is a function of the State is
as old as Aristotle.78 The advancement of moral relativism as a school
of philosophy does not de-legitimize the role of morality in law, even if it
may foster wider debate on which particular behavior to penalize. It is
conceivable that a society with relatively little shared morality among its
citizens could be functional so long as the pursuit of sharply variant
moral perspectives yields an adequate accommodation of different
interests.79
To be candid about it, the oft-quoted American maxim that "you cannot
legislate morality" is ultimately illegitimate as a matter of law, since as
explained by Calabresi, that phrase is more accurately interpreted as
meaning that efforts to legislate morality will fail if they are widely at
variance with public attitudes about right and wrong.80 Our penal laws,
for one, are founded on age-old moral traditions, and as long as there
are widely accepted distinctions between right and wrong, they will
remain so oriented.
Yet the continuing progression of the human story has seen not only the
acceptance of the right-wrong distinction, but also the advent of
fundamental liberties as the key to the enjoyment of life to the fullest.
Our democracy is distinguished from non-free societies not with any
more extensive elaboration on our part of what is moral and immoral,
but from our recognition that the individual liberty to make the choices in
our lives is innate, and protected by the State. Independent and fair-
minded judges themselves are under a moral duty to uphold the
Constitution as the embodiment of the rule of law, by reason of their
expression of consent to do so when they take the oath of office, and
because they are entrusted by the people to uphold the law.81

Even as the implementation of moral norms remains an indispensable

complement to governance, that prerogative is hardly absolute,
especially in the face of the norms of due process of liberty. And while
the tension may often be left to the courts to relieve, it is possible for the
government to avoid the constitutional conflict by employing more
judicious, less drastic means to promote morality.

WHEREFORE, the Petition is GRANTED. The Decision of the Court of

Appeals is REVERSED, and the Decision of the Regional Trial Court of
Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby
declared UNCONSTITUTIONAL. No pronouncement as to costs.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 179267 June 25, 2013
JESUS C. GARCIA, Petitioner,
vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional
Trial Court-Branch 41, Bacolod City, and ROSALIE JAYPE-GARCIA, for
herself and in behalf of minor children, namely: JO-ANN, JOSEPH
EDUARD, JESSE ANTHONE, all surnamed GARCIA, Respondents.
DECISION
PERLAS-BERNABE, J.:
Hailed as the bastion of Christianity in Asia, the Philippines boasts of
86.8 million Filipinos- or 93 percent of a total population of 93.3 million
adhering to the teachings of Jesus Christ.1 Yet, the admonition for
husbands to love their wives as their own bodies just as Christ loved the
church and gave himself up for her2 failed to prevent, or even to curb,
the pervasiveness of violence against Filipino women. The National
Commission on the Role of Filipino Women (NCRFW) reported that, for
the years 2000-2003, "female violence comprised more than 90o/o of all
forms of abuse and violence and more than 90% of these reported cases
were committed by the women's intimate partners such as their
husbands and live-in partners."3
Thus, on March 8, 2004, after nine (9) years of spirited advocacy by
women's groups, Congress enacted Republic Act (R.A.) No. 9262,
entitled "An Act Defining Violence Against Women and Their Children,
Providing for Protective Measures for Victims, Prescribing Penalties
Therefor, and for Other Purposes." It took effect on March 27, 2004.4
R.A. 9262 is a landmark legislation that defines and criminalizes acts of
violence against women and their children (VAWC) perpetrated by
women's intimate partners, i.e, husband; former husband; or any person
who has or had a sexual or dating relationship, or with whom the woman
has a common child.5 The law provides for protection orders from the
barangay and the courts to prevent the commission of further acts of
VAWC; and outlines the duties and responsibilities of barangay officials,
law enforcers, prosecutors and court personnel, social workers, health
care providers, and other local government officials in responding to
complaints of VAWC or requests for assistance.
A husband is now before the Court assailing the constitutionality of R.A.
9262 as being violative of the equal protection and due process clauses,
and an undue delegation of judicial power to barangay officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for
herself and in behalf of her minor children, a verified petition6 (Civil Case
No. 06-797) before the Regional Trial Court (RTC) of Bacolod City for
the issuance of a Temporary Protection Order (TPO) against her
husband, Jesus C. Garcia (petitioner), pursuant to R.A. 9262. She
claimed to be a victim of physical abuse; emotional, psychological, and
economic violence as a result of marital infidelity on the part of petitioner,
with threats of deprivation of custody of her children and of financial
support.7
Private respondent's claims
Private respondent married petitioner in 2002 when she was 34 years
old and the former was eleven years her senior. They have three (3)
children, namely: Jo-Ann J. Garcia, 17 years old, who is the natural child
of petitioner but whom private respondent adopted; Jessie Anthone J.
Garcia, 6 years old; and Joseph Eduard J. Garcia, 3 years old.8
Private respondent described herself as a dutiful and faithful wife, whose
life revolved around her husband. On the other hand, petitioner, who is
of Filipino-Chinese descent, is dominant, controlling, and demands
absolute obedience from his wife and children. He forbade private
respondent to pray, and deliberately isolated her from her friends. When
she took up law, and even when she was already working part time at a
law office, petitioner trivialized her ambitions and prevailed upon her to
just stay at home. He was often jealous of the fact that his attractive wife
still catches the eye of some men, at one point threatening that he would
have any man eyeing her killed.9
Things turned for the worse when petitioner took up an affair with a bank
manager of Robinson's Bank, Bacolod City, who is the godmother of one
of their sons. Petitioner admitted to the affair when private respondent
confronted him about it in 2004. He even boasted to the household help
about his sexual relations with said bank manager. Petitioner told private
respondent, though, that he was just using the woman because of their
accounts with the bank.10
Petitioner's infidelity spawned a series of fights that left private
respondent physically and emotionally wounded. In one of their quarrels,
petitioner grabbed private respondent on both arms and shook her with
such force that caused bruises and hematoma. At another time,
petitioner hit private respondent forcefully on the lips that caused some
bleeding. Petitioner sometimes turned his ire on their daughter, Jo-Ann,
who had seen the text messages he sent to his paramour and whom he
blamed for squealing on him. He beat Jo-Ann on the chest and slapped
her many times. When private respondent decided to leave petitioner,
Jo-Ann begged her mother to stay for fear that if the latter leaves,
petitioner would beat her up. Even the small boys are aware of private
respondent's sufferings. Their 6-year-old son said that when he grows
up, he would beat up his father because of his cruelty to private
respondent.11
All the emotional and psychological turmoil drove private respondent to
the brink of despair. On December 17, 2005, while at home, she
attempted suicide by cutting her wrist. She was found by her son
bleeding on the floor. Petitioner simply fled the house instead of taking
her to the hospital. Private respondent was hospitalized for about seven
(7) days in which time petitioner never bothered to visit, nor apologized
or showed pity on her. Since then, private respondent has been
undergoing therapy almost every week and is taking anti-depressant
medications.12
When private respondent informed the management of Robinson's Bank
that she intends to file charges against the bank manager, petitioner got
angry with her for jeopardizing the manager's job. He then packed his
things and told private respondent that he was leaving her for good. He
even told private respondent's mother, who lives with them in the family
home, that private respondent should just accept his extramarital affair
since he is not cohabiting with his paramour and has not sired a child
with her.13
Private respondent is determined to separate from petitioner but she is
afraid that he would take her children from her and deprive her of
financial support. Petitioner had previously warned her that if she goes
on a legal battle with him, she would not get a single centavo.14
Petitioner controls the family businesses involving mostly the
construction of deep wells. He is the President of three corporations
326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros
Trading Corporation of which he and private respondent are both
stockholders. In contrast to the absolute control of petitioner over said
corporations, private respondent merely draws a monthly salary
of P20,000.00 from one corporation only, the Negros Rotadrill
Corporation. Household expenses amounting to not less
than P200,000.00 a month are paid for by private respondent through
the use of credit cards, which, in turn, are paid by the same corporation
together with the bills for utilities.15
On the other hand, petitioner receives a monthly salary of P60,000.00
from Negros Rotadrill Corporation, and enjoys unlimited cash advances
and other benefits in hundreds of thousands of pesos from the
corporations.16 After private respondent confronted him about the affair,
petitioner forbade her to hold office at JBTC Building, Mandalagan,
where all the businesses of the corporations are conducted, thereby
depriving her of access to full information about said businesses. Until
the filing of the petition a quo, petitioner has not given private respondent
an accounting of the businesses the value of which she had helped raise
to millions of pesos.17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent danger of
violence against the private respondent and her children exists or is
about to recur, the RTC issued a TPO18 on March 24, 2006 effective for
thirty (30) days, which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the conjugal
dwelling or family home within 24 hours from receipt of the Temporary
Restraining Order and if he refuses, ordering that he be removed by
police officers from the conjugal dwelling; this order is enforceable
notwithstanding that the house is under the name of 236 Realty Holdings
Inc. (Republic Act No. 9262 states "regardless of ownership"), this is to
allow the Petitioner (private respondent herein) to enter the conjugal
dwelling without any danger from the Respondent.
After the Respondent leaves or is removed from the conjugal dwelling,
or anytime the Petitioner decides to return to the conjugal dwelling to
remove things, the Petitioner shall be assisted by police officers when
re-entering the family home.
The Chief of Police shall also give the Petitioner police assistance on
Sunday, 26 March 2006 because of the danger that the Respondent will
attempt to take her children from her when he arrives from Manila and
finds out about this suit.
b) To stay away from the petitioner and her children, mother and all her
household help and driver from a distance of 1,000 meters, and shall not
enter the gate of the subdivision where the Petitioner may be temporarily
residing.
c) Not to harass, annoy, telephone, contact or otherwise communicate
with the Petitioner, directly or indirectly, or through other persons, or
contact directly or indirectly her children, mother and household help,
nor send gifts, cards, flowers, letters and the like. Visitation rights to the
children may be subject of a modified TPO in the future.
d) To surrender all his firearms including a .9MM caliber firearm and a
Walther PPK and ordering the Philippine National Police Firearms and
Explosives Unit and the Provincial Director of the PNP to cancel all the
Respondent's firearm licenses. He should also be ordered to surrender
any unlicensed firearms in his possession or control.
e) To pay full financial support for the Petitioner and the children,
including rental of a house for them, and educational and medical
expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits, bonuses and other
cash he received from all the corporations from 1 January 2006 up to 31
March 2006, which himself and as President of the corporations and his
Comptroller, must submit to the Court not later than 2 April 2006.
Thereafter, an accounting of all these funds shall be reported to the court
by the Comptroller, copy furnished to the Petitioner, every 15 days of the
month, under pain of Indirect Contempt of Court.
h) To ensure compliance especially with the order granting support
pendente lite, and considering the financial resources of the Respondent
and his threat that if the Petitioner sues she will not get a single centavo,
the Respondent is ordered to put up a BOND TO KEEP THE PEACE in
the amount of FIVE MILLION PESOS, in two sufficient sureties.
On April 24, 2006, upon motion19 of private respondent, the trial court
issued an amended TPO,20 effective for thirty (30) days, which included
the following additional provisions:
i) The petitioners (private respondents herein) are given the continued
use of the Nissan Patrol and the Starex Van which they are using in
Negros Occidental.
j) The petitioners are given the continued use and occupation of the
house in Paraaque, the continued use of the Starex van in Metro
Manila, whenever they go to Manila.
k) Respondent is ordered to immediately post a bond to keep the peace,
in two sufficient sureties.
l) To give monthly support to the petitioner provisionally fixed in the sum
of One Hundred Fifty Thousand Pesos (Php 150,000.00) per month plus
rental expenses of Fifty Thousand Pesos (Php 50,000.00) per month
until the matter of support could be finally resolved.
Two days later, or on April 26, 2006, petitioner filed an Opposition to the
Urgent Ex-Parte Motion for Renewal of the TPO21 seeking the denial of
the renewal of the TPO on the grounds that it did not (1) comply with the
three-day notice rule, and (2) contain a notice of hearing. He further
asked that the TPO be modified by (1) removing one vehicle used by
private respondent and returning the same to its rightful owner, the J-
Bros Trading Corporation, and (2) cancelling or reducing the amount of
the bond from P5,000,000.00 to a more manageable level
at P100,000.00.
Subsequently, on May 23, 2006, petitioner moved22 for the modification
of the TPO to allow him visitation rights to his children.
On May 24, 2006, the TPO was renewed and extended yet again, but
subject only to the following modifications prayed for by private
respondent:
a) That respondent (petitioner herein) return the clothes and other
personal belongings of Rosalie and her children to Judge Jesus Ramos,
co-counsel for Petitioner, within 24 hours from receipt of the Temporary
Protection Order by his counsel, otherwise be declared in Indirect
Contempt of Court;
b) Respondent shall make an accounting or list of furniture and
equipment in the conjugal house in Pitimini St., Capitolville Subdivision,
Bacolod City within 24 hours from receipt of the Temporary Protection
Order by his counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod City Police
Headquarters to remove Respondent from the conjugal dwelling within
eight (8) hours from receipt of the Temporary Protection Order by his
counsel, and that he cannot return until 48 hours after the petitioners
have left, so that the petitioner Rosalie and her representatives can
remove things from the conjugal home and make an inventory of the
household furniture, equipment and other things in the conjugal home,
which shall be submitted to the Court.
d) Deliver full financial support of Php200,000.00 and Php50,000.00 for
rental and Php25,000.00 for clothes of the three petitioners (sic) children
within 24 hours from receipt of the Temporary Protection Order by his
counsel, otherwise be declared in indirect contempt of Court;
e) That respondent surrender his two firearms and all unlicensed
firearms to the Clerk of Court within 24 hours from receipt of the
Temporary Protection Order by his counsel;
f) That respondent shall pay petitioner educational expenses of the
children upon presentation of proof of payment of such expenses.23
Claiming that petitioner continued to deprive them of financial support;
failed to faithfully comply with the TPO; and committed new acts of
harassment against her and their children, private respondent filed
another application24 for the issuance of a TPO ex parte. She alleged
inter
alia that petitioner contrived a replevin suit against himself by J-Bros
Trading, Inc., of which the latter was purportedly no longer president,
with the end in view of recovering the Nissan Patrol and Starex Van used
by private respondent and the children. A writ of replevin was served
upon private respondent by a group of six or seven policemen with long
firearms that scared the two small boys, Jessie Anthone and Joseph
Eduard.25
While Joseph Eduard, then three years old, was driven to school, two
men allegedly attempted to kidnap him, which incident traumatized the
boy resulting in his refusal to go back to school. On another occasion,
petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and
threatened her.26 The incident was reported to the police, and Jo-Ann
subsequently filed a criminal complaint against her father for violation of
R.A. 7610, also known as the "Special Protection of Children Against
Child Abuse, Exploitation and Discrimination Act."
Aside from the replevin suit, petitioner's lawyers initiated the filing by the
housemaids working at the conjugal home of a complaint for kidnapping
and illegal detention against private respondent. This came about after
private respondent, armed with a TPO, went to said home to get her and
her children's belongings. Finding some of her things inside a
housemaid's (Sheryl Jamola) bag in the maids' room, private respondent
filed a case for qualified theft against Jamola.27
On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30)
days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or committing, personally or
through another, acts of violence against the offended party;
2) Prohibited from harassing, annoying, telephoning, contacting or
otherwise communicating in any form with the offended party, either
directly or indirectly;
3) Required to stay away, personally or through his friends, relatives,
employees or agents, from all the Petitioners Rosalie J. Garcia and her
children, Rosalie J. Garcia's three brothers, her mother Primitiva Jaype,
cook Novelita Caranzo, driver Romeo Hontiveros, laundrywoman
Mercedita Bornales, security guard Darwin Gayona and the petitioner's
other household helpers from a distance of 1,000 meters, and shall not
enter the gate of the subdivision where the Petitioners are temporarily
residing, as well as from the schools of the three children; Furthermore,
that respondent shall not contact the schools of the children directly or
indirectly in any manner including, ostensibly to pay for their tuition or
other fees directly, otherwise he will have access to the children through
the schools and the TPO will be rendered nugatory;
4) Directed to surrender all his firearms including .9MM caliber firearm
and a Walther PPK to the Court;
5) Directed to deliver in full financial support of Php200,000.00 a month
and Php50,000.00 for rental for the period from August 6 to September
6, 2006; and support in arrears from March 2006 to August 2006 the
total amount of Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-2007 the amount
of Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol with Plate No.
FEW 508 and a Starex van with Plate No. FFD 991 and should the
respondent fail to deliver said vehicles, respondent is ordered to provide
the petitioner another vehicle which is the one taken by J Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise
dispose of the conjugal assets, or those real properties in the name of
Jesus Chua Garcia only and those in which the conjugal partnership of
gains of the Petitioner Rosalie J. Garcia and respondent have an interest
in, especially the conjugal home located in No. 14, Pitimini St.,
Capitolville Subdivision, Bacolod City, and other properties which are
conjugal assets or those in which the conjugal partnership of gains of
Petitioner Rosalie J. Garcia and the respondent have an interest in and
listed in Annexes "I," "I-1," and "I-2," including properties covered by TCT
Nos. T-186325 and T-168814;
9) Ordered that the Register of Deeds of Bacolod City and E.B.
Magalona shall be served a copy of this TEMPORARY PROTECTION
ORDER and are ordered not to allow the transfer, sale, encumbrance or
disposition of these above-cited properties to any person, entity or
corporation without the personal presence of petitioner Rosalie J.
Garcia, who shall affix her signature in the presence of the Register of
Deeds, due to the fear of petitioner Rosalie that her signature will be
forged in order to effect the encumbrance or sale of these properties to
defraud her or the conjugal partnership of gains.
In its Order29 dated September 26, 2006, the trial court extended the
aforequoted TPO for another ten (10) days, and gave petitioner a period
of five (5) days within which to show cause why the TPO should not be
renewed, extended, or modified. Upon petitioner's
manifestation,30 however, that he has not received a copy of private
respondent's motion to modify/renew the TPO, the trial court directed in
its Order31 dated October 6, 2006 that petitioner be furnished a copy of
said motion. Nonetheless, an Order32 dated a day earlier, October 5,
had already been issued renewing the TPO dated August 23, 2006. The
pertinent portion is quoted hereunder:
xxxx
x x x it appearing further that the hearing could not yet be finally
terminated, the Temporary Protection Order issued on August 23, 2006
is hereby renewed and extended for thirty (30) days and continuously
extended and renewed for thirty (30) days, after each expiration, until
further orders, and subject to such modifications as may be ordered by
the court.
After having received a copy of the foregoing Order, petitioner no longer
submitted the required comment to private respondent's motion for
renewal of the TPO arguing that it would only be an "exercise in
futility."33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed before the
Court of Appeals (CA) a petition34 for prohibition (CA-G.R. CEB-SP. No.
01698), with prayer for injunction and temporary restraining order,
challenging (1) the constitutionality of R.A. 9262 for being violative of the
due process and the equal protection clauses, and (2) the validity of the
modified TPO issued in the civil case for being "an unwanted product of
an invalid law."
On May 26, 2006, the appellate court issued a 60-day Temporary
Restraining Order36 (TRO) against the enforcement of the TPO, the
amended TPOs and other orders pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate court
dismissed36 the petition for failure of petitioner to raise the constitutional
issue in his pleadings before the trial court in the civil case, which is
clothed with jurisdiction to resolve the same. Secondly, the challenge to
the validity
of R.A. 9262 through a petition for prohibition seeking to annul the
protection orders issued by the trial court constituted a collateral attack
on said law.
His motion for reconsideration of the foregoing Decision having been
denied in the Resolution37 dated August 14, 2007, petitioner is now
before us alleging that
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION
ON THE THEORY THAT THE ISSUE OF CONSTITUTIONALITY WAS
NOT RAISED AT THE EARLIEST OPPORTUNITY AND THAT, THE
PETITION CONSTITUTES A COLLATERAL ATTACK ON THE
VALIDITY OF THE LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN
FAILING TO CONCLUDE THAT R.A. 9262 IS DISCRIMINATORY,
UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.
III.
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT
FINDING THAT R.A. 9262 RUNS COUNTER TO THE DUE PROCESS
CLAUSE OF THE CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW
DOES VIOLENCE TO THE POLICY OF THE STATE TO PROTECT
THE FAMILY AS A BASIC SOCIAL INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING
R.A. No. 9262 AS INVALID AND UNCONSTITUTIONAL BECAUSE IT
ALLOWS AN UNDUE DELEGATION OF JUDICIAL POWER TO THE
BARANGAY OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by petitioner against the
constitutionality of R.A. 9262, we shall first tackle the propriety of the
dismissal by the appellate court of the petition for prohibition (CA-G.R.
CEB-SP. No. 01698) filed by petitioner.
As a general rule, the question of constitutionality must be raised at the
earliest opportunity so that if not raised in the pleadings, ordinarily it may
not be raised in the trial, and if not raised in the trial court, it will not be
considered on appeal.39 Courts will not anticipate a question of
constitutional law in advance of the necessity of deciding it.40
In defending his failure to attack the constitutionality of R.A. 9262 before
the RTC of Bacolod City, petitioner argues that the Family Court has
limited authority and jurisdiction that is "inadequate to tackle the complex
issue of constitutionality."41
We disagree.
Family Courts have authority and jurisdiction to consider the
constitutionality of a statute.
At the outset, it must be stressed that Family Courts are special courts,
of the same level as Regional Trial Courts. Under R.A. 8369, otherwise
known as the "Family Courts Act of 1997," family courts have exclusive
original jurisdiction to hear and decide cases of domestic violence
against women and children.42 In accordance with said law, the
Supreme Court designated from among the branches of the Regional
Trial Courts at least one Family Court in each of several key cities
identified.43 To achieve harmony with the first mentioned law, Section 7
of R.A. 9262 now provides that Regional Trial Courts designated as
Family Courts shall have original and exclusive jurisdiction over cases
of VAWC defined under the latter law, viz:
SEC. 7. Venue. The Regional Trial Court designated as a Family Court
shall have original and exclusive jurisdiction over cases of violence
against women and their children under this law. In the absence of such
court in the place where the offense was committed, the case shall be
filed in the Regional Trial Court where the crime or any of its elements
was committed at the option of the complainant. (Emphasis supplied)
Inspite of its designation as a family court, the RTC of Bacolod City
remains possessed of authority as a court of general original jurisdiction
to pass upon all kinds of cases whether civil, criminal, special
proceedings, land registration, guardianship, naturalization, admiralty or
insolvency.44 It is settled that RTCs have jurisdiction to resolve the
constitutionality of a statute,45 "this authority being embraced in the
general definition of the judicial power to determine what are the valid
and binding laws by the criterion of their conformity to the fundamental
law."46The Constitution vests the power of judicial review or the power
to declare the constitutionality or validity of a law, treaty, international or
executive agreement, presidential decree, order, instruction, ordinance,
or regulation not only in this Court, but in all RTCs.47 We said in J.M.
Tuason and Co., Inc. v. CA48 that, "plainly the Constitution
contemplates that the inferior courts should have jurisdiction in cases
involving constitutionality of any treaty or law, for it speaks of appellate
review of final judgments of inferior courts in cases where such
constitutionality happens to be in issue." Section 5, Article VIII of the
1987 Constitution reads in part as follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as
the law or the Rules of Court may provide, final judgments and orders of
lower courts in:
a. All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question.
xxxx
Thus, contrary to the posturing of petitioner, the issue of constitutionality
of R.A. 9262 could have been raised at the earliest opportunity in his
Opposition to the petition for protection order before the RTC of Bacolod
City, which had jurisdiction to determine the same, subject to the review
of this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against
Women and Their Children, lays down a new kind of procedure requiring
the respondent to file an opposition to the petition and not an
answer.49 Thus:
SEC. 20. Opposition to petition. (a) The respondent may file an
opposition to the petition which he himself shall verify. It must be
accompanied by the affidavits of witnesses and shall show cause why a
temporary or permanent protection order should not be issued.
(b) Respondent shall not include in the opposition any counterclaim,
cross-claim or third-party complaint, but any cause of action which could
be the subject thereof may be litigated in a separate civil action.
(Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner that, since a
counterclaim, cross-claim and third-party complaint are to be excluded
from the opposition, the issue of constitutionality cannot likewise be
raised therein. A counterclaim is defined as any claim for money or other
relief which a defending party may have against an opposing party.50 A
cross-claim, on the other hand, is any claim by one party against a co-
party arising out of the transaction or occurrence that is the subject
matter either of the original action or of a counterclaim therein.51Finally,
a third-party complaint is a claim that a defending party may, with leave
of court, file against a person not a party to the action for contribution,
indemnity, subrogation or any other relief, in respect of his opponent's
claim.52As pointed out by Justice Teresita J. Leonardo-De Castro, the
unconstitutionality of a statute is not a cause of action that could be the
subject of a counterclaim, cross-claim or a third-party complaint.
Therefore, it is not prohibited from being raised in the opposition in view
of the familiar maxim expressio unius est exclusio alterius.
Moreover, it cannot be denied that this issue affects the resolution of the
case a quo because the right of private respondent to a protection order
is founded solely on the very statute the validity of which is being
attacked53 by petitioner who has sustained, or will sustain, direct injury
as a result of its enforcement. The alleged unconstitutionality of R.A.
9262 is, for all intents and purposes, a valid cause for the non-issuance
of a protection order.
That the proceedings in Civil Case No. 06-797 are summary in nature
should not have deterred petitioner from raising the same in his
Opposition. The question relative to the constitutionality of a statute is
one of law which does not need to be supported by evidence.54 Be that
as it may, Section 25 of A.M. No. 04-10-11-SC nonetheless allows the
conduct of a hearing to determine legal issues, among others, viz:
SEC. 25. Order for further hearing. - In case the court determines the
need for further hearing, it may issue an order containing the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have been marked
and will be presented;
(d) Names of witnesses who will be ordered to present their direct
testimonies in the form of affidavits; and
(e) Schedule of the presentation of evidence by both parties which shall
be done in one day, to the extent possible, within the 30-day period of
the effectivity of the temporary protection order issued. (Emphasis
supplied)
To obviate potential dangers that may arise concomitant to the conduct
of a hearing when necessary, Section 26 (b) of A.M. No. 04-10-11-SC
provides that if a temporary protection order issued is due to expire, the
trial court may extend or renew the said order for a period of thirty (30)
days each time until final judgment is rendered. It may likewise modify
the extended or renewed temporary protection order as may be
necessary to meet the needs of the parties. With the private respondent
given ample protection, petitioner could proceed to litigate the
constitutional issues, without necessarily running afoul of the very
purpose for the adoption of the rules on summary procedure.
In view of all the foregoing, the appellate court correctly dismissed the
petition for prohibition with prayer for injunction and temporary
restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may have
proceeded upon an honest belief that if he finds succor in a superior
court, he could be granted an injunctive relief. However, Section 22(j) of
A.M. No. 04-10-11-SC expressly disallows the filing of a petition for
certiorari, mandamus or prohibition against any interlocutory order
issued by the trial court. Hence, the 60-day TRO issued by the appellate
court in this case against the enforcement of the TPO, the amended
TPOs and other orders pursuant thereto was improper, and it effectively
hindered the case from taking its normal course in an expeditious and
summary manner.
As the rules stand, a review of the case by appeal or certiorari before
judgment is prohibited. Moreover, if the appeal of a judgment granting
permanent protection shall not stay its enforcement,55 with more reason
that a TPO, which is valid only for thirty (30) days at a time,56 should
not be enjoined.
The mere fact that a statute is alleged to be unconstitutional or invalid,
does not of itself entitle a litigant to have the same enjoined.57 In
Younger v. Harris, Jr.,58 the Supreme Court of the United States
declared, thus:
Federal injunctions against state criminal statutes, either in their entirety
or with respect to their separate and distinct prohibitions, are not to be
granted as a matter of course, even if such statutes are unconstitutional.
No citizen or member of the community is immune from prosecution, in
good faith, for his alleged criminal acts. The imminence of such a
prosecution even though alleged to be unauthorized and, hence,
unlawful is not alone ground for relief in equity which exerts its
extraordinary powers only to prevent irreparable injury to the plaintiff
who seeks its aid. (Citations omitted)
The sole objective of injunctions is to preserve the status quo until the
trial court hears fully the merits of the case. It bears stressing, however,
that protection orders are granted ex parte so as to protect women and
their children from acts of violence. To issue an injunction against such
orders will defeat the very purpose of the law against VAWC.
Notwithstanding all these procedural flaws, we shall not shirk from our
obligation to determine novel issues, or issues of first impression, with
far-reaching implications. We have, time and again, discharged our
solemn duty as final arbiter of constitutional issues, and with more
reason now, in view of private respondent's plea in her Comment59 to
the instant Petition that we should put the challenge to the
constitutionality of R.A. 9262 to rest. And so we shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent and
criminalize spousal and child abuse, which could very well be committed
by either the husband or the wife, gender alone is not enough basis to
deprive the husband/father of the remedies under the law.60
A perusal of the deliberations of Congress on Senate Bill No.
2723,61 which became R.A. 9262, reveals that while the sponsor,
Senator Luisa Pimentel-Ejercito (better known as Senator Loi Estrada),
had originally proposed what she called a "synthesized measure"62
an amalgamation of two measures, namely, the "Anti-Domestic Violence
Act" and the "Anti-Abuse of Women in Intimate Relationships Act"63
providing protection to "all family members, leaving no one in isolation"
but at the same time giving special attention to women as the "usual
victims" of violence and abuse,64 nonetheless, it was eventually agreed
that men be denied protection under the same measure. We quote
pertinent portions of the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr. President.
Some women's groups have expressed concerns and relayed these
concerns to me that if we are to include domestic violence apart from
against women as well as other members of the household, including
children or the husband, they fear that this would weaken the efforts to
address domestic violence of which the main victims or the bulk of the
victims really are the wives, the spouses or the female partners in a
relationship. We would like to place that on record. How does the good
Senator respond to this kind of observation?
Senator Estrada. Yes, Mr. President, there is this group of women who
call themselves "WIIR" Women in Intimate Relationship. They do not
want to include men in this domestic violence. But plenty of men are also
being abused by women. I am playing safe so I placed here members
of the family, prescribing penalties therefor and providing protective
measures for victims. This includes the men, children, live-in, common-
law wives, and those related with the family.65
xxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was the discussion
whether to limit this to women and not to families which was the issue of
the AWIR group. The understanding that I have is that we would be
having a broader scope rather than just women, if I remember correctly,
Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan during
the interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of the
measure. Do not get me wrong. However, I believe that there is a need
to protect women's rights especially in the domestic environment.
As I said earlier, there are nameless, countless, voiceless women who
have not had the opportunity to file a case against their spouses, their
live-in partners after years, if not decade, of battery and abuse. If we
broaden the scope to include even the men, assuming they can at all be
abused by the women or their spouses, then it would not equalize the
already difficult situation for women, Mr. President.
I think that the sponsor, based on our earlier conversations, concurs with
this position. I am sure that the men in this Chamber who love their
women in their lives so dearly will agree with this representation.
Whether we like it or not, it is an unequal world. Whether we like it or
not, no matter how empowered the women are, we are not given equal
opportunities especially in the domestic environment where the macho
Filipino man would always feel that he is stronger, more superior to the
Filipino woman.
xxxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the committee
came up with this bill because the family members have been included
in this proposed measure since the other members of the family other
than women are also possible victims of violence. While women are
most likely the intended victims, one reason incidentally why the
measure focuses on women, the fact remains that in some relatively few
cases, men also stand to be victimized and that children are almost
always the helpless victims of violence. I am worried that there may not
be enough protection extended to other family members particularly
children who are excluded. Although Republic Act No. 7610, for
instance, more or less, addresses the special needs of abused children.
The same law is inadequate. Protection orders for one are not available
in said law.
I am aware that some groups are apprehensive about granting the same
protection to men, fearing that they may use this law to justify their
abusive behavior against women. However, we should also recognize
that there are established procedures and standards in our courts which
give credence to evidentiary support and cannot just arbitrarily and
whimsically entertain baseless complaints.
Mr. President, this measure is intended to harmonize family relations
and to protect the family as the basic social institution. Though I
recognize the unequal power relations between men and women in our
society, I believe we have an obligation to uphold inherent rights and
dignity of both husband and wife and their immediate family members,
particularly children.
While I prefer to focus mainly on women, I was compelled to include
other family members as a critical input arrived at after a series of
consultations/meetings with various NGOs, experts, sports groups and
other affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the other
senators.
Senator Sotto. Yes, with the permission of the two ladies on the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is
recognized.
Senator Sotto. I presume that the effect of the proposed amendment of
Senator Legarda would be removing the "men and children" in this
particular bill and focus specifically on women alone. That will be the net
effect of that proposed amendment. Hearing the rationale mentioned by
the distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not
sure now whether she is inclined to accept the proposed amendment of
Senator Legarda.
I am willing to wait whether she is accepting this or not because if she is
going to accept this, I will propose an amendment to the amendment
rather than object to the amendment, Mr. President.
xxxx
Senator Estrada. The amendment is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
xxxx
Senator Sotto. x x x May I propose an amendment to the amendment.
The President Pro Tempore. Before we act on the amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the rationale used
by the distinguished proponent of the amendment. As a matter of fact, I
tend to agree. Kung may maaabuso, mas malamang iyong babae kaysa
sa lalake. At saka iyong mga lalake, puwede na talagang magulpi iyan.
Okey lang iyan. But I cannot agree that we remove the children from this
particular measure.
So, if I may propose an amendment
The President Pro Tempore. To the amendment.
Senator Sotto. more than the women, the children are very much
abused. As a matter of fact, it is not limited to minors. The abuse is not
limited to seven, six, 5-year-old children. I have seen 14, 15-year-old
children being abused by their fathers, even by their mothers. And it
breaks my heart to find out about these things.
Because of the inadequate existing law on abuse of children, this
particular measure will update that. It will enhance and hopefully prevent
the abuse of children and not only women.
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove the
aspect of the men in the bill but not the children.
Senator Legarda. I agree, Mr. President, with the Minority Leader.
The President Pro Tempore. Effectively then, it will be women AND
CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] There
being none, the amendment, as amended, is approved.66
It is settled that courts are not concerned with the wisdom, justice, policy,
or expediency of a statute.67 Hence, we dare not venture into the real
motivations and wisdom of the members of Congress in limiting the
protection against violence and abuse under R.A. 9262 to women and
children only. No proper challenge on said grounds may be entertained
in this proceeding. Congress has made its choice and it is not our
prerogative to supplant this judgment. The choice may be perceived as
erroneous but even then, the remedy against it is to seek its amendment
or repeal by the legislative. By the principle of separation of powers, it is
the legislative that determines the necessity, adequacy, wisdom and
expediency of any law.68 We only step in when there is a violation of
the Constitution. However, none was sufficiently shown in this case.
R.A. 9262 does not violate the guaranty of equal protection of the laws.
Equal protection simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and
responsibilities imposed. The oft-repeated disquisition in the early case
of Victoriano v. Elizalde Rope Workers' Union69 is instructive:
The guaranty of equal protection of the laws is not a guaranty of equality
in the application of the laws upon all citizens of the state. It is not,
therefore, a requirement, in order to avoid the constitutional prohibition
against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean
indiscriminate operation on persons merely as such, but on persons
according to the circumstances surrounding them. It guarantees
equality, not identity of rights. The Constitution does not require that
things which are different in fact be treated in law as though they were
the same. The equal protection clause does not forbid discrimination as
to things that are different. It does not prohibit legislation which is limited
either in the object to which it is directed or by the territory within which
it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not
invalid because of simple inequality. The very idea of classification is
that of inequality, so that it goes without saying that the mere fact of
inequality in no manner determines the matter of constitutionality. All that
is required of a valid classification is that it be reasonable, which means
that the classification should be based on substantial distinctions which
make for real differences; that it must be germane to the purpose of the
law; that it must not be limited to existing conditions only; and that it must
apply equally to each member of the class. This Court has held that the
standard is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably arbitrary.
(Emphasis supplied)
Measured against the foregoing jurisprudential yardstick, we find that
R.A. 9262 is based on a valid classification as shall hereinafter be
discussed and, as such, did not violate the equal protection clause by
favoring women over men as victims of violence and abuse to whom the
State extends its protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men; the fact that
women are more likely than men to be victims of violence; and the
widespread gender bias and prejudice against women all make for real
differences justifying the classification under the law. As Justice
McIntyre succinctly states, "the accommodation of differences ... is the
essence of true equality."70
A. Unequal power relationship between men and women
According to the Philippine Commission on Women (the National
Machinery for Gender Equality and Women's Empowerment), violence
against women (VAW) is deemed to be closely linked with the unequal
power relationship between women and men otherwise known as
"gender-based violence". Societal norms and traditions dictate people to
think men are the leaders, pursuers, providers, and take on dominant
roles in society while women are nurturers, men's companions and
supporters, and take on subordinate roles in society. This perception
leads to men gaining more power over women. With power comes the
need to control to retain that power. And VAW is a form of men's
expression of controlling women to retain power.71
The United Nations, which has long recognized VAW as a human rights
issue, passed its Resolution 48/104 on the Declaration on Elimination of
Violence Against Women on December 20, 1993 stating that "violence
against women is a manifestation of historically unequal power relations
between men and women, which have led to domination over and
discrimination against women by men and to the prevention of the full
advancement of women, and that violence against women is one of the
crucial social mechanisms by which women are forced into subordinate
positions, compared with men."72
Then Chief Justice Reynato S. Puno traced the historical and social
context of gender-based violence and developments in advocacies to
eradicate VAW, in his remarks delivered during the Joint Launching of
R.A. 9262 and its Implementing Rules last October 27, 2004, the
pertinent portions of which are quoted hereunder:
History reveals that most societies sanctioned the use of violence
against women. The patriarch of a family was accorded the right to use
force on members of the family under his control. I quote the early
studies:
Traditions subordinating women have a long history rooted in patriarchy
the institutional rule of men. Women were seen in virtually all societies
to be naturally inferior both physically and intellectually. In ancient
Western societies, women whether slave, concubine or wife, were under
the authority of men. In law, they were treated as property.
The Roman concept of patria potestas allowed the husband to beat, or
even kill, his wife if she endangered his property right over her. Judaism,
Christianity and other religions oriented towards the patriarchal family
strengthened the male dominated structure of society.
English feudal law reinforced the tradition of male control over women.
Even the eminent Blackstone has been quoted in his commentaries as
saying husband and wife were one and that one was the husband.
However, in the late 1500s and through the entire 1600s, English
common law began to limit the right of husbands to chastise their wives.
Thus, common law developed the rule of thumb, which allowed
husbands to beat their wives with a rod or stick no thicker than their
thumb.
In the later part of the 19th century, legal recognition of these rights to
chastise wives or inflict corporeal punishment ceased. Even then, the
preservation of the family was given more importance than preventing
violence to women.
The metamorphosis of the law on violence in the United States followed
that of the English common law. In 1871, the Supreme Court of Alabama
became the first appellate court to strike down the common law right of
a husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a stick,
to pull her hair, choke her, spit in her face or kick her about the floor, or
to inflict upon her like indignities, is not now acknowledged by our law...
In person, the wife is entitled to the same protection of the law that the
husband can invoke for himself.
As time marched on, the women's advocacy movement became more
organized. The temperance leagues initiated it. These leagues had a
simple focus. They considered the evils of alcoholism as the root cause
of wife abuse. Hence, they demonstrated and picketed saloons, bars
and their husbands' other watering holes. Soon, however, their crusade
was joined by suffragette movements, expanding the liberation
movement's agenda. They fought for women's right to vote, to own
property, and more. Since then, the feminist movement was on the roll.
The feminist movement exposed the private invisibility of the domestic
violence to the public gaze. They succeeded in transforming the issue
into an important public concern. No less than the United States
Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:
In an average 12-month period in this country, approximately two million
women are the victims of severe assaults by their male partners. In a
1985 survey, women reported that nearly one of every eight husbands
had assaulted their wives during the past year. The [American Medical
Association] views these figures as "marked underestimates," because
the nature of these incidents discourages women from reporting them,
and because surveys typically exclude the very poor, those who do not
speak English well, and women who are homeless or in institutions or
hospitals when the survey is conducted. According to the AMA,
"researchers on family violence agree that the true incidence of partner
nation building and to ensure the fundamental equality before the law of
women and men. Our Senate has ratified the CEDAW as well as the
Convention on the Rights of the Child and its two protocols. To cap it all,
Congress, on March 8, 2004, enacted Rep. Act No. 9262, entitled "An
Act Defining Violence Against Women and Their Children, Providing for
Protective Measures for Victims, Prescribing Penalties therefor and for
other Purposes." (Citations omitted)
B. Women are the "usual" and "most likely"
victims of violence.
At the time of the presentation of Senate Bill No. 2723, official statistics
on violence against women and children show that
x x x physical injuries had the highest number of cases at 5,058 in 2002

violence is probably double the above estimates; or four million severely representing 55.63% of total cases reported (9,903). And for the first

assaulted women per year."
Studies on prevalence suggest that from one-fifth to one-third of all
women will be physically assaulted by a partner or ex-partner during
their lifetime... Thus on an average day in the United States, nearly
11,000 women are severely assaulted by their male partners. Many of
these incidents involve sexual assault... In families where wife beating
takes place, moreover, child abuse is often present as well.
Other studies fill in the rest of this troubling picture. Physical violence is
only the most visible form of abuse. Psychological abuse, particularly
forced social and economic isolation of women, is also common.
Many victims of domestic violence remain with their abusers, perhaps
because they perceive no superior alternative...Many abused women
who find temporary refuge in shelters return to their husbands, in large
part because they have no other source of income... Returning to one's
abuser can be dangerous. Recent Federal Bureau of Investigation
statistics disclose that 8.8 percent of all homicide victims in the United
States are killed by their spouses...Thirty percent of female homicide
victims are killed by their male partners.
Reported
Finally in 1994, the United States Congress enacted Cases
the Violence
Against Women Act.
semester of 2003, there were 2,381 reported cases out of 4,354 cases
which represent 54.31%. xxx (T)he total number of women in especially
difficult circumstances served by the Department of Social Welfare and
Development (DSWD) for the year 2002, there are 1,417 physically
abused/maltreated cases out of the total of 5,608 cases. xxx (T)here are
1,091 DSWD cases out of a total number of 3,471 cases for the first
semester of 2003. Female violence comprised more than 90% of all
forms of abuse and violence and more than 90% of these reported cases
were committed by the women's intimate partners such as their
husbands and live-in partners.73
Recently, the Philippine Commission on Women presented comparative
statistics on violence against women across an eight-year period from
2004 to August of 2011 with violations under R.A. 9262 ranking first
among the different VAW categories since its implementation in
2004,74 thus:
Table 1. Annual Comparative Statistics on Violence Against Women,
2004 - 2011*
2004 2005 2006 2007 2008 2009 2010

In the International front, the women's struggle for equality was no less
successful. The United States Charter and the Universal RapeDeclaration of 997 927 659 837 811 770 1,042

Human Rights affirmed the equality of all human beings. In 1979, the
UN General Assembly adopted the landmark Convention on the
Elimination of all Forms of Discrimination Against WomenIncestuous
(CEDAW).Rape
In 38 46 26 22 28 27 19
1993, the UN General Assembly also adopted the Declaration on the
Elimination of Violence Against Women. World conferences on the role
and rights of women have been regularly held in Mexico City,
Attempted Rape 194 148 185 147 204 167 268
Copenhagen, Nairobi and Beijing. The UN itself established a
Commission on the Status of Women.

The Philippines has been in cadence with the half and full steps of
all these women's movements. No less than Section 14, Article II of our
1987 Constitution mandates the State to recognize the role of women in
 who had experienced 4 or more incidents of domestic
of violence.75Statistics in Canada show that spousal violence by a woman
580 536 382 358 445 485 745 625
ss against a man is less likely to cause injury than the other way around
(18 percent versus 44 percent). Men, who experience violence from their
spouses are much less likely to live in fear of violence at the hands of
their spouses, and much less likely to experience sexual assault. In fact,
3,553 2,335 1,892 1,505 1,307 1,498 2,018 1,588
many cases of physical violence by a woman against a spouse are in
self-defense or the result of many years of physical or emotional
abuse.76

While there are, indeed, relatively few cases of violence and abuse
53 37 38 46 18 54 83 63
perpetrated against men in the Philippines, the same cannot render R.A.
9262 invalid.

In a 1960 case involving the violation of a city ordinance requiring drivers

218 924 1,269 2,387 3,599 5,285 9,974 9,021
of animal-drawn vehicles to pick up, gather and deposit in receptacles
the manure emitted or discharged by their vehicle-drawing animals in
any public highways, streets, plazas, parks or alleys, said ordinance was
319 223 199 182 220 208 374 213 as violative of the guaranty of equal protection of laws as its
challenged
application is limited to owners and drivers of vehicle-drawing animals
and not to those animals, although not utilized, but similarly pass through
the same streets.
62 19 29 30 19 19 25 15

The ordinance was upheld as a valid classification for the reason that,
while there may be non-vehicle-drawing animals that also traverse the
121 102 93 109 109 99 158 city roads,
128 "but their number must be negligible and their appearance
therein merely occasional, compared to the rig-drawing ones, as not to
constitute a menace to the health of the community."77 The mere fact
that the legislative classification may result in actual inequality is not
17 11 16 24 34 152 190 62
violative of the right to equal protection, for every classification of
persons or things for regulation by law produces inequality in some
degree, but the law is not thereby rendered invalid.78

16 34 23 28 18 25 22
9 C. Gender bias and prejudices

From the initial report to the police through prosecution, trial, and
sentencing, crimes against women are often treated differently and less
on 90 50 59 59 83 703 183 155than other crimes. This was argued by then United States
seriously
Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the
Violence Against Women Act (VAWA), in defending the civil rights

6,271 5,374 4,881 5,729 6,905 9,485 15,104remedy12,948

as a valid exercise of the U.S. Congress' authority under the
Commerce and Equal Protection Clauses. He stressed that the
widespread gender bias in the U.S. has institutionalized historic
*2011 report covers only from January to August
prejudices against victims of rape or domestic violence, subjecting them

Source: Philippine National Police Women and Children Protection to "double victimization" first at the hands of the offender and then of

Center (WCPC) the legal system.79

On the other hand, no reliable estimates may be obtained on domestic Our own Senator Loi Estrada lamented in her Sponsorship Speech for

abuse and violence against men in the Philippines because incidents Senate Bill No. 2723 that "(w)henever violence occurs in the family, the

thereof are relatively low and, perhaps, because many men will not even police treat it as a private matter and advise the parties to settle the

attempt to report the situation. In the United Kingdom, 32% of women conflict themselves. Once the complainant brings the case to the

who had ever experienced domestic violence did so four or five (or more) prosecutor, the latter is hesitant to file the complaint for fear that it might

times, compared with 11% of the smaller number of men who had ever later be withdrawn. This lack of response or reluctance to be involved by

experienced domestic violence; and women constituted 89% of all those the police and prosecution reinforces the escalating, recurring and often
serious nature of domestic violence."80
Sadly, our own courts, as well, have exhibited prejudices and biases
against our women.
In a recent case resolved on March 9, 2011, we fined RTC Judge
Venancio J. Amila for Conduct Unbecoming of a Judge. He used
derogatory and irreverent language in reference to the complainant in a
petition for TPO and PPO under R.A. 9262, calling her as "only a live-in
partner" and presenting her as an "opportunist" and a "mistress" in an
"illegitimate relationship." Judge Amila even called her a "prostitute," and
accused her of being motivated by "insatiable greed" and of absconding
with the contested property.81 Such remarks betrayed Judge Amila's
prejudices and lack of gender sensitivity.
The enactment of R.A. 9262 aims to address the discrimination brought
about by biases and prejudices against women. As emphasized by the
CEDAW Committee on the Elimination of Discrimination against
Women, addressing or correcting discrimination through specific
measures focused on women does not discriminate against
men.82Petitioner's contention,83 therefore, that R.A. 9262
discriminatory and that it is an "anti-male," "husband-bashing," and
"hate-men" law deserves scant consideration. As a State Party to the
CEDAW, the Philippines bound itself to take all appropriate measures
"to modify the social and cultural patterns of conduct of men and women,
with a view to achieving the elimination of prejudices and customary and
all other practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and
women."84 Justice Puno correctly pointed out that "(t)he paradigm shift
changing the character of domestic violence from a private affair to a
public offense will require the development of a distinct mindset on the
part of the police, the prosecution and the judges."85
II. The classification is germane to the purpose of the law.
The distinction between men and women is germane to the purpose of
R.A. 9262, which is to address violence committed against women and
children, spelled out in its Declaration of Policy, as follows:
SEC. 2. Declaration of Policy. It is hereby declared that the State
values the dignity of women and children and guarantees full respect for
human rights. The State also recognizes the need to protect the family
and its members particularly women and children, from violence and
threats to their personal safety and security.
Towards this end, the State shall exert efforts to address violence
committed against women and children in keeping with the fundamental
freedoms guaranteed under the Constitution and the provisions of the
Universal Declaration of Human Rights, the Convention on the
Elimination of All Forms of Discrimination Against Women, Convention
on the Rights of the Child and other international human rights
instruments of which the Philippines is a party.
In 1979, the U.N. General Assembly adopted the CEDAW, which the
Philippines ratified on August 5, 1981. Subsequently, the Optional
Protocol to the CEDAW was also ratified by the Philippines on October
6, 2003.86 This Convention mandates that State parties shall accord to
women equality with men before the law87 and shall take all appropriate
measures to eliminate discrimination against women in all matters
relating to marriage and family relations on the basis of equality of men
and women.88 The Philippines likewise ratified the Convention on the
Rights of the Child and its two protocols.89 It is, thus, bound by said
Conventions and their respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the existing
conditions when it was promulgated, but to future conditions as well, for
as long as the safety and security of women and their children are
threatened by violence and abuse.
R.A. 9262 applies equally to all women and children who suffer violence
and abuse. Section 3 thereof defines VAWC as:
is x x x any act or a series of acts committed by any person against a
woman who is his wife, former wife, or against a woman with whom the
person has or had a sexual or dating relationship, or with whom he has
a common child, or against her child whether legitimate or illegitimate,
within or without the family abode, which result in or is likely to result in
physical, sexual, psychological harm or suffering, or economic abuse
including threats of such acts, battery, assault, coercion, harassment or
arbitrary deprivation of liberty. It includes, but is not limited to, the
following acts:
A. "Physical Violence" refers to acts that include bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual in nature, committed
against a woman or her child. It includes, but is not limited to:
a) rape, sexual harassment, acts of lasciviousness, treating a woman or
her child as a sex object, making demeaning and sexually suggestive
remarks, physically attacking the sexual parts of the victim's body,
forcing her/him to watch obscene publications and indecent shows or
forcing the woman or her child to do indecent acts and/or make films
thereof, forcing the wife and mistress/lover to live in the conjugal home
or sleep together in the same room with the abuser;
b) acts causing or attempting to cause the victim to engage in any sexual
activity by force, threat of force, physical or other harm or threat of
physical or other harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions causing or likely
to cause mental or emotional suffering of the victim such as but not
limited to intimidation, harassment, stalking, damage to property, public
ridicule or humiliation, repeated verbal abuse and marital infidelity. It
includes causing or allowing the victim to witness the physical, sexual or
psychological abuse of a member of the family to which the victim
belongs, or to witness pornography in any form or to witness abusive
injury to pets or to unlawful or unwanted deprivation of the right to
custody and/or visitation of common children.
D. "Economic abuse" refers to acts that make or attempt to make a
woman financially dependent which includes, but is not limited to the
following:
1. withdrawal of financial support or preventing the victim from engaging
in any legitimate profession, occupation, business or activity, except in
cases wherein the other spouse/partner objects on valid, serious and
moral grounds as defined in Article 73 of the Family Code;
2. deprivation or threat of deprivation of financial resources and the right
to the use and enjoyment of the conjugal, community or property owned
in common;
3. destroying household property;
4. controlling the victims' own money or properties or solely controlling
the conjugal money or properties.
It should be stressed that the acts enumerated in the aforequoted
provision are attributable to research that has exposed the dimensions
and dynamics of battery. The acts described here are also found in the
U.N. Declaration on the Elimination of Violence Against
Women.90 Hence, the argument advanced by petitioner that the
definition of what constitutes abuse removes the difference between
violent action and simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is vague and ambiguous
that will confuse petitioner in his defense. The acts enumerated above
are easily understood and provide adequate contrast between the
innocent and the prohibited acts. They are worded with sufficient
definiteness that persons of ordinary intelligence can understand what
conduct is prohibited, and need not guess at its meaning nor differ in its
application.91 Yet, petitioner insists92that phrases like "depriving or
threatening to deprive the woman or her child of a legal right," "solely
controlling the conjugal or common money or properties," "marital
infidelity," and "causing mental or emotional anguish" are so vague that
they make every quarrel a case of spousal abuse. However, we have
stressed that the "vagueness" doctrine merely requires a reasonable
degree of certainty for the statute to be upheld not absolute precision
or mathematical exactitude, as petitioner seems to suggest. Flexibility,
rather than meticulous specificity, is permissible as long as the metes
and bounds of the statute are clearly delineated. An act will not be held
invalid merely because it might have been more explicit in its wordings
or detailed in its provisions.93
There is likewise no merit to the contention that R.A. 9262 singles out
the husband or father as the culprit. As defined above, VAWC may
likewise be committed "against a woman with whom the person has or
had a sexual or dating relationship." Clearly, the use of the gender-
neutral word "person" who has or had a sexual or dating relationship
with the woman encompasses even lesbian relationships. Moreover,
while the law provides that the offender be related or connected to the
victim by marriage, former marriage, or a sexual or dating relationship,
it does not preclude the application of the principle of conspiracy under
the Revised Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses
Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the victim, were
held to be proper respondents in the case filed by the latter upon the
allegation that they and their son (Go-Tan's husband) had community of
design and purpose in tormenting her by giving her insufficient financial
support; harassing and pressuring her to be ejected from the family
home; and in repeatedly abusing her verbally, emotionally, mentally and
physically.
R.A. 9262 is not violative of the
due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in the issuance
of POs, of all protections afforded by the due process clause of the
Constitution. Says he: "On the basis of unsubstantiated allegations, and
practically no opportunity to respond, the husband is stripped of family,
property, guns, money, children, job, future employment and reputation,
all in a matter of seconds, without an inkling of what happened."95
A protection order is an order issued to prevent further acts of violence
against women and their children, their family or household members,
and to grant other necessary reliefs. Its purpose is to safeguard the
offended parties from further harm, minimize any disruption in their daily
life and facilitate the opportunity and ability to regain control of their
life.96
"The scope of reliefs in protection orders is broadened to ensure that the
victim or offended party is afforded all the remedies necessary to curtail
access by a perpetrator to the victim. This serves to safeguard the victim
from greater risk of violence; to accord the victim and any designated
family or household member safety in the family residence, and to
prevent the perpetrator from committing acts that jeopardize the
employment and support of the victim. It also enables the court to award
temporary custody of minor children to protect the children from
violence, to prevent their abduction by the perpetrator and to ensure
their financial support."97
The rules require that petitions for protection order be in writing, signed
and verified by the petitioner98 thereby undertaking full responsibility,
criminal or civil, for every allegation therein. Since "time is of the essence
in cases of VAWC if further violence is to be prevented,"99 the court is
authorized to issue ex parte a TPO after raffle but before notice and
hearing when the life, limb or property of the victim is in jeopardy and
there is reasonable ground to believe that the order is necessary to
protect the victim from the immediate and imminent danger of VAWC or
to prevent such violence, which is about to recur.100
There need not be any fear that the judge may have no rational basis to
issue an ex parte order. The victim is required not only to verify the
allegations in the petition, but also to attach her witnesses' affidavits to
the petition.101
The grant of a TPO ex parte cannot, therefore, be challenged as violative
of the right to due process. Just like a writ of preliminary attachment
which is issued without notice and hearing because the time in which
the hearing will take could be enough to enable the defendant to
abscond or dispose of his property,102 in the same way, the victim of
VAWC may already have suffered harrowing experiences in the hands
of her tormentor, and possibly even death, if notice and hearing were
required before such acts could be prevented. It is a constitutional
commonplace that the ordinary requirements of procedural due process
must yield to the necessities of protecting vital public
interests,103among which is protection of women and children from
violence and threats to their personal safety and security.
It should be pointed out that when the TPO is issued ex parte, the court
shall likewise order that notice be immediately given to the respondent
directing him to file an opposition within five (5) days from service.
Moreover, the court shall order that notice, copies of the petition and
TPO be served immediately on the respondent by the court sheriffs. The
TPOs are initially effective for thirty (30) days from service on the
respondent.104
Where no TPO is issued ex parte, the court will nonetheless order the
immediate issuance and service of the notice upon the respondent
requiring him to file an opposition to the petition within five (5) days from
service. The date of the preliminary conference and hearing on the
merits shall likewise be indicated on the notice.105
The opposition to the petition which the respondent himself shall verify,
must be accompanied by the affidavits of witnesses and shall show
cause why a temporary or permanent protection order should not be
issued.106
It is clear from the foregoing rules that the respondent of a petition for
protection order should be apprised of the charges imputed to him and
afforded an opportunity to present his side. Thus, the fear of petitioner
of being "stripped of family, property, guns, money, children, job, future
employment and reputation, all in a matter of seconds, without an inkling
of what happened" is a mere product of an overactive imagination. The
essence of due process is to be found in the reasonable opportunity to
be heard and submit any evidence one may have in support of one's
defense. "To be heard" does not only mean verbal arguments in court;
one may be heard also through pleadings. Where opportunity to be
heard, either through oral arguments or pleadings, is accorded, there is
no denial of procedural due process.107
It should be recalled that petitioner filed on April 26, 2006 an Opposition
to the Urgent Ex-Parte Motion for Renewal of the TPO that was granted
only two days earlier on April 24, 2006. Likewise, on May 23, 2006,
petitioner filed a motion for the modification of the TPO to allow him
visitation rights to his children. Still, the trial court in its Order dated
September 26, 2006, gave him five days (5) within which to show cause
why the TPO should not be renewed or extended. Yet, he chose not to
file the required comment arguing that it would just be an "exercise in
futility," conveniently forgetting that the renewal of the questioned TPO
was only for a limited period (30 days) each time, and that he could
prevent the continued renewal of said order if he can show sufficient
cause therefor. Having failed to do so, petitioner may not now be heard
to complain that he was denied due process of law.
Petitioner next laments that the removal and exclusion of the respondent
in the VAWC case from the residence of the victim, regardless of
ownership of the residence, is virtually a "blank check" issued to the wife
to claim any property as her conjugal home.108
The wording of the pertinent rule, however, does not by any stretch of
the imagination suggest that this is so. It states:
SEC. 11. Reliefs available to the offended party. -- The protection order
shall include any, some or all of the following reliefs:
xxxx
(c) Removing and excluding the respondent from the residence of the
offended party, regardless of ownership of the residence, either
temporarily for the purpose of protecting the offended party, or
permanently where no property rights are violated. If the respondent
must remove personal effects from the residence, the court shall direct
a law enforcement agent to accompany the respondent to the residence,
remain there until the respondent has gathered his things and escort him
from the residence;
xxxx
Indubitably, petitioner may be removed and excluded from private
respondent's residence, regardless of ownership, only temporarily for
the purpose of protecting the latter. Such removal and exclusion may be
permanent only where no property rights are violated. How then can the
private respondent just claim any property and appropriate it for herself,
as petitioner seems to suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-mill arguments,
instead of encouraging mediation and counseling, the law has done
violence to the avowed policy of the State to "protect and strengthen the
family as a basic autonomous social institution."109
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer
the case or any issue thereof to a mediator. The reason behind this
provision is well-explained by the Commentary on Section 311 of the
Model Code on Domestic and Family Violence as follows:110
This section prohibits a court from ordering or referring parties to
mediation in a proceeding for an order for protection. Mediation is a
process by which parties in equivalent bargaining positions voluntarily
reach consensual agreement about the issue at hand. Violence,
however, is not a subject for compromise. A process which involves
parties mediating the issue of violence implies that the victim is
somehow at fault. In addition, mediation of issues in a proceeding for an
order of protection is problematic because the petitioner is frequently
unable to participate equally with the person against whom the
protection order has been sought. (Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve the exercise of judicial
power which, under the Constitution, is placed upon the "Supreme Court
and such other lower courts as may be established by law" and, thus,
protests the delegation of power to barangay officials to issue protection
orders.111 The pertinent provision reads, as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How.
Barangay Protection Orders (BPOs) refer to the protection order
issued by the Punong Barangay ordering the perpetrator to desist from
committing acts under Section 5 (a) and (b) of this Act.1wphi1 A
Punong Barangay who receives applications for a BPO shall issue the
protection order to the applicant on the date of filing after ex parte
determination of the basis of the application. If the Punong Barangay is
unavailable to act on the application for a BPO, the application shall be
acted upon by any available Barangay Kagawad. If the BPO is issued
by a Barangay Kagawad, the order must be accompanied by an
attestation by the Barangay Kagawad that the Punong Barangay was
unavailable at the time of the issuance of the BPO. BPOs shall be
effective for fifteen (15) days. Immediately after the issuance of an ex
parte BPO, the Punong Barangay or Barangay Kagawad shall
personally serve a copy of the same on the respondent, or direct any
barangay official to effect its personal service.
The parties may be accompanied by a non-lawyer advocate in any
proceeding before the Punong Barangay.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.112 On the
other hand, executive power "is generally defined as the power to
enforce and administer the laws. It is the power of carrying the laws into
practical operation and enforcing their due observance."113
As clearly delimited by the aforequoted provision, the BPO issued by the
Punong Barangay or, in his unavailability, by any available Barangay
Kagawad, merely orders the perpetrator to desist from (a) causing
physical harm to the woman or her child; and (2) threatening to cause
the woman or her child physical harm. Such function of the Punong
Barangay is, thus, purely executive in nature, in pursuance of his duty
under the Local Government Code to "enforce all laws and ordinances,"
and to "maintain public order in the barangay."114
We have held that "(t)he mere fact that an officer is required by law to
inquire into the existence of certain facts and to apply the law thereto in
order to determine what his official conduct shall be and the fact that
these acts may affect private rights do not constitute an exercise of
judicial powers."115
In the same manner as the public prosecutor ascertains through a
preliminary inquiry or proceeding "whether there is reasonable ground
to believe that an offense has been committed and the accused is
probably guilty thereof," the Punong Barangay must determine
reasonable ground to believe that an imminent danger of violence
against the woman and her children exists or is about to recur that would
necessitate the issuance of a BPO. The preliminary investigation
conducted by the prosecutor is, concededly, an executive, not a judicial,
function. The same holds true with the issuance of a BPO.
We need not even belabor the issue raised by petitioner that since
barangay officials and other law enforcement agencies are required to
extend assistance to victims of violence and abuse, it would be very
unlikely that they would remain objective and impartial, and that the
chances of acquittal are nil. As already stated, assistance by barangay
officials and other law enforcement agencies is consistent with their duty
to enforce the law and to maintain peace and order.
Conclusion
Before a statute or its provisions duly challenged are voided, an
unequivocal breach of, or a clear conflict with the Constitution, not
merely a doubtful or argumentative one, must be demonstrated in such
a manner as to leave no doubt in the mind of the Court. In other words,
the grounds for nullity must be beyond reasonable doubt.116 In the
instant case, however, no concrete evidence and convincing arguments
were presented by petitioner to warrant a declaration of the
unconstitutionality of R.A. 9262, which is an act of Congress and signed
into law by the highest officer of the co-equal executive department. As
we said in Estrada v. Sandiganbayan, 117 courts must assume that the
legislature is ever conscious of the borders and edges of its plenary
powers, and passed laws with full knowledge of the facts and for the
purpose of promoting what is right and advancing the welfare of the
majority.
We reiterate here Justice Puno's observation that "the history of the
women's movement against domestic violence shows that one of its
most difficult struggles was the fight against the violence of law itself. If
we keep that in mind, law will not again be a hindrance to the struggle
of women for equality but will be its fulfillment."118 Accordingly, the
constitutionality of R.A. 9262 is, as it should be, sustained.
WHEREFORE, the instant petition for review on certiorari is hereby
DENIED for lack of merit.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
PRESBITERO J.
ANTONIO T. CARPIO
VELASCO, JR.
Associate Justice
Associate Justice
 5 Section 3(a), R.A. 9262.
See separate concurring
opinion: See: Concurring Opinion 6 Rollo, pp. 63-83.
TERESITA J. ARTURO D. BRION
7 Id. at 66-67.
LEONARDO-DE CASTRO Associate Justice
Associate Justice 8 Id. at 64.

9 Id. at 67-68.
On official leave
LUCAS P. BERSAMIN 10 Id. at 68-70.
DIOSDADO M. PERALTA*
Associate Justice
Associate Justice 11 Id. at 70-71.

12 Id. at 72.
See Separate Concurring
MARIANO C. DEL 13 Id. at 73.
Opinion
CASTILLO
ROBERTO A. ABAD 14 Id. at 74.
Associate Justice
Associate Justice
15 Id. at 65-66.

16 Id. at 66.
MARTIN S. VILLARAMA,
JOSE PORTUGAL PEREZ
JR. 17 Id. at 70.
Associate Justice
Associate Justice
18 Id. at 84-87.

19 Urgent Ex-Parte Motion for Renewal of Temporary Protection Order

JOSE CATRAL MENDOZA BIENVENIDO L. REYES
(TPO) or Issuance of Modified TPO. Id. at 90-93.
Associate Justice Associate Justice
20 Id. at 94-97.

See separate concurring opinion

21 Id. at 98-103.
MARVIC MARIO VICTOR F. LEONEN
Associate Justice 22 Id. at 138-140.

CERTIFICATION 23 Order dated May 24, 2006. Id. at 148-149.

I certify that the conclusions in the above Decision had been reached in 24 Id. at 154-166.
consultation before the case was assigned to the writer of the opinion of
25 Id. at 156.
the Court.
26 Id. at 157.
MARIA LOURDES P. A. SERENO
Chief Justice 27 Id. at 158-159.

28 Id. at 167-174.

29 Id. at 182.
Footnotes
30 Id. at 183-184.
* On official leave.
31 Id. at 185.
1 "Philippines still top Christian country in Asia, 5th in world," Philippine
32 Id. at 186-187.
Daily Inquirer, December 21, 2011.

33 See Manifestation dated October 10, 2006. Id. at 188-189.

2 Ephesians 5:25-28.

34 Id. at 104-137.
3 RATIONALE OF THE PROPOSED RULE ON VIOLENCE AGAINST
WOMEN AND THEIR CHILDREN, citing statistics furnished by the 35 Id. at 151-152.
National Commission on the Role of Filipino Women.

4 Id.
36 Decision dated January 24, 2007. Penned by Associate Justice
Priscilla Baltazar-Padilla, with Associate Justices Arsenio J. Magpale
and Romeo F. Barza, concurring. Id. at 47-57.
37 Id. at 60-61.
38 Petition, id. at 22.
39 ABS-CBN Broadcasting Corporation v. Philippine Multi-Media
System, Inc., G.R. Nos. 175769-70, January 19, 2009, 576 SCRA 262,
289.
40 Philippine National Bank v. Palma, 503 Phil. 917, 932 (2005).
41 Petition, rollo, p. 24.
42 SEC. 5. Jurisdiction of Family Courts. - The Family Courts shall have
exclusive original jurisdiction to hear and decide the following cases:
xxxx
k) Cases of domestic violence against:
1) Women - which are acts of gender based violence that results, or are
likely to result in physical, sexual or psychological harm or suffering to
women; and other forms of physical abuse such as battering or threats
and coercion which violate a woman's personhood, integrity and
freedom movement; and
2) Children - which include the commission of all forms of abuse,
neglect, cruelty, exploitation, violence, and discrimination and all other
conditions prejudicial to their development.
43 Sec. 17, R.A. 8369.
44 Manalo v. Mariano, 161 Phil. 108, 120 (1976).
45 Planters Products, Inc. v. Fertiphil Corporation, G.R. No. 166006,
March 14, 2008, 548 SCRA 485, 504.
46 Drilon v. Lim, G.R. No. 112497, August 4, 1994, 235 SCRA 135, 140.
47 Planters Products, Inc. v. Fertiphil Corporation, supra note 45, at 505,
citing Mirasol v. CA, 403 Phil. 760 (2001).
48 G.R. Nos. L-18128 & L-18672, December 26, 1961, 3 SCRA 696,
703-704.
49 RATIONALE OF THE PROPOSED RULES ON VIOLENCE
AGAINST WOMEN AND THEIR CHILDREN.
50 Korea Exchange Bank v. Hon. Rogelio C. Gonzales, 496 Phil. 127,
143-144 (2005); Spouses Sapugay v. CA, 262 Phil. 506, 513 (1990).
51 Sec. 8, Rule 6, 1997 Rules of Civil Procedure.
52 Sec. 11, Rule 6, 1997 Rules of Civil Procedure.
53 See People of the Philippine Islands and Hongkong & Shanghai
Banking Corporation v. Vera, 65 Phil 199 (1937); Philippine Coconut
Producers Federation, Inc. (COCOFED) v. Republic, G.R. Nos. 177857-
58, January 24, 2012, 663 SCRA 514, 594.
54 Recreation and Amusement Association of the Philippines v. City of
Manila, 100 Phil 950, 956 (1957).
55 Secs. 22 and 31, A.M. No. 04-10-11-SC.
56 Sec. 26 (b), A.M. No. 04-10-11-SC.
57 Sto. Domingo v. De Los Angeles, 185 Phil. 94, 102 (1980).
58 27 L.Ed.2d 669 (1971), cited in The Executive Secretary v. Court of
Appeals, 473 Phil. 27, 56-57 (2004).
59 Rollo, pp. 214-240, 237.
60 Petition, id. at 26-27.
61 An Act Defining Violence Against Women and Members of the
Family, Prescribing Penalties Therefor, Providing for Protective
Measures for Victims and for Other Purposes.
62 Congressional Records, Vol. III, No. 45, December 10, 2003, p. 27.
63 Id. at 25.
64 Id. at 27.
65 Id. at 43-44.
66 Congressional Records, Vol. III, No. 51, January 14, 2004, pp. 141-
147.
67 Lawyers Against Monopoly and Poverty (LAMP) v. The Secretary of
Budget and Management, G.R. No. 164987, April 24, 2012, 670 SCRA
373, 391.
68 Garcia v. Commission on Elections, G.R. No. 111511, October 5,
1993, 227 SCRA 100, 113-114.
69 158 Phil. 60, 86-87 (1974).
70 Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, p.
169.
71 Philippine Commission on Women, National Machinery for Gender
Equality and Women's Empowerment, "Violence Against Women
(VAW)," <http://www.pcw.gov.ph> (visited November 16, 2012).
72 <http://www.lawphil.net/international/treaties/dec_dec_1993.html>
(visited November 16, 2012).
73 As reported by Senator Loi Estrada in her Sponsorship Speech,
Congressional Records, Vol. III, No. 45, December 10, 2003, p. 22.
74 Philippine Commission on Women, "Statistics on Violence Against
Filipino Women," <http://pcw.gov.ph/statistics/201210/statistics-
violence-against-filipino-women> (visited October 12, 2012).
75 Women's Aid, "Who are the victims of domestic violence?," citing 98 Sec. 7, A.M. No. 04-10-11-SC.
Walby and Allen, 2004, <www.womensaid.org.uk/domestic-violence-
99 Supra note 49.
articles.asp? section=00010001002200410001&itemid= 1273 (visited
November 16, 2012). 100 Id.

76 Toronto District School Board, Facts and Statistics 101 Supra note 85.
<www.tdsb.on.ca/site/viewitem.asp?siteid=15&
menuid=23082&pageid=20007> (visited November 16, 2012). 102 Cuartero v. CA, G.R. No. 102448, August 5, 1992, 212 SCRA 260,
265.
77 People v. Solon, 110 Phil. 39, 41 (1960).
103 Laguna Lake Development Authority v. Court of Appeals, G.R. No.
78 Victoriano v. Elizalde Rope Workers' Union, supra note 69, 90. 110120, March 16, 1994, 231 SCRA 292, 307, citing Pollution
Adjudication Board v. Court of Appeals, G.R. No. 93891, March 11,
79 Biden, Jr., Joseph R., "The Civil Rights Remedy of the Violence
1991, 195 SCRA 112.
Against Women Act: A Defense," 37 Harvard Journal on Legislation 1
(Winter, 2000). 104 Sec. 15, A.M. No. 04-10-11-SC.

80 Congressional Records, Vol. III, No. 45, December 10, 2003, pp. 22- 105 Sec. 16, A.M. No. 04-10-11-SC.
23.
106 Sec. 20, A.M. No. 04-10-11-SC.
81 Benancillo v. Amila, A.M. No. RTJ-08-2149, March 9, 2011, 645
SCRA 1, 8. 107 Esperida v. Jurado, Jr., G.R. No. 172538, April 25, 2012, 671 SCRA
66, 74.
82 "General recommendation No. 25, on article 4, paragraph 1, of the
Convention on the Elimination of All Forms of Discrimination against 108 Petition, rollo, pp. 30-31.

Women, on temporary special measures"

109 Id. at 36.

<www.un.org/womenwatch/.../recommendation> (visited January 4,

110 Supra note 49.
2013).
111 Petition, rollo, pp. 130-131.
83 Petition, rollo, p. 27.
112 Sec. 1, Article VIII, 1987 Constitution.
84 Article 5(a), CEDAW.
113 Laurel v. Desierto, 430 Phil. 658 (2002).
85 "The Rule on Violence Against Women and Their Children," Remarks
delivered during the Joint Launching of R.A. 9262 and its Implementing 114 People v. Tomaquin, 478 Phil. 885, 899 (2004), citing Section 389,
Rules last October 27, 2004 at the Session Hall of the Supreme Court. Chapter 3, Title One, Book III, Local Government Code of 1991, as
amended.
86 Supra note 49.
115 Lovina and Montilla v. Moreno and Yonzon, 118 Phil 1401, 1406
87 Article 15.
(1963).

88 Article 16.
116 Hacienda Luisita, Incorporated v. Presidential Agrarian Reform

89 Supra note 49. Council, G.R. No. 171101, July 5, 2011, 653 SCRA 154, 258.

90 Supra note 49. 117 Supra note 91.

91 Estrada v. Sandiganbayan, 421 Phil 290, 351-352 (2001). 118 Supra note 85.

92 Petition, rollo, p. 35.

93 Estrada v. Sandiganbayan , supra note 91, at 352-353.

94 G.R. No. 168852, September 30, 2008, 567 SCRA 231.

95 Petition, rollo, p. 31.

96 Sec. 4 (o), A.M. No. 04-10-11-SC.

97 Supra note 49.

SECOND DIVISION Criminal libel laws present a special problem. At face value, they might
strike as laws passed that abridge the freedom of speech, expression,
CIRIACO BOY GUINGGUING, G.R. No. 128959
or the press. Whatever seeming conflict between these two precepts
Petitioner, has long been judicially resolved with the doctrine that libelous speech
does not fall within the ambit of constitutional protection. Nonetheless,
Present: in ascertaining what class of materials may be considered as libelous,
the freedom of expression clause, its purposes as well as the evils it
PUNO, J.,
guards against, warrant primordial consideration and application.
Chairman,

- versus - AUSTRIA-MARTINEZ,
Before this Court is a Petition for Review under Rule 45 of the 1997
CALLEJO, SR., Rules of Civil Procedure, assailing the Decision[6] and
the Resolution[7] of the Court of Appeals (CA) dated 29 July 1996 and
TINGA, and
3 October 1996, respectively, in CA-G.R. CR No. 16413. The CA
CHICO-NAZARIO, JJ. affirmed with modification[8] the decision[9] rendered by the Regional
Trial Court (RTC), Branch 7 of Cebu City, finding Ciriaco Boy
Guingguing (petitioner) and Segundo Lim (Lim) guilty beyond

THE HONORABLE COURT reasonable doubt of the crime of libel. This petition for certiorari was filed
by petitioner alone, hence the verdict of guilt with respect to Lim had
OF APPEALS and THE already become final and executory.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondents. The antecedent facts follow.

September 30, 2005 This case originated from a criminal complaint for libel filed by Cirse
Choy Torralba (complainant) against Lim and petitioner under Criminal
x-------------------------------------------------------------------- x
Case No. CBU-26582. Complainant was a broadcast journalist who
DECISION handled two programs for radio stations DYLA and DYFX. The radio
stations were based in Cebu City but the programs were aired over a
TINGA, J.:
large portion of the Visayas and Mindanao.[10]

On 13 October 1991, Lim caused the publication of records of criminal

The liberty of the press is indeed essential. Whoever would overthrow cases filed against complainant as well as photographs[11] of the latter
the liberty of a nation must begin by subduing the freeness of speech. being arrested. These were published by means of a one-page
advertisement paid for by Lim in the Sunday Post, a weekly publication
edited and published by petitioner. The Sunday Post was circulated in

- Benjamin Franklin[1] the province of Bohol, as well as in the Visayas and Mindanao.[12] The
full text of the advertisement which was the basis of the
information[13] for libel reads:

The right of free expression stands as a hallmark of the modern

democratic and humane state.[2] Not only does it assure a persons right
to say freely what is thought freely, it likewise evinces the politys REQUEST FOR PUBLIC SERVICE

freedom from psychological insecurity. This fundamental liberty is

translated into the constitutional guarantee that no law shall be passed
abridging the freedom of speech, of expression, or the ATTN: RADIOMAN CHOY TORRALBA, STATION DYFX, CEBU CITY
press,[3] contained in the Bill of Rights,[4] which itself obtains a position
of primacy in our fundamental law.[5]
TEXT: IN THE INTEREST OF PUBLIC SERVICE, PLEASE DO
ENLIGHTEN ME REGARDING THE DISPOSITION OF THE
FOLLOWING WHICH APPEAR HEREUNDER. THE CASES WERE NOT TOO LONG AGO, I RECEIVED THE FOLLOWING NEWSPAPER
FOUND IN THE BLOTTER OF THE CEBU CITY POLICE CLIPPING COURTESY OF A CEBU CITY CONCERNED CITIZEN.
DEPARTMENT. PLEASE DO TELL ME THE STATUS OF THOSE THE CAPTION STORY BELOW TELLS ALL. IF YOU KNOW WHO THE
CASES, WHETHER THEY HAVE BEEN DISMISSED, ARCHIVED BUSINESSMAN ALLUDED TO IN THE CAPTION, PLEASE DO TELL
AND/OR PENDING. ME.

[Thereafter followed by a picture of a person with face blotted out being

arrested and an inset picture of the same person with face likewise
Name: CIRSE CHOY TORRALBA
blotted out, being detained, these pictures being followed by the caption,
which states]:

CRIM. CASE NO. R-43035

FOR: MALICIOUS MISCHIEF ESTAFA CASE. Members of Cebu City Police Intelligence group under
Lt. Col. Eduardo Ricardo arrested last night a businessman (extreme
DATE FILED: MAY 10, 1979 left) for his alleged involvement in estafa case filed by APOCEMCO. Left
photo a member of the team serves the warrant of arrest order issued
COMPLAINANTS: DR. JOVENAL ALMENDRAS
by CEBU RTC Judge German Lee.
ADDRESS: ALMENDRAS ST., MABOLO, CEBU CITY

MR. VICTORIANO VELOSO

ANOTHER CLIPPING WHICH IDENTIFIED BUSINESSMAN CHOY
ADDRESS: 117 HIPODROMO, MABOLO, CEBU CITY TORRALBA TO HAVE BEEN SERVED A WARRANT OF ARREST IN
A (P)LUSH UPTOWN HOTEL IN CEBU CITY BY OPERATIVES OF
DISPOSITION: PENDING ARREST
THE CEBU CITY POLICE. NOW TELL ME, IS IT YOU THE SAME
CHOY TORRALBA REFERRED TO IN THE CAPTION STORY. IF
INDEED YOU ARE THE ONE AND THE SAME WHO APPEARED IN
CRIM. CASE NO. 17984-R
THE PICTURE BELOW, PLEASE TO (sic) INFORM ME.:

FOR : ESTAFA

DATE FILED: July 12, 1982

[Thereafter followed by another picture, this time, the face of the person

COMPLAINANTS: MR. PIO Y. GO AND being arrested is clearly shown to be that of Cirse Choy Torralba,
followed by this caption.]
MRS. ROSALITA R. ROLDAN

ADDRESS: c/o 2nd Floor Martinez Bldg.

SERENE EVENING: The otherwise serene evening enjoyed by
(ALPHA MKTG., INC.), businessman Choy Torralba (left) in a plush uptown Hotel was disturbed
by operatives (right) of the Cebu City Police under P/Lt/Col. Eduardo
Jones Ave., Cebu City
Ricardo just to serve on the former a warrant of arrest issued by Cebu
DISPOSITION: PENDING ARREST RTC Judge German Lee relative to the suit filed by Apocemco against
the businessman (PR)

CRIM. CASE NO. 14843-R

THANK YOU, AND MY BEST REGARDS.
FOR: SERIOUS PHYSICAL INJURIES

DATED FILED: APRIL 28, 1980

PAID SPACE BY: (sgd.) SEGUNDO LIM[14]
COMPLAINANTS:

ADDRESS:

DISPOSITION: PROVISIONALLY DISMISSED

DATED: APRIL 14, 1991

Asserting inter alia that he had been acquitted and the case/s referred
to had already been settled, complainant sought Lim and petitioners
conviction for libel. At the same time, he asked for moral, compensatory
and exemplary damages as well as attorneys fees because the
publication allegedly placed him in public contempt and ridicule. It was
claimed that the publication was also designed to degrade and malign
his person and destroy him as a broadcast journalist.[15]
Lim, in his defense, claimed that complainant was allegedly making
scurrilous attacks against him and his family over the airwaves. Since
Lim had no access to radio time, he opted for paid advertisements via
newspaper to answer the attacks,[16] as a measure of self-defense. Lim
also argued that complainant, as a media man and member of the fourth
estate, occupied a position almost similar to a public functionary and
should not be onion-skinned and be able to absorb the thrust of public
scrutiny.[17]
After trial, the lower court concluded that the publication complained of
was indeed libelous.[18]Declaring that malice is the most important
element of libel, it held that the same was present in the case because
every defamatory publication prima facie implies malice on the part of
the author and publisher towards the person subject thereof.[19] The
lower court gave no credence to Lim and petitioners argument that the
publication was resorted to in self-defense.
The trial court likewise disregarded the insulative effects of complainants
status as a mediaman to the prosecution of the criminal libel charge. The
publication of a calumny even against public officers or candidates for
public office, according to the trial court, is an offense most dangerous
to the people. It deserves punishment because the latter may be
deceived thereby and reject the best and deserving citizens to their great
injury.[20] It further held that a private reputation is as constitutionally
protected as the enjoyment of life, liberty and property such that anybody
who attacks a persons reputation by slanderous words or libelous
publications is obliged to make full compensation for the damage
done.[21]
On appeal, the CA modified the penalty imposed but it affirmed the
RTCs finding of guilt. The CA likewise held that self-defense was
unavailing as a justification since the defendant should not go beyond
explaining what was previously said of him. The appellate court asserted
that the purpose of self-defense in libel is to repair, minimize or remove
the effect of the damage caused to him but it does not license the
defendant to utter blow-for-blow scurrilous language in return for what
he received. Once the defendant hits back with equal or more scurrilous
remarks unnecessary for his defense, the retaliation becomes an
independent act for which he may be liable.[22] For this reason, the CA
refused to sanction the invocation of self-defense.
Petitioner now comes before this Court praying for the reversal of the
judgment against him. Petitioner contends inter alia that as editor-
publisher of the Sunday Post and as a member of the fourth estate, the
lower courts finding of guilt against him constitutes an infringement of
his constitutional right to freedom of speech and of the
press.[23] Petitioner likewise faults the lower courts failure to appreciate
their invocation of self-defense.
For resolution of this Court, therefore, is the fundamental question of
whether the publication subject matter of the instant case is indeed
libelous. While the findings and conclusions of the lower courts are rigid
in their application of the strict letter of the law, the issue seems more
complex than it appears at first blush. The Court is compelled to delve
deeper into the issue considering that libel principles formulated at one
time or another have waxed and waned through the years, in the
constant ebb and flow of judicial review.[24] A change in the factual
milieu of a case is apt to evoke a change in the judgment applicable.
Viewed in this context, the petition has merit and the judgment appealed
from must be reversed.
Criminal Libel vis--vis the
Guarantee of Free Speech
Under our law, criminal libel is defined as a public and malicious
imputation of a crime, or of a vice or defect, real or imaginary, or any act,
omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or to
blacken the memory of one who is dead.[25] Thus, the elements of libel
are: (a) imputation of a discreditable act or condition to another; (b)
publication of the imputation; (c) identity of the person defamed; and, (d)
existence of malice.[26]
Originally, the truth of a defamatory imputation was not considered a
defense in the prosecution for libel. In the landmark opinion of England's
Star Chamber in the Libelis Famosis case in 1603, two major
propositions in the prosecution of defamatory remarks were established:
first, that libel against a public person is a greater offense than one
directed against an ordinary man, and second, that it is immaterial that
the libel be true.[27] These propositions were due to the fact that the law
of defamatory libel was developed under the common law to help
government protect itself from criticism and to provide an outlet for
individuals to defend their honor and reputation so they would not resort
to taking the law into their own hands.[28]
Our understanding of criminal libel changed in 1735 with the trial and
acquittal of John Peter Zenger for seditious libel in the then English
colony of New York. Zenger, the publisher of the New-York Weekly
Journal, had been charged with seditious libel, for his papers consistent
attacks against Colonel William Cosby, the Royal Governor of New York.
In his defense, Zengers counsel, Andrew Hamilton, argued that the
criticisms against Governor Cosby were the right of every free-born
subject to make when the matters so published can be supported with
truth.[29] The jury, by acquitting Zenger, acknowledged albeit
unofficially the defense of truth in a libel action. The Zenger case also
laid to rest the idea that public officials were immune from criticism.[30]
The Zenger case is crucial, not only to the evolution of the doctrine of
criminal libel, but also to the emergence of the American democratic
ideal. It has been characterized as the first landmark in the tradition of a
free press, then a somewhat radical notion that eventually evolved into
the First Amendment[31] in the American Bill of Rights and also proved
an essential weapon in the war of words that led into the American War
for Independence.[32]
Yet even in the young American state, the government paid less than
ideal fealty to the proposition that Congress shall pass no law abridging
the freedom of speech. The notorious Alien and Sedition Acts of
1798[33] made it a crime for any person who, by writing, speaking or
printing, should threaten an officer of the government with damage to
his character, person, or estate. The law was passed at the insistence
of President John Adams, whose Federalist Party had held a majority in
Congress, and who had faced persistent criticism from political
opponents belonging to the Jeffersonian Republican Party. As a result,
at least twenty-five people, mostly Jeffersonian Republican editors, were
arrested under the law. The Acts were never challenged before the U.S.
Supreme Court, but they were not subsequently renewed upon their
expiration.[34]
The massive unpopularity of the Alien and Sedition Acts contributed to
the electoral defeat of President Adams in 1800. In his stead was elected
Thomas Jefferson, a man who once famously opined, Were it left to me
to decide whether we should have a government without newspapers,
or newspapers without a government, I should not hesitate a moment to
prefer the latter.[35]
There is an important observation to be made about the quality of the
American press during the time of Jefferson, one that is crucial to the
contemporaneous understanding of the freedom of expression clause at
the time of its inception. The tenor of the public debate during that era
was hardly polite. About the impending election of Jefferson, the New
England Courant predicted that murder, robbery, rape and adultery and
incest will be openly taught and practiced, the air will be rent with cries
of distress, the soil soaked with blood and the nation black with
crimes.[36] After Jefferson was elected, rumors spread about his
dalliances with his slave, Sally Hemmings, adding more fodder to his
critics. The thirteen-year old William Cullen Bryant, who would grow up
to become a prominent poet and abolitionist, published the following
doggerel: Thy countrys ruin and thy countrys shame!/ Go wretch! Resign
the Presidential chair/Disclose thy secret measures foul and fair/ Go
scan, philosophist, thy [Sallys] charms/And sink supinely in her sable
arms.[37]
Any comprehensive history of the American media during the first few
decades of the existence of the United States would reveal a similar
preference in the media for such mad-dog rhetoric.[38] These
observations are important in light of the misconception that freedom of
expression extends only to polite, temperate, or reasoned expression.
The assailed decision of the RTC betrays such a perception, when it
opined that the subject advertisement was libelous because by the
language used, it had passed from the bounds of playful gist, and
intensive criticism into the region of scurrilous calumniation and
intemperate personalities.[39]Evidently, the First Amendment was
designed to protect expression even at its most rambunctious and
vitriolic form as it had prevalently taken during the time the clause was
enacted.
Nonetheless, juristic enforcement of the guarantee of freedom of
expression was not demonstrably prominent in the United States during
most of the 1800s. Notably, the prevalent philosophy then was that the
Bill of Rights did not apply to the different federal states.[40] When the
US Supreme Court was confronted with substantial First Amendment
issues in the late 1800s and early 1900s, it responded by repeatedly
declining to protect free speech.[41] The subsequent enactment of the
due process clause in the Fourteenth Amendment eventually allowed
the U.S. Supreme Court to accept, in Gitlow v. New York[42] that the
First Amendment was protected from impairment by the States, thus
allowing for a more vigorous enforcement of the freedom of expression
clause in the twentieth century.[43]
The most important American ruling on libel, arguably from which
modern libel law emerged[44] was New York Times v.
Sullivan,[45] penned by the liberal lion Justice William Brennan, Jr. In
ascertaining whether the New York Times was liable for damages in a
libel action, the U.S. Supreme Court had acknowledged that the writing
in question, an advertisement published in the paper[46] extolling the
virtues of the civil rights movement, had contained several factual
inaccuracies in describing actions taken by Montgomery, Alabama
officials on civil rights protesters.[47] The Court even concluded that at
most, there was a finding against the New York Times of negligence in
failing to discover the misstatements against the news stories in the
newspapers own files.[48]
Nonetheless, the U.S. Supreme Court squarely assessed the import of
the First Amendment freedoms in the prosecution of criminal libel.
Famously, the precedent was established that a public official may not
successfully sue for libel unless the official can prove actual malice,
which was defined as with knowledge that the statement was false or
with reckless disregard as to
whether or not it was true.[49] By this standard, it was concluded that
factual errors aside, actual malice was not proven to sustain the
convictions for libel. Moreover, leeway was allowed even if the
challenged statements were factually erroneous if honestly made.[50]
Shortly after New York Times was promulgated, its principles were
extended by the U.S. Supreme Court to criminal libel actions in Garrison
v. Louisiana.[51] The decision, also penned by Justice Brennan,
commented on the marked decline in the common resort to criminal libel
actions:
Where criticism of public officials is concerned, we see no merit in the
argument that criminal libel statutes serve interests distinct from those
secured by civil libel laws, and therefore should not be subject to the
same limitations. At common law, truth was no defense to criminal libel.
Although the victim of a true but defamatory publication might not have
been unjustly damaged in reputation by the libel, the speaker was still
punishable since the remedy was designed to avert the possibility that
the utterance would provoke an enraged victim to a breach of peace . .
. premises of democratic government and with the orderly manner in
[However], preference for the civil remedy, which enabled the frustrated
victim to trade chivalrous satisfaction for damages, has substantially
eroded the breach of peace justification for criminal libel laws. In fact, in
earlier, more violent times, the civil remedy had virtually pre-empted the
field of defamation; except as a weapon against seditious libel, the
criminal prosecution fell into virtual desuetude.[52]
Then, the Court proceeded to consider whether the historical limitation
of the defense of truth in criminal libel to utterances published with good
motives and for justifiable ends:[53]
. . . The good motives restriction incorporated in many state constitutions
and statutes to reflect Alexander Hamiltons unsuccessfully urged
formula in People v. Croswell, liberalized the common-law rule denying
any defense for truth. . . . In any event, where the criticism is of public
officials and their conduct of public business, the interest in private
reputation is overborne by the larger public interest, secured by the
Constitution, in the dissemination of truth. . . .
Moreover, even where the utterance is false, the great principles of the
Constitution which secure freedom of expression in this area preclude
attaching adverse consequences to any except the knowing or reckless
falsehood. Debate on public issues will not be uninhibited if the speaker
must run the risk that it will be proved in court that he spoke out of hatred;
even if he did speak out of hatred, utterances honestly believed
contribute to the free interchange of ideas and the ascertainment of
truth. . . .[54]
Lest the impression be laid that criminal libel law was rendered extinct
in regards to public officials, the Court made this important qualification
in Garrison:
The use of calculated falsehood, however, would put a different cast on
the constitutional question. Although honest utterance, even if
inaccurate, may further the fruitful exercise of the right of free speech, it
does not follow that the lie, knowingly and deliberately published about
a public official, should enjoy a like immunity. At the time the First
Amendment was adopted, as today, there were those unscrupulous
enough and skillful enough to use the deliberate or reckless falsehood
as an effective political tool to unseat the public servant or even topple
an administration. That speech is used as a tool for political ends does
not automatically bring it under the protective mantle of the Constitution.
For the use of the known lie as a tool is at once with odds with the
which economic, social, or political change is to be effected.[55]
Another ruling crucial to the evolution of our understanding was Curtis
Publishing Co. v. Butts,[56] which expanded the actual malice test to
cover not just public officials, but also public figures. The U.S. Supreme
Court, speaking through Chief Justice Warren, stated that:
[D]ifferentiation between public figures and public officials and adoption
of separate standards of proof for each have no basis in law, logic, or
First Amendment policy. Increasingly in this country, the distinctions
between governmental and private sectors are blurred. . . . [I]t is plain
that although they are not subject to the restraints of the political
process, public figures, like public officials, often play an influential role
in ordering society. And surely as a class these public figures have as
ready access as public officials to mass media of communication, both
to influence policy and to counter criticism of their views and activities.
Our citizenry has a legitimate and substantial interest in the conduct of
such persons, and freedom of the press to engage in uninhibited debate
about their involvement in public issues and events is as crucial as it is
in the case of public officials. The fact that they are not amenable to the
restraints of the political process only underscores the legitimate and
substantial nature of the interest, since it means that public opinion may
be the only instrument by which society can attempt to influence their
conduct.[57]
The public figure concept was later qualified in the case of Gertz v.
Welch, Inc.,[58] which held that a private person should be able to
recover damages without meeting the New York Times standard.[59] In
doing so, the US Supreme Court recognized the legitimate state interest
in compensating private individuals for wrongful injury to reputation.[60]
The prominent American legal commentator, Cass Sunstein, has
summarized the current American trend in libel law as follows:
[C]onsider the law of libel. Here we have an explicit system of free
speech tiers. To simplify a complex body of law: In the highest, most-
speech protective tier is libelous speech directed against a public figure.
Government can allow libel plaintiffs to recover damages as a result of
such speech if and only if the speaker had actual malicethat is, the
speaker must have known that the speech was false, or he must have
been recklessly indifferent to its truth or falsity. This standard means that
the speaker is protected against libel suits unless he knew that he was
lying or he was truly foolish to think that he was telling the truth. A person
counts as a public figure (1) if he is a public official in the sense that he
works for the government, (2) if, while not employed by government, he
otherwise has pervasive fame or notoriety in the community, or (3) if he
has thrust himself into some particular controversy in order to influence
its resolution. Thus, for example, Jerry Falwell is a public figure and, as
a famous case holds, he is barred from recovering against a magazine
that portrays him as having had sex with his mother. Movie stars and
famous athletes also qualify as public figures. False speech directed
against public figures is thus protected from libel actions except in quite
extreme circumstances.[61]
It may also be noted that this heightened degree of protection afforded
to free expression to comment on public figures or matters against
criminal prosecution for libel has also gained a foothold in Europe. Article
10 of the European Convention on Human Rights and Fundamental
Freedoms provides that [e]veryone has the right to freedom of
expression. This right shall include freedom to hold opinions and to
receive and impart information and ideas without interference by public
authority and regardless of frontiers.[62] The European Court of Human
Rights applied this provision in Lingens v. Austria,[63] in ruling that the
Republic of Austria was liable to pay monetary damages as just
satisfaction to a journalist who was found guilty for defamation under the
Austrian Criminal Code.[64] The European Court noted:
[Article 10] is applicable not only to information or ideas that are
favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb. Such are the
demands of that pluralism, tolerance and broadmindedness without
which there is no democratic society. . . . These principles are of
particular importance as far as the press is concerned. Whilst the press
must not overstep the bounds set, inter alia, for the protection of the
reputation of others, it is nevertheless incumbent on it to impart
information and ideas on political issues just as on those in other areas
of public interest. Not only does the press have the task of imparting
such information and ideas: the public also has the right to receive them.
. . .[65]
The international trend in diminishing the scope, if not the viability, of
criminal libel prosecutions is clear. Most pertinently, it is also evident in
our own acceptance in this jurisdiction of the principles applied by the
U.S. Supreme Court in cases such as New York Times and Garrison.
Particularly, this Court has accepted the proposition that the actual
malice standard governs the prosecution of criminal libel cases
concerning public figures. In Adiong v. COMELEC,[66] the Court
cited New York Times in noting that [w]e have adopted the principle that
debate on public issues should be uninhibited, robust, and wide open
and that it may well include vehement, caustic and sometimes
unpleasantly sharp attacks on government and public officials.[67] The
Court was even more explicit in its affirmation of New York
Times in Vasquez v. Court of Appeals.[68] Speaking through Justice
Mendoza:
For that matter, even if the defamatory statement is false, no liability can
attach if it relates to official conduct, unless the public official concerned
proves that the statement was made with actual malice that is, with
knowledge that it was false or with reckless disregard of whether it was
false or not. This is the gist of the ruling in the landmark case of New
York Times v. Sullivan, which this Court has cited with approval in
several of its own decisions.[[69]] This is the rule of "actual malice." In
this case, the prosecution failed to prove not only that the charges made
by petitioner were false but also that petitioner made them with
knowledge of their falsity or with reckless disregard of whether they were
false or not.[70]
 Complainant Is a Public Figure

The Court has likewise extended the actual malice rule to apply not only
to public officials, but also to public

There should be little controversy in holding that complainant is a public

figure. He is a broadcast journalist hosting two radio programs aired over
a large portion of the Visayas and Mindanao. Measured against the
definition provided in Ayer, complainant would definitely qualify as a
figures. In Ayer Productions Pty. Ltd. v. Capulong,[71] the Court cited
public figure. Complainant even asserted before the trial court that his
with approval the following definition of a public figure propounded by an
broadcast was listened to widely, hence, his notoriety is unquestionable.
American textbook on torts:

Complainants standing as a public figure is further militated by the

A public figure has been defined as a person who, by his
contextual circumstances of the case. The newspaper in question, the
accomplishments, fame, or mode of living, or by adopting a profession
Sunday Post, is particularly in circulation in the areas where
or calling which gives the public a legitimate interest in his doings, his
complainants broadcasts were aired. Certainly, it cannot be denied that
affairs, and his character, has become a 'public personage.' He is, in
the target audience of the newspaper were the same persons who may
other words, a celebrity. Obviously to be included in this category are
have listened regularly to the complainants broadcast. Even if the
those who have achieved some degree of reputation by appearing
sphere of complainants renown is limited in geography, it is in the same
before the public, as in the case of an actor, a professional baseball
plane as the circulation of the offending newspaper. The extent of
player, a pugilist, or any other entertainer. The list is, however, broader
complainants ability to influence hearts and minds through his
than this. It includes public officers, famous inventors and explorers, war
broadcasts need not be established, only that he has such capacity and
heroes and even ordinary soldiers, an infant prodigy, and no less a
willingness to exert an influence. Complainants volition to practice the
personage than the Grand Exalted Ruler of a lodge. It includes, in short,
radio broadcasting profession necessarily thrusts him in the public
anyone who has arrived at a position where public attention is focused
sphere.
upon him as a person.[72]

Actual Malice Not Proven

Ayer did not involve a prosecution for libel, but a complaint for injunction
on the filming of a dramatized account of the 1986 EDSA Revolution.
Nonetheless, its definition of a public figure is important to this case, as
As it has been established that complainant was a public figure, it was
it clearly establishes that even non-governmental officials are
incumbent upon the prosecution to prove actual malice on the part of
considered public figures. In fact, the definition propounded in Ayer was
Lim and petitioner when the latter published the article subject matter of
expressly applied by the Court in Borjal v. Court of Appeals[73] in
the complaint. Set otherwise, the prosecution must have established
ascertaining whether the complainant therein was a public figure, thus
beyond reasonable doubt that the defendants knew the statements in
warranting the application of the actual malice test.[74]
the advertisement was false or nonetheless proceeded with reckless
disregard as to publish it whether or not it was true.

We considered the following proposition as settled in this jurisdiction:

that in order to justify a conviction for criminal libel against a public figure,
It should thus proceed that if the statements made against the public
it must be established beyond reasonable doubt that the libelous
figure are essentially true, then no conviction for libel can be had. Any
statements were made or published with actual malice, meaning
statement that does not contain a provably false factual connotation will
knowledge that the statement was false or with reckless disregard as to
receive full constitutional protection.[75] An examination of the records
whether or not it was true. As applied to the present petition, there are
of this case showed that the prcis of information contained in the
two main determinants: whether complainant is a public figure, and
questioned publication were actually true. Thus, complainant himself
assuming that he is, whether the publication of the subject
testified:
advertisement was made with actual malice. Sadly, the RTC and the CA
failed to duly consider both propositions.
Q But is it true that these cases published in Exhibit F-1 are actually A: Yes.
existing or previous cases?

A At the time of the publication those cases were terminated, long

terminated.
Q But is it true that in fact, there was a criminal case No. R-43035 for
Malicious Mischief filed May 10, 1979 against you?
Q: Is it true that there was also a criminal case filed against you
numbered 14843-R for Serious Physical Injuries, date filed April 28,
1980 which in this publication appears provisionally dismissed April 14,
1991?
A: That case, I do not have any idea about it.

FISCAL ROCAMORA: Q: Did you inquire from the appropriate Court when you received a copy
of this to find out if it is true that these cases were filed against you?

A: As far as I know, in fact, I never received any subpoena or anything

Your Honor, I believe the witness did not understand the question.
about this case.

COURT: (to Stenographer)

Q: Yes, but did you upon receipt of Exhibit F-1, did you inquire from the
Court whether it is true that these cases had been recorded as filed
against you?
Read back the question.
A: Well, as far as I know like the Estafa case, I was already long been
acquitted in that case.

Q Is it true that in fact, there was a criminal case No. R-43035 for
Malicious Mischief filed May 10, 1979, against you?
Q: You did not answer the question. Will you please answer.
A I really do not know about that accusation.

COURT: (to witness)

Q: The question is, did you inquire from the Court concerned whether
that case exist?

COURT: A: Yes.

Proceed.

ATTY. FLORIDO: COURT:

Q When you came across the publication, did you check if in fact there Proceed.
was a case docketed with that number against you? Did you check?

A I did not.
ATTY. FLORIDO:

Q: Now, is it true that there was a criminal case against you for Estafa
docketed as criminal case No. 17984-R filed July 21, 1982 where the
complaints were Pio Go and Mrs. Rosalita Roldan?
Q: And you discovered that they were true that this was provisionally
dismissed with reference to 14843-R for Serious Physical Injuries. You
made inquiries?
A: Yes.
Q: And you also know that Dr. Jovenal Almendras your godfather in the
wedding had also filed a case of Malicious Mischief against you?
A: I know but that was in the past.
Q: Yes, I know that that was in the past, but that is true?
A: Yes.
Q: So, there is nothing false so far as Exhibit F-1?
A: There is no question about that but that is malicious.
Q: Let me see. On the lefthand side of the bottom it says. Not too long
ago, I received the following newspaper clippings courtesy of the Cebu
City concerned citizens. The caption story below tells all. If you know
who the businessman alluded to in the caption. Please do tells me and
then, there is a photograph a reprint from Sun Star publication. Do you
confirm that?[76]
xxx
Q: But is it true that you were arrested per this photograph and I quote.
In a plush uptown hotel was disturbed by operatives (right) of the Cebu
City Police under Police Lieutenant Col. Eduardo Ricardo just to serve
on the former a warrant of arrest issued by the Cebu RTC Judge
German Lee relative to the suit filed by Apocemco against a
businessman. Is it true that you were arrested?
A: Yes.
Q: So this photograph is genuine photograph?
A: Yes.
Q: And you claimed that you have a good reputation and that good
reputation had been soiled by the accused in this case. Let me ask you
concerning your reputation then. Is it not a fact that aside from this
record of criminal cases appearing in Exhibit F-1, you have also been at
one time or another been accused of several other criminal cases both
in and out of the City of Cebu?
A: Yes, before, 10 years, 15 years ago.
Q: And in the Municipal Trial Court in Cities alone in Cebu City, you have
the following per certificate which we marked as Exhibit 2. Criminal Case
Nos. 14843-R for Serious Physical Injuries, Torralba Cirse Choy; 17984-
R, for Estafa; Torralba Cirse R. R-43035 for Malicious Mischief. You will
confirm that the same Cirse Torralba and/or Choy Torralba and/or Cirse
R. Torralba mentioned in this certificate refer to your person?
A: Yes.
Q: Now, aside from these criminal cases in the Municipal Trial Courts in
Cities, in Cebu City, you also have 1, 2, 3, 4, 5, 6, 7, 8, 9 criminal cases
before the Regional Trial Court of Cebu per certificate that I marked as
Exhibit 3. Is that correct?
A: Yes, but all those cases have already been either acquitted or
dismissed. I will present the certification.
Q: Specifically, these cases has something to do with your character.
Let me count 1, 2, 3, 4, 5 cases for Estafa, the 6th case for issuance of
a bouncing check, the 7th case is a case for issuance of a bouncing
check; and the 9th is also for issuance of a bouncing check. You will
confirm that?
....
COURT: (to witness)
Q: What happened to those cases?
A: I was acquitted your Honor. I was acquitted in all those cases, some
are dismissed, and fortunately, your Honor, I do not have any
conviction.[77]
From the foregoing, it is clear that there was nothing untruthful about
what was published in the Sunday Post. The criminal cases listed in the
advertisement as pending against the complainant had indeed been
filed. It may have been inconvenient for the complainant that these
matters may have been divulged, yet such information hardly falls within
any realm of privacy complainant could invoke, since the pendency of defense, much more in the case when the statements in question
these criminal charges are actually matters of public record. address public issues or involve public figures.

The information, moreover, went into the very character and integrity of In ascertaining the degree of falsity that would constitute actual malice,
complainant to which his listening public has a very legitimate interest. the Court, citing New York Times, has even gone so far as
Complainant hosts a public affairs program, one which he himself acknowledging:
claimed was imbued with public character since it deals with corruptions
in government, corruptions by public officials, irregularities in
government in comrades.[78] By entering into this line of work,
complainant in effect gave the public a legitimate interest in his life. He
likewise gave them a stake in finding out if he himself had the integrity Even assuming that the contents of the articles are false, mere error,

and character to have the right to criticize others for their conduct. inaccuracy or even falsity alone does not prove actual malice. Errors or
misstatements are inevitable in any scheme of truly free expression and
debate. Consistent with good faith and reasonable care, the press
should not be held to account, to a point of suppression, for honest
In convicting the defendants, the lower courts paid particular heed to
mistakes or imperfections in the choice of language. There must be
Article 354 of the Revised Penal Code, which provides that every
some room for misstatement of fact as well as for misjudgment. Only by
defamatory imputation is presumed to be malicious, even if it be true, if
giving them much leeway and tolerance can they courageously and
no good intention and justifiable motive for making it is shown. We hold
effectively function as critical agencies in our democracy. In Bulletin
that this provision, as applied to public figures complaining of criminal
Publishing Corp. v. Noel we held
libel, must be construed in light of the constitutional guarantee of free
expression, and this Courts precedents upholding the standard of actual
malice with the necessary implication that a statement regarding a public
figure if true is not libelous. The provision itself allows for such leeway, A newspaper especially one national in reach and coverage, should be

accepting as a defense good intention and justifiable motive. The free to report on events and developments in which the public has a

exercise of free expression, and its concordant assurance of legitimate interest with minimum fear of being hauled to court by one

commentary on public affairs and public figures, certainly qualify as group or another on criminal or civil charges for libel, so long as the

justifiable motive, if not good intention. newspaper respects and keeps within the standards of morality and
civility prevailing within the general community.

It cannot be helped if the commentary protected by the Bill of Rights is

accompanied by excessive color or innuendo. Certainly, persons in
possession of truthful facts are not obliged to present the same in bland
To avoid the self-censorship that would necessarily accompany strict
fashion. These true facts may be utilized to convince the listener/reader
liability for erroneous statements, rules governing liability for injury to
against a particular position, or to even dissuade one against accepting
reputation are required to allow an adequate margin of error by
the credibility of a public figure. Dry facts, by themselves, are hardly
protecting some inaccuracies. It is for the same reason that the New
stirring. It is the commentary thereupon that usually animates the
York Times doctrine requires that liability for defamation of a public
discourse which is encouraged by the Constitution as integral to the
official or public figure may not be imposed in the absence of proof of
democratic way of life. This is replete in many components of our daily
"actual malice" on the part of the person making the libelous
life, such as political addresses, televised debates, and even
statement.[79]
commercial advertisements.

As adverted earlier, the guarantee of free speech was enacted to protect

not only polite speech, but even expression in its most unsophisticated
form. Criminal libel stands as a necessary qualification to any absolutist
interpretation of the free speech clause, if only because it prevents the
proliferation of untruths which if unrefuted,
would gain an undue influence in the public discourse. But in order to
safeguard against fears that the public debate might be muted due to
the reckless enforcement of libel laws, truth has been sanctioned as a
To this end, the publication of the subject advertisement by petitioner
and Lim cannot be deemed by this Court to have been done with actual
malice. Aside from the fact that the information contained in said
publication was true, the intention to let the public know the character of
their radio commentator can at best be subsumed under the mantle of
having been done with good motives and for justifiable ends. The
advertisement in question falls squarely within the bounds of
constitutionally protected expression under Section 4, Article III, and MINITA V. CHICO-NAZARIO
thus, acquittal is mandated.
Associate Justice

WHEREFORE, premises considered, the petition is GRANTED. The

assailed Decision and Resolution of the Court of Appeals dated 29 July
1996 and 3 October 1996, respectively, in CA G.R. CR No. 16413 are
REVERSED and SET ASIDE insofar as they affect petitioner.
The Decision of the Regional Trial Court of Cebu City, promulgated on
17 May 1994, as regards petitioner is likewise REVERSED and SET
ASIDE and petitioner is ACQUITTED of the charge of libel therein. No
costs.

SO ORDERED.

ATTESTATION

DANTE O. TINGA Associate Justice

I attest that the conclusions in the above Decision had been in

consultation before the case was assigned to the writer of the opinion of

WE CONCUR: the Courts Division.

REYNATO S. PUNO REYNATO S. PUNO

Associate Justice Associate Justice

Chairman Chairman, Second Division

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairmans Attestation, it is hereby certified that the conclusions in the
above Decision had been reached in consultation before the case was [8]The Court of Appeals lowered the penalty imposed to TWO (2)
assigned to the writer of the opinion of the Courts Division. MONTHS and ONE (1) DAY of arresto mayor, as minimum to ONE (1)
YEAR, EIGHT (8) MONTHS and TWENTY-ONE (21) DAYS of prision
correccional as maximum.

[9]WHEREFORE, the court finds accused SEGUNDO LIM and BOY BG

HILARIO G. DAVIDE, JR. GUINGGING, GUILTY beyond reasonable doubt, as principals of the
crime of libel as charged in the information, defined and penalized in Art.
Chief Justice 353 in relation to Art. 355 of the Revised Penal Code, and hereby
sentences the said accused to a prison term of, ranging from, One (1)
year, Eight (8) months and Twenty-one (21) days as minimum to, Two
(2) years, Eleven (11) months and Eleven (11) days of prision
correccional, as maximum; to indemnify the complainant, damages in
the amount of P50,000.00 and to pay the costs.

SO ORDERED.

[10]RTC Records, p. 178.

[1]Published under the pseudonym Silence Dogood in the New England
Courant (July 2 to 9, 1722 edition).

[11]The two photographs were reprinted from the Sun Star Daily and the
Freeman, newspapers of general circulation in Visayas and Mindanao.
[2]As a matter of fact, the principle is enshrined in Article 19 of the United
Nations Declaration of Human Rights: Everyone has the right to freedom
of opinion and expression; this right includes freedom to hold opinions
[12]Rollo, p. 15.
without interference and to seek, receive and impart information and
ideas through any media and regardless of frontiers.

[13]That on or about the 13th day of October, 1991, in the City of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the said
[3]See Section 4, Article III, CONSTITUTION.
accused, conniving and confederating together and mutually helping
each other, with deliberate intent, with intent to besmirch, dishonor or
discredit the person of one Cirse Choy Torralba and to place him in
[4]Article III, CONSTITUTION.
public contempt and ridicule, did then and there write and publish or
cause to be written and published on the Sunday Post, a newspaper of
wide circulation in the provinces of Cebu and Bohol on its issue on
[5]See People v. Tudtud, G.R. No. 144037, 26 September 2003, 412
October 13, 1991, specifically on page 8 thereof, the context of which is
SCRA 142, 168; Teves v. Sandiganbayan, G.R. No. 154182, 17
hereunder reproduced verbatim, as follows:
December 2004, 447 SCRA 309, 335, J. Tinga, dissenting.

....
[6]Penned by Associate Justice Eduardo G. Montenegro, concurred in
by Associate Justices Emeterio C. Cui and Jose C. De La Rama.

to the damage and prejudice of the said Cirse Choy Torralba.

[7]Rollo, p. 27.

[14]Rollo, p. 13.
[15]RTC Records, p. 180. [30]Wagman, supra note 28 at 146.

[16]TSN, 19 November 1993, pp. 8-9; TSN, 20 January 1994, pp. 7-9. [31]Which reads: Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof,
abridging the freedom of speech, or of the press; or the right of the

[17]RTC Records, p. 183. people peaceably to assemble, and to petition the Government for
redress of grievances.

[18]Id. at 184.
[32]Kenneth Davis, DONT KNOW MUCH ABOUT HISTORY:
EVERYTHING YOU NEED TO KNOW ABOUT AMERICAN HISTORY
BUT NEVER LEARNED (1990), at 41.
[19]Supra. note 13.

[33]1 Stat. 596.

[20]Id. at 185.

[34]In 1801. More than one-hundred fifty years later, Justice Brennan
[21]Ibid.
noted in New York Times v. Sullivan, 376 U.S. 254 (1964), Although the
Sedition Act was never tested in this Court, the attack upon its validity
has carried the day in the court of history. Fines levied in its prosecution
[22]Rollo, p. 22.
were repaid by Act of Congress on the ground that it was
unconstitutional. Id. at 276.

[23]Id. at 6.

[35]In a letter to Col. Edward Carrington dated 16 January 1787.

[24]Borjal v. Court of Appeals, 361 Phil. 1, 7 (1999).

[36]See Gail Collins, SCORPION TONGUES: THE IRRESISTIBLE

HISTORY OF GOSSIP IN AMERICAN POLITICS (1998) at 25.
[25]Art. 353 of the Revised Penal Code.

[37]Id. at 29.
[26]Vicario v. Court of Appeals, et. al., 367 Phil. 292, 297
(1990); citing Daez v. Court of Appeals, G.R. No. 47971, 31 October
1990, 191 SCRA 61, 67.
[38]See id. at 25.

[27]Supra note 24, citing Alfred H. Knight, THE LIFE OF THE LAW,
[39]See Records, pp. 184-185.
Crown Publishers, Inc., New York, 1996, pp. 102, 230 and 231.

[28]Robert J. Wagman, THE FIRST AMENDMENT BOOK (1991) at

144. [40]See Wagman, supra note 28 at 146.

[29]See Record of the Trial of John Peter Zenger (from Zengers 1736 [41]See Laurence H. Tribe, CONSTITUTIONAL CHOICES (1985), at
Narrative), at <http://www.law.umkc.edu/faculty/projects/ftrials/zenger/ 190.
zengerrecord.html> (Last visited, 27 September 2005).

[42]268 U.S. 652 (1925).

[43]This tentative incorporation of the First Amendment in the
Fourteenth Amendment was accepted in subsequent decisions and
moved from dictum to holding in Fiske v. Kansas, the first case to uphold
a defendants claim to protection under the First Amendment. Thomas
Emerson, THE SYSTEM OF FREEDOM OF EXPRESSION (1970) at
103.
[44]See Wagman, supra note 28 at 146.
[45]376 U.S. 254 (1964).
[46]Published by the Committee to Defend Martin Luther King, Jr.
[47]New York Times v. Sullivan, supra note 45 at 258-259.
[48]Id. at 287-288.
[49]Id. at 280.
[50]The U.S. Supreme Court held: A rule compelling the critic of official
conduct to guarantee the truth of all his factual assertionsand to do so
on pain of libel judgments virtually unlimited in amountleads to a
comparable self-censorship. Allowance of the defense of truth, with the
burden of proving it on the defendant, does not mean that only false
speech will be deterred. New York Times v. Sullivan, supra note 45 at
279. Moreover, cited by way of footnote reference is the statement of
John Stuart Mill that Even a false statement may be deemed to make a
valuable contribution to the public debate, since it brings about the
clearer perception and livelier impression of truth, produced by its
collision with error.
[51]379 U.S. 64 (1964).
[52]Id. at 67-69.
[53]The phraseology, similarly adopted in Article 354 of the Revised
Penal Code, was employed as a standard of defense for criminal libel in
several American states. See Footnote 7, Garrison v. Louisiana, ibid.
[54]Id. at 72-74. (Emphasis supplied.)
[55]Id. at 75. Emphasis supplied. It seems that the provision of this
distinction was the cause for three of the Justices sitting in
the Garrisoncase, Justices Hugo Black, William O. Douglas, and Arthur
Goldberg, to concur separately, holding the more absolutist view that the
notion of seditious criminal libel was itself noxious to the Constitution.
[56]388 U.S. 130 (1967).
[57]Id. at 163-164, CJ Warren, concurring. Nonetheless, this passage
from the opinion of Chief Justice Warren acquired precedental value,
four other Justices concurring in the views expressed therein. See id.,
at 133.
[58]418 U.S. 323 (1974).
[59]See Kathleen Sullivan and Gerald Gunther, CONSTITUTIONAL
LAW: FOURTEENTH EDITION (2001) at 1036.
[60]Gertz v. Welch, Inc., supra note 58 at 348.
[61]Cass Sunstein, DEMOCRACY AND THE PROBLEM OF FREE
SPEECH (1995 ed.) at 9-10.
[62]Article 10(1), EUROPEAN CONVENTION ON HUMAN RIGHTS
AND FUNDAMENTAL FREEDOMS.
[63]9815/82 [1986] ECHR 7 (8 July 1986).
[64]Particularly, the defendant Lingens had criticized the former Austrian
Chancellor Bruno Kreisky for protecting a political ally accused of having
earlier served in the German SS.
[65]Lingens v. Austria, supra note 63, at par. 41.
[66]G.R. No. 103956, 31 March 1992, 207 SCRA 712.
[67]Id. at 716. [79]Borjal v. Court of Appeals, supra note 24 at 26-27.

[68]373 Phil. 238 (1999).

[69]Particularly cited are Lopez v. Court of Appeals, 145 Phil. 219

(1970); Mercado v. Court of First Instance, 201 Phil. 565 (1982); Babst
v. National Intelligence Board, 132 SCRA 316, 325 (1984) (Fernando,
C.J., concurring).

[70]Vasquez, supra note 68 at 254.

[71]G.R. Nos. 82380 and 82398, 29 April 1988, 160 SCRA 861.

[72]Id. at 874-875; citing PROSSER AND KEETON ON TORTS, (5th

ed.) at 859-861.

[73]Supra note 24.

[74]The complainant in Borjal was the Executive Director of the First

National Conference on Land Transportation, to be participated in by the
private sector in the transport industry and government agencies
concerned in order to find ways and means to solve the transportation
crisis. Applying the definition in Ayer, the Court concluded that the
complainant was a public figure, and that the actual malice test found
application.

[75]Kathleen Sullivan and Gerald Gunther, supra note 59 at

1032; citing Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). The
opinion therein of Chief Justice Rehnquist nonetheless qualifies, a false
statement of fact gains no constitutional immunity if the speaker simply
adds the words I think.

[76]TSN, 23 April 23 1993, pp. 8-9.

[77]TSN, 23 April 1993, pp. 6-11, 13.

[78]TSN, 15 March 1993, p. 40.

EN BANC

[A.M. No. P-02-1651. August 4, 2003]

ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S.

ESCRITOR, respondent.

DECISION

PUNO, J.:

The case at bar takes us to a most difficult area of constitutional law

where man stands accountable to an authority higher than the state. To
be held on balance are the states interest and the respondents religious
freedom. In this highly sensitive area of law, the task of balancing
between authority and liberty is most delicate because to the person
invoking religious freedom, the consequences of the case are not only
temporal. The task is not made easier by the American origin of our
religion clauses and the wealth of U.S. jurisprudence on these clauses
for in the United States, there is probably no more intensely controverted
area of constitutional interpretation than the religion clauses.[1] The U.S.
Supreme Court itself has acknowledged that in this constitutional area,
there is considerable internal inconsistency in the opinions of the
Court.[2] As stated by a professor of law, (i)t is by now notorious that
legal doctrines and judicial decisions in the area of religious freedom are
in serious disarray. In perhaps no other area of constitutional law have
confusion and inconsistency achieved such undisputed
sovereignty.[3] Nevertheless, this thicket is the only path to take to
conquer the mountain of a legal problem the case at bar presents. Both
the penetrating and panoramic view this climb would provide will largely
chart the course of religious freedom in Philippine jurisdiction. That the
religious freedom question arose in an administrative case involving only
one person does not alter the paramount importance of the question for
the constitution commands the positive protection by government of
religious freedom -not only for a minority, however small- not only for a
majority, however large- but for each of us.[4]
I. Facts
The facts of the case will determine whether respondent will prevail in
her plea of religious freedom. It is necessary therefore to lay down the
facts in detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro
Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch
253, Regional Trial Court of Las Pias City, requesting for an investigation
of rumors that respondent Soledad Escritor, court interpreter in said
court, is living with a man not her husband. They allegedly have a child
of eighteen to twenty years old. Estrada is not personally related either
to Escritor or her partner and is a resident not of Las Pias City but of
Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he
believes that she is committing an immoral act that tarnishes the image
of the court, thus she should not be allowed to remain employed therein
as it might appear that the court condones her act.[5]
Judge Caoibes referred the letter to Escritor who stated that there is no
truth as to the veracity of the allegation and challenged Estrada to
appear in the open and prove his allegation in the proper
forum.[6] Judge Caoibes set a preliminary conference on October 12,
2000.Escritor moved for the inhibition of Judge Caoibes from hearing
her case to avoid suspicion and bias as she previously filed an
administrative complaint against him and said case was still pending in
the Office of the Court Administrator (OCA). Escritors motion was
denied. The preliminary conference proceeded with both Estrada and
Escritor in attendance. Estrada confirmed that he filed the letter-
complaint for immorality against Escritor because in his frequent visits
to the Hall of Justice of Las Pias City, he learned from conversations
therein that Escritor was living with a man not her husband and that she
had an eighteen to twenty-year old son by this man. This prompted him
to write to Judge Caoibes as he believed that employees of the judiciary
should be respectable and Escritors live-in arrangement did not
command respect.[7]
Respondent Escritor testified that when she entered the judiciary in
1999,[8] she was already a widow, her husband having died in
1998.[9] She admitted that she has been living with Luciano Quilapio,
Jr. without the benefit of marriage for twenty years and that they have a
son.But as a member of the religious sect known as the Jehovahs
Witnesses and the Watch Tower and Bible Tract Society, their conjugal
arrangement is in conformity with their religious beliefs. In fact, after ten
years of living together, she executed on July 28, 1991 a Declaration of
Pledging Faithfulness, viz:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have accepted Luciano
D. Quilapio, Jr., as my mate in marital relationship; that I have done all
within my ability to obtain legal recognition of this relationship by the
proper public authorities and that it is because of having been unable to
do so that I therefore make this public declaration pledging faithfulness
in this marital relationship.
I recognize this relationship as a binding tie before Jehovah God and
before all persons to be held to and honored in full accord with the
principles of Gods Word. I will continue to seek the means to obtain legal
recognition of this relationship by the civil authorities and if at any future
time a change in circumstances make this possible, I promise to legalize
this union.
Signed this 28th day of July 1991.[10]
Escritors partner, Quilapio, executed a similar pledge on the same
day.[11] Both pledges were executed in Atimonan, Quezon and signed
by three witnesses. At the time Escritor executed her pledge, her
husband was still alive but living with another woman. Quilapio was
likewise married at that time, but had been separated in fact from his
wife. During her testimony, Escritor volunteered to present members of
her congregation to confirm the truthfulness of their Declarations of
Pledging Faithfulness, but Judge Caoibes deemed it unnecessary and
considered her identification of her signature and the signature of
Quilapio sufficient authentication of the documents.[12]
Judge Caoibes endorsed the complaint to Executive Judge Manuel B.
Fernandez, Jr., who, in turn, endorsed the same to Court Administrator
Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation
of Acting Court Administrator Zenaida N. Elepao, directed Escritor to
comment on the charge against her. In her comment, Escritor reiterated
her religious congregations approval of her conjugal arrangement with
Quilapio, viz:
Herein respondent does not ignore alleged accusation but she reiterates
to state with candor that there is no truth as to the veracity of same
allegation.Included herewith are documents denominated as
Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed
by both respondent and her mate in marital relationship with the
witnesses concurring their acceptance to the arrangement as approved
by the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine
Branch.
Same marital arrangement is recognized as a binding tie before
JEHOVAH God and before all persons to be held to and honored in full
accord with the principles of Gods Word.
xxx xxx xxx
Undersigned submits to the just, humane and fair discretion of the Court
with verification from the WATCH TOWER BIBLE and TRACT
SOCIETY, Philippine Branch . . . to which undersigned believes to be a
high authority in relation to her case.[13]
Deputy Court Administrator Christopher O. Lock recommended that the
case be referred to Executive Judge Bonifacio Sanz Maceda, RTC
Branch 255, Las Pias City for investigation, report and
recommendation. In the course of Judge Macedas investigation,
Escritor again testified that her congregation allows her conjugal
arrangement with Quilapio and it does not consider it immoral. She
offered to supply the investigating judge some clippings which explain
the basis of her congregations belief and practice regarding her conjugal
arrangement.Escritor started living with Quilapio twenty years ago when
her husband was still alive but living with another woman. She met this
woman who confirmed to her that she was living with her (Escritors)
husband.[14]
Gregorio Salazar, a member of the Jehovahs Witnesses since 1985,
also testified. He had been a presiding minister since 1991 and in such
capacity is aware of the rules and regulations of their congregation. He
explained the import of and procedure for executing a Declaration of
Pledging Faithfulness, viz:
Q: Now, insofar as the pre-marital relationship is concern (sic), can you
cite some particular rules and regulations in your congregation?
A: Well, we of course, talk to the persons with regards (sic) to all the
parties involved and then we request them to execute a Public
Declaration of Pledge of faithfulness.
Q: What is that document?
A: Declaration of Pledge of faithfulness.
Q: What are the relations of the document Declaration of Pledge of
faithfulness, who are suppose (sic) to execute this document?
A: This must be signed, the document must be signed by the elders of
the congregation; the couple, who is a member (sic) of the congregation,
baptized member and true member of the congregation.
Q: What standard rules and regulations do you have in relation with this
document?
A: Actually, sir, the signing of that document, ah, with the couple has
consent to marital relationship (sic) gives the Christian Congregation
view that the couple has put themselves on record before God and man
that they are faithful to each other. As if that relation is validated by God.
Q: From your explanation, Minister, do you consider it a pledge or a
document between the parties, who are members of the congregation?
A: It is a pledge and a document. It is a declaration, pledge of a (sic)
pledge of faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am the one
who contracted with the opposite member of my congregation, opposite
sex, and that this document will give us the right to a marital relationship.
Q: So, in short, when you execute a declaration of pledge of faithfulness,
it is a preparation for you to enter a marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or living
under the same roof?
A: Well, the Pledge of faithfulness document is (sic) already approved
as to the marital relationship.
Q: Do you mean to say, Minister, by executing this document the
contracting parties have the right to cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of
Faithfulness as we Christians follow. The basis is herein stated in the
Book of Matthew, Chapter Five, Verse Twenty-two. So, in that verse of
the Bible, Jesus said that everyone divorcing his wife, except on account
of fornication, makes her a subject for adultery, and whoever marries a
divorced woman commits adultery.[15]
Escritor and Quilapio transferred to Salazars Congregation, the
Almanza Congregation in Las Pias, in May 2001. The declarations
having been executed in Atimonan, Quezon in 1991, Salazar had no
personal knowledge of the personal circumstances of Escritor and
Quilapio when they executed their declarations. However, when the two
transferred to Almanza, Salazar inquired about their status from the
Atimonan Congregation, gathered comments of the elders therein, and
requested a copy of their declarations. The Almanza Congregation
assumed that the personal circumstances of the couple had been
considered by the Atimonan Congregation when they executed their
declarations.
Escritor and Quilapios declarations are recorded in the Watch Tower
Central office. They were executed in the usual and approved form
prescribed by the Watch Tower Bible and Tract Society which was lifted
from the article, Maintaining Marriage in Honor Before God and
Men, [16] in the March 15, 1977 issue of the Watch Tower magazine,
entitled The Watchtower.
The declaration requires the approval of the elders of the Jehovahs
Witnesses congregation and is binding within the congregation all over
the world except in countries where divorce is allowed. The Jehovahs
congregation requires that at the time the declarations are executed, the
couple cannot secure the civil authorities approval of the marital
relationship because of legal impediments. It is thus standard practice
of the congregation to check the couples marital status before giving
imprimatur to the conjugal arrangement. The execution of the
declaration finds scriptural basis in Matthew 5:32 that when the spouse
commits adultery, the offended spouse can remarry. The marital status
of the declarants and their respective spouses commission of adultery
are investigated before the declarations are executed. Thus, in the case
of Escritor, it is presumed that the Atimonan Congregation conducted an
investigation on her marital status before the declaration was approved
and the declaration is valid everywhere, including the Almanza
Congregation. That Escritors and Quilapios declarations were approved
are shown by the signatures of three witnesses, the elders in the
Atimonan Congregation. Salazar confirmed from the congregations
branch office that these three witnesses are elders in the Atimonan
Congregation. Although in 1998 Escritor was widowed, thereby lifting
the legal impediment to marry on her part, her mate is still not
capacitated to remarry. Thus, their declarations remain valid.Once all
legal impediments for both are lifted, the couple can already register
their marriage with the civil authorities and the validity of the declarations
ceases. The elders in the congregations can then solemnize their
marriage as authorized by Philippine law. In sum, therefore, insofar as
the congregation is concerned, there is nothing immoral about the
conjugal arrangement between Escritor and Quilapio and they remain
members in good standing in the congregation.[17]
Salvador Reyes, a minister at the General de Leon, Valenzuela City
Congregation of the Jehovahs Witnesses since 1974 and member of the
headquarters of the Watch Tower Bible and Tract Society of the
Philippines, Inc., presented the original copy of the magazine article
entitled, Maintaining Marriage Before God and Men to which Escritor
and Minister Salazar referred in their testimonies. The article appeared
in the March 15, 1977 issue of the Watchtower magazine published in
Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower
Bible and Tract Society of the Philippines, Inc., authorized Reyes to
represent him in authenticating the article. The article is distributed to
the Jehovahs Witnesses congregations which also distribute them to the
public.[18]
The parties submitted their respective memoranda to the investigating
judge. Both stated that the issue for resolution is whether or not the
relationship between respondent Escritor and Quilapio is valid and
binding in their own religious congregation, the Jehovahs
Witnesses.Complainant Estrada adds however, that the effect of the
relationship to Escritors administrative liability must likewise be
determined.Estrada argued, through counsel, that the Declaration of
Pledging Faithfulness recognizes the supremacy of the proper public
authorities such that she bound herself to seek means to . . . legalize
their union. Thus, even assuming arguendo that the declaration is valid
and binding in her congregation, it is binding only to her co-members in
the congregation and serves only the internal purpose of displaying to
the rest of the congregation that she and her mate are a respectable and
morally upright couple. Their religious belief and practice, however,
cannot override the norms of conduct required by law for government
employees. To rule otherwise would create a dangerous precedent as
those who cannot legalize their live-in relationship can simply join the
Jehovahs Witnesses congregation and use their religion as a defense
against legal liability.[19]
On the other hand, respondent Escritor reiterates the validity of her
conjugal arrangement with Quilapio based on the belief and practice of
her religion, the Jehovahs Witnesses. She quoted portions of the
magazine article entitled, Maintaining Marriage Before God and Men, in
her memorandum signed by herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits 1 and 2) executed
by the respondent and her mate greatly affect the administrative liability
of respondent. Jehovahs Witnesses admit and recognize (sic) the
supremacy of the proper public authorities in the marriage
arrangement. However, it is helpful to understand the relative nature of
Caesars authority regarding marriage. From country to country,
marriage and divorce legislation presents a multitude of different angles
and aspects. Rather than becoming entangled in a confusion of
technicalities, the Christian, or the one desiring to become a disciple of
Gods Son, can be guided by basic Scriptural principles that hold true in
all cases.
Gods view is of first concern. So, first of all the person must consider
whether that ones present relationship, or the relationship into which he
or she contemplates entering, is one that could meet with Gods
approval, or whether in itself, it violates the standards of Gods
Word. Take, for example, the situation where a man lives with a wife but
also spends time living with another woman as a concubine. As long as
such a state of concubinage prevails, the relationship of the second
woman can never be harmonized with Christian principles, nor could any
declaration on the part of the woman or the man make it so. The only
right course is cessation of the relationship. Similarly with an incestuous
relationship with a member of ones immediate family, or a homosexual
relationship or other such situation condemned by Gods Word. It is not
the lack of any legal validation that makes such relationships
unacceptable; they are in themselves unscriptural and hence,
immoral. Hence, a person involved in such a situation could not make
any kind of Declaration of Faithfulness, since it would have no merit in
Gods eyes.
If the relationship is such that it can have Gods approval, then, a second
principle to consider is that one should do all one can to establish the
honorableness of ones marital union in the eyes of all. (Heb. 13:4). If
divorce is possible, then such step should now be taken so that, having
obtained the divorce (on whatever legal grounds may be available), the
present union can receive civil validation as a recognized marriage.
Finally, if the marital relationship is not one out of harmony with the
principles of Gods Word, and if one has done all that can reasonably be
done to have it recognized by civil authorities and has been blocked in
doing so, then, a Declaration Pledging Faithfulness can be signed. In
some cases, as has been noted, the extreme slowness of official action
may make accomplishing of legal steps a matter of many, many years
of effort. Or it may be that the costs represent a crushingly heavy burden
that the individual would need years to be able to meet. In such cases,
the declaration pledging faithfulness will provide the congregation with
the basis for viewing the existing union as honorable while the individual
continues conscientiously to work out the legal aspects to the best of his
ability.
Keeping in mind the basic principles presented, the respondent as a
Minister of Jehovah God, should be able to approach the matter in a
balanced way, neither underestimating nor overestimating the validation
offered by the political state. She always gives primary concern to Gods
view of the union.Along with this, every effort should be made to set a
fine example of faithfulness and devotion to ones mate, thus, keeping
the marriage honorable among all. Such course will bring Gods blessing
and result to the honor and praise of the author of marriage, Jehovah
God. (1 Cor. 10:31-33)[20]
Respondent also brought to the attention of the investigating judge that
complainants Memorandum came from Judge Caoibes
chambers[21] whom she claims was merely using petitioner to malign
her.
In his Report and Recommendation, investigating judge Maceda found
Escritors factual allegations credible as they were supported by
testimonial and documentary evidence. He also noted that (b)y strict
Catholic standards, the live-in relationship of respondent with her mate
should fall within the definition of immoral conduct, to wit: that which is
willful, flagrant, or shameless, and which shows a moral indifference to
the opinion of the good and respectable members of the community (7
Respondent is charged with committing gross and immoral conduct
under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer or employee in
the Civil Service shall be suspended or dismissed except for cause as
provided by law and after due process.
(b) The following shall be grounds for disciplinary action:
xxx xxx xxx
(5) Disgraceful and immoral conduct; xxx.

C.J.S. 959) (Delos Reyes vs. Aznar, 179 SCRA, at p. 666). He pointed
out, however, that the more relevant question is whether or not to exact
from respondent Escritor, a member of Jehovahs Witnesses, the strict
moral standards of the Catholic faith in determining her administrative
responsibility in the case at bar.[22] The investigating
acknowledged that religious freedom is a fundamental right which is
entitled to the highest priority and the amplest protection among human
rights, for it involves the relationship of man to his Creator (at p. 270,
EBRALINAG supra, citing Chief Justice Enrique M. Fernandos separate
opinion in German vs. Barangan, 135 SCRA 514, 530-531) and thereby
recommended the dismissal of the complaint against Escritor.[23]
After considering the Report and Recommendation of Executive Judge
Maceda, the Office of the Court Administrator, through Deputy Court
Administrator (DCA) Lock and with the approval of Court Administrator
Presbitero Velasco, concurred with the factual findings of Judge Maceda
but departed from his recommendation to dismiss the complaint. DCA
Lock stressed that although Escritor had become capacitated to marry
by the time she joined the judiciary as her husband had died a year
before, it is due to her relationship with a married man, voluntarily carried
on, that respondent may still be subject to disciplinary
action.[24] Considering the ruling of the Court in Dicdican v. Fernan, et
al.[25] that court personnel have been enjoined to adhere to the exacting
standards of morality and decency in their professional and private
conduct in order to preserve the good name and integrity of the court of
justice, DCA Lock found Escritors defense of freedom of religion
unavailing to warrant dismissal of the charge of immorality. Accordingly,
he recommended that respondent be found guilty of immorality and that
she be penalized with suspension of six months and one day without
pay with a warning that a repetition of a similar act will be dealt with more
severely in accordance with the Civil Service Rules.[26]
II. Issue
Whether or not respondent should be found guilty of the administrative
charge of gross and immoral conduct. To resolve this issue, it is
necessary to determine the sub-issue of whether or not respondents
right to religious freedom should carve out an exception from the
prevailing jurisprudence on illicit relations for which government
employees are held administratively liable.
Not represented by counsel, respondent, in laymans terms, invokes the
religious beliefs and practices and moral standards of her religion, the
Jehovahs Witnesses, in asserting that her conjugal arrangement with a
man not her legal husband does not constitute disgraceful and immoral
judge
conduct for which she should be held administratively liable. While not
articulated by respondent, she invokes religious freedom under Article
III, Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment
of religious profession and worship, without discrimination or preference,
shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.
IV. Old World Antecedents of the American Religion Clauses
To understand the life that the religion clauses have taken, it would be
well to understand not only its birth in the United States, but its
conception in the Old World. One cannot understand, much less
intelligently criticize the approaches of the courts and the political
branches to religious freedom in the recent past in the United States
without a deep appreciation of the roots of these controversies in the
ancient and medieval world and in the American experience.[27] This
fresh look at the religion clauses is proper in deciding this case of first
impression.
In primitive times, all of life may be said to have been religious. Every
significant event in the primitive mans life, from birth to death, was
marked by religious ceremonies. Tribal society survived because
religious sanctions effectively elicited adherence to social customs. A
person who broke a custom violated a taboo which would then bring
upon him the wrathful vengeance of a superhuman mysterious
power.[28] Distinction between the religious and non-religious would
thus have been meaningless to him. He sought protection from all kinds
of evil - whether a wild beast or tribe enemy and lightning or wind - from
the same person. The head of the clan or the Old Man of the tribe or the
king protected his wards against both human and superhuman
enemies. In time, the king not only interceded for his people with the
divine powers, but he himself was looked upon as a divine being and his
laws as divine decrees.[29]

III. Applicable Laws

Time came, however, when the function of acting as intermediary
between human and spiritual powers became sufficiently differentiated
from the responsibility of leading the tribe in war and policing it in peace
as to require the full-time services of a special priest class. This saw the
birth of the social and communal problem of the competing claims of the
king and priest. Nevertheless, from the beginning, the king and not the
priest was superior. The head of the tribe was the warrior, and although
he also performed priestly functions, he carried out these functions
because he was the head and representative of the community.[30]
There being no distinction between the religious and the secular, the
same authority that promulgated laws regulating relations between man
and man promulgated laws concerning mans obligations to the
supernatural. This authority was the king who was the head of the state
and the source of all law and who only delegated performance of rituals
and sacrifice to the priests. The Code of Hammurabi, king of Babylonia,
imposed penalties for homicide, larceny, perjury, and other crimes;
regulated the fees of surgeons and the wages of masons and tailors and
prescribed rules for inheritance of property;[31] and also catalogued the
gods and assigned them their places in the divine hierarchy so as to put
Hammurabis own god to a position of equality with existing gods.[32] In
sum, the relationship of religion to the state (king) in pre-Hebreic times
may be characterized as a union of the two forces, with the state almost
universally the dominant partner.[33]
With the rise of the Hebrew state, a new term had to be coined to
describe the relation of the Hebrew state with the Mosaic
religion: theocracy. The authority and power of the state was ascribed
to God.[34] The Mosaic creed was not merely regarded as the religion
of the state, it was (at least until Saul) the state itself. Among the
Hebrews, patriarch, prophet, and priest preceded king and prince. As
man of God, Moses decided when the people should travel and when to
pitch camp, when they should make war and when peace. Saul and
David were made kings by the prophet Samuel, disciple of Eli the
priest. Like the Code of Hammurabi, the Mosaic code combined civil
laws with religious mandates, but unlike the Hammurabi Code, religious
laws were not of secondary importance. On the contrary, religious
motivation was primary and all-embracing: sacrifices were made and
Israel was prohibited from exacting usury, mistreating aliens or using
false weights, all because God commanded these.
Moses of the Bible led not like the ancient kings. The latter used religion
as an engine to advance the purposes of the state. Hammurabi unified
Mesopotamia and established Babylon as its capital by elevating its city-
god to a primary position over the previous reigning gods.[35]Moses, on
the other hand, capitalized on the natural yearnings of the Hebrew
slaves for freedom and independence to further Gods
purposes. Liberation and Exodus were preludes to Sinai and the receipt
of the Divine Law. The conquest of Canaan was a preparation for the
building of the temple and the full worship of God.[36]
Upon the monotheism of Moses was the theocracy of Israel
founded. This monotheism, more than anything else, charted not only
the future of religion in western civilization, but equally, the future of the
relationship between religion and state in the west. This fact is
acknowledged by many writers, among whom is Northcott who pointed
out, viz:
Historically it was the Hebrew and Christian conception of a single and
universal God that introduced a religious exclusivism leading to
compulsion and persecution in the realm of religion. Ancient religions
were regarded as confined to each separate people believing in them,
and the question of change from one religious belief to another did not
arise. It was not until an exclusive fellowship, that the questions of
proselytism, change of belief and liberty of religion arose.[37] (emphasis
supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel. In
this period, religion was not only superior to the state, but it was all of
the state. The Law of God as transmitted through Moses and his
successors was the whole of government.
With Saul, however, the state rose to be the rival and ultimately, the
master, of religion. Saul and David each received their kingdom from
Samuel the prophet and disciple of Eli the priest, but soon the king
dominated prophet and priest. Saul disobeyed and even sought to slay
Samuel the prophet of God.[38] Under Solomon, the subordination of
religion to state became complete; he used religion as an engine to
further the states purposes. He reformed the order of priesthood
established by Moses because the high priest under that order endorsed
the claim of his rival to the throne.[39]
The subordination of religion to the state was also true in pre-Christian
Rome which engaged in emperor-worship. When Augustus became
head of the Roman state and the priestly hierarchy, he placed religion
at a high esteem as part of a political plan to establish the real religion
of pre-Christian Rome - the worship of the head of the state. He set his
great uncle Julius Caesar among the gods, and commanded that
worship of Divine Julius should not be less than worship of Apollo,
Jupiter and other gods. When Augustus died, he also joined the ranks
of the gods, as other emperors before him.[40]
The onset of Christianity, however, posed a difficulty to the emperor as
the Christians dogmatic exclusiveness prevented them from paying
homage to publicly accepted gods. In the first two centuries after the
death of Jesus, Christians were subjected to persecution. By the time of
the emperor Trajan, Christians were considered outlaws. Their crime
was hatred of the human race, placing them in the same category as
pirates and brigands and other enemies of mankind who were subject
to summary punishments.[41]
In 284, Diocletian became emperor and sought to reorganize the empire
and make its administration more efficient. But the closely-knit
hierarchically controlled church presented a serious problem, being a
state within a state over which he had no control. He had two options:
either to force it into submission and break its power or enter into an
alliance with it and procure political control over it. He opted for force
and revived the persecution, destroyed the churches, confiscated
sacred books, imprisoned the clergy and by torture forced them to
sacrifice.[42] But his efforts proved futile.
The later emperor, Constantine, took the second option of
alliance. Constantine joined with Galerius and Licinius, his two co-rulers
of the empire, in issuing an edict of toleration to Christians on condition
that nothing is done by them contrary to discipline.[43] A year later, after
Galerius died, Constantine and Licius jointly issued the epochal Edict of
Milan (312 or 313), a document of monumental importance in the history
of religious liberty. It provided that liberty of worship shall not be
denied to any, but that the mind and will of every individual shall be free
to manage divine affairs according to his own choice. (emphasis
supplied) Thus, all restrictive statutes were abrogated and it was
enacted that every person who cherishes the desire to observe the
Christian religion shall freely and unconditionally proceed to observe the
same without let or hindrance. Furthermore, it was provided that the
same free and open power to follow their own religion or worship is
granted also to others, in accordance with the tranquillity of our times, in
order that every person may have free opportunity to worship the object
of his choice.(emphasis supplied)[44]
Before long, not only did Christianity achieve equal status, but acquired
privilege, then prestige, and eventually, exclusive power.Religion
became an engine of state policy as Constantine considered Christianity
a means of unifying his complex empire. Within seven years after the
Edict of Milan, under the emperors command, great Christian edifices
were erected, the clergy were freed from public burdens others had to
bear, and private heathen sacrifices were forbidden.
The favors granted to Christianity came at a price: state interference in
religious affairs. Constantine and his successors called and dismissed
church councils, and enforced unity of belief and practice. Until recently
the church had been the victim of persecution and repression, but this
time it welcomed the states persecution and repression of the
nonconformist and the orthodox on the belief that it was better for
heretics to be purged of their error than to die unsaved.
Both in theory as in practice, the partnership between church and state
was not easy. It was a constant struggle of one claiming dominance over
the other. In time, however, after the collapse and disintegration of the
Roman Empire, and while monarchical states were gradually being
consolidated among the numerous feudal holdings, the church stood as
the one permanent, stable and universal power. Not surprisingly,
therefore, it claimed not merely equality but superiority over the secular
states. This claim, symbolized by Pope Leos crowning of Charlemagne,
became the churchs accepted principle of its relationship to the state in
the Middle Ages. As viewed by the church, the union of church and state
was now a union of the state in the church. The rulers of the states did
not concede to this claim of supremacy. Thus, while Charlemagne
received his crown from the Pope, he himself crowned his own son as
successor to nullify the inference of supremacy.[45] The whole history
of medieval Europe was a struggle for supremacy between prince and
Pope and the resulting religious wars and persecution of heretics and
nonconformists. At about the second quarter of the 13th century, the
Inquisition was established, the purpose of which was the discovery and
extermination of heresy. Accused heretics were tortured with the
approval of the church in the bull Ad extirpanda issued by Pope Innocent
IV in 1252.
The corruption and abuses of the Catholic Church spurred the
Reformation aimed at reforming the Catholic Church and resulting in the
establishment of Protestant churches. While Protestants are
accustomed to ascribe to the Reformation the rise of religious liberty and
its acceptance as the principle governing the relations between a
democratic state and its citizens, history shows that it is more accurate
to say that the same causes that gave rise to the Protestant revolution
also resulted in the widespread acceptance of the principle of religious
liberty, and ultimately of the principle of separation of church and
state.[46] Pleas for tolerance and freedom of conscience can without
doubt be found in the writings of leaders of the Reformation. But just as
Protestants living in the countries of papists pleaded for toleration of
religion, so did the papists that lived where Protestants were
dominant.[47] Papist and Protestant governments alike accepted the
idea of cooperation between church and state and regarded as essential
to national unity the uniformity of at least the outward manifestations of
religion.[48] Certainly, Luther, leader of the Reformation, stated that
neither pope, nor bishop, nor any man whatever has the right of making
one syllable binding on a Christian man, unless it be done with his own
consent.[49] But when the tables had turned and he was no longer the
hunted heretic, he likewise stated when he made an alliance with the
secular powers that (h)eretics are not to be disputed with, but to be
condemned unheard, and whilst they perish by fire, the faithful ought to
pursue the evil to its source, and bathe their hands in the blood of the
Catholic bishops, and of the Pope, who is a devil in disguise.[50] To
Luther, unity among the peoples in the interests of the state was an
important consideration. Other personalities in the Reformation such as
Melanchton, Zwingli and Calvin strongly espoused theocracy or the use
of the state as an engine to further religion. In establishing theocracy in
Geneva, Calvin made absence from the sermon a crime, he included
criticism of the clergy in the crime of blasphemy punishable by death,
and to eliminate heresy, he cooperated in the Inquisition.[51]
There were, however, those who truly advocated religious
liberty. Erasmus, who belonged to the Renaissance than the
Reformation, wrote that (t)he terrible papal edict, the more terrible
imperial edict, the imprisonments, the confiscations, the recantations,
the fagots and burnings, all these things I can see accomplish nothing
except to make the evil more widespread.[52] The minority or dissident
sects also ardently advocated religious liberty. The Anabaptists,
persecuted and despised, along with the Socinians (Unitarians) and the
Friends of the Quakers founded by George Fox in the 17th century,
endorsed the supremacy and freedom of the individual conscience.They
regarded religion as outside the realm of political governments.[53] The
English Baptists proclaimed that the magistrate is not to meddle with
religion or matters of conscience, nor compel men to this or that form of
religion.[54]
Thus, out of the Reformation, three rationalizations of church-state memory was still vivid in the minds of the Constitutional Fathers as
relations may be distinguished: the Erastian (after the German doctor expressed by the United States Supreme Court, viz:
Erastus), the theocratic, and the separatist. The first assumed state
The centuries immediately before and contemporaneous with the
superiority in ecclesiastical affairs and the use of religion as an engine
colonization of America had been filled with turmoil, civil strife, and
of state policy as demonstrated by Luthers belief that civic cohesion
persecution generated in large part by established sects determined to
could not exist without religious unity so that coercion to achieve
maintain their absolute political and religious supremacy. With the power
religious unity was justified. The second was founded on ecclesiastical
of government supporting them, at various times and places, Catholics
supremacy and the use of state machinery to further religious interests
had persecuted Protestants, Protestants had persecuted Catholics,
as promoted by Calvin. The third, which was yet to achieve ultimate and
Protestant sects had persecuted other protestant sects, Catholics of one
complete expression in the New World, was discernibly in its incipient
shade of belief had persecuted Catholics of another shade of belief, and
form in the arguments of some dissident minorities that the magistrate
all of these had from time to time persecuted Jews. In efforts to force
should not intermeddle in religious affairs.[55] After the Reformation,
loyalty to whatever religious group happened to be on top and in league
Erastianism pervaded all Europe except for Calvins theocratic
with the government of a particular time and place, men and women had
Geneva. In England, perhaps more than in any other country,
been fined, cast in jail, cruelly tortured, and killed. Among the offenses
Erastianism was at its height. To illustrate, a statute was enacted by
for which these punishments had been inflicted were such things as
Parliament in 1678, which, to encourage woolen trade, imposed on all
speaking disrespectfully of the views of ministers of government-
clergymen the duty of seeing to it that no person was buried in a shroud
established churches, non-attendance at those churches, expressions
made of any substance other than wool.[56] Under Elizabeth,
of non-belief in their doctrines, and failure to pay taxes and tithes to
supremacy of the crown over the church was complete: ecclesiastical
support them.[61]
offices were regulated by her proclamations, recusants were fined and
imprisoned, Jesuits and proselytizing priests were put to death for high In 1784, James Madison captured in this statement the entire history of
treason, the thirty-nine Articles of the Church of England were adopted church-state relations in Europe up to the time the United States
and English Protestantism attained its present doctrinal Constitution was adopted, viz:
status.[57] Elizabeth was to be recognized as the only Supreme
Governor of this realm . . . as well in all spiritual or ecclesiastical things Torrents of blood have been spilt in the world in vain attempts of the

or causes as temporal. She and her successors were vested, in their secular arm to extinguish religious discord, by proscribing all differences

dominions, with all manner of jurisdictions, privileges, and in religious opinions.[62]

preeminences, in any wise touching or concerning any spiritual or

In sum, this history shows two salient features: First, with minor
ecclesiastical jurisdiction.[58] Later, however, Cromwell established
exceptions, the history of church-state relationships was characterized
the constitution in 1647 which granted full liberty to all Protestant sects,
by persecution, oppression, hatred, bloodshed, and war, all in the name
but denied toleration to Catholics.[59] In 1689, William III issued the Act
of the God of Love and of the Prince of Peace. Second, likewise with
of Toleration which established a de facto toleration for all except
minor exceptions, this history witnessed the unscrupulous use of religion
Catholics. The Catholics achieved religious liberty in the 19th century
by secular powers to promote secular purposes and policies, and the
when the Roman Catholic Relief Act of 1829 was adopted. The Jews
willing acceptance of that role by the vanguards of religion in exchange
followed suit in 1858 when they were finally permitted to sit in
for the favors and mundane benefits conferred by ambitious princes and
Parliament.[60]
emperors in exchange for religions invaluable service. This was the

When the representatives of the American states met in Philadelphia in context in which the unique experiment of the principle of religious

1787 to draft the constitutional foundation of the new republic, the freedom and separation of church and state saw its birth in American

theocratic state which had flourished intermittently in Israel, Judea, the constitutional democracy and in human history.[63]

Holy Roman Empire and Geneva was completely gone. The prevailing
V. Factors Contributing to the Adoption
church-state relationship in Europe was Erastianism embodied in the
system of jurisdictionalism whereby one faith was favored as the official of the American Religion Clauses
state-supported religion, but other faiths were permitted to exist with
Settlers fleeing from religious persecution in Europe, primarily in
freedom in various degrees. No nation had yet adopted as the basis of
Anglican-dominated England, established many of the American
its church-state relations the principle of the mutual independence of
colonies. British thought pervaded these colonies as the immigrants
religion and government and the concomitant principle that neither might
brought with them their religious and political ideas from England and
be used as an engine to further the policies of the other, although the
English books and pamphlets largely provided their cultural fare.[64] But
principle was in its seminal form in the arguments of some dissident
although these settlers escaped from Europe to be freed from bondage
minorities and intellectual leaders of the Renaissance. The religious
of laws which compelled them to support and attend government favored
wars of 16thand 17th century Europe were a thing of the past by the time
churches, some of these settlers themselves transplanted into American
America declared its independence from the Old World, but their
soil the oppressive practices they escaped from. The charters granted
by the English Crown to the individuals and companies designated to
make the laws which would control the destinies of the colonials
authorized them to erect religious establishments, which all, whether
believers or not, were required to support or attend.[65] At one time, six
of the colonies established a state religion. Other colonies, however,
such as Rhode Island and Delaware tolerated a high degree of religious
diversity. Still others, which originally tolerated only a single religion,
eventually extended support to several different faiths.[66]
This was the state of the American colonies when the unique American
experiment of separation of church and state came about. The birth of
the experiment cannot be attributed to a single cause or event. Rather,
a number of interdependent practical and ideological factors contributed
in bringing it forth. Among these were the English Act of Toleration of
1689, the multiplicity of sects, the lack of church affiliation on the part of
most Americans, the rise of commercial intercourse, the exigencies of
the Revolutionary War, the Williams-Penn tradition and the success of
their experiments, the writings of Locke, the social contract theory, the
Great Awakening, and the influence of European rationalism and
deism.[67] Each of these factors shall be briefly discussed.
First, the practical factors. Englands policy of opening the gates of the
American colonies to different faiths resulted in the multiplicity of sects
in the colonies. With an Erastian justification, English lords chose to
forego protecting what was considered to be the true and eternal church
of a particular time in order to encourage trade and commerce. The
colonies were large financial investments which would be profitable only
if people would settle there. It would be difficult to engage in trade with
persons one seeks to destroy for religious belief, thus tolerance was a
necessity. This tended to distract the colonies from their preoccupations
over their religion and its exclusiveness, encouraging them to think less
of the Church and more of the State and of commerce.[68] The diversity
brought about by the colonies open gates encouraged religious freedom
and non-establishment in several ways. First, as there were too many
dissenting sects to abolish, there was no alternative but to learn to live
together. Secondly, because of the daily exposure to different religions,
the passionate conviction in the exclusive rightness of ones religion,
which impels persecution for the sake of ones religion, waned. Finally,
because of the great diversity of the sects, religious uniformity was not
possible, and without such uniformity, establishment could not
survive.[69]
But while there was a multiplicity of denomination, paradoxically, there
was a scarcity of adherents. Only about four percent of the entire
population of the country had a church affiliation at the time the republic
was founded.[70] This might be attributed to the drifting to the American
colonies of the skepticism that characterized European
Enlightenment.[71] Economic considerations might have also been a
factor.The individualism of the American colonist, manifested in the
multiplicity of sects, also resulted in much unaffiliated religion which
treated religion as a personal non-institutional matter. The prevalence of
lack of church affiliation contributed to religious liberty and
disestablishment as persons who were not connected with any church
were not likely to persecute others for similar independence nor accede
to compulsory taxation to support a church to which they did not
belong.[72]
However, for those who were affiliated to churches, the colonial policy
regarding their worship generally followed the tenor of the English Act of
Toleration of 1689. In England, this Act conferred on Protestant
dissenters the right to hold public services subject to registration of their
ministers and places of worship.[73] Although the toleration accorded to
Protestant dissenters who qualified under its terms was only a modest
advance in religious freedom, it nevertheless was of some influence to
the American experiment.[74] Even then, for practical considerations,
concessions had to be made to other dissenting churches to ensure their
cooperation in the War of Independence which thus had a unifying effect
on the colonies.
Next, the ideological factors. First, the Great Awakening in mid-
18th century, an evangelical religious revival originating in New
England, caused a break with formal church religion and a resistance to
coercion by established churches. This movement emphasized an
emotional, personal religion that appealed directly to the individual,
putting emphasis on the rights and duties of the individual conscience
and its answerability exclusively to God. Thus, although they had no
quarrel with orthodox Christian theology as in fact they were
fundamentalists, this group became staunch advocates of separation of
church and state.[75]
Then there was the Williams-Penn tradition. Roger Williams was the
founder of the colony of Rhode Island where he established a
community of Baptists, Quakers and other nonconformists. In this
colony, religious freedom was not based on practical considerations but
on the concept of mutual independence of religion and government. In
1663, Rhode Island obtained a charter from the British crown which
declared that settlers have it much on their heart to hold forth a livelie
experiment that a most flourishing civil state may best be maintained . .
. with full libertie in religious concernments.[76] In Williams
pamphlet, The Bloudy Tenent of Persecution for cause of Conscience,
discussed in a Conference between Truth and Peace,[77] he articulated
the philosophical basis for his argument of religious liberty. To him,
religious freedom and separation of church and state did not constitute
two but only one principle. Religious persecution is wrong because it
confounds the Civil and Religious and because States . . . are proved
essentially Civil. The power of true discerning the true fear of God is not
one of the powers that the people have transferred to Civil
Authority.[78] Williams Bloudy Tenet is considered an epochal
milestone in the history of religious freedom and the separation of church
and state.[79]
William Penn, proprietor of the land that became Pennsylvania, was also
an ardent advocate of toleration, having been imprisoned for his
religious convictions as a member of the despised Quakers. He
opposed coercion in matters of conscience because imposition, restraint
and persecution for conscience sake, highly invade the Divine
prerogative. Aside from his idealism, proprietary interests made
toleration in Pennsylvania necessary. He attracted large numbers of not one of the powers conferred on government as part of the social
settlers by promising religious toleration, thus bringing in immigrants contract.[85]
both from the Continent and Britain. At the end of the colonial period,
Not only the social contract theory drifted to the colonies from
Pennsylvania had the greatest variety of religious groups. Penn was
Europe. Many of the leaders of the Revolutionary and post-revolutionary
responsible in large part for the Concessions and agreements of the
period were also influenced by European deism and rationalism,[86] in
Proprietors, Freeholders, and inhabitants of West Jersey, in America, a
general, and some were apathetic if not antagonistic to formal religious
monumental document in the history of civil liberty which provided
worship and institutionalized religion. Jefferson, Paine, John Adams,
among others, for liberty of conscience.[80] The Baptist followers of
Washington, Franklin, Madison, among others were reckoned to be
Williams and the Quakers who came after Penn continued the tradition
among the Unitarians or Deists. Unitarianism and Deism contributed to
started by the leaders of their denominations. Aside from the Baptists
the emphasis on secular interests and the relegation of historic theology
and the Quakers, the Presbyterians likewise greatly contributed to the
to the background.[87] For these men of the enlightenment, religion
evolution of separation and freedom.[81] The Constitutional fathers who
should be allowed to rise and fall on its own, and the state must be
convened in Philadelphia in 1787, and Congress and the states that
protected from the clutches of the church whose entanglements has
adopted the First Amendment in 1791 were very familiar with and
caused intolerance and corruption as witnessed throughout
strongly influenced by the successful examples of Rhode Island and
history.[88] Not only the leaders but also the masses embraced
Pennsylvania.[82]
rationalism at the end of the eighteenth century, accounting for the
Undeniably, John Locke and the social contract theory also contributed popularity of Paines Age of Reason.[89]
to the American experiment. The social contract theory popularized by
Finally, the events leading to religious freedom and separation in Virginia
Locke was so widely accepted as to be deemed self-evident truth in
contributed significantly to the American experiment of the First
Americas Declaration of Independence. With the doctrine of natural
Amendment. Virginia was the first state in the history of the world to
rights and equality set forth in the Declaration of Independence, there
proclaim the decree of absolute divorce between church and
was no room for religious discrimination. It was difficult to justify
state.[90] Many factors contributed to this, among which were that half
inequality in religious treatment by a new nation that severed its political
to two-thirds of the population were organized dissenting sects, the
bonds with the English crown which violated the self-evident truth that
Great Awakening had won many converts, the established Anglican
all men are created equal.[83]
Church of Virginia found themselves on the losing side of the Revolution
The social contract theory was applied by many religious groups in and had alienated many influential laymen with its identification with the
arguing against establishment, putting emphasis on religion as a natural Crowns tyranny, and above all, present in Virginia was a group of
right that is entirely personal and not within the scope of the powers of political leaders who were devoted to liberty generally,[91] who had
a political body. That Locke and the social contract theory were accepted the social contract as self-evident, and who had been greatly
influential in the development of religious freedom and separation is influenced by Deism and Unitarianism. Among these leaders were
evident from the memorial presented by the Baptists to the Continental Washington, Patrick Henry, George Mason, James Madison and above
Congress in 1774, viz: the rest, Thomas Jefferson.

Men unite in society, according to the great Mr. Locke, with an intention The first major step towards separation in Virginia was the adoption of
in every one the better to preserve himself, his liberty and property. The the following provision in the Bill of Rights of the states first constitution:
power of the society, or Legislature constituted by them, can never be
That religion, or the duty which we owe to our Creator, and the manner
supposed to extend any further than the common good, but is obliged to
of discharging it, can be directed only by reason and conviction, not by
secure every ones property. To give laws, to receive obedience, to
force or violence; and therefore, all men are equally entitled to the free
compel with the sword, belong to none but the civil magistrate; and on
exercise of religion according to the dictates of conscience; and that it is
this ground we affirm that the magistrates power extends not to
the mutual duty of all to practice Christian forbearance, love, and charity
establishing any articles of faith or forms of worship, by force of laws; for
towards each other.[92] (emphasis supplied)
laws are of no force without penalties. The care of souls cannot belong
to the civil magistrate, because his power consists only in outward force; The adoption of the Bill of Rights signified the beginning of the end of
but pure and saving religion consists in the inward persuasion of the establishment. Baptists, Presbyterians and Lutherans flooded the first
mind, without which nothing can be acceptable to God.[84] (emphasis legislative assembly with petitions for abolition of establishment. While
supplied) the majority of the population were dissenters, a majority of the
legislature were churchmen. The legislature compromised and enacted
The idea that religion was outside the jurisdiction of civil government
a bill in 1776 abolishing the more oppressive features of establishment
was acceptable to both the religionist and rationalist. To the religionist,
and granting exemptions to the dissenters, but not guaranteeing
God or Christ did not desire that government have that jurisdiction
separation. It repealed the laws punishing heresy and absence from
(render unto Caesar that which is Caesars; my kingdom is not of this
worship and requiring the dissenters to contribute to the support of the
world) and to the rationalist, the power to act in the realm of religion was
establishment.[93] But the dissenters were not satisfied; they not only
wanted abolition of support for the establishment, they opposed the
compulsory support of their own religion as others. As members of the
established church would not allow that only they would pay taxes while
the rest did not, the legislature enacted in 1779 a bill making permanent
the establishments loss of its exclusive status and its power to tax its
members; but those who voted for it did so in the hope that a general
assessment bill would be passed. Without the latter, the establishment
would not survive. Thus, a bill was introduced in 1779 requiring every
person to enroll his name with the county clerk and indicate which
society for the purpose of Religious Worship he wished to support. On
the basis of this list, collections were to be made by the sheriff and turned
over to the clergymen and teachers designated by the religious
congregation. The assessment of any person who failed to enroll in any
society was to be divided proportionately among the societies.[94] The
bill evoked strong opposition.
In 1784, another bill, entitled Bill Establishing a Provision for Teachers
of the Christian Religion was introduced requiring all persons to pay a
moderate tax or contribution annually for the support of the Christian
religion, or of some Christian church, denomination or communion of
Christians, or for some form of Christian worship.[95] This likewise
aroused the same opposition to the 1779 bill. The most telling blow
against the 1784 bill was the monumental Memorial and Remonstrance
against Religious Assessments written by Madison and widely
distributed before the reconvening of legislature in the fall of
1785.[96] It stressed natural rights, the governments lack of jurisdiction
over the domain of religion, and the social contract as the ideological
basis of separation while also citing practical considerations such as
loss of population through migration. He wrote, viz:
Because we hold it for a fundamental and undeniable truth, that religion,
or the duty which we owe to our creator, and the manner of discharging
it, can be directed only by reason and conviction, not by force or
violence. The religion, then, of every man, must be left to the conviction
and conscience of every man; and it is the right of every man to exercise
it as these may dictate. This right is, in its nature, an unalienable right. It
is unalienable, because the opinions of men, depending only on the
evidence contemplated in their own minds, cannot follow the dictates of
other men; it is unalienable, also, because what is here a right towards
men, is a duty towards the creator. It is the duty of every man to render
the creator such homage, and such only as he believes to be acceptable
to him; this duty is precedent, both in order of time and degree of
obligation, to the claims of civil society. Before any man can be
considered as a member of civil society, he must be considered as a
subject of the governor of the universe;and if a member of civil society,
who enters into any subordinate association, must always do it with a
reservation of his duty to the general authority, much more must every
man who becomes a member of any particular civil society do it with the
saving his allegiance to the universal sovereign.[97](emphases
supplied)
Madison articulated in the Memorial the widely held beliefs in 1785 as
indicated by the great number of signatures appended to the
Memorial. The assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a much earlier
1779 bill of Jefferson which had not been voted on, the Bill for
Establishing Religious Freedom, and it was finally passed in January
1786. It provided, viz:
Well aware that Almighty God hath created the mind free; that all
attempts to influence it by temporal punishments or burdens, or by civil
incapacitations, tend not only to beget habits of hypocrisy and
meanness, and are a departure from the plan of the Holy Author of our
religion, who being Lord both of body and mind, yet chose not to
propagate it by coercions on either, as was in his Almighty power to do;
xxx xxx xxx
Be it therefore enacted by the General Assembly. That no man shall be
compelled to frequent or support any religious worship, place or ministry
whatsoever, nor shall be enforced, restrained, molested or burdened in
his body or goods, nor shall otherwise suffer on account of his religious
opinions or beliefs, but that all men shall be free to profess, and by
argument to maintain, their opinions in matters of religion, and that the
same shall in no wise diminish, enlarge or affect their civil
capacities.[98] (emphases supplied)
This statute forbade any kind of taxation in support of religion and
effectually ended any thought of a general or particular establishment in
Virginia.[99] But the passage of this law was obtained not only because
of the influence of the great leaders in Virginia but also because of
substantial popular support coming mainly from the two great dissenting
sects, namely the Presbyterians and the Baptists. The former were
never established in Virginia and an underprivileged minority of the
population. This made them anxious to pull down the existing state
church as they realized that it was impossible for them to be elevated to
that privileged position. Apart from these expediential considerations,
however, many of the Presbyterians were sincere advocates of
separation[100] grounded on rational, secular arguments and to the
language of natural religion.[101] Influenced by Roger Williams, the
Baptists, on the other hand, assumed that religion was essentially a
matter of concern of the individual and his God, i.e., subjective, spiritual
and supernatural, having no relation with the social order.[102] To them,
the Holy Ghost was sufficient to maintain and direct the Church without
governmental assistance and state-supported religion was contrary ti
the spirit of the Gospel.[103] Thus, separation was
necessary.[104] Jeffersons religious freedom statute was a milestone in
the history of religious freedom. The United States Supreme Court has
not just once acknowledged that the provisions of the First Amendment
of the U.S. Constitution had the same objectives and intended to afford
the same protection against government interference with religious
liberty as the Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that
government had no power to legislate in the area of religion by restricting
its free exercise or establishing it was implicit in the Constitution of
1787. This could be deduced from the prohibition of any religious test
for federal office in Article VI of the Constitution and the assumed lack
of power of Congress to act on any subject not expressly mentioned in
the Constitution.[105] However, omission of an express guaranty of
religious freedom and other natural rights nearly prevented the
ratification of the Constitution.[106] In the ratifying conventions of almost
every state, some objection was expressed to the absence of a
restriction on the Federal Government as regards legislation on
religion.[107] Thus, in 1791, this restriction was made explicit with the
adoption of the religion clauses in the First Amendment as they are
worded to this day, with the first part usually referred to as the
Establishment Clause and the second part, the Free Exercise
Clause, viz:
Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof.
VI. Religion Clauses in the United States:
Concept, Jurisprudence, Standards
With the widespread agreement regarding the value of the First
Amendment religion clauses comes an equally broad disagreement as
to what these clauses specifically require, permit and forbid. No
agreement has been reached by those who have studied the religion
clauses as regards its exact meaning and the paucity of records in
Congress renders it difficult to ascertain its
meaning.[108] Consequently, the jurisprudence in this area is volatile
and fraught with inconsistencies whether within a Court decision or
across decisions.
One source of difficulty is the difference in the context in which the First
Amendment was adopted and in which it is applied today. In the 1780s,
religion played a primary role in social life - i.e., family responsibilities,
education, health care, poor relief, and other aspects of social life with
significant moral dimension - while government played a supportive and
indirect role by maintaining conditions in which these activities may be
carried out by religious or religiously-motivated associations. Today,
government plays this primary role and religion plays the supportive
role.[109] Government runs even family planning, sex education,
adoption and foster care programs.[110] Stated otherwise and with
some exaggeration, (w)hereas two centuries ago, in matters of social
life which have a significant moral dimension, government was the
handmaid of religion, today religion, in its social responsibilities, as
contrasted with personal faith and collective worship, is the handmaid of
government.[111] With government regulation of individual conduct
having become more pervasive, inevitably some of those regulations
would reach conduct that for some individuals are religious. As a result,
increasingly, there may be inadvertent collisions between purely secular
government actions and religion clause values.[112]
Parallel to this expansion of government has been the expansion of
religious organizations in population, physical institutions, types of
activities undertaken, and sheer variety of denominations, sects and
cults. Churches run day-care centers, retirement homes, hospitals,
schools at all levels, research centers, settlement houses, halfway
houses for prisoners, sports facilities, theme parks, publishing houses
and mass media programs. In these activities, religious organizations
complement and compete with commercial enterprises, thus blurring the
line between many types of activities undertaken by religious groups and
secular activities. Churches have also concerned themselves with social
and political issues as a necessary outgrowth of religious faith as
witnessed in pastoral letters on war and peace, economic justice, and
human life, or in ringing affirmations for racial equality on religious
foundations. Inevitably, these developments have brought about
substantial entanglement of religion and government. Likewise, the
growth in population density, mobility and diversity has significantly
changed the environment in which religious organizations and activities
exist and the laws affecting them are made. It is no longer easy for
individuals to live solely among their own kind or to shelter their children
from exposure to competing values. The result is disagreement over
what laws should require, permit or prohibit;[113] and agreement that if
the rights of believers as well as non-believers are all to be respected
and given their just due, a rigid, wooden interpretation of the religion
clauses that is blind to societal and political realities must be
avoided.[114]
Religion cases arise from different circumstances. The more obvious
ones arise from a government action which purposely aids or inhibits
religion. These cases are easier to resolve as, in general, these actions
are plainly unconstitutional. Still, this kind of cases poses difficulty in
ascertaining proof of intent to aid or inhibit religion.[115] The more
difficult religion clause cases involve government action with a secular
purpose and general applicability which incidentally or inadvertently aids
or burdens religious exercise. In Free Exercise Clause cases, these
government actions are referred to as those with burdensome effect on
religious exercise even if the government action is not religiously
motivated.[116] Ideally, the legislature would recognize the religions and
their practices and would consider them, when practical, in enacting
laws of general application. But when the legislature fails to do so,
religions that are threatened and burdened turn to the courts for
protection.[117] Most of these free exercise claims brought to the Court
are for exemption, not invalidation of the facially neutral law that has a
burdensome effect.[118]
With the change in political and social context and the increasing
inadvertent collisions between law and religious exercise, the definition
of religion for purposes of interpreting the religion clauses has also
been modified to suit current realities. Defining religion is a difficult task
for even theologians, philosophers and moralists cannot agree on a
comprehensive definition. Nevertheless, courts must define religion for
constitutional and other legal purposes.[119] It was in the 1890 case
of Davis v. Beason[120] that the United States Supreme Court first had
occasion to define religion, viz:
The term religion has reference to ones views of his relations to his
Creator, and to the obligations they impose of reverence for his being
and character, and of obedience to his will. It is often confounded with
the cultus or form of worship of a particular sect, but is distinguishable
from the latter. The First Amendment to the Constitution, in declaring
that Congress shall make no law respecting the establishment of
religion, or forbidding the free exercise thereof, was intended to allow
everyone under the jurisdiction of the United States to entertain such
notions respecting his relations to his Maker and the duties they impose
as may be approved by his judgment and conscience, and to exhibit his
sentiments in such form of worship as he may think proper, not injurious
to the equal rights of others, and to prohibit legislation for the support of
any religious tenets, or the modes of worship of any sect.[121]
The definition was clearly theistic which was reflective of the popular
attitudes in 1890.
In 1944, the Court stated in United States v. Ballard[122] that the free
exercise of religion embraces the right to maintain theories of life and of
death and of the hereafter which are rank heresy to followers of the
orthodox faiths.[123] By the 1960s, American pluralism in religion had
flourished to include non-theistic creeds from Asia such as Buddhism
and Taoism.[124] In 1961, the Court, in Torcaso
Watkins,[125] expanded the term religion to non-theistic beliefs such as
Buddhism, Taoism, Ethical Culture, and Secular Humanism. Four years
later, the Court faced a definitional problem in United States v.
Seeger[126] which involved four men who claimed conscientious
objector status in refusing to serve in the Vietnam War. One of the four,
Seeger, was not a member of any organized religion opposed to war,
but when specifically asked about his belief in a Supreme Being, Seeger
stated that you could call (it) a belief in a Supreme Being or God. These
just do not happen to be the words that I use. Forest Peter, another one
of the four claimed that after considerable meditation and reflection on
values derived from the Western religious and philosophical tradition, he
determined that it would be a violation of his moral code to take human
life and that he considered this belief superior to any obligation to the
state. The Court avoided a constitutional question by broadly
interpreting not the Free Exercise Clause, but the statutory definition of
religion in the Universal Military Training and Service Act of 1940 which
exempt from combat anyone who, by reason of religious training and
belief, is conscientiously opposed to participation in war in any
form. Speaking for the Court, Justice Clark ruled, viz:
Congress, in using the expression Supreme Being rather than the
designation God, was merely clarifying the meaning of religious tradition
and belief so as to embrace all religions and to exclude essentially
political, sociological, or philosophical views (and) the test of belief in
relation to a Supreme Being is whether a given belief that is sincere and
meaningful occupies a place in the life of its possessor parallel to the
orthodox belief in God.(emphasis supplied)
The Court was convinced that Seeger, Peter and the others were
conscientious objectors possessed of such religious belief and training.
Federal and state courts have expanded the definition
religion in Seeger to include even non-theistic beliefs such as Taoism or
Zen Buddhism. It has been proposed that basically, a creed must meet
four criteria to qualify as religion under the First Amendment. First, there
must be belief in God or some parallel belief that occupies a central
place in the believers life. Second, the religion must involve a moral code
transcending individual belief, i.e., it cannot be purely subjective. Third,
a demonstrable sincerity in belief is necessary, but the court must not
inquire into the truth or reasonableness of the belief.[127] Fourth, there
must be some associational ties,[128] although there is also a view that
religious beliefs held by a single person rather than being part of the
teachings of any kind of group or sect are entitled to the protection of the
Free Exercise Clause.[129]
Defining religion is only the beginning of the difficult task of deciding
religion clause cases. Having hurdled the issue of definition, the court
then has to draw lines to determine what is or is not permissible under
the religion clauses. In this task, the purpose of the clauses is the
yardstick. Their purpose is singular; they are two sides of the same
coin.[130] In devoting two clauses to religion, the Founders were stating
not two opposing thoughts that would cancel each other out, but two
complementary thoughts that apply in different ways in different
v.
circumstances.[131] The purpose of the religion clauses - both in the
restriction it imposes on the power of the government to interfere with
the free exercise of religion and the limitation on the power of
government to establish, aid, and support religion - is the protection and
promotion of religious liberty.[132] The end, the goal, and the rationale
of the religion clauses is this liberty.[133] Both clauses were adopted to
prevent government imposition of religious orthodoxy; the great evil
against which they are directed is government-induced
homogeneity.[134] The Free Exercise Clause directly articulates the
common objective of the two clauses and the Establishment
Clause specifically addresses a form of interference with religious liberty
with which the Framers were most familiar and for which government
historically had demonstrated a propensity.[135] In other words, free
exercise is the end, proscribing establishment is a necessary means to
this end to protect the rights of those who might dissent from whatever
religion is established.[136] It has even been suggested that the sense
of the First Amendment is captured if it were to read as Congress shall
make no law respecting an establishment of religion
or otherwise prohibiting the free exercise thereof because the
fundamental and single purpose of the two religious clauses is to avoid
any infringement on the free exercise of religions[137] Thus, the
Establishment Clause mandates separation of church and state to
protect each from the other, in service of the larger goal of preserving
religious liberty. The effect of the separation is to limit the opportunities
for any religious group to capture the state apparatus to the
disadvantage of those of other faiths, or of no faith at all[138]because
history has shown that religious fervor conjoined with state power is
likely to tolerate far less religious disagreement and disobedience from
those who hold different beliefs than an enlightened secular
state.[139] In the words of the U.S. Supreme Court, the two clauses are
interrelated, viz: (t)he structure of our government has, for the
of
preservation of civil liberty, rescued the temporal institutions from
religious interference. On the other hand, it has secured religious liberty
from the invasion of the civil authority.[140]
In upholding religious liberty as the end goal in religious clause cases,
the line the court draws to ensure that government does not establish
and instead remains neutral toward religion is not absolutely
straight. Chief Justice Burger explains, viz:
The course of constitutional neutrality in this area cannot be an
absolutely straight line; rigidity could well defeat the basic purpose of
these provisions, which is to insure that no religion be sponsored or
favored, none commanded and none inhibited.[141] (emphasis
supplied)
Consequently, U.S. jurisprudence has produced two identifiably
different,[142] even opposing, strains of jurisprudence on the religion
clauses: separation (in the form of strict separation or the tamer version
of strict neutrality or separation) and benevolent
neutrality or accommodation. A view of the landscape of U.S. religion
clause cases would be useful in understanding these two strains, the
scope of protection of each clause, and the tests used in religious clause
cases. Most of these cases are cited as authorities in Philippine religion
clause cases.
A. Free Exercise Clause
The Court first interpreted the Free Exercise Clause in the 1878 case
of Reynolds v. United States.[143] This landmark case involved
Reynolds, a Mormon who proved that it was his religious duty to have
several wives and that the failure to practice polygamy by male members
of his religion when circumstances would permit would be punished with
damnation in the life to come. Reynolds act of contracting a second
marriage violated Section 5352, Revised Statutes prohibiting and
penalizing bigamy, for which he was convicted. The Court affirmed
Reynolds conviction, using what in jurisprudence would be called
the belief-action test which allows absolute protection to belief but not to
action. It cited Jeffersons Bill Establishing Religious Freedom which,
according to the Court, declares the true distinction between what
properly belongs to the Church and what to the State.[144] The bill,
making a distinction between belief and action, states in relevant
part, viz:
That to suffer the civil magistrate to intrude his powers into the field of
opinion, and to restrain the profession or propagation of principles on
supposition of their ill tendency, is a dangerous fallacy which at once
destroys all religious liberty;
that it is time enough for the rightful purposes of civil government for its
officers to interfere when principles break out into overt acts against
peace and good order.[145] (emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion, but
was left free to reach actions which were in violation of social duties or
subversive of good order. . .
Laws are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may with
practices.Suppose one believed that human sacrifice were a necessary
part of religious worship, would it be seriously contended that the civil
government under which he lived could not interfere to prevent a
sacrifice? Or if a wife religiously believed it was her duty to burn herself
upon the funeral pile of her dead husband, would it be beyond the power
of the civil government to prevent her carrying her belief into practice?
So here, as a law of the organization of society under the exclusive
dominion of the United States, it is provided that plural marriages shall
not be allowed.Can a man excuse his practices to the contrary because
of his religious belief? To permit this would be to make the professed
doctrines of religious belief superior to the law of the land, and in effect
to permit every citizen to become a law unto himself. Government could
exist only in name under such circumstances.[146]
The construct was thus simple: the state was absolutely prohibited by
the Free Exercise Clause from regulating individual religious beliefs, but
placed no restriction on the ability of the state to regulate religiously
motivated conduct. It was logical for belief to be accorded absolute
protection because any statute designed to prohibit a particular religious
belief unaccompanied by any conduct would most certainly be motivated
only by the legislatures preference of a competing religious belief. Thus,
all cases of regulation of belief would amount to regulation of religion for
religious reasons violative of the Free Exercise Clause. On the other
hand, most state regulations of conduct are for public welfare purposes
and have nothing to do with the legislatures religious preferences. Any
burden on religion that results from state regulation of conduct arises
only when particular individuals are engaging in the generally regulated
conduct because of their particular religious beliefs. These burdens are
thus usually inadvertent and did not figure in the belief-action test. As
long as the Court found that regulation address action rather than belief,
the Free Exercise Clause did not pose any problem.[147] The Free
Exercise Clause thus gave no protection against the proscription of
actions even if considered central to a religion unless the legislature
formally outlawed the belief itself.[148]
This belief-action distinction was held by the Court for some years as
shown by cases where the Court upheld other laws which burdened the
practice of the Mormon religion by imposing various penalties on
polygamy such as the Davis case and Church of Latter Day Saints v.
United States.[149] However, more than a century since Reynolds was
decided, the Court has expanded the scope of protection from belief to
speech and conduct. But while the belief-action test has been
abandoned, the rulings in the earlier Free Exercise cases have gone
unchallenged. The belief-action distinction is still of some importance
though as there remains an absolute prohibition of governmental
proscription of beliefs.[150]
The Free Exercise Clause accords absolute protection to individual
religious convictions and beliefs[151] and proscribes government from
questioning a persons beliefs or imposing penalties or disabilities based
solely on those beliefs. The Clause extends protection to both beliefs
and unbelief. Thus, in Torcaso v. Watkins,[152] a unanimous Court
struck down a state law requiring as a qualification for public office an
oath declaring belief in the existence of God. The protection also allows
courts to look into the good faith of a person in his belief, but
prohibits inquiry into the truth of a persons religious beliefs. As held
in United States v. Ballard,[153] (h)eresy trials are foreign to the
Constitution. Men may believe what they cannot prove. They may not
be put to the proof of their religious doctrines or beliefs.
Next to belief which enjoys virtually absolute protection, religious speech
and expressive religious conduct are accorded the highest degree of
protection. Thus, in the 1940 case of Cantwell v. Connecticut,[154] the
Court struck down a state law prohibiting door-to-door solicitation for any
religious or charitable cause without prior approval of a state
agency. The law was challenged by Cantwell, a member of the
Jehovahs Witnesses which is committed to active proselytizing. The
Court invalidated the state statute as the prior approval necessary was
held to be a censorship of religion prohibited by the Free Exercise
Clause. The Court held, viz:
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields the tenets of one may seem the rankest
error to his neighbor. To persuade others to his point of view, the
pleader, as we know, resorts to exaggeration, to vilification of men who
have been, or are, prominent in church or state, and even to false
statement. But the people of this nation have ordained in the light of
history, that, in spite of the probability of excesses and abuses, these
liberties are, in the long view, essential to enlightened opinion and right
conduct on the part of citizens of a democracy.[155]
Cantwell took a step forward from the protection afforded by
the Reynolds case in that it not only affirmed protection of belief but also
freedom to act for the propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom to believe and
freedom to act. The first is absolute but, in the nature of things, the
second cannot be. Conduct remains subject to regulation for the
protection of society. . . In every case, the power to regulate must be so
exercised as not, in attaining a permissible end, unduly to infringe the
protected freedom. (emphasis supplied)[156]
The Court stated, however, that government had the power to regulate
the times, places, and manner of solicitation on the streets and assure
the peace and safety of the community.
Three years after Cantwell, the Court in Douglas v. City
Jeanette,[157] ruled that police could not prohibit members of the
Jehovahs Witnesses from peaceably and orderly proselytizing on
Sundays merely because other citizens complained. In another case
likewise involving the Jehovahs Witnesses, Niemotko
Maryland,[158] the Court unanimously held unconstitutional a city
councils denial of a permit to the Jehovahs Witnesses to use the city
park for a public meeting. The city councils refusal was because of the
unsatisfactory answers of the Jehovahs Witnesses to questions about
Catholicism, military service, and other issues. The denial of the public
forum was considered blatant censorship. While protected, religious
speech in the public forum is still subject to reasonable time, place and
manner regulations similar to non-religious speech. Religious
proselytizing in congested areas, for example, may be limited to certain
areas to maintain the safe and orderly flow of pedestrians and vehicular
traffic as held in the case of Heffron v. International Society for Krishna
Consciousness.[159]
The least protected under the Free Exercise Clause is religious conduct,
usually in the form of unconventional religious practices. Protection in
this realm depends on the character of the action and the government
rationale for regulating the action.[160] The Mormons religious conduct
of polygamy is an example of unconventional religious practice. As
discussed in the Reynolds case above, the Court did not afford
protection to the practice. Reynolds was reiterated in the 1890 case
of Davis again involving Mormons, where the Court held, viz: (c)rime is
not the less odious because sanctioned by what any particular sect may
designate as religion.[161]
The belief-action test in Reynolds and Davis proved
unsatisfactory. Under this test, regulation of religiously dictated conduct
would be upheld no matter how central the conduct was to the exercise
of religion and no matter how insignificant was the governments non-
religious regulatory interest so long as the government is proscribing
action and not belief. Thus, the Court abandoned the simplistic belief-
actiondistinction and instead recognized the deliberate-inadvertent
distinction, i.e., the distinction between deliberate state interference of
religious exercise for religious reasons which was plainly
unconstitutional and governments inadvertent interference with religion
in pursuing some secular objective.[162] In the 1940 case of Minersville
School District v. Gobitis,[163] the Court upheld a local school board
requirement that all public school students participate in a daily flag
salute program, including the Jehovahs Witnesses who were forced to
salute the American flag in violation of their religious training, which
considered flag salute to be worship of a graven image. The Court
recognized that the general requirement of compulsory flag salute
inadvertently burdened the Jehovah Witnesses practice of their religion,
but justified the government regulation as an appropriate means of
attaining national unity, which was the basis of national security. Thus,
although the Court was already aware of the deliberate-inadvertent
distinction in government interference with religion, it continued to hold
that the Free Exercise Clause presented no problem to interference with
religion that was inadvertent no matter how serious the interference, no
matter how trivial the states non-religious objectives, and no matter how
of
many alternative approaches were available to the state to pursue its
objectives with less impact on religion, so long as government was
acting in pursuit of a secular objective.
v. Three years later, the Gobitis decision was overturned in West Virginia
v. Barnette[164] which involved a similar set of facts and issue.The
Court recognized that saluting the flag, in connection with the pledges,
was a form of utterance and the flag salute program was a compulsion
of students to declare a belief. The Court ruled that compulsory
unification of opinions leads only to the unanimity of the graveyard and
exempt the students who were members of the Jehovahs Witnesses
from saluting the flag. A close scrutiny of the case, however, would show
that it was decided not on the issue of religious conduct as the Court
said, (n)or does the issue as we see it turn on ones possession of
particular religious views or the sincerity with which they are held. While
religion supplies appellees motive for enduring the discomforts of
making the issue in this case, many citizens who do not share these
religious views hold such a compulsory rite to infringe constitutional
liberty of the individual. (emphasis supplied)[165] The Court
pronounced, however, that, freedoms of speech and of press, of
assembly, and of worship . . . are susceptible only of restriction only to
prevent grave and immediate danger to interests which the state may
lawfully protect.[166] The Court seemed to recognize the extent to which
its approach in Gobitis subordinated the religious liberty of political
minorities - a specially protected constitutional value - to the common
everyday economic and public welfare objectives of the majority in the
legislature. This time, even inadvertent interference with religion must
pass judicial scrutiny under the Free Exercise Clause with only grave
and immediate danger sufficing to override religious liberty. But the
seeds of this heightened scrutiny would only grow to a full flower in the
1960s.[167]
Nearly a century after Reynolds employed the belief-action test, the
Warren Court began the modern free exercise
jurisprudence.[168]A two-part balancing test was established
in Braunfeld v. Brown[169] where the Court considered
constitutionality of applying Sunday closing laws to Orthodox Jews
whose beliefs required them to observe another day as the Sabbath and
abstain from commercial activity on Saturday. Chief Justice Warren,
writing for the Court, found that the law placed a severe burden on
Sabattarian retailers. He noted, however, that since the burden was the
indirect effect of a law with a secular purpose, it would violate the Free
Exercise Clause only if there were alternative ways of achieving the
states interest. He employed a two-part balancing test of validity where
the first step was for plaintiff to show that the regulation placed a real
burden on his religious exercise. Next, the burden would be upheld only
if the state showed that it was pursuing an overriding secular goal by the
means which imposed the least burden on religious practices.[170] The
Court found that the state had an overriding secular interest in setting
aside a single day for rest, recreation and tranquility and there was no
alternative means of pursuing this interest but to require Sunday as a
uniform rest day.
Two years after came the stricter compelling state interest test in the
1963 case of Sherbert v. Verner.[171] This test was similar to the two-
part balancing test in Braunfeld,[172] but this latter test stressed that the
state interest was not merely any colorable state interest, but must be
paramount and compelling to override the free exercise claim. In this
case, Sherbert, a Seventh Day Adventist, claimed unemployment
compensation under the law as her employment was terminated for
refusal to work on Saturdays on religious grounds. Her claim was
denied. She sought recourse in the Supreme Court. In laying down the
standard for determining whether the denial of benefits could withstand
constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellees conscientious objection to Saturday work
constitutes no conduct prompted by religious principles of a kind within
the reach of state legislation. If, therefore, the decision of the South
Carolina Supreme Court is to withstand appellants constitutional
challenge, it must be either because her disqualification as a beneficiary
represents no infringement by the State of her constitutional rights of
free exercise, or because any incidental burden on the free exercise of
appellants religion may be justified by a compelling state interest in the
regulation of a subject within the States constitutional power to regulate.
. . NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct
328.[173] (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it
is not sufficient to merely show a rational relationship of the substantial
infringement to the religious right and a colorable state interest. (I)n this
highly sensitive constitutional area, [o]nly the gravest abuses,
endangering paramount interests, give occasion for permissible
limitation. Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S
Ct 315.[174] The Court found that there was no such compelling state
interest to override Sherberts religious liberty. It added that even if the
state could show that Sherberts exemption would pose serious
detrimental effects to the unemployment compensation fund and
scheduling of work, it was incumbent upon the state to show that no
alternative means of regulations would address such detrimental effects
the
without infringing religious liberty. The state, however, did not discharge
this burden. The Court thus carved out for Sherbert an exemption from
the Saturday work requirement that caused her disqualification from
claiming the unemployment benefits. The Court reasoned that upholding
the denial of Sherberts benefits would force her to choose between
receiving benefits and following her religion.This choice placed the same
kind of burden upon the free exercise of religion as would a fine imposed
against (her) for her Saturday worship. This germinal case
of Sherbert firmly established the exemption doctrine, [175] viz:
It is certain that not every conscience can be accommodated by all the
laws of the land; but when general laws conflict with scruples of
conscience, exemptions ought to be granted unless some compelling
state interest intervenes.
Thus, in a short period of twenty-three years from Gobitis to Sherbert (or
even as early as Braunfeld), the Court moved from the doctrine that
inadvertent or incidental interferences with religion raise no problem
under the Free Exercise Clause to the doctrine that such interferences
violate the Free Exercise Clause in the absence of a compelling state
interest - the highest level of constitutional scrutiny short of a holding of
a per se violation. Thus, the problem posed by the belief-action test and
the deliberate-inadvertent distinction was addressed.[176]
Throughout the 1970s and 1980s under the Warren, and afterwards, the
Burger Court, the rationale in Sherbert continued to be
applied. In Thomas v. Review Board[177] and Hobbie v. Unemployment
Appeals Division,[178] for example, the Court reiterated the exemption
doctrine and held that in the absence of a compelling justification, a state
could not withhold unemployment compensation from an employee who
resigned or was discharged due to unwillingness to depart from religious
practices and beliefs that conflicted with job requirements. But not every
governmental refusal to allow an exemption from a regulation which
burdens a sincerely held religious belief has been invalidated, even
though strict or heightened scrutiny is applied. In United States v.
Lee,[179] for instance, the Court using strict scrutiny and referring
to Thomas, upheld the federal governments refusal to exempt Amish
employers who requested for exemption from paying social security
taxes on wages on the ground of religious beliefs. The Court held that
(b)ecause the broad public interest in maintaining a sound tax system is
of such a high order, religious belief in conflict with the payment of taxes
affords no basis for resisting the tax.[180] It reasoned that unlike
in Sherbert, an exemption would significantly impair governments
achievement of its objective - the fiscal vitality of the social security
system; mandatory participation is indispensable to attain this
objective. The Court noted that if an exemption were made, it would be
hard to justify not allowing a similar exemption from general federal
taxes where the taxpayer argues that his religious beliefs require him to
reduce or eliminate his payments so that he will not contribute to the
governments war-related activities, for example.
The strict scrutiny and compelling state interest test significantly
increased the degree of protection afforded to religiously motivated
conduct. While not affording absolute immunity to religious activity, a
compelling secular justification was necessary to uphold public policies
that collided with religious practices. Although the members of the Court
often disagreed over which governmental interests should be
considered compelling, thereby producing dissenting and separate
opinions in religious conduct cases, this general test established a
strong presumption in favor of the free exercise of religion.[181]
Heightened scrutiny was also used in the 1972 case of Wisconsin v.
Yoder[182] where the Court upheld the religious practice of the Old
Order Amish faith over the states compulsory high school attendance
law. The Amish parents in this case did not permit secular education of
their children beyond the eighth grade. Chief Justice Burger, writing for
the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance
beyond the eighth grade against a claim that such attendance interferes
with the practice of a legitimate religious belief, it must appear either that
the State does not deny the free exercise of religious belief by its
requirement, or that there is a state interest of sufficient magnitude to
override the interest claiming protection under the Free Exercise
Clause. Long before there was general acknowledgement of the need
for universal education, the Religion Clauses had specially and firmly
fixed the right of free exercise of religious beliefs, and buttressing this
fundamental right was an equally firm, even if less explicit, prohibition
against the establishment of any religion. The values underlying these
two provisions relating to religion have been zealously protected,
sometimes even at the expense of other interests of admittedly high
social importance. . .
The essence of all that has been said and written on the subject is
that only those interests of the highest order and those not otherwise
served can overbalance legitimate claims to the free exercise of
religion. . .
. . . our decisions have rejected the idea that that religiously grounded
conduct is always outside the protection of the Free Exercise Clause. It
is true that activities of individuals, even when religiously based, are
often subject to regulation by the States in the exercise of their
undoubted power to promote the health, safety, and general welfare, or
the Federal government in the exercise of its delegated powers . . . But
to agree that religiously grounded conduct must often be subject to the
broad police power of the State is not to deny that there are areas of
conduct protected by the Free Exercise Clause of the First Amendment
and thus beyond the power of the State to control, even under
regulations of general applicability. . . .This case, therefore, does not
become easier because respondents were convicted for their actions in
refusing to send their children to the public high school; in this context
belief and action cannot be neatly confined in logic-tight compartments.
. . [183]
The onset of the 1990s, however, saw a major setback in the protection
afforded by the Free Exercise Clause. In Employment Division, Oregon
Department of Human Resources v. Smith,[184] the sharply
divided Rehnquist Court dramatically departed from the heightened
scrutiny and compelling justification approach and imposed serious
limits on the scope of protection of religious freedom afforded by the
First Amendment. In this case, the well-established practice of the
Native American Church, a sect outside the Judeo-Christian mainstream
of American religion, came in conflict with the states interest in
prohibiting the use of illicit drugs. Oregons controlled substances statute
made the possession of peyote a criminal offense. Two members of the
church, Smith and Black, worked as drug rehabilitation counselors for a
private social service agency in Oregon. Along with other church
members, Smith and Black ingested peyote, a hallucinogenic drug, at a
sacramental ceremony practiced by Native Americans for hundreds of
years. The social service agency fired Smith and Black citing their use
of peyote as job-related misconduct. They applied for unemployment
compensation, but the Oregon Employment Appeals Board denied their
application as they were discharged for job-related misconduct. Justice
Scalia, writing for the majority, ruled that if prohibiting the exercise of
religion . . . is . . . merely the incidental effect of a generally applicable
and otherwise valid law, the First Amendment has not been offended. In
other words, the Free Exercise Clause would be offended only if a
particular religious practice were singled out for proscription. The
majority opinion relied heavily on the Reynolds case and in effect,
equated Oregons drug prohibition law with the anti-polygamy statute
in Reynolds. The relevant portion of the majority opinion held, viz:
We have never invalidated any governmental action on the basis of
the Sherbert test except the denial of unemployment compensation.
Even if we were inclined to breathe into Sherbert some life beyond the a minority religion as a result of ignorance or sensitivity of the religious
unemployment compensation field, we would not apply it to require and political majority is no less an interference with the minoritys
exemptions from a generally applicable criminal law. . . religious freedom. If the regulation had instead restricted the majoritys
religious practice, the majoritarian legislative process would in all
We conclude today that the sounder approach, and the approach in
probability have modified or rejected the regulation. Thus, the imposition
accord with the vast majority of our precedents, is to hold the test
of the political majoritys non-religious objectives at the expense of the
inapplicable to such challenges. The governments ability to enforce
minoritys religious interests implements the majoritys religious viewpoint
generally applicable prohibitions of socially harmful conduct, like its
at the expense of the minoritys. Second, government impairment of
ability to carry out other aspects of public policy, cannot depend on
religious liberty would most often be of the inadvertent kind as
measuring the effects of a governmental action on a religious objectors
in Smith considering the political culture where direct and deliberate
spiritual development. . . .To make an individuals obligation to obey such
regulatory imposition of religious orthodoxy is nearly inconceivable. If
a law contingent upon the laws coincidence with his religious beliefs
the Free Exercise Clause could not afford protection to inadvertent
except where the States interest is compelling - permitting him, by virtue
interference, it would be left almost meaningless. Third, the Reynolds-
of his beliefs, to become a law unto himself, . . . - contradicts both
Gobitis-Smith doctrine simply defies common sense.The state should
constitutional tradition and common sense.
not be allowed to interfere with the most deeply held fundamental
Justice OConnor wrote a concurring opinion pointing out that the religious convictions of an individual in order to pursue some trivial state
majoritys rejection of the compelling governmental interest test was the economic or bureaucratic objective. This is especially true when there
most controversial part of the decision. Although she concurred in the are alternative approaches for the state to effectively pursue its objective
result that the Free Exercise Clause had not been offended, she sharply without serious inadvertent impact on religion.[186]
criticized the majority opinion as a dramatic departure from well-settled
Thus, the Smith decision has been criticized not only for increasing the
First Amendment jurisprudence. . . and . . . (as) incompatible with our
power of the state over religion but as discriminating in favor of
Nations fundamental commitment to religious liberty. This portion of her
mainstream religious groups against smaller, more peripheral groups
concurring opinion was supported by Justices Brennan, Marshall and
who lack legislative clout,[187] contrary to the original theory of the First
Blackmun who dissented from the Courts decision. Justice OConnor
Amendment.[188] Undeniably, claims for judicial exemption emanate
asserted that (t)he compelling state interest test effectuates the First
almost invariably from relatively politically powerless minority religions
Amendments command that religious liberty is an independent liberty,
and Smith virtually wiped out their judicial recourse for
that it occupies a preferred position, and that the Court will not permit
exemption.[189] Thus, the Smith decision elicited much negative public
encroachments upon this liberty, whether direct or indirect, unless
reaction especially from the religious community, and commentaries
required by clear and compelling government interest of the highest
insisted that the Court was allowing the Free Exercise Clause to
order. Justice Blackmun registered a separate dissenting opinion, joined
disappear.[190]So much was the uproar that a majority in Congress was
by Justices Brennan and Marshall. He charged the majority with
convinced to enact the Religious Freedom Restoration Act (RFRA) of
mischaracterizing precedents and overturning. . . settled law concerning
1993. The RFRA prohibited government at all levels from substantially
the Religion Clauses of our Constitution. He pointed out that the Native
burdening a persons free exercise of religion, even if such burden
American Church restricted and supervised the sacramental use of
resulted from a generally applicable rule, unless the government could
peyote.Thus, the state had no significant health or safety justification for
demonstrate a compelling state interest and the rule constituted the least
regulating the sacramental drug use. He also observed that Oregon had
restrictive means of furthering that interest.[191] RFRA, in effect, sought
not attempted to prosecute Smith or Black, or any Native Americans, for
to overturn the substance of the Smith ruling and restore the status
that matter, for the sacramental use of peyote. In conclusion, he said
quo prior to Smith. Three years after the RFRA was enacted, however,
that Oregons interest in enforcing its drug laws against religious use of
the Court, dividing 6 to 3, declared the RFRA unconstitutional in City of
peyote (was) not sufficiently compelling to outweigh respondents right
Boerne v. Flores.[192] The Court ruled that RFRA contradicts vital
to the free exercise of their religion.
principles necessary to maintain separation of powers and the federal
The Court went back to the Reynolds and Gobitis doctrine in Smith. The balance. It emphasized the primacy of its role as interpreter of the

Courts standard in Smith virtually eliminated the requirement that the Constitution and unequivocally rejected, on broad institutional grounds,
government justify with a compelling state interest the burdens on a direct congressional challenge of final judicial authority on a question
religious exercise imposed by laws neutral toward religion. The Smith of constitutional interpretation.

doctrine is highly unsatisfactory in several respects and has been

After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of
criticized as exhibiting a shallow understanding of free exercise
Hialeah[193] which was ruled consistent with the Smith doctrine.This
jurisprudence.[185] First, the First amendment was intended to protect
case involved animal sacrifice of the Santeria, a blend of Roman
minority religions from the tyranny of the religious and political
Catholicism and West African religions brought to the Carribean by East
majority. A deliberate regulatory interference with minority religious
African slaves. An ordinance made it a crime to unnecessarily kill,
freedom is the worst form of this tyranny. But regulatory interference with
torment, torture, or mutilate an animal in public or private ritual or
ceremony not for the primary purpose of food consumption. The
ordinance came as a response to the local concern over the sacrificial
practices of the Santeria. Justice Kennedy, writing for the majority,
carefully pointed out that the questioned ordinance was not a generally
applicable criminal prohibition, but instead singled out practitioners of
the Santeria in that it forbade animal slaughter only insofar as it took
place within the context of religious rituals.
It may be seen from the foregoing cases that under the Free Exercise
Clause, religious belief is absolutely protected, religious speech and
proselytizing are highly protected but subject to restraints applicable to
non-religious speech, and unconventional religious practice receives
less protection; nevertheless conduct, even if its violates a law, could be
accorded protection as shown in Wisconsin.[194]
B. Establishment Clause
The Courts first encounter with the Establishment Clause was in the
1947 case of Everson v. Board of Education.[195] Prior cases had made
passing reference to the Establishment Clause[196] and raised
establishment questions but were decided on other grounds.[197] It was
in the Everson case that the U.S. Supreme Court adopted Jeffersons
metaphor of a wall of separation between church and state as
encapsulating the meaning of the Establishment Clause. The often and
loosely used phrase separation of church and state does not appear in
the U.S. Constitution. It became part of U.S. jurisprudence when the
Court in the 1878 case of Reynolds v. United States[198] quoted
Jeffersons famous letter of 1802 to the Danbury Baptist Association in
narrating the history of the religion clauses, viz:
Believing with you that religion is a matter which lies solely between man
and his God; that he owes account to none other for his faith or his
worship; that the legislative powers of the Government reach actions
only, and not opinions, I contemplate with sovereign reverence that act
of the whole American people which declared that their Legislature
should make no law respecting an establishment of religion or
prohibiting the free exercise thereof, thus building a wall of separation
between Church and State.[199] (emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, (c)oming as
this does from an acknowledged leader of the advocates of the measure,
it may be accepted almost as an authoritative declaration of the scope
and effect of the amendment thus secured.[200]
The interpretation of the Establishment Clause has in large part been in
cases involving education, notably state aid to private religious schools
and prayer in public schools.[201] In Everson v. Board of Education, for
example, the issue was whether a New Jersey local school board could
reimburse parents for expenses incurred in transporting their children to
and from Catholic schools. The reimbursement was part of a general
program under which all parents of children in public schools and
nonprofit private schools, regardless of religion, were entitled to
reimbursement for transportation costs. Justice Hugo Black, writing for
a sharply divided Court, justified the reimbursements on the child benefit
theory, i.e., that the school board was merely furthering the states
legitimate interest in getting children regardless of their religion, safely
and expeditiously to and from accredited schools. The Court, after
narrating the history of the First Amendment in Virginia, interpreted the
Establishment Clause, viz:
The establishment of religion clause of the First Amendment means at
least this: Neither a state nor the Federal Government can set up a
church. Neither can pass laws which aid one religion, aid all religions, or
prefer one religion over another. Neither can force nor influence a
person to go to or remain away from church against his will or force him
to profess a belief or disbelief in any religion. No person can be punished
for entertaining or professing religious beliefs or disbeliefs, for church
attendance or non-attendance. No tax in any amount, large or small, can
be levied to support any religious activities or institutions, whatever they
may be called, or whatever form they may adopt to teach or practice
religion. Neither a state nor the Federal Government can, openly or
secretly participate in the affairs of any religious organizations or groups
and vice versa. In the words of Jefferson, the clause against
establishment of religion by law was intended to erect a wall of
separation between Church and State.[202]
The Court then ended the opinion, viz:
The First Amendment has erected a wall between church and
state. That wall must be kept high and impregnable. We could not
approve the slightest breach. New Jersey has not breached it here.[203]
By 1971, the Court integrated the different elements of the Courts
Establishment Clause jurisprudence that evolved in the 1950s and
1960s and laid down a three-pronged test in Lemon v. Kurtzman[204] in
determining the constitutionality of policies challenged under the
Establishment Clause. This case involved a Pennsylvania statutory
program providing publicly funded reimbursement for the cost of
teachers salaries, textbooks, and instructional materials in secular
subjects and a Rhode Island statute providing salary supplements to
teachers in parochial schools. The Lemon test requires a challenged
policy to meet the following criteria to pass scrutiny under the
Establishment Clause. First, the statute must have a secular legislative
purpose; second, its primary or principal effect must be one that neither
advances nor inhibits religion (Board of Education v. Allen, 392 US 236,
243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute
must not foster an excessive entanglement with religion. (Walz v.Tax
Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409
[1970]) (emphasis supplied)[205] Using this test, the Court held that the
Pennsylvania statutory program and Rhode Island statute were
unconstitutional as fostering excessive entanglement between
government and religion.
The most controversial of the education cases involving the
Establishment Clause are the school prayer decisions. Few decisions of
the modern Supreme Court have been criticized more intensely than the
school prayer decisions of the early 1960s.[206] In the 1962 case
of Engel v. Vitale,[207] the Court invalidated a New York Board of
Regents policy that established the voluntary recitation of a brief generic
prayer by children in the public schools at the start of each school
day. The majority opinion written by Justice Black stated that in this
country it is no part of the business of government to compose official
prayers for any group of the American people to recite as part of a
religious program carried on by government. In fact, history shows that
this very practice of establishing governmentally composed prayers for
religious services was one of the reasons that caused many of the early
colonists to leave England and seek religious freedom in America. The
Court called to mind that the first and most immediate purpose of the
Establishment Clause rested on the belief that a union of government
and religion tends to destroy government and to degrade religion. The
following year, the Engel decision was reinforced in Abington School
District v. Schempp[208] and Murray v. Curlett[209] where the Court
struck down the practice of Bible reading and the recitation of the Lords
prayer in the Pennsylvania and Maryland schools. The Court held that
to withstand the strictures of the Establishment Clause, a statute must
have a secular legislative purpose and a primary effect that neither
advances nor inhibits religion. It reiterated, viz:
The wholesome neutrality of which this Courts cases speak thus stems
from a recognition of the teachings of history that powerful sects or
groups might bring about a fusion of governmental and religious
functions or a concert or dependency of one upon the other to the end
that official support of the State of Federal Government would be placed
behind the tenets of one or of all orthodoxies. This the Establishment
Clause prohibits. And a further reason for neutrality is found in the Free
Exercise Clause, which recognizes the value of religious training,
teaching and observance and, more particularly, the right of every
person to freely choose his own course with reference thereto, free of
any compulsion from the state.[210]
The school prayer decisions drew furious reactions. Religious leaders
and conservative members of Congress and resolutions passed by
several state legislatures condemned these decisions.[211] On several
occasions, constitutional amendments have been introduced in
Congress to overturn the school prayer decisions. Still, the Court has
maintained its position and has in fact reinforced it in the 1985 case
of Wallace v. Jaffree[212] where the Court struck down an Alabama law
that required public school students to observe a moment of silence for
the purpose of meditation or voluntary prayer at the start of each school
day.
Religious instruction in public schools has also pressed the Court to
interpret the Establishment Clause. Optional religious instruction within
public school premises and instructional time were declared offensive of
the Establishment Clause in the 1948 case of McCollum v. Board of
Education,[213] decided just a year after the seminal Everson case. In
this case, interested members of the Jewish, Roman Catholic and a few
Protestant faiths obtained permission from the Board of Education to
offer classes in religious instruction to public school students in grades
four to nine. Religion classes were attended by pupils whose parents
signed printed cards requesting that their children be permitted to
attend. The classes were taught in three separate groups by Protestant
teachers, Catholic priests and a Jewish rabbi and were held weekly from
thirty to forty minutes during regular class hours in the regular
classrooms of the school building. The religious teachers were
employed at no expense to the school authorities but they were subject
to the approval and supervision of the superintendent of
schools. Students who did not choose to take religious instruction were
required to leave their classrooms and go to some other place in the
school building for their secular studies while those who were released
from their secular study for religious instruction were required to attend
the religious classes. The Court held that the use of tax-supported
property for religious instruction and the close cooperation between the
school authorities and the religious council in promoting religious
education amounted to a prohibited use of tax-established and tax-
supported public school system to aid religious groups spread their
faith. The Court rejected the claim that the Establishment Clause only
prohibited government preference of one religion over another and not
an impartial governmental assistance of all religions. In Zorach v.
Clauson,[214] however, the Court upheld released time programs
allowing students in public schools to leave campus upon parental
permission to attend religious services while other students attended
study hall. Justice Douglas, the writer of the opinion, stressed that (t)he
First Amendment does not require that in every and all respects there
shall be a separation of Church and State. The Court
distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used for religious instruction
and the force of the public school was used to promote that instruction.
. . We follow the McCollum case. But we cannot expand it to cover the
present released time program unless separation of Church and State
means that public institutions can make no adjustments of their
schedules to accommodate the religious needs of the people. We
cannot read into the Bill of Rights such a philosophy of hostility to
religion.[215]
In the area of government displays or affirmations of belief, the Court
has given leeway to religious beliefs and practices which have acquired
a secular meaning and have become deeply entrenched in history. For
instance, in McGowan v. Maryland,[216] the Court upheld laws that
prohibited certain businesses from operating on Sunday despite the
obvious religious underpinnings of the restrictions. Citing the secular
purpose of the Sunday closing laws and treating as incidental the fact
that this day of rest happened to be the day of worship for most
Christians, the Court held, viz:
It is common knowledge that the first day of the week has come to have
special significance as a rest day in this country. People of all religions
and people with no religion regard Sunday as a time for family activity,
for visiting friends and relatives, for later sleeping, for passive and active
entertainments, for dining out, and the like.[217]
In the 1983 case of Marsh v. Chambers,[218] the Court refused to
invalidate Nebraskas policy of beginning legislative sessions with
prayers offered by a Protestant chaplain retained at the taxpayers
expense. The majority opinion did not rely on the Lemon test and
instead drew heavily from history and the need for accommodation of
popular religious beliefs, viz:
In light of the unambiguous and unbroken history of more than 200
years, there can be no doubt that the practice of opening legislative
sessions with prayer has become the fabric of our society. To invoke
Divine guidance on a public body entrusted with making the laws is not,
in these circumstances, an establishment of religion or a step toward
establishment; it is simply a tolerable acknowledgement of beliefs widely
held among the people of this country. As Justice Douglas observed,
(w)e are a religious people whose institutions presuppose a Supreme
Being. (Zorach c. Clauson, 343 US 306, 313 [1952])[219] (emphasis
supplied)
Some view the Marsh ruling as a mere aberration as the Court would
inevitably be embarrassed if it were to attempt to strike down a practice
that occurs in nearly every legislature in the United States, including the
U.S. Congress.[220] That Marsh was not an aberration is suggested by
subsequent cases. In the 1984 case of Lynch v. Donnelly,[221] the
Court upheld a city-sponsored nativity scene in Rhode Island. By a 5-4
decision, the majority opinion hardly employed the Lemon test and again
relied on history and the fact that the creche had become a neutral
harbinger of the holiday season for many, rather than a symbol of
Christianity.
The Establishment Clause has also been interpreted in the area of tax
exemption. By tradition, church and charitable institutions have been
exempt from local property taxes and their income exempt from federal
and state income taxes. In the 1970 case of Walz v. Tax
Commission,[222] the New York City Tax Commissions grant of
property tax exemptions to churches as allowed by state law was
challenged by Walz on the theory that this required him to subsidize
those churches indirectly. The Court upheld the law stressing its
neutrality, viz:
It has not singled out one particular church or religious group or even
churches as such; rather, it has granted exemptions to all houses of
religious worship within a broad class of property owned by non-profit,
quasi-public corporations . . . The State has an affirmative policy that
considers these groups as beneficial and stabilizing influences in
community life and finds this classification useful, desirable, and in the
public interest.[223]
The Court added that the exemption was not establishing religion but
sparing the exercise of religion from the burden of property taxation
levied on private profit institutions[224] and preventing excessive
entanglement between state and religion. At the same time, the Court
acknowledged the long-standing practice of religious tax exemption and
the Courts traditional deference to legislative bodies with respect to the
taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of our national
life, beginning with pre-Revolutionary colonial times, than for the
government to exercise . . . this kind of benevolent neutrality toward
churches and religious exercise generally so long as none was favored
over others and none suffered interference.[225] (emphasis supplied)
C. Strict Neutrality v. Benevolent Neutrality
To be sure, the cases discussed above, while citing many landmark
decisions in the religious clauses area, are but a small fraction of the
hundreds of religion clauses cases that the U.S. Supreme Court has
passed upon. Court rulings contrary to or making nuances of the above
cases may be cited. Professor McConnell poignantly recognizes
this, viz:
Thus, as of today, it is constitutional for a state to hire a Presbyterian
minister to lead the legislature in daily prayers (Marsh v. Chambers, 463
US783, 792-93[1983]), but unconstitutional for a state to set aside a
moment of silence in the schools for children to pray if they want to
(Wallace v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional for a
state to require employers to accommodate their employees work
schedules to their sabbath observances (Estate of Thornton v. Caldor,
Inc., 472 US 703, 709-10 [1985]) but constitutionally mandatory for a
state to require employers to pay workers compensation when the
resulting inconsistency between work and sabbath leads to discharge (.
. .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is constitutional for
the government to give money to religiously-affiliated organizations to
teach adolescents about proper sexual behavior (Bowen v. Kendrick,
487 US 589, 611 [1988]), but not to teach them science or history
(Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional
for the government to provide religious school pupils with books (Board
of Education v. Allen, 392 US 236, 238 [1968]), but not with maps
(Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus rides to
religious schools (Everson v. Board of Education, 330 US 1, 17 [1947]),
but not from school to a museum on a field trip (Wolman v. Walter, 433
US 229, 252-55 [1977]); with cash to pay for state-mandated
standardized tests (Committee for Pub. Educ. and Religious Liberty v.
Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-related
maintenance (Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80
[1973]). It is a mess.[226]
But the purpose of the overview is not to review the entirety of the U.S.
religion clause jurisprudence nor to extract the prevailing case law
regarding particular religious beliefs or conduct colliding with particular
government regulations. Rather, the cases discussed above suffice to
show that, as legal scholars observe, this area of jurisprudence
has demonstrated two main standards used by the Court in deciding
religion clause cases: separation (in the form of strict separation or the
tamer version of strict neutrality or separation) and benevolent neutrality
or accommodation. The weight of current authority, judicial and in terms
of sheer volume, appears to lie with the separationists, strict or
tame.[227] But the accommodationists have also attracted a number of
influential scholars and jurists.[228] The two standards producing two
streams of jurisprudence branch out respectively from the history of the
First Amendment in England and the American colonies and climaxing
in Virginia as narrated in this opinion and officially acknowledged by the
Court in Everson, and from American societal life which reveres religion
and practices age-old religious traditions. Stated otherwise, separation - harmony.[235] Thus, according to this Jeffersonian view, the
strict or tame - protects the principle of church-state separation with a Establishment Clause being meant to protect the state from the church,
rigid reading of the principle while benevolent neutrality protects the states hostility towards religion allows no interaction between the
religious realities, tradition and established practice with a flexible two.[236] In fact, when Jefferson became President, he refused to
reading of the principle.[229] The latter also appeals to history in support proclaim fast or thanksgiving days on the ground that these are religious
of its position, viz: exercises and the Constitution prohibited the government from
intermeddling with religion.[237] This approach erects an absolute
The opposing school of thought argues that the First Congress intended
barrier to formal interdependence of religion and state. Religious
to allow government support of religion, at least as long as that support
institutions could not receive aid, whether direct or indirect, from the
did not discriminate in favor of one particular religion. . . the Supreme
state. Nor could the state adjust its secular programs to alleviate
Court has overlooked many important pieces of history. Madison, for
burdens the programs placed on believers.[238] Only the complete
example, was on the congressional committee that appointed a
separation of religion from politics would eliminate the formal influence
chaplain, he declared several national days of prayer and fasting during
of religious institutions and provide for a free choice among political
his presidency, and he sponsored Jeffersons bill for punishing Sabbath
views thus a strict wall of separation is necessary.[239] Strict separation
breakers; moreover, while president, Jefferson allowed federal support
faces difficulties, however, as it is deeply embedded in history and
of religious missions to the Indians. . . And so, concludes one recent
contemporary practice that enormous amounts of aid, both direct and
book, there is no support in the Congressional records that either the
indirect, flow to religion from government in return for huge amounts of
First Congress, which framed the First Amendment, or its principal
mostly indirect aid from religion. Thus, strict separationists are caught in
author and sponsor, James Madison, intended that Amendment to
an awkward position of claiming a constitutional principle that has never
create a state of complete independence between religion and
existed and is never likely to.[240]
government. In fact, the evidence in the public documents goes the
other way.[230] (emphasis supplied) A tamer version of the strict separationist view, the strict
neutrality or separationist view is largely used by the Court, showing the
To succinctly and poignantly illustrate the historical basis of
Courts tendency to press relentlessly towards a more secular
benevolent neutrality that gives room for accommodation, less than
society.[241] It finds basis in the Everson case where the Court declared
twenty-four hours after Congress adopted the First Amendments
that Jeffersons wall of separation encapsulated the meaning of the First
prohibition on laws respecting an establishment of religion, Congress
Amendment but at the same time held that the First Amendment
decided to express its thanks to God Almighty for the many blessings
requires the state to be neutral in its relations with groups of religious
enjoyed by the nation with a resolution in favor of a presidential
believers and non-believers; it does not require the state to be their
proclamation declaring a national day of Thanksgiving and Prayer. Only
adversary. State power is no more to be used so as to handicap religions
two members of Congress opposed the resolution, one on the ground
than it is to favor them. (emphasis supplied)[242]While the strict
that the move was a mimicking of European customs, where they made
neutrality approach is not hostile to religion, it is strict in holding that
a mere mockery of thanksgivings, the other on establishment clause
religion may not be used as a basis for classification for purposes of
concerns. Nevertheless, the salutary effect of thanksgivings throughout
governmental action, whether the action confers rights or privileges or
Western history was acknowledged and the motion was passed without
imposes duties or obligations. Only secular criteria may be the basis of
further recorded discussion.[231] Thus, accommodationists also go
government action. It does not permit, much less require,
back to the framers to ascertain the meaning of the First Amendment,
accommodation of secular programs to religious belief.[243]Professor
but prefer to focus on acts rather than words. Contrary to the claim of
Kurland wrote, viz:
separationists that rationalism pervaded America in the late 19th century
and that America was less specifically Christian during those years than The thesis proposed here as the proper construction of the religion
at any other time before or since,[232]accommodationaists claim that clauses of the first amendment is that the freedom and separation
American citizens at the time of the Constitutions origins were a clauses should be read as a single precept that government cannot
remarkably religious people in particularly Christian terms.[233] utilize religion as a standard for action or inaction because these clauses
prohibit classification in terms of religion either to confer a benefit or to
The two streams of jurisprudence - separationist or accommodationist -
impose a burden.[244]
are anchored on a different reading of the wall of separation. The strict
separtionist view holds that Jefferson meant the wall of separation to The Court has repeatedly declared that religious freedom means
protect the state from the church. Jefferson was a man of the government neutrality in religious matters and the Court has also
Enlightenment Era of the eighteenth century, characterized by the repeatedly interpreted this policy of neutrality to prohibit government
rationalism and anticlericalism of that philosophic bent.[234] He has from acting except for secular purposes and in ways that have primarily
often been regarded as espousing Deism or the rationalistic belief in a secular effects.[245]
natural religion and natural law divorced from its medieval connection
Prayer in public schools is an area where the Court has applied strict
with divine law, and instead adhering to a secular belief in a universal
neutrality and refused to allow any form of prayer, spoken or silent, in
the public schools as in Engel and Schempp.[246] The McCollum
case prohibiting optional religious instruction within public school
premises during regular class hours also demonstrates strict
neutrality. In these education cases, the Court refused to uphold the
government action as they were based not on a secular but on a
religious purpose. Strict neutrality was also used
in Reynolds and Smithwhich both held that if government acts in pursuit
of a generally applicable law with a secular purpose that merely
incidentally burdens religious exercise, the First Amendment has not
been offended. However, if the strict neutrality standard is applied in
interpreting the Establishment Clause, it could de facto void religious
expression in the Free Exercise Clause. As pointed out by Justice
Goldberg in his concurring opinion in Schempp, strict neutrality could
lead to a brooding and pervasive devotion to the secular and a passive,
or even active, hostility to the religious which is prohibited by the
Constitution.[247] Professor Laurence Tribe commented in his
authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the
very idea of a free exercise clause. The Framers, whatever specific
applications they may have intended, clearly envisioned religion as
something special; they enacted that vision into law by guaranteeing the
free exercise of religion but not, say, of philosophy or science. The strict
neutrality approach all but erases this distinction. Thus it is not surprising
that the Supreme Court has rejected strict neutrality, permitting and
sometimes mandating religious classifications.[248]
The separationist approach, whether strict or tame, is caught in a
dilemma because while the Jeffersonian wall of separation captures the
spirit of the American ideal of church-state separation, in real life church
and state are not and cannot be totally separate.[249] This is all the
more true in contemporary times when both the government and religion
are growing and expanding their spheres of involvement and activity,
resulting in the intersection of government and religion at many
points.[250]
Consequently, the Court has also decided cases employing benevolent
neutrality. Benevolent neutrality which gives room for accommodation is
buttressed by a different view of the wall of separation associated with
Williams, founder of the Rhode Island colony. In Mark DeWolfe Howes
classic, The Garden and the Wilderness, he asserts that to the extent
the Founders had a wall of separation in mind, it was unlike the
Jeffersonian wall that is meant to protect the state from the church;
instead, the wall is meant to protect the church from the state,[251] i.e.,
the garden of the church must be walled in for its own protection from
the wilderness of the world[252] with its potential for corrupting those
values so necessary to religious commitment.[253] Howe called this the
theological or evangelical rationale for church-state separation while the
wall espoused by enlightened statesmen such as Jefferson and
Madison, was a political rationale seeking to protect politics from
intrusions by the church.[254] But it has been asserted that this contrast
between the Williams and Jeffersonian positions is more accurately
described as a difference in kinds or styles of religious thinking, not as
a conflict between religious and secular (political); the religious style was
biblical and evangelical in character while the secular style was
grounded in natural religion, more generic and philosophical in its
religious orientation.[255]
The Williams wall is, however, breached for the church is in the state
and so the remaining purpose of the wall is to safeguard religious
liberty. Williams view would therefore allow for interaction between
church and state, but is strict with regard to state action which would
threaten the integrity of religious commitment.[256] His conception of
separation is not total such that it provides basis for certain interactions
between church and state dictated by apparent necessity or
practicality.[257] This theological view of separation is found in Williams
writings, viz:
. . . when they have opened a gap in the hedge or wall of separation
between the garden of the church and the wilderness of the world, God
hath ever broke down the wall itself, removed the candlestick, and made
his garden a wilderness, as this day. And that therefore if He will eer
please to restore His garden and paradise again, it must of necessity be
walled in peculiarly unto Himself from the world. . .[258]
Chief Justice Burger spoke of benevolent neutrality in Walz, viz:
The general principle deducible from the First Amendment and all that
has been said by the Court is this: that we will not tolerate either
governmentally established religion or governmental interference with
religion. Short of those expressly proscribed governmental acts there is
room for play in the joints productive of a benevolent neutrality which will
permit religious exercise to exist without sponsorship and without
interference.[259] (emphasis supplied)
The Zorach case expressed the doctrine of accommodation,[260] viz:
The First Amendment, however, does not say that in every and all
respects there shall be a separation of Church and State. Rather, it
studiously defines the manner, the specific ways, in which there shall be
no concert or union or dependency one or the other. That is the common
sense of the matter. Otherwise, the state and religion would be aliens to
each other - hostile, suspicious, and even unfriendly. Churches could
not be required to pay even property taxes. Municipalities would not be
permitted to render police or fire protection to religious
groups. Policemen who helped parishioners into their places of worship
would violate the Constitution. Prayers in our legislative halls; the
appeals to the Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; so help me God in
our courtroom oaths- these and all other references to the Almighty that
run through our laws, our public rituals, our ceremonies would be flouting
the First Amendment. A fastidious atheist or agnostic could even object
to the supplication with which the Court opens each session: God save
the United States and this Honorable Court.
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme
Being. We guarantee the freedom to worship as one chooses. . . When
the state encourages religious instruction or cooperates with religious
authorities by adjusting the schedule of public events, it follows the best
of our traditions. For it then respects the religious nature of our people
and accommodates the public service to their spiritual needs. To hold
that it may not would be to find in the Constitution a requirement that the
government show a callous indifference to religious groups. . . But we
find no constitutional requirement which makes it necessary for
government to be hostile to religion and to throw its weight against
efforts to widen their effective scope of religious
influence.[261] (emphases supplied)
Benevolent neutrality is congruent with the sociological proposition that
religion serves a function essential to the survival of society itself, thus
there is no human society without one or more ways of performing the
essential function of religion. Although for some individuals there may
be no felt need for religion and thus it is optional or even dispensable,
for society it is not, which is why there is no human society without one
or more ways of performing the essential function of religion. Even in
ostensibly atheistic societies, there are vigorous underground religion(s)
and surrogate religion(s) in their ideology.[262] As one sociologist wrote:
It is widely held by students of society that there are certain functional
prerequisites without which society would not continue to exist. At first
glance, this seems to be obvious - scarcely more than to say that an
automobile could not exist, as a going system, without a carburetor. . .
Most writers list religion among the functional prerequisites.[263]
Another noted sociologist, Talcott Parsons, wrote: There is no known
human society without something which modern social scientists would
classify as a religionReligion is as much a human universal as
language.[264]
Benevolent neutrality thus recognizes that religion plays an important
role in the public life of the United States as shown by many traditional
government practices which, to strict neutrality, pose Establishment
Clause questions. Among these are the inscription of In God We Trust
on American currency, the recognition of America as one nation under
God in the official pledge of allegiance to the flag, the Supreme Courts
time-honored practice of opening oral argument with the invocation God
save the United States and this honorable Court, and the practice of
Congress and every state legislature of paying a chaplain, usually of a
particular Protestant denomination to lead representatives in
prayer.[265] These practices clearly show the preference for one
theological viewpoint -the existence of and potential for intervention by
a god - over the contrary theological viewpoint of atheism. Church and
government agencies also cooperate in the building of low-cost housing
and in other forms of poor relief, in the treatment of alcoholism and drug
addiction, in foreign aid and other government activities with strong
moral dimension.[266] The persistence of these de
facto establishments are in large part explained by the fact that
throughout history, the evangelical theory of separation, i.e., Williams
wall, has demanded respect for these de facto establishments.[267] But
the separationists have a different explanation. To characterize these
as de jure establishments according to the principle of the Jeffersonian
wall, the U.S. Supreme Court, the many dissenting and concurring
opinions explain some of these practices as de minimisinstances of
government endorsement or as historic governmental practices that
have largely lost their religious significance or at least have proven not
to lead the government into further involvement with religion.[268]
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain
circumstances. Accommodations are government policies that take
religion specifically into account not to promote the governments favored
form of religion, but to allow individuals and groups to exercise their
religion without hindrance. Their purpose or effect therefore is to remove
a burden on, or facilitate the exercise of, a persons or institutions
religion. As Justice Brennan explained, the government [may] take
religion into accountto exempt, when possible, from generally applicable
governmental regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may
flourish.[269] (emphasis supplied) Accommodation is forbearance and
not alliance. it does not reflect agreement with the minority,
but respect for the conflict between the temporal and spiritual authority
in which the minority finds itself.[270]
Accommodation is distinguished from strict neutrality in that the latter
holds that government should base public policy solely on secular
considerations, without regard to the religious consequences of its
actions. The debate between accommodation and strict neutrality is at
base a question of means: Is the freedom of religion best achieved when
the government is conscious of the effects of its action on the various
religious practices of its people, and seeks to minimize interferences
with those practices? Or is it best advanced through a policy of religious
blindness - keeping government aloof from religious practices and
issues? An accommodationist holds that it is good public policy, and
sometimes constitutionally required, for the state to make conscious and
deliberate efforts to avoid interference with religious freedom. On the
other hand, the strict neutrality adherent believes that it is good public
policy, and also constitutionally required, for the government to avoid
religion-specific policy even at the cost of inhibiting religious
exercise.[271]
There are strong and compelling reasons, however, to take
the accommodationist position rather than the strict neutrality
position.First, the accommodationist interpretation is most consistent
with the language of the First Amendment. The religion clauses contain
two parallel provisions, both specifically directed at religion. The
government may not establish religion and neither may government
prohibit it. Taken together, the religion clauses can be read most
plausibly as warding off two equal and opposite threats to religious
freedom - government action that promotes the (political) majoritys
favored brand of religion and government action that impedes religious
practices not favored by the majority. The substantive end in view is the
preservation of the autonomy of religious life and not just the formal
process value of ensuring that government does not act on the basis of
religious bias. On the other hand, strict neutrality interprets the religion
clauses as allowing government to do whatever it desires to or for
religion, as long as it does the same to or for comparable secular
entities. Thus, for example, if government prohibits all alcoholic
consumption by minors, it can prohibit minors from taking part in
communion. Paradoxically, this view would make the religion clauses
violate the religion clauses, so to speak, since the religion clauses single
out religion by name for special protection. Second,
accommodationist position best achieves the purposes of the First
Amendment. The principle underlying the First Amendment
that freedom to carry out ones duties to a Supreme Being is an
inalienable right, not one dependent on the
legislature. Although inalienable, it is necessarily limited by the rights of
others, including the public right of peace and good order. Nevertheless
it is a substantive right and not merely a privilege against discriminatory
legislation. The accomplishment of the purpose of the First Amendment
requires more than the religion blindness of strict neutrality. With the
pervasiveness of government regulation, conflicts with religious
practices become frequent and intense. Laws that are suitable for
secular entities are sometimes inappropriate for religious entities, thus
the government must make special provisions to preserve a degree of
independence for religious entities for them to carry out their religious
missions according to their religious beliefs. Otherwise, religion will
become just like other secular entities subject to pervasive regulation by
majoritarian institutions. Third, the accommodationist interpretation is
particularly necessary to protect adherents of minority religions from the
inevitable effects of majoritarianism,which include ignorance and
indifference and overt hostility to the minority. In a democratic republic,
laws are inevitably based on the presuppositions of the majority, thus
not infrequently, they come into conflict with the religious scruples of
those holding different world views, even in the absence of a deliberate
intent to interfere with religious practice. At times, this effect is
unavoidable as a practical matter because some laws are so necessary
to the common good that exceptions are intolerable. But in other
instances, the injury to religious conscience is so great and the
advancement of public purposes so small or incomparable that only
indifference or hostility could explain a refusal
exemptions. Because of plural traditions, legislators and executive
officials are frequently willing to make such exemptions when the need
is brought to their attention, but this may not always be the case when
the religious practice is either unknown at the time of enactment or is for
some reason unpopular. In these cases, a constitutional interpretation
that allows accommodations prevents needless injury to the religious
consciences of those who can have an influence in the legislature; while
a constitutional interpretation that requires accommodations extends
this treatment to religious faiths that are less able to protect themselves
in the political arena. Fourth, the accommodationist position is practical
as it is a commonsensical way to deal with the various needs and beliefs
of different faiths in a pluralistic nation. Without accommodation, many
otherwise beneficial laws would interfere severely with religious
freedom. Aside from laws against serving alcoholic beverages to minors
conflicting with celebration of communion, regulations requiring hard
hats in construction areas can effectively exclude Amish and Sikhs from
the workplace, or employment anti-discrimination laws can conflict with
the Roman Catholic male priesthood, among others. Exemptions from
such laws are easy to craft and administer and contribute much to
promoting religious freedom at little cost to public policy. Without
exemptions, legislature would be frequently forced to choose between
violating religious conscience of a segment of the population or
the dispensing with legislation it considers beneficial to society as a
whole. Exemption seems manifestly more reasonable than either of the
is alternative: no exemption or no law.[272]
Benevolent neutrality gives room for different kinds
grace of
of accommodation: those which are constitutionally compelled, i.e.,
required by the Free Exercise Clause; and those which are discretionary
or legislative, i.e., and those not required by the Free Exercise Clause
but nonetheless permitted by the Establishment Clause.[273] Some
Justices of the Supreme Court have also used the
term accommodation to describe government actions that acknowledge
or express prevailing religious sentiments of the community such as
display of a religious symbol on public property or the delivery of a prayer
at public ceremonial events.[274] Stated otherwise, using benevolent
neutrality as a standard could result to three situations
of accommodation: those where accommodation is required, those
where it is permissible, and those where it is prohibited. In the first
situation, accommodation is required to preserve free exercise
protections and not unconstitutionally infringe on religious liberty or
create penalties for religious freedom. Contrary to the Smith declaration
that free exercise exemptions are intentional government advancement,
these exemptions merely relieve the prohibition on the free exercise thus
allowing the burdened religious adherent to be left alone. The state must
create exceptions to laws of general applicability when these laws
threaten religious convictions or practices in the absence of a compelling
state interest.[275] By allowing such exemptions, the Free Exercise
Clause does not give believers the right or privilege to choose for
themselves to override socially-prescribed decision; it allows them to
obey spiritual rather than temporal authority[276] for those who seriously
invoke the Free Exercise Clause claim to be fulfilling a solemn
to make
duty. Religious freedom is a matter less of rights than duties; more
precisely, it is a matter of rights derived from duties. To deny a person
or a community the right to act upon such a duty can be justified only by
appeal to a yet more compelling duty. Of course, those denied will
usually not find the reason for the denial compelling. Because they may
turn out to be right about the duty in question, and because, even if they
are wrong, religion bears witness to that which transcends the political
order, such denials should be rare and painfully reluctant.[277]
The Yoder case is an example where the Court held that the state must
accommodate the religious beliefs of the Amish who objected to
enrolling their children in high school as required by law. The Sherbert
case is another example where the Court held that the state
unemployment compensation plan must accommodate the religious
convictions of Sherbert.[278] In these cases of burdensome effect, the
modern approach of the Court has been to apply strict scrutiny, i.e., to
declare the burden as permissible, the Court requires the state to
demonstrate that the regulation which burdens the religious exercise
pursues a particularly important or compelling government goal through
the least restrictive means. If the states objective could be served as
well or almost as well by granting an exemption to those whose religious
beliefs are burdened by the regulation, such an exemption must be
given.[279] This approach of the Court on burdensome effect was only
applied since the 1960s. Prior to this time, the Court took the
separationist view that as long as the state was acting in pursuit of non-
religious ends and regulating conduct rather than pure religious beliefs,
the Free Exercise Clause did not pose a hindrance such as
in Reynolds.[280] In the second situation where accommodation
is permissible, the state may, but is not required to, accommodate
religious interests. The Walz case illustrates this situation where the
Court upheld the constitutionality of tax exemption given by New York to
church properties, but did not rule that the state was required to provide
tax exemptions. The Court declared that (t)he limits of permissible state
accommodation to religion are by no means co-extensive with the
noninterference mandated by the Free Exercise Clause.[281] The Court
held that New York could have an interest in encouraging religious
values and avoiding threats to those values through the burden of
property taxes. Other examples are the Zorach case allowing released
time in public schools and Marsh allowing payment of legislative
chaplains from public funds. Finally, in the situation
accommodation is prohibited, establishment concerns prevail over
potential accommodation interests. To say that there are valid
exemptions buttressed by the Free Exercise Clause does not mean that
all claims for free exercise exemptions are valid.[282] An example where
accommodation was prohibited is McCollum where the Court ruled
against optional religious instruction in the public
premises.[283] In effect, the last situation would arrive at a strict
neutrality conclusion.
In the first situation where accommodation is required, the approach
follows this basic framework:
If the plaintiff can show that a law or government practice inhibits the
free exercise of his religious beliefs, the burden shifts to the government
to demonstrate that the law or practice is necessary to the
accomplishment of some important (or compelling) secular objective
and that it is the least restrictive means of achieving that objective. If the
plaintiff meets this burden and the government does not, the plaintiff is
entitled to exemption from the law or practice at issue. In order to be
protected, the claimants beliefs must be sincere, but they need not
necessarily be consistent, coherent, clearly articulated, or congruent
with those of the claimants religious denomination. Only beliefs rooted
in religion are protected by the Free Exercise Clause; secular beliefs,
however sincere and conscientious, do not suffice.[284]
In other words, a three-step process (also referred to as the two-step
balancing process supra when the second and third steps are
combined) as in Sherbert is followed in weighing the states interest and
religious freedom when these collide. Three questions are answered in
this process. First, (h)as the statute or government action created a
burden on the free exercise of religion? The courts often look into
the sincerity of the religious belief, but without inquiring into the truth of
the belief because the Free Exercise Clause prohibits inquiring about its
truth as held in Ballard and Cantwell. The sincerity of the claimants
belief is ascertained to avoid the mere claim of religious beliefs to
escape a mandatory regulation. As evidence of sincerity, the U.S.
Supreme Court has considered historical evidence as
in Wisconsin where the Amish people had held a long-standing
objection to enrolling their children in ninth and tenth grades in public
high schools. In another case, Dobkin v. District of Columbia,[285] the
Court denied the claim of a party who refused to appear in court on
Saturday alleging he was a Sabbatarian, but the Court noted that he
regularly conducted business on Saturday. Although it is true that the
Court might erroneously deny some claims because of a misjudgment
of sincerity, this is not as argument to reject all claims by not allowing
accommodation as a rule. There might be injury to the particular
claimant or to his religious community, but for the most part, the injustice
is done only in the particular case.[286] Aside from the sincerity, the
court may look into the centrality of those beliefs, assessing them not on
an objective basis but in terms of the opinion and belief of the person
seeking exemption. In Wisconsin, for example, the Court noted that the
Amish peoples convictions against becoming involved in public high
where schools were central to their way of life and faith. Similarly, in Sherbert,
the Court concluded that the prohibition against Saturday work was a
cardinal principle.[287] Professor Lupu puts to task the person claiming
exemption, viz:
On the claimants side, the meaning and significance of the relevant
religious practice must be demonstrated. Religious command should
school
outweigh custom, individual conscience should count for more than
personal convenience, and theological principle should be of greater
significance than institutional ease.Sincerity matters, (footnote omitted)
and longevity of practice - both by the individual and within the
individuals religious tradition - reinforces sincerity.Most importantly, the
law of free exercise must be inclusive and expansive, recognizing non-
Christian religions - eastern, Western, aboriginal and otherwise - as
constitutionally equal to their Christian counterparts, and accepting of
the intensity and scope of fundamentalist creed.[288]
Second, the court asks: (i)s there a sufficiently compelling state interest
to justify this infringement of religious liberty? In this step, the
government has to establish that its purposes are legitimate for the state
and that they are compelling. Government must do more than assert the
objectives at risk if exemption is given; it must precisely show how and
to what extent those objectives will be undermined if exemptions are
granted.[289] The person claiming religious freedom, on the other hand,
will endeavor to show that the interest is not legitimate or that the
purpose, although legitimate, is not compelling compared to
infringement of religious liberty. This step involves balancing, i.e.,
weighing the interest of the state against religious liberty to determine
which is more compelling under the particular set of facts. The greater
the states interests, the more central the religious belief would have to
be to overcome it. In assessing the state interest, the court will have to
determine the importance of the secular interest and the extent to which
that interest will be impaired by an exemption for the religious
practice. Should the court find the interest truly compelling, there will be
no requirement that the state diminish the effectiveness of its regulation
by granting the exemption.[290]
Third, the court asks: (h)as the state in achieving its legitimate purposes
used the least intrusive means possible so that the free exercise is not
infringed any more than necessary to achieve the legitimate goal of the
state?[291] The analysis requires the state to show that the means in
which it is achieving its legitimate state objective is the least intrusive
means, i.e., it has chosen a way to achieve its legitimate state end that
imposes as little as possible on religious liberties. In Cantwell, for
example, the Court invalidated the license requirement for the door-to-
door solicitation as it was a forbidden burden on religious liberty, noting
that less drastic means of insuring peace and tranquility existed. As a
whole, in carrying out the compelling state interest test, the Court should
give careful attention to context, both religious and regulatory, to achieve
refined judgment.[292]
In sum, as shown by U.S. jurisprudence on religion clause cases, the
competing values of secular government and religious freedom create
tensions that make constitutional law on the subject of religious liberty
unsettled, mirroring the evolving views of a dynamic society.[293]
VII. Religion Clauses in the Philippines
A. History
Before our country fell under American rule, the blanket of Catholicism
covered the archipelago. There was a union of church and state and
Catholicism was the state religion under the Spanish Constitution of
1876. Civil authorities exercised religious functions and the friars
exercised civil powers.[294] Catholics alone enjoyed the right of
engaging in public ceremonies of worship.[295] Although the Spanish
Constitution itself was not extended to the Philippines, Catholicism was
also the established church in our country under the Spanish
rule.Catholicism was in fact protected by the Spanish Penal Code of
1884 which was in effect in the Philippines. Some of the offenses in
chapter six of the Penal Code entitled Crimes against Religion and
Worship referred to crimes against the state religion.[296] The coming
of the Americans to our country, however, changed this state-church
scheme for with the advent of this regime, the unique American
experiment of separation of church and state was transported to
Philippine soil.
Even as early as the conclusion of the Treaty of Paris between the
United States and Spain on December 10, 1898, the American
guarantee of religious freedom had been extended to the
Philippines. The Treaty provided that the inhabitants of the territories
over which Spain relinquishes or cedes her sovereignty shall be secured
in the free exercise of religion.[297] Even the Filipinos themselves
guaranteed religious freedom a month later or on January 22, 1899 upon
the adoption of the Malolos Constitution of the Philippine Republic under
General Emilio Aguinaldo. It provided that the State recognizes the
liberty and equality of all religion (de todos los cultos) in the same
manner as the separation of the Church and State. But the Malolos
Constitution and government was short-lived as the Americans took
over the reigns of government.[298]
With the Philippines under the American regime, President McKinley
issued Instructions to the Second Philippine Commission, the body
created to take over the civil government in the Philippines in
1900. The Instructions guaranteed religious freedom, viz:
That no law shall be made respecting the establishment of religion or
prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship without discrimination or
preference shall forever be allowed ... that no form of religion and no
minister of religion shall be forced upon the community or upon any
citizen of the Islands, that, on the other hand, no minister of religion shall
be interfered with or molested in following his calling.[299]
This provision was based on the First Amendment of the United States
Constitution. Likewise, the Instructions declared that (t)he separation
between State and Church shall be real, entire and absolute.[300]
Thereafter, every organic act of the Philippines contained a provision on
freedom of religion. Similar to the religious freedom clause in
the Instructions, the Philippine Bill of 1902 provided that:
No law shall be made respecting an establishment of religion or
prohibiting the free exercise thereof, and that free exercise and
enjoyment of religious worship, without discrimination or preference,
shall forever be allowed.
In U.S. v. Balcorta,[301] the Court stated that the Philippine Bill of 1902
caused the complete separation of church and state, and the abolition
of all special privileges and all restrictions theretofor conferred or
imposed upon any particular religious sect.[302]
The Jones Law of 1916 carried the same provision, but expanded it with
a restriction against using public money or property for religious
purposes, viz:
That no law shall be made respecting an establishment of religion or
prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship without discrimination or
preference, shall forever be allowed; and no religious test shall be
required for the exercise of civil or political rights. No public money or
property shall ever be appropriated, applied, donated, or used, directly
or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or for the use,
benefit or support of any priest, preacher, minister, or other religious
teachers or dignitary as such.
This was followed by the Philippine Independence Law or Tydings-
McDuffie Law of 1934 which guaranteed independence to the
Philippines and authorized the drafting of a Philippine constitution. It
enjoined Filipinos to include freedom of religion in drafting their
constitution preparatory to the grant of independence. The law
prescribed that (a)bsolute toleration of religious sentiment shall be
secured and no inhabitant or religious organization shall be molested in
person or property on account of religious belief or mode of
worship.[303]
The Constitutional Convention then began working on the 1935
Constitution. In their proceedings, Delegate Jose P. Laurel as Chairman
of the Committee on Bill of Rights acknowledged that (i)t was the Treaty
of Paris of December 10, 1898, which first introduced religious toleration
in our country. President McKinleys Instructions to the Second
Philippine Commission reasserted this right which later
incorporated into the Philippine Bill of 1902 and in the Jones
Law.[304] In accordance with the Tydings-McDuffie Law, the 1935
Constitution provided in the Bill of Rights, Article IV, Section 7, viz:
Sec. 7. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof, and the free exercise and
enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required
for the exercise of civil or political rights.
This provision, borrowed from the Jones Law, was readily approved by
the Convention.[305] In his speech as Chairman of the Committee on
Bill of Rights, Delegate Laurel said that modifications in phraseology of
the Bill of Rights in the Jones Law were avoided whenever possible
because the principles must remain couched in a language expressive
of their historical background, nature, extent and limitations as
construed and interpreted by the great statesmen and jurists that
vitalized them.[306]
The 1973 Constitution which superseded the 1935 Constitution
contained an almost identical provision on religious freedom in the Bill
of Rights in Article IV, Section 8, viz:
Sec. 8. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment
of religious profession and worship, without discrimination or preference,
shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.
This time, however, the General Provisions in Article XV added in
Section 15 that (t)he separation of church and state shall be inviolable.
Without discussion by the 1986 Constitutional Commission, the 1973
religious clauses were reproduced in the 1987 Constitution under the
Bill of Rights in Article III, Section 5.[307] Likewise, the provision on
separation of church and state was included verbatim in the 1987
Constitution, but this time as a principle in Section 6, Article II entitled
Declaration of Principles and State Policies.
Considering the American origin of the Philippine religion clauses and
the intent to adopt the historical background, nature, extent and
limitations of the First Amendment of the U.S. Constitution when it was
included in the 1935 Bill of Rights, it is not surprising that nearly all the
major Philippine cases involving the religion clauses turn to U.S.
jurisprudence in explaining the nature, extent and limitations of these
clauses. However, a close scrutiny of these cases would also reveal that
while U.S. jurisprudence on religion clauses flows into two main streams
of interpretation - separation and benevolent neutrality - the well-spring
of Philippine jurisprudence on this subject is for the most part,
benevolent neutrality which gives room for accommodation.
B. Jurisprudence
In revisiting the landscape of Philippine jurisprudence on the religion
clauses, we begin with the definition of religion. Religion is derived from
was
the Middle English religioun, from Old French religion, from Latin religio,
vaguely referring to a bond between man and the gods.[308] This pre-
Christian term for the cult and rituals of pagan Rome was first
Christianized in the Latin translation of the Bible.[309] While the U.S.
Supreme Court has had to take up the challenge of defining the
parameters and contours of religion to determine whether a non-theistic
belief or act is covered by the religion clauses, this Court has not been
confronted with the same issue. In Philippine jurisprudence, religion, for
purposes of the religion clauses, has thus far been interpreted as
theistic. In 1937, the Philippine case of Aglipay v. Ruiz[310]involving the
Establishment Clause, defined religion as a profession of faith to an
active power that binds and elevates man to his Creator.Twenty years
later, the Court cited the Aglipay definition in American Bible Society v.
City of Manila,[311] a case involving the Free Exercise clause. The latter
also cited the American case of Davis in defining religion, viz: (i)t has
reference to ones views of his relations to His Creator and to the
obligations they impose of reverence to His being and character and
obedience to His Will. The Beason definition, however, has been
expanded in U.S. jurisprudence to include non-theistic beliefs.
1. Free Exercise Clause
Freedom of choice guarantees the liberty of the religious conscience and
prohibits any degree of compulsion or burden, whether direct or indirect,
in the practice of ones religion. The Free Exercise Clause principally
guarantees voluntarism, although the Establishment Clause also
assures voluntarism by placing the burden of the advancement of
religious groups on their intrinsic merits and not on the support of the
state.[312]
In interpreting the Free Exercise Clause, the realm of belief poses no
difficulty. The early case of Gerona v. Secretary of Education[313] is
instructive on the matter, viz:
The realm of belief and creed is infinite and limitless bounded only by
ones imagination and thought. So is the freedom of belief, including
religious belief, limitless and without bounds. One may believe in most
anything, however strange, bizarre and unreasonable the same may
appear to others, even heretical when weighed in the scales of
orthodoxy or doctrinal standards. But between the freedom of belief and
the exercise of said belief, there is quite a stretch of road to travel.[314]
The difficulty in interpretation sets in when belief is externalized into prior restraint. The Court held, however, that the fixed amount of
speech and action. registration fee was not imposed for the exercise of a privilege like a
license tax which American Bible Society ruled was violative of religious
Religious speech comes within the pale of the Free Exercise Clause as
freedom. Rather, the registration fee was merely an administrative fee
illustrated in the American Bible Society case. In that case, plaintiff
to defray part of the cost of registration which was a central feature of
American Bible Society was a foreign, non-stock, non-profit, religious
the VAT system. Citing Jimmy Swaggart Ministries v. Board of
missionary corporation which sold bibles and gospel portions of the bible
Equalization,[318] the Court also declared prefatorily that the Free
in the course of its ministry. The defendant City of Manila required
Exercise of Religion Clause does not prohibit imposing a generally
plaintiff to secure a mayors permit and a municipal license as ordinarily
applicable sales and use tax on the sale of religious materials by a
required of those engaged in the business of general merchandise under
religious organization. In the Courts resolution of the motion for
the citys ordinances. Plaintiff argued that this amounted to religious
reconsideration of the Tolentino decision, the Court noted that the
censorship and restrained the free exercise and enjoyment of religious
burden on religious freedom caused by the tax was just similar to any
profession, to wit: the distribution and sale of bibles and other religious
other economic imposition that might make the right to disseminate
literature to the people of the Philippines.
religious doctrines costly.
After defining religion, the Court, citing Tanada and Fernando, made this
Two years after American Bible Society came the 1959 case of Gerona
statement, viz:
v. Secretary of Education,[319] this time involving conductexpressive of
The constitutional guaranty of the free exercise and enjoyment of religious belief colliding with a rule prescribed in accordance with law. In
religious profession and worship carries with it the right to disseminate this case, petitioners were members of the Jehovahs Witnesses. They
religious information. Any restraint of such right can only be justified like challenged a Department Order issued by the Secretary of Education

other restraints of freedom of expression on the grounds that there is implementing Republic Act No. 1265 which prescribed compulsory flag

a clear and present danger of any substantive evil which the State has ceremonies in all public schools. In violation of the Order, petitioners
the right to prevent. (Tanada and Fernando on the Constitution of the children refused to salute the Philippine flag, sing the national anthem,
Philippines, vol. 1, 4th ed., p. 297) (emphasis supplied) or recite the patriotic pledge, hence they were expelled from
school. Seeking protection under the Free Exercise Clause, petitioners
This was the Courts maiden unequivocal affirmation of the clear and claimed that their refusal was on account of their religious belief that the
present danger rule in the religious freedom area, and in Philippine Philippine flag is an image and saluting the same is contrary to their
jurisprudence, for that matter.[315] The case did not clearly show, religious belief. The Court stated, viz:
however, whether the Court proceeded to apply the test to the facts and
issues of the case, i.e., it did not identify the secular value the . . . If the exercise of religious belief clashes with the established
government regulation sought to protect, whether the religious speech institutions of society and with the law, then the former must yield to the
posed a clear and present danger to this or other secular value protected latter. The Government steps in and either restrains said exercise or
by government, or whether there was danger but it could not be even prosecutes the one exercising it. (emphasis supplied)[320]
characterized as clear and present. It is one thing to apply the test and
The Court then proceeded to determine if the acts involved constituted
find that there is no clear and present danger, and quite another not to
a religious ceremony in conflict with the beliefs of the petitioners with the
apply the test altogether.
following justification:
Instead, the Court categorically held that the questioned ordinances
After all, the determination of whether a certain ritual is or is not a
were not applicable to plaintiff as it was not engaged in the business or
religious ceremony must rest with the courts. It cannot be left to a
occupation of selling said merchandise for profit. To add, the Court,
religious group or sect, much less to a follower of said group or sect;
citing Murdock v. Pennsylvania,[316] ruled that applying the ordinance
otherwise, there would be confusion and misunderstanding for there
requiring it to secure a license and pay a license fee or tax would impair
might be as many interpretations and meaning to be given to a certain
its free exercise of religious profession and worship and its right of
ritual or ceremony as there are religious groups or sects or followers, all
dissemination of religious beliefs as the power to tax the exercise of a
depending upon the meaning which they, though in all sincerity and
privilege is the power to control or suppress its enjoyment.Thus,
good faith, may want to give to such ritual or ceremony.[321]
in American Bible Society, the clear and present danger rule was laid
down but it was not clearly applied. It was held that the flag was not an image, the flag salute was not a
religious ceremony, and there was nothing objectionable about the
In the much later case of Tolentino v. Secretary of Finance,[317] also
singing of the national anthem as it speaks only of love of country,
involving the sale of religious books, the Court distinguished
patriotism, liberty and the glory of suffering and dying for it. The Court
the American Bible Society case from the facts and issues
upheld the questioned Order and the expulsion of petitioners children,
in Tolentino and did not apply the American Bible Society
stressing that:
ruling. In Tolentino, the Philippine Bible Society challenged the validity
of the registration provisions of the Value Added Tax (VAT) Law as a
Men may differ and do differ on religious beliefs and creeds, government
policies, the wisdom and legality of laws, even the correctness of judicial
decisions and decrees; but in the field of love of country, reverence for
the flag, national unity and patriotism, they can hardly afford to differ, for
these are matters in which they are mutually and vitally interested, for to
them, they mean national existence and survival as a nation or national
extinction.[322]
In support of its ruling, the Court cited Justice Frankfurters dissent in
the Barnette case, viz:
The constitutional protection of religious freedom x x x gave religious
equality, not civil immunity. Its essence is freedom from conformity to
religious dogma, not freedom from conformity to law because of religious
dogma.[323]
It stated in categorical terms, viz:
The freedom of religious belief guaranteed by the Constitution does not
and cannot mean exemption from or non-compliance with reasonable
and non-discriminatory laws, rules and regulations promulgated by
competent authority.[324]
Thus, the religious freedom doctrines one can derive from Gerona are:
(1) it is incumbent upon the Court to determine whether a certain ritual
is religious or not; (2) religious freedom will not be upheld if it clashes
with the established institutions of society and with the law such that
when a law of general applicability (in this case the Department Order)
incidentally burdens the exercise of ones religion, ones right to religious
freedom cannot justify exemption from compliance with the
law. The Gerona ruling was reiterated in Balbuna, et al. v. Secretary of
Education, et al.[325]
Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde
Rope Workers Union.[326] In this unanimously decided en banc case,
Victoriano was a member of the Iglesia ni Cristo which prohibits the
affiliation of its members with any labor organization. He worked in the
Elizalde Rope Factory, Inc. and was a member of the Elizalde Rope
Workers Union which had with the company a closed shop provision
pursuant to Republic Act No. 875 allowing closed shop
arrangements. Subsequently, Republic Act No. 3350 was enacted
exempting from the application and coverage of a closed shop
agreement employees belonging to any religious sect which prohibits
affiliation of their members with any labor organization. Victoriano
resigned from the union after Republic Act No. 3350 took effect. The
union notified the company of Victorianos resignation, which in turn
notified Victoriano that unless he could make a satisfactory arrangement
with the union, the company would be constrained to dismiss him from
the service. Victoriano sought to enjoin the company and the union from
dismissing him. The court having granted the injunction, the union came
to this Court on questions of law, among which was whether Republic
Act No. 3350 was unconstitutional for impairing the obligation of
contracts and for granting an exemption offensive of the Establishment
Clause. With respect to the first issue, the Court ruled, viz:
Religious freedom, although not unlimited, is a fundamental personal
right and liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155,
164, 60 S.Ct. 146) and has a preferred position in the hierarchy of
values. Contractual rights, therefore, must yield to freedom of religion. It
is only where unavoidably necessary to prevent an immediate and grave
danger to the security and welfare of the community that infringement of
religious freedom may be justified, and only to the smallest extent
necessary.[327] (emphasis supplied)
As regards the Establishment Clause issue, the Court after citing the
constitutional provision on establishment and free exercise of religion,
declared, viz:
The constitutional provisions not only prohibits legislation for the support
of any religious tenets or the modes of worship of any sect, thus
forestalling compulsion by law of the acceptance of any creed or the
practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed.
1148, 1153), but also assures the free exercise of ones chosen form of
religion within limits of utmost amplitude. It has been said that the
religion clauses of the Constitution are all designed to protect the
broadest possible liberty of conscience, to allow each man to believe as
his conscience directs, to profess his beliefs, and to live as he believes
he ought to live, consistent with the liberty of others and with the
common good. (footnote omitted). Any legislation whose effect or
purpose is to impede the observance of one or all religions, or to
discriminate invidiously between the religions, is invalid, even though the
burden may be characterized as being only indirect. (Sherbert v. Verner,
374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates
conduct by enacting, within its power, a general law which has for its
purpose and effect to advance the states secular goals, the statute is
valid despite its indirect burden on religious observance, unless the state
can accomplish its purpose without imposing such burden. (Braunfeld v.
Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v.
Maryland, 366 U.S. 420, 444-5 and 449)[328] (emphasis supplied)
Quoting Aglipay v. Ruiz,[329] the Court held that government is not
precluded from pursuing valid objectives secular in character even if the
incidental result would be favorable to a religion or sect. It also
cited Board of Education v. Allen,[330] which held that in order to
withstand the strictures of constitutional prohibition, a statute must have
a secular legislative purpose and a primary effect that neither advances
nor inhibits religion. Using these criteria in upholding Republic Act No.
3350, the Court pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular purpose of
advancing the constitutional right to the free exercise of religion, by
averting that certain persons be refused work, or be dismissed from
work, or be dispossessed of their right to work and of being impeded to
pursue a modest means of livelihood, by reason of union security
agreements. . . . The primary effects of the exemption from closed shop
agreements in favor of members of religious sects that prohibit their
members from affiliating with a labor organization, is the protection of
said employees against the aggregate force of the collective bargaining
agreement, and relieving certain citizens of a burden on their religious
beliefs, and . . . eliminating to a certain extent economic insecurity due
to unemployment.[331]
The Court stressed that (a)lthough the exemption may benefit those who
are members of religious sects that prohibit their members from joining
labor unions, the benefit upon the religious sects is merely incidental and
indirect.[332] In enacting Republic Act No. 3350, Congress merely
relieved the exercise of religion by certain persons of a burden imposed
by union security agreements which Congress itself also imposed
through the Industrial Peace Act. The Court concluded the issue of
exemption by citing Sherbert which laid down the rule that when general
laws conflict with scruples of conscience, exemptions ought to be
granted unless some compelling state interest intervenes. The Court
then abruptly added that (i)n the instant case, We see no compelling
state interest to withhold exemption.[333]
A close look at Victoriano would show that the Court mentioned several
tests in determining when religious freedom may be validly
limited. First, the Court mentioned the test of immediate and grave
danger to the security and welfare of the community and infringement of
religious freedom only to the smallest extent necessary to justify
limitation of religious freedom. Second, religious exercise may be
indirectly burdened by a general law which has for its purpose and effect
the advancement of the states secular goals, provided that there is no
other means by which the state can accomplish this purpose without
imposing such burden. Third, the Court referred to the compelling state
interest test which grants exemptions when general laws conflict with
religious exercise, unless a compelling state interest intervenes.
It is worth noting, however, that the first two tests were mentioned only
for the purpose of highlighting the importance of the protection of
religious freedom as the secular purpose of Republic Act No.
3350. Upholding religious freedom was a secular purpose insofar as it
relieved the burden on religious freedom caused by another law, i.e, the
Industrial Peace Act providing for union shop agreements. The first two
tests were only mentioned in Victoriano but were not applied by the
Court to the facts and issues of the case. The third, the compelling state
interest test was employed by the Court to determine whether the
exemption provided by Republic Act No. 3350 was not
unconstitutional. It upheld the exemption, stating that there was no
compelling state interest to strike it down. However, after careful
consideration of the Sherbert case from which Victoriano borrowed this
test, the inevitable conclusion is that the compelling state interest test
was not appropriate and could not find application in the Victoriano
case. In Sherbert, appellant Sherbert invoked religious freedom in
seeking exemption from the provisions of the South Carolina
Unemployment Compensation Act which disqualified her from claiming
unemployment benefits. It was the appellees, members of the South
Carolina Employment Commission, a government agency, who
propounded the state interest to justify overriding Sherberts claim of
religious freedom. The U.S. Supreme Court, considering Sherberts and
the Commissions arguments, found that the state interest was not
sufficiently compelling to prevail over Sherberts free exercise claim. This
situation did not obtain in the Victoriano case where it was the
government itself, through Congress, which provided the exemption in
Republic Act No. 3350 to allow Victorianos exercise of religion. Thus,
the government could not argue against the exemption on the basis of
a compelling state interest as it would be arguing against itself; while
Victoriano would not seek exemption from the questioned law to allow
the free exercose of religion as the law in fact provides such an
exemption. In sum, although Victoriano involved a religious belief and
conduct, it did not involve a free exercise issue where the Free Exercise
Clause is invoked to exempt him from the burden imposed by a law on
his religious freedom.
Victoriano was reiterated in several cases involving the Iglesia ni Cristo,
namely Basa, et al. v. Federacion Obrera de la Industria Tabaquera y
Otros Trabajadores de Filipinas,[334] Anucension v. National Labor
Union, et al.,[335] and Gonzales, et al. v. Central Azucarera de Tarlac
Labor Union.[336]
Then came German v. Barangan in 1985 at the height of the anti-
administration rallies. Petitioners were walking to St. Jude Church within
the Malacanang security area to pray for an end to violence when they
were barred by the police. Invoking their constitutional freedom of
religious worship and locomotion, they came to the Court on a petition
for mandamus to allow them to enter and pray inside the St. Jude
Chapel. The Court was divided on the issue. The slim majority of six
recognized their freedom of religion but noted their absence of good faith
and concluded that they were using their religious liberty to express their
opposition to the government. Citing Cantwell, the Court distinguished
between freedom to believe and freedom to act on matters of
religion, viz:
. . . Thus the (First) amendment embraces two concepts - freedom to
believe and freedom to act. The first is absolute, but in the nature of
things, the second cannot be.[337]
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or restrained of their
freedom of belief or choice of their religion, but only in the manner by
which they had attempted to translate the same to action. This
curtailment is in accord with the pronouncement of this Court in Gerona
v. Secretary of Education (106 Phil. 2), thus:
. . . But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel. If the exercise of said religious
belief clashes with the established institutions of society and with the
law, then the former must yield and give way to the latter. The
government steps in and either restrains said exercise or even
prosecutes the one exercising it. (italics supplied)
The majority found that the restriction imposed upon petitioners was
necessary to maintain the smooth functioning of the executive branch of
the government, which petitioners mass action would certainly
disrupt[338] and denied the petition. Thus, without considering the tests
mentioned in Victoriano, German went back to the Gerona rule that
religious freedom will not be upheld if it clashes with the established
institutions of society and the law.
Then Associate Justice Teehankee registered a dissent which in
subsequent jurisprudence would be cited as a test in religious freedom
cases. His dissent stated in relevant part, viz:
A brief restatement of the applicable constitutional principles as set forth
in the landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA
553[1983]) should guide us in resolving the issues.
1. The right to freely exercise ones religion is guaranteed in Section 8 of
our Bill of Rights. (footnote omitted) Freedom of worship, alongside with
freedom of expression and speech and peaceable assembly along with
the other intellectual freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly stressed that on the
judiciary - even more so than on the other departments - rests the grave
and delicate responsibility of assuring respect for and deference to such
preferred rights. No verbal formula, no sanctifying phrase can, of course,
dispense with what has been so felicitously termed by Justice Holmes
as the sovereign prerogative of judgment. Nonetheless, the presumption
must be to incline the weight of the scales of justice on the side of such
rights, enjoying as they do precedence and primacy. (J.B.L. Reyes, 125
SCRA at pp. 569-570)
2. In the free exercise of such preferred rights, there is to be no prior
restraint although there may be subsequent punishment of any illegal
acts committed during the exercise of such basic rights. The sole
justification for a prior restraint or limitation on the exercise of these basic
rights is the existence of a grave and present danger of a character both
grave and imminent, of a serious evil to public safety, public morals,
public health or any other legitimate public interest, that the State has a
right (and duty) to prevent (Idem, at pp. 560-561).[339] (emphasis
supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice
Teehankees dissent was taken involved the rights to free speech and
assembly, and not the exercise of religious freedom. At issue in that
case was a permit sought by retired Justice J.B.L. Reyes, on behalf of
the Anti-Bases Coalition, from the City of Manila to hold a peaceful
march and rally from the Luneta to the gates of the U.S.
Embassy.Nevertheless Bagatsing was used by Justice Teehankee in
his dissent which had overtones of petitioner German and his
companions right to assemble and petition the government for redress
of grievances.[340]
In 1993, the issue on the Jehovahs Witnesses participation in the flag
ceremony again came before the Court in Ebralinag v. The Division
Superintendent of Schools.[341] A unanimous Court overturned the
Gerona ruling after three decades. Similar to Gerona, this case involved
several Jehovahs Witnesses who were expelled from school for refusing
to salute the flag, sing the national anthem and recite the patriotic
pledge, in violation of the Administrative Code of 1987. In resolving the
same religious freedom issue as in Gerona, the Court this time
transported the grave and imminent danger test laid down in Justice
Teehankees dissent in German, viz:
The sole justification for a prior restraint or limitation on the exercise of
religious freedom (according to the late Chief Justice Claudio
Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA
514, 517) is the existence of a grave and present danger of a character
both grave and imminent, of a serious evil to public safety, public morals,
public health or any other legitimate public interest, that the State has a
right (and duty) to prevent. Absent such a threat to public safety, the
expulsion of the petitioners from the schools is not
justified.[342] (emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovahs Witnesses from
saluting the flag, singing the national anthem and reciting the patriotic
pledge, this religious group which admittedly comprises a small portion
of the school population will shake up our part of the globe and suddenly
produce a nation untaught and uninculcated in and unimbued with
reverence for the flag, patriotism, love of country and admiration for
national heroes (Gerona v. Secretary of Education, 106 Phil. 224). After
all, what the petitioners seek only is exemption from the flag ceremony,
not exclusion from the public schools where they may study the
Constitution, the democratic way of life and form of government, and
learn not only the arts, sciences, Philippine history and culture but also
receive training for a vocation or profession and be taught the virtues of
patriotism, respect for human rights, appreciation of national heroes, the
rights and duties of citizenship, and moral and spiritual values (Sec. 3[2],
Art. XIV, 1987 Constitution) as part of the curricula.Expelling or banning
the petitioners from Philippine schools will bring about the very situation
that this Court has feared in Gerona. Forcing a small religious group,
through the iron hand of the law, to participate in a ceremony that
violates their religious beliefs, will hardly be conducive to love of country
or respect for duly constituted authorities.[343]
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and loyalty even to the
country, x x x- assuming that such unity and loyalty can be attained
through coercion- is not a goal that is constitutionally obtainable at the
expense of religious liberty. A desirable end cannot be promoted by
prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042,
1046).[344]
Towards the end of the decision, the Court also cited the Victoriano
case and its use of the compelling state interest test in according
exemption to the Jehovahs Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72-75, we
upheld the exemption of members of the Iglesia ni Cristo, from the
coverage of a closed shop agreement between their employer and a
union because it would violate the teaching of their church not to join
any group:
x x x It is certain that not every conscience can be accommodated by all
the laws of the land; but when general laws conflict with scruples of
conscience, exemptions ought to be granted unless some compelling
state interest intervenes. (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed.
2d 965, 970, 83 S.Ct. 1790)
We hold that a similar exemption may be accorded to the Jehovahs
Witnesses with regard to the observance of the flag ceremony out of
respect for their religious beliefs, however bizarre those beliefs may
seem to others.[345]
The Court annulled the orders expelling petitioners from school.
Thus, the grave and imminent danger test laid down in a dissenting
opinion in German which involved prior restraint of religious worship with
overtones of the right to free speech and assembly, was transported
to Ebralinag which did not involve prior restraint of religious worship,
speech or assembly. Although, it might be observed that the Court faintly
implied that Ebralinag also involved the right to free speech when in its
preliminary remarks, the Court stated that compelling petitioners to
participate in the flag ceremony is alien to the conscience of the present
generation of Filipinos who cut their teeth on the Bill of Rights which
guarantees their rights to free speech and the free exercise of religious
profession and worship; the Court then stated in a footnote that the flag
salute, singing the national anthem and reciting the patriotic pledge are
all forms of utterances.[346]
The compelling state interest test was not fully applied by the Court
in Ebralinag. In the Solicitor Generals consolidated comment, one of the
grounds cited to defend the expulsion orders issued by the public
respondents was that (t)he States compelling interests being pursued
by the DECs lawful regulations in question do not warrant exemption of
the school children of the Jehovahs Witnesses from the flag salute
ceremonies on the basis of their own self-perceived religious
convictions.[347] The Court, however, referred to the test only towards
the end of the decision and did not even mention what the Solicitor
General argued as the compelling state interest, much less did the Court
explain why the interest was not sufficiently compelling to override
petitioners religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of Iglesia
ni Cristo v. Court of Appeals, et al.[348] Although there was a dissent
with respect to the applicability of the clear and present danger test in
this case, the majority opinion in unequivocal terms applied the clear and
present danger test to religious speech. This case involved the
television program, Ang Iglesia ni Cristo, regularly aired over the
television. Upon petitioner Iglesia ni Cristos submission of the VTR
tapes of some of its episodes, respondent Board of Review for Motion
Pictures and Television classified these as X or not for public viewing on
the ground that they offend and constitute an attack against other
religions which is expressly prohibited by law. Invoking religious
freedom, petitioner alleged that the Board acted without jurisdiction or
with grave abuse of discretion in requiring it to submit the VTR tapes of
its television program and x-rating them. While upholding the Boards
power to review the Iglesia television show, the Court was emphatic
about the preferred status of religious freedom. Quoting Justice Cruz
commentary on the constitution, the Court held that freedom to believe
is absolute but freedom to act on ones belief, where it affects the public,
is subject to the authority of the state. The commentary quoted Justice
Frankfurters dissent in Barnette which was quoted in Gerona, viz: (t)he
constitutional provision on religious freedom terminated disabilities, it did
not create new privileges. It gave religious liberty, not civil immunity. Its
essence is freedom from conformity to religious dogma, not freedom
from conformity to law because of religious dogma.[349] Nevertheless,
the Court was quick to add the criteria by which the state can regulate
the exercise of religious freedom, that is, when the exercise will bring
about the clear and present danger of some substantive evil which the
State is duty bound to prevent, i.e., serious detriment to the more
overriding interest of public health, public morals, or public welfare.[350]
In annulling the x-rating of the shows, the Court stressed that the
Constitution is hostile to all prior restraints on speech, including religious
speech and the x-rating was a suppression of petitioners freedom of
speech as much as it was an interference with its right to free exercise
of religion. Citing Cantwell, the Court recognized that the different
religions may criticize one another and their tenets may collide, but the
Establishment Clause prohibits the state from protecting any religion
from this kind of attack.
The Court then called to mind the clear and present danger test first laid
down in the American Bible Society case and the test of immediate and
grave danger with infringement only to the smallest extent necessary to
avoid danger in Victoriano and pointed out that the reviewing board
failed to apply the clear and present danger test. Applying the test, the
Court noted, viz:
The records show that the decision of the respondent Board, affirmed
by the respondent appellate court, is completely bereft of findings of
facts to justify the conclusion that the subject video tapes constitute
impermissible attacks against another religion. There is no showing
whatsoever of the type of harmthe tapes will bring about especially the
gravity and imminence of the threatened harm. Prior restraint on
speech, including religious speech, cannot be justified by hypothetical
fears but only by the showing of a substantive and imminent evil which
has taken the life of a reality already on ground.
Replying to the challenge on the applicability of the clear and present
danger test to the case, the Court acknowledged the permutations that
the test has undergone, but stressed that the test is still applied to four
types of speech: speech that advocates dangerous ideas, speech that
provokes a hostile audience reaction, out of court contempt and release
of information that endangers a fair trial[351] and ruled, viz:
. . . even allowing the drift of American jurisprudence, there is reason to
apply the clear and present danger test to the case at bar which
concerns speech that attacks other religions and could readily provoke
hostile audience reaction. It cannot be doubted that religious truths
disturb and disturb terribly.[352]
In Iglesia therefore, the Court went back to Gerona insofar as holding
that religious freedom cannot be invoked to seek exemption from
compliance with a law that burdens ones religious exercise. It also
reiterated the clear and present danger test in American Bible
Societyand the grave and imminent danger in Victoriano, but this time
clearly justifying its applicability and showing how the test was applied
to the case.
In sum, the Philippine Supreme Court has adopted a posture of not
invalidating a law offensive to religious freedom, but carving out an
exception or upholding an exception to accommodate religious exercise
where it is justified.[353]
2. Establishment Clause
In Philippine jurisdiction, there is substantial agreement on the values
sought to be protected by the Establishment Clause, namely,
voluntarism and insulation of the political process from interfaith
dissension. The first, voluntarism, has both a personal and a social
dimension. As a personal value, it refers to the inviolability of the human
conscience which, as discussed above, is also protected by the free
exercise clause. From the religious perspective, religion requires
voluntarism because compulsory faith lacks religious
efficacy.Compelled religion is a contradiction in terms.[354] As a social
value, it means that the growth of a religious sect as a social force must
come from the voluntary support of its members because of the belief
that both spiritual and secular society will benefit if religions are allowed
to compete on their own intrinsic merit without benefit of official
patronage. Such voluntarism cannot be achieved unless the political
process is insulated from religion and unless religion is insulated from
politics.[355] Non-establishment thus calls for government neutrality in
religious matters to uphold voluntarism and avoid breeding interfaith
dissension.[356]
The neutrality principle was applied in the first significant non-
establishment case under the 1935 Constitution. In the 1937 case
of Aglipay v. Ruiz,[357] the Philippine Independent Church challenged
the issuance and sale of postage stamps commemorating the Thirty-
Third International Eucharistic Congress of the Catholic Church on the
ground that the constitutional prohibition against the use of public money
for religious purposes has been violated. It appears that the Director of
Posts issued the questioned stamps under the provisions of Act No.
4052[358] which appropriated a sum for the cost of plates and printing
of postage stamps with new designs and authorized the Director of
Posts to dispose of the sum in a manner and frequency advantageous
to the Government. The printing and issuance of the postage stamps in
question appears to have been approved by authority of the
President. Justice Laurel, speaking for the Court, took pains explaining
religious freedom and the role of religion in society, and in conclusion,
found no constitutional infirmity in the issuance and sale of the
stamps, viz:
The prohibition herein expressed is a direct corollary of the principle of
separation of church and state. Without the necessity of adverting to the
historical background of this principle in our country, it is sufficient to
say that our history, not to speak of the history of mankind, has taught
us that the union of church and state is prejudicial to both, for occasions
might arise when the state will use the church, and the church the state,
as a weapon in the furtherance of their respective ends and aims . . . It
is almost trite to say now that in this country we enjoy both religious and
civil freedom. All the officers of the Government, from the highest to the
lowest, in taking their oath to support and defend the Constitution, bind
themselves to recognize and respect the constitutional guarantee of
religious freedom, with its inherent limitations and recognized
implications. It should be stated that what is guaranteed by our
Constitution is religious liberty, not mere toleration.
Religious freedom, however, as a constitutional mandate is not an
inhibition of profound reverence for religion and is not a denial of its
influence in human affairs. Religion as a profession of faith to an active
power that binds and elevates man to his Creator is recognized. And, in
so far as it instills into the minds the purest principles of morality, its
influence is deeply felt and highly appreciated. When the Filipino people,
in the preamble of their Constitution, implored the aid of Divine
Providence, in order to establish a government that shall embody their
ideals, conserve and develop the patrimony of the nation, promote the
general welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty and
democracy, they thereby manifested their intense religious nature and
placed unfaltering reliance upon Him who guides the destinies of men
and nations. The elevating influence of religion in human society is
recognized here as elsewhere. In fact, certain general concessions are
indiscriminately accorded to religious sects and denominations. . .[359]
xxx xxx xxx
It is obvious that while the issuance and sale of the stamps in question
may be said to be inseparably linked with an event of a religious
character, the resulting propaganda, if any, received by the Roman
Catholic Church, was not the aim and purpose of the Government. We
are of the opinion that the Government should not be embarrassed in its
activities simply because of incidental results, more or less religious in
character, if the purpose had in view is one which could legitimately be
undertaken by appropriate legislation. The main purpose should not be
frustrated by its subordination to mere incidental results not
contemplated. (Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct.
Rep., 121; 44 Law. ed., 168)[360] (emphases supplied)
In so deciding the case, the Court, citing U.S. jurisprudence, laid down
the doctrine that a law or government action with a legitimate secular
purpose does not offend the Establishment Clause even if it incidentally
aids a particular religion.
Almost forty-five years after Aglipay came Garces v.
Estenzo.[361] Although the Court found that the separation of church
and state was not at issue as the controversy was over who should have
custody of a saints image, it nevertheless made pronouncements on the
separation of church and state along the same line as the Aglipay
ruling. The Court held that there was nothing unconstitutional or illegal is thus an incompatibility between the Administrative Code provision
in holding a fiesta and having a patron saint for the barrio. It adhered to relied upon by petitioner and an express constitutional mandate.[364]
the barrio resolutions of the barangay involved in the case stating that
On the other hand, the prevailing five other members of the Court - Chief
the barrio fiesta is a socio-religious affair, the celebration of which is an
Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino -
ingrained tradition in rural communities that relieves the monotony and
approached the case from a non-establishment perspective and upheld
drudgery of the lives of the masses. Corollarily, the Court found nothing
the law as a safeguard against the constant threat of union of church
illegal about any activity intended to facilitate the worship of the patron
and state that has marked Philippine history. Justice Makasiar
saint such as the acquisition and display of his image bought with funds
stated: To allow an ecclesiastic to head the executive department of a
obtained through solicitation from the barrio residents. The Court
municipality is to permit the erosion of the principle of separation of
pointed out that the image of the patron saint was purchased in
Church and State and thus open the floodgates for the violation of the
connection with the celebration of the barrio fiesta honoring the patron
cherished liberty of religion which the constitutional provision seeks to
saint, San Vicente Ferrer, and not for the purpose of favoring any religion
enforce and protect. Consequently, the Court upheld the validity of
nor interfering with religious matters or the religious beliefs of the barrio
Section 2175 of the Revised Administrative Code and declared
residents. Citing the Aglipay ruling, the Court declared, viz:
respondent priest ineligible for the office of municipal mayor.
Not every governmental activity which involves the expenditure of public
Another type of cases interpreting the establishment clause deals with
funds and which has some religious tint is violative of the constitutional
intramural religious disputes. Fonacier v. Court of Appeals[365]is the
provisions regarding separation of church and state, freedom of worship
leading case. The issue therein was the right of control over certain
and banning the use of public money or property.
properties of the Philippine Independent Church, the resolution of which
Then came the 1978 case of Pamil v. Teleron, et al.[362] which necessitated the determination of who was the legitimate bishop of the
presented a novel issue involving the religion clauses. In this case, church. The Court cited American Jurisprudence,[366] viz:
Section 2175 of the Revised Administrative Code of 1917 disqualifying
Where, however, a decision of an ecclesiastical court plainly violates the
ecclesiastics from appointment or election as municipal officer was
law it professes to administer, or is in conflict with the law of the land, it
challenged. After protracted deliberation, the Court was sharply divided
will not be followed by the civil courts. . . In some instances, not only
on the issue. Seven members of the Court, one short of the number
have the civil courts the right to inquire into the jurisdiction of the
necessary to declare a law unconstitutional, approached the problem
religious tribunals and the regularity of their procedure, but they have
from a free exercise perspective and considered the law a religious test
subjected their decisions to the test of fairness or to the test furnished
offensive of the constitution. They were Justices Fernando, Teehankee,
by the constitution and the law of the church. . .[367]
Muoz-Palma, Concepcion, Jr., Santos, Fernandez, and Guerrero. Then
Associate Justice Fernando, the ponente, stated, viz: The challenged The Court then ruled that petitioner Fonacier was legitimately ousted
Administrative Code provision, certainly insofar as it declares ineligible and respondent de los Reyes was the duly elected head of the Church,
ecclesiastics to any elective or appointive office, is, on its face, based on their internal laws. To finally dispose of the property issue, the
inconsistent with the religious freedom guaranteed by the Court, citing Watson v. Jones,[368] declared that the rule in property
Constitution. Citing Torcaso v. Watkins,[363] the ponencia held, viz: controversies within religious congregations strictly independent of any
other superior ecclesiastical association (such as the Philippine
Torcaso v. Watkins, an American Supreme Court decision, has
Independent Church) is that the rules for resolving such controversies
persuasive weight. What was there involved was the validity of a
should be those of any voluntary association. If the congregation adopts
provision in the Maryland Constitution prescribing that no religious test
the majority rule then the majority should prevail; if it adopts adherence
ought ever to be required as a disqualification for any office or profit or
to duly constituted authorities within the congregation, then that should
trust in this State, other than a declaration of belief in the existence of
be followed. Applying these rules, Fonacier lost the case. While the
God ***. Such a constitutional requirement was assailed as contrary to
Court exercised jurisdiction over the case, it nevertheless refused to
the First Amendment of the United States Constitution by an appointee
touch doctrinal and disciplinary differences raised, viz:
to the office of notary public in Maryland, who was refused a commission
as he would not declare a belief in God. He failed in the Maryland Court The amendments of the constitution, restatement of articles of religion
of Appeals but prevailed in the United States Supreme Court, which and abandonment of faith or abjuration alleged by appellant, having to
reversed the state court decision. It could not have been otherwise. As do with faith, practice, doctrine, form of worship, ecclesiastical law,
emphatically declared by Justice Black: this Maryland religious test for custom and rule of a church and having reference to the power of
public office unconstitutionally invades the appellants freedom of belief excluding from the church those allegedly unworthy of membership, are
and religion and therefore cannot be enforced against him. unquestionably ecclesiastical matters which are outside the province of
the civil courts.[369]
The analogy appears to be obvious. In that case, it was lack of belief in
God that was a disqualification. Here being an ecclesiastic and therefore VIII. Free Exercise Clause vis--vis Establishment Clause
professing a religious faith suffices to disqualify for a public office. There
In both Philippine and U.S. jurisdiction, it is recognized that there is a
tension between the Free Exercise Clause and the Establishment
Clause in their application. There is a natural antagonism between a
command not to establish religion and a command not to inhibit its
practice; this tension between the religion clauses often leaves the
courts with a choice between competing values in religion cases.[370]
One set of facts, for instance, can be differently viewed from the
Establishment Clause perspective and the Free Exercise Clause point
of view, and decided in opposite directions. In Pamil, the majority gave
more weight to the religious liberty of the priest in holding that the
prohibition of ecclesiastics to assume elective or appointive government
positions was violative of the Free Exercise Clause. On the other hand,
the prevailing five justices gave importance to the Establishment Clause
in stating that the principle of separation of church and state justified the
prohibition.
Tension is also apparent when a case is decided to uphold the Free
Exercise Clause and consequently exemptions from a law of general
applicability are afforded by the Court to the person claiming religious
freedom; the question arises whether the exemption does not amount to
support of the religion in violation of the Establishment Clause. This was
the case in the Free Exercise Clause case of Sherbertwhere the U.S.
Supreme Court ruled, viz:
In holding as we do, plainly we are not fostering the establishment of the
Seventh-day Adventist religion in South Carolina, for the extension of
unemployment benefits to Sabbatarians in common with Sunday
worshippers reflects nothing more than the governmental obligation of
neutrality in the face of religious differences, and does not represent that
involvement of religious with secular institutions which it is the object of
the Establishment Clause to forestall.[371] (emphasis supplied)
Tension also exists when a law of general application provides
exemption in order to uphold free exercise as in the Walz case where
the appellant argued that the exemption granted to religious
organizations, in effect, required him to contribute to religious bodies in
violation of the Establishment Clause. But the Court held that the
exemption was not a case of establishing religion but merely upholding
the Free Exercise Clause by sparing the exercise of religion from the
burden of property taxation levied on private profit institutions. Justice
Burger wrote, viz:
(t)he Court has struggled to find a neutral course between the two
religion clauses, both of which are cast in absolute terms, and either of
which, if expanded to a logical extreme, would tend to clash with the
other.[372]
Similarly, the Philippine Supreme Court in the Victoriano case held that
the exemption afforded by law to religious sects who prohibit their
members from joining unions did not offend the Establishment
Clause. We ruled, viz:
We believe that in enacting Republic Act No. 3350, Congress acted
consistently with the spirit of the constitutional provision. It acted merely
to relieve the exercise of religion, by certain persons, of a burden that is
imposed by union security agreements.[373] (emphasis supplied)
Finally, in some cases, a practice is obviously violative of the
Establishment Clause but the Court nevertheless upholds it.
In Schempp, Justice Brennan stated: (t)here are certain practices,
conceivably violative of the Establishment Clause, the striking down of
which might seriously interfere with certain religious liberties also
protected by the First Amendment.
How the tension between the Establishment Clause and the Free
Exercise Clause will be resolved is a question for determination in the
actual cases that come to the Court. In cases involving both the
Establishment Clause and the Free Exercise Clause, the two clauses
should be balanced against each other. The courts must review all the
relevant facts and determine whether there is a sufficiently strong free
exercise right that should prevail over the Establishment Clause
problem. In the United States, it has been proposed that in balancing,
the free exercise claim must be given an edge not only because of
abundant historical evidence in the colonial and early national period of
the United States that the free exercise principle long antedated any
broad-based support of disestablishment, but also because an
Establishment Clause concern raised by merely accommodating a
citizens free exercise of religion seems far less dangerous to the republic
than pure establishment cases. Each time the courts side with the
Establishment Clause in cases involving tension between the two
religion clauses, the courts convey a message of hostility to the religion
that in that case cannot be freely exercised.[374] American professor of
constitutional law, Laurence Tribe, similarly suggests that the free
exercise principle should be dominant in any conflict with the anti-
establishment principle. This dominance would be the result of
commitment to religious tolerance instead of thwarting at all costs even
the faintest appearance of establishment.[375] In our jurisdiction, Fr.
Joaquin Bernas, S.J. asserts that a literal interpretation of the religion
clauses does not suffice. Modern society is characterized by the
expanding regulatory arm of government that reaches a variety of areas
of human conduct and an expanding concept of religion. To adequately
meet the demands of this modern society, the societal values the religion
clauses are intended to protect must be considered in their interpretation
and resolution of the tension. This, in fact, has been the approach
followed by the Philippine Court.[376]
IX. Philippine Religion Clauses: Nature, Purpose, Tests
Based on Philippine and American Religion Clause History,
Law and Jurisprudence
The history of the religion clauses in the 1987 Constitution shows that
these clauses were largely adopted from the First Amendment of the
U.S. Constitution. The religion clauses in the First Amendment were
contained in every organic Act of the Philippines under the American
regime. When the delegates of the 1934 Constitutional Convention
adopted a Bill of Rights in the 1935 Constitution, they purposely retained
the phraseology of the religion clauses in the First Amendment as
contained in the Jones Law in order to adopt its historical background,
nature, extent and limitations. At that time, there were not too many
religion clause cases in the United States as the U.S. Supreme Court
decided an Establishment Clause issue only in the 1947 Everson
case. The Free Exercise Clause cases were also scarce then. Over the
years, however, with the expanding reach of government regulation to a
whole gamut of human actions and the growing plurality and activities of
religions, the number of religion clause cases in the U.S. exponentially
increased. With this increase came an expansion of the interpretation of
the religion clauses, at times reinforcing prevailing case law, at other
times modifying it, and still at other times creating contradictions so that
two main streams of jurisprudence had become identifiable. The first
stream employs separationwhile the second employs benevolent
neutrality in interpreting the religious clauses. Alongside this change in
the landscape of U.S. religion clause jurisprudence, the Philippines
continued to adopt the 1935 Constitution religion clauses in the 1973
Constitution and later, the 1987 Constitution. Philippine jurisprudence
and commentaries on the religious clauses also continued to borrow
authorities from U.S. jurisprudence without articulating the stark
distinction between the two streams of U.S. jurisprudence. One might
simply conclude that the Philippine Constitutions and jurisprudence also
inherited the disarray of U.S. religion clause jurisprudence and the two
identifiable streams; thus, when a religion clause case comes before the
Court, a separationist approach or a benevolent neutralityapproach
might be adopted and each will have U.S. authorities to support it. Or,
one might conclude that as the history of the First Amendment as
narrated by the Court in Everson supports the separationist approach,
Philippine jurisprudence should also follow this approach in light of the
Philippine religion clauses history. As a result, in a case where the party
claims religious liberty in the face of a general law that inadvertently
burdens his religious exercise, he faces an almost insurmountable wall
in convincing the Court that the wall of separation would not be breached
if the Court grants him an exemption. These conclusions, however, are
not and were never warranted by the 1987, 1973 and 1935 Constitutions
as shown by other provisions on religion in all three constitutions. It is a
cardinal rule in constitutional construction that the constitution must be
interpreted as a whole and apparently conflicting provisions should be
reconciled and harmonized in a manner that will give to all of them full
force and effect.[377] From this construction, it will be ascertained that
the intent of the framers was to adopt a benevolent neutrality approach
in interpreting the religious clauses in the Philippine constitutions, and
the enforcement of this intent is the goal of construing the
constitution.[378]
We first apply the hermeneutical scalpel to dissect the 1935
Constitution. At the same time that the 1935 Constitution provided for an
Establishment Clause, it also provided for tax exemption of church
property in Article VI, Section 22, par. 3(b), viz:
(3) Cemeteries, churches, and parsonages or convents, appurtenant
thereto, and all lands, buildings, and improvements used exclusively
for religious, charitable, or educational purposes shall be exempt from
taxation.
Before the advent of the 1935 Constitution, Section 344 of the
Administrative Code provided for a similar exemption. To the same
effect, the Tydings-McDuffie Law contained a limitation on the taxing
power of the Philippine government during the Commonwealth
period.[379] The original draft of the Constitution placed this provision in
an ordinance to be appended to the Constitution because this was
among the provisions prescribed by the Tydings-McDuffie
Law. However, in order to have a constitutional guarantee for such an
exemption even beyond the Commonwealth period, the provision was
introduced in the body of the Constitution on the rationale that if
churches, convents [rectories or parsonages] and their accessories are
always necessary for facilitating the exercise of such [religious] freedom,
it would also be natural that their existence be also guaranteed by
exempting them from taxation.[380] The amendment was readily
approved with 83 affirmative votes against 15 negative votes.[381]
The Philippine constitutional provision on tax exemption is not found in
the U.S. Constitution. In the U.S. case of Walz, the Court struggled to
justify this kind of exemption to withstand Establishment Clause scrutiny
by stating that church property was not singled out but was exempt along
with property owned by non-profit, quasi-public corporations because
the state upheld the secular policy that considers these groups as
beneficial and stabilizing influences in community life and finds this
classification useful, desirable, and in the public interest. The Court also
stated that the exemption was meant to relieve the burden on free
exercise imposed by property taxation. At the same time, however, the
Court acknowledged that the exemption was an exercise of benevolent
neutrality to accommodate a long-standing tradition of exemption. With
the inclusion of the church property tax exemption in the body of the
1935 Constitution and not merely as an ordinance appended to the
Constitution, the benevolent neutrality referred to in the Walz case was
given constitutional imprimatur under the regime of the 1935
Constitution. The provision, as stated in the deliberations, was an
acknowledgment of the necessity of the exempt institutions to the
exercise of religious liberty, thereby evincing benevolence towards
religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:
(3) No public money, or property shall ever be appropriated, applied, or
used, directly or indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution or system of religion, for the
use, benefit or support of any priest, preacher, ministers or other
religious teacher or dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the armed forces or to any
penal institution, orphanage, or leprosarium. (emphasis supplied)
The original draft of this provision was a reproduction of a portion of
section 3 of the Jones Law which did not contain the above
exception, viz:
No public money or property shall ever be appropriated, applied, or
used, directly or indirectly, for the use, benefit, or support of any sect,
church denomination, sectarian institution, or system of religion, or for
the use, benefit or support of any priest, preacher, minister, or dignitary
as such[382]
In the deliberations of this draft provision, an amendment was proposed
to strike down everything after church denomination.[383] The proposal
intended to imitate the silence of the U.S. Constitution on the subject of
support for priests and ministers. It was also an imitation of the silence
of the Malolos Constitution to restore the situation under the Malolos
Constitution and prior to the Jones Law, when chaplains of the
revolutionary army received pay from public funds with no doubt about
its legality. It was pointed out, however, that even with the prohibition
under the Jones Law, appropriations were made to chaplains of the
national penitentiary and the Auditor General upheld its validity on the
basis of a similar United States practice. But it was also pointed out that
the U.S. Constitution did not contain a prohibition on appropriations
similar to the Jones Law.[384] To settle the question on the
constitutionality of payment of salaries of religious officers in certain
government institutions and to avoid the feared situation where the
enumerated government institutions could not employ religious officials
with compensation, the exception in the 1935 provision was introduced
and approved. The provision garnered 74 affirmative votes against 34
negative votes.[385] As pointed out in the deliberations, the U.S.
Constitution does not provide for this exemption. However, the U.S.
Supreme Court in Cruz v. Beto, apparently taking a benevolent
neutrality approach, implicitly approved the state of Texas payment of
prison chaplains salaries as reasonably necessary to permit inmates to
practice their religion. Also, in the Marsh case, the U.S. Supreme Court
upheld the long-standing tradition of beginning legislative sessions with
prayers offered by legislative chaplains retained at taxpayers
expense. The constitutional provision exempting religious officers in
government institutions affirms the departure of the Philippine
Constitution from the U.S. Constitution in its adoption of benevolent
neutrality in Philippine jurisdiction. While the provision prohibiting aid to
religion protects the wall of separation between church and state, the
provision at the same time gives constitutional sanction to a breach in
the wall.
To further buttress the thesis that benevolent neutrality is contemplated
in the Philippine Establishment Clause, the 1935 Constitution provides
for optional religious instruction in public schools in Article XIII, Section
5, viz:
. . . Optional religious instruction shall be maintained in the public
schools as now authorized by law. . .
The law then applicable was Section 928 of the Administrative Code, viz:
It shall be lawful, however, for the priest or minister of any church
established in the town where a public school is situated, either in person
or by a designated teacher of religion, to teach religion for one-half hour
three times a week, in the school building, to those public-school pupils
whose parents or guardians desire it and express their desire therefor in
writing filed with the principal of the school . . .
During the debates of the Constitutional Convention, there were three
positions on the issue of religious instruction in public schools. The first
held that the teaching of religion in public schools should be prohibited
as this was a violation of the principle of separation of church and state
and the prohibition against the use of public funds for religious
purposes. The second favored the proposed optional religious
instruction as authorized by the Administrative Code and recognized
that the actual practice of allowing religious instruction in the public
schools was sufficient proof that religious instruction was not and would
not be a source of religious discord in the schools.[386] The third wanted
religion to be included as a course in the curriculum of the public schools
but would only be taken by pupils at the option of their parents or
guardians. After several rounds of debate, the second camp prevailed,
thus raising to constitutional stature the optional teaching of religion in
public schools, despite the opposition to the provision on the ground of
separation of church and state.[387] As in the provisions on church
property tax exemption and compensation of religious officers in
government institutions, the U.S. Constitution does not provide for
optional religious instruction in public schools. In fact, in the McCollum
case, the Court, using strict neutrality, prohibited this kind of religious
instruction where the religion teachers would conduct class within the
school premises. The constitutional provision on optional religious
instruction shows that Philippine jurisdiction rejects the strict neutrality
approach which does not allow such accommodation of religion.
Finally, to make certain the Constitutions benevolence to religion, the
Filipino people implored (ing) the aid of Divine Providence (,) in order to
establish a government that shall embody their ideals, conserve and
develop the patrimony of the nation, promote the general welfare, and
secure to themselves and their posterity the blessings of independence
under a regime of justice, liberty, and democracy, (in) ordain(ing) and
promulgat(ing) this Constitution. A preamble is a key to open the mind
of the authors of the constitution as to the evil sought to be prevented
and the objects sought to be accomplished by the provisions
thereof.[388] There was no debate on the inclusion of a Divine
Providence in the preamble. In Aglipay, Justice Laurel noted that when
the Filipino people implored the aid of Divine Providence, (t)hey thereby
manifested their intense religious nature and placed unfaltering reliance
upon Him who guides the destinies of men and nations.[389]The 1935
Constitutions religion clauses, understood alongside the other
provisions on religion in the Constitution, indubitably shows not hostility,
but benevolence, to religion.[390]
The 1973 Constitution contained in Article VI, Section 22(3) a provision
similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution on
exemption of church property from taxation, with the modification that
the property should not only be used directly, but also actually and
exclusively for religious or charitable purposes. Parallel to Article VI,
Section 23(3) of the 1935 Constitution, the 1973 Constitution also
contained a similar provision on salaries of religious officials employed
in the enumerated government institutions. Article XIII, Section 5 of the
1935 Constitution on optional religious instruction was also carried to the
1973 Constitution in Article XV, Section 8(8) with the modification that
optional religious instruction shall be conducted as may be provided by
law and not as now authorized by law as stated in the 1935
Constitution. The 1973 counterpart, however, made explicit in the
constitution that the religious instruction in public elementary and high
schools shall be done (a)t the option expressed in writing by the parents
or guardians, and without cost to them and the government. With the
adoption of these provisions in the 1973 Constitution, the benevolent
neutrality approach continued to enjoy constitutional sanction. In Article
XV, Section 15 of the General Provisions of the 1973 Constitution this
provision made its maiden appearance: (t)he separation of church and
state shall be inviolable. The 1973 Constitution retained the portion of
the preamble imploring the aid of Divine Providence.
In the Report of the Ad Hoc Sub-Committee on Goals, Principles and
Problems of the Committee on Church and State of the 1971
Constitutional Convention, the question arose as to whether the
absolute separation of Church and State as enunciated in the Everson
case and reiterated in Schempp - i.e., neutrality not only as between one
religion and another but even as between religion and non-religion - is
embodied in the Philippine Constitution. The sub-committees answer
was that it did not seem so. Citing the Aglipay case where Justice Laurel
recognized the elevating influence of religion in human society and the
Filipinos imploring of Divine Providence in the 1935 Constitution, the
sub-committee asserted that the state may not prefer or aid one religion
over another, but may aid all religions equally or the cause of religion in
general.[391] Among the position papers submitted to the Committee on
Church on State was a background paper for reconsideration of the
religion provisions of the constitution by Fr. Bernas, S.J. He stated
therein that the Philippine Constitution is not hostile to religion and in
fact recognizes the value of religion and accommodates religious
values.[392] Stated otherwise, the Establishment Clause contemplates
not a strict neutrality but benevolent neutrality. While the Committee
introduced the provision on separation of church and state in the
General Provisions of the 1973 Constitution, this was nothing new as
according to it, this principle was implied in the 1935 Constitution even
in the absence of a similar provision.[393]
Then came the 1987 Constitution. The 1973 Constitutional provision on
tax exemption of church property was retained with minor modification
in Article VI, Section 28(3) of the 1987 Constitution. The same is true
with respect to the prohibition on the use of public money and property
for religious purposes and the salaries of religious officers serving in the
enumerated government institutions, now contained in Article VI,
Section 29(2). Commissioner Bacani, however, probed into the
possibility of allowing the government to spend public money for
purposes which might have religious connections but which would
benefit the public generally. Citing the Aglipay case, Commissioner
Rodrigo explained that if a public expenditure would benefit the
government directly, such expense would be constitutional even if it
results to an incidental benefit to religion. With that explanation,
Commissioner Bacani no longer pursued his proposal.[394]
The provision on optional religious instruction was also adopted in the
1987 Constitution in Article XIV, Section 3(3) with the modification that
it was expressly provided that optional instruction shall be conducted
within the regular class hours and without additional cost to the
government. There were protracted debates on what additional cost
meant, i.e., cost over and above what is needed for normal operations
such as wear and tear, electricity, janitorial services,[395] and when
during the day instruction would be conducted.[396] In deliberating on
the phrase within the regular class hours, Commissioner Aquino
expressed her reservations to this proposal as this would violate the
time-honored principle of separation of church and state. She cited
the McCullom case where religious instruction during regular school
hours was stricken down as unconstitutional and also cited what she
considered the most liberal interpretation of separation of church and
state in Surach v. Clauson where the U.S. Supreme Court allowed only
release time for religious instruction. Fr. Bernas replied, viz:
. . . the whole purpose of the provision was to provide for an exception
to the rule on non-establishment of religion, because if it were not
necessary to make this exception for purposes of allowing religious
instruction, then we could just drop the amendment. But, as a matter of
fact, this is necessary because we are trying to introduce something
here which is contrary to American practices.[397] (emphasis supplied)
(W)ithin regular class hours was approved.
The provision on the separation of church and state was retained but
placed under the Principles in the Declaration of Principles and State
Policies in Article II, Section 6. In opting to retain the wording of the
provision, Fr. Bernas stated, viz:
. . . It is true, I maintain, that as a legal statement the sentence The
separation of Church and State is inviolable, is almost a useless
statement; but at the same time it is a harmless statement. Hence, I am
willing to tolerate it there, because, in the end, if we look at the
jurisprudence on Church and State, arguments are based not on the
statement of separation of church and state but on the non-
establishment clause in the Bill of Rights.[398]
The preamble changed Divine Providence in the 1935 and 1973
Constitutions to Almighty God. There was considerable debate on
whether to use Almighty God which Commissioner Bacani said was
more reflective of Filipino religiosity, but Commissioner Rodrigo recalled
that a number of atheistic delegates in the 1971 Constitutional
Convention objected to reference to a personal God.[399] God of
History, Lord of History and God were also proposed, but the phrase
Almighty God prevailed. Similar to the 1935 and 1971 Constitutions, it is
obvious that the 1987 Constitution is not hostile nor indifferent to
religion;[400] its wall of separation is not a wall of hostility or
indifference.[401]
The provisions of the 1935, 1973 and 1987 constitutions on tax
exemption of church property, salary of religious officers in government
institutions, optional religious instruction and the preamble all reveal
without doubt that the Filipino people, in adopting these constitutions,
did not intend to erect a high and impregnable wall of separation
between the church and state.[402] The strict neutrality approach which
examines only whether government action is for a secular purpose and
does not consider inadvertent burden on religious exercise protects
such a rigid barrier. By adopting the above constitutional provisions on
religion, the Filipinos manifested their adherence to the benevolent
neutrality approach in interpreting the religion clauses, an approach that
looks further than the secular purposes of government action and
examines the effect of these actions on religious exercise. Benevolent
neutrality recognizes the religious nature of the Filipino people and the
elevating influence of religion in society; at the same time, it
acknowledges that government must pursue its secular goals. In
pursuing these goals, however, government might adopt laws or actions
of general applicability which inadvertently burden religious
exercise.Benevolent neutrality gives room for accommodation of these
religious exercises as required by the Free Exercise Clause. It allows
these breaches in the wall of separation to uphold religious liberty, which
after all is the integral purpose of the religion clauses. The case at bar
involves this first type of accommodation where an exemption is sought
from a law of general applicability that inadvertently burdens religious
exercise.
Although our constitutional history and interpretation
mandate benevolent neutrality, benevolent neutrality does not mean
that the Court ought to grant exemptions every time a free exercise claim
comes before it. But it does mean that the Court will not look with hostility
or act indifferently towards religious beliefs and practices and that it will
strive to accommodate them when it can within flexible constitutional
limits; it does mean that the Court will not simply dismiss a claim under
the Free Exercise Clause because the conduct in question offends a law
or the orthodox view for this precisely is the protection afforded by the
religion clauses of the Constitution, i.e., that in the absence of legislation
granting exemption from a law of general applicability, the Court can
carve out an exception when the religion clauses justify it. While the
Court cannot adopt a doctrinal formulation that can eliminate the difficult
questions of judgment in determining the degree of burden on religious
practice or importance of the state interest or the sufficiency of the
means adopted by the state to pursue its interest, the Court can set a
doctrine on the ideal towards which religious clause jurisprudence
should be directed.[403] We here lay down the doctrine that in Philippine
jurisdiction, we adopt the benevolent neutrality approach not only
because of its merits as discussed above, but more importantly,
because our constitutional history and interpretation indubitably show
that benevolent neutrality is the launching pad from which the Court
should take off in interpreting religion clause cases. The ideal towards
which this approach is directed is the protection of religious liberty not
only for a minority, however small- not only for a majority, however large-
but for each of us to the greatest extent possible within flexible
constitutional limits.
Benevolent neutrality is manifest not only in the Constitution but has also
been recognized in Philippine jurisprudence, albeit not expressly called
benevolent neutrality or accommodation. In Aglipay, the Court not only
stressed the elevating influence of religion in human society but
acknowledged the Constitutional provisions on exemption from tax of
church property, salary of religious officers in government institutions,
and optional religious instruction as well as the provisions of the
Administrative Code making Thursday and Friday of the Holy Week,
Christmas Day and Sundays legal holidays. In Garces, the Court not
only recognized the Constitutional provisions indiscriminately granting
concessions to religious sects and denominations, but also
acknowledged that government participation in long-standing traditions
which have acquired a social character - the barrio fiesta is a socio-
religious affair - does not offend the Establishment
Clause. In Victoriano, the Court upheld the exemption from closed shop
provisions of members of religious sects who prohibited their members
from joining unions upon the justification that the exemption was not a
violation of the Establishment Clause but was only meant to relieve the
burden on free exercise of religion. In Ebralinag, members of the
Jehovahs Witnesses were exempt from saluting the flag as required by
law, on the basis not of a statute granting exemption but of the Free
Exercise Clause without offending the Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form and
origin, Philippine constitutional law has departed from the U.S.
jurisprudence of employing a separationist or strict neutrality
approach. The Philippine religion clauses have taken a life of their own,
breathing the air of benevolent neutrality and accommodation. Thus,
the wall of separation in Philippine jurisdiction is not as high and
impregnable as the wall created by the U.S. Supreme Court
in Everson.[404] While the religion clauses are a unique American
experiment which understandably came about as a result of Americas
English background and colonization, the life that these clauses have
taken in this jurisdiction is the Philippines own experiment, reflective of
the Filipinos own national soul, history and tradition. After all, the life of
the law. . . has been experience.
But while history, constitutional construction, and earlier jurisprudence
unmistakably show that benevolent neutrality is the lens with which the
Court ought to view religion clause cases, it must be stressed that the
interest of the state should also be afforded utmost protection. To do
this, a test must be applied to draw the line between permissible and
forbidden religious exercise. It is quite paradoxical that in order for the
members of a society to exercise their freedoms, including their religious
liberty, the law must set a limit when their exercise offends the higher
interest of the state. To do otherwise is self-defeating for unlimited
freedom would erode order in the state and foment anarchy, eventually
destroying the very state its members established to protect their
freedoms. The very purpose of the social contract by which people
establish the state is for the state to protect their liberties; for this
purpose, they give up a portion of these freedoms - including the natural
right to free exercise - to the state. It was certainly not the intention of
the authors of the constitution that free exercise could be used to
countenance actions that would undo the constitutional order that
guarantees free exercise.[405]
The all important question then is the test that should be used in
ascertaining the limits of the exercise of religious freedom. Philippine
jurisprudence articulates several tests to determine these
limits. Beginning with the first case on the Free Exercise
Clause, American Bible Society, the Court mentioned the clear and
present danger test but did not employ it. Nevertheless, this test
continued to be cited in subsequent cases on religious
liberty. The Gerona case then pronounced that the test of permissibility
of religious freedom is whether it violates the established institutions of
society and law. The Victoriano case mentioned the immediate and
grave danger test as well as the doctrine that a law of general
applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used,
albeit inappropriately, the compelling state interest test. After Victoriano,
German went back to the Gerona rule. Ebralinag then employed the
grave and immediate danger test and overruled the Gerona test. The
fairly recent case of Iglesia ni Cristo went back to the clear and present
danger test in the maiden case of American Bible Society. Not
surprisingly, all the cases which employed the clear and present danger
or grave and immediate danger test involved, in one form or another,
religious speech as this test is often used in cases on freedom of
expression. On the other hand, the Gerona and German cases set the
rule that religious freedom will not prevail over established institutions of
society and law. Gerona, however, which was the authority cited
by German has been overruled by Ebralinag which employed the grave
and immediate danger test. Victoriano was the only case that employed
the compelling state interest test, but as explained previously, the use
of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society,
Ebralinag and Iglesia ni Cristo where the clear and present danger and
grave and immediate danger tests were appropriate as speech has
easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with
the benevolent neutrality approach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case involves purely
conduct arising from religious belief. The compelling state interest test
is proper where conduct is involved for the whole gamut of human
conduct has different effects on the states interests: some effects may
be immediate and short-term while others delayed and far-reaching. A
test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore
necessary. However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental right that
enjoys a preferred position in the hierarchy of rights - the most
inalienable and sacred of all human rights, in the words of
Jefferson.[406] This right is sacred for an invocation of the Free Exercise
Clause is an appeal to a higher sovereignty. The entire constitutional
order of limited government is premised upon an acknowledgment of
such higher sovereignty,[407] thus the Filipinos implore the aid of
Almighty God in order to build a just and humane society and establish
a government. As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A
mere balancing of interests which balances a right with just a colorable
state interest is therefore not appropriate. Instead, only a compelling
interest of the state can prevail over the fundamental right to religious
liberty. The test requires the state to carry a heavy burden, a compelling
one, for to do otherwise would allow the state to batter religion,
especially the less powerful ones until they are destroyed.[408] In
determining which shall prevail between the states interest and religious
liberty, reasonableness shall be the guide.[409] The compelling state
interest serves the purpose of revering religious liberty while at the same
time affording protection to the paramount interests of the state.This was
the test used in Sherbert which involved conduct, i.e. refusal to work on
Saturdays. In the end, the compelling state interest test, by upholding
the paramount interests of the state, seeks to protect the very state,
without which, religious liberty will not be preserved.
X. Application of the Religion Clauses to the Case at Bar
A. The Religion Clauses and Morality
In a catena of cases, the Court has ruled that government employees
engaged in illicit relations are guilty of disgraceful and immoral conduct
for which he/she may be held administratively liable.[410] In these
cases, there was not one dissent to the majoritys ruling that their conduct
was immoral. The respondents themselves did not foist the defense that
their conduct was not immoral, but instead sought to prove that they did
not commit the alleged act or have abated from committing the act. The
facts of the 1975 case of De Dios v. Alejo[411] and the 1999 case
of Maguad v. De Guzman,[412] are similar to the case at bar - i.e., the
complainant is a mere stranger and the legal wife has not registered any
objection to the illicit relation, there is no proof of scandal or offense to
the moral sensibilities of the community in which the respondent and the
partner live and work, and the government employee is capacitated to
marry while the partner is not capacitated but has long been separated
in fact. Still, the Court found the government employees administratively
liable for disgraceful and immoral conduct and only considered the
foregoing circumstances to mitigate the penalty. Respondent Escritor
does not claim that there is error in the settled jurisprudence that an illicit
relation constitutes disgraceful and immoral conduct for which a
government employee is held liable. Nor is there an allegation that the
norms of morality with respect to illicit relations have shifted towards
leniency from the time these precedent cases were decided. The Court
finds that there is no such error or shift, thus we find no reason to deviate
from these rulings that such illicit relationship constitutes disgraceful and
immoral conduct punishable under the Civil Service Law. Respondent
having admitted the alleged immoral conduct, she, like the respondents
in the above-cited cases, could be held administratively liable. However,
there is a distinguishing factor that sets the case at bar apart from the
cited precedents, i.e., as a defense, respondent invokes religious
freedom since her religion, the Jehovahs Witnesses, has, after thorough
investigation, allowed her conjugal arrangement with Quilapio based on
the churchs religious beliefs and practices. This distinguishing factor
compels the Court to apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar,
both the dissenting opinion of Mme. Justice Ynares-Santiago and the
separate opinion of Mr. Justice Vitug dwell more on the standards of
morality than on the religion clauses in deciding the instant case. A
discussion on morality is in order.
At base, morality refers to, in Socrates words, how we ought to live and
why. Any definition of morality beyond Socrates simple formulation is
bound to offend one or another of the many rival theories regarding what
it means to live morally.[413] The answer to the question of how we
ought to live necessarily considers that man does not live in isolation,
but in society. Devlin posits that a society is held together by a
community of ideas, made up not only of political ideas but also of ideas
about the manner its members should behave and govern their
lives. The latter are their morals; they constitute the public
morality. Each member of society has ideas about what is good and
what is evil. If people try to create a society wherein there is no
fundamental agreement about good and evil, they will fail; if having
established the society on common agreement, the agreement
collapses, the society will disintegrate. Society is kept together by the
invisible bonds of common thought so that if the bonds are too loose,
the members would drift apart. A common morality is part of the
bondage and the bondage is part of the price of society; and mankind,
which needs society, must pay its price.[414] This design is parallel with
the social contract in the realm of politics: people give up a portion of
their liberties to the state to allow the state to protect their liberties. In a
constitutional order, people make a fundamental agreement about the
powers of government and their liberties and embody this agreement in
a constitution, hence referred to as the fundamental law of the land. A
complete break of this fundamental agreement such as by revolution
destroys the old order and creates a new one.[415] Similarly, in the
realm of morality, the breakdown of the fundamental agreement about
the manner a societys members should behave and govern their lives
would disintegrate society. Thus, society is justified in taking steps to
preserve its moral code by law as it does to preserve its government and
other essential institutions.[416] From these propositions of Devlin, one
cannot conclude that Devlin negates diversity in society for he is merely
saying that in the midst of this diversity, there should nevertheless be a
fundamental agreement about good and evil that will govern how people
in a society ought to live. His propositions, in fact, presuppose diversity
hence the need to come to an agreement; his position also allows for
change of morality from time to time which may be brought about by this
diversity. In the same vein, a pluralistic society lays down fundamental
rights and principles in their constitution in establishing and maintaining
their society, and these fundamental values and principles are translated
into legislation that governs the order of society, laws that may be
amended from time to time. Harts argument propounded in Mr. Justice
Vitugs separate opinion that, Devlins view of people living in a single
society as having common moral foundation (is) overly simplistic
because societies have always been diverse fails to recognize the
necessity of Devlins proposition in a democracy. Without fundamental
agreement on political and moral ideas, society will fall into anarchy; the
agreement is necessary to the existence and progress of society.
In a democracy, this common agreement on political and moral ideas is
distilled in the public square. Where citizens are free, every opinion,
every prejudice, every aspiration, and every moral discernment has
access to the public square where people deliberate the order of their
life together. Citizens are the bearers of opinion, including opinion
shaped by, or espousing religious belief, and these citizens have equal
access to the public square. In this representative democracy, the state
is prohibited from determining which convictions and moral judgments
may be proposed for public deliberation. Through a constitutionally
designed process, the people deliberate and decide. Majority rule is a
necessary principle in this democratic governance.[417] Thus, when
public deliberation on moral judgments is finally crystallized into law, the
laws will largely reflect the beliefs and preferences of the majority, i.e.,
the mainstream or median groups.[418] Nevertheless, in the very act of
adopting and accepting a constitution and the limits it specifies --
including protection of religious freedom not only for a minority, however
small- not only for a majority, however large- but for each of us -- the
majority imposes upon itself a self-denying ordinance. It promises not to
do what it otherwise could do: to ride roughshod over the dissenting
minorities.[419] In the realm of religious exercise, benevolent
neutrality that gives room for accommodation carries out this promise,
provided the compelling interests of the state are not eroded for the
preservation of the state is necessary to the preservation of religious
liberty. That is why benevolent neutrality is necessary in a pluralistic
society such as the United States and the Philippines to accommodate
those minority religions which are politically powerless. It is not
surprising that Smith is much criticized for it blocks the judicial recourse
of the minority for religious accommodations.
The laws enacted become expressions of public morality. As Justice
Holmes put it, (t)he law is the witness and deposit of our moral
life.[420] In a liberal democracy, the law reflects social morality over a
period of time.[421] Occasionally though, a disproportionate political
influence might cause a law to be enacted at odds with public morality
or legislature might fail to repeal laws embodying outdated traditional
moral views.[422] Law has also been defined as something men create
in their best moments to protect themselves in their worst
moments.[423] Even then, laws are subject to amendment or repeal just
as judicial pronouncements are subject to modification and reversal to
better reflect the public morals of a society at a given time. After all, the
life of the law...has been experience, in the words of Justice
Holmes. This is not to say though that law is all of morality. Law deals
with the minimum standards of human conduct while morality is
concerned with the maximum. A person who regulates his conduct with
the sole object of avoiding punishment under the law does not meet the
higher moral standards set by society for him to be called a morally
upright person.[424] Law also serves as a helpful starting point for
thinking about a proper or ideal public morality for a society[425] in
pursuit of moral progress.
In Magno v. Court of Appeals, et al.,[426] we articulated the relationship
between law and public morality. We held that under the utilitarian
theory, the protective theory in criminal law, criminal law is founded upon
the moral disapprobation x x x of actions which are immoral, i.e., which
are detrimental (or dangerous) to those conditions upon which depend
the existence and progress of human society. This disapprobation is
inevitable to the extent that morality is generally founded and built upon
a certain concurrence in the moral opinions of all. x x x That which we
call punishment is only an external means of emphasizing moral
disapprobation: the method of punishment is in reality the amount of
punishment.[427] Stated otherwise, there are certain standards of
behavior or moral principles which society requires to be observed and
these form the bases of criminal law. Their breach is an offense not only
against the person injured but against society as a whole.[428] Thus,
even if all involved in the misdeed are consenting parties, such as in the
case at bar, the injury done is to the public morals and the public interest
in the moral order.[429] Mr. Justice Vitug expresses concern on this
point in his separate opinion.He observes that certain immoral acts
which appear private and not harmful to society such as sexual congress
between a man and a prostitute, though consensual and private, and
with no injured third party, remains illegal in this country. His opinion
asks whether these laws on private morality are justified or they
constitute impingement on ones freedom of belief. Discussion on private
morality, however, is not material to the case at bar for whether
respondents conduct, which constitutes concubinage,[430] is private in
the sense that there is no injured party or the offended spouse consents
to the concubinage, the inescapable fact is that the legislature has taken
concubinage out of the sphere of private morals. The legislature
included concubinage as a crime under the Revised Penal Code and the
constitutionality of this law is not being raised in the case at bar. In the
definition of the crime of concubinage, consent of the injured party, i.e.,
the legal spouse, does not alter or negate the crime unlike in
rape[431] where consent of the supposed victim negates the crime. If at
all, the consent or pardon of the offended spouse in concubinage
negates the prosecution of the action,[432] but does not alter the
legislatures characterization of the act as a moral disapprobation
punishable by law. The separate opinion states that, (t)he ponencia has
taken pains to distinguish between secular and private morality, and
reached the conclusion that the law, as an instrument of the secular
State should only concern itself with secular morality. The Court does
not draw this distinction in the case at bar. The distinction relevant to the
case is not, as averred and discussed by the separate opinion, between
secular and private morality, but between public and secular morality on
the one hand, and religious morality on the other, which will be
subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or
otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the
Philippine Islands, et al., where we explained that for those wrongs
which are not punishable by law, Articles 19 and 21 in Chapter 2 of the
Preliminary Title of the New Civil Code, dealing with Human Relations,
provide for the recognition of the wrong and the concomitant punishment
in the form of damages. Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due and
observe honesty and good faith.
xxx xxx xxx
Art. 21. Any person who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage. (emphasis supplied)
We then cited in Velayo the Code Commissions comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule is approved (as it
was approved), would vouchsafe adequate legal remedy for that untold
numbers of moral wrongs which is impossible for human foresight to
provide for specifically in the statutes.
But, it may be asked, would this proposed article obliterate the boundary
line between morality and law? The answer is that, in the last analysis,
every good law draws its breath of life from morals, from those principles
which are written with words of fire in the conscience of man. If this
premise is admitted, then the proposed rule is a prudent earnest of
justice in the face of the impossibility of enumerating, one by one, all
wrongs which cause damages. When it is reflected that while codes of
law and statutes have changed from age to age, the conscience of man
has remained fixed to its ancient moorings, one can not but feel that it is
safe and salutary to transmute, as far as may be, moral norms into legal
rules, thus imparting to every legal system that enduring quality which
ought to be one of its superlative attributes.
Furthermore, there is no belief of more baneful consequence upon the
social order than that a person may with impunity cause damage to his
fellow-men so long as he does not break any law of the State, though
he may be defying the most sacred postulates of morality. What is more,
the victim loses faith in the ability of the government to afford him
protection or relief.
A provision similar to the one under consideration is embodied in article
826 of the German Civil Code.[433] (emphases supplied)
The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from
establishing a religion, including the morality it sanctions. Religious
morality proceeds from a persons views of his relations to His Creator
and to the obligations they impose of reverence to His being and
character and obedience to His Will, in accordance with this Courts
definition of religion in American Bible Society citing Davis. Religion also
dictates how we ought to live for the nature of religion is not just to know,
but often, to act in accordance with mans views of his relations to His
Creator.[434] But the Establishment Clause puts a negative bar against
establishment of this morality arising from one religion or the other, and
implies the affirmative establishment of a civil order for the resolution of
public moral disputes. This agreement on a secular mechanism is the
price of ending the war of all sects against all; the establishment of a
secular public moral order is the social contract produced by religious
truce.[435]
Thus, when the law speaks of immorality in the Civil Service Law or
immoral in the Code of Professional Responsibility for lawyers[436], or
public morals in the Revised Penal Code,[437] or morals in the New Civil
Code,[438] or moral character in the Constitution,[439] the distinction
between public and secular morality on the one hand, and religious
morality, on the other, should be kept in mind.[440] The morality referred
to in the law is public and necessarily secular, not religious as the dissent
of Mr. Justice Carpio holds. Religious teachings as expressed in public
debate may influence the civil public order but public moral disputes may
be resolved only on grounds articulable in secular
terms.[441] Otherwise, if government relies upon religious beliefs in
formulating public policies and morals, the resulting policies and morals
would require conformity to what some might regard as religious
programs or agenda. The non-believers would therefore be compelled
to conform to a standard of conduct buttressed by a religious belief, i.e.,
to a compelled religion, anathema to religious freedom.Likewise, if
government based its actions upon religious beliefs, it would tacitly
approve or endorse that belief and thereby also tacitly disapprove
contrary religious or non-religious views that would not support the
policy. As a result, government will not provide full religious freedom for
all its citizens, or even make it appear that those whose beliefs are
disapproved are second-class citizens. Expansive religious freedom
therefore requires that government be neutral in matters of religion;
governmental reliance upon religious justification is inconsistent with this
policy of neutrality.[442]
In other words, government action, including its proscription of
immorality as expressed in criminal law like concubinage, must have a
secular purpose. That is, the government proscribes this conduct
because it is detrimental (or dangerous) to those conditions upon which
depend the existence and progress of human society and not because
the conduct is proscribed by the beliefs of one religion or the
other.Although admittedly, moral judgments based on religion might
have a compelling influence on those engaged in public deliberations
over what actions would be considered a moral disapprobation
punishable by law. After all, they might also be adherents of a religion
and thus have religious opinions and moral codes with a compelling
influence on them; the human mind endeavors to regulate the temporal
and spiritual institutions of society in a uniform manner, harmonizing
earth with heaven.[443] Succinctly put, a law could be religious or
Kantian or Aquinian or utilitarian in its deepest roots, but it must have an
articulable and discernible secular purpose and justification to pass
scrutiny of the religion clauses. Otherwise, if a law has an apparent
secular purpose but upon closer examination shows a discriminatory
and prohibitory religious purpose, the law will be struck down for being
offensive of the religion clauses as in Church of the Lukumi Babalu Aye,
Inc. where the U.S. Supreme Court invalidated an ordinance prohibiting
animal sacrifice of the Santeria. Recognizing the religious nature of the
Filipinos and the elevating influence of religion in society, however, the
Philippine constitutions religion clauses prescribe not a strict but
a benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the same
time strives to uphold religious liberty to the greatest extent possible
within flexible constitutional limits. Thus, although the morality
contemplated by laws is secular, benevolent neutrality could allow
for accommodation of morality based on religion, provided it does not
offend compelling state interests.
Mr. Justice Vitugs separate opinion embraces the benevolent
neutrality approach when it states that in deciding the case at bar, the
approach should consider that, (a)s a rule . . . moral laws are justified
only to the extent that they directly or indirectly serve to protect the
interests of the larger society. It is only where their rigid application
would serve to obliterate the value which society seeks to uphold, or
defeat the purpose for which they are enacted would, a departure be
justified. In religion clause parlance, the separate opinion holds that laws
of general applicability governing morals should have a secular purpose
of directly or indirectly protecting the interests of the state. If the strict
application of these laws (which are the Civil Service Law and the laws
on marriage) would erode the secular purposes of the law (which the
separate opinion identifies as upholding the sanctity of marriage and the
family), then in a benevolent neutrality framework,
an accommodation of the unconventional religious belief and practice
(which the separate opinion holds should be respected on the ground of
freedom of belief) that would promote the very same secular purpose of
upholding the sanctity of marriage and family through the Declaration
Pledging Faithfulness that makes the union binding and honorable
before God and men, is required by the Free Exercise Clause. The
separate opinion then makes a preliminary discussion of the values
society seeks to protect in adhering to monogamous marriage, but
concludes that these values and the purposes of the applicable laws
should be thoroughly examined and evidence in relation thereto
presented in the OCA. The accommodation approach in the case at bar
would also require a similar discussion of these values and presentation
of evidence before the OCA by the state that seeks to protect its interest
on marriage and opposes the accommodation of the unconventional
religious belief and practice regarding marriage.
The distinction between public and secular morality as expressed - albeit
not exclusively - in the law, on the one hand, and religious morality, on
the other, is important because the jurisdiction of the Court extends only
to public and secular morality. Whatever pronouncement the Court
makes in the case at bar should be understood only in this realm where
it has authority. More concretely, should the Court declare respondents
conduct as immoral and hold her administratively liable, the Court will
be holding that in the realm of public morality, her conduct is
reprehensible or there are state interests overriding her religious
freedom. For as long as her conduct is being judged within this realm,
she will be accountable to the state. But in so ruling, the Court does not
and cannot say that her conduct should be made reprehensible in the
realm of her church where it is presently sanctioned and that she is
answerable for her immorality to her Jehovah God nor that other
religions prohibiting her conduct are correct. On the other hand, should truth-telling, without which no society will survive. Only one conduct is in
the Court declare her conduct permissible, the Court will be holding that question before this Court, i.e., the conjugal arrangement of a
under her unique circumstances, public morality is not offended or that government employee whose partner is legally married to another which
upholding her religious freedom is an interest higher than upholding Philippine law and jurisprudence consider both immoral and illegal.Lest
public morality thus her conduct should not be penalized. But the Court the Court inappropriately engage in the impossible task of prescribing
is not ruling that the tenets and practice of her religion are correct nor comprehensively how one ought to live, the Court must focus its
that other churches which do not allow respondents conjugal attention upon the sole conduct in question before us.
arrangement should likewise allow such conjugal arrangement or should
In interpreting disgraceful and immoral conduct, the dissenting opinion
not find anything immoral about it and therefore members of these
of Mme. Justice Ynares-Santiago groped for standards of morality and
churches are not answerable for immorality to their Supreme Being. The
stated that the ascertainment of what is moral or immoral calls for the
Court cannot speak more than what it has authority to say. In Ballard,
discovery of contemporary community standards but did not articulate
the U.S. Supreme Court held that courts cannot inquire about the truth
how these standards are to be ascertained. Instead, it held that, (f)or
of religious beliefs. Similarly, in Fonacier, this Court declared that
those in the service of the Government, provisions of law and court
matters dealing with faith, practice, doctrine, form of worship,
precedents . . . have to be considered. It identified the Civil Service Law
ecclesiastical law, custom and rule of a churchare unquestionably
and the laws on adultery and concubinage as laws which respondents
ecclesiastical matters which are outside the province of the civil
conduct has offended and cited a string of precedents where a
courts.[444] But while the state, including the Court, accords such
government employee was found guilty of committing a disgraceful and
deference to religious belief and exercise which enjoy protection under
immoral conduct for maintaining illicit relations and was thereby
the religious clauses, the social contract and the constitutional order are
penalized. As stated above, there is no dispute that under settled
designed in such a way that when religious belief flows into speech and
jurisprudence, respondents conduct constitutes disgraceful and immoral
conduct that step out of the religious sphere and overlap with the secular
conduct. However, the cases cited by the dissent do not involve the
and public realm, the state has the power to regulate, prohibit and
defense of religious freedom which respondent in the case at bar
penalize these expressions and embodiments of belief insofar as they
invokes. Those cited cases cannot therefore serve as precedents in
affect the interests of the state. The states inroad on religion exercise in
settling the issue in the case at bar.
excess of this constitutional design is prohibited by the religion clauses;
the Old World, European and American history narrated above bears Mme. Justice Ynares-Santiagos dissent also cites Cleveland v. United
out the wisdom of this proscription. States[446] in laying down the standard of morality, viz: (w)hether an act
is immoral within the meaning of the statute is not to be determined by
Having distinguished between public and secular morality and religious
respondents concept of morality. The law provides the standard; the
morality, the more difficult task is determining which immoral acts under
offense is complete if respondent intended to perform, and did in fact
this public and secular morality fall under the phrase disgraceful and
perform, the act which it condemns. The Mann Act under consideration
immoral conduct for which a government employee may be held
in the Cleveland case declares as an offense the transportation in
administratively liable. The line is not easy to draw for it is like a line that
interstate commerce of any woman or girl for the purpose of prostitution
divides land and sea, a coastline of irregularities and
or debauchery, or for any other immoral purpose.[447] The resolution of
indentations.[445] But the case at bar does not require us to
that case hinged on the interpretation of the phrase immoral
comprehensively delineate between those immoral acts for which one
purpose. The U.S. Supreme Court held that the petitioner Mormons act
may be held administratively liable and those to which administrative
of transporting at least one plural wife whether for the purpose of
liability does not attach. We need not concern ourselves in this case
cohabiting with her, or for the purpose of aiding another member of their
therefore whether laziness, gluttony, vanity, selfishness, avarice and
Mormon church in such a project, was covered by the phrase immoral
cowardice are immoral acts which constitute grounds for administrative
purpose. In so ruling, the Court relied on Reynolds which held that the
liability.Nor need we expend too much energy grappling with the
Mormons practice of polygamy, in spite of their defense of religious
propositions that not all immoral acts are illegal or not all illegal acts are
freedom, was odious among the northern and western nations of
immoral, or different jurisdictions have different standards of morality as
Europe,[448] a return to barbarism,[449] contrary to the spirit of
discussed by the dissents and separate opinions, although these
Christianity and of the civilization which Christianity has produced in the
observations and propositions are true and correct. It is certainly a
Western world,[450] and thus punishable by law.
fallacious argument that because there are exceptions to the general
rule that the law is the witness and deposit of our moral life, then the rule The Cleveland standard, however, does not throw light to the issue in
is not true; in fact, that there are exceptions only affirms the truth of the the case at bar. The pronouncements of the U.S. Supreme Court that
rule. Likewise, the observation that morality is relative in different polygamy is intrinsically odious or barbaric do not apply in the
jurisdictions only affirms the truth that there is morality in a particular Philippines where Muslims, by law, are allowed to practice
jurisdiction; without, however, discounting the truth that underneath the polygamy.Unlike in Cleveland, there is no jurisprudence in Philippine
moral relativism are certain moral absolutes such as respect for life and jurisdiction holding that the defense of religious freedom of a member of
the Jehovahs Witnesses under the same circumstances as respondent
will not prevail over the laws on adultery, concubinage or some other
law. We cannot summarily conclude therefore that her conduct is
likewise so odious and barbaric as to be immoral and punishable by law.
While positing the view that the resolution of the case at bar lies more
on determining the applicable moral standards and less on religious
freedom, Mme. Justice Ynares-Santiagos dissent nevertheless
discussed respondents plea of religious freedom and disposed of this
defense by stating that (a) clear and present danger of a substantive
evil, destructive to public morals, is a ground for the reasonable
regulation of the free exercise and enjoyment of religious profession.
(American Bible Society v. City of Manila, 101 Phil. 386 [1957]). In
addition to the destruction of public morals, the substantive evil in this
case is the tearing down of morality, good order, and discipline in the
judiciary. However, the foregoing discussion has shown that the clear
and present danger test that is usually employed in cases involving
freedom of expression is not appropriate to the case at bar which
involves purely religious conduct. The dissent also cites Reynolds in
supporting its conclusion that respondent is guilty of disgraceful and
immoral conduct. The Reynolds ruling, however, was reached with a
strict neutrality approach, which is not the approach contemplated by the
Philippine constitution. As discussed above, Philippine jurisdiction
adopts benevolent neutrality in interpreting the religion clauses.
In the same vein, Mr. Justice Carpios dissent which employs strict
neutrality does not reflect the constitutional intent
employing benevolent neutrality in interpreting the Philippine religion
clauses. His dissent avers that respondent should be
administratively liable not for disgraceful and immoral conduct but
conduct prejudicial to the best interest of the service as she is a
necessary co-accused of her partner in concubinage. The dissent
stresses that being a court employee, her open violation of the law is
prejudicial to the administration of justice. Firstly, the dissent offends due
process as respondent was not given an opportunity to defend herself
against the charge of conduct prejudicial to the best interest of the
service. In addition, there is no evidence of the alleged prejudice to the
best interest of the service.Most importantly, the dissent concludes that
respondents plea of religious freedom cannot prevail without so much
as employing a test that would balance respondents religious freedom
and the states interest at stake in the case at bar. The foregoing
discussion on the doctrine of religious freedom, however, shows that
with benevolent neutrality as a framework, the Court cannot simply
reject respondents plea of religious freedom without even subjecting it
to the compelling state interest test that would balance her freedom with
the paramount interests of the state. The strict neutrality employed in the
cases the dissent cites -Reynolds, Smith and People v. Bitdu decided
before the 1935 Constitution which unmistakably shows adherence to
benevolent neutrality - is not contemplated by our constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge
Nabdar J. Malik[451] cited in Mr. Justice Carpios dissent decisive of the
immorality issue in the case at bar. In that case, the Court dismissed the
charge of immorality against a Tausug judge for engaging in an
adulterous relationship with another woman with whom he had three
children because it (was) not immoral by Muslim standards for Judge
Malik to marry a second time while his first marriage (existed). Putting
the quoted portion in its proper context would readily show that the Sulu
Islamic case does not provide a precedent to the case at
bar. Immediately prior to the portion quoted by the dissent, the Court
stressed, viz: (s)ince Art. 180 of P.D. No. 1083, otherwise known as the
Code of Muslim Personal Laws of the Philippines, provides that the
penal laws relative to the crime of bigamy shall not apply to a person
married x x x under Muslim Law, it is not immoral by Muslim standards
for Judge Malik to marry a second time while his first marriage
exists.[452] It was by law, therefore, that the Muslim conduct in question
was classified as an exception to the crime of bigamy and thus an
exception to the general standards of morality. The constitutionality of
P.D. No. 1083 when measured against the Establishment Clause was
not raised as an issue in the Sulu Islamic case. Thus, the Court did not
determine whether P.D. No. 1083 suffered from a constitutional infirmity
and instead relied on the provision excepting the challenged Muslim
conduct from the crime of bigamy in holding that the challenged act is
not immoral by Muslim standards. In contradistinction, in the case at bar,
there is no similar law which the Court can apply as basis for treating
respondents conduct as an exception to the prevailing jurisprudence on
illicit relations of civil servants. Instead, the Free Exercise Clause is
being invoked to justify exemption.
of
B. Application of Benevolent Neutrality and the
held Compelling State Interest Test to the Case at Bar
The case at bar being one of first impression, we now subject the
respondents claim of religious freedom to the compelling state interest
test from a benevolent neutrality stance - i.e. entertaining the possibility
that respondents claim to religious freedom would warrant carving out
an exception from the Civil Service Law; necessarily, her defense of
religious freedom will be unavailing should the government succeed in
demonstrating a more compelling state interest.
In applying the test, the first inquiry is whether respondents right to
religious freedom has been burdened. There is no doubt that choosing
between keeping her employment and abandoning her religious belief
and practice and family on the one hand, and giving up her employment
and keeping her religious practice and family on the other hand, puts a
burden on her free exercise of religion. In Sherbert,the Court found that
Sherberts religious exercise was burdened as the denial of
unemployment benefits forces her to choose between following the
precepts of her religion and forfeiting benefits, on the one hand, and
abandoning one of the precepts of her religion in order to accept work,
on the other hand. The burden on respondent in the case at bar is even
greater as the price she has to pay for her employment is not only her
religious precept but also her family which, by the Declaration Pledging
Faithfulness, stands honorable before God and men.
The second step is to ascertain respondents sincerity in her religious maintaining among its ranks a high standard of morality and
belief. Respondent appears to be sincere in her religious belief and decency. However, there is nothing in the OCAs memorandum to the
practice and is not merely using the Declaration of Pledging Faithfulness Court that demonstrates how this interest is so compelling that it should
to avoid punishment for immorality. She did not secure the Declaration override respondents plea of religious freedom nor is it shown that the
only after entering the judiciary where the moral standards are strict and means employed by the government in pursuing its interest is the least
defined, much less only after an administrative case for immorality was restrictive to respondents religious exercise.
filed against her. The Declaration was issued to her by her congregation
Indeed, it is inappropriate for the complainant, a private person, to
after ten years of living together with her partner, Quilapio, and ten years
present evidence on the compelling interest of the state. The burden of
before she entered the judiciary. Ministers from her congregation
evidence should be discharged by the proper agency of the government
testified on the authenticity of the Jehovahs Witnesses practice of
which is the Office of the Solicitor General. To properly settle the issue
securing a Declaration and their doctrinal or scriptural basis for such a
in the case at bar, the government should be given the opportunity to
practice. As the ministers testified, the Declaration is not whimsically
demonstrate the compelling state interest it seeks to uphold in opposing
issued to avoid legal punishment for illicit conduct but to make the union
the respondents stance that her conjugal arrangement is not immoral
of their members under respondents circumstances honorable before
and punishable as it comes within the scope of free exercise
God and men. It is also worthy of notice that the Report and
protection. Should the Court prohibit and punish her conduct where it is
Recommendation of the investigating judge annexed letters[453] of the
protected by the Free Exercise Clause, the Courts action would be an
OCA to the respondent regarding her request to be exempt from
unconstitutional encroachment of her right to religious freedom.[454] We
attending the flag ceremony after Circular No. 62-2001 was issued
cannot therefore simply take a passing look at respondents claim of
requiring attendance in the flag ceremony. The OCAs letters were not
religious freedom, but must instead apply the compelling state interest
submitted by respondent as evidence but annexed by the investigating
test. The government must be heard on the issue as it has not been
judge in explaining that he was caught in a dilemma whether to find
given an opportunity to discharge its burden of demonstrating the states
respondent guilty of immorality because the Court Administrator and
compelling interest which can override respondents religious belief and
Deputy Court Administrator had different positions regarding
practice. To repeat, this is a case of first impression where we are
respondents request for exemption from the flag ceremony on the
applying the compelling state interest test in a case involving purely
ground of the Jehovahs Witnesses contrary belief and
religious conduct. The careful application of the test is indispensable as
practice. Respondents request for exemption from the flag ceremony
how we will decide the case will make a decisive difference in the life of
shows her sincerity in practicing the Jehovahs Witnesses beliefs and not
the respondent who stands not only before the Court but before her
using them merely to escape punishment. She is a practicing member
Jehovah God.
of the Jehovahs Witnesses and the Jehovah ministers testified that she
is a member in good standing. Nevertheless, should the government, IN VIEW WHEREOF, the case is REMANDED to the Office of the Court
thru the Solicitor General, want to further question the respondents Administrator. The Solicitor General is ordered to intervene in the case
sincerity and the centrality of her practice in her faith, it should be given where it will be given the opportunity (a) to examine the sincerity and
the opportunity to do so. The government has not been represented in centrality of respondents claimed religious belief and practice; (b) to
the case at bar from its incipience until this point. present evidence on the states compelling interest to override
respondents religious belief and practice; and (c) to show that the means
In any event, even if the Court deems sufficient respondents evidence
the state adopts in pursuing its interest is the least restrictive to
on the sincerity of her religious belief and its centrality in her faith, the
respondents religious freedom. The rehearing should be concluded
case at bar cannot still be decided using the compelling state interest
thirty (30) days from the Office of the Court Administrators receipt of this
test. The case at bar is one of first impression, thus the parties were not
Decision.
aware of the burdens of proof they should discharge in the Courts use
of the compelling state interest test. We note that the OCA found SO ORDERED.
respondents defense of religious freedom unavailing in the face of the
Courts ruling in Dicdican v. Fernan, et al., viz: Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga,
JJ., concur.
It bears emphasis that the image of a court of justice is mirrored in the
conduct, official and otherwise, of the personnel who work thereat, from Bellosillo and Vitug, JJ., please see separate opinion.

the judge to the lowest of its personnel. Court personnel have been
enjoined to adhere to the exacting standards of morality and decency in
their professional and private conduct in order to preserve the good
name and integrity of the courts of justice.
Ynares-Santiago, and Carpio, JJ., see dissenting opinion.
Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the dissenting
opinion of J. Carpio.

It is apparent from the OCAs reliance upon this ruling that the state Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.
interest it upholds is the preservation of the integrity of the judiciary by

[1] Kelley, D. Strict Neutrality and the Free Exercise of Religion in
Weber, P., Equal Separation (1990), p. 17.
[2] Walz v. Tax Commission of the City of New York, 397 U.S. 664
(1970), p. 668.
[3] Smith, S., The Rise and Fall of Religious Freedom in Constitutional
Discourse, University of Pennsylvania Law Review, vol. 140(1),
November 1991, pp. 149-150.
[4] Concurring Opinion of Justice Stewart, Sherbert v. Verner, 374 U.S.
398, p. 416 (1963).
[5] Rollo, pp. 5-6.
[6] Id. at 8.
[7] Id. at 19-26; TSN, October 12, 2000, pp. 3-10.
[8] Id. at 101.
[9] Id. at 100; Exhibit 3, Certificate of Death.
[10] Id. at 10; Exhibit 1.
[11] Id. at 11; Exhibit 2.
[12] Id. at 27-33.
[13] Id. at 37.
[14] Id. at 191-194; TSN, Soledad Escritor, March 8, 2002, pp. 7-10.
[15] Id. at 156-160, TSN, May 29, 2002, pp. 5-9.
[16] Citing biblical passages, this article addresses the question, Does
the validity of a marriage depend entirely upon its recognition by civil
authorities and does their validation determine how Jehovah God, the
author of marriage, views the union? It traces the origins of marriage to
the time of the Hebrews when marriage was a family or tribal affair. With
the forming of Israel as a nation, God gave a law containing provisions
on marriage, but there was no requirement for a license to be obtained
from the priesthood nor that a priest or a representative from
government be present in the marriage to validate it. Instead, as long as
Gods law was adhered to, the marriage was valid and honorable within
the community where the couple lived. In later Bible times, marriages
came to be registered, but only after the marriage had been officiated,
thereby making the government only a record-keeper of the fact of
marriage and not a judge of its morality.
In the early centuries of the Christian congregation, marriage was
likewise chiefly a family affair and there was no requirement of license
from the religious or civil authority to make it valid and honorable. It was
conformity to Gods law that was necessary for the marriage to be viewed
as honorable within the congregation.Later, however, the civil authorities
came to have more prominence in determining the validity of a marriage
while the role of the congregation waned. Christians cannot turn their
back on this reality in desiring to make their marriage honorable among
all, i.e., in the sight of God and men. However, the view of civil
authorities regarding the validity of marriage is relative and sometimes
even contradictory to the standards set by the Bible. For example, in
some lands, polygamy is approved while the Bible says that a man
should only have one wife. Likewise, some countries allow divorce for
the slightest reasons while others do not allow divorce. The Bible, on the
other hand, states that there is only one ground for divorce, namely,
fornication, and those divorcing for this reason become free to marry.
To obtain a balanced view of civil authority (or Caesars authority in
Biblical terms) regarding marriage, it is well to understand the interest of
civil governments in marriage. The government is concerned with the
practical aspects of marriage such as property rights and weakening
genetic effects on children born to blood relatives, and not with the
religious or moral aspects of marriage. Caesars authority is to provide
legal recognition and accompanying protection of marital rights in court
systems, thus a Christian desiring this recognition and rights must
adhere to Caesars requirements. However, God is not bound by
Caesars decisions and the Christian should rightly give conscientious
consideration to Caesars marriage and divorce provisions but will
always give greatest consideration to the Supreme Authority, Jehovah
God (Acts 4:19; Rom. 13:105). . . Thus the Christian appreciates that,
even though Caesars rulings of themselves are not what finally
determine the validity of his marriage in Gods eyes, this does not thereby
exempt him from the Scriptural injunction: Let marriage be honorable
among all. (Heb. 13:4) He is obligated to do conscientiously whatever is
within the power to see that his marriage is accorded such honor by
all. Those who wish to be baptized members of the Christian
congregation but do not have legal recognition of their marital union
should do all that is possible to obtain such recognition, thereby
removing any doubt as to the honorableness of their union in the eyes
of people.
In some cases, however, it is not possible to secure this recognition. For
instance, in countries where divorce is not allowed even on the Scriptural
ground of fornication, either because of the dominance of one religion or
other reasons, a man might have left his unfaithful wife and lives with
another woman with whom he has a family. He may later learn the truth
of Gods Word and desire to be baptized as a disciple of Gods Son, but
he cannot obtain divorce and remarry as the national laws do not allow
these. He might go to a land which permits divorce and remarry under
the laws of that land and add honor to his union, but upon returning to
his homeland, the law therein might not recognize the union. If this
option is not available to that man, he should obtain a legal separation
from his estranged mate or resort to other legal remedies, then make a
written statement to the local congregation pledging faithfulness to his
present mate and declaring his agreement to obtain a legal marriage
certificate if the estranged legal wife should die or if other circumstances
should make possible the obtaining of such registration. If his present
mate likewise seeks baptism, she would also make such a signed
statement. (p. 182) In some cases, a person might have initiated the
process of divorce where the law allows it, but it may take a long period
to finally obtain it. If upon learning Bible truth, the person wants to be
baptized, his baptism should not be delayed by the pending divorce
proceedings that would make his present union honorable for Bible
examples indicate that unnecessary delay in taking the step of baptism
is not advisable (Acts 2:37-41; 8:34-38; 16:30-34; 22:16). Such person
should then provide the congregation with a statement pledging
faithfulness, thereby establishing his determination to maintain his
current union in honor while he exerts effort to obtain legal recognition
of the union. Similarly, in the case of an already baptized Christian
whose spouse proves unfaithful and whose national laws do not
recognize the God-given right to divorce an adulterous mate and
remarry, he should submit clear evidence to the elders of the
congregation of the mates infidelity. If in the future he decides to take
another mate, he can do this in an honorable way by signing
declarations pledging faithfulness where they also promise to seek legal
recognition of their union where it is feasible. This declaration will be
viewed by the congregation as a putting of oneself on record before God
and man that the signer will be just as faithful to his or her existing marital
relationship as he or she would be if the union were one validated by
civil authorities. Such declaration is viewed as no less binding than one
made before a marriage officer representing a Caesar government of
the world. . . It could contain a statement such as the following:
I, __________, do here declare that I have accepted __________ as my
mate in marital relationship; that I have done all within my ability to obtain
legal recognition of this relationship by the proper public authorities and
that it is because of having been unable to do so that I therefore make
this declaration pledging faithfulness in this marital relationship. I
recognize this relationship as a binding tie before Jehovah God and
before all persons, to be held to and honored in full accord with the
principles of Gods Word. I will continue to seek the means to obtain legal
recognition of this relationship by the civil authorities and if at any future
time a change in circumstances makes this possible I promise to legalize
this union.
The declaration is signed by the declarant and by two others as
witnesses and the date of declaration is indicated therein. A copy of the
declaration is kept by the persons involved, by the congregation to which
they belong, and by the branch office of the Watch Tower Society in that
area. It is also beneficial to announce to the congregation that a
declaration was made for their awareness that conscientious steps are
being undertaken to uphold the honorableness of the marriage
relationship. It must be realized, however, that if the declarant is unable
to obtain recognition from the civil authorities, even if he makes that
declaration, whatever consequences result to him as far as the world
outside is concerned are his sole responsibility and must be faced by
him. (p. 184) For instance, should there be inheritance or property
issues arising from an earlier marriage, he cannot seek legal protection
with regard to his new, unrecognized union.
[17] Rollo, pp. 163-183; TSN, Minister Gregorio Salazar, May 29, 2002,
pp. 12-32.
[18] Rollo, pp. 111, 217-222; TSN, Minister Salvador Reyes, pp. 3-8;
Exhibit 6.
[19] Rollo, pp. 235-238; Memorandum for Complainant, pp. 1-4.
[20] Rollo, pp. 239-240; Respondents Memorandum, pp. 1-2; Rollo, pp.
109-110, Maintaining Marriage Before God and Men, pp. 184-185.
[21] Rollo, p, 240; Respondents Memorandum, p. 2.
[22] Report and Recommendation of Executive Judge Bonifacio Sanz
Maceda, p. 3.
[23] Id. at 4.
[24] Memorandum by Deputy Court Administrator Christopher Lock
dated August 28, 2002, p. 6.
[25] A.M. No. P-96-1231, February 12, 1997.
[26] Memorandum by Deputy Court Administrator Christopher Lock
dated August 28, 2002, p. 7.
[27] Noonan, J., Jr. and Gaffney, Jr., Religious Freedom (2001), p. xvii.
[28] Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing
Wieman, Henry Nelson, and Horton, Walter M., The Growth of Religion
(1938), p. 22.
[29] Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing
Wieman, Henry Nelson, and Horton, Walter M., The Growth of Religion
(1938), p. 29.
[30] Pfeffer, L., supra, p. 3, citing Hopkins, E. Washburn, Origin and
Evolution of Religion (1923), pp. 68, 206.
[31] Pfeffer, L., supra, p. 4, citing Cambridge Ancient History (1928), pp.
512-528.
[32] Pfeffer, L., supra, p. 4, citing Clemen, C., Religions of the World
(1931), p. 47.
[33] Pfeffer, L., supra, p. 4.
[34] Pfeffer, L., supra, p. 5, citing Against Apion, Book II, paragraph 17,
in Complete Works of Josephus, p. 500.
[35] Pfeffer, L., supra, p. 5, citing Clemen, p. 46-47.
[36] It may also be said that Moses actually used the concept of a single
all-powerful God as a means of unifying the Hebrews and establishing
them as a nation, rather than vice versa. What is important to note,
however, is that the monotheism which served as foundation of
Christianity of western civilization with its consequences in church-state
relations was established by Moses of the Bible, not the Moses of
history. Pfeffer, L., supra, p. 5.
[37] Pfeffer, L., supra, pp. 5-6, citing Northcott, C., Religious Liberty
(1949), p. 24.
[38] Pfeffer, L., supra, p. 7, citing 1 Kings 2:35.
[39] Pfeffer, L., supra, p. 7.
[40] Pfeffer, L., supra, p. 10, citing Kellett, E.E., A Short History of
Religions (1934), p. 108.
[41] Pfeffer, L., supra, p. 12, citing History of Christianity, p. 168.
[42] Pfeffer, L., supra, p. 13.
[43] Pfeffer, L., supra, p. 13, citing Walker, W., A History of the Christian
Church (1940), p. 108.
[44] Pfeffer, L., supra, p. 13, citing History of Christianity, p. 481.
[45] Pfeffer, L., supra, p. 16, citing Encyclopedia Britannica, Charles the
Great, 14th ed., V, p. 258.
[46] Pfeffer, L., supra, p. 22.
[47] Pfeffer, L., supra, p. 23.
[48] Greene, E., Religion and the State (1941), p. 8.
[49] Pfeffer, L., supra, p. 23, citing Wace, Henry, and Bucheim, C.A.,
Luthers Primary Works (1885), pp. 194-185.
[50] Pfeffer, L., supra, p. 23, citing Acton, History of Freedom in
Chrisitianity, in Essays on Freedom and Power (1949), p. 103.
[51] Pfeffer, L., supra, pp. 24-25.
[52] Pfeffer, L., supra, p. 26, citing Stokes, I, p. 100.
[53] Greene, E., supra, p. 9.
[54] Pfeffer, L., supra, p. 26, citing Stokes, I, p. 113.
[55] Pfeffer, L., supra, p. 26.
[56] Pfeffer, L., supra, p. 27, citing Garbett, C. (Archbishop of York),
Church and State in England (1950), p. 93.
[57] Pfeffer, L., supra, p. 27, citing Noss, J.B., Mans Religions (1949),
pp. 674-675 and Garbett, C., pp. 61-62.
[58] Greene, E., supra, p. 10, citing Tanner, Tudor Constitutional
Documents, 130-135.
[59] Pfeffer, L., supra, p. 28, citing Encyclopedia of Social Sciences, XIII,
p. 243.
[60] Pfeffer, L., supra, p. 28, citing Stokes, I, p. 132.
[61] Everson v.Board of Education of the Township of Ewing, et al., 330
U.S. 1 (1947), pp. 8-9.
[62] Pfeffer, L., supra, p. 30, citing Religious News Service, October 31,
1950.
[63] Pfeffer, L., supra, p. 30.
[64] Beth, L., American Theory of Church and State (1958), p. 3.
[65] Everson v. Board of Education, 330 US 1(1946), pp. 8-10.
[66] Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p.
79.
[67] Pfeffer, L., supra, pp. 92-93.
[68] Pfeffer, L., supra, p. 96.
[69] Pfeffer, L., supra, p. 95
[70] Another estimate of church membership in 1775 is that in none of
the colonies was membership in excess of 35 percent of the population.
(Beth, L., American Theory of Church and State [1958], p. 73.)
[71] Grossman, J.B. and Wells, R.S., Constitutional Law & Judicial
Policy Making, Second Edition (1980), p. 1276.
[72] Pfeffer, L., supra, pp. 96.
[73] Pfeffer, L., supra, p. 93, citing Mecklin, J. M., The Story of American
Dissent (1934), p. 202.
[74] Pfeffer, L., supra, p. 93.
[75] Greene, E., supra, pp. 65-66 and Pfeffer, L., supra, p. 103, citing
Cobb, S.H., The Rise of Religious Liberty in America (1902), p. 485.
[76] Pfeffer, L., supra, p. 85.
[77] Blau, J., Cornerstones of Religious Freedom in America (1950),
p. 36.
[78] Pfeffer, L., supra, p. 87.
[79] Pfeffer, L., supra, p. 86.
[80] Pfeffer, L., supra, pp. 88-89.
[81] Pfeffer, L., supra, p. 101.
[82] Pfeffer, L., supra, p. 99.
[83] Pfeffer, L., supra, p. 97. See also Locke, J., Second Treatise of
Government (edited by C.B: Macpherson), pp. 8-10.
[84] Pfeffer, L., supra, p. 102, citing Humphrey, E.F., Nationalism and
Religion in America, 1774-1789 (1924), pp. 368-369.
[85] Pfeffer, L., supra, p. 103.
[86] Drakeman, D., Church-State Constitutional Issues (1991), p. 55.
[87] Pfeffer, L., supra, p. 104, citing Beard, C. and Mary R., The Rise of
American Civilization, I (1947), p. 449.
[88] Drakeman, D., supra, p. 55.
[89] Pfeffer, L., supra, p. 104, citing Laski, H.J., The Ameican
Democracy (1948), p. 267.
[90] Pfeffer, L., supra, p. 105, citing Henry, M., The Part Taken by
Virginia in Establishing Religious Liberty as a Foundation of the
American Government, Papers of the American Historical Association,
II, p. 26.
[91] Beth, L., American Theory of Church and State (1958), pp. 61-62.
[92] Pfeffer, L., supra, p. 107, citing Butts, R. Freeman, The American
Tradition in Religion and Education (1950), pp. 46-47.
[93] Pfeffer, L., supra, p. 108, citing Humphrey, E. F., Nationalism and
Religion in America, 1774-1789 (1924), p. 379.
[94] Pfeffer, L., supra, p. 109, citing Butts, supra, pp. 53-56.
[95] Drakeman, D., supra, p. 3; Pfeffer, L., supra, p. 109, citing
Eckenrode, N.J., The Separation of Church and State in Virginia (1910),
p. 86.
[96] Beth, L., supra, p. 63.
[97] Id. at 81-82.
[98] Id. at 74-75.
[99] Beth, L., supra, p. 63.
[100] Id at 63-65.
[101] Smith, S., The Rise and Fall of Religious Freedom in Constitutional
Discourse, University of Pennsylvania Law Review, vol. 140(1),
November 1991, p. 149, 160.
[102] Id. at 63-65.
[103] Smith, S., The Rise and Fall of Religious Freedom in Constitutional
Discourse, University of Pennsylvania Law Review, vol. 140(1),
November 1991, p. 149, 160.
[104] Beth, L., supra, pp. 63-65.
[105] Id. at 69.
[106] Drakeman, D., supra, p. 59.
[107] Reynolds v. United States, 98 U.S. 145 (1878), pp. 163-164;
Pfeffer, L., supra, p. 92, 125, citing Kohler, M.J., The Fathers of the
Republic and Constitutional Establishment of Religious Liberty (1930),
pp. 692-693.
[108] Beth, L., supra, p. 71.
[109] Berman, H., Religious Freedom and the Challenge of the Modern
State, Emory Law Journal, vol. 39, Winter 1990-Fall 1990, pp. 151-152.
[110] Monsma, S., The Neutrality Principle and a Pluralist Concept of
Accommodation in Weber, P., Equal Separation (1990), p. 74.
[111] Berman, H., supra, pp. 151-152.
[112] McCoy, T., A Coherent Methodology for First Amendment Speech
and Religion Clause Cases, Vanderbilt Law Review, vol. 48(5), October
1995, p. 1335, 1340.
[113] Weber, P., Neutrality and first Amendment Interpretation in Equal
Separation (1990), pp. 5-7. See also Kauper, P., Religion and the
Constitution (1964), p. 99.
[114] Monsma, S., supra, p. 73.
[115] See Carter, S., The Resurrection of Religious Freedom, Harvard
Law Review (1993), vol. 107(1), p. 118, 128-129.
[116] Emanuel, S., Constitutional Law (1992), p. 633.
[117] Carter, S., supra, p. 118, 140.
[118] Sullivan, K., Religion and Liberal Democracy, The University of
Chicago Law Review (1992), vol. 59(1), p. 195, 214-215.
[119] Kauper, P., Religion and the Constitution (1964), pp, 24-25.
[120] 133 U.S. 333 (1890).
[121] 133 U.S. 333 (1890), p. 342.
[122] 322 U.S. 78 (1944).
[123] United States v. Ballard, 322 U.S. 78 (1944), p. 86.
[124] Stephens, Jr., O.H. and Scheb, II J.M., American Constitutional
Law, Second Edition (1999), pp. 522-523.
[125] 367 U.S. 488 (1961).
[126] 380 U.S. 163 (1965).
[127] Stephens, Jr., supra, p. 645.
[128] Id. at 524.
[129] Emanuel, S., supra, p. 645, citing Frazee v. Illinois Department of
Employment Security, 489 U.S. 829 (1989).
[130] McCoy, T., A Coherent Methodology for First Amendment Speech
and Religion Clause Cases, Vanderbilt Law Review, vol. 48(5), October
1995, p. 1335, 1336-1337.
[131] Kelley, D. Strict Neutrality and the Free Exercise of Religion in
Weber, P., Equal Separation (1990), p. 20.
[132] Kauper, P., supra, p, 13.
[133] Neuhaus, R., A New Order of Religious Freedom, The George
Washington Law Review (1992), vol. 60 (2), p. 620, 626-627.
[134] McConnell, M., Religious Freedom at a Crossroads, The
University of Chicago Law Review (1992), vol. 59(1), p. 115, 168.
[135] McCoy, T., supra, p. 1335, 1336-1337.
[136] Neuhaus, R., A New Order of Religious Freedom, The George [164] 319 U.S. 624 (1943).
Washington Law Review (1992), vol. 60 (2), p. 620, 626-627.
[165] Id. at 634.
[137] Monsma, S., supra, p. 88, citing Neuhaus, R., Contending for the
[166] Id. at 639.
Future: Overcoming the Pfefferian Inversion, in The First Amendment
Religion Liberty Clauses and American Public Life, p. 183. [167] McCoy, T., supra, p. 1335, 1345-46.

[138] Carter, S., supra, p. 118, 134-135. [168] See Bloostein, M., The Core-Periphery Dichotomy in First
Amendment Free Exercise Clause Doctrine: Goldman v. Weinberger,
[139] Lupu, I., The Religion Clauses and Justice Brennan in Full,
Bowen v. Roy, and OLone v. Estate of Shabbaz,z Cornell Law Review,
California Law Review (1999), vol. 87(5), p. 1105, 1114.
vol. 72 (4), p. 827, 828.
[140] Everson v. Board of Education, 330 US 1 (1946), p. 15.
[169] 366 U.S. 599 (1961).
[141] Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
[170] Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.
[142] See McCoy, T., supra, p. 1335, 1336.
[171] 374 U.S. 398 (1963).
[143] 98 U.S. 145 (1878); Buzzard, L., Ericsson, S., The Battle for
[172] Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.
Religious Liberty (1980), p. 49; Drakeman, Church-State Constitutional
Issues (1991), p. 2. [173] Sherbert v. Verner, 374 U.S. 398 (1963), p. 403.

[144] Reynolds v. United States, 98 U.S. 164 (1878), p. 163. [174] Id. at 406.

[145] Id. at 163. [175] Lupu, I., supra, p. 1105, 1110.

[146] 98 U.S. 145, 166. [176] McCoy, T., supra, p. 1335, 1346-1347.

[147] McCoy, T., supra, p. 1335, 1344-45. [177] 450 U.S. 707 (1981).

[148] Nowak, J., Rotunda, R., and Young, J., Constitutional Law, 3rd ed. [178] 480 U.S. 136 (1987).
(1986), p. 1069.
[179] 455 U.S. 252 (1982).
[149] 136 U.S. 1 (1890).
[180] United States v. Lee, 455 U.S. 252 (1982), p. 260.
[150] Nowak, J., Rotunda, R., and Young, J., supra, pp. 1069-1072.
[181] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 526.
[151] Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p.
79. [182] 406 U.S. 205 (1972).

[152] 367 U.S. 488 (1961). [183] Id. at 214-215, 219-220.

[153] 322 U.S. 78, 86 (1944). [184] 494 U.S. 872 (1990).

[154] 310 U.S. 296 (1940). [185] McConnell, M., supra, p. 685, 726.

[155] Id. at 310. [186] McCoy, T., supra, p. 1335, 1350-1351.

[156] Id at 303-304. [187] Ducat, C., Constitutional Interpretation, vol. II (2000), pp. 1180 and
1191. See also Sullivan, K., Religion and Liberal Democracy, The
[157] 319 U.S. 157 (1943). University of Chicago Law Review (1992), vol. 59(1), p. 195, 216.

[158] 340 U.S. 268 (1951). [188] McConnell, M., Religious Freedom at a Crossroads, The
University of Chicago Law Review (1992), vol. 59(1), p. 115, 139.
[159] 452 U.S. 640 (1981).
[189] Sullivan, K., Religion and Liberal Democracy, The University of
[160] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 524.
Chicago Law Review (1992), vol. 59(1), p. 195, 216.
[161] 133 U.S. 333, 345.
[190] Carter, S., supra, p. 118.
[162] McCoy, T., supra, p. 1335, 1344-45.

[163] 310 U.S. 586 (1940).

[191] Rosenzweig, S., Restoring Religious Freedom to the Workplace: [222] 397 U.S. 664 (1970).
Title VII, RFRA and Religious Accommodation, University of
[223] Id. at 673.
Pennsylvania Law Review (1996), vol. 144(6), p. 2513, 2516.
[224] Id.
[192] 138 L.Ed. 2d 624 (1994).
[225] Id. at 676.
[193] 508 U.S. 520 (1993).

[226] McConnell, M., Religious Freedom at a Crossroads, The

[194] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 529.
University of Chicago Law Review (1992), vol. 59(1), p. 115, 119-120.
[195] 330 U.S. 1 (1946).
[227] Drakeman, D., supra, p. 51.
[196] Drakeman, D., supra, p. 4-6.
[228] Id. at 53.
[197] Buzzard, L., Ericsson, S., The Battle for Religious Liberty (1980),
[229] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 541.
p. 53.
[230] Drakeman, supra, p. 52, citing Cord, R., Separation of Church and
[198] 98 U.S. 164 (1878).
State: Historical Fact and Current Fiction. p. 50.
[199] Reynolds v. United States, 98 U.S. 164 (1878), p. 164.
[231] Drakeman, supra, pp. 52 and 82, citing Gales, J. and Seaton, W.,
[200] Id. at 164. eds., The Debates and Proceedings in the Congress of the United
States, Compiled from Authentic Materials (Annala), vol. 1, pp. 949-950.
[201] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 532.
[232] Beth, L., supra, p. 74.
[202] Everson v. Board of Education, 330 U.S. 1 (1946), pp. 15-16.
[233] Drakeman, supra, pp. 57, 82.
[203] Id. at 18.
[234] Buzzard, L., Ericsson, S., supra, p. 46.
[204] 403 U.S. 602 (1971).
[235] Beth, L., supra, p. 72.
[205] Lemon v. Kurtzman, 403 U.S. 602 (1971), pp. 612-613.
[236] Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
[206] Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
[237] Beth, L., supra, p. 71.
[207] 370 U.S. 421 (1962).
[238] The Constitution and Religion, p. 1541.
[208] 374 U.S. 203 (1963).
[239] Id. at 1539.
[209] Id.
[240] Weber, P., Neutrality and First Amendment Interpretation in Equal
[210] Id. at 222.
Separation (1990), p. 3.
[211] Witt, E. (ed.), supra, p. 93.
[241] McConnell, M., Religious Freedom at a Crossroads, The

[212] 472 U.S. 38 (1985). University of Chicago Law Review (1992), vol. 59(1), p. 115, 120.

[213] 333 U.S. 203 (1948). [242] Everson v. Board of Education, 330 U.S. 1 (1947), p. 18.

[214] 343 U.S. 306 (1952). [243] The Constitution and Religion, p. 1541, citing Kurland, Of Church
and State and the Supreme Court, 29 U.Chi.L.Rev. 1, 5 (1961).
[215] Zorach v. McCollum, 343 U.S. 306 (1952), p. 315.
[244] Weber, P., Equal Separation (1990), p. 8, citing Kurland, P.,
[216] 366 U.S. 420 (1961). Religion and the Law (1962), p. 18.

[217] Id. at 451-452. [245] Smith, S., The Rise and Fall of Religious Freedom in Constitutional
Discourse, University of Pennsylvania Law Review, vol. 140(1),
[218] 463 U.S. 783 (1983).
November 1991, p. 149, 186.
[219] Marsh v. Chambers, 463 US 783 (1983).
[246] Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
[220] Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 540-541.
[247] Buzzard, L., Ericsson, S., supra, p. 60.
[221] 465 U.S. 668 (1984).
[248] Kelley, D., supra, p. 1189.
[249] Monsma, S., supra, p. 74. [276] Id. at 174.

[250] Id. at 75.
[251] Smith, S., supra, p. 149, 159.
[252] Drakeman, supra, p. 54.
[253] Grossman, J.B. and Wells, R.S., supra, p. 1276.
[254] Smith, S., supra, p. 149, 159.
[255] Id. at 149, 159-160.
[256] Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
[257] Id. at 1276-1277, citing Kirby, Jr., J., Everson to Meek and
Roemer: From Separation to Dtente in Church-State Relations, 55 North
Carolina Law Review (April 1977), 563-75.
[258] Buzzard, L., Ericsson, S., supra, p. 51.
[259] Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
[260] Buzzard, L., Ericsson, S., supra, p. 61.
[261] Zorach v. Clauson, 343 U.S. 306 (1951), pp. 312-314.
[277] Neuhaus, R., A New Order of Religious Freedom, The George
Washington Law Review (1992), vol. 60 (2), p. 620, 631.
[278] Buzzard, L., Ericsson, S., supra, pp. 61-62.
[279] Emanuel, S., supra, pp. 633-634, citing Tribe, L., American
Constitutional Law, 2nd ed. (1988), p. 1251. See also Nowak, J.,
Rotunda, R., and Young, J., Constitutional Law, 3rd ed. (1986), pp.
1067-1069.
[280] Id. at 633.
[281] Walz v. Tax Commission, 397 U.S. 664 (1969), p. 673.
[282] McConnell, M., Accommodation of Religion: An Update and a
Response to the Critics, The George Washington Law Review (1992),
vol. 60 (3), p. 685, 715.
[283] Buzzard, L., Ericsson, S., supra, pp. 61-63.
[284] McConnell, The Origins and Historical Understanding of Free
Exercise of Religion, Harvard Law Review , vol. 103 (1990), p. 1410,
1416-7.

[285] Buzzard, L., Ericsson, S., supra, p. 70.

[262] Kelley, D., supra, p. 34.

[286] McConnell, M., Accommodation of Religion: An Update and a

[263] Id. at 34, citing Milton Yinger, J., The Scientific Study of Religion
Response to the Critics, The George Washington Law Review (1992),
(1970), p. 21.
vol. 60 (3), p. 685, 735.
[264] Id., citing Talcott Parsons, Introduction, Max Weber, Sociology of
[287] Buzzard, L., Ericsson, S., supra, pp. 68-71.
Religion (1963), pp. xxvii, xxviii.

[288] Lupu, I., supra, p. 743, 775.

[265] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 533.

[289] Id. at 775.

[266] Berman, H., supra, p. 162.

[290] Nowak, J., Rotunda, R., and Young, J., supra, p. 1069.
[267] The Constitution and Religion, p. 1569.

[291] Buzzard, L., Ericsson, S., supra, p. 68.

[268] McCoy, T., supra, p. 1335, 1338-1339.

[292] Lupu, I., supra, p. 743, 776.

[269] McConnell, M., Accommodation of Religion: An Update and a
Response to the Critics, The George Washington Law Review (1992), [293] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 544.
vol. 60 (3), p. 685, 688.
[294] Martinez, H., The High and Impregnable Wall of Separation
[270] Id. Between Church and State, Philippine Law Journal (1962), vol. 37(5), p.
748, 766.
[271] Id. at 689.

[295] Article II.

[272] Id. at 690-694, 715.

[296] Bernas, J., The 1987 Constitution of the Republic of the

[273] Id. at 686.
Philippines: A Commentary (1995), p. 284.
[274] Id. at 687, citing County of Allegheny v. ACLU, 492 U.S. 573, 659,
[297] Coquia, J., Church and State Law and Relations, p. 52, citing
663, 679 (1989) (Kennedy, J., concurring); Lynch v. Donnelly, 465 U.S.
Article X of the Treaty of Paris. The territories referred to were Cuba,
668, 673 (1984); Marsh v. Chambers, 463 U.S. 783, 792 (1983).
Puerto Rico, Guam, the West Indies and the Philippine Islands.
[275] McConnell, M., Religious Freedom at a Crossroads, The
University of Chicago Law Review (1992), vol. 59(1), p. 115, 139, 184.
[298] Coquia, J., supra, p. 52, citing Article 5, Constitucion Politica de la [324] Id. at 24-25.
Republica Filipina promulgada el dia 22 de Enero de 1899 (Edicion
[325] 110 Phil 150.
oficial, Islas Filipinas, Barazoain, Bul., 1899), p. 9.
[326] 59 SCRA 54 (1974). See also Basa v. Federacion Obrera, 61
[299] Bernas, J., A Historical and Juridical Study of the Philippine Bill of
SCRA 93 (1974); Gonzalez v. Central Azucarera de Tarlac Labor Union,
Rights (1971), pp. 13, 148.
139 SCRA (1985).
[300] Coquia, J., supra, p. 77, citing Acts of the Philippine Commission,
[327] Victoriano v. Elizalde Rope Workers Union, Inc., et al., 59 SCRA
With Philippine Organic Laws 10.
54 (1974), p. 72.
[301] 25 Phil. 273 (1913).
[328] Id. at 73.
[302] Id. at 276.
[329] 64 Phil 201.
[303] Coquia, J., supra, p. 53, citing Public Law No. 127, sec. 2(a),
[330] 392 US 236.
73rd Congress (1934).

[331] Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p.

[304] Laurel, S., Proceedings of the Philippine Constitutional
74.
Convention, vol. III (1966), pp. 654-655.
[332] Id. at 75.
[305] Aruego, J., The Framing of the Philippine Constitution, vol. I
(1949), p. 164. [333] Id.

[306] Id. at 150. [334] 61 SCRA 93 (1974).

[307] Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. [335] 80 SCRA 350 (1977).
182.
[336] 139 SCRA 30 (1985).
[308] Baddiri, E., Islam and the 1987 Constitution: An Issue on the
Practice of Religion, 45 Ateneo Law Journal 161 (2001), p. 208, citing [337] German, et al. v. Barangan, et al., 135 SCRA 514 (1985), p. 525,

Syed Muhammad Al-Naquib Al-Attas, Islam and Secularism 46 (1978). citing Cantwell v. Connecticut, 310 U.S. 296.

[309] Id. at 208, citing Lewis, B., Islam and the West 3 (1993).
[310] 64 Phil 201 (1937).
[311] 101 Phil. 386 (1957).
[312] Bernas, Constitutional Rights and Social Demands, Part II, p. 268.
[338] German, et al. v. Barangan, et al., 135 SCRA 514 (1985), pp. 524-
525.
[339] German, et al. v. Barangan, et al., 135 SCRA 514 (1985).
[340] German, et al. v. Barangan, et al., 135 SCRA 514 (1985),
Dissenting Opinion of Justice Teehankee.

[313] 106 Phil. 2 (1959). [341] 219 SCRA 256 (1993), March 1, 1993.

[314] Id. at 9-10. [342] Id. at 270-271.

[315] Bernas, J., The Constitution of the Republic of the Philippines: A [343] Id. at 271-272.
Commentary (1987), p. 225, Footnote 38.
[344] Id. at 272.
[316] 319 U.S. 103.
[345] Id. at 272-273.
[317] 234 SCRA 630 (1994).
[346] Id. at 270.
[318] 493 U.S. 378 (1990).
[347] Id. at 269.
[319] 106 Phil. 2 (1959).
[348] 259 SCRA 529 (1996).
[320] 106 Phil. 2 (1959), p. 10.
[349] Id. at 543; citing Cruz, I., Constitutional Law (1991), p. 178.
[321] Id. at 11-12.
[350] Id., citing Cruz, I., Constitutional Law (1991), p. 544.
[322] Id. at 14.

[323] Id. at 25.

[351] Id., citing Cruz, I., Constitutional Law (1991), p. 551, citing Hentoff,
Speech, Harm and Self-Government: Understanding the Ambit of the
Clear and Present Danger Test, 91 Col. Law Rev. No. 6, p. 1453 (1991).
[352] Id.
[353] Bernas, Constitutional Rights and Social Demands, Part II, p. 314.
[354] This argument was a central theme in John Lockes A Letter
Concerning Toleration, which strongly influenced the thinking of many
Americans, including Jefferson and Madison. (Smith, S., The Rise and
Fall of Religious Freedom in Constitutional Discourse, University of
Pennsylvania Law Review, vol. 140[1], November 1991, p. 149, 155).
[355] Bernas, J., The Constitution of the Republic of the Philippines: A
Commentary (1987), p. 233.
[356] Id. at 234.
[357] 64 Phil. 201 (1937); Bernas, J., The Constitution of the Republic
of the Philippines: A Commentary (1987), p. 234.
[358] An Act Appropriating the Sum of Sixty Thousand Pesos and
Making the Same Available out of any Funds in the Insular Treasury not
otherwise Appropriated for the Cost of Plates and Printing of Postage
Stamps with New Designs, and for other Purposes.
[359] Aglipay v. Ruiz, 64 Phil. 201 (1937), pp. 205-206.
[360] Id. at. 209-210, citing Bradfield v. Roberts, 175 U.S. 291 (1899).
[361] 104 SCRA 510 (1981).
[362] 86 SCRA 413 (1978).
[363] 367 U.S. 488 (1961).
[364] Pamil v. Teleron, 86 SCRA 413 (1978), pp. 428-429.
[365] 96 Phil. 417 (1955).
[366] 45 Am. Jur. 77.
[367] 96 Phil 417 (1955), p. 426.
[368] Id. at 441, citing American authorities.
[369] 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
[370] Nowak, J., Rotunda, R., and Young, J., supra, p. 1031.
[371] Sherbert v. Verner, 374 U.S. 398 (1963), p. 409.
[372] Walz v. Tax Commission, supra, p. 668.
[373] Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p.
75.
[374] Drakeman, D., supra, p. 127.
[375] Buzzard, L. and Ericsson, S., supra, p. 75.
[376] Bernas, J., The 1987 Constitution of the Republic of the
Philippines: A Commentary (1995), pp. 288-289.
[377] Ang-Angco v. Castillo, 9 SCRA 619 (1963).
[378] Martin, Statutory Construction (1979), p. 210.
[379] Aruego, J., supra, pp. 331-337.
[380] Bernas, J., A Historical and Juridical Study of the Philippine Bill of
Rights (1971), pp. 154-155, citing Francisco (ed.), Journal of the
Constitutional Convention of the Philippines, vol. 4, pp. 1550, 1552.
[381] Aruego, J., supra, p. 337.
[382] Bernas, J., A Historical and Juridical Study of the Philippine Bill of
Rights (1971), p. 153.
[383] Id. at 153, citing Francisco (ed.), Journal of the Constitutional
Convention of the Philippines, vol. 4, p. 1539.
[384] Id. at 153-154, citing Francisco (ed.), Journal of the Constitutional
Convention of the Philippines, vol. 4, pp. 1541-1543.
[385] Aruego, J., supra, pp. 340-345.
[386] Bernas, J., A Historical and Juridical Study of the Philippine Bill of
Rights (1971), pp. 156-157, citing Escareal (ed.), Constitutional
Convention Record, vol. 10 (1967), p. 29.
[387] Aruego, J., The Framing of the Philippine Constitution, vol. 2
(1949), pp. 627-629.
[388] Martin, supra, p. 218.
[389] Aglipay v. Ruiz, supra, p. 206.
[390] Tanada, L. and Fernando, E., Constitution of the Philippines, vol.
1 (1952), pp. 269-270.
[391] Report of the Ad Hoc Sub-Committee on Goals, Principles and
Problems of the Committee on Church and State of the 1971
Constitutional Convention, p. 18.
[392] Bernas, J., Background paper for reconsideration of the religion
provisions of the constitution (1971), pp. 41-43.
[393] Tingson, J., Report of the Committee on Church and State of the
1971 Constitutional Convention Report, p. 5.
[394] Bernas, J., The Intent of the 1986 Constitution Writers (1995), p.
406, citing Records of the Constitutional Commission, vol. II, pp. 193-
194.
[395] Records of the Constitutional Commission, vol. 4, p. 362.
[396] Id. at 358.
[397] Id. at 359.
[398] Id. at 973.
[399] Records of the Constitutional Commission, vol. 1, p. 102.
[400] Bernas, Constitutional Rights and Social Demands, Part II (1991),
p. 268.
[401] Cruz, I., Constitutional Law (1995), p. 167.
[402] Martinez, H., supra, p. 768-772.
[403] McConnell, M., Religious Freedom at a Crossroads, The
University of Chicago Law Review (1992), vol. 59(1), p. 115, 169.
[404] Martinez, H., supra, p. 773.
[405] Neuhaus, R., supra, p. 630.
[406] Smith, S., supra, p. 153, citing Jefferson, T., Freedom of Religion
at the University of Virginia, in The Complete Jefferson (Saul K. Padover
ed., 1969), p. 957, 958.
[407] Neuhaus, R., supra, p. 630.
[408] Carter, S., supra, pp. 140-142.
[409] Cruz, I., Constitutional Law (1995), p. 178.
[410] Liguid v. Camano, A.M., No. RTJ-99-1509, August 8, 2002;
Bucatcat v. Bucatcat, 380 Phil. 555 (2000); Navarro v. Navarro, 339
SCRA 709 (2000); Ecube-Badel v. Badel, 339 Phil. 510 (1997);
Nalupta v. Tapec, 220 SCRA 505 (1993); Aquino v. Navarro, 220 Phil.
49 (1985).
[411] 68 SCRA 354 (1975).
[412] 305 SCRA 469 (1999).
[413] Rachels, J., The Elements of Moral Philosophy (1986), p. 1.
[414] Devlin, P., The Enforcement of Morals (1965), p. 10.
[415] Letter of Associate Justice Reynato S. Puno, 210 SCRA 589
(1992).
[416] Devlin, P., supra, 13.
[417] Neuhaus, R., supra, pp. 621, 624-625.
[418] McConnell, M., Religious Freedom at a Crossroads, The
University of Chicago Law Review (1992), vol. 59(1), p. 115, 139.
[419] Neuhaus, R., supra, pp. 624-625.
[420] Greenwalt, K., Conflicts of Law and Morality, p. 247, citing Holmes,
The Path of the Law, 10 Harv. L. Rev., 457, 459 (1897).
[421] Id. at 247.
[422] Greenwalt, K., supra, p. 272.
[423] Buzzard, L. and Ericsson, S., supra, p. 31.
[424] Devlin, P., supra, pp. 19-20.
[425] Id. at 247.
[426] 210 SCRA 471 (1992).
[427] Magno v. Court of Appeals, et al., 210 SCRA 471 (1992), p. 478,
citing Aquino, The Revised Penal Code, 1987 Edition, Vol. I, pp. 11-12,
citing People v. Roldan Zaballero, CA 54 O.G. 6904. Note also Justice
Pablos view in People v. Piosca and Peremne, 86 Phil. 31.
[428] Devlin, P., supra, pp. 6-7.
[429] Id. at 19.
[430] Article 334 of the Revised Penal Code provides, viz:
Art. 334. Concubinage. Any husband who shall keep a mistress in the
conjugal dwelling, or shall have sexual intercourse, under scandalous
circumstances, with a woman who is not his wife, or shall cohabit with
her in any other place, shall be punished by prision correccional in its
minimum and medium period.
The concubine shall suffer the penalty of destierro.
[431] Article 266-A of the Revised Penal Code.
[432] Rule 110 of the Revised Rules of Criminal Procedure, as amended
provides in relevant part, viz:
The crime of adultery and concubinage shall not be prosecuted except
upon a complaint filed by the offended spouse. The offended party
cannot institute criminal prosecution without including the guilty parties,
if both are alive, nor, in any case, if the offended party has consented to
the offense or pardoned the offenders.
[433] Velayo, et al. v. Shell Co. of the Philippine Islands, et al., 100 Phil.
186 (1956), pp. 202-203, citing Report of the Code Commission on the
Proposed Civil Code of the Philippines, pp. 40-41.
[434] Carter, S., supra, p. 138.
[435] Sullivan, K., supra, pp. 197-198.
[436] Rule 1.01 of the Code of Professional Responsibility provides that,
(a) lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct. (emphasis supplied)
[437] Title Six of the Revised Penal Code is entitled Crimes
against Public Morals and includes therein provisions on gambling and
betting. (emphasis supplied)
[438] The New Civil Code provides, viz:
Article 6. Rights may be waived, unless the waiver is contrary to law,
public order, public policy, morals, or good customs or prejudicial to a
third person with a right recognized by law.
Article 21. Any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.
Article 1306. The contracting parties may establish such stipulations, [444] 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
clauses, terms and conditions as they may deem convenient, provided
[445] Devlin, P., supra, p. 22.
that are not contrary to law, morals, good customs, public order, or
public policy. [446] 329 U.S. 14 (1946).

Article 1409. The following contracts are inexistent and void from the
beginning:
(1) Those whose cause, object or purpose is contrary to law, morals,
good customs, public order or public policy; x x x (emphasis supplied)
[447] Cleveland v. United States, 329 U.S. 14, p. 16.
[448] Reynolds v. United States, supra, p. 164.
[449] Church of Jesus Christ of L.D.S. v. United States, 136 U.S. 1.

[439] Article XIV, Section 3 provides in relevant part, viz: [450] Id.

All educational institutions shall include the study of the Constitution as [451] 226 SCRA 193 (1993).

part of the curricula.

[452] Id. at 199.

They shall inculcate patriotism and nationalism, foster love of humanity,

[453] Annexes A and B of the Report and Recommendation of Executive
respect for human rights, appreciation of the role of national heroes in
Judge Bonifacio Sanz Maceda.
the historical development of the country, teach the rights and duties of
citizenship, strengthen ethical and spiritual values, develop moral [454] Cruz, I., supra, p. 176.
character and personal discipline, encourage critical and creative
thinking, broaden scientific and technological knowledge, and promote
vocational efficiency. (emphasis supplied)

[440] To illustrate the distinction between public or secular morality and

religious morality, we take the example of a judge. If the public morality
of a society deems that the death penalty is necessary to keep society
together and thus crystallizes this morality into law, a judge might find
himself in a conflict between public morality and his religious
morality. He might discern that after weighing all considerations, his
religious beliefs compel him not to impose the death penalty as to do so
would be immoral. If the judge refuses to impose the death penalty
where the crime warrants it, he will be made accountable to the state
which is the authority in the realm of public morality and be held
administratively liable for failing to perform his duty to the state. If he
refuses to act according to the public morality because he finds more
compelling his religious morality where he is answerable to an authority
he deems higher than the state, then his choice is to get out of the public
morality realm where he has the duty to enforce the public morality or
continue to face the sanctions of the state for his failure to perform his
duty. See Griffin, L., The Relevance of Religion to a Lawyers Work:
Legal Ethics, Fordham Law Review (1998), vol. 66(4), p. 1253 for a
discussion of a similar dilemma involving lawyers.

[441] Sullivan, K., supra, p. 196.

[442] Smith, S., supra, pp. 184-185. For a defense of this view, see
William P. Marshall, We Know It When We See It: The Supreme Court
and Establishment, 59 S.Cal. L. Rev. 495 (1986). For an extended
criticism of this position, see Steven D. Smith, Symbols, Perceptions,
and Doctrinal Illusions: Establishment Neutrality and the No
Establishment Test, 86 Mich. L. Rev. 266 (1987).
EN BANC
[443] Ostrom, V., Religion and the Constitution of the American Political
System, Emory Law Journal, vol. 39(1), p. 165, citing 1 A. Tocqueville, [G.R. No. 117472. February 7, 1997]

Democracy in America (1945), p. 305.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEO
ECHEGARAY y PILO, accused-appellant.
RESOLUTION
PER CURIAM:
On June 25, 1996, we rendered our decision in the instant case affirming
the conviction of the accused-appellant for the crime of raping his ten-
year old daughter. The crime having been committed sometime in April,
1994, during which time Republic Act (R.A.) No. 7659, commonly known
as the Death Penalty Law, was already in effect, accused-appellant was
inevitably meted out the supreme penalty of death.
On July 9, 1996, the accused-appellant timely filed a Motion for
Reconsideration which focused on the sinister motive of the victim's
grandmother that precipitated the filing of the alleged false accusation
of rape against the accused. We find no substantial arguments on the
said motion that can disturb our verdict.
On August 6, 1996, accused-appellant discharged the defense counsel,
Atty. Julian R. Vitug, and retained the services of the Anti-Death Penalty
Task Force of the Free Legal Assistance Group of the Philippines
(FLAG).
On August 23, 1996, we received the Supplemental Motion for
Reconsideration prepared by the FLAG on behalf of accused-
appellant. The motion raises the following grounds for the reversal of
the death sentence:
"[1] Accused-appellant should not have been prosecuted since the
pardon by the offended party and her mother before the filing of the
complaint acted as a bar to his criminal prosecution.
[2] The lack of a definite allegation of the date of the commission of
the offense in the Complaint and throughout trial prevented the accused-
appellant from preparing an adequate defense.
[3] The guilt of the accused was not proved beyond a reasonable
doubt.
[4] The Honorable Court erred in finding that the accused-appellant
was the father or stepfather of the complainant and in affirming the
sentence of death against him on this basis.
[5] The trial court denied the accused-appellant of due process and
manifested bias in the conduct of the trial.
[6] The accused-appellant was denied his constitutional right to
effective assistance of counsel and to due process, due to the
incompetence of counsel.
[7] R.A. [No.] 7659, reimposing the death penalty is
unconstitutional per se:
a. For crimes where no death results from the offense, the death
penalty is a severe and excessive penalty in violation of Article III, Sec.
19 ( I ) of the 1987 Constitution.
b. The death penalty is cruel and unusual punishment in violation
of Article III, Sec. 11 of the 1987 Constitution."
In sum, the Supplemental Motion for Reconsideration raises three (3)
main issues: (1) mixed factual and legal matters relating to the trial
proceedings and findings; (2) alleged incompetence of accused-
appellant's former counsel; and (3) purely legal question of the
constitutionality of R.A. No. 7659.
I.
It is a rudimentary principle of law that matters neither alleged in the
pleadings nor raised during the proceedings below cannot be ventilated
for the first time on appeal before the Supreme Court. Moreover, as we
have stated in our Resolution in Manila Bay Club Corporation v. Court
of Appeals:[1]
"If well-recognized jurisprudence precludes raising an issue only for the
first time on appeal proper, with more reason should such issue be
disallowed or disregarded when initially raised only in a motion for
reconsideration of the decision of the appellate court."
It is to be remembered that during the proceedings of the rape case
against the accused-appellant before the sala of then presiding
Judge xxx, the defense attempted to prove that:
a) the rape case was motivated by greed, hence, a mere concoction
of the alleged victim's maternal grandmother;
b) the accused is not the real father of the complainant;
c) the size of the penis of the accused cannot have possibly
penetrated the alleged victim's private part; and
d) the accused was in xxx during the time of the alleged rape.
In his Brief before us when the rape case was elevated for automatic
review, the accused-appellant reiterated as grounds for exculpation:
a) the ill-motive of the victim's maternal grandmother in prompting
her grandchild to file the rape case;
b) the defense of denial relative to the size of his penis which could
not have caused the healed hymenal lacerations of the victim; and
c) the defense of alibi.
Thus, a second hard look at the issues raised by the new counsel of the
accused-appellant reveals that in their messianic appeal for a reversal
of our judgment of conviction, we are asked to consider for the first time,
by way of a Supplemental Motion for Reconsideration, the following
matters:
a) the affidavit of desistance written by the victim which acted as a
bar to the criminal prosecution for rape against the accused-appellant;
b) the vagueness attributed to the date of the commission of the
offense in the Complaint which deprived the accused-appellant from
adequately defending himself;
c) the failure of this Court to clearly establish the qualifying
circumstance that placed the accused-appellant within the coverage of
the Death Penalty Law;
d) the denial of due process and the manifest bias exhibited by the
trial court during the trial of the rape case.
Apparently, after a careful scrutiny of the foregoing points for
reconsideration, the only legitimate issue that We can tackle relates to
the Affidavit of Desistance which touches on the lack of jurisdiction of
the trial court to have proceeded with the prosecution of the accused-
appellant considering that the issue of jurisdiction over the subject
matter may be raised at any time, even during appeal.[2]
It must be stressed that during the trial proceedings of the rape case
against the accused-appellant, it appeared that despite the admission
made by the victim herself in open court that she had signed an Affidavit
of Desistance, she, nevertheless, "strongly pointed out that she is not
withdrawing the charge against the accused because the latter might do
the same sexual assaults to other women."[3] Thus, this is one occasion
where an affidavit of desistance must be regarded with disfavor
inasmuch as the victim, in her tender age, manifested in court that she
was pursuing the rape charges against the accused-appellant.
We have explained in the case of People v. Gerry Ballabare,[4] that:
"As pointed out in People v. Lim (24 190 SCRA 706 [1990], which is also
cited by the accused-appellant, an affidavit of desistance is merely an
additional ground to buttress the accused's defenses, not the sole
consideration that can result in acquittal. There must be other
circumstances which, when coupled with the retraction or desistance,
create doubts as to the truth of the testimony given by the witnesses at
the trial and accepted by the judge."[5]
In the case at bar, all that the accused-appellant offered as defenses
mainly consisted of denial and alibi which cannot outweigh the positive
identification and convincing testimonies given by the
prosecution. Hence, the affidavit of desistance, which the victim herself
intended to disregard as earlier discussed, must have no bearing on the
criminal prosecution against the accused-appellant, particularly on the
trial court's jurisdiction over the case.
II
The settled rule is that the client is bound by the negligence or mistakes
of his counsel.[6] One of the recognized exceptions to this rule is gross
incompetency in a way that the defendant is highly prejudiced and
prevented, in effect, from having his day in court to defend himself.[7]
In the instant case, we believe that the former counsel of the accused-
appellant to whom the FLAG lawyers now impute incompetency had
amply exercised the required ordinary diligence or that reasonable
decree of care and skill expected of him relative to his client's
defense. As the rape case was being tried on the merits, Atty. Vitug,
from the time he was assigned to handle the case, dutifully attended the
hearings thereof. Moreover, he had seasonably submitted the Accused-
Appellant's Brief and the Motion for Reconsideration of our June 25,
1996 Decision with extensive discussion in support of his line of
defense. There is no indication of gross incompetency that could have
resulted from a failure to present any argument or any witness to defend
his client. Neither has he acted haphazardly in the preparation of his
case against the prosecution evidence. The main reason for his failure
to exculpate his client, the accused-appellant, is the overwhelming
evidence of the prosecution. The alleged errors committed by the
previous counsel as enumerated by the new counsel could not have
overturned the judgment of conviction against the accused-appellant.
III
Although its origins seem lost in obscurity, the imposition of death as
punishment for violation of law or custom, religious or secular, is an
ancient practice. We do know that our forefathers killed to avenge
themselves and their kin and that initially, the criminal law was used to
compensate for a wrong done to a private party or his family, not to
punish in the name of the state.
The dawning of civilization brought with it both the increasing
sensitization throughout the later generations against past barbarity and
the institutionalization of state power under the rule of law. Today every
man or woman is both an individual person with inherent human rights
recognized and protected by the state and a citizen with the duty to serve
the common weal and defend and preserve society.
One of the indispensable powers of the state is the power to secure
society against threatened and actual evil. Pursuant to this, the
legislative arm of government enacts criminal laws that define and
punish illegal acts that may be committed by its own subjects, the
executive agencies enforce these laws, and the judiciary tries and
sentences the criminals in accordance with these laws.
Although penologists, throughout history, have not stopped debating on
the causes of criminal behavior and the purposes of criminal
punishment, our criminal laws have been perceived as relatively stable
and functional since the enforcement of the Revised Penal Code on
January 1, 1932, this notwithstanding occasional opposition to the death
penalty provisions therein. The Revised Penal Code, as it was originally
promulgated, provided for the death penalty in specified crimes under
specific circumstances. As early as 1886, though, capital punishment
had entered our legal system through the old Penal Code, which was a
modified version of the Spanish Penal Code of 1870.
The opposition to the death penalty uniformly took the form of a
constitutional question of whether or not the death penalty is a cruel,
unjust, excessive or unusual punishment in violation of the constitutional
proscription against cruel and unusual punishments. We unchangingly
answered this question in the negative in the cases of Harden v. Director
of Prison,[8] People v. Limaco,[9] People v. Camano,[10] People v.
Puda[11] and People v. Marcos,[12] In Harden, we ruled:
"The penalty complained of is neither cruel, unjust nor excessive. In Ex-
parte Kemmler, 136 U.S., 436, the United States Supreme Court said
that 'punishments are cruel when they involve torture or a lingering
death, but the punishment of death is not cruel, within the meaning of
that word as used in the constitution. It implies there something
inhuman and barbarous, something more than the mere extinguishment
of life.'"[13]
Consequently, we have time and again emphasized that our courts are
not the fora for a protracted debate on the morality or propriety of the
death sentence where the law itself provides therefor in specific and
well-defined criminal acts. Thus we had ruled in the 1951 case
of Limacothat:
"x x x there are quite a number of people who honestly believe that the
supreme penalty is either morally wrong or unwise or
ineffective. However, as long as that penalty remains in the statute
books, and as long as our criminal law provides for its imposition in
certain cases, it is the duty of judicial officers to respect and apply the
law regardless of their private opinions,"[14]
and this we have reiterated in the 1995 case of People v.
Veneracion.[15]
Under the Revised Penal Code, death is the penalty for the crimes of
treason, correspondence with the enemy during times of war, qualified
piracy, parricide, murder, infanticide, kidnapping, rape with homicide or
with the use of deadly weapon or by two or more persons resulting in
insanity, robbery with homicide, and arson resulting in death. The list of
capital offenses lengthened as the legislature responded to the
emergencies of the times. In 1941, Commonwealth Act (C.A.) No. 616
added espionage to the list. In the 1950s, at the height of the Huk
rebellion, the government enacted Republic Act (R.A.) No. 1700,
otherwise known as the Anti-Subversion Law, which carried the death
penalty for leaders of the rebellion. From 1971 to 1972, more capital
offenses were created by more laws, among them, the Anti-Hijacking
Law, the Dangerous Drugs Act, and the Anti-Carnapping Law. During
martial law, Presidential Decree (P.D.) No. 1866 was enacted penalizing
with death, among others, crimes involving homicide committed with an
unlicensed firearm.
In the aftermath of the 1986 revolution that dismantled the Marcos
regime and led to the nullification of the 1973 Constitution, a
Constitutional Commission was convened following appointments
thereto by Corazon Aquino who was catapulted to power by the people.
Tasked with formulating a charter that echoes the new found freedom of
a rejuvenated people, the Constitutional Commissioners grouped
themselves into working committees among which is the Bill of Rights
Committee with Jose B. Laurel, Jr. As Chairman and Father Joaquin G.
Bernas, S.J., as Vice-Chairman.
On July 17, 1986, Father Bernas presented the committee draft of the
proposed bill of rights to the rest of the commission. What is now
Article III, Section 19 (1) of the 1987 Constitution was first denominated
as Section 22 and was originally worded as follows:
"Excessive fines shall not be imposed, nor cruel, degrading or
inhuman punishment, or the death penalty inflicted. Death penalty
already imposed shall be commuted to reclusion perpetua."
Father Bernas explained that the foregoing provision was the result of a
consensus among the members of the Bill of Rights Committee that the
death penalty should be abolished. Having agreed to abolish the death
penalty, they proceeded to deliberate on how the abolition was to be
done -- whether the abolition should be done by the Constitution or by
the legislature -- and the majority voted for a constitutional abolition of
the death penalty. Father Bernas explained:
"x x x [T]here was a division in the Committee not on whether the death
penalty should be abolished or not, but rather on whether the abolition
should be done by the Constitution -- in which case it cannot be restored
by the legislature -- or left to the legislature. The majority voted for the
constitutional abolition of the death penalty. And the reason is that
capital punishment is inhuman for the convict and his family who are
traumatized by the waiting, even if it is never carried out. There is no
evidence that the death penalty deterred deadly criminals, hence, life
should not be destroyed just in the hope that other lives might be
saved. Assuming mastery over the life of another man is just too
presumptuous for any man. The fact that the death penalty as an
institution has been there from time immemorial should not deter us from
reviewing it. Human life is more valuable than an institution intended
precisely to serve human life. So, basically, this is the summary of the
reasons which were presented in support of the constitutional abolition
of the death penalty".[16]
The original wording of Article III, Section 19 (1), however, did not
survive the debate that it instigated. Commissioner Napoleon G. Rama
first pointed out that "never in our history has there been a higher
incidence of crime" and that "criminality was at its zenith during the last
decade".[17] Ultimately, the dissent defined itself to an unwillingness to
absolutely excise the death penalty from our legal system and leave
society helpless in the face of a future upsurge of crimes or other similar
emergencies. As Commissioner Rustico F. de los Reyes, Jr.
suggested, "although we abolish the death penalty in the Constitution,
we should afford some amount of flexibility to future legislation,"[18] and
his concern was amplified by the interpellatory remarks of Commissioner
Lugum L. Commissioner and now Associate Justice Florenz Regalado,
Commissioner Crispino M. de Castro, Commissioner Ambrosio B.
Padilla, Commissioner Christian Monsod, Commissioner Francisco A.
Rodrigo, and Commissioner Ricardo
Romulo. Commissioner Padilla put it succinctly in the following
exchange with Commissioner Teodoro C. Bacani:
"BISHOP BACANI. x x x At present, they explicitly make it clear that the
church has never condemned the right of the state to inflict capital
punishment.
MR. PADILLA. x x x So it is granted that the state is not deprived of the
right even from a moral standpoint of imposing or prescribing capital
punishment.
BISHOP BACANI. Yes. What I am saying is that from the Catholic point
of view, that right of the state is not forbidden.
MR. PADILLA. In fact x x x we have to accept that the state has the
delegated authority from the Creator to impose the death penalty under
certain circumstances.
BISHOP BACANI. The state has the delegation from God for it to do
what is needed for the sake of the common good, but the issue at stake
is whether or not under the present circumstances that will be for the
common good.
MR. PADILLA. But the delegated power of the state cannot be denied.
BISHOP BACANI. Yes, the state can be delegated by God at a
particular stage in history, but it is not clear whether or not that
delegation is forever under all circumstances
MR. PADILLA. So this matter should be left to the legislature to
determine, under certain specified conditions or circumstances, whether
the retention of the death penalty or its abolition would be for the
common good. I do not believe this Commission can a priori, and as
was remarked within a few days or even a month, determine a positive
provision in the Constitution that would prohibit even the legislature to
prescribe the death penalty for the most heinous crimes, the most
grievous offenses attended by many qualifying and aggravating
circumstances."[19]
What followed, thus, were proposed amendments to the beleaguered
provision. The move to add the phrase, "unless for compelling reasons
involving heinous crimes, the national assembly provides for the death
penalty," came from Commissioners Monsod, Jose E. Suarez and de
los Reyes. Commissioner Rodrigo, however, expressed reservations
even as regards the proposed amendment. He said:
"x x x [T]he issue here is whether or not we should provide this matter
in the Constitution or leave it to the discretion of our
legislature. Arguments pro and con have been given x x x. But my
stand is, we should leave this to the discretion of the legislature.
The proposed amendment is halfhearted. It is awkward because we
will, in effect, repeal by our Constitution a piece of legislation and after
repealing this piece of legislation, tell the legislature that we have
repealed the law and that the legislature can go ahead and enact it
again. I think this is not worthy of a constitutional body like ours. If we
will leave the matter of the death penalty to the legislature, let us leave
it completely to the discretion of the legislature, but let us not have this
half-baked provision. We have many provisions in the Revised Penal
Code imposing the death penalty. We will now revoke or repeal these
pieces of legislation by means of the Constitution, but at the same time
say that it is up to the legislature to impose this again.
x x x The temper and condition of the times change x x x and so we, I
think we should leave this matter to the legislature to enact statutes
depending on the changing needs of the times. Let us entrust this
completely to the legislature composed of representatives elected by the
people.
I do not say that we are not competent. But we have to admit the fact
that we are not elected by the people and if we are going to entrust this
to the legislature, let us not be half-baked nor half-hearted about it. Let
us entrust it to the legislature 100 percent."[20]
Nonetheless, the proposed amendment was approved with twenty-three
(23) commissioners voting in favor of the amendment and twelve (12)
voting against it, followed by more revisions, hence the present wording
of Article III, Section 19 (1) of the 1987 Constitution in the following tenor:
"Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be imposed, unless,
for compelling reasons involving heinous crimes, the Congress hereafter
provides for it. Any death penalty already imposed shall be reduced
to reclusion perpetua."
The implications of the foregoing provision on the effectivity of the death
penalty provisions in the Revised Penal Code and certain special
criminal laws and the state of the scale of penalties thereunder, were
tremendous.
The immediate problem pertained to the applicable penalty for what
used to be capital crimes. In People v. Gavarra,[21] we stated that "in
view of the abolition of the death penalty under Section 19, Article III of
the 1987 Constitution, the penalty that may be imposed for murder
isreclusion temporal in its maximum period to reclusion
perpetua"[22] thereby eliminating death as the original maximum
period. The constitutional abolition of the death penalty, it seemed,
limited the penalty for murder to only the remaining periods, to wit, the
minimum and the medium, which we then, in People v.
Masangkay,[23] People v. Atencio[24] and People v. Intino[25] divided
into three new periods, to wit, the lower half of reclusion
temporal maximum as the minimum; the upper half of reclusion
temporal maximum as the medium; and reclusion perpetua as the
maximum, in keeping with the three-grade scheme under the Revised
Penal Code. In People v. Munoz,[26] however, we reconsidered these
aforecited cases and after extended discussion, we concluded that the
doctrine announced therein did not reflect the intention of the
framers. The crux of the issue was whether or not Article III, Section 19
(1) absolutely abolished the death penalty, for if it did, then, the
aforementioned new three-grade penalty should replace the old one
where the death penalty constituted the maximum period. But if no total
abolition can be read from said constitutional provision and the death
penalty is only suspended, it cannot as yet be negated by the institution
of a new three-grade penalty premised on the total inexistence of the
death penalty in our statute books. We thus ruled in Munoz:
"The advocates of the Masangkay ruling argue that the Constitution
abolished the death penalty and thereby limited the penalty for murder
to the remaining periods, to wit, the minimum and the medium. These
should now be divided into three new periods in keeping with the three-
grade scheme intended by the legislature. Those who disagree feel that
Article III, Section 19 (1) merely prohibits the imposition of the death
penalty and has not, by reducing it toreclusion perpetua, also
correspondingly reduced the remaining penalties. These should be
maintained intact.
A reading of Section 19 (1) of Article III will readily show that there is
really nothing therein which expressly declares the abolition of the death
penalty. The provision merely says that the death penalty shall not be
imposed unless for compelling reasons involving heinous crimes the
Congress hereafter provides for it and, if already imposed, shall be
reduced to reclusion perpetua. The language, while rather awkward, is
still plain enough".[27]
Nothing is more defining of the true content of Article III, Section 19 (1)
of the 1987 Constitution than the form in which the legislature took the
initiative in re-imposing the death penalty.
The Senate never doubted its power as vested in it by the constitution,
to enact legislation re-imposing the death penalty for compelling reasons
involving heinous crimes. Pursuant to this constitutional mandate, the
Senate proceeded to a two-step process consisting of: first, the
decision, as a matter of policy, to re-impose the death penalty or not;
and second, the vote to pass on the third reading the bill re-imposing the
death penalty for compelling reasons involving heinous crimes.
On February 15, 1993, after a fierce and fiery exchange of arguments
for and against capital punishment, the Members of the Senate voted on
the policy issue of death penalty. The vote was explained, thus:
"SUSPENSION OF THE RULES
Upon motion of Senator Romulo, there being no objection, the Body
suspended the Rules of the Senate.
Thereafter, upon motion of Senator Romulo, there being no objection,
the Chair directed that a nominal voting be conducted on the policy issue
of death penalty.
INQUIRY OF SENATOR TOLENTINO
Asked by Senator Tolentino on how the Members of the Senate would
vote on this policy question, Senator Romulo stated that a vote of Yes
would mean a vote in favor of death as a penalty to be reincorporated in
the scale of penalties as provided in the Revised Penal Code, and a vote
of No would be a vote against the reincorporation of death penalty in the
scale of penalties in the Revised Penal Code.
INQUIRY OF SENATOR ALVAREZ
xxx
The Chair explained that it was agreed upon that the Body would first
decide the question whether or not death penalty should be reimposed,
and thereafter, a seven-man committee would be formed to draft the
compromise bill in accordance with the result of the voting. If the Body
decides in favor of the death penalty, the Chair said that the committee
would specify the crimes on which death penalty would be imposed. It
affirmed that a vote of Yes in the nominal voting would mean a vote in
favor of death penalty on at least one crime, and that certain refinements
on how the penalty would be imposed would be left to the discretion of
the seven-man committee.
xxx
INQUIRY OF SENATOR TAADA
In reply to Senator Taada's query, the Chair affirmed that even if a
senator would vote 'yes' on the basic policy issue, he could still vote 'no'
on the imposition of the death penalty on a particular crime.
REMARKS OF SENATOR TOLENTINO
Senator Tolentino observed that the Body would be voting on the basic
policy issue of whether or not the death penalty would be included in the
scale of penalties found in Article 27 of the Revised Penal Code, so that
if it is voted down, the Body would discontinue discussing Senate Bill
No. 891 pursuant to the Rules, but if approved, a special committee, as
agreed upon in the caucus, is going to be appointed and whatever
course it will take will depend upon the mandate given to it by the Body
later on.
The Chair affirmed Senator Tolentino's observations.
REMARKS OF SENATOR ROCO
Senator Roco stated that the Body would vote whether or not death as
a penalty will be reincorporated in the scale of penalties provided by the
Revised Penal Code. However, he pointed out that if the Body decides
in favor of death penalty, the Body would still have to address two
issues: 1) Is the crime for which the death penalty is supposed to be
imposed heinous pursuant to the constitutional mandate? 2) And, if so,
is there a compelling reason to impose the death penalty for it? The
death penalty, he stressed, cannot be imposed simply because the
crime is heinous."[28]
With seventeen (17) affirmative votes and seven (7) negative votes and
no abstention, the Chair declared that the Senate has voted to re-
incorporate death as a penalty in the scale of penalties as provided in
the Revised Penal Code. A nine-person committee was subsequently
created to draft the compromise bill pursuant to said vote. The mandate
of the committee was to retain the death penalty, while the main debate
in the committee would be the determination of the crimes to be
considered heinous.
On March 17, 1993, Senator Arturo Tolentino, Chairman of the Special
Committee on the Death Penalty, delivered his Sponsorship
Speech. He began with an explanation as to why the Senate Bill No.
891 re-imposes the death penalty by amending the Revised Penal Code
and other special penal laws and includes provisions that do not define
or punish crimes but serve purposes allied to the reimposition of the
death penalty. Senator Tolentino stated:
x x x [W]hen the Senate approved the policy of reimposing the death
penalty on heinous crimes and delegated to the Special Committee the
work of drafting a bill, a compromise bill that would be the subject for
future deliberations of this Body, the Committee had to consider that the
death penalty was imposed originally in the Revised Penal Code.
So, when the Constitution was approved in order to do away with the
death penalty, unless Congress should, for compelling reasons
reimpose that penalty on heinous crimes, it was obvious that it was the
Revised Penal Code that was affected by that provision of the
Constitution. The death penalty, as provided in the Revised Penal
Code, would be considered as having been repealed -- all provisions on
the death penalty would be considered as having been repealed by the
Constitution, until Congress should, for compelling reasons, reimpose
such penalty on heinous crimes. Therefore, it was not only one article
but many articles of the Revised Penal Code that were actually affected
by the Constitution.
And it is in consideration of this consequence of the constitutional
provision that our Special Committee had to consider the Revised Penal
Code itself in making this compromise bill or text of the bill. That is why,
in the proposed draft now under consideration which we are sponsoring,
the specific provisions of the Revised Penal Code are actually either
reenacted or amended or both. Because by the effect of the
Constitution, some provisions were totally repealed, and they had to be
reenacted so that the provisions could be retained. And some of them
had to be amended because the Committee thought that amendments
were proper."[29]
In response to a query by Senator Gloria Macapagal-Arroyo as to
whether or not it would have been better if the Senate were to enact a
special law which merely defined and imposed the death penalty for
heinous crimes, Senator Tolentino explicated, thus:
"x x x [T]hat may be a way presenting the bill. But we must bear in mind
that the death penalty is imposed in the Revised Penal
Code. Therefore, when the Constitution abolished the death penalty, it
actually was amending the Revised Penal Code to such an extent that
the Constitution provides that where the death penalty has already been
imposed but not yet carried out, then the penalty shall be reclusion
perpetua, that is the penalty in the Revised Penal Code. So we thought
that it would be best to just amend the provisions of the Revised Penal
Code, restoring the death penalty for some crimes that may be
considered as heinous. That is why the bill is in this form amending the
provisions of the Revised Penal Code.
Of course, if some people want to present a special bill . . . the whole
trouble is, when a special bill is presented and we want to punish in the
special bill the case of murder, for instance, we will have to reproduce
the provisions of the Revised Penal Code on murder in order to define
the crime for which the death penalty shall be imposed. Or if we want
to impose the death penalty in the case of kidnapping which is punished
in the Revised Penal Code, we will do the same -- merely
reproduce. Why will we do that? So we just followed the simpler
method of keeping the definition of the crime as the same and merely
adding some aggravating circumstances and reimposing the death
penalty in these offenses originally punished in the Revised Penal
Code."[30]
From March 17, 1993, when the death penalty bill was presented for
discussion until August 16, 1993, the Members of the Senate debated
on its provisions.
The stiffest opposition thereto was bannered by Senator Lina who kept
prodding the sponsors of the bill to state the compelling reason for each
and every crime for which the supreme penalty of death was
sought. Zeroing in on the statement in the preamble of the death penalty
bill that the same is warranted in the face of "the alarming upsurge of
[heinous] crimes", Senator Lina demanded for solid statistics showing
that in the case of each and every crime in the death penalty bill, there
was a significantly higher incidence of each crime after the suspension
of the death penalty on February 2, 1987 when the 1987 Constitution
was ratified by the majority of the Filipino people, than before such
ratification.[31]Inasmuch as the re-impositionists could not satisfy the
abolitionists with sufficient statistical data for the latter to accept the
alarming upsurge of heinous crimes as a compelling reason justifying
the reimposition of the death penalty, Senator Lina concluded that there
were, in fact, no compelling reasons therefor. In the alternative, Senator
Lina argued that the compelling reason required by the constitution was
that "the State has done everything in its command so that it can be
justified to use an inhuman punishment called death penalty".[32] The
problem, Senator Lina emphasized, was that even the re-impositionists
admit that there were still numerous reforms in the criminal justice
system that may and must be put in place, and so clearly, the recourse
to the enactment of a death penalty bill was not in the nature of a last
resort, hence, unconstitutional in the absence of compelling
reasons. As an initial reaction to Senator Lina's contentions, Senator
Tolentino explained that the statement in the preamble is a general one
and refers to all the crimes covered by the bill and not to specific
crimes. He added that one crime may not have the same degree of
increase in incidence as the other crimes and that the public demand to
impose the death penalty is enough compelling reason.[33]
Equally fit to the task was Senator Wigberto Taada to whom the battle
lines were clearly drawn. He put to issue two things: first, the definition
of "heinous crimes" as provided for in the death penalty bill; and second,
the statement of compelling reasons for each and every capital
crime. His interpellation of Senator Tolentino clearly showed his
objections to the bill:
"Senator Taada. x x x But what would make crimes heinous, Mr.
President? Are crimes heinous by their nature or elements as they are
described in the bill or are crimes heinous because they are punished
by death, as bribery and malversation are proposed to be punished in
the bill?
Senator Tolentino. They are heinous by their nature, Mr. President, but
that is not supposed to be the exclusive criterion. The nature of the
offense is the most important element in considering it heinous but, at
the same time, we should consider the relation of the offense to society
in order to have a complete idea of the heinous nature of these offenses.
In the case of malversation or bribery, for instance, these offenses by
themselves connected with the effect upon society and the government
have made them fall under the classification of heinous crimes. The
compelling reason for imposing the death penalty is when the offenses
of malversation and bribery becomes so grave and so serious as
indicated in the substitute bill itself, then there is a compelling reason for
the death penalty.
Senator Taada. With respect to the compelling reasons, Mr. President,
does the Gentleman believe that these compelling reasons, which would
call for the reimposition of the death penalty, should be separately,
distinctly and clearly stated for each crime so that it will be very clear to
one and all that not only are these crimes heinous but also one can see
the compelling reasons for the reimposition of the death penalty
therefor?
Senator Tolentino. Mr. President, that matter was actually considered
by the Committee. But the decision of the Committee was to avoid
stating the compelling reason for each and every offense that is included
in the substitute measure. That is why in the preamble, general
statements were made to show these compelling reasons. And that, we
believe, included in the bill, when converted into law, would be sufficient
notice as to what were considered compelling reasons by the Congress,
in providing the death penalty for these different offenses.
If a matter like this is questioned before the Supreme Court, I would
suppose that with the preamble already in general terms, the Supreme
Court would feel that it was the sense of Congress that this preamble
would be applicable to each and every offense described or punishable
in the measure.
So we felt that it was not necessary to repeat these compelling reasons
for each and every offense.
Senator Taada. Mr. President, I am thinking about the constitutional
limitations upon the power of Congress to enact criminal legislation,
especially the provisions on the Bill of Rights, particularly the one which
says that no person shall be held to answer for a criminal offense without
due process of law.
Can we not say that under this provision, it is required that the
compelling reasons be so stated in the bill so that the bill, when it
becomes a law, will clearly define the acts and the omissions punished
as crimes?
Senator Tolentino. Mr. President, I believe that in itself, as substantive
law, this is sufficient. The question of whether there is due process will
more or less be a matter of procedure in the compliance with the
requirements of the Constitution with respect to due process itself which
is a separate matter from the substantive law as to the definition and
penalty for crimes.
Senator Taada. Under the Constitution, Mr. President, it appears that
the reimposition of the death penalty is subject to three conditions and
these are:
1. Congress should so provide such reimposition of the death
penalty;
2. There are compelling reasons; and
3. These involve heinous crimes.
Under these provision of the Constitution, paragraph 1, Section 13, does
the distinguished Gentleman not feel that Congress is bound to state
clearly the compelling reasons for the reimposition of the death penalty
for each crime, as well as the elements that make each of the crimes
heinous included in the bill?
Senator Tolentino. Mr. President, that is a matter of opinion already. I
believe that whether we state the compelling reasons or not, whether we
state why a certain offense is heinous, is not very important. If the
question is raised in the Supreme Court, it is not what we say in the bill
that will be controlling but what the Supreme Court will fell as a sufficient
compelling reason or as to the heinous nature whether the crime is
heinous or not. The accused can certainly raise the matter of
constitutionality but it will not go into the matter of due process. It will go
into the very power of Congress to enact a bill imposing the death
penalty. So that would be entirely separate from the matter of due
process." [34]
Senator Francisco Tatad, on his part, pointed out that the death penalty
bill violated our international commitment in support of the worldwide
abolition of capital punishment, the Philippines being a signatory to the
International Covenant on Civil and Political Rights and its Second
Optional Protocol. Senator Ernesto Herrera clarified, however, that in
the United Nations, subject matters are submitted to the different
committees which vote on them for consideration in the plenary
session. He stressed that unless approved in the plenary session, a
declaration would have no binding effect on signatory countries. In this
respect, the Philippines cannot be deemed irrevocably bound by said
covenant and protocol considering that these agreements have reached
only the committee level.[35]
After the protracted debate, the Members of the Senate voted on Senate
Bill No. 891 on third reading. With seventeen (17) affirmative votes, four
(4) negative votes, and one abstention, the death penalty bill was
approved on third reading on August 16, 1993.
The Senate's vote to pass Senate Bill No. 891 on third reading on August
16, 1993 was a vindication of, the House of Representatives. The
House had, in the Eight Congress, earlier approved on third reading
House Bill No. 295 on the restoration of the death penalty for certain
heinous crimes. The House was in effect rebuffed by the Senate when
the Senate killed House Bill No. 295 along with other bills coming from
the House. House Bill No. 295 was resurrected during the Ninth
Congress in the form of House Bill No. 62 which was introduced by
twenty one (21) Members of the House of Representatives on October
27, 1992. House Bill No. 62 was a merger of House Bill Nos. 125, 187,
411, 764, 506, 781, 955, 1565, 1586, 2206, 3238, 3576 and 3632
authored by various Members of the Lower House.
In his Sponsorship Speech, Representative Manuel R. Sanchez of Rizal
ably essayed the constitutional vesting in Congress of the power to re-
impose the death penalty for compelling reasons invoking heinous
crimes as well as the nature of this constitutional pre-requisite to the
exercise of such power.
"Mr. Speaker, in Article III, Section 19(1) of Constitution reads, a I quote:
'Neither shall death penalty be imposed, unless, for compelling reasons
involving heinous crimes, the Congress shall thereafter provide for it . .
.'
The phrase 'unless, for compelling reasons involving heinous crimes,
the Congress shall thereafter provide for it was introduced as an
amendment by then Comm. Christian Monsod.
The import of this amendment is unmistakable. By this amendment, the
death penalty was not completely abolished by the 1987
Constitution. Rather, it merely suspended the death penalty and gave
Congress the discretion to review it at the propitious time.
Arguing for the inclusion of said amendment in the fine provision, Comm.
Ricardo Romulo said, and I quote:
"'The people should have the final say on the subject, because, at some
future time, the people might want to restore death penalty through
initiative and referendum.
Commissioner Monsod further argued, and I quote:
We cannot presume to have the wisdom of the ages. Therefore, it is
entirely possible in the future that circumstances may arise which we
should not preclude today.
xxx xxx
xxx
I believe that [there] are enough compelling reasons that merit the
reimposition of the capital punishment. The violent manner and the
viciousness in which crimes are now committed with alarming regularity,
show very clearly a patent disregard of the law and a mockery of public
peace and order.
In the public gallery section today are the relatives of the victims of
heinous crimes the Hultmans, the Maguans, the Vizcondes, the
Castanoses, and many more, and they are all crying for justice. We
ought to listen to them because their lives, their hopes, their dreams,
their future have fallen asunder by the cruel and vicious criminality of a
few who put their selfish interest above that of society.
Heinous crime is an act or series of acts which, by the flagrantly violent
manner in which the same was committed or by the reason of its
inherent viciousness, shows a patent disregard and mockery of the law,
public peace and order, or public morals. It is an
offense whoseessential and inherent viciousness and atrocity are
repugnant and outrageous to a civilized society and hence, shock the
moral self of a people.
Of late, we are witness to such kind of barbaric crimes.
The Vizconde massacre that took the lives of a mother and her two
lovely daughters, will stand in the people's memory for many long years
as the epitome of viciousness and atrocity that are repugnant to civilized
society.
The senseless murder of Eldon Maguan, and up-and-coming young
business executive, was and still is an outrage that shocks the moral self
of our people.
The mind-boggling death of Maureen Hultmann, a comely 16 year-old
high school student who dreamt of becoming a commercial model
someday, at the hands of a crazed man was so repulsive, so brutal that
it offends the sensibilities of Christians and non-Christians alike
The cold-blooded double murder of Cochise Bernabe and Beebom
Castanos, the lovely and promising couple from the University of the
Philippines, is eternally lodged in the recesses of our minds and still
makes our stomach turn in utter disgust.
xxx xxx
xxx
The seriousness of the situation is such that if no radical action is taken
by this body in restoring death penalty as a positive response to the
overwhelming clamor of the people, then, as Professor Esteban Bautista
of the Philippine Law Center said, and I quote:
'When people begin to believe that organized society is unwilling or
unable to impose upon criminal offenders the punishment they deserve,
there are sown the seeds of anarchy of self-help, of vigilante justice and
lynch law. The people will take the law upon their hands and exact
vengeance in the nature of personal vendetta.'
It is for this reason, Mr. Speaker, that I stand here and support House
Bill No. 62.
As duly elected Representatives of our people, collectively, we ought to
listen to our constituents and heed their plea a plea for life, liberty and
pursuit of their happiness under a regime of justice and democracy, and
without threat that their loves ones will be kidnapped, raped or
butchered.
But if such a misfortune befalls them, there is the law they could rely on
for justice. A law that will exact retribution for the victims. A law that will
deter future animalistic behavior of the criminal who take their selfish
interest over and above that of society. A law that will deal a deathblow
upon all heinous crimes.
Mr. Speaker, my distinguished colleagues, for the preservation of all that
we hold dear and sacred, let us restore the death penalty."[36]
A studious comparison of the legislative proceedings in the Senate and
in the House of Representatives reveals that, while both Chambers were
not wanting of oppositors to the death penalty, the Lower House seemed
less quarrelsome about the form of the death penalty bill as a special
law specifying certain heinous crimes without regard to the provisions of
the Revised Penal Code and more unified in the perception of what
crimes are heinous and that the fact of their very heinousness involves
the compulsion and the imperative to suppress, if not completely
eradicate, their occurrence. Be it the foregoing general statement of
Representative Sanchez or the following details of the nature of the
heinous crimes enumerated in House Bill No. 62 by Representative
Miguel L. Romero of Negros Oriental, there was clearly, among the
hundred or so re-impositionists in the Lower House, no doubt as to their
cause:
"My friends, this bill provides for the imposition of the death penalty not
only for the importation, manufacture and sale of dangerous drugs, but
also for other heinous crimes such as reason; parricide; murder;
kidnapping; robbery; rape as defined by the Revised Penal Code with or
without additionally defined circumstances; plunder, as defined in R.A.
7080; piracy, as defined under Section 2 of PD 532; carnapping, as
defined in Section 2 of RA 6539, when the owner, driver or occupant is
killed; hijacking, as defined in xxx RA 6235; and arson resulting in the
death of any occupants.
All these crimes have a common denominator which qualifies them to
the level of heinous crimes. A heinous crime is one which, by reason of
its inherent or manifest wickedness, viciousness, atrocity or perversity,
is repugnant and outrageous to the common standards of decency and
morality in a just and civilized society.
For instance, the crime of treason is defined as a breach of allegiance
to a government, committed by a person who owes allegiance to it (U.S.
v. Abad 1 Phil. 437). By the 'allegiance' is meant the obligation of fidelity
and obedience which individuals owe to the government under which
they live or to their sovereign in return for the protection which they
receive (52 Am Jur 797).
In kidnapping, the though alone of one's loved one being held against
his or her own will in some unidentified xxx house by a group of
scoundrels who are strangers is enough terrify and send shivers of fear
through the spine of any person, even scoundrels themselves.
In robbery accompanied by rape, intentional mutilation or arson, what is
being punished by death is the fact that the perpetrator, at the time of
the commission of the crime, thinks nothing of the other crime he
commits and sees it merely as a form of self-amusement. When a
homicide is committed by reason of the robbery, the culprits are
perceived as willing to take human life in exchange for money or other
personal property.
In the crime of rape, not only do we speak of the pain and agony of the
parents over the personal shock and suffering of their child but the
stigma of the traumatic and degrading incident which has shattered the
victim's life and permanently destroyed her reputation, not to mention
the ordeal of having to undergo the shameful experience of police
interrogation and court hearings.
Piracy, which is merely a higher form of robbery, is punished for the
universal hostility of the perpetrators against their victims who are
passengers and complement of the vessel, and because of the fact that,
in the high seas, no one may be expected to be able to come to the
rescue of the helpless victims. For the same reason, Mr. Speaker, the
crime of air piracy is punished due to the evil motive of the hijackers in
making unreasonable demands upon the sovereignty of an entire nation
or nations, coupled with the attendant circumstance of subjecting the
passengers to terrorism." [37]
The debate on House Bill No. 62 lasted from October 27, 1992 to
February 11, 1993. On February 11, 1993, the Members of the House
of Representatives overwhelmingly approved the death penalty bill on
second reading.
On February 23, 1993, after explaining their votes, the Members of the
House of Representatives cast their vote on House Bill No. 62 when it
was up for consideration on third reading. [38] The results were 123
votes in favor, 26 votes against, and 2 abstentions
After the approval on third reading of House Bill No. 62 on February 23,
1993 and of Senate Bill No. 891 on August 16, 1993, the Bicameral
Conference Committee convened to incorporate and consolidate them.
On December 31, 1993, Republic Act (R.A.) No. 7659, entitled, "An Act
to Impose the Death Penalty on Certain Heinous Crimes, Amending for
that Purpose the Revised Penal Code, as Amended, Other Special
Penal Laws, and for Other Purposes," took effect.[39]
Between December 31, 1993, when R.A. No. 7659 took effect, and the
present time, criminal offenders have been prosecuted under said law,
and one of them, herein accused-appellant, has been, pursuant to said
law, meted out the supreme penalty of death for raping his ten-year old
daughter. Upon his conviction, his case was elevated to us on
automatic review. On June 25, 1996, we affirmed his conviction and the
death sentence.
Now, accused-appellant comes to us in the heels of this court's
affirmation of his death sentence and raises for the first time the issue
of the constitutionality of R.A. 7659. His thesis is two-fold: (1) that the
death penalty law is unconstitutional per se for having been enacted in
the absence of compelling reasons therefor; and (2) that the death
penalty for rape is a cruel, excessive and inhuman punishment in
violation of the constitutional proscription against punishment of such
nature.
We reject accused-appellant's proposition.
Three justices interposed their dissent hereto, agreeing with accused-
appellant's view that Congress enacted R.A. No. 7659 without
complying with the twin requirements of compelling reasons and
heinous crimes.
At this juncture, the detailed events leading to the enactment of R.A. No.
7659 as unfurled in the beginning of this disquisition, necessarily provide
the context for the following analysis.
elements that make them heinous. They were oblivious to the fact that
there were two types of crimes in the death penalty bill: first, there were
crimes penalized by reclusion perpetua to death; and second, there
were crimes penalized by mandatory capital punishment upon the
attendance of certain specified qualifying circumstances.
Under R.A. No. 7659, the following crimes are penalized by reclusion
perpetua to death:

Article III, Section 19 (1) of the 1987 Constitution plainly vests in (1) Treason (Sec. 2);
Congress the power to re-impose the death penalty "for compelling
(2) Qualified piracy (Sec. 3);
reasons involving heinous crimes". This power is not subsumed in the
plenary legislative power of Congress, for it is subject to a clear showing (3) Parricide (Sec. 5);
of "compelling reasons involving heinous crimes."
(4) Murder (Sec. 6);
The constitutional exercise of this limited power to re-impose the death
penalty entails (1) that Congress define or describe what is meant by (5) Infanticide (Sec. 7);

heinous crimes; (2) that Congress specify and penalize by death, only
(6) Kidnapping and serious illegal detention if attended by any of the
crimes that qualify as heinous in accordance with the definition or
following four circumstances: (a) the victim was detained for more than
description set in the death penalty bill and/or designate crimes
three days; (b) it was committed simulating public authority; (c) serious
punishable by reclusion perpetua to death in which latter case, death
physical injuries were inflicted on the victim or threats to kill him were
can only be imposed upon the attendance of circumstances duly proven
made; and (d) if the victim is a minor, except when the accused is any
in court that characterize the crime to be heinous in accordance with the
of the parents, female or a public officer (Sec. 8);
definition or description set in the death penalty bill; and (3) that
Congress, in enacting this death penalty bill be singularly motivated by (7) Robbery with homicide, rape or intentional mutilation (Sec. 9);
"compelling reasons involving heinous crimes."
(8) Destructive arson if what is burned is (a) one or more buildings or
In the second whereas clause of the preamble of R.A. No. 7659, we find edifice; (b) a building where people usually gather; (c) a train, ship or
the definition or description of heinous crimes. Said clause provides that airplane for public use; (d) a building or factory in the service of public
utilities; (e) a building for the purpose of concealing or destroying
"x x x the crimes punishable by death under this Act are heinous for
evidence Or a crime; (f) an arsenal, fireworks factory, or government
being grievous, odious and hateful offenses and which, by reason of
museum; and (g) a storehouse or factory of explosive materials located
their inherent or manifest wickedness, viciousness, atrocity and
in an inhabited place; or regardless of what is burned, if the arson is
perversity are repugnant and outrageous to the common standards and
perpetrated by two or more persons (Sec. 10);
norms of decency and morality in a just, civilized and ordered society."
(9) Rape attended by any of the following circumstances: (a) the rape
Justice Santiago Kapunan, in his dissenting opinion in People v.
is committed with a deadly weapon; (b) the rape is committed by two or
Alicando, [40] traced the etymological root of the word "heinous" to the
more persons; and (c) the rape is attempted or frustrated and committed
Early Spartans' word, "haineus", meaning, hateful and abominable,
with homicide (Sec. 11);
which, in turn, was from the Greek prefix "haton", denoting acts so
hatefully or shockingly evil. (10) Plunder involving at least P50 million (Sec. 12);

We find the foregoing definition or description to be a sufficient criterion (11) Importation of prohibited drugs (Sec. 13);
of what is to be considered a heinous crime. This criterion is deliberately
(12) Sale, administration, delivery, distribution, and transportation of
undetailed as to the circumstances of the victim, the accused, place,
prohibited drugs (id.);
time, the manner of commission of crime, its proximate consequences
and effects on the victim as well as on society, to afford the sentencing (13) Maintenance of den, dive or resort for users of prohibited drugs
authority sufficient leeway to exercise his discretion in imposing the (id.);
appropriate penalty in cases where R.A. No. 7659 imposes not a
(14) Manufacture of prohibited drugs (id.);
mandatory penalty of death but the more flexible penalty of reclusion
perpetua to death. (15) Possession or use of prohibited drugs in certain specified amounts
(id.);
During the debates on the proposed death penalty bill, Senators Lina
and Taada grilled the sponsors of the bill as regards what they perceived (16) Cultivation of plants which are sources of prohibited drugs (id.)
as a mere enumeration of capital crimes without a specification of the
(17) Importation of regulated drugs (Sec. 14);
(18) Manufacture of regulated drugs (id.);
(19) Sale, administration, dispensation, delivery, transportation, and
distribution of regulated drugs (id.);
(20) Maintenance of den, dive, or resort for users of regulated drugs
(Sec. 15);
(21) Possession or use of regulated drugs in specified amounts (Sec.
16);
(22) Misappropriation, misapplication or failure to account dangerous
drugs confiscated by the arresting officer (Sec. 17);
(23) Planting evidence of dangerous drugs in person or immediate
vicinity of another to implicate the latter (Sec. 19); and
(24) Carnapping where the owner, driver or occupant of the carnapped
motor vehicle is killed or raped (Sec. 20).
All the foregoing crimes are not capital crimes per se, the uniform
penalty for all of them being not mandatory death but the flexible penalty
of reclusion perpetua to death. In other words, it is premature to demand
for a specification of the heinous elements in each of foregoing crimes
because they are not anyway mandatorily penalized with death. The
elements that call for the imposition of the supreme penalty of death in
these crimes, would only be relevant when the trial court, given the
prerogative to impose reclusion perpetua, instead actually imposes the
death penalty because it has, in appreciating the evidence proffered
before it, found the attendance of certain circumstances in the manner
by which the crime was committed, or in the person of the accused on
his own or in relation to the victim, or in any other matter of significance
to the commission of the crime or its effects on the victim or on society,
which circumstances characterize the criminal acts as grievous, odious,
or hateful, or inherently or manifestly wicked, vicious, atrocious or
perverse as to be repugnant and outrageous to the common standards
and norms of decency and morality in a just, civilized and ordered
society.
On the other hand, under R.A. No. 7659, the mandatory penalty of death
is imposed in the following crimes:
(1) Qualified bribery
"If any public officer is entrusted with law enforcement and he refrains
from arresting or prosecuting an offender who has committed a crime
punishable by reclusion perpetua and/or death in consideration of any
offer, promise, gift or present, he shall suffer the penalty for the offense
which was not prosecuted.
If it is the public officer who asks or demands such gift or present, he
shall suffer the penalty of death." (Sec. 4)
(2) Kidnapping and serious illegal detention for ransom resulting in
the death of the victim or the victim is raped, tortured or subjected to
dehumanizing acts
"The penalty shall be death where the kidnapping or detention was
committed for the purpose of ransom from the victim or any other
person, even if none of the circumstances above-mentioned were
present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is
raped, or is subject to torture or dehumanizing acts, the maximum
penalty [of death] shall be imposed." (Sec. 8)
(3) Destructive arson resulting in death
"If as a consequence of the commission of any of the acts penalized
under this Article, death results, the mandatory penalty of death shall be
imposed." (Sec. 10)
(4) Rape with the victim becoming insane, rape with homicide and
qualified
"When by reason or on the occasion of the rape, the victim has become
insane, the penalty shall be death.
xxx xxx xxx
When by reason or on the occasion of the rape, a homicide is committed,
the penalty shall be death.
The death penalty shall also be imposed if the crime of rape is committed
with any of the following attendant circumstances:
1. when the victim is under eighteen (18) years of age and the offender
is a parent, ascendant, step-parent, guardian, relative by consanguinity
or affinity within the third civil degree, or the common-law spouse of the
parent or the victim.
2. when the victim is under the custody of the police or military
authorities.
3. when the rape is committed in full view of the husband, parent, any
of the children or other relatives within the third degree of consanguinity.
4. when the victim is a religious or a child below seven (7) years old
5. when the offender knows that he is afflicted with Acquired Immune
Deficiency Syndrome (AIDS) disease.
6. when committed by any member of the Armed Forces of the
Philippines or the Philippine National Police or any law enforcement
agency.
7. when by reason or on the occasion of the rape, the victim has
suffered permanent physical mutilation." (Sec. 11 )
(5) Sale, administration, delivery, distribution and transportation of
prohibited drugs where the victim is a minor or the victim dies
"Notwithstanding the provision of Section 20 of this Act to the contrary,
if the victim of the offense is a minor, or should a prohibited drug involved
in any offense under this Section be the proximate cause of the death of
victim thereof, the maximum penalty [of death] herein provided shall be
imposed." (Sec. 13)
(6) Maintenance of den, dive, or resort for users of prohibited drugs
where the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary,
the maximum of the penalty [of death] shall be imposed in every case
where a prohibited drug is administered, delivered or sold to a minor who
is allowed to use the same in such place.
Should a prohibited drug be the proximate case of the death of a person
using the same in such den, dive or resort, the maximum penalty herein
provided shall be imposed on the maintainer notwithstanding the
provisions of Section 20 of this Act to the contrary." (Sec. 13)
(7) Sale, administration, dispensation, delivery, distribution and
transportation of regulated drugs where the victim is a minor or the victim
dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary,
if the victim of the offense is a minor, or should a regulated drug involved
in any offense under this Section be the proximate cause of the death of
a victim thereof, the maximum penalty [of death] herein provided shall
be imposed." (Sec. 14)
(8) Maintenance of den, dive, or resort for users of regulated drugs
where the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary,
the maximum penalty [of death] herein provided shall be imposed in
every case where a regulated drug is administered, delivered or sold to
a minor who is allowed to use the same in such place.
Should a regulated drug be the proximate cause of death of a person
using the same in such den, dive or resort, the maximum penalty herein
provided shall be imposed on the maintainer notwithstanding the
provisions of Section 20 of this Act to the contrary." (Sec. 15)
(9) Drug offenses if convicted are government officials, employees or
officers including members of police agencies and armed forces
"The maximum penalties [of death] provided for in Section 3, 4 (1), 5(1),
6, 7, 8, 9, 11,12 and 13 of Article II and Sections 14, 14-A, 14(1), 15A
(1), 16, and 19 of Article III [of the Dangerous Drugs Act of 1972] shall
be imposed, if those found guilty or any of the same offenses are
government officials, employees or officers including members of police
agencies and the armed forces." (Sec. 19)
(10) Planting of dangerous drugs as evidence in drug offenses with the
mandatory death penalty if convicted are government officials,
employees or officers
"Any such above government official, employee or officer who is found
guilty of 'planting' any dangerous drugs punished in Section s 3, 4, 7, 8,
9 and 13 of Article II and Sections 14, 14-A, 15, and 16 of Article III (of
the Dangerous Drugs Act of 1972) in the person or in the immediate
vicinity of another as evidence to implicate the latter, shall suffer the
same penalty as therein provided." (Sec. 19)
(11) In all the crimes in RA. No. 7659 in their qualified form
"When in the commission of the crime, advantage was taken by the
offender of his public position, the penalty to be imposed shall be in its
maximum [of death] regardless of mitigating circumstances.
The maximum penalty [of death] shall be imposed if the offense was
committed by any person who belongs to an organized/syndicated crime
group.
An organized/syndicated crime group means a group of two or more
persons collaborating, confederating or mutually helping one another for
purposes of gain in the commission of any crime." (Sec. 23)
It is specifically against the foregoing capital crimes that the test of
heinousness must be squarely applied.
The evil of a crime may take various forms. There are crimes that are,
by their very nature, despicable, either because life was callously taken
or the victim is treated like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her growth as a human
being. The right of a person is not only to live but to live a quality life,
and this means that the rest of society is obligated to respect his or her
individual personality, the integrity and the sanctity of his or her own
physical body, and the value he or she puts in his or her own spiritual,
psychological, material and social preferences and needs. Seen in this
light, the capital crimes of kidnapping and serious illegal detention for
ransom resulting in the death of the victim or the victim is raped, tortured,
or subjected to dehumanizing acts; destructive arson resulting in death,
and drug offenses involving minors or resulting in the death of the victim
in the case of other crimes; as well as murder, rape, parricide,
infanticide, kidnapping and serious illegal detention where the victim is
detained for more than three days or serious physical injuries were
inflicted on the victim or threats to kill him were made or the victim is a
minor, robbery with homicide, rape or intentional mutilation, destructive
arson, and carnapping where the owner, driver or occupant of the
carnapped vehicle is killed or raped, which are penalized by reclusion
perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the
significance and implications of the subject criminal acts in the scheme
of the larger socio-political and economic context in which the state finds
itself to be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of corrupt tyrannical
rule that bankrupted the government and impoverished the population,
the Philippine Government must muster the political will to dismantle the
culture of corruption, dishonesty, greed and syndicated criminality that
so deeply entrenched itself in the structures of society and psyche of the
populace. Terribly lacking the money to provide even the most basic
services to its people, any form of misappropriation or misapplication of
government funds translates to an actual threat to the very existence of
government, and in turn, the very survival of the people it governs
over. Viewed in this context, no less heinous are the effects and
repercussions of crimes like qualified bribery, destructive arson resulting
in death, and drug offenses involving government officials, employees
or officers, that their perpetrators must not be allowed to cause further
destruction and damage to society.
We have no doubt, therefore, that insofar as the element of heinousness
is concerned, R.A. No. 7659 has correctly identified crimes warranting
the mandatory penalty of death. As to the other crimes in R.A. No. 7659
punished by reclusion perpetua to death, they are admittingly no less
abominable than those mandatorily penalized by death. The proper
time to determine their heinousness in contemplation of law, is when on
automatic review, we are called to pass on a death sentence involving
crimes punishable by reclusion perpetua to death under R.A. No. 7659,
with the trial court meting out the death sentence in exercise of judicial
discretion. This is not to say, however, that the aggravating
circumstances under the Revised Penal Code need be additionally
alleged as establishing the heinousness of the crime for the trial court to
validly impose the death penalty in the crimes under R.A. No. 7659
which are punished with the flexible penalty of reclusion perpetua to
death.
In the first place, the 1987 Constitution did not amend or repeal the
provisions of the Revised Penal Code relating to aggravating
circumstances. Secondly, R.A. No. 7659, while it specifies
circumstances that generally qualify a crime provided therein to be
punished by the maximum penalty of death, neither amends nor repeals
the aggravating circumstances under the Revised Penal Code. Thus,
construing R.A. No. 7659 in parimateria with the Revised Penal Code,
death may be imposed when (1) aggravating circumstances attend the
commission of the crime as to make operative the provision of the
Revised Penal Code regarding the imposition of the maximum penalty;
and (2) other circumstances attend the commission of the crime which
indubitably characterize the same as heinous in contemplation of R.A.
No. 7659 that justify the imposition of the death, albeit the imposable
penalty is reclusion perpetua to death. Without difficulty, we understand
the rationale for the guided discretion granted in the trial court to cognize
circumstances that characterize the commission of the crime as
heinous. Certainly there is an infinity of circumstances that may attend
the commission of a crime to the same extent that there is no telling the
evil that man is capable of. The legislature cannot and need not foresee
and inscribe in law each and every loathsome act man is capable of. It
is sufficient thus that R.A. 7659 provides the test and yardstick for the
determination of the legal situation warranting the imposition of the
supreme penalty of death. Needless to say, we are not unaware of the
ever existing danger of abuse of discretion on the part of the trial court
in meting out the death sentence. Precisely to reduce to nil the
possibility of executing an innocent man or one criminal but not
heinously criminal, R.A. 7659 is replete with both procedural and
substantive safeguards that ensure only the correct application of the
mandate of R.A. No. 7659.
In the course of the congressional debates on the constitutional
requirement that the death penalty be re-imposed for compelling
reasons involving heinous crimes, we note that the main objection to the
death penalty bill revolved around the persistent demand of the
abolitionists for a statement of the reason in each and every heinous
crime and statistical proof the such compelling reason actually exists.
We believe, however, that the elements of heinousness and compulsion
are inseparable and are, in fact, interspersed with each other. Because
the subject crimes are either so revolting and debasing as to violate the
most minimum of the human standards of decency or its effects,
repercussions, implications and consequences so destructive,
destabilizing, debilitating, or aggravating in the context of our socio-
political and economic agenda as a developing nation, these crimes
must be frustrated, curtailed and altogether eradicated. There can be
no ifs or buts in the face of evil, and we cannot afford to wait until we rub
elbows with it before grasping it by the ears and thrashing it to its
demission.
The abolitionists in congress insisted that all criminal reforms first be
pursued and implemented before the death penalty be re-imposed in
case such reforms prove unsuccessful. They claimed that the only
compelling reason contemplated of by the constitution is that nothing
else but the death penalty is left for the government to resort to that could
check the chaos and the destruction that is being caused by unbridled
criminality. Three of our colleagues, are of the opinion that the
compelling reason required by the constitution is that there occurred a
dramatic and significant change in the socio-cultural milieu after the
suspension of the death penalty on February 2, 1987 such as an
unprecedented rise in the incidence of criminality. Such are, however,
interpretations only of the phrase "compelling reasons" but not of the
conjunctive phrase "compelling reasons involving heinous crimes". The
imposition of the requirement that there be a rise in the incidence of
criminality because of the suspension of the death penalty, moreover, is
an unfair and misplaced demand, for what it amounts to, in fact, is a
requirement that the death penalty first proves itself to be a truly
deterrent factor in criminal behavior. If there was a dramatically higher
incidence of criminality during the time that the death penalty was
suspended, that would have proven that the death penalty was indeed
a deterrent during the years before its suspension. Suffice it to say that
the constitution in the first place did not require that the death penalty be
first proven to be a deterrent; what it requires is that there be compelling
reasons involving heinous crimes.
Article III, Section 19 (1) of the 1987 Constitution simply states that
congress, for compelling reasons involving heinous crimes, may re-
impose the death penalty. Nothing in the said provision imposes a
requirement that for a death penalty bill to be valid, a positive
manifestation in the form of a higher incidence of crime should first be
perceived and statistically proven following the suspension of the death
penalty. Neither does the said provision require that the death penalty
be resorted to as a last recourse when all other criminal reforms have
failed to abate criminality in society. It is immaterial and irrelevant that
R.A. No. 7659 cites that there has been an "alarming upsurge of such
crimes", for the same was never intended by said law to be the yardstick
to determine the existence of compelling reasons involving heinous
crimes. Fittingly, thus, what R.A. No. 7659 states is that "the Congress,
in the interest of justice, public order and rule of law, and the need to
rationalize and harmonize the penal sanctions for heinous crimes, finds
compelling reasons to impose the death penalty for said crimes."
We now proceed to answer accused-appellant's other ground for
attacking the constitutionality of R.A. No. 7659, i.e., that the death
penalty imposed in rape is violative of the constitutional proscription
against cruel, degrading or inhuman punishment.
Accused-appellant first claims that the death penalty is per se a cruel,
degrading or inhuman punishment as ruled by the United States (U.S.)
Supreme Court in Furman v. Georgia.[41] To state, however, that the
U.S. Supreme Court, in Furman, categorically ruled that the death
penalty is a cruel, degrading or inhuman punishment, is misleading and
inaccurate.
The issue in Furman was not so much death penalty itself but the
arbitrariness pervading the procedures by which the death penalty was
imposed on the accused by the sentencing jury. Thus, the defense
theory in Furman centered not so much on the nature of the death
penalty as a criminal sanction but on the discrimination against the black
accused who is meted out the death penalty by a white jury that is given
the unconditional discretion to determine whether or not to impose the
death penalty. In fact, the long road of the American abolitionist
movement leading to the landmark case of Furman was trekked by
American civil rights advocates zealously fighting against racial
discrimination. Thus, the U.S. Supreme Court stated in Furman:
"We cannot say from facts disclosed in these records that these
defendants were sentenced to death because they were black. Yet our
task is not restricted to an effort to divine what motives impelled these
death penalties. Rather, we deal with a system of law and of justice that
leaves to the uncontrolled discretion of judges or juries the determination
whether defendants committing these crimes should die x x x.
xxx
In a Nation committed to equal protection of the laws there is no
permissible 'caste' aspect of law enforcement. Yet we know that the
discretion of judges and juries in imposing the death penalty enables the
penalty to be selectively applied, feeding prejudices against the accused
if he is poor and despised x x x.
xxx
Thus, these discretionary statutes are unconstitutional in their
operation. They are pregnant with discrimination and discrimination is
an ingredient not compatible with the idea of equal protection of the laws
that is implicit in the ban on 'cruel and unusual' punishments."
Furman, thus, did not outlaw the death penalty because it was cruel and
unusual per se. While the U.S. Supreme Court nullified all discretionary
death penalty statutes in Furman, it did so because the discretion which
these statutes vested in the trial judges and sentencing juries was
uncontrolled and without any parameters, guidelines, or standards
intended to lessen, if not altogether eliminate, the intervention of
personal biases, prejudices and discriminatory acts on the part of the
trial judges and sentencing juries.
Consequently, in the aftermath of Furman, when most of the states re-
enacted their death penalty statutes now bearing the procedural checks
that were required by the U.S. Supreme Court, said court affirmed the
constitutionality of the new death penalty statutes in the cases of Gregg
v. Georgia,[42] Jurek v. Texas,[43] and Profitt v. Florida.[44]
Next, accused-appellant asseverates that the death penalty is a cruel,
inhuman or degrading punishment for the crime of rape mainly because
the latter, unlike murder, does not involve the taking of life. In support
of his contention, accused-appellant largely relies on the ruling of the
U.S. Supreme Court in Coker v. Georgia.[45]
In Coker, the U.S. Supreme Court ruled as follows:
"x x x It is now settled that the death penalty is not invariably cruel and
unusual punishment within the meaning of the Eighth Amendment; it is
not inherently barbaric or an unacceptable mode of punishment for
crime; neither is it always disproportionate to the crime for which it is
imposed. It is also established that imposing capital punishment, at
least for murder, in accordance with the procedures provided under the
Georgia statutes saves the sentence from the infirmities which led the
Court to invalidate the prior Georgia capital punishment statute in
Furman v. Georgia x x x.
xxx
In Gregg [v. Georgia] x x x the Court's judgment was that the death
penalty for deliberate murder was neither the purposeless imposition of
severe punishment nor a punishment grossly disproportionate to the
crime. But the Court reserved the question of the constitutionality of the
death penalty when imposed for other crimes. x x x
That question, with respect to rape of an adult woman, is now before us.
xxx
x x x [T]he public judgment with respect to rape, as reflected in the
statutes providing the punishment for that crime, has been dramatically
different. In reviving death penalty laws to satisfy Furman's mandate,
none of the States that had not previously authorized death for rape
chose to include rape among capital felonies. Of the 16 States in which
rape had been a capital offense, only three provided the death penalty
for rape of an adult woman in their revised statutes -- Georgia, North
Carolina. and Louisiana. In the latter two States, the death penalty was
mandatory for those found guilty, and those laws were invalidated by
Woodson and Roberts. When Louisiana and North Carolina,
respondent to those decisions, again revised their capital punishment
laws, they reenacted the death penalty for murder but not for rape; none
of the seven other legislatures that to our knowledge have amended or
replaced their death penalty statutes since July 2, 1976, including four
States (in addition to Louisiana and North Carolina) that had authorized
the death sentence for rape prior to 1972 and had reacted to Furman
with mandatory statutes, included rape among the crimes for which
death was an authorized punishment.
xxx
It should be noted that Florida, Mississippi, and Tennessee also
authorized the death penalty in some rape cases, but only where the
victim was a child, and the rapist an adult, the Tennessee statute has
since been invalidated because the death sentence was mandatory. x x
x The upshot is that Georgia is the sole jurisdiction in the United States
at the present time that authorizes a sentence of death when the rape
victim is an adult woman, and only two other jurisdictions provide capital
punishment when the victim is a child
The current judgment with respect to the death penalty for rape is not
wholly unanimous among state legislatures, but it obviously weighs very
heavily on the side of rejecting capital punishment as a suitable penalty
for raping an adult woman.
x x x [T]he legislative rejection of capital punishment for rape strongly
confirms our own judgment, which is that death is indeed a
disproportionate penalty for the crime of raping an adult woman.
We do not discount the seriousness of rape as a crime. It is highly
reprehensible, both in a moral sense and in its almost total contempt for
the personal integrity and autonomy of the female victim and for the
latter's privilege of choosing those with whom intimate relationships are
to be established. Short of homicide, it is the 'ultimate violation of self.'
It is also a violent crime because it normally involves force, or the threat
of force or intimidation, to over come the will and the capacity of the
victim to resist. Rape is very often accompanied by physical injury to
the female and can also inflict mental and psychological
damage. Because it undermines the community's sense of security,
there is public injury as well.
Rape is without doubt deserving of serious punishment; but in terms of
moral depravity and of the injury to the person and to the public, it does
not compare with murder, which does involve the unjustified taking of
human life. Although it may be accompanied by another crime, rape by
definition does not include the death of or even the serious injury to
another person. The murderer kills; the rapist, if no more than that, does
not. Life is over for the victim of the murderer; for the rape victim, life
may not be nearly so happy as it was, but it is not over and normally is
not beyond repair. We have the abiding conviction that the death
penalty, which 'is unique in its severity and irrevocability' x x x is an
excessive penalty for the rapist who, as such, does not take human life."
The U.S. Supreme Court based its foregoing ruling on two grounds: first,
that the public has manifested its rejection of the death penalty as a
proper punishment for the crime of rape through the willful omission by
the state legislatures to include rape in their new death penalty statutes
in the aftermath of Furman; and second, that rape, while concededly a
dastardly contemptuous violation of a woman's spiritual integrity,
physical privacy, and psychological balance, does not involve the taking
of life.
Anent the first ground, we fail to see how this could have any bearing on
the Philippine experience and in the context of our own culture.
Anent the second ground, we disagree with the court's predicate that the
gauge of whether or not a crime warrants the death penalty or not, is the
attendance of the circumstance of death on the part of the victim. Such
a premise is in fact an ennobling of the biblical notion of retributive justice
of "an eye for an eye, a tooth for a tooth". We have already
demonstrated earlier in our discussion of heinous crimes that the
forfeiture of life simply because life was taken, never was a defining
essence of the death penalty in the context of our legal history and
cultural experience; rather, the death penalty is imposed in heinous
crimes because the perpetrators thereof have committed unforgivably
execrable acts that have so deeply dehumanized a person or criminal
acts with severely destructive effects on the national efforts to lift the
masses from abject poverty through organized governmental strategies
based on a disciplined and honest citizenry, and because they have so
caused irreparable and substantial injury to both their victim and the
society and a repetition of their acts would pose actual threat to the
safety of individuals and the survival of government, they must be
permanently prevented from doing so. At any rate, this court has no
doubts as to the innate heinousness of the crime of rape, as we have
held in the case of People v. Cristobal: [46]
"Rape is the forcible violation of the sexual intimacy of another person.
It does injury to justice and charity. Rape deeply wounds the respect,
freedom, and physical and moral integrity to which every person has a
right. It causes grave damage that can mark the victim for life. It is
always an intrinsically evil act xxx an outrage upon decency and dignity
that hurts not only the victim but the society itself."
We are not unaware that for all the legal posturings we have so essayed
here, at the heart of the issue of capital punishment is the wistful,
sentimental life-and-death question to which all of us, without thinking,
would answer, "life, of course, over death". But dealing with the
fundamental question of death provides a context for struggling with
even more basic questions, for to grapple with the meaning of death is,
in an indirect way, to ask the meaning of life. Otherwise put, to ask what
the rights are of the dying is to ask what the rights are of the living.
"Capital punishment ought not to be abolished solely because it is
substantially repulsive, if infinitely less repulsive than the acts which
invoke it. Yet the mounting zeal for its abolition seems to arise from a
sentimentalized hyperfastidiousness that seeks to expunge from the
society all that appears harsh and suppressive. If we are to preserve
the humane society we will have to retain sufficient strength of character
and will to do the unpleasant in order that tranquillity and civility may rule
comprehensively. It seems very likely that capital punishment is a x x x
necessary, if limited factor in that maintenance of social tranquillity and
ought to be retained on this ground. To do otherwise is to indulge in the
luxury of permitting a sense of false delicacy to reign over the necessity [21] 155 SCRA 327 [1987].
of social survival." [47]
[22] Id., p. 335.
WHEREFORE, in view of all the foregoing, the Motion for
[23] 155 SCRA 113 [1987].
Reconsideration and the Supplemental Motion for Reconsideration are
hereby DENIED[48] for LACK OF MERIT. [24] 156 SCRA 242 [1987].

SO ORDERED. [25] 165 SCRA 637 [1988].

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, [26] 170 SCRA 107 [1989].
Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr.,
Panganiban, and Torres, Jr., JJ., concur. [27] Id., p. 121.

[28]Journal, Senate, February 15, 1993, Vol. 2, p. 1246.

[29] Record, Senate, March 17, 1993, Vol. IV, p. 77.

[30] Id., May 18, 1993, Vol. IV, p. 596.

[1] 249 SCRA 303, 307-308.

[31] Record, Senate, March 18, 1993, Vol. IV, pp. 106-112.

[2] See Amigo v. Court of Appeals, 253 SCRA 382, 390 [1996]; De
Leon v. Court of Appeals, 245 SCRA 166, 172 [1995].
[3] RTC Decision, p. 3; Rollo, p. 19.
[4] G.R. No. 108871 promulgated on November 19, 1996.
[5] People v. Pimentel, 118 SCRA 695 [1982];
People v. Manigbas, 109 Phil. 469 [1960].
[6] Greenhills Airconditioning and Services, Inc. v. National Labor
Relations Commission, 245 SCRA 384, 389 [1995]; Arambulo v. Court
of Appeals, 226 SCRA 589, 601 [1993]; Que v. Court of Appeals, 101
SCRA 13 [1980].
[7] Suarez v. Court of Appeals, 220 SCRA 274, 279-280 [1993].
[32] Journal, February 10 & 11, 1993, Vol. II, p.1223.
[33] Journal, Senate, March 22, 1993, Vol. II, pp.1574-1575.
[34] Record, Senate, May 11, 1993, Vol. IV, pp. 500-501.
[35] Journal, Senate, February 2, 1993, Vol. II, p. 1161.
citing
[36] Record, House of Representatives, Vol. III, November 9, 1992,
pp.417-418.
[37] Record, House of Representatives, Vol. III, November 9, 1992,
pp.419-20.
[38] Record, House of Representatives, Vol. V, February 23, 1993, p.
98.

[8] 81 Phil. 741 [1948]. [39] People v. Simon, 234 SCRA 555 [1994]; People v. Timple, 237
SCRA 52 [1994].
[9] 88 Phil. 36 [1951].
[40] 251 SCRA 293 [1995].
[10] 115 SCRA 688 [1982].
[41] 408 US 238, 33 L Ed 2d 346, 92 S Ct. 2726.
[11] 133 SCRA 1 [1984].
[42] 428 US 153 49 L Ed 2d 859, 96 S Ct 2909.
[12] 147 SCRA 204 [1987].
[43] 428 US 262, 49 L Ed 2d 929, 96 S Ct 2950.
[13] 81 Phil. 741, 747 [1948].
[44] 428 US 242, 49 L Ed 2d 913, 96 S Ct 2960.
[14] 88 Phil. 36, 43 [1951].
[45] 433 US 584, 53 L Ed 2d 982, 97 S Ct 286.
[15] 249 SCRA 246, 253 [1995].
[46] G.R. No. 116279, promulgated on January 29, 1996.
[16] Record, CONCOM, July 17, 1986, Vol. I, p.676.
[47] Donald Atwell Zoll, "A Wistful Goodbye to Capital
[17] Id., p. 678.
Punishment," National Review, December 3, 1971, pp.1351-1354.

[18] Id., p. 680.

[48] Three members of the Court voted to declare RA. 7659

[19] Record, CONCOM, July 17, 1986, Vol. I, p.712. unconstitutional insofar as it reimposes the death penalty. Two of them
wrote Separate Opinions, which are attached as annexes hereto,
[20] Id., p. 744. without indicating the names of the authors consistent with the Court's
policy that, in death cases, ponentes of opinions whether majority or
minority are not to be indicated.

Republic of the Philippines

SUPREME COURT
Baguio City

EN BANC

G.R. No. 180016 April 29, 2014

LITO CORPUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

This is to resolve the Petition for Review on Certiorari, under Rule 45 of

the Rules of Court, dated November 5, 2007, of petitioner Lito Corpuz
(petitioner), seeking to reverse and set aside the Decision1 dated March
22, 2007 and Resolution2 dated September 5, 2007 of the Court of
Appeals (CA), which affirmed with modification the Decision3 dated July
30, 2004 of the Regional Trial Court (RTC), Branch 46, San Fernando
City, finding the petitioner guilty beyond reasonable doubt of the crime
of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the
Revised Penal Code.

The antecedent facts follow.

Private complainant Danilo Tangcoy and petitioner met at the Admiral
Royale Casino in Olongapo City sometime in 1990. Private complainant
was then engaged in the business of lending money to casino players
and, upon hearing that the former had some pieces of jewelry for sale,
petitioner approached him on May 2, 1991 at the same casino and
offered to sell the said pieces of jewelry on commission basis. Private
complainant agreed, and as a consequence, he turned over to petitioner
the following items: an 18k diamond ring for men; a woman's bracelet;
one (1) men's necklace and another men's bracelet, with an aggregate
value of P98,000.00, as evidenced by a receipt of even date. They both
agreed that petitioner shall remit the proceeds of the sale, and/or, if
unsold, to return the same items, within a period of 60 days. The period
expired without petitioner remitting the proceeds of the sale or returning
the pieces of jewelry. When private complainant was able to meet
petitioner, the latter promised the former that he will pay the value of the
said items entrusted to him, but to no avail.
Thus, an Information was filed against petitioner for the crime of estafa,
which reads as follows:
That on or about the fifth (5th) day of July 1991, in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, after having received from one Danilo Tangcoy,
one (1) men's diamond ring, 18k, worth P45,000.00; one (1) three-baht
men's bracelet, 22k, worth P25,000.00; one (1) two-baht ladies'
bracelet, 22k, worth P12,000.00, or in the total amount of Ninety-Eight
Thousand Pesos (P98,000.00), Philippine currency, under expressed
obligation on the part of said accused to remit the proceeds of the sale
of the said items or to return the same, if not sold, said accused, once in
possession of the said items, with intent to defraud, and with
unfaithfulness and abuse of confidence, and far from complying with his
aforestated obligation, did then and there wilfully, unlawfully and
feloniously misappropriate, misapply and convert to his own personal
use and benefit the aforesaid jewelries (sic) or the proceeds of the sale
thereof, and despite repeated demands, the accused failed and refused
to return the said items or to remit the amount of Ninety- Eight Thousand
Pesos (P98,000.00), Philippine currency, to the damage and prejudice
of said Danilo Tangcoy in the aforementioned amount.
CONTRARY TO LAW.
On January 28, 1992, petitioner, with the assistance of his counsel,
entered a plea of not guilty. Thereafter, trial on the merits ensued.
The prosecution, to prove the above-stated facts, presented the lone
testimony of Danilo Tangcoy. On the other hand, the defense presented
the lone testimony of petitioner, which can be summarized, as follows:
Petitioner and private complainant were collecting agents of Antonio
Balajadia, who is engaged in the financing business of extending loans
to Base employees. For every collection made, they earn a commission.
Petitioner denied having transacted any business with private
complainant.
However, he admitted obtaining a loan from Balajadia sometime in 1989
for which he was made to sign a blank receipt. He claimed that the same
receipt was then dated May 2, 1991 and used as evidence against him
for the supposed agreement to sell the subject pieces of jewelry, which
he did not even see.
After trial, the RTC found petitioner guilty beyond reasonable doubt of
the crime charged in the Information. The dispositive portion of the
decision states:
WHEREFORE, finding accused LITO CORPUZ GUILTY beyond
reasonable doubt of the felony of Estafa under Article 315, paragraph
one (1), subparagraph (b) of the Revised Penal Code;
there being no offsetting generic aggravating nor ordinary mitigating
circumstance/s to vary the penalty imposable;
accordingly, the accused is hereby sentenced to suffer the penalty of
deprivation of liberty consisting of an imprisonment under the
Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2)
MONTHS of Prision Correccional in its medium period AS MINIMUM, to
FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of Reclusion
Temporal in its minimum period AS MAXIMUM; to indemnify private
complainant Danilo Tangcoy the amount of P98,000.00 as actual
damages, and to pay the costs of suit.
SO ORDERED.
The case was elevated to the CA, however, the latter denied the appeal
of petitioner and affirmed the decision of the RTC, thus:
WHEREFORE, the instant appeal is DENIED. The assailed Judgment
dated July 30, 2004 of the RTC of San Fernando City (P), Branch 46, is
hereby AFFIRMED with MODIFICATION on the imposable prison term,
such that accused-appellant shall suffer the indeterminate penalty of 4
years and 2 months of prision correccional, as minimum, to 8 years of
prision mayor, as maximum, plus 1 year for each additional P10,000.00,
or a total of 7 years. The rest of the decision stands.
SO ORDERED.
Petitioner, after the CA denied his motion for reconsideration, filed with
this Court the present petition stating the following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING
THE ADMISSION AND APPRECIATION BY THE LOWER COURT OF
PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS, WHICH ARE
MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE
RULE;
B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
THE LOWER COURT'S FINDING THAT THE CRIMINAL
INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE
ALTHOUGH THE SAME DID NOT CHARGE THE OFFENSE UNDER
ARTICLE 315 (1) (B) OF THE REVISED PENAL CODE IN THAT -
1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE
SUBJECT [PIECES OF] JEWELRY SHOULD BE RETURNED, IF
UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD;
2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN
THE INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY
DIFFERENT FROM THE ONE TESTIFIED TO BY THE PRIVATE
COMPLAINANT WHICH WAS 02 MAY 1991;
C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
THE LOWER COURT'S FINDING THAT DEMAND TO RETURN THE
SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE
PROCEEDS, IF SOLD AN ELEMENT OF THE OFFENSE WAS
PROVED;
D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
THE LOWER COURT'S FINDING THAT THE PROSECUTION'S CASE
WAS PROVEN BEYOND REASONABLE DOUBT ALTHOUGH -
1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS
OF THE INCIDENT;
2. THE VERSION OF THE PETITIONER ACCUSED IS MORE
STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH HUMAN
EXPERIENCE;
3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND
APPLIED TO THIS CASE;
4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE
STATE.
In its Comment dated May 5, 2008, the Office of the Solicitor General
(OSG) stated the following counter-arguments:
The exhibits were properly admitted inasmuch as petitioner failed to
object to their admissibility.
The information was not defective inasmuch as it sufficiently established
the designation of the offense and the acts complained of.
The prosecution sufficiently established all the elements of the crime
charged.
This Court finds the present petition devoid of any merit.
The factual findings of the appellate court generally are conclusive, and
carry even more weight when said court affirms the findings of the trial
court, absent any showing that the findings are totally devoid of support
in the records, or that they are so glaringly erroneous as to constitute
grave abuse of discretion.4 Petitioner is of the opinion that the CA erred
in affirming the factual findings of the trial court. He now comes to this
Court raising both procedural and substantive issues.
According to petitioner, the CA erred in affirming the ruling of the trial
court, admitting in evidence a receipt dated May 2, 1991 marked as
Exhibit "A" and its submarkings, although the same was merely a
photocopy, thus, violating the best evidence rule. However, the records
show that petitioner never objected to the admissibility of the said
evidence at the time it was identified, marked and testified upon in court
by private complainant. The CA also correctly pointed out that petitioner
also failed to raise an objection in his Comment to the prosecution's
formal offer of evidence and even admitted having signed the said
receipt. The established doctrine is that when a party failed to interpose
a timely objection to evidence at the time they were offered in evidence,
such objection shall be considered as waived.5
Another procedural issue raised is, as claimed by petitioner, the formally
defective Information filed against him. He contends that the Information
does not contain the period when the pieces of jewelry were supposed
to be returned and that the date when the crime occurred was different
from the one testified to by private complainant. This argument is
untenable. The CA did not err in finding that the Information was
substantially complete and in reiterating that objections as to the matters
of form and substance in the Information cannot be made for the first
time on appeal. It is true that the gravamen of the crime of estafa under
Article 315, paragraph 1, subparagraph (b) of the RPC is the
appropriation or conversion of money or property received to the
prejudice of the owner6 and that the time of occurrence is not a material
ingredient of the crime, hence, the exclusion of the period and the wrong
date of the occurrence of the crime, as reflected in the Information, do
not make the latter fatally defective. The CA ruled:
x x x An information is legally viable as long as it distinctly states the
statutory designation of the offense and the acts or omissions
constitutive thereof. Then Section 6, Rule 110 of the Rules of Court
provides that 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. In the case at bar, a reading
of the subject Information shows compliance with the foregoing rule.
That the time of the commission of the offense was stated as " on or
about the fifth (5th) day of July, 1991" is not likewise fatal to the
prosecution's cause considering that Section 11 of the same Rule
requires a statement of the precise time only when the same is a
material ingredient of the offense. The gravamen of the crime of estafa
under Article 315, paragraph 1 (b) of the Revised Penal Code (RPC) is
the appropriation or conversion of money or property received to the
prejudice of the offender. Thus, aside from the fact that the date of the
commission thereof is not an essential element of the crime herein
charged, the failure of the prosecution to specify the exact date does not
render the Information ipso facto defective. Moreover, the said date is
also near the due date within which accused-appellant should have
delivered the proceeds or returned the said [pieces of jewelry] as
testified upon by Tangkoy, hence, there was sufficient compliance with
the rules. Accused-appellant, therefore, cannot now be allowed to claim
that he was not properly apprised of the charges proferred against him.7
It must be remembered that petitioner was convicted of the crime of a No, sir.
Estafa under Article 315, paragraph 1 (b) of the RPC, which reads:
q Were you able to talk to him since 5 July 1991?
ART. 315. Swindling (estafa). Any person who shall defraud another
a I talked to him, sir.
by any of the means mentioned hereinbelow.
q How many times?
1. With unfaithfulness or abuse of confidence, namely:

a Two times, sir.

xxxx
q What did you talk (sic) to him?
(b) By misappropriating or converting, to the prejudice of another,
money, goods, or any other personal property received by the offender a About the items I gave to (sic) him, sir.
in trust or on commission, or for administration, or under any other
obligation involving the duty to make delivery of or to return the same, q Referring to Exhibit A-2?

even though such obligation be totally or partially guaranteed by a bond;

a Yes, sir, and according to him he will take his obligation and I asked
or by denying having received such money, goods, or other property; x
him where the items are and he promised me that he will pay these
xx
amount, sir.

The elements of estafa with abuse of confidence are as follows: (a) that
q Up to this time that you were here, were you able to collect from him
money, goods or other personal property is received by the offender in
partially or full?
trust, or on commission, or for administration, or under any other
obligation involving the duty to make delivery of, or to return the same; a No, sir.9
(b) that there be misappropriation or conversion of such money or
No specific type of proof is required to show that there was
property by the offender or denial on his part of such receipt; (c) that
demand.10 Demand need not even be formal; it may be verbal.11 The
such misappropriation or conversion or denial is to the prejudice of
specific word "demand" need not even be used to show that it has
another; and (d) that there is a demand made by the offended party on
indeed been made upon the person charged, since even a mere query
the offender.8
as to the whereabouts of the money [in this case, property], would be
Petitioner argues that the last element, which is, that there is a demand tantamount to a demand.12 As expounded in Asejo v. People:13
by the offended party on the offender, was not proved. This Court
With regard to the necessity of demand, we agree with the CA that
disagrees. In his testimony, private complainant narrated how he was
demand under this kind of estafa need not be formal or written. The
able to locate petitioner after almost two (2) months from the time he
appellate court observed that the law is silent with regard to the form of
gave the pieces of jewelry and asked petitioner about the same items
demand in estafa under Art. 315 1(b), thus:
with the latter promising to pay them. Thus:
When the law does not qualify, We should not qualify. Should a written
PROS. MARTINEZ
demand be necessary, the law would have stated so. Otherwise, the
q Now, Mr. Witness, this was executed on 2 May 1991, and this word "demand" should be interpreted in its general meaning as to
transaction could have been finished on 5 July 1991, the question is include both written and oral demand. Thus, the failure of the
what happens (sic) when the deadline came? prosecution to present a written demand as evidence is not fatal.

a I went looking for him, sir. In Tubb v. People, where the complainant merely verbally inquired about
the money entrusted to the accused, we held that the query was
q For whom?
tantamount to a demand, thus:

a Lito Corpuz, sir.

x x x [T]he law does not require a demand as a condition precedent to

q Were you able to look (sic) for him? the existence of the crime of embezzlement. It so happens only that
failure to account, upon demand for funds or property held in trust, is
a I looked for him for a week, sir. circumstantial evidence of misappropriation. The same way, however,
be established by other proof, such as that introduced in the case at
q Did you know his residence?
bar.14
a Yes, sir.
In view of the foregoing and based on the records, the prosecution was
q Did you go there? able to prove the existence of all the elements of the crime. Private
complainant gave petitioner the pieces of jewelry in trust, or on
a Yes, sir.
commission basis, as shown in the receipt dated May 2, 1991 with an

q Did you find him? obligation to sell or return the same within sixty (60) days, if unsold.
There was misappropriation when petitioner failed to remit the proceeds
of those pieces of jewelry sold, or if no sale took place, failed to return
the same pieces of jewelry within or after the agreed period despite
demand from the private complainant, to the prejudice of the latter.
Anent the credibility of the prosecution's sole witness, which is
questioned by petitioner, the same is unmeritorious. Settled is the rule
that in assessing the credibility of witnesses, this Court gives great
respect to the evaluation of the trial court for it had the unique
opportunity to observe the demeanor of witnesses and their deportment
on the witness stand, an opportunity denied the appellate courts, which
merely rely on the records of the case.15 The assessment by the trial
court is even conclusive and binding if not tainted with arbitrariness or
oversight of some fact or circumstance of weight and influence,
especially when such finding is affirmed by the CA.16 Truth is
established not by the number of witnesses, but by the quality of their
testimonies, for in determining the value and credibility of evidence, the
witnesses are to be weighed not numbered.17
As regards the penalty, while this Court's Third Division was deliberating
on this case, the question of the continued validity of imposing on
persons convicted of crimes involving property came up. The legislature
apparently pegged these penalties to the value of the money and
property in 1930 when it enacted the Revised Penal Code. Since the
members of the division reached no unanimity on this question and since
the issues are of first impression, they decided to refer the case to the
Court en banc for consideration and resolution. Thus, several amici
curiae were invited at the behest of the Court to give their academic
opinions on the matter. Among those that graciously complied were
Dean Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor
Alfredo F. Tadiar, the Senate President, and the Speaker of the House
of Representatives. The parties were later heard on oral arguments
before the Court en banc, with Atty. Mario L. Bautista appearing as
counsel de oficio of the petitioner.
After a thorough consideration of the arguments presented on the
matter, this Court finds the following:
There seems to be a perceived injustice brought about by the range of
penalties that the courts continue to impose on crimes against property
committed today, based on the amount of damage measured by the
value of money eighty years ago in 1932. However, this Court cannot
modify the said range of penalties because that would constitute judicial
legislation. What the legislature's perceived failure in amending the
penalties provided for in the said crimes cannot be remedied through
this Court's decisions, as that would be encroaching upon the power of
another branch of the government. This, however, does not render the
whole situation without any remedy. It can be appropriately presumed
that the framers of the Revised Penal Code (RPC) had anticipated this
matter by including Article 5, which reads:
ART. 5. Duty of the court in connection with acts which should be
repressed but which are not covered by the law, and in cases of
excessive penalties. - Whenever a court has knowledge of any act which
it may deem proper to repress and which is not punishable by law, it
shall render the proper decision, and shall report to the Chief Executive,
through the Department of Justice, the reasons which induce the court
to believe that said act should be made the subject of penal legislation.
In the same way, the court shall submit to the Chief Executive, through
the Department of Justice, such statement as may be deemed proper,
without suspending the execution of the sentence, when a strict
enforcement of the provisions of this Code would result in the imposition
of a clearly excessive penalty, taking into consideration the degree of
malice and the injury caused by the offense.18
The first paragraph of the above provision clearly states that for acts
bourne out of a case which is not punishable by law and the court finds
it proper to repress, the remedy is to render the proper decision and
thereafter, report to the Chief Executive, through the Department of
Justice, the reasons why the same act should be the subject of penal
legislation. The premise here is that a deplorable act is present but is
not the subject of any penal legislation, thus, the court is tasked to inform
the Chief Executive of the need to make that act punishable by law
through legislation. The second paragraph is similar to the first except
for the situation wherein the act is already punishable by law but the
corresponding penalty is deemed by the court as excessive. The remedy
therefore, as in the first paragraph is not to suspend the execution of the
sentence but to submit to the Chief Executive the reasons why the court
considers the said penalty to be non-commensurate with the act
committed. Again, the court is tasked to inform the Chief Executive, this
time, of the need for a legislation to provide the proper penalty.
In his book, Commentaries on the Revised Penal Code,19 Guillermo B.
Guevara opined that in Article 5, the duty of the court is merely to report
to the Chief Executive, with a recommendation for an amendment or
modification of the legal provisions which it believes to be harsh. Thus:
This provision is based under the legal maxim "nullum crimen, nulla
poena sige lege," that is, that there can exist no punishable act except
those previously and specifically provided for by penal statute.
No matter how reprehensible an act is, if the law-making body does not
deem it necessary to prohibit its perpetration with penal sanction, the
Court of justice will be entirely powerless to punish such act.
Under the provisions of this article the Court cannot suspend the
execution of a sentence on the ground that the strict enforcement of the
provisions of this Code would cause excessive or harsh penalty. All that
the Court could do in such eventuality is to report the matter to the Chief
Executive with a recommendation for an amendment or modification of
the legal provisions which it believes to be harsh.20
Anent the non-suspension of the execution of the sentence, retired Chief
Justice Ramon C. Aquino and retired Associate Justice Carolina C.
Grio-Aquino, in their book, The Revised Penal Code,21 echoed the
above-cited commentary, thus:
The second paragraph of Art. 5 is an application of the humanitarian
principle that justice must be tempered with mercy. Generally, the courts
have nothing to do with the wisdom or justness of the penalties fixed by
law. "Whether or not the penalties prescribed by law upon conviction of
violations of particular statutes are too severe or are not severe enough,
are questions as to which commentators on the law may fairly differ; but
it is the duty of the courts to enforce the will of the legislator in all cases
unless it clearly appears that a given penalty falls within the prohibited
class of excessive fines or cruel and unusual punishment." A petition for
clemency should be addressed to the Chief Executive.22
There is an opinion that the penalties provided for in crimes against
property be based on the current inflation rate or at the ratio of P1.00 is
equal to P100.00 . However, it would be dangerous as this would result
in uncertainties, as opposed to the definite imposition of the penalties. It
must be remembered that the economy fluctuates and if the proposed
imposition of the penalties in crimes against property be adopted, the
penalties will not cease to change, thus, making the RPC, a self-
amending law. Had the framers of the RPC intended that to be so, it
should have provided the same, instead, it included the earlier cited
Article 5 as a remedy. It is also improper to presume why the present
legislature has not made any moves to amend the subject penalties in
order to conform with the present times. For all we know, the legislature
intends to retain the same penalties in order to deter the further
commission of those punishable acts which have increased
tremendously through the years. In fact, in recent moves of the
legislature, it is apparent that it aims to broaden the coverage of those
who violate penal laws. In the crime of Plunder, from its original minimum
amount of P100,000,000.00 plundered, the legislature lowered it
to P50,000,000.00. In the same way, the legislature lowered the
threshold amount upon which the Anti-Money Laundering Act may
apply, from P1,000,000.00 to P500,000.00.
It is also worth noting that in the crimes of Theft and Estafa, the present
penalties do not seem to be excessive compared to the proposed
imposition of their corresponding penalties. In Theft, the provisions state
that:
Art. 309. Penalties. Any person guilty of theft shall be punished by:
1. The penalty of prision mayor in its minimum and medium periods, if
the value of the thing stolen is more than 12,000 pesos but does not
exceed 22,000 pesos, but if the value of the thing stolen exceeds the
latter amount the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each additional ten
thousand pesos, but the total of the penalty which may be imposed shall
not exceed twenty years. In such cases, and in connection with the
accessory penalties which may be imposed and for the purpose of the
other provisions of this Code, the penalty shall be termed prision mayor
or reclusion temporal, as the case may be.
2. The penalty of prision correccional in its medium and maximum
periods, if the value of the thing stolen is more than 6,000 pesos but
does not exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and medium
periods, if the value of the property stolen is more than 200 pesos but
does not exceed 6,000 pesos.
4. Arresto mayor in its medium period to prision correccional in its
minimum period, if the value of the property stolen is over 50 pesos but
does not exceed 200 pesos.
5. Arresto mayor to its full extent, if such value is over 5 pesos but does
not exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods, if such value does
not exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is
committed under the circumstances enumerated in paragraph 3 of the
next preceding article and the value of the thing stolen does not exceed
5 pesos. If such value exceeds said amount, the provision of any of the
five preceding subdivisions shall be made applicable.
8. Arresto menor in its minimum period or a fine not exceeding 50 pesos,
when the value of the thing stolen is not over 5 pesos, and the offender
shall have acted under the impulse of hunger, poverty, or the difficulty
of earning a livelihood for the support of himself or his family.
In a case wherein the value of the thing stolen is P6,000.00, the above-
provision states that the penalty is prision correccional in its minimum
and medium periods (6 months and 1 day to 4 years and 2 months).
Applying the proposal, if the value of the thing stolen is P6,000.00, the
penalty is imprisonment of arresto mayor in its medium period to prision
correccional minimum period (2 months and 1 day to 2 years and 4
months). It would seem that under the present law, the penalty imposed
is almost the same as the penalty proposed. In fact, after the application
of the Indeterminate Sentence Law under the existing law, the minimum
penalty is still lowered by one degree; hence, the minimum penalty is
arresto mayor in its medium period to maximum period (2 months and 1
day to 6 months), making the offender qualified for pardon or parole after
serving the said minimum period and may even apply for probation.
Moreover, under the proposal, the minimum penalty after applying the
Indeterminate Sentence Law is arresto menor in its maximum period to
arresto mayor in its minimum period (21 days to 2 months) is not too far
from the minimum period under the existing law. Thus, it would seem
that the present penalty imposed under the law is not at all excessive.
The same is also true in the crime of Estafa.23
Moreover, if we apply the ratio of 1:100, as suggested to the value of the
thing stolen in the crime of Theft and the damage caused in the crime of
Estafa, the gap between the minimum and the maximum amounts,
which is the basis of determining the proper penalty to be imposed,
would be too wide and the penalty imposable would no longer be
commensurate to the act committed and the value of the thing stolen or
the damage caused:
I. Article 309, or the penalties for the crime of Theft, the value would be
modified but the penalties are not changed:
1. P12,000.00 to P22,000.00 will become P1,200,000.00 According to Dean Diokno, the Incremental Penalty Rule (IPR) does not
to P2,200,000.00, punished by prision mayor minimum to prision mayor rest on substantial distinctions as P10,000.00 may have been
medium (6 years and 1 day to 10 years). substantial in the past, but it is not so today, which violates the first
requisite; the IPR was devised so that those who commit estafa involving
2. P6,000.00 to P12,000.00 will become P600,000.00
higher amounts would receive heavier penalties; however, this is no
to P1,200,000.00, punished by prision correccional medium and to
longer achieved, because a person who steals P142,000.00 would
prision correccional maximum (2 years, 4 months and 1 day to 6
receive the same penalty as someone who steals hundreds of millions,
years).24
which violates the second requisite; and, the IPR violates requisite no.
3. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, 3, considering that the IPR is limited to existing conditions at the time
punishable by prision correccional minimum to prision correccional the law was promulgated, conditions that no longer exist today.
medium (6 months and 1 day to 4 years and 2 months).
Assuming that the Court submits to the argument of Dean Diokno and
4. P50.00 to P200.00 will become P5,000.00 to P20,000.00, punishable declares the incremental penalty in Article 315 unconstitutional for
by arresto mayor medium to prision correccional minimum (2 months violating the equal protection clause, what then is the penalty that should
and 1 day to 2 years and 4 months). be applied in case the amount of the thing subject matter of the crime
exceeds P22,000.00? It seems that the proposition poses more
5. P5.00 to P50.00 will become P500.00 to P5,000.00, punishable by questions than answers, which leads us even more to conclude that the
arresto mayor (1 month and 1 day to 6 months). appropriate remedy is to refer these matters to Congress for them to
exercise their inherent power to legislate laws.
6. P5.00 will become P500.00, punishable by arresto mayor minimum to
arresto mayor medium. Even Dean Diokno was of the opinion that if the Court declares the IPR
unconstitutional, the remedy is to go to Congress. Thus:
x x x x.

xxxx
II. Article 315, or the penalties for the crime of Estafa, the value would
also be modified but the penalties are not changed, as follows: JUSTICE PERALTA:

1st. P12,000.00 to P22,000.00, will become P1,200,000.00 Now, your position is to declare that the incremental penalty should be
to P2,200,000.00, punishable by prision correccional maximum to struck down as unconstitutional because it is absurd.
prision mayor minimum (4 years, 2 months and 1 day to 8 years).25
DEAN DIOKNO:
2nd. P6,000.00 to P12,000.00 will become P600,000.00
to P1,200,000.00, punishable by prision correccional minimum to prision Absurd, it violates equal protection, Your Honor, and cruel and unusual
correccional medium (6 months and 1 day to 4 years and 2 months).26 punishment.

3rd. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, JUSTICE PERALTA:

punishable by arresto mayor maximum to prision correccional minimum
Then what will be the penalty that we are going to impose if the amount
(4 months and 1 day to 2 years and 4 months).
is more than Twenty-Two Thousand (P22,000.00) Pesos.
4th. P200.00 will become P20,000.00, punishable by arresto mayor
DEAN DIOKNO:
maximum (4 months and 1 day to 6 months).
Well, that would be for Congress to ... if this Court will declare the
An argument raised by Dean Jose Manuel I. Diokno, one of our
incremental penalty rule unconstitutional, then that would ... the void
esteemed amici curiae, is that the incremental penalty provided under
should be filled by Congress.
Article 315 of the RPC violates the Equal Protection Clause.
JUSTICE PERALTA:
The equal protection clause requires equality among equals, which is
determined according to a valid classification. The test developed by But in your presentation, you were fixing the amount at One Hundred
jurisprudence here and yonder is that of reasonableness,27 which has Thousand (P100,000.00) Pesos ...
four requisites:
DEAN DIOKNO:
(1) The classification rests on substantial distinctions;
Well, my presen ... (interrupted)
(2) It is germane to the purposes of the law;
JUSTICE PERALTA:
(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.28

For every One Hundred Thousand (P100,000.00) Pesos in excess of DEAN DIOKNO:
Twenty-Two Thousand (P22,000.00) Pesos you were suggesting an
Yes, Your Honor.
additional penalty of one (1) year, did I get you right?
JUSTICE PERALTA:
DEAN DIOKNO:
That will be equivalent to the incremental penalty of one (1) year in
Yes, Your Honor, that is, if the court will take the route of statutory
excess of Twenty-Two Thousand (P22,000.00) Pesos.
interpretation.

DEAN DIOKNO:
JUSTICE PERALTA:
Yes, Your Honor.
Ah ...
JUSTICE PERALTA:
DEAN DIOKNO:
The amount in excess of Twenty-Two Thousand (P22,000.00) Pesos.
If the Court will say that they can go beyond the literal wording of the
law... Thank you, Dean.

JUSTICE PERALTA: DEAN DIOKNO:

But if we de ... (interrupted) Thank you.

DEAN DIOKNO: x x x x29

....then.... Dean Diokno also contends that Article 315 of the Revised Penal Code
constitutes cruel and unusual punishment. Citing Solem v.
JUSTICE PERALTA:
Helm,30 Dean Diokno avers that the United States Federal Supreme
Ah, yeah. But if we declare the incremental penalty as unsconstitutional, Court has expanded the application of a similar Constitutional provision
the court cannot fix the amount ... prohibiting cruel and unusual punishment, to the duration of the penalty,
and not just its form. The court therein ruled that three things must be
DEAN DIOKNO:
done to decide whether a sentence is proportional to a specific crime,
No, Your Honor. viz.; (1) Compare the nature and gravity of the offense, and the
harshness of the penalty; (2) Compare the sentences imposed on other
JUSTICE PERALTA: criminals in the same jurisdiction, i.e., whether more serious crimes are
subject to the same penalty or to less serious penalties; and (3)
... as the equivalent of one, as an incremental penalty in excess of
Compare the sentences imposed for commission of the same crime in
Twenty-Two Thousand (P22,000.00) Pesos.
other jurisdictions.
DEAN DIOKNO:
However, the case of Solem v. Helm cannot be applied in the present
No, Your Honor. case, because in Solem what respondent therein deemed cruel was the
penalty imposed by the state court of South Dakota after it took into
JUSTICE PERALTA:
account the latters recidivist statute and not the original penalty for
The Court cannot do that. uttering a "no account" check. Normally, the maximum punishment for
the crime would have been five years imprisonment and a $5,000.00
DEAN DIOKNO:
fine. Nonetheless, respondent was sentenced to life imprisonment

Could not be. without the possibility of parole under South Dakotas recidivist statute
because of his six prior felony convictions. Surely, the factual
JUSTICE PERALTA: antecedents of Solem are different from the present controversy.

The only remedy is to go to Congress... With respect to the crime of Qualified Theft, however, it is true that the
imposable penalty for the offense is high. Nevertheless, the rationale for
DEAN DIOKNO:
the imposition of a higher penalty against a domestic servant is the fact
Yes, Your Honor. that in the commission of the crime, the helper will essentially gravely
abuse the trust and confidence reposed upon her by her employer. After
JUSTICE PERALTA:
accepting and allowing the helper to be a member of the household, thus
... and determine the value or the amount. entrusting upon such person the protection and safekeeping of the
employers loved ones and properties, a subsequent betrayal of that
trust is so repulsive as to warrant the necessity of imposing a higher
penalty to deter the commission of such wrongful acts.
There are other crimes where the penalty of fine and/or imprisonment
are dependent on the subject matter of the crime and which, by adopting
the proposal, may create serious implications. For example, in the crime
of Malversation, the penalty imposed depends on the amount of the
money malversed by the public official, thus:
Art. 217. Malversation of public funds or property; Presumption of
malversation. Any public officer who, by reason of the duties of his
office, is accountable for public funds or property, shall appropriate the
same or shall take or misappropriate or shall consent, through
abandonment or negligence, shall permit any other person to take such
public funds, or property, wholly or partially, or shall otherwise be guilty
of the misappropriation or malversation of such funds or property, shall
suffer:
1. The penalty of prision correccional in its medium and maximum
periods, if the amount involved in the misappropriation or malversation
does not exceed two hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods, if
the amount involved is more than two hundred pesos but does not
exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion
temporal in its minimum period, if the amount involved is more than six
thousand pesos but is less than twelve thousand pesos.
4. The penalty of reclusion temporal, in its medium and maximum
periods, if the amount involved is more than twelve thousand pesos but
is less than twenty-two thousand pesos. If the amount exceeds the latter,
the penalty shall be reclusion temporal in its maximum period to
reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty
of perpetual special disqualification and a fine equal to the amount of the
funds malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds
or property with which he is chargeable, upon demand by any duly
authorized officer, shall be prima facie evidence that he has put such
missing funds or property to personal use.
The above-provisions contemplate a situation wherein the Government
loses money due to the unlawful acts of the offender. Thus, following the
proposal, if the amount malversed is P200.00 (under the existing law),
the amount now becomes P20,000.00 and the penalty is prision
correccional in its medium and maximum periods (2 years 4 months and
1 day to 6 years). The penalty may not be commensurate to the act of
embezzlement of P20,000.00 compared to the acts committed by public
officials punishable by a special law, i.e., Republic Act No. 3019 or the
Anti-Graft and Corrupt Practices Act, specifically Section 3,31 wherein
the injury caused to the government is not generally defined by any
monetary amount, the penalty (6 years and 1 month to 15
years)32 under the Anti-Graft Law will now become higher. This should
not be the case, because in the crime of malversation, the public official
takes advantage of his public position to embezzle the fund or property
of the government entrusted to him.
The said inequity is also apparent in the crime of Robbery with force
upon things (inhabited or uninhabited) where the value of the thing
unlawfully taken and the act of unlawful entry are the bases of the
penalty imposable, and also, in Malicious Mischief, where the penalty of
imprisonment or fine is dependent on the cost of the damage caused.
In Robbery with force upon things (inhabited or uninhabited), if we
increase the value of the thing unlawfully taken, as proposed in the
ponencia, the sole basis of the penalty will now be the value of the thing
unlawfully taken and no longer the element of force employed in entering
the premises. It may likewise cause an inequity between the crime of
Qualified Trespass to Dwelling under Article 280, and this kind of
robbery because the former is punishable by prision correccional in its
medium and maximum periods (2 years, 4 months and 1 day to 6 years)
and a fine not exceeding P1,000.00 (P100,000.00 now if the ratio is
1:100) where entrance to the premises is with violence or intimidation,
which is the main justification of the penalty. Whereas in the crime of
Robbery with force upon things, it is punished with a penalty of prision
mayor (6 years and 1 day to 12 years) if the intruder is unarmed without
the penalty of Fine despite the fact that it is not merely the illegal entry
that is the basis of the penalty but likewise the unlawful taking.
Furthermore, in the crime of Other Mischiefs under Article 329, the
highest penalty that can be imposed is arresto mayor in its medium and
maximum periods (2 months and 1 day to 6 months) if the value of the
damage caused exceeds P1,000.00, but under the proposal, the value
of the damage will now become P100,000.00 (1:100), and still
punishable by arresto mayor (1 month and 1 day to 6 months). And, if
the value of the damaged property does not exceed P200.00, the
penalty is arresto menor or a fine of not less than the value of the
damage caused and not more than P200.00, if the amount involved
does not exceed P200.00 or cannot be estimated. Under the
proposal, P200.00 will now become P20,000.00, which simply means
that the fine of P200.00 under the existing law will now
become P20,000.00. The amount of Fine under this situation will now
become excessive and afflictive in nature despite the fact that the
offense is categorized as a light felony penalized with a light penalty
under Article 26 of the RPC.33 Unless we also amend Article 26 of the
RPC, there will be grave implications on the penalty of Fine, but
changing the same through Court decision, either expressly or impliedly,
may not be legally and constitutionally feasible.
There are other crimes against property and swindling in the RPC that
may also be affected by the proposal, such as those that impose
imprisonment and/or Fine as a penalty based on the value of the
damage caused, to wit: Article 311 (Theft of the property of the National
Library and National Museum), Article 312 (Occupation of real property
or usurpation of real rights in property), Article 313 (Altering boundaries
or landmarks), Article 316 (Other forms of swindling), Article 317
(Swindling a minor), Article 318 (Other deceits), Article 328 (Special
cases of malicious mischief) and Article 331 (Destroying or damaging
statues, public monuments or paintings). Other crimes that impose Fine
as a penalty will also be affected, such as: Article 213 (Frauds against
the public treasury and similar offenses), Article 215 (Prohibited
Transactions),
Article 216 (Possession of prohibited interest by a public officer), Article
218 (Failure of accountable officer to render accounts), Article 219
(Failure of a responsible public officer to render accounts before leaving
the country).
In addition, the proposal will not only affect crimes under the RPC. It will
also affect crimes which are punishable by special penal laws, such as
Illegal Logging or Violation of Section 68 of Presidential Decree No. 705,
as amended.34The law treats cutting, gathering, collecting and
possessing timber or other forest products without license as an offense
as grave as and equivalent to the felony of qualified theft.35 Under the
law, the offender shall be punished with the penalties imposed under
Articles 309 and 31036 of the Revised Penal Code, which means that
the penalty imposable for the offense is, again, based on the value of
the timber or forest products involved in the offense. Now, if we accept
the said proposal in the crime of Theft, will this particular crime of Illegal
Logging be amended also in so far as the penalty is concerned because
the penalty is dependent on Articles 309 and 310 of the RPC? The
answer is in the negative because the soundness of this particular law
is not in question.
With the numerous crimes defined and penalized under the Revised
Penal Code and Special Laws, and other related provisions of these
laws affected by the proposal, a thorough study is needed to determine
its effectivity and necessity. There may be some provisions of the law
that should be amended; nevertheless, this Court is in no position to
conclude as to the intentions of the framers of the Revised Penal Code
by merely making a study of the applicability of the penalties imposable
in the present times. Such is not within the competence of the Court but
of the Legislature which is empowered to conduct public hearings on the
matter, consult legal luminaries and who, after due proceedings, can
decide whether or not to amend or to revise the questioned law or other
laws, or even create a new legislation which will adopt to the times.
Admittedly, Congress is aware that there is an urgent need to amend
the Revised Penal Code. During the oral arguments, counsel for the
Senate informed the Court that at present, fifty-six (56) bills are now
pending in the Senate seeking to amend the Revised Penal
Code,37 each one proposing much needed change and updates to
archaic laws that were promulgated decades ago when the political,
socio-economic, and cultural settings were far different from todays
conditions.
Verily, the primordial duty of the Court is merely to apply the law in such
a way that it shall not usurp legislative powers by judicial legislation and
that in the course of such application or construction, it should not make
or supervise legislation, or under the guise of interpretation, modify,
revise, amend, distort, remodel, or rewrite the law, or give the law a
construction which is repugnant to its terms.38 The Court should apply
the law in a manner that would give effect to their letter and spirit,
especially when the law is clear as to its intent and purpose. Succinctly
put, the Court should shy away from encroaching upon the primary
function of a co-equal branch of the Government; otherwise, this would
lead to an inexcusable breach of the doctrine of separation of powers by
means of judicial legislation.
Moreover, it is to be noted that civil indemnity is, technically, not a
penalty or a Fine; hence, it can be increased by the Court when
appropriate. Article 2206 of the Civil Code provides:
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;
(2) If the deceased was obliged to give support according to the
provisions of Article 291, the recipient who is not an heir called to the
decedent's inheritance by the law of testate or intestate succession, may
demand support from the person causing the death, for a period not
exceeding five years, the exact duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and ascendants
of the deceased may demand moral damages for mental anguish by
reason of the death of the deceased.
In our jurisdiction, civil indemnity is awarded to the offended party as a
kind of monetary restitution or compensation to the victim for the
damage or infraction that was done to the latter by the accused, which
in a sense only covers the civil aspect. Precisely, it is civil indemnity.
Thus, in a crime where a person dies, in addition to the penalty of
imprisonment imposed to the offender, the accused is also ordered to
pay the victim a sum of money as restitution. Clearly, this award of civil
indemnity due to the death of the victim could not be contemplated as
akin to the value of a thing that is unlawfully taken which is the basis in
the imposition of the proper penalty in certain crimes. Thus, the
reasoning in increasing the value of civil indemnity awarded in some
offense cannot be the same reasoning that would sustain the adoption
of the suggested ratio. Also, it is apparent from Article 2206 that the law
only imposes a minimum amount for awards of civil indemnity, which
is P3,000.00. The law did not provide for a ceiling. Thus, although the
minimum amount for the award cannot be changed, increasing the
amount awarded as civil indemnity can be validly modified and
increased when the present circumstance warrants it. Corollarily, moral
damages under Article 222039 of the Civil Code also does not fix the
amount of damages that can be awarded. It is discretionary upon the
court, depending on the mental anguish or the suffering of the private
offended party. The amount of moral damages can, in relation to civil
indemnity, be adjusted so long as it does not exceed the award of civil
indemnity.
In addition, some may view the penalty provided by law for the offense
committed as tantamount to cruel punishment. However, all penalties
are generally harsh, being punitive in nature. Whether or not they are
excessive or amount to cruel punishment is a matter that should be left
to lawmakers. It is the prerogative of the courts to apply the law,
especially when they are clear and not subject to any other interpretation
than that which is plainly written.
Similar to the argument of Dean Diokno, one of Justice Antonio Carpios
opinions is that the incremental penalty provision should be declared
unconstitutional and that the courts should only impose the penalty
corresponding to the amount of P22,000.00, regardless if the actual
amount involved exceeds P22,000.00. As suggested, however, from
now until the law is properly amended by Congress, all crimes of Estafa
will no longer be punished by the appropriate penalty. A conundrum in
the regular course of criminal justice would occur when every accused
convicted of the crime of estafa will be meted penalties different from the
proper penalty that should be imposed. Such drastic twist in the
application of the law has no legal basis and directly runs counter to
what the law provides.
It should be noted that the death penalty was reintroduced in the
dispensation of criminal justice by the Ramos Administration by virtue of
Republic Act No. 765940 in December 1993. The said law has been
questioned before this Court. There is, arguably, no punishment more
cruel than that of death. Yet still, from the time the death penalty was re-
imposed until its lifting in June 2006 by Republic Act No. 9346,41 the
Court did not impede the imposition of the death penalty on the ground
that it is a "cruel punishment" within the purview of Section 19
the like. Fine and imprisonment would not thus be within the
prohibition.44
It takes more than merely being harsh, excessive, out of proportion, or
severe for a penalty to be obnoxious to the Constitution. The fact that
the punishment authorized by the statute is severe does not make it
cruel and unusual. Expressed in other terms, it has been held that to
come under the ban, the punishment must be "flagrantly and plainly
oppressive," "wholly disproportionate to the nature of the offense as to
shock the moral sense of the community."45
Cruel as it may be, as discussed above, it is for the Congress to amend
the law and adapt it to our modern time.
The solution to the present controversy could not be solved by merely
adjusting the questioned monetary values to the present value of money
based only on the current inflation rate. There are other factors and
variables that need to be taken into consideration, researched, and
deliberated upon before the said values could be accurately and
properly adjusted. The effects on the society, the injured party, the
accused, its socio-economic impact, and the likes must be painstakingly
evaluated and weighed upon in order to arrive at a wholistic change that
all of us believe should be made to our existing law. Dejectedly, the
Court is ill-equipped, has no resources, and lacks sufficient personnel to
conduct public hearings and sponsor studies and surveys to validly
effect these changes in our Revised Penal Code. This function clearly
and appropriately belongs to Congress. Even Professor Tadiar
concedes to this conclusion, to wit:
xxxx
JUSTICE PERALTA:
Yeah, Just one question. You are suggesting that in order to determine

(1),42 Article III of the Constitution. Ultimately, it was through an act of the value of Peso you have to take into consideration several factors.

Congress suspending the imposition of the death penalty that led to its
PROFESSOR TADIAR:
non-imposition and not via the intervention of the Court.
Yes.
Even if the imposable penalty amounts to cruel punishment, the Court
cannot declare the provision of the law from which the proper penalty JUSTICE PERALTA:
emanates unconstitutional in the present action. Not only is it violative
Per capita income.
of due process, considering that the State and the concerned parties
were not given the opportunity to comment on the subject matter, it is PROFESSOR TADIAR:
settled that the constitutionality of a statute cannot be attacked
Per capita income.
collaterally because constitutionality issues must be pleaded directly
and not collaterally,43 more so in the present controversy wherein the JUSTICE PERALTA:
issues never touched upon the constitutionality of any of the provisions
of the Revised Penal Code. Consumer price index.

Besides, it has long been held that the prohibition of cruel and unusual PROFESSOR TADIAR:

punishments is generally aimed at the form or character of the

Yeah.
punishment rather than its severity in respect of duration or amount, and
applies to punishments which public sentiment has regarded as cruel or JUSTICE PERALTA:
obsolete, for instance, those inflicted at the whipping post, or in the
Inflation ...
pillory, burning at the stake, breaking on the wheel, disemboweling, and
PROFESSOR TADIAR: "changed conditions" or "significant changes in circumstances" in its
decisions.
Yes.
Similarly, the Chief Justice is of the view that the Court is not delving into
JUSTICE PERALTA:
the validity of the substance of a statute. The issue is no different from
... and so on. Is the Supreme Court equipped to determine those the Courts adjustment of indemnity in crimes against persons, which the
factors? Court had previously adjusted in light of current times, like in the case of
People v. Pantoja.47 Besides, Article 10 of the Civil Code mandates a
PROFESSOR TADIAR: presumption that the lawmaking body intended right and justice to
prevail.
There are many ways by which the value of the Philippine Peso can be
determined utilizing all of those economic terms. With due respect to the opinions and proposals advanced by the Chief
Justice and my Colleagues, all the proposals ultimately lead to
JUSTICE PERALTA:
prohibited judicial legislation. Short of being repetitious and as
Yeah, but ... extensively discussed above, it is truly beyond the powers of the Court
to legislate laws, such immense power belongs to Congress and the
PROFESSOR TADIAR:
Court should refrain from crossing this clear-cut divide. With regard to
And I dont think it is within the power of the Supreme Court to pass upon civil indemnity, as elucidated before, this refers to civil liability which is
and peg the value to One Hundred (P100.00) Pesos to ... awarded to the offended party as a kind of monetary restitution. It is truly
based on the value of money. The same cannot be said on penalties
JUSTICE PERALTA:
because, as earlier stated, penalties are not only based on the value of

Yeah. money, but on several other factors. Further, since the law is silent as to
the maximum amount that can be awarded and only pegged the
PROFESSOR TADIAR: minimum sum, increasing the amount granted as civil indemnity is not
proscribed. Thus, it can be adjusted in light of current conditions.
... One (P1.00.00) Peso in 1930.

Now, with regard to the penalty imposed in the present case, the CA
JUSTICE PERALTA:
modified the ruling of the RTC. The RTC imposed the indeterminate
That is legislative in nature. penalty of four (4) years and two (2) months of prision correccional in its
medium period, as minimum, to fourteen (14) years and eight (8) months
PROFESSOR TADIAR:
of reclusion temporal in its minimum period, as maximum. However, the
That is my position that the Supreme Court ... CA imposed the indeterminate penalty of four (4) years and two (2)
months of prision correccional, as minimum, to eight (8) years of prision
JUSTICE PERALTA:
mayor, as maximum, plus one (1) year for each additional P10,000.00,

Yeah, okay. or a total of seven (7) years.

PROFESSOR TADIAR: In computing the penalty for this type of estafa, this Court's ruling in
Cosme, Jr. v. People48 is highly instructive, thus:
... has no power to utilize the power of judicial review to in order to adjust,
to make the adjustment that is a power that belongs to the legislature. With respect to the imposable penalty, Article 315 of the Revised Penal
Code provides:
JUSTICE PERALTA:
ART. 315 Swindling (estafa). - Any person who shall defraud another by
Thank you, Professor. any of the means mentioned hereinbelow shall be punished by:

PROFESSOR TADIAR:
Thank you.46
Finally, the opinion advanced by Chief Justice Maria Lourdes P. A.
Sereno echoes the view that the role of the Court is not merely to
dispense justice, but also the active duty to prevent injustice. Thus, in
order to prevent injustice in the present controversy, the Court should
not impose an obsolete penalty pegged eighty three years ago, but
consider the proposed ratio of 1:100 as simply compensating for
inflation. Furthermore, the Court has in the past taken into consideration
1st. The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000
but does not exceed 22,000 pesos, and if such amount exceeds the
latter sum, the penalty provided in this paragraph shall be imposed in its
maximum period, adding one year for each additional 10,000 pesos; but
the total penalty which may be imposed shall not exceed twenty years.
In such case, and in connection with the accessory penalties which may
be imposed and for the purpose of the other provisions of this Code, the
penalty shall be termed prision mayor or reclusion temporal, as the case
may be.
The penalty prescribed by Article 315 is composed of only two, not three,
periods, in which case, Article 65 of the same Code requires the division
of the time included in the penalty into three equal portions of time
included in the penalty prescribed, forming one period of each of the
three portions. Applying the latter provisions, the maximum, medium and
minimum periods of the penalty prescribed are:
Maximum - 6 years, 8 months, 21 days to 8 years
MODIFICATION that the penalty imposed is the indeterminate penalty
of imprisonment ranging from THREE (3) YEARS, TWO (2) MONTHS
and ELEVEN DAYS of prision correccional, as minimum, to FIFTEEN
(15) YEARS of reclusion temporal as maximum.
Pursuant to Article 5 of the Revised Penal Code, let a Copy of this
Decision be furnished the President of the Republic of the Philippines,
through the Department of Justice.

Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days Also, let a copy of this Decision be furnished the President of the Senate
and the Speaker of the House of Representatives.
Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49
SO ORDERED.
To compute the maximum period of the prescribed penalty, prisin
correccional maximum to prisin mayor minimum should be divided into DIOSDADO M. PERALTA
three equal portions of time each of which portion shall be deemed to Associate Justice
form one period in accordance with Article 6550 of the RPC.51 In the
WE CONCUR:
present case, the amount involved is P98,000.00, which
exceeds P22,000.00, thus, the maximum penalty imposable should be See Concurring and Dissenting Opinion
within the maximum period of 6 years, 8 months and 21 days to 8 years MARIA LOURDES P.A. SERENO
of prision mayor. Article 315 also states that a period of one year shall Chief Justice
be added to the penalty for every additional P10,000.00 defrauded in
excess of P22,000.00, but in no case shall the total penalty which may
See Dissenting Opinion PRESBITERO J.
be imposed exceed 20 years.
ANTONIO T. CARPIO VELASCO, JR.

Considering that the amount of P98,000.00 is P76,000.00 more than Associate Justice Associate Justice

the P22,000.00 ceiling set by law, then, adding one year for each
additional P10,000.00, the maximum period of 6 years, 8 months and 21
TERESITA J. See: Concurring Opinion
days to 8 years of prision mayor minimum would be increased by 7
LEONARDO-DE CASTRO ARTURO D. BRION
years. Taking the maximum of the prescribed penalty, which is 8 years,
Associate Justice Associate Justice
plus an additional 7 years, the maximum of the indeterminate penalty is
15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed I take no part due to prior I join the Dissent of J. Abad

by law for the estafa charge against petitioner is prision correccional action in the CA MARIANO C. DEL

maximum to prision mayor minimum, the penalty next lower would then LUCAS P. BERSAMIN* CASTILLO

be prision correccional in its minimum and medium periods. Associate Justice Associate Justice

Thus, the minimum term of the indeterminate sentence should be

anywhere from 6 months and 1 day to 4 years and 2 months. See Dissenting Opinion MARTIN S. VILLARAMA,
ROBERTO A. ABAD JR.
One final note, the Court should give Congress a chance to perform its
Associate Justice Associate Justice
primordial duty of lawmaking. The Court should not pre-empt Congress
and usurp its inherent powers of making and enacting laws. While it may
be the most expeditious approach, a short cut by judicial fiat is a JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA
dangerous proposition, lest the Court dare trespass on prohibited Associate Justice Associate Justice
judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5,

No Part
2007 of petitioner Lito Corpuz is hereby DENIED. Consequently, the
BVIENVENIDO L. REYES ESTELA M. PERLAS-
Decision dated March 22, 2007 and Resolution dated September 5,
Associate Justice BERNABE*
2007 of the Court of Appeals, which affirmed with modification the
Associate Justice
Decision dated July 30, 2004 of the Regional Trial Court, Branch 46,
San Fernando City, finding petitioner guilty beyond reasonable doubt of
MARVIC MARIO VICTOR F. LEONEN
the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b)
Associate Justice
of the Revised Penal Code, are hereby AFFIRMED with
CERTIFICATION 22 Id. at 93, citing United States v. Valera Ang Y, 26 Phil. 598 (1914);
People v. Salazar y Gabriel, 102 Phil. 1184 (1958); Tiu Ua, 51 O.G.
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
1863; Limaco, 99 Phil. 35 (1956), and People v. Del Rosario y Natividad,
conclusions in the above Decision were reached in consultation before
62 Phil. 824 (1936). (Emphasis supplied.)
the case was assigned to the writer of the opinion of the Court.
23 Art. 315. Swindling (estafa). Any person who shall defraud another
MARIA LOURDES P. A. SERENO
by any of the means mentioned hereinbelow shall be punished by:
Chief Justice
1st. The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000
pesos but does not exceed 22,000 pesos, and if such amount exceeds
Footnotes the latter sum, the penalty provided in this paragraph shall be imposed
in its maximum period, adding one year for each additional 10,000
* No part. pesos; but the total penalty which may be imposed shall not exceed
twenty years. In such cases, and in connection with the accessory
1 Penned by Associate Justice Estela M. Perlas-Bernabe (now a
penalties which may be imposed under the provisions of this Code, the
member of the Supreme Court), with Associate Justices Rodrigo V.
penalty shall be termed prision mayor or reclusion temporal, as the case
Cosico and Lucas P. Bersamin (now a member of the Supreme Court),
may be.
concurring; rollo, pp. 31-41.

2nd. The penalty of prision correccional in its minimum and medium

2 Rollo, p. 43.
periods, if the amount of the fraud is over 6,000 pesos but does not
3 Id. at 48-52. exceed 12,000 pesos;

4 Libuit v. People, 506 Phil. 591, 599 (2005).
5 Blas v. Angeles- Hutalla, 482 Phil. 485, 501 (2004).
6 Quinto v. People, 365 Phil. 259, 270 (1999).
7 Rollo, p. 37. (Citations omitted.)
8 Diaz v. People, 585 Phil. 318, 332 (2008), citing Pangilinan v. Court of
Appeals, 378 Phil. 670, 675 (1999).
3rd. The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period if such amount is over 200 pesos but
does not exceed 6,000 pesos; and
4th. By arresto mayor in its maximum period, if such amount does not
exceed 200 pesos, provided that in the four cases mentioned, the fraud
be committed by any of the following means:
1. With unfaithfulness or abuse of confidence, namely:

9 TSN, December 17, 1992, pp. 9-10. (Emphasis supplied.) (a) By altering the substance, quantity, or quality or anything of value
which the offender shall deliver by virtue of an obligation to do so, even
10 Tan v. People, 542 Phil. 188, 201 (2007).
though such obligation be based on an immoral or illegal consideration.

11 Id., citing Lee v. People, 495 Phil. 239, 250 (2005).

(b) By misappropriating or converting, to the prejudice of another,

12 Id. money, goods, or any other personal property received by the offender
in trust or on commission, or for administration, or under any other
13 555 Phil. 106 (2007). obligation involving the duty to make delivery of or to return the same,
even though such obligation be totally or partially guaranteed by a bond;
14 Id. at 114. (Citations omitted.)
or by denying having received such money, goods, or other property.
15 Cosme, Jr. v. People, 538 Phil. 52, 66 (2006), citing People v. Garillo,
(c) By taking undue advantage of the signature of the offended party in
446 Phil. 163, 174-175 (2003).
blank, and by writing any document above such signature in blank, to
16 Id., citing Sullon v. People, 500 Phil. 39, 45 (2005) ; People v. Bulan, the prejudice of the offended party or of any third person.
498 Phil. 586, 598 (2005).
2. By means of any of the following false pretenses or fraudulent acts
17 Id. at 67, citing People v. Gaspar, 376 Phil. 762, 779 (1999). executed prior to or simultaneously with the commission of the fraud:

18 Emphasis supplied. (a) By using fictitious name, or falsely pretending to possess power,
influence, qualifications, property, credit, agency, business or imaginary
19 Third Edition, 1940.
transactions, or by means of other similar deceits.
20 Id. at 16. (Emphasis supplied)
(b) By altering the quality, fineness or weight of anything pertaining to
21 1997 Edition. his art or business.
(c) By pretending to have bribed any Government employee, without
prejudice to the action for calumny which the offended party may deem
proper to bring against the offender. In this case, the offender shall be
punished by the maximum period of the penalty.
(d) [By post-dating a check, or issuing a check in payment of an
obligation when the offender therein were not sufficient to cover the
amount of the check. The failure of the drawer of the check to deposit
the amount necessary to cover his check within three (3) days from
receipt of notice from the bank and/or the payee or holder that said
check has been dishonored for lack of insufficiency of funds shall be
prima facie evidence of deceit constituting false pretense or fraudulent
act. (As amended by R.A. 4885, approved June 17, 1967.)]
(e) By obtaining any food, refreshment or accommodation at a hotel, inn,
restaurant, boarding house, lodging house, or apartment house and the
like without paying therefor, with intent to defraud the proprietor or
manager thereof, or by obtaining credit at hotel, inn, restaurant, boarding
house, lodging house, or apartment house by the use of any false
pretense, or by abandoning or surreptitiously removing any part of his
baggage from a hotel, inn, restaurant, boarding house, lodging house or
apartment house after obtaining credit, food, refreshment or
accommodation therein without paying for his food, refreshment or
accommodation.
3. Through any of the following fraudulent means:
(a) By inducing another, by means of deceit, to sign any document.
(b) By resorting to some fraudulent practice to insure success in a
gambling game.
(c) By removing, concealing or destroying, in whole or in part, any court
record, office files, document or any other papers.
24 May be entitled to Probation.
25 May be entitled to Probation if the maximum penalty imposed is 6
years.
26 May be entitled to Probation.
27 Quinto v. Commission on Elections, G.R. No. 189698, February 22,
2010, 613 SCRA 385, 414.
28 People v. Cayat, 68 Phil. 12, 18 (1939).
29 TSN, Oral Arguments, February 25, 2014, pp. 192-195.
30 463 U.S. 277 (1983)
31 Section 3. Corrupt practices of public officers. - In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
(a) Persuading, inducing or influencing another public officer to perform
an act constituting a violation of rules and regulations duly promulgated
by competent authority or an offense in connection with the official duties
of the latter, or allowing himself to be persuaded, induced, or influenced
to commit such violation or offense.
(b) Directly or indirectly requesting or receiving any gift, present, share,
percentage, or benefit, for himself or for any other person, in connection
with any contract or transaction between the Government and any other
part, wherein the public officer in his official capacity has to intervene
under the law.
(c) Directly or indirectly requesting or receiving any gift, present or other
pecuniary or material benefit, for himself or for another, from any person
for whom the public officer, in any manner or capacity, has secured or
obtained, or will secure or obtain, any Government permit or license, in
consideration for the help given or to be given, without prejudice to
Section thirteen of this Act.
(d) Accepting or having any member of his family accept employment in
a private enterprise which has pending official business with him during
the pendency thereof or within one year after its termination.
(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant
of licenses or permits or other concessions.
(f) Neglecting or refusing, after due demand or request, without sufficient
justification, to act within a reasonable time on any matter pending
before him for the purpose of obtaining, directly or indirectly, from any
person interested in the matter some pecuniary or material benefit or
advantage, or for the purpose of favoring his own interest or giving
undue advantage in favor of or discriminating against any other
interested party.
(g) Entering, on behalf of the Government, into any contract or
transaction manifestly and grossly disadvantageous to the same,
whether or not the public officer profited or will profit thereby.
(h) Director or indirectly having financing or pecuniary interest in any
business, contract or transaction in connection with which he intervenes
or takes part in his official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.
(i) Directly or indirectly becoming interested, for personal gain, or having
a material interest in any transaction or act requiring the approval of a
board, panel or group of which he is a member, and which exercises
discretion in such approval, even if he votes against the same or does
not participate in the action of the board, committee, panel or group.
Interest for personal gain shall be presumed against those public officers
responsible for the approval of manifestly unlawful, inequitable, or
irregular transaction or acts by the board, panel or group to which they
belong.
(j) Knowingly approving or granting any license, permit, privilege or
benefit in favor of any person not qualified for or not legally entitled to
such license, permit, privilege or advantage, or of a mere representative
or dummy of one who is not so qualified or entitled.
(k) Divulging valuable information of a confidential character, acquired
by his office or by him on account of his official position to unauthorized
persons, or releasing such information in advance of its authorized
release date.
The person giving the gift, present, share, percentage or benefit referred
to in subparagraphs (b) and (c); or offering or giving to the public officer
the employment mentioned in subparagraph (d); or urging the divulging
or untimely release of the confidential information referred to in
subparagraph (k) of this section shall, together with the offending public
41 AN ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN
THE PHILIPPINES.
42 Section 19.
1. Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. x x x.
43 Gutierrez v. Department of Budget and Management, G.R. No.
153266, 159007, 159029, 170084, 172713, 173119, 176477, 177990,
A.M. No. 06-4-02-SB, March 18, 2010, 616 SCRA 1, 25.
44 People v. De la Cruz, 92 Phil. 906, 908 (1953); People v. Tongko,
353 Phil. 37, 43 (1998).
45 People v. Estoista, 93 Phil. 647, 655 (1953); People v. Dionisio, No.

officer, be punished under Section nine of this Act and shall be L-15513, March 27, 1968, 22 SCRA 1299, 1301-1302.

permanently or temporarily disqualified in the discretion of the Court,

46 TSN, Oral Arguments, February 25, 2014, pp. 183-185.
from transacting business in any form with the Government.
47 No. L-18793, October 11, 1968, 25 SCRA 468.
32 R.A. No. 3019, Sec. 9.
48 Supra note 15.
33 Art. 26. When afflictive, correctional, or light penalty. A fine,
whether imposed as a single of as an alternative penalty, shall be 49 Id. at 71-72.
considered an afflictive penalty, if it exceeds 6,000 pesos; a correctional
50 ART. 65. Rule in Cases in Which the Penalty is Not Composed of
penalty, if it does not exceed 6,000 pesos but is not less than 200 pesos;
Three Periods. In cases in which the penalty prescribed by law is not
and a light penalty if it less than 200 pesos.
composed of three periods, the courts shall apply the rules contained in
34 Revised Forestry Code, as amended by E.O. No. 277, Series of the foregoing articles, dividing into three equal portions the time included
1987. in the penalty prescribed, and forming one period of each of the three
portions.
35 Taopa v. People, 592 Phil. 341, 345 (2005).
51 People v. Temporada, G.R. No. 173473, December 17, 2008, 574
36 Art. 310. Qualified theft. The crime of theft shall be punished by
SCRA 258, 284.
the penalties next higher by two degrees than those respectively
specified in the next preceding article, if committed by a domestic
servant, or with grave abuse of confidence, or if the property stolen is
motor vehicle, mail matter or large cattle or consists of coconuts taken
from the premises of the plantation or fish taken from a fishpond or
fishery, or if property is taken on the occasion of fire, earthquake,
typhoon, volcanic erruption, or any other calamity, vehicular accident or
civil disturbance.

37 TSN, Oral Arguments, February 25, 2014, p. 167.

38 People v. Quijada, 328 Phil. 505, 548 (1996).

39 Art. 2220. Willful injury to property may be a legal ground for

awarding moral damages if the court should find that, under the
circumstances, such damages are justly due. The same rule applies to
breaches of contract where the defendant acted fraudulently or in bad
faith.

40 AN ACT TO IMPOSE THE DEATH PENALTY ON CERTAIN

HEINOUS CRIMES, AMENDING FOR THAT PURPOSE THE
REVISED PENAL LAWS, AS AMENDED, OTHER SPECIAL PENAL
LAWS, AND FOR OTHER PURPOSES.
 That on or about May 1969 to December 5, 1969, in the Municipality of
Capas, Province of Tarlac, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused, feloniously became an
officer and/or ranking leader of the Communist Party of the Philippines,
an outlawed and illegal organization aimed to overthrow the
Government of the Philippines by means of force, violence, deceit,
subversion, or any other illegal means for the purpose of establishing in
the Philippines a totalitarian regime and placing the government under
the control and domination of an alien power, by being an instructor in
the Mao Tse Tung University, the training school of recruits of the New
People's Army, the military arm of the said Communist Party of the
Philippines.

That in the commission of the above offense, the following aggravating

circumstances are present, to wit:
Republic of the Philippines
SUPREME COURT (a) That the crime has been committed in contempt of or with insult to
Manila public authorities;

EN BANC (b) That the crime was committed by a band; and afford impunity.

(c) With the aid of armed men or persons who insure or afford impunity.

G.R. Nos. L-32613-14 December 27, 1972 Co moved to quash on the ground that the Anti-Subversion Act is a bill
of attainder.
PEOPLE OF THE PHILIPPINES, petitioner,
vs. Meanwhile, on May 25, 1970, another criminal complaint was filed with
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First the same court, sharing the respondent Nilo Tayag and five others with
Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias subversion. After preliminary investigation was had, an information was
"Bob," and NILO S. TAYAG alias Romy Reyes alias filed, which, as amended, reads:
"Taba," respondents.
The undersigned provincial Fiscal of Tarlac and State Prosecutors duly
Solicitor R. Mutuc for respondent Feliciano Co. designated by the Secretary of Justice to collaborate with the Provincial
Fiscal of Tarlac, pursuant to the Order dated June 5, above entitled
Jose W. Diokno for respondent Nilo Tayag.
case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA,
ARTHUR GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA,
MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER MELODY
CASTRO, J.:p and several JOHN DOES, whose identities are still unknown, for
violation of REPUBLIC ACT No. 1700, otherwise known as the Anti-
I. Statement of the Case
Subversion Law, committed as follows:
Posed in issue in these two cases is the constitutionality of the Anti-
That in or about March 1969 and for sometime prior thereto and
Subversion
thereafter, in the Province of Tarlac, within the jurisdiction of this
Act, 1 which outlaws the Communist Party of the Philippines and other
Honorable Court, and elsewhere in the Philippines, the above-named
"subversive associations," and punishes any person who "knowingly,
accused knowingly, willfully and by overt acts organized, joined and/or
willfully and by overt acts affiliates himself with, becomes or remains a
remained as offices and/or ranking leaders, of the KABATAANG
member" of the Party or of any other similar "subversive" organization.
MAKABAYAN, a subversive organization as defined in Republic Act No.
On March 5, 1970 a criminal complaint for violation of section 4 of the 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition
Anti-Subversion Act was filed against the respondent Feliciano Co in the thereto, knowingly, willfully and by over acts joined and/or remained as
Court of First Instance of Tarlac. On March 10 Judge Jose C. de a member and became an officer and/or ranking leader not only of the
Guzman conducted a preliminary investigation and, finding a prima Communist Party of the Philippines but also of the New People's Army,
facie case against Co, directed the Government prosecutors to file the the military arm of the Communist Party of the Philippines; and that all
corresponding information. The twice-amended information, docketed the above-named accused, as such officers and/or ranking leaders of
as Criminal Case No. 27, recites: the aforestated subversive organizations, conspiring, confederating and
mutually helping one another, did then and there knowingly, willfully and
feloniously commit subversive and/or seditious acts, by inciting,
instigating and stirring the people to unite and rise publicly and
tumultuously and take up arms against the government, and/or engage
in rebellious conspiracies and riots to overthrow the government of the
Republic of the Philippines by force, violence, deceit, subversion and/or
other illegal means among which are the following:
1. On several occasions within the province of Tarlac, the accused
conducted meetings and/or seminars wherein the said accused
delivered speeches instigating and inciting the people to unite, rise in
arms and overthrow the Government of the Republic of the Philippines,
by force, violence, deceit, subversion and/or other illegal means; and
toward this end, the said accused organized, among others a chapter of
the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the
avowed purpose of undertaking or promoting an armed revolution,
subversive and/or seditious propaganda, conspiracies, and/or riots
and/or other illegal means to discredit and overthrow the Government of
the Republic of the Philippines and to established in the Philippines a
Communist regime.
2. The accused NILO TAYAG alias ROMY REYES alias TABA, together
with FRANCISCO PORTEM alias KIKO Gonzales and others, pursued
the above subversive and/or seditious activities in San Pablo City by
recruiting members for the New People's Army, and/or by instigating and
inciting the people to organize and unite for the purpose of overthrowing
the Government of the Republic of the Philippines through armed
revolution, deceit, subversion and/or other illegal means, and
establishing in the Philippines a Communist Government.
That the following aggravating circumstances attended the commission
of the offense: (a) aid of armed men or persons to insure or afford
impunity; and (b) craft, fraud, or disguise was employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of the
statute on the grounds that (1) it is a bill of attainder; (2) it is vague; (3)
it embraces more than one subject not expressed in the title thereof; and
(4) it denied him the equal protection of the laws.
Resolving the constitutional issues raised, the trial court, in its resolution
of September 15, 1970, declared the statute void on the grounds that it
is a bill of attainder and that it is vague and overboard, and dismissed
the informations against the two accused. The Government appealed.
We resolved to treat its appeal as a special civil action for certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states that "No bill of
attainder or ex port facto law shall be enacted." 2 A bill of attainder is a
legislative act which inflicts punishment without trial. 3 Its essence is the
substitution of a legislative for a judicial determination of guilt. 4 The
constitutional ban against bills of attainder serves to implement the
principle of separation of powers 5 by confining legislatures to
rule-making 6 and thereby forestalling legislative usurpation of the
judicial function. 7 History in perspective, bills of attainder were
employed to suppress unpopular causes and political minorities, 8 and
it is against this evil that the constitutional prohibition is directed. The
singling out of a definite class, the imposition of a burden on it, and a
legislative intent, suffice to stigmatizea statute as a bill of attainder. 9
In the case at bar, the Anti-Subversion Act was condemned by the
court a quo as a bill of attainder because it "tars and feathers" the
Communist Party of the Philippines as a "continuing menace to the
freedom and security of the country; its existence, a 'clear, present and
grave danger to the security of the Philippines.'" By means of the Act,
the trial court said, Congress usurped "the powers of the judge," and
assumed "judicial magistracy by pronouncing the guilt of the CCP
without any of the forms or safeguards of judicial trial." Finally, according
to the trial court, "if the only issue [to be determined] is whether or not
the accused is a knowing and voluntary member, the law is still a bill of
attainder because it has expressly created a presumption of
organizational guilt which the accused can never hope to overthrow."
1. When the Act is viewed in its actual operation, it will be seen that it
does not specify the Communist Party of the Philippines or the members
thereof for the purpose of punishment. What it does is simply to declare
the Party to be an organized conspiracy for the overthrow of the
Government for the purposes of the prohibition, stated in section 4,
against membership in the outlawed organization. The term "Communist
Party of the Philippines" issued solely for definitional purposes. In fact
the Act applies not only to the Communist Party of the Philippines but
also to "any other organization having the same purpose and their
successors." Its focus is not on individuals but on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S.
Federal Labor-Management Reporting and Disclosure Act of
1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder
and therefore unconstitutional. Section 504 provided in its pertinent
parts as follows:
(a) No person who is or has been a member of the Communist
Party ... shall serve
(1) as an officer, director, trustee, member of any executive board or
similar governing body, business agent, manager, organizer, or other
employee (other than as an employee performing exclusively clerical or
custodial duties) of any labor organization.
during or for five years after the termination of his membership in the
Communist Party....
(b) Any person who willfully violates this section shall be fined not more
than $10,000 or imprisoned for not more than one year, or both.
This statute specified the Communist Party, and imposes disability and
penalties on its members. Membership in the Party, without more, ipso
facto disqualifies a person from becoming an officer or a member of the
governing body of any labor organization. As the Supreme Court of the
United States pointed out:
Under the line of cases just outlined, sec. 504 of the Labor Management
Reporting and Disclosure Act plainly constitutes a bill of attainder.
Congress undoubtedly possesses power under the Commerce Clause
to enact legislation designed to keep from positions affecting interstate
commerce persons who may use of such positions to bring about
political strikes. In section 504, however, Congress has exceeded the
authority granted it by the Constitution. The statute does not set forth a
generally applicable rule decreeing that any person who commits certain
acts or possesses certain characteristics (acts and characteristics
which, in Congress' view, make them likely to initiate political strikes)
shall not hold union office, and leaves to courts and juries the job of
deciding what persons have committed the specified acts or possessed
the specified characteristics. Instead, it designates in no uncertain terms
the persons who possess the feared characteristics and therefore
cannot hold union office without incurring criminal liability members
of the Communist Party.
Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L
ed 2d 625, 81 S CT 1357, lend a support to our conclusion. That case
involved an appeal from an order by the Control Board ordering the
Communist Party to register as a "Communist-action organization,"
under the Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC
sec. 781 et seq. (1958 ed). The definition of "Communist-action
organization" which the Board is to apply is set forth in sec. 3 of the Act:
[A]ny organization in the United States ... which (i)is substantially
directed, dominated, or controlled by the foreign government or foreign
organization controlling the world Communist movement referred to in
section 2 of this title, and(ii) operates primarily to advance the objectives
of such world Communist movement... 64 Stat 989, 50 USC sec. 782
(1958 ed.)
A majority of the Court rejected the argument that the Act was a bill of
attainder, reasoning that sec. 3 does not specify the persons or groups
upon which the deprivations setforth in the Act are to be imposed, but
instead sets forth a general definition. Although the Board has
determined in 1953 that the Communist Party was a "Communist-action
organization," the Court found the statutory definition not to be so narrow
as to insure that the Party would always come within it:
In this proceeding the Board had found, and the Court of Appeals has
sustained its conclusion, that the Communist Party, by virtud of the
activities in which it now engages, comes within the terms of the Act. If
the Party should at anytime choose to abandon these activities, after it
is once registered pursuant to sec. 7, the Act provides adequate means
of relief. (367 US, at 87, 6 L ed 2d at 683)
Indeed, were the Anti-Subversion Act a bill of attainder, it would be
totally unnecessary to charge Communists in court, as the law alone,
without more, would suffice to secure their punishment. But the
undeniable fact is that their guilt still has to be judicially established. The
Government has yet to prove at the trial that the accused joined the
Party knowingly, willfully and by overt acts, and that they joined the
Party, knowing its subversive character and with specific intent to further
its basic objective, i.e., to overthrow the existing Government by force
deceit, and other illegal means and place the country under the control
and domination of a foreign power.
As to the claim that under the statute organizationl guilt is nonetheless
imputed despite the requirement of proof of knowing membership in the
Party, suffice it to say that is precisely the nature of conspiracy, which
has been referred to as a "dragneet device" whereby all who participate
in the criminal covenant are liable. The contention would be correct if the
statute were construed as punishing mere membership devoid of any
specific intent to further the unlawful goals of the Party. 13 But the
statute specifically required that membership must be knowing or active,
with specific intent to further the illegal objectives of the Party. That is
what section 4 means when it requires that membership, to be unlawful,
must be shown to have been acquired "knowingly, willfully and by overt
acts." 14 The ingredient of specific intent to pursue the unlawful goals of
the Party must be shown by "overt acts." 15 This constitutes an element
of "membership" distinct from the ingredient of guilty knowledge. The
former requires proof of direct participation in the organization's unlawful
activities, while the latter requires proof of mere adherence to the
organization's illegal objectives.
2. Even assuming, however, that the Act specifies individuals and not
activities, this feature is not enough to render it a bill of attainder. A
statute prohibiting partners or employees of securities underwriting firms
from serving as officers or employees of national banks on the basis of
a legislative finding that the persons mentioned would be subject to the
temptation to commit acts deemed inimical to the national economy, has
been declared not to be a bill of attainder. 16 Similarly, a statute
requiring every secret, oath-bound society having a membership of at
least twenty to register, and punishing any person who becomes a
member of such society which fails to register or remains a member
thereof, was declared valid even if in its operation it was shown to apply
only to the members of the Ku Klux Klan. 17
In the Philippines the validity of section 23 (b) of the Industrial Peace
Act, 18 requiring labor unions to file with the Department of Labor
affidavits of union officers "to the effect that they are not members of the
Communist Party and that they are not members of any organization
which teaches the overthrow of the Government by force or by any illegal
or unconstitutional method," was upheld by this Court. 19
Indeed, it is only when a statute applies either to named individuals or
to easily ascertainable members of a group in such a way as to inflict
punishment on them without a judicial trial does it become a bill of
attainder. 20 It is upon this ground that statutes which disqualified those
who had taken part in the rebellion against the Government of the United
States during the Civil War from holding office, 21 or from exercising
their profession, 22 or which prohibited the payment of further
compensation to individuals named in the Act on the basis of a finding
that they had engages in subversive activities, 23 or which made it a
crime for a member of the Communist Party to serve as an officer or
employee of a labor union, 24 have been invalidated as bills of attainder.
But when the judgment expressed in legislation is so universally so it was advised putting aside controverted evidence that the
acknowledged to be certain as to be "judicially noticeable," the order was a revival of the Ku Klux Klan of an earlier time with additional
legislature may apply its own rules, and judicial hearing is not needed features borrowed from the Know Nothing and the A. P. A. orders of
fairly to make such determination. 25 other periods; that its memberships was limited to native-born, gentile,
protestant whites; that in part of its constitution and printed creed it
In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature
proclaimed the widest freedom for all and full adherence to the
passed a law requiring every secret, oath-bound society with a
Constitution of the United States; in another exacted of its member an
membership of at least twenty to register, and punishing any person who
oath to shield and preserve "white supremacy;" and in still another
joined or remained a member of such a society failing to register. While
declared any person actively opposing its principles to be "a dangerous
the statute did not specify the Ku Klux Klan, in its operation the law
ingredient in the body politic of our country and an enemy to the weal of
applied to the KKK exclusively. In sustaining the statute against the
our national commonwealth;" that it was conducting a crusade against
claim that it discriminated against the Ku Klux Klan while exempting
Catholics, Jews, and Negroes, and stimulating hurtful religious and race
other secret, oath-bound organizations like masonic societies and the
prejudices; that it was striving for political power and assuming a sort of
Knights of Columbus, the United States Supreme Court relied on
guardianship over the administration of local, state and national affairs;
common knowledge of the nature and activities of the Ku Klux Klan. The
and that at times it was taking into its own hands the punishment of what
Court said:
some of its members conceived to be crimes. 27
The courts below recognized the principle shown in the cases just cited
In the Philippines the character of the Communist Party has been the
and reached the conclusion that the classification was justified by a
object of continuing scrutiny by this Court. In 1932 we found the
difference between the two classes of associations shown by
Communist Party of the Philippines to be an illegal association. 28 In
experience, and that the difference consisted (a) in a manifest tendency
1969 we again found that the objective of the Party was the "overthrow
on the part of one class to make the secrecy surrounding its purpose
of the Philippine Government by armed struggle and to establish in the
and membership a cloak for acts and conduct inimical to personal rights
Philippines a communist form of government similar to that of Soviet
and public welfare, and (b) in the absence of such a tendency on the
Russia and Red China." 29 More recently, in Lansang vs. Garcia, 30we
part of the other class. In pointing out this difference one of the courts
noted the growth of the Communist Party of the Philippines and the
said of the Ku Klux Klan, the principal association in the included class:
organization of Communist fronts among youth organizations such as
"It is a matter of common knowledge that this organization functions
the Kabataang Makabayan (KM) and the emergence of the New
largely at night, its members disguised by hoods and gowns and doing
People's Army. After meticulously reviewing the evidence, we said: "We
things calculated to strike terror into the minds of the people;" and later
entertain, therefore, no doubts about the existence of a sizeable group
said of the other class: "These organizations and their purposes are well
of men who have publicly risen in arms to overthrow the government and
known, many of them having been in existence for many years. Many of
have thus been and still are engaged in rebellion against the
them are oath-bound and secret. But we hear no complaint against them
Government of the Philippines.
regarding violation of the peace or interfering with the rights of others."
Another of the courts said: "It is a matter of common knowledge that the 3. Nor is it enough that the statute specify persons or groups in order
association or organization of which the relator is concededly a member that it may fall within the ambit of the prohibition against bills of attainder.
exercises activities tending to the prejudice and intimidation of sundry It is also necessary that it must apply retroactively and reach past
classes of our citizens. But the legislation is not confined to this society;" conduct. This requirement follows from the nature of a bill of attainder
and later said of the other class: "Labor unions have a recognized lawful as a legislative adjudication of guilt. As Justice Frankfurter observed,
purpose. The benevolent orders mentioned in the Benevolent Orders "frequently a bill of attainder was ... doubly objectionable because of
Law have already received legislative scrutiny and have been granted its ex post facto features. This is the historic explanation for uniting the
special privileges so that the legislature may well consider them two mischiefs in one
beneficial rather than harmful agencies." The third court, after clause 'No Bill of Attainder or ex post facto law shall be passed.' ...
recognizing "the potentialities of evil in secret societies," and observing Therefore, if [a statute] is a bill of attainder it is also an ex post facto law.
that "the danger of certain organizations has been judicially But if it is not an ex post facto law, the reasons that establish that it is
demonstrated," meaning in that state, said: "Benevolent orders, not are persuasive that it cannot be a bill of attainder." 31
labor unions and college fraternities have existed for many years, and,
Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court
while not immune from hostile criticism, have on the whole justified their
upheld the validity of the Charter of the City of Los Angeles which
existence."
provided:
We assume that the legislature had before it such information as was
... [N]o person shall hold or retain or be eligible for any public office or
readily available including the published report of a hearing, before a
employment in the service of the City of Los Angeles, in any office or
committee of the House of Representatives of the 57th Congress
department thereof, either elective or appointive, who has within five (5)
relating to the formation, purposes and activities of the Klu Klux Klan. If
years prior to the effective date of this section advised, advocated, or
taught, or who may, after this section becomes effective, become a
member of or affiliated with any group, society, association, organization
or party which advises, advocates or teaches or has within said period
of five (5) years advised, advocated, or taught the overthrow by force or
violence of the Government of the United States of America or of the
State of California.
In upholding the statute, the Court stressed the prospective application
of the Act to the petitioner therein, thus:
... Immaterial here is any opinion we might have as to the charter
provision insofar as it purported to apply restrospectively for a five-year
period to its effective date. We assume that under the Federal
Constitution the Charter Amendment is valid to the extent that it bars
from the city's public service persons who, subsequently to its adoption
in 1941, advise, advocate, or reach the violent overthrow of the
Government or who are or become affiliated with any group doing so.
The provisions operating thus prospectively were a reasonable
regulation to protect the municipal service by establishing an
employment qualification of loyalty to the State and the United States.
... Unlike the provisions of the charter and ordinance under which
petitioners were removed, the statute in the Lovett case did not declare
general and prospectively operative standards of qualification and
eligibility for public employment. Rather, by its terms it prohibited any
further payment of compensationto named individuals or employees.
Under these circumstances, viewed against the legislative background,
the statutewas held to have imposed penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress thereby
assumed judicial magistracy, them it mustbe demonstrated that the
statute claimed to be a bill of attainderreaches past conduct and that the
penalties it imposesare inescapable. As the U.S. Supreme Court
observedwith respect to the U.S. Federal Subversive Activities
ControlAct of 1950:
Nor is the statute made an act of "outlawry" or of attainderby the fact that
the conduct which it regulates is describedwith such particularity that, in
probability, few organizationswill come within the statutory terms.
Legislatures may act tocurb behaviour which they regard as harmful to
the public welfare,whether that conduct is found to be engaged in by
manypersons or by one. So long as the incidence of legislation issuch
that the persons who engage in the regulated conduct, bethey many or
few, can escape regulation merely by altering thecourse of their own
present activities, there can be no complaintof an attainder. 33
This statement, mutatis mutandis, may be said of theAnti-Subversion
Act. Section 4 thereof expressly statesthat the prohibition therein applies
only to acts committed"After the approval of this Act." Only those who
"knowingly,willfully and by overt acts affiliate themselves with,become or
remain members of the Communist Party of thePhilippines and/or its
successors or of any subversive association"after June 20, 1957, are
punished. Those whowere members of the Party or of any other
subversive associationat the time of the enactment of the law, weregiven
the opportunity of purging themselves of liability byrenouncing in writing
and under oath their membershipin the Party. The law expressly
provides that such renunciationshall operate to exempt such persons
from penalliability. 34 The penalties prescribed by the Act are
thereforenot inescapable.
III. The Act and the Requirements of Due Process
1. As already stated, the legislative declaration in section 2 of the Act
that the Communist Party of the Philippinesis an organized conspiracy
for the overthrow of theGovernment is inteded not to provide the basis
for a legislativefinding of guilt of the members of the Party butrather to
justify the proscription spelled out in section 4. Freedom of expression
and freedom of association are sofundamental that they are thought by
some to occupy a"preferred position" in the hierarchy of constitutional
values. 35 Accordingly, any limitation on their exercise mustbe justified
by the existence of a substantive evil. This isthe reason why before
enacting the statute in question Congressconducted careful
investigations and then stated itsfindings in the preamble, thus:
... [T]he Communist Party of the Philippines althoughpurportedly a
political party, is in fact an organized conspiracyto overthrow the
Government of the Republic of the Philippinesnot only by force and
violence but also by deceit, subversionand other illegal means, for the
purpose of establishing in thePhilippines a totalitarian regime subject to
alien dominationand control;
... [T]he continued existence and activities of the CommunistParty of the
Philippines constitutes a clear, present andgrave danger to the security
of the Philippines;
... [I]n the face of the organized, systematice and persistentsubversion,
national in scope but international in direction,posed by the Communist
Party of the Philippines and its activities,there is urgent need for special
legislation to cope withthis continuing menace to the freedom and
security of the country.
In truth, the constitutionality of the Act would be opento question if,
instead of making these findings in enactingthe statute, Congress
omitted to do so.
In saying that by means of the Act Congress has assumed judicial
magistracy, the trial courd failed to takeproper account of the distinction
between legislative fact and adjudicative fact. Professor Paul Freund
elucidatesthe crucial distinction, thus:
... A law forbidding the sale of beverages containingmore than 3.2 per
cent of alcohol would raise a question of legislativefact, i.e., whether this
standard has a reasonable relationto public health, morals, and the
enforcement problem. Alaw forbidding the sale of intoxicating beverages
(assuming itis not so vague as to require supplementation by rule-
making)would raise a question of adjudicative fact, i.e., whether thisor
that beverage is intoxicating within the meaning of the statuteand the
limits on governmental action imposed by the Constitution. Of course
what we mean by fact in each case is itselfan ultimate conclusion
founded on underlying facts and oncriteria of judgment for weighing
them.
A conventional formulation is that legislative facts those facts which
are relevant to the legislative judgment will not be canvassed save to
determine whether there is a rationalbasis for believing that they exist,
while adjudicativefacts those which tie the legislative enactment to
the litigant are to be demonstrated and found according to the
ordinarystandards prevailing for judicial trials. 36
The test formulated in Nebbia vs. new York, 37 andadopted by this
Court in Lansang vs. Garcia, 38 is that 'if laws are seen to have a
reasonable relation to a proper legislative purpose, and are neither
arbitrary nor discriminatory, the requirements of due process are
satisfied, and judicial determination to that effect renders a court functus
officio." The recital of legislative findings implements this test.
With respect to a similar statement of legislative findingsin the U.S.
Federal Subversive Activities Control Actof 1950 (that "Communist-
action organizations" are controlledby the foreign government
controlling the worldCommunist movement and that they operate
primarily to"advance the objectives of such world Communist
movement"),the U.S. Supreme Court said:
It is not for the courts to reexamine the validity of theselegislative
findings and reject them....They are the productof extensive
investigation by Committes of Congress over morethan a decade and a
half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We certainly
cannot dismiss them as unfoundedirrational imaginings. ... And if we
accept them, as we mustas a not unentertainable appraisal by Congress
of the threatwhich Communist organizations pose not only to existing
governmentin the United States, but to the United States as asovereign,
independent Nation. ...we must recognize that thepower of Congress to
regulate Communist organizations of thisnature is
extensive. 39
This statement, mutatis mutandis, may be said of thelegislative findings
articulated in the Anti-Subversion Act.
That the Government has a right to protect itself againstsubversion is a
proposition too plain to require elaboration.Self-preservation is the
"ultimate value" of society. It surpasses and transcendes every other
value, "forif a society cannot protect its very structure from armedinternal
attack, ...no subordinate value can be protected" 40 As Chief Justice
Vinson so aptly said in Dennis vs. United States: 41
Whatever theoretical merit there may be to the argumentthat there is a
'right' to rebellion against dictatorial governmentsis without force where
the existing structure of government provides for peaceful and orderly
change. We rejectany principle of governmental helplessness in the face
of preparationfor revolution, which principle, carried to its logical
conclusion,must lead to anarchy. No one could conceive that it isnot
within the power of Congress to prohibit acts intended tooverthrow the
government by force and violence.
2. By carefully delimiting the reach of the Act to conduct (as explicitly
described in sectin 4 thereof), Congressreaffirmed its respect for the rule
that "even throughthe governmental purpose be legitimate and
substantial,that purpose cannot be pursued by means that broadly
stiflefundamental personal liberties when the end can be more narrowly
achieved." 42 The requirement of knowing membership,as
distinguished from nominal membership, hasbeen held as a sufficient
basis for penalizing membershipin a subversive organization. 43 For, as
has been stated:
Membership in an organization renders aid and encouragement to the
organization; and when membership is acceptedor retained with
knowledge that the organization is engaged inan unlawful purpose, the
one accepting or retaining membershipwith such knowledge makes
himself a party to the unlawfulenterprise in which it is engaged. 44
3. The argument that the Act is unconstitutionallyoverbroad because
section 2 merely speaks of "overthrow"of the Government and overthrow
may be achieved by peaceful means, misconceives the function of the
phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is
merely a legislative declaration; the definitionsof and the penalties
prescribed for the different acts prescribedare stated in section 4 which
requires that membershipin the Communist Party of the Philippines, to
be unlawful, must be acquired "knowingly, willfully and by overt acts."
Indeed, the first "whereas" clause makes clear thatthe overthrow
contemplated is "overthrow not only by forceand violence but also be
deceit, subversion and other illegalmeans." The absence of this
qualificatio in section 2 appearsto be due more to an oversight rather
than to deliberateomission.
Moreover, the word "overthrow' sufficiently connotesthe use of violent
and other illegal means. Only in a metaphoricalsense may one speak of
peaceful overthrow ofgovernments, and certainly the law does not speak
in metaphors.In the case of the Anti-Subversion Act, the use ofthe word
"overthrow" in a metaphorical sense is hardlyconsistent with the clearly
delineated objective of the "overthrow,"namely, "establishing in the
Philippines a totalitarianregime and place [sic] the Government under
thecontrol and domination of an alien power." What thisCourt once said
in a prosecution for sedition is appropos: "The language used by the
appellant clearly imported anoverthrow of the Government by violence,
and it should beinterpreted in the plain and obvious sense in which it
wasevidently intended to be understood. The word 'overthrow'could not
have been intended as referring to an ordinarychange by the exercise
of the elective franchise. The useof the whip [which the accused
exhorted his audience to useagainst the Constabulary], an instrument
designed toleave marks on the sides of adversaries, is inconsistentwith
the mild interpretation which the appellant wouldhave us impute to the
language." 45
IV. The Act and the Guaranty of Free Expression
As already pointed out, the Act is aimed against conspiracies to
overthrow the Government by force, violence orother illegal means.
Whatever interest in freedom of speechand freedom of association is
infringed by the prohibitionagainst knowing membership in the
Communist Party ofthe Philippines, is so indirect and so insubstantial as
to beclearly and heavily outweighed by the overriding considerationsof
national security and the preservartion of democraticinstitutions in his
country.
The membership clause of the U.S. Federal Smith Actis similar in many
respects to the membership provision ofthe Anti-Subversion Act. The
former provides:
Whoever organizes or helps or attempts to organize anysociety, group,
or assembly of persons who teach, advocate, orencourage the
overthrow or destruction of any such governmentby force or violence; or
becomes or is a member of, or affiliatedwith, any such society, group or
assembly of persons, knowingthe purpose thereof
Shall be fined not more than $20,000 or imprisoned notmore than twenty
years, or both, and shall be ineligible for emplymentby the United States
or any department or agencythereof, for the five years next following his
conviction.... 46
In sustaining the validity of this provision, the "Court said in Scales vs.
United States: 47
It was settled in Dennis that advocacy with which we arehere concerned
is not constitutionally protected speech, and itwas further established
that a combination to promote suchadvocacy, albeit under the aegis of
what purports to be a politicalparty, is not such association as is
protected by the firstAmendment. We can discern no reason why
membership, whenit constitutes a purposeful form of complicity in a
group engagingin this same forbidden advocacy, should receive
anygreater degree of protection from the guarantees of that
Amendment.
Moreover, as was held in another case, where the problemsof
accommodating the exigencies of self-preservationand the values of
liberty are as complex and intricate as inthe situation described in the
legislative findings stated inthe U.S. Federal Subversive Activities
Control Act of 1950,the legislative judgment as to how that threat may
best bemet consistently with the safeguards of personal freedomsis not
to be set aside merely because the judgment of judgeswould, in the first
instance, have chosen other methods. 48 For in truth, legislation,
"whether it restrains freedom tohire or freedom to speak, is itself an effort
at compromisebetween the claims of the social order and individual
freedom,and when the legislative compromise in either case isbrought
to the judicial test the court stands one step removedfrom the conflict
and its resolution through law." 49
V. The Act and its Title
The respondent Tayag invokes the constitutional commandthat "no bill
which may be enacted into law shall embrace more than one subject
which shall be expressed in the title of the bill." 50
What is assailed as not germane to or embraced in thetitle of the Act is
the last proviso of section 4 which reads:
And provided, finally, That one who conspires with anyother person to
overthrow the Government of the Republic ofthe Philippines, or the
government of any of its political subdivisionsby force, violence, deceit,
subversion or illegal means,for the purpose of placing such Government
or political subdivisionunder the control and domination of any lien
power, shallbe punished by prision correccional to prision mayor with
allthe accessory penalties provided therefor in the same code.
It is argued that the said proviso, in reality, punishes notonly
membership in the Communist Party of the Philippinesor similar
associations, but as well "any conspiracyby two persons to overthrow
the national or any local governmentby illegal means, even if their intent
is not to establisha totalitarian regime, burt a democratic regime, evenif
their purpose is not to place the nation under an aliencommunist power,
but under an alien democratic power likethe United States or England or
Malaysia or even an anti-communistpower like Spain, Japan, Thailand
or Taiwanor Indonesia."
The Act, in addition to its main title ("An Act to Outlawthe Communist
Party of the Philippines and SimilarAssociations, Penalizing
Membership Therein, and forOther Purposes"), has a short title. Section
1 providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the
statuteunequivocally indicates that the subject matter is subversionin
general which has for its fundamental purpose the substitutionof a
foreign totalitarian regime in place of theexisting Government and not
merely subversion by Communistconspiracies..
The title of a bill need not be a catalogue or an indexof its contents, and
need not recite the details of the Act. 51 It is a valid title if it indicates in
broad but clear termsthe nature, scope, and consequences of the
proposed lawand its operation. 52 A narrow or technical construction
isto be avoided, and the statute will be read fairly and reasonablyin order
not to thwart the legislative intent. We holdthat the Anti-Subversion Act
fully satisfies these requirements.
VI. Conclusion and Guidelines
In conclusion, even as we uphold the validity of theAnti-Subversion Act,
we cannot overemphasize the needfor prudence and circumspection in
its enforcement, operatingas it does in the sensitive area of freedom of
expressionand belief. Accordingly, we set the following basic
guidelines to be observed in any prosecution under the Act.The
Government, in addition to proving such circumstancesas may affect
liability, must establish the following elementsof the crime of joining the
Communist Party of the Philippinesor any other subversive association:
(1) In the case of subversive organizations other thanthe Communist
Party of the Philippines, (a) that thepurpose of the organization is to
overthrow the presentGovernment of the Philippines and to establish in
thiscountry a totalitarian regime under the domination of aforeign power;
(b) that the accused joined such organization;and (c) that he did so
knowingly, willfully and byovert acts; and
(2) In the case of the Communist Party of the Philippines,(a) that the
CPP continues to pursue the objectiveswhich led Congress in 1957 to
declare it to be an organizedconspiracy for the overthrow of the
Government by illegalmeans for the purpose of placing the country
under thecontrol of a foreign power; (b) that the accused joined theCPP;
and (c) that he did so willfully, knowingly and byovert acts.
We refrain from making any pronouncement as to thecrime or remaining
a member of the Communist Party ofthe Philippines or of any other
subversive association: weleave this matter to future determination.
ACCORDINGLY, the questioned resolution of September15, 1970 is set
aside, and these two cases are herebyremanded to the court a quo for
trial on the merits. Costs de oficio.
Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.
Concepcion, C.J., concurs in the result.
Makasiar and Antonio, JJ., took no part.
Separate Opinions
FERNANDO, J., dissenting:
It is with regard that I find myself unable to join therest of my brethren in
the decision reached upholding thevalidity of the Anti-Subversion
Act. 1 It is to be admittedthat the learned and scholarly opinbion of
Justice Castro hasthe impress of conscientious and painstaking scrutiny
ofthe constitutional issues raised. What is more, the stressin the
concluding portion thereof on basic guidelines thatwill assure in the trial
of those prosecuted under suchAct respect for their constitutional rights
is to be commended.Nonetheless, my own reading of the decisionscited,
interpreting the bill of attainder clause 2 coupled withthe fears, perhaps
induced by a too-latitudinarian constructionof the guarantees of freedom
of belief and expression 3 as well as freedom of association 4 as to
impermissible inroadsto which they may be exposed, compels a
differentconclusion. Hence this dissent.
1. There is to be sure no thought on my part that theequally pressing
concern of state safety and security shouldbe ignored. The political
branches of the governmentwould lay themselves oepn to a justifiable
indictment fornegligence had they been remiss in their obligation
tosafeguard the nation against its sworn enemies. In a simplerera, where
the overthrow of the government wasusually through the rising up in
arms, with weapons farless sophisticated than those now in existence,
there wasno constitutional issue of the magnitude that now confrontsus.
Force has to be met with force. It was as clearcutas that. Advances in
science as well as more subtlemethods of inducing disloyalty and
weakening the senseof allegiance have introduced complexities in
coping withsuch problems. There must be then, and I am the firstto
recognize it, a greater understanding for the governmentalresponde to
situations of that character. It is inthat light that the validity of the Anti-
Subversion Act isto be appraised. From ny standpoint, and I am not
presumptuousenough to claim that it is the only perspectiveor that is the
most realistic, I feel that there was an insufficientappreciation of the
compulsion of the constitutionalcommands against bills of attainder and
abridgmentof free speech. I am comforted by the thought that evenhad
my view prevailed, all that it would mean is that anew legislation, more
in comformity to my way of thinkingto what is ordained by the
fundamental law, wouldhave to be enacted. No valid fear need be
entertained thenthat a setback would be occasioned to legitilate state
effortsto stem the tide of subversive activities, in whateverform
manifested.
2. The starting point in any inquiry as to the significanceof the bill of
attainder clause is the meaning attachedto it by the Constitutional
Convention of 1934 and by the people who adopted it. As was explained
by the then Delegate, later Justice, Jose P. Laurel in his address on
November19, 1934 as Chairman of the Committee on the Bill of Rights
quoted in the opinion of the Court: "A billof attainder is a legislative act
which inflicts punishment without judicial trial. (Cummings v. United
States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was
an act of Parliament by which a man was tried, convictedand sentenced
to death without a jury, without ahearing in court, without hearing the
witnesses againsthim and without regard to the rules of evidence. His
bloodwas attainted or corrupted, rendering him devoid of allheritable
quality of acquiring and disposing property bydescent. (Ex
parteGarland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less
than death, the act wasknown as a 'bill of pains and penalties.' Bills of
attainder, like ex post facto laws, were favorite methods of
Stuartoppression. Once, the name of Thomas Jefferson was includedin
a bill of attainder presented to Parliament becauseof his reform
activities." 5Two American SupremeCourt decision were thus in the
minds of the framers.They are Cummings v. Missouri 6 and Ex
parteGarland. 7 They speak unequivocally. Legislative acts, no matter
whattheir form, that apply either to named individuals or
easilyascertainable members of a group in such a way as to inflicton
them punishment amounting to a deprivation ofany right, civil or political,
without judicial trial are billsof attainder prohibited by the Constitution. 8
Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest
for refusing to take the loyalty oath requiredby the state Constitution of
Missouri of 1865. Undersuch a provision, lawyers, doctors, ministers,
and otherprofessionals must disavow that they had ever, "by act
orword," manifested a "desire" for the success of the nation'senemies or
a sympathy" with the rebels of the AmericanCivil War. If they swore
falsely, they were guilty of perjury.If they engaged in their professions
without theoath, they were criminally liable. The United States Supreme
Court condemned the provision as a bill of attainder,identified as any
legislative act inflicting punishment withoutjudicial trial. The deprivation
of any right, civil orpolitical, previously enjoyed, amounted to a
punishment.Why such a conclusion was unavoidable was explained before prescribed, andit is thus brought within the further inhibition of the
inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, Consitutionagainst the passage of an ex post facto law. Inthe case
which inflicts punishment without a judicialtrial. If the punishment be less of Cummings v. Missouri, just decided, ... wehave had occasion to
than death, the actis termed a bill of pains and penalties. Within the consider at length the meaning of abill of attainder and of an ex post
meaningof the Constitution, bills of attainder include bills ofpains and factolaw in the clauseof the Constitution forbidding their passage by the
penalties. In these cases the legislative body, inaddition to its legitimate states,and it is unnecessary to repeat here what we there said.A like
functions, exercises the powersand office of judge; it assumes, in the prohibition is contained in the Constitution againstenactments of this
language of thetextbooks, judicial magistracy; it pronounces upon kind by Congress; and the argumentpresented in that case against
theguilt of the party, without any of the forms or safeguardsof trial; it certain clauses of the Constitutionof Missouri is equally applicable to the
determines the sufficiency of the proofs produced,whether conformable act ofCongress under consideration in this case." 12
to the rules of evidence orotherwise; and it fixes the degree of
There was a reiteration of the Cummings and Garlanddoctrine in United
punishment in accordancewith its own notions of the enormity of the
States v. Lovett, 13 decided in 1946.There it was shown that in 1943 the
offense. ... If the clauses of the 2d article of the Constitutionof Missouri,
respondents, Lovett,Watson, and Dodd, were and had been for several
to which we have referred, had in termsdeclared that Mr. Cummings was
yearsworking for the government. The government agencies,which had
guilty, or should be heldguilty, of having been in armed hostility to the
lawfully employed them, were fully satisfiedwith the quality of their work
UnitedStates, or of having entered that state to avoid beingenrolled or
and wished to keep thememployed on their jobs. Over their protest,
drafted into the military service of the UnitedStates, and, therefore,
Congress providedin Section 304 of the Urgent Deficiency
should be deprived of the right topreach as a priest of the Catholic
AppropriationAct of 1943, by way of an amendment attached to
church, or to teach inany institution of learning, there could be no
theHouse Bill, that after November 15, 1943, no salary orcompensation
question thatthe clauses would constitute a bill of attainder within
should be paid respondent out of any moneythen or thereafter
themeaning of the Federal Constitution. If these clauses, insteadof
appropriated except for services as jurorsor members of the armed
mentioning his name, had declared that all priestsand clergymen within
forces, unless they wereprior to November 15, 1943, again appointed to
the state of Missouri were guiltyof these acts, or should be held guilty of
jobs bythe President with the advide and consent of the
them, and hencebe subjected to the like deprivation, the clause would
Senate.Notwithstanding such Congressional enactment, and thefailure
beequally open to objection. And further, it these clauseshad declared
of the President to reappoint the respondents, theagencies, kept all the
that all such priests and clergymen shouldbe so held guilty, and be thus
respondents at work on their jobs forvarying periods after November 15,
deprived, provided they didnot, by a day designated, do certain specified
1943, but their compensationwas discontinued after that date.
acts, theywould be no less within the inhibition of the Federal
Respondentsbrought this action in the Court of Claims for the salariesto
Constitution.In all these cases there would be the legislativeenactment
which they felt entitled. The Ameican Supreme Courtstated that its
creating the deprivation, without any of theordinary forms and guards
inquiry was thus confined to whether theaction in the light of proper
provided for the security ofthe citizen in the administration of justice by
construction of the Act presenteda justificiable controversy, and, if so,
the establishedtribunales." 10
whether Section304 is a bill of attainder insofar as the respondents
On the very same day that the ruling in Cummings washanded down, Ex wereconcerned.
parte Garland 11 was also decided. Thatwas a motion for leave to
After holding that there was a juditiciable, view theAmerican Supreme
practrice as an attorney beforethe American Supreme Court. Petitioner
Court in an opinion by Justice Blackcategorically affirmed: "We hold that
Garland wasadmitted to such bar at the December term of 1860.
Section 304 fallsprecisely within the category of Congressional
Underthe previous rules of such Court, all that was necessarywas that
actionswhich the Constitution barred by providing that 'No Billof
the applicant have three years practice in the statecourts to which he
Attainder or ex post Law shall be passed.' InCummings v. State of
belonged. In March 1865, the rule waschanged by the addition of a
Missouri, ... this Court said, 'Abill of attainder is a legislative act which
clause requiring that an oathbe taken under the Congressional acts of
inflicts punishmentwithout a judicial trial. If the punishment be lessthan
1862 and 1865to the effect that such candidate for admission to the
death, the act is termed a bill of pains and penalties.Within the meaning
barhad never voluntarily borne arms against the UnitedStates. Petitioner
of the Constitution, bills of attainderinclude bills of pains and penalties.'
Garland could not in conscience subscribeto such an oath, but he was
... On the sameday the Cummings case was decided, the Court, in
able to show a presidentialpardon extended on July 15, 1865. With such
Exparte Garland, also held invalid on the same grounds anAct of
actof clemency, he moved that he be allowed to continue inpractice
Congress which required attorneys practicing beforethis Court to take a
contending that the test oath requirement wasunconstitutional as a bill
similar oath. Neither of thesecases has ever been overruled. They stand
of attainder and that at any rate,he was pardoned. The same ruling was
for the propositionthat legislative acts, no matter what their form,that
announced by theCourt again through Justice Field. Thus: "In the
apply either to named individuals or to easily ascertainablemembers of
exclusionwhich the statute adjudges, it imposes a punishmentfor some
a group in such a way as to inflictpunishment on them without a judicial
of the acts specified which were not punishableat the time they were
trial are billsof attainder prohibited by the Constitution. Adherenceto this
committedl; and for other of the actsit adds a new punishment to that
principle requires invalidation of Section 304. Wedo adhere to it." 14
United States v. Brown 15 a 1965 decision was the firstcase to review a
conviction under the Labor-ManagementReporting and Disclosure Act
of 1959, making it a crimefor a member of the Communist Party to serve
as anofficer ir, except in clerical or custodial positions, anemployee of a
labor union. Respondent Brown, a longshoremanon the San Francisco
docks, and an open andavowed Communist, for more than a quarter of
a centurywas elected to the Executive Board of Local 10 of
theInternational Longshoremen's and Warehousemen's Unionfor
consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961,
respondent was charged in a one-countindictment returned in a district
court of California withservicing as a member of an executive board of a
labororganization while a member of the Communist Party, inwillful
violation of the above provision. The question ofits validity under the bill
of attainder clause was thusproperly raised for adjudication. While
convicted in thelower court, the Court of Appeals for the Ninth
Circuitreversed. It was sustained by the American SupremeCourt. As
noted in the opinion by Chief Justice Warren,"the wide variation in form,
purpose and effect of ante-Constitutionbills of attainder indicates that the
properscope of the Bill of Attainder Clause, and its relevance
tocontemporary problems, must ultimately be sought by attemptingto
discern the reasons for its inclusion in theConstitution, and the evils it
was desinged to eliminate.The best available evidence, the writings of
the architectsof our constitutional system, indicates that the Bill
ofAttainder Clause was inteded not as a narrow, technical(and therefore
soon to be outmoded) prohibition, but ratheras an implementation of the
separation of powers, ageneral safeguard against legislative exercise of
the judicialfunction, or more simply trial by legislature." 16 Then after
referring to Cummings, Garland, and Lovett,Chief Justice Warren
continued: "Under the line of casesjust outlined, Sec. 504 of the Labor
Management Reportingand Disclosure Act plainly constitutes a bill of
attainder. Congress undoubtedly possesses power under theCommerce
Clause to enact legislation designed to keepfrom positions affecting
interstate commerce persons whomay use such positions to bring about
political strikes. In Sec. 504, however, Congress has exceeded the
authoritygranted it by the Constitution. The statute does not setforth a
generally applicable rule decreeing that any personwho commits certain
acts or possesses certain characteristics (acts and characteristics
whhich, in Congress'view, make them likely to initiate political strikes)
shallnot hold union office, and leave to courts and juries thejob of
deciding what persons have committed the specifiedacts or possessed
the specified characteristics. Instead,it designates in no uncertain terms
the personswho possess the fearec characteristics and therefore
cannothold union office without incurring criminal liability members of
the Communist Party." 17
Even Communist Party v. Subversive Activities ControlBoard, 18 where
the provision of the Subversive ActivitiesControl Act of 1950 requiring
the Communist Party ofthe United States to register was sustained, the
opinionof Justice Frankfurter for the Court, speaking for a five-
manmajority, did indicate adherence to the Cummingsprinciple. Had the
American Communist Party been outlawed,the outcome certainly would
have been different.Thus: "The Act is not a bill of attainder. It attaches
notto specified organizations but to described activities inwhich an
organization may or may not engage. The singlingout of an individual for
legislatively prescribed punishmentconstitutes an attainder whether the
individualis called by name or described in terms of conduct
which,because it is past conduct, operates only as a designationof
particular persons. ... The Subversive Activities ControlAct is not of that
king. It requires the registrationonly of organizations which, after the date
of the Act,are found to be under the direction, domination, or controlof
certain foreign powers and to operate primarily toadvance certain
objectives. This finding must be madeafter full administrative hearing,
subject to judicial reviewwhich opens the record for the reviewing
court'sdetermination whether the administrative findings as tofact are
supported by the preponderance of the evidence.Present activity
constitutes an operative element to whichthe statute attaches legal
consequences, not merely a pointof reference for the ascertainment of
particularly personsineluctably designated by the legislature." 19
The teaching of the above cases, which I find highlypersuasive
considering what appeared to be in the mindsof the framers of the 1934
Constitutional Conventionyields for me the conclusion that the Anti-
SubversionAct falls within the ban of the bill of attainder clause. Itshould
be noted that three subsequent cases upholding theCummings and
Garland doctrine were likewise cited in theopinion of the Court. The
interpretation accorded to themby my brethren is, of course, different but
I am unable togo along with them especially in the light of the
categoricallanguage appearing in Lovett. This is not to lose sightof the
qualification that for them could deprive such aholding of its explicit
character as shown by this excerptfrom the opinion of the Court:
"Indeed, were the Anti-SubversionAct a bill of attainder it would be totally
unnecessaryto charge communists in court, as the law alone,without
more, would suffice to secure their conviction andpunishment. But the
fact is that their guilt still has to bejudicially estblished. The Government
has yet to proveat the trial that the accused joined the Party
knowingly,willfully and by overt acts, and that they joined the
Partyknowing its subversive character and with specific intentto further
its objective, i.e., to overthrow the existing Governmentby force, deceit,
and other illegal means and placeit under the control and domination of
a foreign power. 20While not implausible, I find difficulty in yielding
acceptance.In Cummings, there was a criminal prosecution ofthe
Catholic priest who refused to take the loyalty oath.Again in Brown, there
was an indictment of the laborleader who, judging by his membership in
the CommunistParty, did transgress the statutory provision
subsequentlyfound offensive to the bill attainder clause. If the
constructionI would place on theoff-repeated pronouncementof the
American Supreme Court is correct, then the merefact that a criminal
case would have to be instituted wouldnot save the statute. It does seem
clear to me that fromthe very title of the Anti-Subversion Act, "to outlaw
the Communist Party of the Philippines and similar associations,"not to
mention other specific provisions, the taintof invalidity is quite marked.
Hence, my inability to concurin the judgment reached as the statute not
suffering fromany fatal infirmity in view of the Constitutional
prohibitionagainst bills of attainder.
3. This brings me to the question of the alleged repugnancyof the Anti- of fact, that unorthodoxideas be freely ventilated and fully heard. Dissent
Subversion Act to the intellectual libertysafeguarded by the Constitution is notdisloyalty.
in terms of the free speechand free assocition guarantees. 21 It is to be
Such an approach is reinforced by the well-settled constitutionalprinciple
admitted thatat the time of the enactment of Republic Act No. 1700,the
"that even though the governmental purposesbe legitimate and
threat that Communism, the Russian brand then, didpose was a painful
substantial, they cannot be pursuedby means that broadly stifle
reality for Congressional leaders andthe then President. Its shadow fell
fundamental personalliberties when the end can be more narrowly
squarely across thelives of all. Subversion then could neither be denied
achieved.For precision of regulation is the touchstone in an areaso
notdisparaged. There was, in the expert opinion of those conversantwith
closely related to our most precious freedoms." 24 This is so for "a
such mattes, a danger to out national existenceof no mean character.
governmental purpose to control or prevent activities constitutionally
Nonetheless, the remedies toward off such menace must not be
subject to state regulation may notbe achieved by means which sweep
repugnant to our Constitution.We are legally precluded from acting in
unnecessarily broadlyand thereby invade the area of protected
anyother way. The apprehension justly felt is no warrant forthrowing to
freedoms." 25 It isindispensable then that "an over breadth" in the
the discard fundamental guarantees. Vigilantwe had to be, but not at the
applicabilityof the statute be avoided. If such be the case, then theline
expense of constitutional ideals.
dividing the valid from the constitutionally infirm hasbeen crossed. That
One of them, certainly highly-prized of the utmost significance,is the right for me is the conclusion to be drawnfrom the wording of the Anti-
to dissent. One can differ, evenobject; one can express dissatisfaction Subversion Act.
with things as theyare. There are timew when one not only can but
There is to my mind support for the stand I take inthe dissent of Justice
must.Such dissent can take the form of the most critical andthe most
Black in the Communist Party casediscussed above. What is to be kept
disparaging remarks. They may give offense tothose in authority, to
in view is that a legislativemeasure certainly less drastic in its treatment
those who wield powe and influence.Nevertheless, they are entitled to
ofthe admittedly serious Communist problem was found inthe opinion of
constitutional protection.Insofar as the content of such dissent is
this noted jurist offensive to the FirstAmendment of the American
concerned, thelimits are hardly discernible. It cannot be confined totrivial
Constitution safeguardingfree speech. Thus: "If there is one thing certain
matters or to such as are devoid of too much significance.It can reach
aboutthe First Amendment it is that this Amendment was designedto
the heart of things. Such dissentmay, for those not so adventurous in
guarantee the freest interchange of ideas aboutall public matters and
the realm of ideas,possess a subversive tinge. Even those who oppose
that, of course, means the interchangeof all ideas, however such ideas
a democraticform of government cannot be silenced. This is
may be viewed inother countries and whatever change in the existing
trueespecially in centers of learning where scholars competentin their
structureof government it may be hoped that these ideas willbring about.
line may, as a result of their studies, assert thata future is bleak for the
Now, when this country is trying to spreadthe high ideals of democracy
system of government now favoredby Western democracies. There may
all over the world ideals that are revolutionary in many countries
be doubts entertainedby some as to the lawfulness of their exercisingthis
seems to be aparticularly inappropriate time to stifle First
right to dissent to the point of advocary of such adrastic change. Any
Amendmentfreedoms in this country. The same arguments that areused
citizen may do so without fear thatthereby he incurs the risk of a penal
to justify the outlawry of Communist ideas here couldbe used to justify
sanction. That ismerely to affirm the truth of this ringing declaration
an outlawry of the ideas of democracyin other countries." 26 Further he
fromJefferson: "If there be any among us who would wish todissolve this
stated: "I believe with theFramers of the First Amendment that the
union or to change its republican form, letthem stand undisturbed as
internal securityof a nation like ours does not and cannot be made
monuments of the safety withwhich error of opinion may be tolerated
todepend upon the use of force by Government to make allthe beliefs
where reason isleft free to combat it." 22 As was so well put by the
and opinions of the people fit into a commonmold on any single subject.
philosopher,Sidney Hook: "Without holding the right to theexpression of
Such enforced conformity ofthought would tend only to deprive our
heresy at any time and place to be absolute for even the right to non-
people of the boldspirit of adventure and progress which has brought
heretical speech cannot beabsolute it still seems wise to tolerate the
thisNation to its present greatness. The creation of publicopinion by
expression evenof Communist, fascist and other heresies, lest in
groups, organizations, societies, clubs, and partieshas been and is a
outlawingthem we include other kings of heresies, and deprive
necessary part of our democraticsociety. Such groups, like the Sons of
ourselvesof the opportunity to acquite possibly sounder ideasthan our
Liberty and theAmerican Corresponding Societies, played a large part
own." 23
increating sentiment in this country that led the people ofthe Colonies to
The line is to be drawn, however, where the wordsamount to an want a nation of their own. The Father ofthe Constitution James
incitement to commit the crime of seditionor rebellion. The state has Madison said, in speakingof the Sedition Act aimed at crushing the
been reached, to follow theformulation of Cardozo, where thought Jefferson Party,that had that law been in effect during the period
merges into action.Thus is loyalty shown to the freedom of speech or beforethe Revolution, the United States might well have continuedto be
pressordained by the Constitution. It does not bar the expressionof 'miserable colonies, groaning under a foreign yoke.'In my judgment, this
views affecting the very life of the state, even ifopposed to its country's internal security can betterbe served by depending upon the
fundamental presuppositions. It allows, ifit does not require as a matter affection of the peoplethan by attempting to instill them with fear and
dreadof the power of Government. The Communist Party hasnever been
more than a small group in this country. Andits numbers had been
dwindling even before the Governmentbegan its campaign to destroy
the Party by force oflaw. This was because a vast majority of the
Americanpeople were against the Party's policies and
overwhelminglyrejected its candidates year after year. That is the
trueAmerican way of securing this Nation against dangerousideas. Of
course that is not the way to protect the Nationagainst actions of
violence and treason. The Foundersdrew a distinction in our Constitution
which we would bewise to follow. They gave the Government the fullest
powerto prosecute overt actions in violation of valid lawsbut withheld any
power to punish people for nothing morethan advocacy of their
views." 27
With the sentiments thus expressed uppermost in mymind and
congenial to my way of thinking, I cannot sharethe conclusion reached
by my breathren as to the Anti-Subversion Act successfully meeting the
test of validity onfree speech and freedom of association grounds.
4. It could be that this approach to the constitutionalquestions involved
arises from an appraisal of the challengedstatute which for me is
susceptible of an interpretationthat it does represent a defeatist attitude
on thepart of those of us, who are devotees at the shrine of aliberal-
democratic state. That certainly could not havebeen the thought of its
framers; nonetheless, such an assumptionis not devoid of plausibility for
why resort tothis extreme measure susceptible as it is to what
apparentlyare not unfounded attacks on constitutional grounds?Is this
not to ignore what previously was accepted as anobvious truth, namely
that the light of liberalism sendsits shafts in many directions? It can
illuminate, and itcan win the hearts and minds of men. It if difficult forme
to accept the view then that a resort to outlawry isindispensable, that
suppression is the only answer to whatis an admitted evil. There could
have been a greater exposureof the undesirability of the communist
creed, itscontradictions and arbitrarines, its lack of fealty to reason,its
inculcation of disloyalty, and its subservience tocentralized dictation that
brooks no opposition. It is thus,in a realistic sense, a manifestation of
the fear of freethought and the will to suppress it. For better, of course,is
the propaganda of the deed. What the communists promise,this
government can fulfill. It is up to it then to takeremedial measures to
alleviate the condition of our countrymenwhose lives are in a condition
of destitution andmisery. It may not be able to change matters
radically.At least, it should take earnest steps in that direction.What is
important for those at the bottom of the economicpyramid is that they
are not denied the opportunity for abetter life. If they, or at least their
children, cannot evenlook forward to that, then a constitutional regime is
nothingbut a mockery and a tragic illusion. Such a response,I am
optimistic enough to believe, has the merit of thinning,if not completely
eliminating, the embattled ranksand outposts of ignorance, fanaticism
and error. That forme would be more in accordance with the basic
propositionof our polity. This is not therefore to preach a doctrine of
object surrender to the forces apparently bent on the adoption of a way
of life so totally opposed to the deeply felt traditions of our people. This
is, for me at least, an affirmation of the vitality of the democratic creed,
with an expression of regret that it could not have been more
impressively set forth in language worthy of the subject.
It is in the light of the views above expressed that I find myself unable to
yield concurrence to the ably-written opinion of Justice Castro for the
Court sustaining the validity of the Anti-Subversion Act.
Separate Opinions
FERNANDO, J., dissenting:
It is with regard that I find myself unable to join therest of my brethren in
the decision reached upholding thevalidity of the Anti-Subversion
Act. 1 It is to be admittedthat the learned and scholarly opinbion of
Justice Castro hasthe impress of conscientious and painstaking scrutiny
ofthe constitutional issues raised. What is more, the stressin the
concluding portion thereof on basic guidelines thatwill assure in the trial
of those prosecuted under suchAct respect for their constitutional rights
is to be commended.Nonetheless, my own reading of the decisionscited,
interpreting the bill of attainder clause 2 coupled withthe fears, perhaps
induced by a too-latitudinarian constructionof the guarantees of freedom
of belief and expression 3 as well as freedom of association 4 as to
impermissible inroadsto which they may be exposed, compels a
differentconclusion. Hence this dissent.
1. There is to be sure no thought on my part that theequally pressing
concern of state safety and security shouldbe ignored. The political
branches of the governmentwould lay themselves oepn to a justifiable
indictment fornegligence had they been remiss in their obligation
tosafeguard the nation against its sworn enemies. In a simplerera, where
the overthrow of the government wasusually through the rising up in
arms, with weapons farless sophisticated than those now in existence,
there wasno constitutional issue of the magnitude that now confrontsus.
Force has to be met with force. It was as clearcutas that. Advances in
science as well as more subtlemethods of inducing disloyalty and
weakening the senseof allegiance have introduced complexities in
coping withsuch problems. There must be then, and I am the firstto
recognize it, a greater understanding for the governmentalresponde to
situations of that character. It is inthat light that the validity of the Anti-
Subversion Act isto be appraised. From ny standpoint, and I am not
presumptuousenough to claim that it is the only perspectiveor that is the
most realistic, I feel that there was an insufficientappreciation of the
compulsion of the constitutionalcommands against bills of attainder and
abridgmentof free speech. I am comforted by the thought that evenhad
my view prevailed, all that it would mean is that anew legislation, more
in comformity to my way of thinkingto what is ordained by the
fundamental law, wouldhave to be enacted. No valid fear need be
entertained thenthat a setback would be occasioned to legitilate state
effortsto stem the tide of subversive activities, in whateverform
manifested.
2. The starting point in any inquiry as to the significanceof the bill of
attainder clause is the meaning attachedto it by the Constitutional
Convention of 1934 and by the people who adopted it. As was explained
by the then Delegate, later Justice, Jose P. Laurel in his address on
November19, 1934 as Chairman of the Committee on the Bill of Rights
quoted in the opinion of the Court: "A billof attainder is a legislative act
which inflicts punishment without judicial trial. (Cummings v. United
States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was
an act of Parliament by which a man was tried, convictedand sentenced
to death without a jury, without ahearing in court, without hearing the
witnesses againsthim and without regard to the rules of evidence. His
bloodwas attainted or corrupted, rendering him devoid of allheritable
quality of acquiring and disposing property bydescent. (Ex
parteGarland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less
than death, the act wasknown as a 'bill of pains and penalties.' Bills of
attainder, like ex post facto laws, were favorite methods
Stuartoppression. Once, the name of Thomas Jefferson was includedin
a bill of attainder presented to Parliament becauseof his reform
activities." 5Two American SupremeCourt decision were thus in the
minds of the framers.They are Cummings v. Missouri 6 and Ex
parteGarland. 7 They speak unequivocally. Legislative acts, no matter
whattheir form, that apply either to named individuals
easilyascertainable members of a group in such a way as to inflicton
them punishment amounting to a deprivation ofany right, civil or political,
without judicial trial are billsof attainder prohibited by the Constitution. 8
Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest
for refusing to take the loyalty oath requiredby the state Constitution of
Missouri of 1865. Undersuch a provision, lawyers, doctors, ministers,
and otherprofessionals must disavow that they had ever, "by act
orword," manifested a "desire" for the success of the nation'senemies or
a sympathy" with the rebels of the AmericanCivil War. If they swore
falsely, they were guilty of perjury.If they engaged in their professions
without theoath, they were criminally liable. The United States Supreme
Court condemned the provision as a bill of attainder,identified as any
legislative act inflicting punishment withoutjudicial trial. The deprivation
of any right, civil orpolitical, previously enjoyed, amounted to a
punishment.Why such a conclusion was unavoidable was explained
inthe opinion of Justice Field thus: "A bill of attainder isa legislative act,
which inflicts punishment without a judicialtrial. If the punishment be less
than death, the actis termed a bill of pains and penalties. Within the
meaningof the Constitution, bills of attainder include bills ofpains and
penalties. In these cases the legislative body, inaddition to its legitimate
functions, exercises the powersand office of judge; it assumes, in the
language of thetextbooks, judicial magistracy; it pronounces upon
theguilt of the party, without any of the forms or safeguardsof trial; it
determines the sufficiency of the proofs produced,whether conformable
to the rules of evidence orotherwise; and it fixes the degree of
punishment in accordancewith its own notions of the enormity of the
offense. ... If the clauses of the 2d article of the Constitutionof Missouri,
to which we have referred, had in termsdeclared that Mr. Cummings was
guilty, or should be heldguilty, of having been in armed hostility to the
UnitedStates, or of having entered that state to avoid beingenrolled or
drafted into the military service of the UnitedStates, and, therefore,
should be deprived of the right topreach as a priest of the Catholic
church, or to teach inany institution of learning, there could be no
question thatthe clauses would constitute a bill of attainder within
themeaning of the Federal Constitution. If these clauses, insteadof
mentioning his name, had declared that all priestsand clergymen within
the state of Missouri were guiltyof these acts, or should be held guilty of
them, and hencebe subjected to the like deprivation, the clause would
beequally open to objection. And further, it these clauseshad declared
that all such priests and clergymen shouldbe so held guilty, and be thus
deprived, provided they didnot, by a day designated, do certain specified
acts, theywould be no less within the inhibition of the Federal
Constitution.In all these cases there would be the legislativeenactment
creating the deprivation, without any of theordinary forms and guards
of provided for the security ofthe citizen in the administration of justice by
the establishedtribunales." 10
On the very same day that the ruling in Cummings washanded down, Ex
parte Garland 11 was also decided. Thatwas a motion for leave to
practrice as an attorney beforethe American Supreme Court. Petitioner
Garland wasadmitted to such bar at the December term of 1860.
or
Underthe previous rules of such Court, all that was necessarywas that
the applicant have three years practice in the statecourts to which he
belonged. In March 1865, the rule waschanged by the addition of a
clause requiring that an oathbe taken under the Congressional acts of
1862 and 1865to the effect that such candidate for admission to the
barhad never voluntarily borne arms against the UnitedStates. Petitioner
Garland could not in conscience subscribeto such an oath, but he was
able to show a presidentialpardon extended on July 15, 1865. With such
actof clemency, he moved that he be allowed to continue inpractice
contending that the test oath requirement wasunconstitutional as a bill
of attainder and that at any rate,he was pardoned. The same ruling was
announced by theCourt again through Justice Field. Thus: "In the
exclusionwhich the statute adjudges, it imposes a punishmentfor some
of the acts specified which were not punishableat the time they were
committedl; and for other of the actsit adds a new punishment to that
before prescribed, andit is thus brought within the further inhibition of the
Consitutionagainst the passage of an ex post facto law. Inthe case
of Cummings v. Missouri, just decided, ... wehave had occasion to
consider at length the meaning of abill of attainder and of an ex post
factolaw in the clauseof the Constitution forbidding their passage by the
states,and it is unnecessary to repeat here what we there said.A like
prohibition is contained in the Constitution againstenactments of this
kind by Congress; and the argumentpresented in that case against
certain clauses of the Constitutionof Missouri is equally applicable to the
act ofCongress under consideration in this case." 12
There was a reiteration of the Cummings and Garlanddoctrine in United
States v. Lovett, 13 decided in 1946.There it was shown that in 1943 the
respondents, Lovett,Watson, and Dodd, were and had been for several
yearsworking for the government. The government agencies,which had
lawfully employed them, were fully satisfiedwith the quality of their work
and wished to keep thememployed on their jobs. Over their protest,
Congress providedin Section 304 of the Urgent Deficiency
AppropriationAct of 1943, by way of an amendment attached to
theHouse Bill, that after November 15, 1943, no salary orcompensation
should be paid respondent out of any moneythen or thereafter
appropriated except for services as jurorsor members of the armed
forces, unless they wereprior to November 15, 1943, again appointed to
jobs bythe President with the advide and consent of the
Senate.Notwithstanding such Congressional enactment, and thefailure
of the President to reappoint the respondents, theagencies, kept all the
respondents at work on their jobs forvarying periods after November 15,
1943, but their compensationwas discontinued after that date.
Respondentsbrought this action in the Court of Claims for the salariesto
which they felt entitled. The Ameican Supreme Courtstated that its
inquiry was thus confined to whether theaction in the light of proper
construction of the Act presenteda justificiable controversy, and, if so,
whether Section304 is a bill of attainder insofar as the respondents
wereconcerned.
After holding that there was a juditiciable, view theAmerican Supreme
Court in an opinion by Justice Blackcategorically affirmed: "We hold that
Section 304 fallsprecisely within the category of Congressional
actionswhich the Constitution barred by providing that 'No Billof
Attainder or ex post Law shall be passed.' InCummings v. State of
Missouri, ... this Court said, 'Abill of attainder is a legislative act which
inflicts punishmentwithout a judicial trial. If the punishment be lessthan
death, the act is termed a bill of pains and penalties.Within the meaning
of the Constitution, bills of attainderinclude bills of pains and penalties.'
... On the sameday the Cummings case was decided, the Court, in
Exparte Garland, also held invalid on the same grounds anAct of
Congress which required attorneys practicing beforethis Court to take a
similar oath. Neither of thesecases has ever been overruled. They stand
for the propositionthat legislative acts, no matter what their form,that
apply either to named individuals or to easily ascertainablemembers of
a group in such a way as to inflictpunishment on them without a judicial
trial are billsof attainder prohibited by the Constitution. Adherenceto this
principle requires invalidation of Section 304. Wedo adhere to it." 14
United States v. Brown 15 a 1965 decision was the firstcase to review a
conviction under the Labor-ManagementReporting and Disclosure Act
of 1959, making it a crimefor a member of the Communist Party to serve
as anofficer ir, except in clerical or custodial positions, anemployee of a
labor union. Respondent Brown, a longshoremanon the San Francisco
docks, and an open andavowed Communist, for more than a quarter of
a centurywas elected to the Executive Board of Local 10 of
theInternational Longshoremen's and Warehousemen's Unionfor
consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961,
respondent was charged in a one-countindictment returned in a district
court of California withservicing as a member of an executive board of a
labororganization while a member of the Communist Party, inwillful
violation of the above provision. The question ofits validity under the bill
of attainder clause was thusproperly raised for adjudication. While
convicted in thelower court, the Court of Appeals for the Ninth
Circuitreversed. It was sustained by the American SupremeCourt. As
noted in the opinion by Chief Justice Warren,"the wide variation in form,
purpose and effect of ante-Constitutionbills of attainder indicates that the
properscope of the Bill of Attainder Clause, and its relevance
tocontemporary problems, must ultimately be sought by attemptingto
discern the reasons for its inclusion in theConstitution, and the evils it
was desinged to eliminate.The best available evidence, the writings of
the architectsof our constitutional system, indicates that the Bill
ofAttainder Clause was inteded not as a narrow, technical(and therefore
soon to be outmoded) prohibition, but ratheras an implementation of the
separation of powers, ageneral safeguard against legislative exercise of
the judicialfunction, or more simply trial by legislature." 16 Then after
referring to Cummings, Garland, and Lovett,Chief Justice Warren
continued: "Under the line of casesjust outlined, Sec. 504 of the Labor
Management Reportingand Disclosure Act plainly constitutes a bill of
attainder. Congress undoubtedly possesses power under theCommerce
Clause to enact legislation designed to keepfrom positions affecting
interstate commerce persons whomay use such positions to bring about
political strikes. In Sec. 504, however, Congress has exceeded the
authoritygranted it by the Constitution. The statute does not setforth a
generally applicable rule decreeing that any personwho commits certain
acts or possesses certain characteristics (acts and characteristics
whhich, in Congress'view, make them likely to initiate political strikes)
shallnot hold union office, and leave to courts and juries thejob of
deciding what persons have committed the specifiedacts or possessed
the specified characteristics. Instead,it designates in no uncertain terms
the personswho possess the fearec characteristics and therefore
cannothold union office without incurring criminal liability members of
the Communist Party." 17
Even Communist Party v. Subversive Activities ControlBoard, 18 where
the provision of the Subversive ActivitiesControl Act of 1950 requiring
the Communist Party ofthe United States to register was sustained, the
opinionof Justice Frankfurter for the Court, speaking for a five-
manmajority, did indicate adherence to the Cummingsprinciple. Had the
American Communist Party been outlawed,the outcome certainly would
have been different.Thus: "The Act is not a bill of attainder. It attaches
notto specified organizations but to described activities inwhich an
organization may or may not engage. The singlingout of an individual for
legislatively prescribed punishmentconstitutes an attainder whether the
individualis called by name or described in terms of conduct
which,because it is past conduct, operates only as a designationof
particular persons. ... The Subversive Activities ControlAct is not of that
king. It requires the registrationonly of organizations which, after the date
of the Act,are found to be under the direction, domination, or controlof
certain foreign powers and to operate primarily toadvance certain
objectives. This finding must be madeafter full administrative hearing,
subject to judicial reviewwhich opens the record for the reviewing
court'sdetermination whether the administrative findings as tofact are
supported by the preponderance of the evidence.Present activity
constitutes an operative element to whichthe statute attaches legal
consequences, not merely a pointof reference for the ascertainment of
particularly personsineluctably designated by the legislature." 19
The teaching of the above cases, which I find highlypersuasive
considering what appeared to be in the mindsof the framers of the 1934
Constitutional Conventionyields for me the conclusion that the Anti-
SubversionAct falls within the ban of the bill of attainder clause. Itshould
be noted that three subsequent cases upholding theCummings and
Garland doctrine were likewise cited in theopinion of the Court. The
interpretation accorded to themby my brethren is, of course, different but
I am unable togo along with them especially in the light of the
categoricallanguage appearing in Lovett. This is not to lose sightof the
qualification that for them could deprive such aholding of its explicit
character as shown by this excerptfrom the opinion of the Court:
"Indeed, were the Anti-SubversionAct a bill of attainder it would be totally
unnecessaryto charge communists in court, as the law alone,without
more, would suffice to secure their conviction andpunishment. But the
fact is that their guilt still has to bejudicially estblished. The Government
has yet to proveat the trial that the accused joined the Party
knowingly,willfully and by overt acts, and that they joined the
Partyknowing its subversive character and with specific intentto further
its objective, i.e., to overthrow the existing Governmentby force, deceit,
and other illegal means and placeit under the control and domination of
a foreign power. 20While not implausible, I find difficulty in yielding
acceptance.In Cummings, there was a criminal prosecution ofthe
Catholic priest who refused to take the loyalty oath.Again in Brown, there
was an indictment of the laborleader who, judging by his membership in
the CommunistParty, did transgress the statutory provision
subsequentlyfound offensive to the bill attainder clause. If the
constructionI would place on theoff-repeated pronouncementof the
American Supreme Court is correct, then the merefact that a criminal
case would have to be instituted wouldnot save the statute. It does seem
clear to me that fromthe very title of the Anti-Subversion Act, "to outlaw
the Communist Party of the Philippines and similar associations,"not to
mention other specific provisions, the taintof invalidity is quite marked.
Hence, my inability to concurin the judgment reached as the statute not
suffering fromany fatal infirmity in view of the Constitutional
prohibitionagainst bills of attainder.
3. This brings me to the question of the alleged repugnancyof the Anti-
Subversion Act to the intellectual libertysafeguarded by the Constitution
in terms of the free speechand free assocition guarantees. 21 It is to be
admitted thatat the time of the enactment of Republic Act No. 1700,the
threat that Communism, the Russian brand then, didpose was a painful
reality for Congressional leaders andthe then President. Its shadow fell
squarely across thelives of all. Subversion then could neither be denied
notdisparaged. There was, in the expert opinion of those conversantwith
such mattes, a danger to out national existenceof no mean character.
Nonetheless, the remedies toward off such menace must not be
repugnant to our Constitution.We are legally precluded from acting in
anyother way. The apprehension justly felt is no warrant forthrowing to
the discard fundamental guarantees. Vigilantwe had to be, but not at the
expense of constitutional ideals.
One of them, certainly highly-prized of the utmost significance,is the right
to dissent. One can differ, evenobject; one can express dissatisfaction
with things as theyare. There are timew when one not only can but
must.Such dissent can take the form of the most critical andthe most
disparaging remarks. They may give offense tothose in authority, to
those who wield powe and influence.Nevertheless, they are entitled to
constitutional protection.Insofar as the content of such dissent is
concerned, thelimits are hardly discernible. It cannot be confined totrivial
matters or to such as are devoid of too much significance.It can reach
the heart of things. Such dissentmay, for those not so adventurous in
the realm of ideas,possess a subversive tinge. Even those who oppose
a democraticform of government cannot be silenced. This is
trueespecially in centers of learning where scholars competentin their
line may, as a result of their studies, assert thata future is bleak for the
system of government now favoredby Western democracies. There may
be doubts entertainedby some as to the lawfulness of their exercisingthis
right to dissent to the point of advocary of such adrastic change. Any
citizen may do so without fear thatthereby he incurs the risk of a penal
sanction. That ismerely to affirm the truth of this ringing declaration
fromJefferson: "If there be any among us who would wish todissolve this
union or to change its republican form, letthem stand undisturbed as
monuments of the safety withwhich error of opinion may be tolerated
where reason isleft free to combat it." 22 As was so well put by the
philosopher,Sidney Hook: "Without holding the right to theexpression of
heresy at any time and place to be absolute for even the right to non-
heretical speech cannot beabsolute it still seems wise to tolerate the
expression evenof Communist, fascist and other heresies, lest in
outlawingthem we include other kings of heresies, and deprive
ourselvesof the opportunity to acquite possibly sounder ideasthan our
own." 23
The line is to be drawn, however, where the wordsamount to an
incitement to commit the crime of seditionor rebellion. The state has
been reached, to follow theformulation of Cardozo, where thought
merges into action.Thus is loyalty shown to the freedom of speech or
pressordained by the Constitution. It does not bar the expressionof
views affecting the very life of the state, even ifopposed to its
fundamental presuppositions. It allows, ifit does not require as a matter
of fact, that unorthodoxideas be freely ventilated and fully heard. Dissent
is notdisloyalty.
Such an approach is reinforced by the well-settled constitutionalprinciple
"that even though the governmental purposesbe legitimate and
substantial, they cannot be pursuedby means that broadly stifle
fundamental personalliberties when the end can be more narrowly
achieved.For precision of regulation is the touchstone in an areaso
closely related to our most precious freedoms." 24 This is so for "a
governmental purpose to control or prevent activities constitutionally
subject to state regulation may notbe achieved by means which sweep
unnecessarily broadlyand thereby invade the area of protected
freedoms." 25 It isindispensable then that "an over breadth" in the
applicabilityof the statute be avoided. If such be the case, then theline
dividing the valid from the constitutionally infirm hasbeen crossed. That
for me is the conclusion to be drawnfrom the wording of the Anti-
Subversion Act.
There is to my mind support for the stand I take inthe dissent of Justice
Black in the Communist Party casediscussed above. What is to be kept
in view is that a legislativemeasure certainly less drastic in its treatment
ofthe admittedly serious Communist problem was found inthe opinion of
this noted jurist offensive to the FirstAmendment of the American
Constitution safeguardingfree speech. Thus: "If there is one thing certain
aboutthe First Amendment it is that this Amendment was designedto
guarantee the freest interchange of ideas aboutall public matters and
that, of course, means the interchangeof all ideas, however such ideas
may be viewed inother countries and whatever change in the existing
structureof government it may be hoped that these ideas willbring about.
Now, when this country is trying to spreadthe high ideals of democracy
all over the world ideals that are revolutionary in many countries
seems to be aparticularly inappropriate time to stifle First
Amendmentfreedoms in this country. The same arguments that areused
to justify the outlawry of Communist ideas here couldbe used to justify
an outlawry of the ideas of democracyin other countries." 26 Further he
stated: "I believe with theFramers of the First Amendment that the
internal securityof a nation like ours does not and cannot be made
todepend upon the use of force by Government to make allthe beliefs
and opinions of the people fit into a commonmold on any single subject.
Such enforced conformity ofthought would tend only to deprive our
people of the boldspirit of adventure and progress which has brought
thisNation to its present greatness. The creation of publicopinion by
groups, organizations, societies, clubs, and partieshas been and is a
necessary part of our democraticsociety. Such groups, like the Sons of
Liberty and theAmerican Corresponding Societies, played a large part
increating sentiment in this country that led the people ofthe Colonies to
want a nation of their own. The Father ofthe Constitution James
Madison said, in speakingof the Sedition Act aimed at crushing the
Jefferson Party,that had that law been in effect during the period
beforethe Revolution, the United States might well have continuedto be
'miserable colonies, groaning under a foreign yoke.'In my judgment, this
country's internal security can betterbe served by depending upon the
affection of the peoplethan by attempting to instill them with fear and
dreadof the power of Government. The Communist Party hasnever been
more than a small group in this country. Andits numbers had been
dwindling even before the Governmentbegan its campaign to destroy
the Party by force oflaw. This was because a vast majority of the
Americanpeople were against the Party's policies and
overwhelminglyrejected its candidates year after year. That is the
trueAmerican way of securing this Nation against dangerousideas. Of
course that is not the way to protect the Nationagainst actions of
violence and treason. The Foundersdrew a distinction in our Constitution
which we would bewise to follow. They gave the Government the fullest
powerto prosecute overt actions in violation of valid lawsbut withheld any
power to punish people for nothing morethan advocacy of their
views." 27
With the sentiments thus expressed uppermost in mymind and
congenial to my way of thinking, I cannot sharethe conclusion reached
by my breathren as to the Anti-Subversion Act successfully meeting the
test of validity onfree speech and freedom of association grounds.
4. It could be that this approach to the constitutionalquestions involved
arises from an appraisal of the challengedstatute which for me is
susceptible of an interpretationthat it does represent a defeatist attitude
on thepart of those of us, who are devotees at the shrine of aliberal-
democratic state. That certainly could not havebeen the thought of its
framers; nonetheless, such an assumptionis not devoid of plausibility for
why resort tothis extreme measure susceptible as it is to what
apparentlyare not unfounded attacks on constitutional grounds?Is this
not to ignore what previously was accepted as anobvious truth, namely
that the light of liberalism sendsits shafts in many directions? It can
illuminate, and itcan win the hearts and minds of men. It if difficult forme
to accept the view then that a resort to outlawry isindispensable, that
suppression is the only answer to whatis an admitted evil. There could
have been a greater exposureof the undesirability of the communist
creed, itscontradictions and arbitrarines, its lack of fealty to reason,its
inculcation of disloyalty, and its subservience tocentralized dictation that
brooks no opposition. It is thus,in a realistic sense, a manifestation of
the fear of freethought and the will to suppress it. For better, of course,is
the propaganda of the deed. What the communists promise,this
government can fulfill. It is up to it then to takeremedial measures to
alleviate the condition of our countrymenwhose lives are in a condition
of destitution andmisery. It may not be able to change matters
radically.At least, it should take earnest steps in that direction.What is
important for those at the bottom of the economicpyramid is that they
are not denied the opportunity for abetter life. If they, or at least their
children, cannot evenlook forward to that, then a constitutional regime is
nothingbut a mockery and a tragic illusion. Such a response,I am
optimistic enough to believe, has the merit of thinning,if not completely
eliminating, the embattled ranksand outposts of ignorance, fanaticism
and error. That forme would be more in accordance with the basic
propositionof our polity. This is not therefore to preach a doctrine of
object surrender to the forces apparently bent on the adoption of a way
of life so totally opposed to the deeply felt traditions of our people. This
is, for me at least, an affirmation of the vitality of the democratic creed,
with an expression of regret that it could not have been more
impressively set forth in language worthy of the subject.
It is in the light of the views above expressed that I find myself unable to
yield concurrence to the ably-written opinion of Justice Castro for the
Court sustaining the validity of the Anti-Subversion Act.
Footnotes
1 Rep. Act. No. 1700, 12 Laws & Res. 102 (1957). The text of the statute
is hereunder reproduced in full:
"AN ACT TO OUTLAW THE COMMUNIST PARTY OF THE
PHILIPPINES AND SIMILAR ASSOCIATIONS PENALIZING
MEMBERSHIP THEREIN, AND FOR OTHER PURPOSES.
"WHEREAS, the Communist Party of the Philippines, although
purportedly a political party, is in fact an organized conspiracy to
overthrow the Government of the Republic of the Philippines not only by
force and violence but also by deceit, subversion and other illegal
means, for the purpose of establishing in the Philippines a totalitarian
regime subject to alien domination and control;
"WHEREAS, the continued existence and activities of the Communist
Party of the Philippines constitutes a clear, present and grave danger to
the security of the Philippines; and
"WHEREAS, in the face of the organized, systematic and persistent
subversion, national in scope but international in direction, posed by the
Communist Party of the Philippines and its activities, there is urgent
need for special legislation to cope with this continuing menace to the
freedom and security of the country: Now, therefore,
"Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled:
"Section 1. This Act shall be known as Anti-Subversion Act.
"Section 2. The Congress hereby declares the Communist Party of the
Philippines to be an organized conspiracy to overthrow the Government
of the Republic of the Philippines for the purpose of establishing in the
Philippines a totalitarian regime and place the Government under the
control and domination of an alien power. The said party and any other
organization having the same purpose and their successors are hereby
declared illegal and outlawed.
Section 3. As used in this Act, the term 'Communist Party of the
Philippines' shall me and and include the organizations now known as
the Communist Party of the Philippines and its military arm, the Hukbong
Mapagpalayang Bayan, formerly known as HUKBALAHAPS, and any
successors of such organizations.
"Section 4. After the approval of this Act, whoever knowingly, willfully
and by overt acts affiliates himself with, becomes or remains a member
of the Communist Party of the Philippines and/or its successor or of any
subversive association as defined in section two hereof shall be
punished by the penalty of arresto mayor and shall be disqualified
permanently from holding any public office, appointive and elective, and
from exercising the right to vote; in case of a second conviction, the
principal penalty shall be prision correccional, and in all subsequent
convictions the penalty of prision mayor shall be imposed; and any alien
convicted under this Act shall be deported immediately after he shall
have served the sentence imposed upon him: Provided, That if such
member is an officer or a ranking leader of the Communist Party of the
Philippines or of any subversive association as defined in section two
hereof, or if such member takes up arms against the Government he
shall be punished by prision mayor to deal with all the accessory
penalties provided therefor in the Revised Penal Code: And provided,
finally, That one who conspires with any other person to overthrow the
Government of the Republic of the Philippines or the government of any
of its political subdivisions by force, violence, deceit, subversion or other
illegal means, for the purpose of placing such Government or political
subdivision under the control and domination of any alien power, shall
be punished by prision correccional to prision mayor with all the
accessory penalties provided therefor in the same Code.
"Section 5. No prosecution under this Act shall be made unless the city
or provincial fiscal, or any special attorney or prosecutor duly designated
by the Secretary of Justice as the case may be, finds after due
investigation of the facts, that a prima facie case for violation of this Act
exists against the accused, and thereafter presents an information in
court against the said accused in due form, and certifies under oath that
he has conducted a proper preliminary investigation thereof, with notice,
whenever it is possible to give the same, to the party concerned, who
shall have the right to be represented by counsel, to testify, to have
compulsory process for obtaining witness in his favor, and to cross-
examine witnesses against him: Provided, That the preliminary
investigation of any offense defined and penalized herein by prision
mayor to death shall be conducted by the property Court of First
Instance.
"Section 6. Any person who knowingly furnishes false evidence in any
action brought under this Act shall be punished by prision correccional.
"Section 7. No person shall be convicted of any of the offenses penalized
herein with prision mayor to death unless on the testimony of at least
two witnesses to the same overt act or on confession of the accused in
open court.
"Section 8. Within thirty days after the approval of this Act, any person
who is a member of the Communist Party of the Philippines or of any
such association or conspiracy, who desires to renounce such
membership may do so in writing and under oath before a municipal or
city mayor, a provincial governor, or a person authorized by law to
administer oaths. Such renunciation shall exempt such person or
persons from the penal sanction of this Act, but the same shall in no way
exempt him from liability for criminal acts or for any violation of the
existing laws of the Republic of the Philippines committed before this Act
takes effect.
"Section 9. Nothing in this Act shall be interpreted as a restriction to
freedom of thought, of assembly and of association for purposes not
contrary to law as guaranteed by the Constitution.
"Approved, June 20, 1957."
2 Delegate Jose P. Laurel (of the 1934 Constitutional Convention)
referred to the Anglo-American origin of this right thus:
"No ex post facto law or bill of attainder shall be enacted. This provision
is found in the American Federal Constitution (Art. 1, Sec. 9) and is
applicable to the States (id. Sec. 10). An ex post facto law is a law which
makes an act punishable in a manner in which it was not punishable
when committed. It creates or aggravates the crime or increases the
punishment, or changes the rules of evidence for the purpose of
conviction. The prohibition against the passage of ex post facto laws is
an additional bulwark of personal security protecting the citizen from
punishment by legislative act which has a retrospective operation.
"The phrase ex post facto has a technical meaning and refers to crimes
and criminal proceedings. It is in this sense that it was used in England.
It was in this sense that the convention of 1787 understood it. (Calder v.
Bull, supra; Watson v. Mercer, 8 Pet. 88, 110; Suterlee v. Mathewson, 2
Peters, 380; Kring v. Missouri, 107 U.S. 221.) This interpretation was
upheld by our Supreme Court (U.S. vs. Ang Ken Ko, 6 Phil. 376.).
"A bill of attainder is a legislative act which inflicts punishment without
judicial trial. (Cummings vs. United States, 4 Wall. 277, 18 L. ed. 356.)
In England, the Bill of Attainder was an act of Parliament by which a man
was tried, convicted and sentenced to death without a jury, without a
hearing in court, without hearing the witnesses against him and without
regard to the rules of evidence. His blood was attained or corrupted,
rendering him devoid of all heritable quality of acquiring and disposing
property by descent. (Ex parte Garland, 4 Wall. 333, 18 L. ed 366.) If the
penalty imposed was less than death, the act was known as a "bill of
pains and penalties." Bills of attainder, like ex post factolaws, were
favorite methods of Stuart oppression. Once, the name of Thomas
Jefferson was included in a bill of attainder presented to Parliament
because of his reform activities.
"Often, such bills were 'stimulated by ambition or personal resentment,
and vindictive malice.' (Calder v. Bull, supra.) A well known case
illustrating the ruthless manner in which a bill of attainder was resorted
to was that of Thomas Wentworth, chief adviser of Charles I. He was
brought to impeachment charged with attempting to subvert the liberties
of England. He defended himself so ably that his enemies, fearing his
acquittal, withdrew the impeachment and a bill of attainder was passed
instead. Wentworth was beheaded. Bills of attainder were also passed
in the Colonies (North, The Constitution of the U.S., its Sources and
Applications, p. 85.) The prohibition in the Bill of Rights, therefore, seeks
to present acts of violence and injustice brought about the passage of
such bills." (3 J. Laurel, Proceedings of the Constitutional Convention
661-663 [1966]).
3 Cummings vs. United States, 4 Wall. (71 U.S.) 277 (1867); accord, Ex
parte Garland, 4 Wall. (71 U.S.) 333 (1867). This definition was adopted
by this Court in People vs. Carlos, 78 Phil. 535, 544 (1947) and in People
vs. Montenegro, 91 Phil. 883,885 (1952).
4 De Veau vs. Braisted, 363 U.S. 144, 160 (1960); United States vs.
Lovett, 328 U.S. 303, 615, (1946).
5 Chief Justice Warren referred to the Bill of Attainder Chause as an
implementation of the separation of powers, "a general safeguard
against legislative exercise of judicial function, or more simply, trial by
legislature." United States vs. Brown, 381 U.S. 437 (1964).
6 "It is the peculiar province of the legislature to prescribe general rules
for the government of society; the application of those rules to individuals
in society would seem to be the duty of other departments." Fletcher vs.
Peck, 6 Cranch (10 U.S.)87, 136 (1810).
7 "The legislative body in enacting bills of attainder exercises the powers
and office of judge, it pronounces upon the guilt of the party, without any
of the forms or safeguards of trial...it fixes the degree of punishment in
accordance with its own notions of the enormity of the offense."
Cummings vs. Missouri, supra note 3.
8 Bills of this sort, says Mr. Justice Story, have been most usually
passed in England in times of rebellion or gross subserviency to the
crown, or of violent political excitements; periods, in which all nations
are most liable (as well as free as the enslabe) to forget their duties, and
to trample upon the rights and liberties of others." Comm. sec. 1344, in
re Young Sing Hee, 36 Fed. 347, 440. During the American revolution
legislative punishments had been continued by state legislatures, when
numerous bills of attainder were enacted against the Torries. 1C.
Antieu, Modern Constitutional Law, 425.
9 C. Antieu, supra note 8 at 423.
10 The Supreme Court of the United States said in Fleming vs. Nestor,
363 U.S. 603, 613-14 (1960):
"In determining whether legislation which bases a disqualification on the
happening of a certain past event imposes a punishment, the Court has
sought to discern the objects on which the enactment in question was
focused. Where the source of legislative concern can be thought to be
the activity or status from which the individual is barred, the
disqualification is not punishment even though it may bear harshly upon
one affected."
11 73 Stat. 536, 29 U.S.C. sec. 504 (1958 ed. Supp. IV).
12 381 U.S. 437 (1965) (5-4 vote).
13 Keyishian vs. Board of Regents, 385 U.S. 589 (1967);Elfbrandt vs.
Russell, 384 U.S. 11 (1966).
14 Cf . Scales vs. United States, 367 U.S. 203 (1961); Noto vs. United
States, 367 U.S. 290 (1961).
15 During the Senate deliberations on the bill, Senator Cea remarked: "I
have inserted the words 'overt acts' because we are punishing
membership in the Communist Party. I would like that membership to be
proved by overt acts, by positive acts, because it may happen that one's
name may appear in the list of members." Senate Cong. Rec. May 22,
1957, p. 1900.
16 Board of Governors of Federal Reserve System vs. Agnew, 329 U.S.
441.
17 New York ex rel. Bryant vs. Zimmerman, 278 U.S. 63(1928).
18 Repealed by Rep. Act 4241.
19 Philippine Ass'n of Free Labor Unions vs. Secretary of Labor, Feb.
27, 1969, 27 SCRA 40.
20 United States vs. Lovett, 328 U.S. 303 (1946).
21 Cummings vs. Missouri, 4 Wall. (71 U.S.) 277 (1867). 48 Communist Party vs. Subversive Activities Control Board, 367 U.S. 1
(1961).
22 Ex parte Garland, 4 Wall. (71 U.S.) 333 (1867).
49 P. A. Freud, The Supreme Court of the United States 75 (1961).
23 United States vs. Lovett, 328 U.S. 303 (1946).
50 Const., art VI, Sec. 21 (1).
24 United States vs. Brown, 381 U.S. 437 (1965).
51 Government vs. Hongkong & Shaihai Banking Corp., 66 Phil. 483
25 The Bounds of Legislative Specification: A Suggested Approach to
(1938).
the Bill of Attainder Clause, 72 Yale L. J. 330, 351-54(1962).
52 Lindasan vs. Commission on Elections, L-28089, Oct. 25, 1967, 21
26 278 U.S. 63 (1928).
SCRA 496.
27 Id. at 75-77.
FERNANDO, J., concurring:
28 People vs. Evangelista, 57 Phil. 375 (1932); see also People vs.
1 Rep. Act No. 1700 (1957)..
Evangelista, 57 Phil., 372 (1932); People vs. Capadocia, 57 Phil. 364
(1932); People vs. Evangelista, 57 Phil. 354 (1932); People vs. Feleo, 2 According to Art. III, Sec. 1, par. 11: "No ex post facto law or bill of
57 Phil. 451 (1932); People vs. nabong, 57 Phil. 455 (1932). attainder shall be enacted."

29 People vs. Lava, L-4974-78, May 16, 1969.
30 L-33864, Dec. 11, 1971, 42 SCRA 448.
31 United States vs. Lovett, 328 U.S. 303, 318 (1946).
3 According to Art. III, Sec. 1, par. 8: "No law shall be passed abridging
the freedom of speech, or of the press, or the right of the people
peacebly to assemble and petition the Government for redress of
grievances."

32 341 U.S. 716 (1951). 4 According to Art. III, Sec. 1 par. 4: "The liberty of abode and of
changing the same within the limits prescribed by law shall not be
33 Communist Party vs. Subversive Activities Control Board, 367 U.S. 1 impaired."
(1960).
5 Footnote 2, p. 9 of Opinion of the Court.
34 Sec. 8.
6 4 Wall. 277 (1867).
35 E. g., Kovacs vs. Cooper, 336 U.S. 77 (1949); Vera vs. Arca, L-
25721, May 26, 1969, 28 SCRA 351. 7 4 Wall. 333 (1867).

36 Freund, Review of Facts in Constitutional Cases, in Supreme Court 8 Cf. United States v. A Lovett, 328 US 303 )1946).
and Supreme Law 47-48 (Cahn ed. 1954).
9 4 Wall. 277 (1867).
37 291 U.S. 502, 537 (1934).
10 Ibid, 323, 325.
38 L-33964, Dec. 11, 1971, 41 SCRA 448.
11 4 Wall. 333 (1867).

39 Communist Party vs. S.A.C. Board, 367 U.S. 94 (1961).

12 Ibid, 377-378.
40 Dennis vs. United States, 341 U.S. 494, 509 (1951).
13 328 US 303.
41 Id. at 501.
14 Ibid, 315-316.
42 Shelton vs. Tucker, 364 U.s. 479 (1960).
15 381 US 437.
43 Scales vs. United States, 367 U.S. 203 (1961); see also Noto vs.
16 Ibid, 442.
United States, 367 U.S. 290 (1961).
17 Ibid, 449-450.
44 Frankfeld vs. United States, 198 F. 2d 879 (4th Cir. 1952).
18 367 US 1 (1961).
45 People vs. nabong, 57 Phil. 455, 458 (1932).
19 Ibid, 86-87.
46 18 U.S.C. sec. 2385. (emphasis added).
20 Opinion of the Court, p. 15.
47 367 U.S. 203 (1961).
21 According to Art. III, Sec. 1, par. 6: "The right to form associations or
societies for purposes not contrary to law shall not be abridged."
Paragraph 8 of this section reads as follows: "No law shall be passed
abridging the freedom of speech, or of the press, or the right of the
people peacebly to assemble and petition the Government for redress
of grievances."
22 Jefferson's First Instance Address, March 4, 1801, in Padover, ed.,
The Complete Jefferson, 385 (1943).
23 Hook, Heresy, Yes-Conspiracy, No. 71 (1953).
24 Gonzalez v. Commission on Elections, 27 SCRA 835,871(1969)
citing Shelton v. Tucker, 364 US 479 (1960) and NAACP v. Button, 371
US 415 (1963).
25 NAACP vs. Alabama, 377 US 288 (1964).
provisions of the law. From that sentence each of the defendants
appealed to this court.
The appellants now contend: (a) That the contract upon which the
alleged usurious interest was collected was executed before Act No.
2655 was adopted; (b) that at the time said contract was made
(December 30, 1915), there was no usury law in force in the Philippine
Islands; (c) that said Act No. 2655 did not become effective until the 1st
day of May, 1916, or four months and a half after the contract in question
was executed; (d) that said law could have no retroactive effect or
operation, and (e) that said law impairs the obligation of a contract, and
that for all of said reasons the judgment imposed by the lower court
should be revoked; that the complaint should be dismissed, and that
they should each be discharged from the custody of the law.

26 Communist Party v. Subversive Activities Control Board, 367 US 1, The essential facts constituting the basis of the criminal action are not in
148. dispute, and may be stated as follows: (1) That on the 30th day of
December, 1915, the alleged offended persons Bartolome Oliveros and
Engracia Lianco executed and delivered to the defendants a contract
(Exhibit B) evidencing the fact that the former had borrowed from the
latter the sum of P300, and (2) that, by virtue of the terms of said
contract, the said Bartolome Oliveros and Engracia Lianco obligated
themselves to pay to the defendants interest at the rate of five per cent
(5%) per month, payable within the first ten days of each and every
month, the first payment to be made on the 10th day of January, 1916.
There were other terms in the contract which, however, are not important
for the decision in the present case.
Republic of the Philippines
SUPREME COURT The lower court, in the course of its opinion, stated that at the time of the

Manila execution and delivery of said contract (Exhibit B), there was no law in
force in the Philippine Islands punishing usury; but, inasmuch as the
EN BANC defendants had collected a usurious rate of interest after the adoption of
the Usury Law in the Philippine Islands (Act No. 2655), they were guilty
G.R. No. L-18208 February 14, 1922
of a violation of that law and should be punished in accordance with its
THE UNITED STATES, plaintiff-appellee, provisions.
vs.
The law, we think, is well established that when a contract contains an
VICENTE DIAZ CONDE and APOLINARIA R. DE CONDE, defendants-
obligation to pay interest upon the principal, the interest thereby
appellants.
becomes part of the principal and is included within the promise to pay.
Araneta & Zaragoza for appellants. In other words, the obligation to pay interest on money due under a
Attorney-General Villareal for appellee. contract, be it express or implied, is a part of the obligation of the
contract. Laws adopted after the execution of a contract, changing or
JOHNSON, J.:
altering the rate of interest, cannot be made to apply to such contract
It appears from the record that on the 6th day of May, 1921, a complaint without violating the provisions of the constitution which prohibit the
was presented in the Court of First Instance of the city of Manila, adoption of a law "impairing the obligation of contract." (8 Cyc., 996; 12
charging the defendants with a violation of the Usury Law (Act No. Corpus Juris, 1058-1059.)
2655). Upon said complaint they were each arrested, arraigned, and
The obligation of the contract is the law which binds the parties to
pleaded not guilty. The cause was finally brought on for trial on the 1st
perform their agreement if it is not contrary to the law of the land, morals
day of September, 1921. At the close of the trial, and after a
or public order. That law must govern and control the contract in every
consideration of the evidence adduced, the Honorable M. V. del Rosario,
aspect in which it is intended to bear upon it, whether it affect its validity,
judge, found that the defendants were guilty of the crime charged in the
construction, or discharge. Any law which enlarges, abridges, or in any
complaint and sentenced each of them to pay a fine of P120 and, in case
manner changes the intention of the parties, necessarily impairs the
of insolvency, to suffer subsidiary imprisonment in accordance with the
contract itself. If a law impairs the obligation of a contract, it is prohibited
by the Jones Law, and is null and void. The laws in force in the Philippine
Islands prior to any legislation by the American sovereignty, prohibited
the Legislature from giving to any penal law a retroactive effect unless
such law was favorable to the person accused. (Articles 21 and 22,
Penal Code.)

A law imposing a new penalty, or a new liability or disability, or giving a

new right of action, must not be construed as having a retroactive effect.
It is an elementary rule of contract that the laws in force at the time the
contract was made must govern its interpretation and application. Laws
must be construed prospectively and not retrospectively. If a contract is
legal at its inception, it cannot be rendered illegal by any subsequent
legislation. If that were permitted then the obligations of a contract might
be impaired, which is prohibited by the organic law of the Philippine
Islands. (U.S. vs. Constantino Tan Quingco Chua, 39 Phil., 552; Aguilar
vs. Rubiato and Gonzales Vila, 40 Phil., 570.)

Ex post facto laws, unless they are favorable to the defendant, are
prohibited in this jurisdiction. Every law that makes an action, done
before the passage of the law, and which was innocent when done,
criminal, and punishes such action, is an ex post facto law. In the present
case Act No. 2655 made an act which had been done before the law
was adopted, a criminal act, and to make said Act applicable to the act
complained of would be to give it an ex post facto operation. The
Legislature is prohibited from adopting a law which will make an act done
before its adoption a crime. A law may be given a retroactive effect in
civil action, providing it is curative in character, but ex post facto laws
are absolutely prohibited unless its retroactive effect is favorable to the
defendant.

For the reason, therefore, that the acts complained of in the present case
were legal at the time of their occurrence, they cannot be made criminal
by any subsequent or ex post facto legislation. What the courts may say,
considering the provisions of article 1255 of the Civil Code, when a civil
action is brought upon said contract, cannot now be determined. A
contract may be annulled by the courts when it is shown that it is against
morals or public order.

For all of the foregoing reasons, we are of the opinion, and so decide,
that the acts complained of by the defendants did not constitute a crime
at the time they were committed, and therefore the sentence of the lower
court should be, and is hereby, revoked; and it is hereby ordered and
decreed that the complaint be dismissed, and that the defendants be
discharged from the custody of the law, with costs de oficio. So ordered.

Araullo, C.J., Street, Malcolm, Avancea, Ostrand, Johns and

Romualdez, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. L-1960 November 26, 1948
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FLORENTINO ABILONG, defendant-appellant.
Carlos Perfecto for appellant.
Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Manuel
Tomacruz for appellee.
MONTEMAYOR, J.:
Florentino Abilong was charged in the Court of First Instance of Manila
with evasion of service of sentence under the following information:
That on or about the 17th day of September, 1947, in the City of Manila,
Philippines, the said accused, being then a convict sentenced and
ordered to serve two (2) years, four (4) months and one (1) day of
destierro during which he should not enter any place within the radius of
100 kilometers from the City of Manila, by virtue of final judgment
rendered by the municipal court on April 5, 1946, in criminal case No. B-
4795 for attempted robbery, did then and there wilfully, unlawfully and
feloniously evade the service of said sentence by going beyond the limits
made against him and commit vagrancy.
Contrary to law.
Upon arraignment he pleaded guilty and was sentenced to two (2) years,
four (4) months and one (1) day of prision correccional, with the
accessory penalties of the law and to pay the costs. He is appealing from
that decision with the following assignment of error:
1. The lower court erred in imposing a penalty on the accused under
article 157 of the Revised Penal Code, which does not cover evasion of
service of "destierro."
Counsel for the appellant contends that a person like the accused
evading a sentence of destierro is not criminally liable under the
provisions of the Revised Penal Code, particularly article 157 of the said
Code for the reason that said article 157 refers only to persons who are
imprisoned in a penal institution and completely deprived of their liberty.
He bases his contention on the word "imprisonment" used in the English
text of said article which in part reads as follows:
Evasion of service of sentence. The penalty of prision correccional in
its medium and maximum periods shall be imposed upon any convict
who shall evade service of his sentence by escaping during the term of
his imprisonment by reason of final judgment.
The Solicitor General in his brief says that had the original text of the
Revised Penal Code been in the English language, then the theory of
the appellant could be uphold. However, it is the Spanish text that is
controlling in case of doubt. The Spanish text of article 157 in part reads
thus:
ART. 157. Quebrantamiento de sentencia. Sera castigado con
prision correccional en sus grados medio y maximo el sentenciado que
quebrantare su condena, fugandose mientras estuviere sufriendo
privacion de libertad por sentencia firme; . . . .
We agree with the Solicitor General that inasmuch as the Revised Penal
Code was originally approved and enacted in Spanish, the Spanish text
governs (People vs. Manaba, 58 Phil., 665, 668). It is clear that the word
"imprisonment" used in the English text is a wrong or erroneous
translation of the phrase "sufriendo privacion de libertad" used in the
Spanish text. It is equally clear that although the Solicitor General
impliedly admits destierro as not constituting imprisonment, it is a
deprivation of liberty, though partial, in the sense that as in the present
case, the appellant by his sentence of destierro was deprived of the
liberty to enter the City of Manila. This view has been adopted in the
case of People vs. Samonte, No. 36559 (July 26, 1932; 57 Phil., 968)
wherein this Court held, as quoted in the brief of the Solicitor General
that "it is clear that a person under sentence of destierro is suffering
deprivation of his liberty and escapes from the restrictions of the penalty
when he enters the prohibited area." Said ruling in that case was ratified
by this Court, though, indirectly in the case of People vs. Jose de Jesus,
(45 Off. Gaz. Supp. to No. 9, p. 370)1, where it was held that one evades
the service of his sentence of destierro when he enters the prohibited
area specified in the judgment of conviction, and he cannot invoke the
provisions of the Indeterminate Sentence Law which provides that its
provisions do not apply to those who shall have escaped from
confinement or evaded sentence.
In conclusion we find and hold that the appellant is guilty of evasion of
service of sentence under article 157 of the Revised Penal Code
(Spanish text), in that during the period of his sentence of destierro by
virtue of final judgment wherein he was prohibited from entering the City
of Manila, he entered said City.
Finding no reversible error in the decision appealed from, the same is
hereby affirmed with costs against the appellant. So ordered.
Moran, C. J., Paras, Feria, Pablo, Bengzon and Tuason, JJ., concur.
Separate Opinions
PERFECTO, J., dissenting:
The legal question raised in this case is whether or not appellant, for
having violated his judgment of destierro rendered by the Municipal
Court of Manila, can be sentenced under article 157 of the Revised
Penal Code which reads as follows:
Evasion of service of sentence. The penalty of prision correccional in
its medium and maximum periods shall be imposed upon any convict
who shall evade service of his sentence by escaping during the term of
his imprisonment by reason of final judgment. However, if such evasion
or escape shall have taken place by means of unlawful entry, by
breaking doors, windows, gates, walls, roofs, or floors, or by using
picklocks, false keys, disguise, deceit, violence or intimidation, or
through connivance with other convicts or employees of the penal
institution, the penalty shall be prision correccional in its maximum
period.
Appellant invokes in his favor the negative opinion of author Guillermo
Guevara (Revised Penal Code, 1946, p. 322). This negative position is
supported by another author, Ambrosio Padilla (Revised Penal Code
annotated, p. 474).
The prosecution invokes the decision of this Court in People vs. De
Jesus, L-1411,2promulgated April 16, 1948, but said decision has no
application because in said case the legal question involved in the case
at bar was not raised. The Supreme Court did not consider the question
of interpretation of the wording of article 157. Undoubtedly, there was
occasion for considering the question, but the Court nevertheless failed
to do so. This failure to see the question, at the time, is only an evidence
that the tribunal is composed of human beings for whom infallibility is
beyond reach.
The prosecution maintains that appellant's contention, supported by two
authors who have considered the question, although tenable under the
English text of article 157, is not so under the Spanish text, which is the
one controlling because the Revised Penal Code was originally enacted
by the Legislature in Spanish.
There is no quarrel, therefore, that under the above quoted English text,
the appellant is entitled to acquittal. The question now is whether or not
the Spanish text conveys a thing different from that which can be read
in the English text. The Spanish text reads as follows:
ART. 157. Quebrantamiento de sentencia. Sera castigado con
prision correccional en sus grados medio y maximo el sentenciado que
quebrantare su condena, fugandose mientras estuviere sufriendo
privacion de libertad por sentencia firme; pero si la evasion o fuga se
hubiere llevado a efecto con escalamiento, fractura de puertas,
ventanas, verjas, paredes, techos o suelos, o empleado ganzuas, llaves
falsas, disfraz, engano, violencia o intimidacion, o poniendose de
acuerdo con otros sentenciados o dependientes del establecimiento
donde a hallare recluido la pena sera prision correccional en su grado
maximo.
The question boils down to the words "fugandose mientras estuviere
sufriendo privacion de libertad por sentencia firme," which are translated
into English "by escaping during the term of his imprisonment by reason
of final judgment." The prosecution contends that the words "privacion
de libertad" in the Spanish text is not the same as the word
"imprisonment" in the English text, and that while "imprisonment" cannot
include destierro, "privacion de libertad" may include it.
The reason is, however, the result of a partial point of view because it
obliterates the grammatical, logical, ideological function of the words
"fugandose" and "by escaping" in the Spanish and English texts,
respectively. There should not be any question that, whatever meaning
we may want to give to the words "privacion de libertad," it has to be
conditioned by the verb "fugandose," (by escaping). "Privacion de
libertad" cannot be considered independently of "fugandose."
There seems to be no question that the Spanish "fugandose" is correctly
translated into the English "by escaping." Now, is there any sense in
escaping from destierro or banishment, where there is no enclosure
binding the hypothetical fugitive? "Fugandose" is one of the forms of the
Spanish verb "fugar," to escape. The specific idea of "evasion" or
"escape" is reiterated by the use of said words after the semi-colon in
the Spanish text and after the first period in the English text. Either the
verb "to escape" or the substantive noun "escape" essentially pre-
supposes some kind of imprisonment or confinement, except
figuratively, and Article 157 does not talk in metaphors or parables.
"To escape" means "to get away, as by flight or other conscious effort;
to break away, get free, or get clear, from or out of detention, danger,
discomfort, or the like; as to escape from prison. To issue from
confinement or enclosure of any sort; as gas escapes from the mains."
(Webster's New International Dictionary.)
"Escape" means "act of escaping, or fact or having escaped; evasion of
or deliverance from injury or any evil; also the means of escape. The
unlawful departure of a prisoner from the limits of his custody. When the
prisoner gets out of prison and unlawfully regains his liberty, it is an
actual escape." (Webster's New International Dictionary.)
"Evasion" means "escape." (Webster's New International Dictionary.) .
The "destierro" imposed on appellant banished him from Manila alone,
and he was free to stay in all the remaining parts of the country, and to
go and stay in any part of the globe outside the country. With freedom
to move all over the world, it is farfetched to allege that he is in any
confinement from which he could escape.
The words "privacion de libertad" have been correctly translated into the
English "imprisonment," which gives the idea exactly conveyed by
"privacion de libertad" in the Spanish text. Undoubtedly, the drafters of
the latter could have had used a more precise Spanish word, but the
literary error cannot be taken as a pretext to give to the less precise
words a broader meaning than is usually given to them.
"Privacion de libertad," literally meaning "deprivation of liberty or
freedom," has always been used by jurist using the Spanish language
to mean "imprisonment." They have never given them the unbounded
philosophical scope that would lead to irretrievable absurdities.
Under that unlimited scope, no single individual in the more than two
billion inhabitants of the world can be considered free, as the freest
citizen of the freest country is subject to many limitations or deprivations
of liberty. Under the prosecution's theory, should an accused, sentenced
to pay a fine of one peso, evade the payment of it, because the fine
deprives him of liberty to dispose of his one peso, he will be liable to be
punished under article 157 of the Revised Penal Code to imprisonment
of from more that two years to six years. The iniquity and cruelty of such
situation are too glaring and violent to be entertained for a moment under
our constitutional framework.
There is no gainsaying the proposition that to allow the violation of a
sentence of destierro without punishment is undesirable, but even
without applying article 157 of the Revised Penal Code, the act of the
appellant cannot remain unpunished, because his violation of the
sentence of destierro may be punished as contempt of court, for which
imprisonment up to six months is provided.
It is deplorable that article 157 should not provide for a situation
presented in this case, but the gap cannot be filled by this Court without
encroaching upon the legislative powers of Congress.
Perhaps it is better that evasions of sentence be punished, as provided
by the old Penal Code, by an increased in the evaded penalty. This will
be more reasonable that the penalties provided by article 157, which
appear to be disproportionate and arbitrary, because they place on
equal footing the evader of a sentence of one day of imprisonment and
a life-termer, one who commits an insignificant offense and one who
perpetrates the most heinous crime. At any rate, this is a problem for
Congress to solve.
The appealed decision should be set aside.
BRIONES, J., concurring:
I concur in the foregoing dissenting opinion, because evidently the word
"fugandose" in the Spanish text refers to imprisonment, not to destierro.
Footnotes
1 80 Phil., 746.
2 80 Phil., 746.
G.R. No. L-3246 November 29, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ABELARDO FORMIGONES, defendant-appellant.
Luis Contreras for appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Felix
V. Makasiar for appellee.
MONTEMAYOR, J.:
This is an appeal from the decision of the Court of First Instance of
Camarines Sur finding the appellant guilty of parricide and sentencing
him to reclusion perpetua, to indemnify the heirs of the deceased in the
amount of P2,000, and to pay the costs. The following facts are not
disputed.
In the month of November, 1946, the defendant Abelardo Formigones
was living on his farm in Bahao, Libmanan, municipality of Sipocot,
Camarines Sur, with his wife, Julia Agricola, and his five children. From
there they went to live in the house of his half-brother, Zacarias
Formigones, in the barrio of Binahian of the same municipality of
Sipocot, to find employment as harvesters of palay. After about a
month's stay or rather on December 28, 1946, late in the afternoon, Julia
was sitting at the head of the stairs of the house. The accused, without
any previous quarrel or provocation whatsoever, took his bolo from the
wall of the house and stabbed his wife, Julia, in the back, the blade
penetrating the right lung and causing a severe hemorrhage resulting in
her death not long thereafter. The blow sent Julia toppling down the
stairs to the ground, immediately followed by her husband Abelardo
who, taking her up in his arms, carried her up the house, laid her on the
floor of the living room and then lay down beside her. In this position he
was found by the people who came in response to the shouts for help
made by his eldest daughter, Irene Formigones, who witnessed and
testified to the stabbing of her mother by her father.
Investigated by the Constabulary, defendant Abelardo signed a written
statement, Exhibit D, wherein he admitted that he killed The motive was
admittedly of jealousy because according to his statement he used to
have quarrels with his wife for the reason that he often saw her in the
company of his brother Zacarias; that he suspected that the two were
maintaining illicit relations because he noticed that his had become
indifferent to him (defendant).
During the preliminary investigation conducted by the justice of the
peace of Sipocot, the accused pleaded guilty, as shown by Exhibit E. At
the trial of the case in the Court of First Instance, the defendant entered
a plea of not guilty, but did not testify. His counsel presented the
testimony of two guards of the provincial jail where Abelardo was
confined to the effect that his conduct there was rather strange and that
he behaved like an insane person; that sometimes he would remove his
clothes and go stark naked in the presence of his fellow prisoners; that
at times he would remain silent and indifferent to his surroundings; that
he would refused to take a bath and wash his clothes until forced by the
prison authorities; and that sometimes he would sing in chorus with his
fellow prisoners, or even alone by himself without being asked; and that
once when the door of his cell was opened, he suddenly darted from
inside into the prison compound apparently in an attempt to regain his
liberty.
The appeal is based merely on the theory that the appellant is an
imbecile and therefore exempt from criminal liability under article 12 of
the Revised Penal Code. The trial court rejected this same theory and
we are inclined to agree with the lower court. According to the very
witness of the defendant, Dr. Francisco Gomez, who examined him, it
was his opinion that Abelardo was suffering only from feeblemindedness
and not imbecility and that he could distinguish right from wrong.
In order that a person could be regarded as an imbecile within the
meaning of article 12 of the Revised Penal Code so as to be exempt
from criminal liability, he must be deprived completely of reason or
discernment and freedom of the will at the time of committing the crime.
The provisions of article 12 of the Revised Penal Code are copied from
and based on paragraph 1, article 8, of the old Penal Code of Spain.
Consequently, the decisions of the Supreme Court of Spain interpreting
and applying said provisions are pertinent and applicable. We quote
Judge Guillermo Guevara on his Commentaries on the Revised Penal
Code, 4th Edition, pages 42 to 43:
The Supreme Court of Spain held that in order that this exempting
circumstances may be taken into account, it is necessary that there be
a complete deprivation of intelligence in committing the act, that is, that
the accused be deprived of reason; that there be no responsibility for his
own acts; that he acts without the least discernment;1 that there be a
complete absence of the power to discern, or that there be a total
deprivation of freedom of the will. For this reason, it was held that the
imbecility or insanity at the time of the commission of the act should
absolutely deprive a person of intelligence or freedom of will, because
mere abnormality of his mental faculties does not exclude imputability.2
The Supreme Court of Spain likewise held that deaf-muteness cannot
be equaled to imbecility or insanity.
The allegation of insanity or imbecility must be clearly proved. Without
positive evidence that the defendant had previously lost his reason or
was demented, a few moments prior to or during the perpetration of the
crime, it will be presumed that he was in a normal condition. Acts
penalized by law are always reputed to be voluntary, and it is improper
to conclude that a person acted unconsciously, in order to relieve him
from liability, on the basis of his mental condition, unless his insanity and
absence of will are proved.
As to the strange behaviour of the accused during his confinement,
assuming that it was not feigned to stimulate insanity, it may be
attributed either to his being feebleminded or eccentric, or to a morbid
mental condition produced by remorse at having killed his wife. From the
case of United States vs. Vaquilar (27 Phil. 88), we quote the following
syllabus:
Testimony of eye-witnesses to a parricide, which goes no further than to
indicate that the accused was moved by a wayward or hysterical burst
of anger or passion, and other testimony to the effect that, while in
confinement awaiting trial, defendant acted absentmindedly at times, is
not sufficient to establish the defense of insanity. The conduct of the
defendant while in confinement appears to have been due to a morbid
mental condition produced by remorse.
After a careful study of the record, we are convinced that the appellant
is not an imbecile. According to the evidence, during his marriage of
about 16 years, he has not done anything or conducted himself in
anyway so as to warrant an opinion that he was or is an imbecile. He
regularly and dutifully cultivated his farm, raised five children, and
supported his family and even maintained in school his children of
school age, with the fruits of his work. Occasionally, as a side line he
made copra. And a man who could feel the pangs of jealousy to take
violent measure to the extent of killing his wife whom he suspected of
being unfaithful to him, in the belief that in doing so he was vindicating
his honor, could hardly be regarded as an imbecile. Whether or not his
suspicions were justified, is of little or no import. The fact is that he
believed her faithless.
But to show that his feeling of jealousy had some color of justification
and was not a mere product of hallucination and aberrations of a
disordered mind as that an imbecile or a lunatic, there is evidence to the
following effect. In addition to the observations made by appellant in his
written statement Exhibit D, it is said that when he and his wife first went
to live in the house of his half brother, Zacarias Formigones, the latter
was living with his grandmother, and his house was vacant. However,
after the family of Abelardo was settled in the house, Zacarias not only
frequented said house but also used to sleep there nights. All this may
have aroused and even partly confirmed the suspicions of Abelardo, at
least to his way of thinking.
The appellant has all the sympathies of the Court. He seems to be one
of those unfortunate beings, simple, and even feebleminded, whose
faculties have not been fully developed. His action in picking up the body
of his wife after she fell down to the ground, dead, taking her upstairs,
laying her on the floor, and lying beside her for hours, shows his feeling
of remorse at having killed his loved one though he thought that she has
betrayed him. Although he did not exactly surrender to the authorities,
still he made no effort to flee and compel the police to hunt him down
and arrest him. In his written statement he readily admitted that he killed
his wife, and at the trial he made no effort to deny or repudiate said
written statement, thus saving the government all the trouble and
expense of catching him, and insuring his conviction.
Although the deceased was struck in the back, we are not prepared to
find that the aggravating circumstance of treachery attended the
commission of the crime. It seems that the prosecution was not intent or
proving it. At least said aggravating circumstance was not alleged in the
complaint either in the justice of the peace court or in the Court of First
Instance. We are inclined to give him the benefit of the doubt and we
therefore declined to find the existence of this aggravating circumstance.
On the other hand, the fact that the accused is feebleminded warrants
the finding in his favor of the mitigating circumstance provided for in
either paragraph 8 or paragraph 9 of article 13 of the Revised Penal
Code, namely that the accused is "suffering some physical defect which
thus restricts his means of action, defense, or communication with his
fellow beings," or such illness "as would diminish the exercise of his will
power." To this we may add the mitigating circumstance in paragraph 6
of the same article, that of having acted upon an impulse so powerful
as naturally to have produced passion or obfuscation. The accused
evidently killed his wife in a fit of jealousy.
With the presence of two mitigating circumstances without any
aggravating circumstance to offset them, at first we thought of the
possible applicability of the provisions of article 64, paragraph 5 of the
Revised Penal Code for the purpose of imposing the penalty next lower
to that prescribed by article 246 for parricide, which is reclusion
perpetuato death. It will be observed however, that article 64 refers to
the application of penalties which contain three periods whether it be a
single divisible penalty or composed of three different penalties, each
one of which forms a period in accordance with the provisions of articles
76 and 77, which is not true in the present case where the penalty
applicable for parricide is composed only of two indivisible penalties. On
the other hand, article 63 of the same Code refers to the application of
indivisible penalties whether it be a single divisible penalty, or two
indivisible penalties like that of reclusion perpetua to death. It is
therefore clear that article 63 is the one applicable in the present case.
Paragraph 2, rule 3 of said article 63 provides that when the commission
of the act is attended by some mitigating circumstance and there is no
aggravating circumstance, the lesser penalty shall be applied.
Interpreting a similar legal provision the Supreme Court in the case
of United States vs. Guevara (10 Phil. 37), involving the crime of
parricide, in applying article 80, paragraph 2 (rule 3 of the old Penal
Code) which corresponds to article 63, paragraph 2 (rule 3 of the present
Revised Penal Code), thru Chief Justice Arellano said the following:
And even though the court should take into consideration the presence
of two mitigating circumstances of a qualifying nature, which it can not
afford to overlook, without any aggravating one, the penalty could not be
reduced to the next lower to that imposed by law, because, according to
a ruling of the court of Spain, article 80 above-mentioned does not
contain a precept similar to that contained in Rule 5 of article 81 (now
Rule 5, art. 64 of the Rev. Penal Code.) (Decision of September 30,
1879.)
Yet, in view of the excessive penalty imposed, the strict application of
which is inevitable and which, under the law, must be sustained, this
court now resorts to the discretional power conferred by paragraph 2 of
article 2 of the Penal Code; and.
Therefore, we affirm the judgment appealed from with costs, and hereby
order that a proper petition be filed with the executive branch of the
Government in order that the latter, if it be deemed proper in the exercise
of the prerogative vested in it by the sovereign power, may reduce the
penalty to that of the next lower.
Then, in the case of People vs. Castaeda (60 Phil. 604), another
parricide case, the Supreme Court in affirming the judgment of
conviction sentencing defendant to reclusion perpetua, said that
notwithstanding the numerous mitigating circumstances found to exist,
inasmuch as the penalty for parricide as fixed by article 246 of the
Revised Penal Code is composed of two indivisible penalties,
namely, reclusion perpetua to death, paragraph 3 of article 63 of the said
Code must be applied. The Court further observed:
We are likewise convinced that appellant did not have that malice nor
has exhibited such moral turpitude as requires life imprisonment, and
therefore under the provisions of article 5 of the Revised Penal Code,
we respectfully invite the attention of the Chief Executive to the case
with a view to executive clemency after appellant has served an
appreciable amount of confinement.
In conclusion, we find the appellant guilty of parricide and we hereby
affirm the judgment of the lower court with the modification that the
appellant will be credited with one-half of any preventive imprisonment
he has undergone. Appellant will pay costs.
Following the attitude adopted and the action taken by this same court
in the two cases above cited, and believing that the appellant is entitled
to a lighter penalty, this case should be brought to the attention of the
Chief Executive who, in his discretion may reduce the penalty to that
next lower to reclusion perpetua to death or otherwise apply executive
clemency in the manner he sees fit.
Moran, Bengzon, C. J., Paras, Feria, Pablo, Tuason, Reyes, and Jugo,
JJ., concur.
PADILLA, J.:
I concur in the result.
Footnotes
1 Decision of Supreme Court of Spain of November 21, 1891; 47 Jur.
Crim., 413.
2 Decision of Supreme Court of Spain of April 20, 1911; 86 Jur. Crim.,
94, 97.
SECOND DIVISION
[G.R. No. 141066. February 17, 2005]
EVANGELINE LADONGA, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Petitioner Evangeline Ladonga seeks a review of the Decision,[1] dated
May 17, 1999, of the Court of Appeals in CA-G.R. CR No. 20443,
affirming the Decision dated August 24, 1996, of the Regional Trial Court
(RTC), Branch 3 of Bohol, in Criminal Case Nos. 7068, 7069 and 7070
convicting her of violation of B.P. Blg. 22, otherwise known as The
Bouncing Checks Law.
The factual background of the case is as follows:
On March 27, 1991, three Informations for violation of B.P. Blg. 22 were
filed with the RTC, docketed as Criminal Case Nos. 7068 - 7070. The
Information in Criminal Case No. 7068 alleges as follows:
That, sometime in May or June 1990, in the City of Tagbilaran,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating, and mutually helping
with one another, knowing fully well that they did not have sufficient
funds deposited with the United Coconut Planters Bank (UCPB),
Tagbilaran Branch, did then and there willfully, unlawfully, and
feloniously, draw and issue UCPB Check No. 284743 postdated July 7,
1990 in the amount of NINE THOUSAND SEVENTY-FIVE PESOS AND
FIFTY-FIVE CENTAVOS (P9,075.55), payable to Alfredo Oculam, and
thereafter, without informing the latter that they did not have sufficient
funds deposited with the bank to cover up the amount of the check, did
then and there willfully, unlawfully and feloniously pass on, indorse, give
and deliver the said check to Alfredo Oculam by way of rediscounting of
the aforementioned checks; however, upon presentation of the check to
the drawee bank for encashment, the same was dishonored for the
reason that the account of the accused with the United Coconut Planters
Bank, Tagbilaran Branch, had already been closed, to the damage and
prejudice of the said Alfredo Oculam in the aforestated amount.
Acts committed contrary to the provisions of Batas Pambansa
Bilang 22.[2]
The accusatory portions of the Informations in Criminal Case Nos. 7069
and 7070 are similarly worded, except for the allegations concerning the
number, date and amount of each check, that is:
(a) Criminal Case No. 7069 - UCPB Check No. 284744 dated July 22,
1990 in the amount of P12,730.00;[3]
(b) Criminal Case No. 7070 UCPB Check No. 106136 dated July 22,
1990 in the amount of P8,496.55.[4]
The cases were consolidated and jointly tried. When arraigned on June
26, 1991, the two accused pleaded not guilty to the crimes charged.[5]
The prosecution presented as its lone witness complainant Alfredo
Oculam. He testified that: in 1989, spouses Adronico[6] and Evangeline
Ladonga became his regular customers in his pawnshop business in
Tagbilaran City, Bohol;[7] sometime in May 1990, the Ladonga spouses
obtained a P9,075.55 loan from him, guaranteed by United Coconut
Planters Bank (UCPB) Check No. 284743, post dated to dated July 7,
1990 issued by Adronico;[8] sometime in the last week of April 1990 and
during the first week of May 1990, the Ladonga spouses obtained an
additional loan of P12,730.00, guaranteed by UCPB Check No. 284744,
post dated to dated July 26, 1990 issued by Adronico;[9] between May
and June 1990, the Ladonga spouses obtained a third loan in the
amount of P8,496.55, guaranteed by UCPB Check No. 106136, post
dated to July 22, 1990 issued by Adronico;[10] the three checks
bounced upon presentment for the reason CLOSED
ACCOUNT;[11] when the Ladonga spouses failed to redeem the check,
despite repeated demands, he filed a criminal complaint against
them.[12]
While admitting that the checks issued by Adronico bounced because
there was no sufficient deposit or the account was closed, the Ladonga
spouses claimed that the checks were issued only to guarantee the
obligation, with an agreement that Oculam should not encash the checks
when they mature;[13] and, that petitioner is not a signatory of the
checks and had no participation in the issuance thereof.[14]
On August 24, 1996, the RTC rendered a joint decision finding the
Ladonga spouses guilty beyond reasonable doubt of violating B.P. Blg.
22, the dispositive portion of which reads:
Premises considered, this Court hereby renders judgment finding
accused Adronico Ladonga, alias Ronie, and Evangeline Ladonga guilty
beyond reasonable doubt in the aforesaid three (3) criminal cases, for
which they stand charged before this Court, and accordingly, sentences
them to imprisonment and fine, as follows:
1. In Criminal Case No. 7068, for (sic) an imprisonment of one (1) year
for each of them, and a fine in the amount of P9,075.55, equivalent to
the amount of UCPB Check No. 284743;
2. In Criminal Case No. 7069, for (sic) an imprisonment for each of them
to one (1) year and a fine of P12, 730.00, equivalent to the amount of
UCPB Check No. 284744; and,
3. In Criminal Case No. 7070, with (sic) an imprisonment of one year for
each of them and a fine of P8,496.55 equivalent to the amount of UCPB
Check No. 106136;
4. That both accused are further ordered to jointly and solidarily pay and
reimburse the complainant, Mr. Alfredo Oculam, the sum of P15,000.00
representing actual expenses incurred in prosecuting the instant
cases; P10,000.00 as attorneys fee; and the amount of P30,302.10
which is the total value of the three (3) subject checks which bounced;
but without subsidiary imprisonment in case of insolvency.
With Costs against the accused.
SO ORDERED.[15]
Adronico applied for probation which was granted.[16] On the other
hand, petitioner brought the case to the Court of Appeals, arguing that
the RTC erred in finding her criminally liable for conspiring with her
husband as the principle of conspiracy is inapplicable to B.P. Blg.
22which is a special law; moreover, she is not a signatory of the checks
and had no participation in the issuance thereof.[17]
On May 17, 1999, the Court of Appeals affirmed the conviction of
petitioner.[18] It held that the provisions of the penal code were made
applicable to special penal laws in the decisions of this Court in People
vs. Parel, [19] U.S. vs. Ponte, [20] and U.S. vs. Bruhez.[21] It noted that
Article 10 of the Revised Penal Code itself provides that its provisions
shall be supplementary to special laws unless the latter provide the
contrary. The Court of Appeals stressed that since B.P. Blg. 22 does not
prohibit the applicability in a suppletory character of the provisions of the
Revised Penal Code (RPC), the principle of conspiracy may be applied
to cases involving violations of B.P. Blg. 22. Lastly, it ruled that the fact
that petitioner did not make and issue or sign the checks did not
exculpate her from criminal liability as it is not indispensable that a co-
conspirator takes a direct part in every act and knows the part which
everyone performed. The Court of Appeals underscored that in
conspiracy the act of one conspirator could be held to be the act of the
other.
Petitioner sought reconsideration of the decision but the Court of
Appeals denied the same in a Resolution dated November 16, 1999.[22]
Hence, the present petition.
Petitioner presents to the Court the following issues for resolution:
1. WHETHER OR NOT THE PETITIONER WHO WAS NOT THE
DRAWER OR ISSUER OF THE THREE CHECKS THAT BOUNCED
BUT HER CO-ACCUSED HUSBAND UNDER THE LATTERS
ACCOUNT COULD BE HELD LIABLE FOR VIOLATIONS OF BATAS
PAMBANSA BILANG22 AS CONSPIRATOR.
2. ANCILLARY TO THE MAIN ISSUE ARE THE FOLLOWING ISSUES:
A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN
VIOLATIONS OF BATAS PAMBANSA BILANG 22 BY INVOKING THE
LAST SENTENCE OF ARTICLE 10 OF THE REVISED PENAL CODE
WHICH STATES:
Art. 10. Offenses not subject of the provisions of this Code. Offenses
which are or in the future may be punished under special laws are not
subject to the provisions of this Code. This Code shall be supplementary
to such laws, unless the latter should specially provide the contrary.
B. WHETHER OR NOT THE CASES CITED BY THE HONORABLE
COURT OF APPEALS IN AFFIRMING IN TOTO THE CONVICTION OF
PETITIONER AS CONSPIRATOR APPLYING THE SUPPLETORY
CHARACTER OF THE REVISED PENAL CODE TO SPECIAL LAWS
LIKE B.P. BLG. 22 IS APPLICABLE.[23]
Petitioner staunchly insists that she cannot be held criminally liable for
violation of B.P. Blg. 22 because she had no participation in the drawing
and issuance of the three checks subject of the three criminal cases, a
fact proven by the checks themselves. She contends that the Court of
Appeals gravely erred in applying the principle of conspiracy, as defined
under the RPC, to violations of B.P. Blg. 22. She posits that the
application of the principle of conspiracy would enlarge the scope of the
statute and include situations not provided for or intended by the
lawmakers, such as penalizing a person, like petitioner, who had no
participation in the drawing or issuance of checks.
The Office of the Solicitor General disagrees with petitioner and echoes
the declaration of the Court of Appeals that some provisions of the
Revised Penal Code, especially with the addition of the second sentence
in Article 10, are applicable to special laws. It submits that B.P.
Blg. 22 does not provide any prohibition regarding the applicability in a
suppletory character of the provisions of the Revised Penal Code to it.
Article 10 of the RPC reads as follows:
ART. 10. Offenses not subject to the provisions of this Code. Offenses
which are or in the future may be punishable under special laws are not
subject to the provisions of this Code. This Code shall be supplementary
to such laws, unless the latter should specially provide the contrary.
The article is composed of two clauses. The first provides that offenses
which in the future are made punishable under special laws are not
subject to the provisions of the RPC, while the second makes the RPC
supplementary to such laws. While it seems that the two clauses are
contradictory, a sensible interpretation will show that they can perfectly
be reconciled.
The first clause should be understood to mean only that the special
penal laws are controlling with regard to offenses therein specifically
punished. Said clause only restates the elemental rule of statutory
construction that special legal provisions prevail over general
ones.[24]Lex specialis derogant generali. In fact, the clause can be
considered as a superfluity, and could have been eliminated altogether.
The second clause contains the soul of the article. The main idea and
purpose of the article is embodied in the provision that the "code shall
be supplementary" to special laws, unless the latter should specifically
provide the contrary.
The appellate courts reliance on the cases of People vs. Parel,[25] U.S.
vs. Ponte,[26] and U.S. vs. Bruhez[27] rests on a firm basis. These
cases involved the suppletory application of principles under the then
Penal Code to special laws. People vs. Parel is concerned with the
application of Article 22[28] of the Code to violations of Act No. 3030,
the Election Law, with reference to the retroactive effect of penal laws if
they favor the accused. U.S. vs. Ponte involved the application of Article
17[29] of the same Penal Code, with reference to the participation of
principals in the commission of the crime of misappropriation of public
funds as defined and penalized by Act No. 1740. U.S. vs.
Bruhez covered Article 45[30] of the same Code, with reference to the
confiscation of the instruments used in violation of Act No. 1461, the
Opium Law.
B.P. Blg. 22 does not expressly proscribe the suppletory application of
the provisions of the RPC. Thus, in the absence of contrary provision
in B.P. Blg. 22, the general provisions of the RPC which, by their nature,
are necessarily applicable, may be applied suppletorily. Indeed, in the
recent case of Yu vs. People,[31] the Court applied suppletorily the
provisions on subsidiary imprisonment under Article 39[32] of the RPC
to B.P. Blg. 22.
The suppletory application of the principle of conspiracy in this case is
analogous to the application of the provision on principals under Article
17 in U.S. vs. Ponte. For once conspiracy or action in concert to achieve
a criminal design is shown, the act of one is the act of all the
conspirators, and the precise extent or modality of participation of each
of them becomes secondary, since all the conspirators are
principals.[33]
All these notwithstanding, the conviction of the petitioner must be set
aside.
Article 8 of the RPC provides that a conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony
and decide to commit it. To be held guilty as a co-principal by reason of
conspiracy, the accused must be shown to have performed an overt act
in pursuance or furtherance of the complicity.[34] The overt act or acts
of the accused may consist of active participation in the actual
commission of the crime itself or may consist of moral assistance to his
co-conspirators by moving them to execute or implement the criminal
plan.[35]
In the present case, the prosecution failed to prove that petitioner
performed any overt act in furtherance of the alleged conspiracy. As
testified to by the lone prosecution witness, complainant Alfredo
Oculam, petitioner was merely present when her husband, Adronico,
signed the check subject of Criminal Case No. 7068.[36] With respect to
Criminal Case Nos. 7069-7070, Oculam also did not describe the details
of petitioners participation. He did not specify the nature of petitioners
involvement in the commission of the crime, either by a direct act of
participation, a direct inducement of her co-conspirator, or cooperating
in the commission of the offense by another act without which it would
not have been accomplished. Apparently, the only semblance of overt
act that may be attributed to petitioner is that she was present when the
first check was issued. However, this inference cannot be stretched to
mean concurrence with the criminal design.
Conspiracy must be established, not by conjectures, but by positive and
conclusive evidence.[37] Conspiracy transcends mere companionship
and mere presence at the scene of the crime does not in itself amount
to conspiracy.[38] Even knowledge, acquiescence in or agreement to
cooperate, is not enough to constitute one as a party to a conspiracy,
absent any active participation in the commission of the crime with a
view to the furtherance of the common design and purpose.[39]
As the Court eloquently pronounced in a case of recent vintage, People
vs. Mandao:[40]
To be sure, conspiracy is not a harmless innuendo to be taken lightly or
accepted at every turn. It is a legal concept that imputes culpability under
specific circumstances; as such, it must be established as clearly as any
element of the crime. Evidence to prove it must be positive and
convincing, considering that it is a convenient and simplistic device by
which the accused may be ensnared and kept within the penal fold.
Criminal liability cannot be based on a general allegation of conspiracy,
and a judgment of conviction must always be founded on the strength of
the prosecutions evidence. The Court ruled thus in People v. Legaspi,
from which we quote:
At most, the prosecution, realizing the weakness of its evidence against
accused-appellant Franco, merely relied and pegged the latters criminal
liability on its sweeping theory of conspiracy, which to us, was not
attendant in the commission of the crime.
The rule is firmly entrenched that a judgment of conviction must be
predicated on the strength of the evidence for the prosecution and not
on the weakness of the evidence for the defense. The proof against him
must survive the test of reason; the strongest suspicion must not be
permitted to sway judgment. The conscience must be satisfied that on
the defense could be laid the responsibility for the offense charged; that
not only did he perpetrate the act but that it amounted to a crime. What
is required then is moral certainty.
Verily, it is the role of the prosecution to prove the guilt of the appellant
beyond reasonable doubt in order to overcome the constitutional
presumption of innocence.
In sum, conviction must rest on hard evidence showing that the accused
is guilty beyond reasonable doubt of the crime charged. In criminal
cases, moral certainty -- not mere possibility -- determines the guilt or
the innocence of the accused. Even when the evidence for the defense
is weak, the accused must be acquitted when the prosecution has not
proven guilt with the requisite quantum of proof required in all criminal
cases. (Citations omitted)[41]
All told, the prosecution failed to establish the guilt of the petitioner with
moral certainty. Its evidence falls short of the quantum of proof required
for conviction. Accordingly, the constitutional presumption of the
petitioners innocence must be upheld and she must be acquitted.
WHEREFORE, the instant petition is GRANTED. The assailed Decision,
dated May 17, 1999, of the Court of Appeals in CA-G.R. CR No. 20443
affirming the Decision, dated August 24, 1996, of the Regional Trial
Court (Branch 3), Bohol, in Criminal Case Nos. 7068, 7069 and 7070
convicting the petitioner of violation of B.P. Blg. 22 is hereby
REVERSED and SET ASIDE. Petitioner Evangeline Ladonga is
ACQUITTED of the charges against her under B.P. Blg. 22 for failure of
the prosecution to prove her guilt beyond reasonable doubt. No
pronouncement as to costs.
SO ORDERED.
Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.
[1] Penned by Justice Buenaventura J. Guerrero (now retired) and
concurred in by Justices Portia Alino-Hormachuelos and Eloy R. Bello
(now retired).
[2] Original Records, pp. 1-2.
[3] Id., p. 3.
[4] Id., p. 5.
[5] Id., pp. 29-31.
[6] Also known as Ronie.
[7] TSN of December 3, 1991, Testimony of Alfredo Oculam, pp. 4-7.
[8] Id., pp. 16-21.
[9] TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2-3.
[10] TSN of January 28, 1992, Testimony of Alfredo Oculam, pp. 1-2.
[11] TSN of December 3, 1991, Testimony of Alfredo Oculam, p. 19;
TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 1 and 3;
TSN of January 28, 1992, Testimony of Alfredo Oculam, p. 1; Original
Records, p. 128.
[12] TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2 and
4; TSN of January 28, 1992, Testimony of Alfredo Oculam, p. 2; Original
Records, p. 125.
[13] TSN of August 23, 1993, Testimony of Evangeline Ladonga, pp. 7-
8, 11-12 and 15; TSN of December 20, 1993, Testimony of Adronico
Ladonga, p. 18.
[14] TSN of August 23, 1993, Testimony of Evangeline Ladonga, p. 10;
TSN of December 20, 1993, Testimony of Adronico Ladonga, pp. 24-26.
[15] Original Records, p. 124.
[16] Id., p. 126.
[17] Court of Appeals (CA) Rollo, p. 28.
[18] Rollo, p. 133.
[19] No. 18260, January 27, 1923, 44 Phil. 437.
[20] No. 5952, October 24, 1911, 20 Phil. 379.
[21] No. 9268, November 4, 1914, 28 Phil. 305.
[22] Rollo, p. 39.
[23] Rollo, pp. 69-70.
[24] Bayan (Bagong Alyansang Makabayan) vs. Zamora, G.R. No.
138570, October 10, 2000, 342 SCRA 449, 483.
[25] Note No. 19, supra.
[26] Note No. 20, supra.
[27] Note No. 21, supra.
[28] ART. 22. Retroactive effect of penal laws. Penal laws shall have a
retroactive effect insofar as they favor the person guilty of a felony, who
is not a habitual criminal, as this term is defined in Rule 5 of Article 62
of this Code, although at the time of the publication of such laws a final
sentence has been pronounced and the convict is serving the same.
[29] ART. 17. Principals. The following are considered principals:
1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense by another
act without which it would not have been accomplished.
[30] ART. 45. Confiscation and forfeiture of the proceeds or instruments
of the crime. Every penalty imposed for the commission of a felony shall
carry with it the forfeiture of the proceeds of the crime and the
instruments or tools with which it was committed.
Such proceeds and instruments or tools shall be confiscated and
forfeited in favor of the Government, unless they be the property of a
third person not liable for the offense, but those articles which are not
subject of lawful commerce shall be destroyed.
[31] G.R. No. 134172, September 20, 2004.
[32] ART. 39. Subsidiary penalty. If the convict has no property with
which to meet the fine mentioned in paragraph 3 of the next preceding
article, he shall be subject to a subsidiary personal liability at the rate of
one day for each eight pesos, subject to the following rules:
1. If the principal penalty imposed be prision
correccional or arresto and fine, he shall remain under confinement until
his fine referred in the preceding paragraph is satisfied, but his
subsidiary imprisonment shall not exceed one-third of the term of the
sentence, and in no case shall it continue for more than one year, and
no fraction or part of a day shall be counted against the prisoner.
2. When the principal penalty imposed be only a fine, the subsidiary
imprisonment shall not exceed six months, if the culprit shall have been
prosecuted for a grave or less grave felony, and shall not exceed fifteen
days, if for a light felony.
3. When the principal penalty imposed is higher than prision
correccional no subsidiary imprisonment shall be imposed upon the
culprit.
4. If the principal penalty imposed is not to be executed by
confinement in a penal institution, but such penalty is of fixed duration,
the convict, during the period of time established in the preceding rules,
shall continue to suffer the same deprivation as those of which the
principal penalty consists.
5. The subsidiary personal liability which the convict may have
suffered by reason of his insolvency shall not relieve him from the fine
in case his financial circumstances should improve.
[33] People vs. Felipe, G.R. No. 142505, December 11, 2003, 418
SCRA 146, 176; People vs. Julianda, Jr., G.R. No. 128886, November
23, 2001, 370 SCRA 448, 469; People vs. Quinicio, G.R. No. 142430,
September 13, 2001, 365 SCRA 252, 266.
[34] People vs. Pickrell, G.R. No. 120409, October 23, 2003, 414 SCRA
19, 33; People vs. Bisda, G.R. No. 140895, July 17, 2003, 406 SCRA
454, 473; People vs. Pagalasan, G.R. Nos. 131926 & 138991, June 18,
2003, 404 SCRA 275, 291.
[35] People vs. Caballero, G.R. Nos. 149028-30, April 2, 2003, 400
SCRA 424, 437; People vs. Ponce, G.R. No. 126254, September 29,
2000, 341 SCRA 352, 359-360.

[36] TSN of December 3, 1991, Testimony of Alfredo Oculam, p. 20.

[37] People vs. Tamayo, G.R. No. 138608, September 24, 2002, SCRA
540, 553; People vs. Melencion, G.R. No. 121902, March 26, 2001, 355
SCRA 113, 123.

[38] People vs. Leao, G.R. No. 138886, October 9, 2001, 366 SCRA
774; People vs. Compo, G.R. No. 112990, May 28, 2001, 358 SCRA
266, 272.

[39] People vs. Natividad, G.R. No. 151072, September 23, 2003, 411
SCRA 587, 595.

[40] People vs. Mandao, G.R. No. 135048, December 3, 2002, 393
SCRA 292.

[41] Id., pp. 304-305.


G.R. No. 93028 July 29, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARTIN SIMON y SUNGA, respondent.
The Solicitor General for plaintiff-appellee.
Ricardo M.Sampang for accused-appellant.
REGALADO, J.:
Herein accused-appellant Martin Simon y Sunga was charged on
November 10, 1988 with a violation of Section 4, Article II of Republic
Act
No. 6425, as amended, otherwise known as the Dangerous Drugs Act
of 1972, under an indictment alleging that on or about October 22, 1988,
at Barangay Sto. Cristo, Guagua, Pampanga, he sold four tea bags of
marijuana to a Narcotics Command (NARCOM) poseur-buyer in
consideration of the sum of P40.00, which tea bags, when subjected to
laboratory examination, were found positive for marijuana. 1
Eventually arraigned with the assistance of counsel on March 2, 1989,
after his rearrest following his escape from Camp Olivas, San Fernando,
Pampanga where he was temporarily detained, 2 he pleaded not guilty.
He voluntarily waived his right to a pre-trial conference, 3 after which
trial on the merits ensued and was duly concluded.
I
The evidence on record shows that a confidential informant, later
identified as a NARCOM operative, informed the police unit at Camp
Olivas, San Fernando, Pampanga, of the illegal drug activities of a
certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt. Francisco
Bustamante, Commanding Officer of the 3rd Narcotics Regional Unit in
the camp, then formed a buy-bust team composed of Sgt. Buenaventura
Lopez, Pfc. Virgilio Villaruz and
Sgt. Domingo Pejoro, all members of the same unit. After securing
marked money from Bustamante, the team, together with their
informant, proceeded to Sto. Cristo after they had coordinated with the
police authorities and barangay officers thereof. When they reached the
place, the confidential informer pointed out appellant to Lopez who
consequently approached appellant and asked him if he had marijuana.
Appellant answered in the affirmative and Lopez offered to buy two tea
bags. Appellant then left and, upon returning shortly thereafter, handed
to Lopez two marijuana tea bags and Lopez gave him the marked money
amounting to P40.00 as payment. Lopez then scratched his head as a
pre-arranged signal to his companions who were stationed around ten
to fifteen meters away, and the team closed in on them. Thereupon,
Villaruz, who was the head of the back-up team, arrested appellant. The
latter was then brought by the team to the 3rd Narcotics Regional Unit
at Camp Olivas on board a jeep and he was placed under custodial
investigation, with Sgt. Pejoro as the investigator. 4
Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the
deal that transpired between Lopez and the appellant. He also averred
that he was the one who confiscated the marijuana and took the marked
money from appellant. 5
Sgt. Domingo Pejoro, for his part, declared that although he was part of
the buy-bust team, he was stationed farthest from the rest of the other
members, that is, around two hundred meters away from his
companions. He did not actually see the sale that transpired between
Lopez and appellant but he saw his teammates accosting appellant after
the latter's arrest. He was likewise the one who conducted the custodial
investigation of appellant wherein the latter was apprised of his rights to
remain silent, to information and to counsel. Appellant, however, orally
waived his right to counsel. 6
Pejoro also claimed having prepared Exhibit "G", the "Receipt of
Property Seized/Confiscated" which appellant signed, admitting therein
the confiscation of four tea bags of marijuana dried leaves in his
possession. Pejoro likewise informed the court below that, originally,
what he placed on the receipt was that only one marijuana leaf was
confiscated in exchange for P20.00. However, Lopez and Villaruz
corrected his entry by telling him to put "two", instead of "one" and "40",
instead of "20". He agreed to the correction since they were the ones
who were personally and directly involved in the purchase of the
marijuana and the arrest of appellant. 7
Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined
appellant at 5:30 p.m. of the day after the latter's apprehension, and the
results were practically normal except for his relatively high blood
pressure. The doctor also did not find any trace of physical injury on the
person of appellant. The next day, he again examined appellant due to
the latter's complaint of
gastro-intestinal pain. In the course of the examination, Dr. Calara
discovered that appellant has a history of peptic ulcer, which causes him
to experience abdominal pain and consequently vomit blood. In the
afternoon, appellant came back with the same complaint but, except for
the gastro-intestinal pain, his physical condition remained normal. 8
As expected, appellant tendered an antipodal version of the attendant
facts, claiming that on the day in question, at around 4:30 p.m., he was
watching television with the members of his family in their house when
three persons, whom he had never met before suddenly arrived. Relying
on the assurance that they would just inquire about something from him
at their detachment, appellant boarded a jeep with them. He was told
that they were going to Camp Olivas, but he later noticed that they were
taking a different route. While on board, he was told that he was a pusher
so he attempted to alight from the jeep but he was handcuffed instead.
When they finally reached the camp, he was ordered to sign some
papers and, when he refused, he was boxed in the stomach eight or nine
times by Sgt. Pejoro. He was then compelled to affix his signature and
fingerprints on the documents presented to him. He denied knowledge
of the P20.00 or the dried marijuana leaves, and insisted that the twenty-
peso bill came from the pocket of Pejoro. Moreover, the reason why he
vomited blood was because of the blows he suffered at the hands of
Pejoro. He admitted having escaped from the NARCOM office but
claimed that he did so since he could no longer endure the maltreatment
to which he was being subjected. After escaping, he proceeded to the
house of his uncle, Bienvenido Sunga, at San Matias, Guagua, reaching
the place at around 6:30 or 7:30 p.m. There, he consulted a quack doctor
and, later, he was accompanied by his sister to the Romana Pangan
District Hospital at Floridablanca, Pampanga where he was confined for
three days. 9
Appellant's brother, Norberto Simon, testified to the fact that appellant
was hospitalized at Floridablanca, Pampanga after undergoing
abdominal pain and vomiting of blood. He likewise confirmed that
appellant had been suffering from peptic ulcer even before the latter's
arrest. 10 Also, Dr. Evelyn Gomez-Aguas, a resident physician of
Romana Pangan District Hospital, declared that she treated appellant
for three days due to abdominal pain, but her examination revealed that
the cause for this ailment was appellant's peptic ulcer. She did not see
any sign of slight or serious external injury, abrasion or contusion on his
body. 11
On December 4, 1989, after weighing the evidence presented, the trial
court rendered judgment convicting appellant for a violation of Section
4, Article II of Republic Act No. 6425, as amended, and sentencing him
to suffer the penalty of life imprisonment, to pay a fine of twenty
thousand pesos and to pay the costs. The four tea bags of marijuana
dried leaves were likewise ordered confiscated in favor of the
Government. 12
Appellant now prays the Court to reverse the aforementioned judgment
of the lower court, contending in his assignment of errors that the latter
erred in (1) not upholding his defense of "frame-up", (2) not declaring
Exhibit "G" (Receipt of Property Seized/Confiscated) inadmissible in
evidence, and (3) convicting him of a violation of the Dangerous Drugs
Act. 13
At the outset, it should be noted that while the People's real theory and
evidence is to the effect the appellant actually sold only two tea bags of
marijuana dried leaves, while the other two tea bags were merely
confiscated subsequently from his possession, 14 the latter not being in
any way connected with the sale, the information alleges that he sold
and delivered four tea bags of marijuana dried leaves. 15 In view
thereof, the issue presented for resolution in this appeal is merely the act
of selling the two tea bags allegedly committed by appellant, and does
not include the disparate and distinct issue of illegal possession of the
other two tea bags which separate offense is not charged herein. 16
To sustain a conviction for selling prohibited drugs, the sale must be
clearly and unmistakably established. 17 To sell means to give, whether
for money or any other material consideration. 18 It must, therefore, be
established beyond doubt that appellant actually sold and delivered two
tea bags of marijuana dried leaves to Sgt. Lopez, who acted as the
poseur-buyer, in exchange for two twenty-peso bills.
After an assiduous review and calibration of the evidence adduced by
both parties, we are morally certain that appellant was caught
in flagrante delicto engaging in the illegal sale of prohibited drugs. The
prosecution was able to prove beyond a scintilla of doubt that appellant,
on October 22, 1988, did sell two tea bags of marijuana dried leaves to
Sgt. Lopez. The latter himself creditably testified as to how the sale took
place and his testimony was amply corroborated by his teammates. As
between the straightforward, positive and corroborated testimony of
Lopez and the bare denials and negative testimony of appellant, the
former undeniably deserves greater weight and is more entitled to
credence.
We are aware that the practice of entrapping drug traffickers through the
utilization of poseur-buyers is susceptible to mistake, harassment,
extortion and abuse. 19 Nonetheless, such causes for judicial
apprehension and doubt do not obtain in the case at bar. Appellant's
entrapment and arrest were not effected in a haphazard way, for a
surveillance was conducted by the team before the
buy-bust operation was effected. 20 No ill motive was or could be
attributed to them, aside from the fact that they are presumed to have
regularly performed their official duty. 21 Such lack of dubious motive
coupled with the presumption of regularity in the performance of official
duty, as well as the findings of the trial court on the credibility of
witnesses, should prevail over the self-serving and uncorroborated claim
of appellant of having been framed, 22 erected as it is upon the mere
shifting sands of an alibi. To top it all, appellant was caught
red-handed delivering prohibited drugs, and while there was a delimited
chance for him to controvert the charge, he does not appear to have
plausibly done so.
When the drug seized was submitted to the Crime Laboratory Service
of the then Philippine Constabulary-Integrated National Police (PC-INP)
at Camp Olivas for examination, P/Cpl. Marlyn Salangad, a forensic
chemist therein, 23confirmed in her Technical Report No. NB-448-88
that the contents of the four tea bags confiscated from appellant were
positive for and had a total weight of 3.8 grams of marijuana. 24 Thus,
the corpus delicti of the crime had been fully proved with certainty and
conclusiveness. 25
Appellant would want to make capital of the alleged inconsistencies and
improbabilities in the testimonies of the prosecution witnesses.
Foremost, according to him, is the matter of who really confiscated the
marijuana tea bags from him since, in open court, Pejoro asserted that
he had nothing to do with the confiscation of the marijuana, but in the
aforementioned "Receipt of Property Seized/Confiscated," he signed it
as the one who seized the same. 26
Suffice it to say that whether it was Villaruz or Pejoro who confiscated
the marijuana will not really matter since such is not an element of the
offense with which appellant is charged. What is unmistakably clear is
that the marijuana was confiscated from the possession of appellant.
Even, assuming arguendo that the prosecution committed an error on
who actually seized the marijuana from appellant, such an error or
discrepancy refers only to a minor matter and, as such, neither impairs
the essential integrity of the prosecution evidence as a whole nor reflects
on the witnesses' honesty. 27 Besides, there was clearly a mere
imprecision of language since Pejoro obviously meant that he did not
take part in the physical taking of the drug from the person of appellant,
but he participated in the legal seizure or confiscation thereof as the
investigator of their unit.
Next, appellant adduces the argument that the twenty-peso bills
allegedly confiscated from him were not powdered for finger-printing
purposes contrary to the normal procedure in buy-bust
operations. 28 This omission has been satisfactorily explained by Pfc.
Virgilio Villaruz in his testimony, as follows:
Q: Is it the standard operating procedure of your unit that in conducting
such operation you do not anymore provide a powder (sic) on the object
so as to determine the thumbmark or identity of the persons taking hold
of the object?
A: We were not able to put powder on these denominations because we
are lacking that kind of material in our office since that item can be
purchased only in Manila and only few are producing that, sir.
xxx xxx xxx
Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory,
CIS, as well as the office of NICA?
A: Our office is only adjacent to those offices but we cannot make a
request for that powder because they, themselves, are using that in their
own work, sir. 29
The foregoing explanation aside, we agree that the failure to mark the
money bills used for entrapment purposes can under no mode of
rationalization be fatal to the case of the prosecution because the
Dangerous Drugs Act punishes "any person who, unless authorized by
law, shall sell, administer, deliver, give away to another, distribute,
dispatch in transit or transport any prohibited drug, or shall act as a
broker in any of such transactions." 30 The dusting of said bills with
phosphorescent powder is only an evidentiary technique
identification purposes, which identification can be supplied by other
species of evidence.
Again, appellant contends that there was neither a relative of his nor
any barangay official or civilian to witness the seizure. He decries the
lack of pictures taken before, during and after his arrest. Moreover, he
was not reported to or booked in the custody of any barangay official or
police authorities. 31 These are absurd disputations. No law or
jurisprudence requires that an arrest or seizure, to be valid, be witnessed
by a relative, a barangay official or any other civilian, or be accompanied
by the taking of pictures. On the contrary, the police enforcers having
caught appellant inflagrante delicto, they were not only authorized but
were also under the obligation to effect a warrantless arrest and seizure.
Likewise, contrary to appellant's contention, there was an arrest report
prepared by the police in connection with his apprehension. Said
Booking Sheet and Arrest Report 32 states, inter alia, that "suspect was
arrested for selling two tea bags of suspected marijuana dried leaves
and the confiscation of another two tea bags of suspected marijuana
dried leaves." Below these remarks was affixed appellant's signature. In
the same manner, the receipt for the seized property, hereinbefore
mentioned, was signed by appellant wherein he acknowledged the
confiscation of the marked bills from him. 33
However, we find and hereby declare the aforementioned exhibits
inadmissible in evidence. Appellant's conformance to these documents
are declarations against interest and tacit admissions of the crime
charged. They were obtained in violation of his right as a person under
custodial investigation for the commission of an offense, there being
nothing in the records to show that he was assisted by
counsel. 34 Although appellant manifested during the custodial
investigation that he waived his right to counsel, the waiver was not
made in writing and in the presence of counsel, 35 hence whatever
incriminatory admission or confession may be extracted from him, either
verbally or in writing, is not allowable in evidence. 36 Besides, the arrest
report is self-serving and hearsay and can easily be concocted to
implicate a suspect.
Notwithstanding the objectionability of the aforesaid exhibits, appellant
cannot thereby be extricated from his predicament since his criminal
participation in the illegal sale of marijuana has been sufficiently proven.
The commission of the offense of illegal sale of prohibited drugs requires
merely the consummation of the selling transaction 37 which happens
the moment the buyer receives the drug from the seller. 38 In the
present case, and in light of the preceding discussion, this sale has been
ascertained beyond any peradventure of doubt.
Appellant then asseverates that it is improbable that he would sell
marijuana to a total stranger. 39 We take this opportunity to once again
reiterate the doctrinal rule that drug-pushing, when done on a small
scale as in this case, belongs to that class of crimes that may be
committed at any time and in any place. 40 It is not contrary to human
experience for a drug pusher to sell to a total stranger, 41 for what
for matters is not an existing familiarity between the buyer and seller but
their agreement and the acts constituting the sale and delivery of the
marijuana leaves. 42 While there may be instances where such sale
could be improbable, taking into consideration the diverse
circumstances of person, time and place, as well as the incredibility of
how the accused supposedly acted on that occasion, we can safely say
that those exceptional particulars are not present in this case.
Finally, appellant contends that he was subjected to physical and mental
torture by the arresting officers which caused him to escape from Camp
Olivas the night he was placed under custody. 43 This he asserts to
support his explanation as to how his signatures on the documents
earlier discussed were supposedly obtained by force and coercion.
The doctrine is now too well embedded in our jurisprudence 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 circumstances. 44 The evidence on record is bereft of any support
for appellant's allegation of maltreatment. Two doctors, one for the
prosecution 45 and the other for the defense, 46testified on the absence
of any tell-tale sign or indication of bodily injury, abrasions or contusions
on the person of appellant. What is evident is that the cause of his
abdominal pain was his peptic ulcer from which he had been suffering
even before his arrest. 47 His own brother even corroborated that fact,
saying that appellant has had a history of bleeding peptic ulcer. 48
Furthermore, if it is true that appellant was maltreated at Camp Olivas,
he had no reason whatsoever for not divulging the same to his brother
who went to see him at the camp after his arrest and during his detention
there. 49Significantly, he also did not even report the matter to the
authorities nor file appropriate charges against the alleged malefactors
despite the opportunity to do so 50 and with the legal services of counsel
being available to him. Such omissions funnel down to the conclusion
that appellant's story is a pure fabrication.
These, and the events earlier discussed, soundly refute his allegations
that his arrest was baseless and premeditated for the NARCOM agents
were determined to arrest him at all costs. 51 Premeditated or not,
appellant's arrest was only the culmination, the final act needed for his
isolation from society and it was providential that it came about after he
was caught in the very act of illicit trade of prohibited drugs. Accordingly,
this opinion could have concluded on a note of affirmance of the
judgment of the trial court. However, Republic Act No. 6425, as
amended, was further amended by Republic Act No. 7659 effective
December 31, 1993, 52 which supervenience necessarily affects the
original disposition of this case and entails additional questions of law
which we shall now resolve.
II
The provisions of the aforesaid amendatory law, pertinent to the
adjudication of the case at bar, are to this effect:
Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425,
as amended, known as the Dangerous Drugs Act of 1972, are hereby
amended to read as follows:
xxx xxx xxx
Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of
Prohibited Drugs. The penalty of reclusion perpetua to death and a
fine ranging from five hundred thousand pesos to ten million pesos shall
be imposed upon any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit
or transport any prohibited drug, or shall act as a broker in any of such
transactions.
xxx xxx xxx
Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended,
known as the Dangerous Drugs Act of 1972, is hereby amended to read
as follows:
Sec. 20. Application of Penalties, Confiscation and Forfeiture of the
Proceeds or Instrument of the Crime. The penalties for offenses
under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15
and 16 of Article III of this Act shall be applied if the dangerous drugs
involved is in any of the following quantities:
xxx xxx xxx
5. 750 grams or more of indian hemp or marijuana
xxx xxx xxx
Otherwise, if the quantity involved is less than the foregoing quantities,
the penalty shall range from prision correccional to reclusion
perpetua depending upon the quantity.
1. Considering that herein appellant is being prosecuted for the sale of
four tea bags of marijuana with a total weight of only 3.8 grams and, in
fact, stands to be convicted for the sale of only two of those tea bags,
the initial inquiry would be whether the patently favorable provisions of
Republic Act
No. 7659 should be given retroactive effect to entitle him to the lesser
penalty provided thereunder, pursuant to Article 22 of the Revised Penal
Code.
Although Republic Act No. 6425 was enacted as a special law, albeit
originally amendatory and in substitution of the previous Articles 190 to
194 of the Revised Penal Code, 53 it has long been settled that by force
of Article 10 of said Code the beneficient provisions of Article 22 thereof
applies to and shall be given retrospective effect to crimes punished by
special laws. 54 The execution in said article would not apply to those
convicted of drug offenses since habitual delinquency refers to
convictions for the third time or more of the crimes of serious or less
serious physical injuries, robo, hurto, estafa or falsification. 55
Since, obviously, the favorable provisions of Republic Act No. 7659
could neither have then been involved nor invoked in the present case,
a corollary question would be whether this court, at the present stage,
can
sua sponte apply the provisions of said Article 22 to reduce the penalty
to be imposed on appellant. That issue has likewise been resolved in
the cited case of People vs. Moran, et al., ante., thus:
. . . . The plain precept contained in article 22 of the Penal Code,
declaring the retroactivity of penal laws in so far as they are favorable to
persons accused of a felony, would be useless and nugatory if the courts
of justice were not under obligation to fulfill such duty, irrespective of
whether or not the accused has applied for it, just as would also all
provisions relating to the prescription of the crime and the penalty.
If the judgment which could be affected and modified by the reduced
penalties provided in Republic Act No. 7659 has already become final
and executory or the accused is serving sentence thereunder, then
practice, procedure and pragmatic considerations would warrant and
necessitate the matter being brought to the judicial authorities for relief
under a writ of habeas corpus. 56
2. Probably through oversight, an error on the matter of imposable
penalties appears to have been committed in the drafting of the
aforesaid law; thereby calling for and necessitating judicial reconciliation
and craftsmanship.
As applied to the present case, Section 4 of Republic Act No. 6425, as
now further amended, imposes the penalty of reclusion perpetua to
death and a fine ranging from P500,000.00 to P10,000,000.00 upon any
person who shall unlawfully sell, administer, deliver, give away,
distribute, dispatch in transit or transport any prohibited drug. That
penalty, according to the amendment to Section 20 of the law, shall be
applied if what is involved is 750 grams or more of indian hemp or
marijuana; otherwise, if the quantity involved is less, the penalty shall
range from prision correccional to reclusion perpetua depending upon
the quantity.
In other words, there is here an overlapping error in the provisions on
the penalty of reclusion perpetua by reason of its dual imposition, that
is, as the maximum of the penalty where the marijuana is less than 750
grams, and also as the minimum of the penalty where the marijuana
involved is 750 grams or more. The same error has been committed with
respect to the other prohibited and regulated drugs provided in said
Section 20. To harmonize such conflicting provisions in order to give
effect to the whole law, 57 we hereby hold that the penalty to be imposed
where the quantity of the drugs involved is less than the quantities stated
in the first paragraph shall range from prision correccional to reclusion
temporal, and not reclusion perpetua. This is also concordant with the
fundamental rule in criminal law that all doubts should be construed in a
manner favorable to the accused.
3. Where, as in this case, the quantity of the dangerous drug is only 3.8
grams, hence covered by the imposable range of penalties under the
second paragraph of Section 20, as now modified, the law provides that
the penalty shall be taken from said range "depending upon the
quantity" of the drug involved in the case. The penalty in said second
paragraph constitutes a complex one composed of three distinct
penalties, that is, prision correccional,prision mayor, and reclusion
temporal. In such a situation, the Code provides that each one shall form
a period, with the lightest of them being the minimum, the next as the
medium, and the most severe as the maximum period. 58
Ordinarily, and pursuant to Article 64 of the Code, the mitigating and
aggravating circumstances determine which period of such complex
penalty
shall be imposed on the accused. The peculiarity of the second
paragraph of Section 20, however, is its specific mandate, above
quoted, that the penalty shall instead depend upon the quantity of the
drug subject of the criminal transaction. 59 Accordingly, by way of
exception to Article 77 of the Code and to subserve the purpose of
Section 20 of Republic Act No. 7659, each of the aforesaid component
penalties shall be considered as a principal imposable penalty
depending on the quantity of the drug involved. Thereby, the modifying
circumstances will not altogether be disregarded. Since each
component penalty of the total complex penalty will have to be imposed
separately as determined by the quantity of the drug involved, then the
modifying circumstances can be used to fix the proper period of that
component penalty, as shall hereafter be explained.
It would, therefore, be in line with the provisions of Section 20 in the
context of our aforesaid disposition thereon that, unless there are
compelling reasons for a deviation, the quantities of the drugs
enumerated in its second paragraph be divided into three, with the
resulting quotient, and double or treble the same, to be respectively the
bases for allocating the penalty proportionately among the three
aforesaid periods according to the severity thereof. Thus, if the
marijuana involved is below 250 grams, the penalty to be imposed shall
be prision correccional; from 250 to 499 grams, prision mayor; and 500
to
749 grams, reclusion temporal. Parenthetically, fine is imposed as a
conjunctive penalty only if the penalty is reclusion perpetua to death. 60
Now, considering the minimal quantity of the marijuana subject of the
case at bar, the penalty of prision correccional is consequently indicated
but, again, another preliminary and cognate issue has first to be
resolved.
4. Prision correccional has a duration of 6 months and 1 day to 6 years
and, as a divisible penalty, it consists of three periods as provided in the
text of and illustrated in the table provided by Article 76 of the Code. The
question is whether or not in determining the penalty to be imposed,
which is here to be taken from the penalty of prision correccional, the
presence or absence of mitigating, aggravating or other circumstances
modifying criminal liability should be taken into account.
We are not unaware of cases in the past wherein it was held that, in
imposing the penalty for offenses under special laws, the rules on
mitigating or aggravating circumstances under the Revised Penal Code
cannot and should not be applied. A review of such doctrines as applied
in said cases, however, reveals that the reason therefor was because
the special laws involved provided their own specific penalties for the
offenses punished thereunder, and which penalties were not taken from
or with reference to those in the Revised Penal Code. Since the
penalties then provided by the special laws concerned did not provide
for the minimum, medium or maximum periods, it would consequently
be impossible to consider the aforestated modifying circumstances
whose main function is to determine the period of the penalty in
accordance with the rules in Article 64 of the Code.
This is also the rationale for the holding in previous cases that the
provisions of the Code on the graduation of penalties by degrees could
not be given supplementary application to special laws, since the
penalties in the latter were not components of or contemplated in the
scale of penalties provided by Article 71 of the former. The suppletory
effect of the Revised Penal Code to special laws, as provided in Article
10 of the former, cannot be invoked where there is a legal or physical
impossibility of, or a prohibition in the special law against, such
supplementary application.
The situation, however, is different where although the offense is defined
in and ostensibly punished under a special law, the penalty therefor is
actually taken from the Revised Penal Code in its technical
nomenclature and, necessarily, with its duration, correlation and legal
effects under the system of penalties native to said Code. When, as in
this case, the law involved speaks of prision correccional, in its technical
sense under the Code, it would consequently be both illogical and
absurd to posit otherwise. More on this later.
For the nonce, we hold that in the instant case the imposable penalty
under Republic Act No. 6425, as amended by Republic Act No. 7659,
is prision correccional, to be taken from the medium period thereof
pursuant to Article 64 of the Revised Penal Code, there being no
attendant mitigating or aggravating circumstance.
5. At this juncture, a clarificatory discussion of the developmental
changes in the penalties imposed for offenses under special laws would
be necessary.
Originally, those special laws, just as was the conventional practice in
the United States but differently from the penalties provided in our
Revised Penal Code and its Spanish origins, provided for one specific
penalty or a range of penalties with definitive durations, such as
imprisonment for one year or for one to five years but without division
into periods or any technical statutory cognomen. This is the special law
contemplated in and referred to at the time laws like the Indeterminate
Sentence Law 61 were passed during the American regime.
Subsequently, a different pattern emerged whereby a special law would
direct that an offense thereunder shall be punished under the Revised
Penal Code and in the same manner provided therein. Inceptively, for
instance, Commonwealth Act No. 303 62 penalizing non-payment of
salaries and wages with the periodicity prescribed therein, provided:
Sec. 4. Failure of the employer to pay his employee or laborer as
required by section one of this Act, shall prima facie be considered a
fraud committed by such employer against his employee or laborer by
means of false pretenses similar to those mentioned in article three
hundred and fifteen, paragraph four, sub-paragraph two (a) of the
Revised Penal Code and shall be punished in the same manner as
therein provided. 63
Thereafter, special laws were enacted where the offenses defined
therein were specifically punished by the penalties as technically named
and understood in the Revised Penal Code. These are exemplified by
Republic Act No. 1700 (Anti-Subversion Act) where the penalties ranged
from arresto mayor to
death; 64 Presidential Decree No. 1612 (Anti-Fencing Decree) where
the penalties run from arresto mayor to prision mayor; and Presidential
Decree
No. 1866 (illegal possession and other prohibited acts involving
firearms), the penalties wherefor may involve prision mayor, reclusion
temporal, reclusion perpetua or death.
Another variant worth mentioning is Republic Act No. 6539
(Anti-Carnapping Act of 1972) where the penalty is imprisonment for not
less than 14 years and 8 months and not more than 17 years and 4
months, when committed without violence or intimidation of persons or
force upon things; not less than 17 years and 4 months and not more
than 30 years, when committed with violence against or intimidation of
any person, or force upon things; and life imprisonment to death, when
the owner, driver or occupant of the carnapped vehicle is killed.
With respect to the first example, where the penalties under the special
law are different from and are without reference or relation to those
under the Revised Penal Code, there can be no suppletory effect of the
rules for the application of penalties under said Code or by other relevant
statutory provisions based on or applicable only to said rules for felonies
under the Code. In this type of special law, the legislative intendment is
clear.
The same exclusionary rule would apply to the last given example,
Republic Act No. 6539. While it is true that the penalty of 14 years and
8 months to 17 years and 4 months is virtually equivalent to the duration
of the medium period of reclusion temporal,such technical term under
the Revised Penal Code is not given to that penalty for carnapping.
Besides, the other penalties for carnapping attended by the qualifying
circumstances stated in the law do not correspond to those in the Code.
The rules on penalties in the Code, therefore, cannot suppletorily apply
to Republic Act No. 6539 and special laws of the same formulation.
On the other hand, the rules for the application of penalties and the
correlative effects thereof under the Revised Penal Code, as well as
other statutory enactments founded upon and applicable to such
provisions of the Code, have suppletory effect to the penalties under the
former Republic Act
No. 1700 and those now provided under Presidential Decrees Nos. 1612
and 1866. While these are special laws, the fact that the penalties for
offenses thereunder are those provided for in the Revised Penal code
lucidly reveals the statutory intent to give the related provisions on
penalties for felonies under the Code the corresponding application to
said special laws, in the absence of any express or implicit proscription
in these special laws. To hold otherwise would be to sanction an
indefensible judicial truncation of an integrated system of penalties
under the Code and its allied legislation, which could never have been
the intendment of Congress.
In People vs. Macatanda, 65 a prosecution under a special law
(Presidential Decree No. 533, otherwise known as the Anti-Cattle
Rustling Law of 1974), it was contended by the prosecution that Article
64, paragraph 5, of the Revised Penal Code should not apply to said
special law. We said therein that
We do not agree with the Solicitor General that P.D. 533 is a special
law entirely distinct from and unrelated to the Revised Penal Code. From
the nature of the penalty imposed which is in terms of the classification
and duration of penalties as prescribed in the Revised Penal
Code, which is not for penalties as are ordinarily imposed in special
laws, the intent seems clear that P.D. 533 shall be deemed as an
amendment of the Revised Penal Code, with respect to the offense of
theft of large cattle (Art. 310) or otherwise to be subject to applicable
provisions thereof such as Article 104 of the Revised Penal Code . . . .
Article 64 of the same Code should, likewise, be applicable, . . . .
(Emphasis supplied.)
More particularly with regard to the suppletory effect of the rules on
penalties in the Revised Penal Code to Republic Act No. 6425, in this
case involving Article 63(2) of the Code, we have this more recent
pronouncement:
. . . Pointing out that as provided in Article 10 the provisions of the
Revised Penal Code shall be "supplementary" to special laws, this Court
held that where the special law expressly grants to the court discretion
in applying the penalty prescribed for the offense, there is no room for
the application of the provisions of the Code . . . .
The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623,
contains no explicit grant of discretion to the Court in the application of
the penalty prescribed by the law. In such case, the court must be
guided by the rules prescribed by the Revised Penal Code concerning
the application of penalties which distill the "deep legal thought and
centuries of experience in the administration of criminal laws."
(Emphasis ours.) 66
Under the aforestated considerations, in the case of the Dangerous
Drugs Act as now amended by Republic Act No. 7659 by the
incorporation and prescription therein of the technical penalties defined
in and constituting integral parts of the three scales of penalties in the
Code, 67 with much more reason should the provisions of said Code on
the appreciation and effects of all attendant modifying circumstances
apply in fixing the penalty. Likewise, the different kinds or classifications
of penalties and the rules for graduating
such penalties by degrees should have supplementary effect on
Republic Act No. 6425, except if they would result in absurdities as will
now be explained.
While not squarely in issue in this case, but because this aspect is
involved in the discussion on the role of modifying circumstances, we
have perforce to lay down the caveat that mitigating circumstances
should be considered and applied only if they affect the periods and
the degrees of the penalties within rational limits.
Prefatorily, what ordinarily are involved in the graduation and
consequently determine the degree of the penalty, in accordance with
the rules in Article 61 of the Code as applied to the scale of penalties in
Article 71, are the stage of execution of the crime and the nature of the
participation of the accused. However, under paragraph 5 of Article 64,
when there are two or more ordinary mitigating circumstances and no
aggravating circumstance, the penalty shall be reduced by one degree.
Also, the presence of privileged mitigating circumstances, as provided
in Articles 67 and 68, can reduce the penalty by one or two degrees, or
even more. These provisions of Articles 64(5), 67 and 68 should not
apply in toto in the determination of the proper penalty under the
aforestated second paragraph of section 20 of Republic Act No. 6425,
to avoid anomalous results which could not have been contemplated by
the legislature.
Thus, paragraph 5 of Article 61 provides that when the law prescribes a
penalty in some manner not specially provided for in the four preceding
paragraphs thereof, the courts shall proceed by analogy therewith.
Hence, when the penalty prescribed for the crime consists of one or two
penalties to be imposed in their full extent, the penalty next lower in
degree shall likewise consist of as many penalties which follow the
former in the scale in Article 71. If this rule were to be applied, and since
the complex penalty in this
case consists of three discrete penalties in their full extent, that is,
prision correccional, prision mayor and reclusion temporal, then one
degree lower would be arresto menor, destierro and arresto mayor.
There could, however, be no further reduction by still one or two
degrees, which must each likewise consist of three penalties, since only
the penalties of fine and public censure remain in the scale.
The Court rules, therefore, that while modifying circumstances may be
appreciated to determine the periods of the corresponding penalties, or
even reduce the penalty by degrees, in no case should such graduation
of penalties reduce the imposable penalty beyond or lower than prision
correccional. It is for this reason that the three component penalties in
the second paragraph of Section 20 shall each be considered as an
independent principal penalty, and that the lowest penalty should in any
event be prision correccional in order not to depreciate the seriousness
of drug offenses. Interpretatio fienda est ut res magis valeat quam
pereat. Such interpretation is to be adopted so that the law may continue
to have efficacy rather than fail. A perfect judicial solution cannot be
forged from an imperfect law, which impasse should now be the concern
of and is accordingly addressed to Congress.
6. The final query is whether or not the Indeterminate Sentence Law is
applicable to the case now before us. Apparently it does, since drug
offenses are not included in nor has appellant committed any act which
would put him within the exceptions to said law and the penalty to be
imposed does not involve reclusion perpetua or death, provided, of
course, that the penalty as ultimately resolved will exceed one year of
imprisonment. 68 The more important aspect, however, is how the
indeterminate sentence shall be ascertained.
It is true that Section 1 of said law, after providing for indeterminate
sentence for an offense under the Revised Penal Code, states that "if
the offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall
not exceed the maximum fixed by said law and the minimum shall not
be less than the minimum term prescribed by the same." We hold that
this quoted portion of the section indubitably refers to an offense under
a special law wherein the penalty imposed was not taken from and is
without reference to the Revised Penal Code, as discussed in the
preceding illustrations, such that it may be said that the "offense is
punished" under that law.
There can be no sensible debate that the aforequoted rule on
indeterminate sentence for offenses under special laws was necessary
because of the nature of the former type of penalties under said laws
which were not included or contemplated in the scale of penalties in
Article 71 of the Code, hence there could be no minimum "within the
range of the penalty next lower to that prescribed by the Code for the
offense," as is the rule for felonies therein. In the illustrative examples of
penalties in special laws hereinbefore provided, this rule applied, and
would still apply, only to the first and last examples. Furthermore,
considering the vintage of Act No. 4103 as earlier noted, this holding is
but an application and is justified under the rule of contemporanea
expositio. 69
We repeat, Republic Act No. 6425, as now amended by Republic Act
No. 7659, has unqualifiedly adopted the penalties under the Revised
Penal Code in their technical terms, hence with their technical
signification and effects. In fact, for purposes of determining
the maximum of said sentence,
have applied the provisions of the amended Section 20 of said law to
arrive at prision correccional and Article 64 of the Code to impose the
same in the medium period. Such offense, although provided for in a
special law, is now in effect punished by and under the Revised Penal
Code. Correlatively, to determine the minimum, we must apply the first
part of the aforesaid Section 1 which directs that "in 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 imposedunder the rules of
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."
(Emphasis ours.)
A divergent pedantic application would not only be out of context but
also an admission of the hornbook maxim that qui haeret in litera haeret
in cortice. Fortunately, this Court has never gone only skin-deep in its
construction of Act. No. 4103 by a mere literal appreciation of its
provisions. Thus, with regard to the phrase in Section 2 thereof
excepting from its coverage "persons convicted
offenses punished with death penalty or life imprisonment," we have
held that what is considered is the penalty actually imposed and not the
penalty imposable under the law, 70and that reclusion perpetua is
likewise embraced therein although what the law states is "life
imprisonment".
What irresistibly emerges from the preceding disquisition, therefore, is
that under the concurrence of the principles of literal interpretation,
which have been rationalized by comparative decisions of this Court; of
historical interpretation, as explicated by the antecedents of the law and
related contemporaneous legislation; and of structural interpretation,
considering the interrelation of the penalties in the Code as
supplemented by Act No. 4103 in an integrated scheme of penalties, it
follows that the minimum of the indeterminate sentence in this case shall
be the penalty next lower to that prescribed for the offense. Thereby we
shall have interpreted the seeming ambiguity in Section 1 of Act No.
4103 in such a way as to harmonize laws with laws, which is the best
mode of interpretation. 71
The indeterminate Sentence Law is a legal and social measure of
compassion, and should be liberally interpreted in favor of the
accused. 72 The "minimum" sentence is merely a period at which, and
not before, as a matter of grace and not of right, the prisoner may merely
be allowed to serve the balance of his sentence outside of his
confinement. 73 It does not constitute the totality of the penalty since
thereafter he still has to continue serving the rest of his sentence under
set conditions. That minimum is only the period when the convict's
eligibility for parole may be considered. In fact, his release on parole
may readily be denied if he is found unworthy thereof, or his
reincarceration may be ordered on legal grounds, even if he has served
the minimum sentence.
we It is thus both amusing and bemusing if, in the case at bar, appellant
should be begrudged the benefit of a minimum sentence within the
range of arresto mayor, the penalty next lower to prision
correccional which is the maximum range we have fixed through the
application of Articles 61 and 71 of the Revised Penal Code. For, with
fealty to the law, the court may set the minimum sentence at 6 months
of arresto mayor, instead of 6 months and 1 day of prision correccional.
The difference, which could thereby even involve only one day, is hardly
worth the creation of an overrated tempest in the judicial teapot.
ACCORDINGLY, under all the foregoing premises, the judgment of
conviction rendered by the court a quo against accused-appellant Martin
Simon y Sunga is AFFIRMED, but with the MODIFICATION that he
should be, as he hereby is, sentenced to serve an indeterminate penalty
of six (6) months of arresto mayor, as the minimum, to six (6) years
of prision correccional, as the maximum thereof.
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug,
Kapunan and Mendoza, JJ., concur.
of
Bellosillo, J., is on leave.
Separate Opinions
DAVIDE, JR., J., concurring and dissenting:
I am still unable to agree with the view that (a) in appropriate cases
where the penalty to be imposed would beprision correccional pursuant
to the second paragraph of Section 20 of R.A. No. 6425, as amended
by Section 17 of R.A. No. 7659, the sentence to be meted out, applying
the Indeterminate Sentence Law (Act No. 4103, as amended), should
be that whose minimum is within the range of the penalty next lower, i.e.,
arresto mayor; and (b) the presence of two or more mitigating
circumstances not offset by any mitigating circumstances or of a
privileged mitigating circumstance shall not reduce the penalty by one
or two degrees if the penalty to be imposed, taking into account the
quantity of the dangerous drugs involved, would be prision correccional.
I a special law of a penalty found in the Revised Penal Code can by no
The first view is based on the proposition that since R.A. No. 7659 had
unqualifiedly adopted the penalties under the Revised Penal Code in
their technical terms, hence also their technical signification and effects,
then what should govern is the first part of Section 1 of the Indeterminate
Sentence Law which directs that:
in 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.
Elsewise stated, by the adoption of the penalties provided for in the
Revised Penal Code for the offenses penalized under the Dangerous
Drugs Act (R.A. No. 6425), as amended, the latter offenses would now
be considered as punished under the Revised Penal Code for purposes
of the Indeterminate Sentence Law.
Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as
amended by Act. No. 4225 and R.A. No. 4203) also provides that:
if the offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall
not exceed the maximum fixed by said law and the minimum shall not
be less than the minimum prescribed by the same (Emphasis supplied).
There are, therefore, two categories of offenses which should be taken
into account in the application of the Indeterminate Sentence Law: (1)
offenses punished by the Revised Penal Code, and (2) offenses
punished by other laws (or special laws).
The offenses punished by the Revised Penal Code are those defined
and penalized in Book II thereof, which is thus appropriately titled
CRIMES AND PENALTIES. To simplify further, a crime is
deemed punished under the Revised Penal Code if it is defined by it,
and none other, as a crime and is punished by a penalty which is
included in the classification of Penalties in Chapter II, Title III of Book I
thereof.
On the other hand, an offense is considered punished under any other
law (or special law) if it is not defined and penalized by the Revised
Penal Code but by such other law.
It is thus clear that an offense is punished by the Revised Penal Code if
both its definition and the penalty therefor are found in the said Code,
and it is deemed punished by a special law if its definition and the penalty
therefor are found in the special law. That the latter imports or borrows
from the Revised Penal Code its nomenclature of penalties does not
make an offense in the special law punished by or punishable under the
Revised Penal Code. The reason is quite simple. It is still the special law
that defines the offense and imposes a penalty therefor, although it
adopts the Code's nomenclature of penalties. In short, the mere use by
means make an offense thereunder an offense "punished or punishable"
by the Revised Penal Code.
Thus, I cannot subscribe to the view that since R.A. No. 7659 had
adopted the penalties prescribed by the Revised Penal Code in drug
cases, offenses related to drugs should now be considered as punished
under the Revised Penal Code. If that were so, then we are also bound,
ineluctably, to declare that such offenses are mala in se and to apply the
Articles of the Revised Penal Code regarding the stages of a felony
(Article 6), the nature of participation (Article 16), accessory penalties
(Articles 40-45), application of penalties to principals, accomplices, and
accessories (Article 46 et seq.), complex crimes (Article 48), and
graduation of penalties (Article 61), among others. We cannot do
otherwise without being drawn to an inconsistent posture which is
extremely hard to justify.
I respectfully submit then that the adoption by the Dangerous Drugs Act
of the penalties in the Revised Penal Code does not make an offense
under the Dangerous Drugs Act an offense punished by the Revised
Penal Code. Consequently, where the proper penalty to be imposed
under Section 20 of the Dangerous Drugs Act is prisioncorreccional,
then, applying the Indeterminate Sentence Law, the indeterminate
sentence to be meted on the accused should be that
whose minimum should not be less than the minimum prescribed by the
special law (the Dangerous Drugs Act), i.e., not lower than six (6)
months and one (1) day of prision correccional.
II
The majority opinion holds the view that while the penalty provided for
in Section 20 of the Dangerous Drugs Act is a complex one composed
of three distinct penalties, viz., prision correccional, prision
mayor, and reclusion temporal,and that pursuant to Article 77 of the
Revised Penal Code, each should form a period, with the lightest of them
being the minimum, the next as the medium, and the most severe as the
maximum, yet, considering that under the said second paragraph of
Section 20 the penalty depends on the quantity of the drug subject of
the criminal transaction, then by way of exception to Article 77 of the
Revised Penal Code and to subserve the purpose of Section 20, as
amended, each of the aforesaid component penalties shall be
considered as a principal penalty depending on the quantity of the drug
involved. Thereafter, applying the modifying circumstances pursuant to
Article 64 of the Revised Penal Code, the proper period of the
component penalty shall then be fixed.
To illustrate, if the quantity of the drugs involved (e.g., marijuana below
250 grams) the proper principal penalty should be prision correccional,
but there is one mitigating and no aggravating circumstance, then the
penalty to be imposed should be prision correccional in its minimum
period. Yet, the majority opinion puts a limit to such a rule. It declares:
The Court rules, therefore, that while modifying circumstances may be
appreciated to determine the periods of the corresponding penalties, or
even reduce the penalty by degrees, in no case should such graduation
of penalties reduce the imposable penalty beyond or lower than
prision correccional. It is for this reason that the three component
penalties in the second paragraph of Section 20 shall each be
considered as an independent principal penalty, and that the lowest
penalty should in any event be prision correccional in order to
depreciate the seriousness of drug offenses.
guilty of possession of only one (1) gram of marijuana in which case
the penalty to be imposed is prision correccional would not be entitled
to a reduction thereof even if he has the same number of privileged
mitigating circumstances as the former has.
Also, if the privileged mitigating circumstance happens to be the minority
of the accused, then he is entitled to the reduction of the penalty as a
matter of right pursuant to Article 68 of the Revised Penal Code, which
reads:
Art. 68. Penalty to be imposed upon a person under eighteen years of
age. When the offender is a minor under eighteen years and his case
is one coming under the provisions of the paragraph next to the last of
Article 80 of this Code, the following rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who is not
exempted from liability by reason of the court having declared that he
acted with discernment, a discretionary penalty shall be imposed, but
always lower by two degrees at least than that prescribed by law for the
crime which he committed.
2. Upon a person over fifteen and under eighteen years of age the
penalty next lover than that prescribed by law shall be imposed, but
always in the proper period.

Simply put, this rule would allow the reduction from reclusion
temporal if it is the penalty to be imposed on the basis of the quantity
of the drugs involved by two degrees, or to prision correccional, if
there are two or more mitigating circumstances and no aggravating
circumstance is present (paragraph 5, Article 64, Revised Penal Code)
or if there is a privileged mitigating circumstances of, say, minority
I do not think that as to the second paragraph of Section 20 of the
Dangerous Drugs Act, as amended by Section 17 of R.A. No. 7659, we
can be at liberty to apply the Revised Penal Code in one aspect and not
to apply it in another.
Feliciano and Quiason, JJ., concur.

(Article 68, Revised Penal Code), or under circumstances covered by

Article 69 of the Revised Penal Code. Yet, if the proper penalty to be
imposed is prision mayor, regardless of the fact that a reduction by two # Separate Opinions
degrees is proper, it should only be reduced by one degree because the
DAVIDE, JR., J., concurring and dissenting:
rule does not allow a reduction beyond prision correccional. Finally, if
the proper penalty to be imposed is prision correccional, no reduction at I am still unable to agree with the view that (a) in appropriate cases
all would be allowed. where the penalty to be imposed would beprision correccional pursuant
to the second paragraph of Section 20 of R.A. No. 6425, as amended
I find the justification for the rule to be arbitrary and unfair. It is arbitrary
by Section 17 of R.A. No. 7659, the sentence to be meted out, applying
because within the same second paragraph involving the same range of
the Indeterminate Sentence Law (Act No. 4103, as amended), should
penalty, we both allow and disallow the application of Article 64(5),
be that whose minimum is within the range of the penalty next lower, i.e.,
Article 68, and Article 69 of the Revised Penal Code. The reason for the
arresto mayor; and (b) the presence of two or more mitigating
disallowance, viz., in order not to depreciate the seriousness of drug
circumstances not offset by any mitigating circumstances or of a
offenses, is unconvincing because Section 20 of the Dangerous Drugs
privileged mitigating circumstance shall not reduce the penalty by one
Act, as amended by R.A.
or two degrees if the penalty to be imposed, taking into account the
No. 7659, has in fact "depreciated" the seriousness of drug offenses by
quantity of the dangerous drugs involved, would be prision correccional.
providing quantity as basis for the determination of the proper penalty
and limiting fine only to cases punishable by reclusion perpetua to I
death. It is unfair because an accused who is found guilty of possessing
The first view is based on the proposition that since R.A. No. 7659 had
MORE dangerous
unqualifiedly adopted the penalties under the Revised Penal Code in
drugs say 500 to 749 grams of marijuana, in which case the penalty
their technical terms, hence also their technical signification and effects,
to be imposed would be reclusion temporal may only be sentenced to
then what should govern is the first part of Section 1 of the Indeterminate
six (6) months and one (1) day of prision correccional minimum because
Sentence Law which directs that:
of privileged mitigating circumstances. Yet, an accused who is found
in 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.
Elsewise stated, by the adoption of the penalties provided for in the
Revised Penal Code for the offenses penalized under the Dangerous
Drugs Act (R.A. No. 6425), as amended, the latter offenses would now
be considered as punished under the Revised Penal Code for purposes
of the Indeterminate Sentence Law.
Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as
amended by Act. No. 4225 and R.A. No. 4203) also provides that:
if the offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall
not exceed the maximum fixed by said law and the minimum shall not
be less than the minimum prescribed by the same (Emphasis supplied).
There are, therefore, two categories of offenses which should be taken
into account in the application of the Indeterminate Sentence Law: (1)
offenses punished by the Revised Penal Code, and (2) offenses
punished by other laws (or special laws).
The offenses punished by the Revised Penal Code are those defined
and penalized in Book II thereof, which is thus appropriately titled
CRIMES AND PENALTIES. To simplify further, a crime is
deemed punished under the Revised Penal Code if it is defined by it,
and none other, as a crime and is punished by a penalty which is
included in the classification of Penalties in Chapter II, Title III of Book I
thereof.
On the other hand, an offense is considered punished under any other
law (or special law) if it is not defined and penalized by the Revised
Penal Code but by such other law.
It is thus clear that an offense is punished by the Revised Penal Code if
both its definition and the penalty therefor are found in the said Code,
and it is deemed punished by a special law if its definition and the penalty
therefor are found in the special law. That the latter imports or borrows
from the Revised Penal Code its nomenclature of penalties does not
make an offense in the special law punished by or punishable under the
Revised Penal Code. The reason is quite simple. It is still the special law
that defines the offense and imposes a penalty therefor, although it
adopts the Code's nomenclature of penalties. In short, the mere use by
a special law of a penalty found in the Revised Penal Code can by no
means make an offense thereunder an offense "punished or punishable"
by the Revised Penal Code.
Thus, I cannot subscribe to the view that since R.A. No. 7659 had
adopted the penalties prescribed by the Revised Penal Code in drug
cases, offenses related to drugs should now be considered as punished
under the Revised Penal Code. If that were so, then we are also bound,
ineluctably, to declare that such offenses are mala in se and to apply the
Articles of the Revised Penal Code regarding the stages of a felony
(Article 6), the nature of participation (Article 16), accessory penalties
(Articles 40-45), application of penalties to principals, accomplices, and
accessories (Article 46 et seq.), complex crimes (Article 48), and
graduation of penalties (Article 61), among others. We cannot do
otherwise without being drawn to an inconsistent posture which is
extremely hard to justify.
I respectfully submit then that the adoption by the Dangerous Drugs Act
of the penalties in the Revised Penal Code does not make an offense
under the Dangerous Drugs Act an offense punished by the Revised
Penal Code. Consequently, where the proper penalty to be imposed
under Section 20 of the Dangerous Drugs Act is prisioncorreccional,
then, applying the Indeterminate Sentence Law, the indeterminate
sentence to be meted on the accused should be that
whose minimum should not be less than the minimum prescribed by the
special law (the Dangerous Drugs Act), i.e., not lower than six (6)
months and one (1) day of prision correccional.
II
The majority opinion holds the view that while the penalty provided for
in Section 20 of the Dangerous Drugs Act is a complex one composed
of three distinct penalties, viz., prision correccional, prision
mayor, and reclusion temporal,and that pursuant to Article 77 of the
Revised Penal Code, each should form a period, with the lightest of them
being the minimum, the next as the medium, and the most severe as the
maximum, yet, considering that under the said second paragraph of
Section 20 the penalty depends on the quantity of the drug subject of
the criminal transaction, then by way of exception to Article 77 of the
Revised Penal Code and to subserve the purpose of Section 20, as
amended, each of the aforesaid component penalties shall be
considered as a principal penalty depending on the quantity of the drug
involved. Thereafter, applying the modifying circumstances pursuant to
Article 64 of the Revised Penal Code, the proper period of the
component penalty shall then be fixed.
To illustrate, if the quantity of the drugs involved (e.g., marijuana below
250 grams) the proper principal penalty should be prision correccional,
but there is one mitigating and no aggravating circumstance, then the
penalty to be imposed should be prision correccional in its minimum
period. Yet, the majority opinion puts a limit to such a rule. It declares:
The Court rules, therefore, that while modifying circumstances may be
appreciated to determine the periods of the corresponding penalties, or
even reduce the penalty by degrees, in no case should such graduation
of penalties reduce the imposable penalty beyond or lower than
prision correccional. It is for this reason that the three component
penalties in the second paragraph of Section 20 shall each be
considered as an independent principal penalty, and that the lowest
penalty should in any event be prision correccional in order to
depreciate the seriousness of drug offenses.
Simply put, this rule would allow the reduction from reclusion I do not think that as to the second paragraph of Section 20 of the
temporal if it is the penalty to be imposed on the basis of the quantity Dangerous Drugs Act, as amended by Section 17 of R.A. No. 7659, we
of the drugs involved by two degrees, or to prision correccional, if can be at liberty to apply the Revised Penal Code in one aspect and not
there are two or more mitigating circumstances and no aggravating to apply it in another.
circumstance is present (paragraph 5, Article 64, Revised Penal Code)
Feliciano and Quiason, JJ., concur.
or if there is a privileged mitigating circumstances of, say, minority
(Article 68, Revised Penal Code), or under circumstances covered by
Article 69 of the Revised Penal Code. Yet, if the proper penalty to be
imposed is prision mayor, regardless of the fact that a reduction by two
degrees is proper, it should only be reduced by one degree because the
rule does not allow a reduction beyond prision correccional. Finally, if
the proper penalty to be imposed is prision correccional, no reduction at
all would be allowed.

I find the justification for the rule to be arbitrary and unfair. It is arbitrary
because within the same second paragraph involving the same range of
penalty, we both allow and disallow the application of Article 64(5),
Article 68, and Article 69 of the Revised Penal Code. The reason for the
disallowance, viz., in order not to depreciate the seriousness of drug
offenses, is unconvincing because Section 20 of the Dangerous Drugs
Act, as amended by R.A.
No. 7659, has in fact "depreciated" the seriousness of drug offenses by
providing quantity as basis for the determination of the proper penalty
and limiting fine only to cases punishable by reclusion perpetua to
death. It is unfair because an accused who is found guilty of possessing
MORE dangerous
drugs say 500 to 749 grams of marijuana, in which case the penalty
to be imposed would be reclusion temporal may only be sentenced to
six (6) months and one (1) day of prision correccional minimum because
of privileged mitigating circumstances. Yet, an accused who is found
guilty of possession of only one (1) gram of marijuana in which case
the penalty to be imposed is prision correccional would not be entitled
to a reduction thereof even if he has the same number of privileged
mitigating circumstances as the former has.

Also, if the privileged mitigating circumstance happens to be the minority

of the accused, then he is entitled to the reduction of the penalty as a
matter of right pursuant to Article 68 of the Revised Penal Code, which
reads:

Art. 68. Penalty to be imposed upon a person under eighteen years of

age. When the offender is a minor under eighteen years and his case
is one coming under the provisions of the paragraph next to the last of
Article 80 of this Code, the following rules shall be observed:

1. Upon a person under fifteen but over nine years of age, who is not
exempted from liability by reason of the court having declared that he
acted with discernment, a discretionary penalty shall be imposed, but
always lower by two degrees at least than that prescribed by law for the
crime which he committed.

2. Upon a person over fifteen and under eighteen years of age the
penalty next lover than that prescribed by law shall be imposed, but
always in the proper period.
G.R. No. L-35748 December 14, 1931
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants.
Teofilo Mendoza for appellants.
Attorney-General Jaranilla for appellee.
VILLA-REAL, J.:
Martin Atienza and Romana Silvestre appeal to this court from the
judgment of the Court of First Instance of Bulacan convicting them upon
the information of the crime of arson as follows: The former as principal
by direct participation, sentenced to fourteen years, eight months, and
one day of cadena temporal, in accordance with paragraph 2 of article
550, Penal Code; and the latter as accomplice, sentenced to six years
and one day of presidio mayor; and both are further sentenced to the
accessories of the law, and to pay each of the persons whose houses
were destroyed by the fire, jointly and severally, the amount set forth in
the information, with costs.
Counsel appointed by the court to defend the accused- appellants de
oficio, after delivering his argument, prayed for the affirmance of the
judgment with reference to the appellant Martin Atienza, and makes the
following assignments of error with reference to Romana Silvestre, to
wit:
1. The lower court erred in convincing Romana Silvestre as accomplice
of the crime charged in the information.
2. Finally, the court erred in not acquitting said defendant from the
information upon the ground of insufficient evidence, or at the least, of
reasonable doubt.
The following facts were proved at the hearing beyond a reasonable
doubt:
Romana Silvestre, wife of Domingo Joaquin by her second marriage,
cohabited with her codefendant Martin Atienza from the month of March,
1930, in the barrio of Masocol, municipality of Paombong, Province of
Bulacan. On May 16, 1930, the complaining husband, Domingo
Joaquin, filed with the justice of the peace for that municipality, a sworn
complaint for adultery, supported by affidavits of Gerardo Cabigao and
Castor de la Cruz (Exhibit B). On the same date, May 16, 1930, the said
accused were arrested on a warrant issued by said justice of the peace.
On the 20th of the month, they were released on bail, each giving a
personal bond of P6,000. Pending the preliminary investigation of the
case, the two defendants begged the municipal president of Paombong,
Francisco Suerte Felipe, to speak to the complaint, Domingo Joaquin,
urging him to withdraw the complaint, the two accused binding
themselves to discontinue cohabitation, and promising not to live again
in the barrio of Masocol; Martin Atienza voluntarily signed the promise
(Exhibit A). The municipal president transmitted the defendants' petition
to the complaining husband, lending it his support. Domingo Joaquin
acceded to it, and on May 20, 1930, filed a motion for the dismissal of
his complaint. In consideration of this petition, the justice of the peace of
Paombong dismissed the adultery case commenced against the
accused, and cancelled the bonds given by them, with the costs against
the complainant.
The accused then left the barrio of Masocol and went to live in that of
Santo Nio, in the same municipality of Paombong.
About November 20, 1930, the accused Romana Silvestre met her son
by her former marriage, Nicolas de la Cruz, in the barrio of Santo Nio,
and under pretext of asking him for some nipa leaves, followed him
home to the village of Masocol, and remained there. The accused,
Martin Atienza, who had continued to cohabit with said Romana
Silvestre, followed her and lived in the home of Nicolas de la Cruz. On
the night of November 25, 1930, while Nicolas de la Cruz and his wife,
Antonia de la Cruz, were gathered together with the appellants herein
after supper, Martin Atienza told said couple to take their furniture out of
the house because he was going to set fire to it. Upon being asked by
Nicolas and Antonia why he wanted to set fire to the house, he answered
that that was the only way he could be revenged upon the people of
Masocol who, he said, had instigated the charge of adultery against him
and his codefendant, Romana Silvestre. As Martin Atienza was at that
time armed with a pistol, no one dared say anything to him, not even
Romana Silvestre, who was about a meter away from her codefendant.
Alarmed at what Martin Atienza had said, the couple left the house at
once to communicate with the barrio lieutenant, Buenaventura Ania, as
to what they had just heard Martin Atienza say; but they had hardly gone
a hundred arms' length when they heard cries of "Fire! Fire!" Turning
back they saw their home in flames, and ran back to it; but seeing that
the fire had assumed considerable proportions, Antonia took refuge in
the schoolhouse with her 1 year old babe in her arms, while Nicolas went
to the home of his parents-in-law, took up the furniture he had deposited
there, and carried it to the schoolhouse. The fire destroyed about forty-
eight houses. Tomas Santiago coming from the barrio artesian well, and
Tomas Gonzalez, teacher at the barrio school of Masocol, and Felipe
Clemente, an old man 61 years of age, coming from their homes, to the
house on fire, saw Martin Atienza going away from the house where the
fire started, and Romana Silvestre leaving it.lawphil.net
As stated in the beginning, counsel appointed by this court to defend the
accused-appellant de oficio, prays for the affirmance of the judgment
appealed from with reference to defendant Martin Atienza. The facts
related heretofore, proved beyond a reasonable doubt at the hearing,
justify this petition of the de oficio counsel, and establish beyond a
reasonable doubt said defendant's guilt of arson as charged, as principal
by direct participation.
With respect to the accused-appellant Romana Silvestre, the only
evidence of record against her are: That, being married, she lived
adulterously with her codefendant Martin Atienza, a married man; that
both were denounced for adultery by Domingo Joaquin, Romana
Silvestre's second husband; that in view of the petition of the accused,
who promised to discontinue their life together, and to leave the barrio 2. Any person who shall set fire to any inhabited house or any building
of Masocol, and through the good offices of the municipal president of in which people are accustomed to meet together, without knowing
Paombong, the complaining husband asked for the dismissal of the whether or not such building or house was occupied at the time, or any
complaint; that in pursuance of their promise, both of the accused went freight train in motion, if the damage caused in such cases shall exceed
to lived in the barrio of Santo Nio, in the same municipality; that under six thousand two hundred and fifty pesetas.
pretext for some nipa leaves from her son by her former marriage,
While the defendant indeed knew that besides himself and his
Nicolas de la Cruz, who had gone to the barrio of Santo Nio, Romana
codefendant, Romana Silvestre, there was nobody in De la Cruz's house
Silvestre followed him to his house in the barrio of Masocol on November
at the moment of setting fire to it, he cannot be convicted merely arson
23, 1930, and remained there; that her codefendant, Martin Atienza
less serious than what the trial court sentenced him for, inasmuch as
followed her, and stayed with his coaccused in the same house; that on
that house was the means of destroying the others, and he did not know
the night of November 25, 1930, at about 8 o'clock, while all were
whether these were occupied at the time or not. If the greater
gathered together at home after supper, Martin Atienza expressed his
seriousness of setting fire to an inhabited house, when the incendiary
intention of burning the house as the only means of taking his revenge
does not know whether there are people in it at the time, depends upon
on the Masocol resident, who had instigated Domingo Joaquin to file the
the danger to which the inmates are exposed, not less serious is the
complaint for adultery against them, which compelled them to leave the
arson committed by setting fire to inhabited houses by means of another
barrio of Masocol; that Romana Silvestre listened to her codefendant's
inhabited house which the firebrand knew to be empty at the moment of
threat without raising a protest, and did not give the alarm when the latter
committing the act, if he did not know whether there were people or not
set fire to the house. Upon the strength of these facts, the court below
in the others, inasmuch as the same danger exists.
found her guilty of arson as accomplice.
With the evidence produced at the trial, the accused-appellant Martin
Article 14 of the Penal Code, considered in connection with article 13,
Atienza might have been convicted of the crime of arson in the most
defines an accomplice to be one who does not take a direct part in the
serious degree provided for in article 549 of the Penal Code, if the
commission of the act, who does not force or induce other to commit it,
information had alleged that at the time of setting fire to the house, the
nor cooperates in the commission of the act by another act without which
defendant knew that the other houses were occupied, taking into
it would not have been accomplished, yet cooperates in the execution
account that barrio residents are accustomed to retire at the tolling of
of the act by previous or simultaneous actions.
the bell for the souls in purgatory, i.e., at 8 o'clock at night.
Now then, which previous or simultaneous acts complicate Romana
For all the foregoing considerations, we are of the opinion and so hold,
Silvestre in the crime of arson committed by her codefendant Martin
that: (1) Mere passive presence at the scene of another's crime, mere
Atienza? Is it her silence when he told the spouses, Nicolas de la Cruz
silence and failure to give the alarm, without evidence of agreement or
and Antonia de la Cruz, to take away their furniture because he was
conspiracy, do not constitute the cooperation required by article 14 of
going to set fire to their house as the only means of revenging himself
the Penal Code for complicity in the commission of the crime witnessed
on the barrio residents, her passive presence when Martin Atienza set
passively, or with regard to which one has kept silent; and (2) he who
fire to the house, where there is no evidence of conspiracy or
desiring to burn the houses in a barrio, without knowing whether there
cooperation, and her failure to give the alarm when the house was
are people in them or not, sets fire to one known to be vacant at the
already on fire?
time, which results in destroying the rest, commits the crime of arson,
The complicity which is penalized requires a certain degree of defined and penalized in article 550, paragraph 2, Penal Code.
cooperation, whether moral, through advice, encouragement, or
By virtue wherefore, the judgment appealed from is modified as follows:
agreement, or material, through external acts. In the case of the
It is affirmed with reference to the accused-appellant Martin Atienza, and
accused-appellant Romana Silvestre, there is no evidence of moral or
reversed with reference to the accused-appellant Romana Silvestre,
material cooperation, and none of an agreement to commit the crime in
who is hereby acquitted with
question. Her mere presence and silence while they are simultaneous
one-half of the costs de oficio. So ordered.
acts, do not constitute cooperation, for it does not appear that they
encouraged or nerved Martin Atienza to commit the crime of arson; and Avancea, C.J., Johnson, Street, Malcolm, Villamor, Ostrand,
as for her failure to give the alarm, that being a subsequent act it does Romualdez, and Imperial, JJ., concur.
not make her liable as an accomplice.

The trial court found the accused-appellant Martin Atienza guilty of

arson, defined and penalized in article 550, paragraph 2, of the Penal
Code, which reads as follows:

ART. 550. The penalty of cadena temporal shall be imposed upon:

xxx xxx xxx

G.R. No. L-32126 July 6, 1978
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NEMESIO TALINGDAN, MAGELLAN TOBIAS, AUGUSTO BERRAS,
PEDRO BIDES and TERESA DOMOGMA, accused-appellants.
PER CURIAM:
Appeal from the conviction for the crime of murder and the sentence of
life imprisonment, with indemnity to the offended party, the heirs of the
deceased Bernardo Bagabag, in the amount of P12,000, rendered by
the Court of First Instance of Abra in its Criminal Case No. 686, of all the
accused the namely, Nemesio Talingdan, Magellan Tobias, Augusta
Berras, Pedro Bides and Teresa Domogma, the last being the supposed
wife of the deceased, who, because no certificate nor any other proof of
their marriage could be presented by the prosecution, could not be
charged with parricide.
Prior to the violent death of Bernardo Bagabag on the night of June 24,
1967, he and appellant Teresa Domogma and their children, arrived
together in their house at Sobosob, Salapadan, Abra, some 100 meters
distant from the municipal building of the place. For sometime, however,
their relationship had been strained and beset with troubles, for Teresa
had deserted their family home a couple of times and each time
Bernardo took time out to look for her. On two (2) different occasions,
appellant Nemesis Talingdan had visited Teresa in their house while
Bernardo was out at work, and during those visits Teresa had made
Corazon, their then 12-year old daughter living with them, go down the
house and leave them. Somehow, Bernardo had gotten wind that illicit
relationship was going on between Talingdan and Teresa, and during a
quarrel between him and Teresa, he directly charged the latter that
should she get pregnant, the child would not be his. About a month or
so before Bernardo was killed, Teresa had again left their house and did
not come back for a period of more than three (3) weeks, and Bernardo
came to know later that she and Talingdan were seen together in the
town of Tayum Abra during that time; then on Thursday night, just two
(2) days before he was gunned down, Bernardo and Teresa had a
violent quarrel; Bernardo slapped Teresa several times; the latter went
down the house and sought the help of the police, and shortly thereafter,
accused Talingdan came to the vicinity of Bernardo's house and called
him to come down; but Bernardo ignored him, for accused Talingdan
was a policeman at the time and was armed, so the latter left the place,
but not without warning Bernardo that someday he would kin him.
Between 10:00 and 11:00 o'clock the following Friday morning,
Bernardo's daughter, Corazon, who was then in a creek to wash clothes
saw her mother, Teresa, meeting with Talingdan and their co-appellants
Magellan Tobias, Augusto Berras and Pedro Bides in a small hut owned
by Bernardo, some 300 to 400 meters away from the latter's house; as
she approached them, she heard one of them say "Could he elude a
bullet"; and when accused Teresa Domogma noticed the presence of
her daughter, she shoved her away saying "You tell your father that we
will kill him".
Shortly after the sun had set on the following day, a Saturday, June 24,
1967, while the same 12-year old daughter of Bernardo was cooking
food for supper in the kitchen of their house, she saw her mother go
down the house through the stairs and go to the yard where she again
met with the other appellants. As they were barely 3-4 meters from the
place where the child was in the "batalan", she heard them conversing
in subdued tones, although she could not discern what they were saying.
She was able to recognize all of them through the light coming from the
lamp in the kitchen through the open "batalan" and she knows them well
for they are all residents of Sobosob and she used to see them almost
everytime. She noted that the appellants had long guns at the time. Their
meeting did not last long, after about two (2) minutes Teresa came up
the house and proceeded to her room, while the other appellants went
under an avocado tree nearby. As supper was then ready, the child
caged her parents to eat, Bernardo who was in the room adjoining the
kitchen did not heed his daughter's call to supper but continued working
on a plow, while Teresa also excused herself by saying she would first
put her small baby to sleep. So Corazon ate supper alone, and as soon
as she was through she again called her parents to eat. This time, she
informed her father about the presence of persons downstairs, but
Bernardo paid no heed to what she said. He proceeded to the kitchen
and sat himself on the floor near the door. Corazon stayed nearby
watching him. At that moment, he was suddenly fired upon from below
the stairs of the "batalan". The four accused then climbed the stairs of
the "batalan" carrying their long guns and seeing that Bernardo was still
alive, Talingdan and Tobias fired at him again. Bides and Berras did not
fire their guns at that precise time, but when Corazon tried to call for help
Bides warned her, saying "You call for help and I will kill you", so she
kept silent. The assailants then fled from the scene, going towards the
east.
The first to come to the aid of the family was Corazon's male teacher
who lived nearby. Teresa came out of her "silid" later; she pulled
Corazon aside and questioned her, and when Corazon informed her that
she recognized the killers of her father to be her co-appellants herein,
she warned her not to reveal the matter to anyone, threatening to kill her
if she ever did so. Still later on, other persons arrived and helped fix and
dress the lifeless body of the victim, Bernardo, autopsy on which was
performed in his own house by the Municipal Health Officer of the place
on June 26, 1967, about 36 hours after death; burial took place on the
same day. The victim's brother who came from Manila arrived one day
after the burial followed by their mother who came from La Paz, Abra
where she resides. Corazon, who had not earlier revealed the Identities
of the killers of her father because she was afraid of her own mother,
was somehow able to reveal the circumstances surrounding his killing
to these immediate relatives of hers, and the sworn statement she
thereafter executed on August 5, 1967 (Exh. B) finally led to the filing of
the information for murder against the herein five (5) appellants.
On the other hand, according to the evidence for the defense: Teresa
prior to her marriage with Bernardo, was a resident of the town of
Manabo, Abra. She has a sister in Manila and two (2) brothers in
America who love her dearly, that is why said brothers of hers had been
continuously and regularly sending her monthly $100.00 in checks,
starting from the time she was still single up to the time of her husband's
violent death on June 24, 1967, and thereafter. After their marriage, they
moved to and resided in her husband's place in Sallapadan, Abra,
bringing with them three (3) carabaos and two (2) horses, which
Bernardo and she used in tilling a parcel of land in said place, separate
and distinct from the parcel of land worked on by Bernardo's parents and
their other children. She and Bernardo lived in their own house which
was about 4-5 meters away from the house of her parents-in-law. She
loved Bernardo dearly, they never quarreled, and her husband never
maltreated her; although sometimes she had to talk to Bernardo when
he quarrels with his own mother who wanted that Bernardo's earnings
be given to her, (the mother) which Bernardo never did, and at those
times, Bernardo would admonish Teresa "You leave me alone". Her in-
laws also hated her because her mother-in-law could not get the
earnings of Bernardo for the support of her other son, Juanito, in his
schooling. On his part, Juanito also disliked her because she did not give
him any of the carpentry tools which her brothers in America were
sending over to her. She never left their conjugal home for any long
period of time as charged by her mother-in-law, and if she ever did leave
the house to go to other places they were only during those times when
she had to go to Bangued to cash her dollar checks with the PNB branch
there, and even on said trips, she was sometimes accompanied by
Bernardo, or if she had to go alone and leaves Sallapadan in the
morning, she rode in a weapons carrier along with merchants going to
Bangued in the morning and always rode back with them to Sallapadan
in the afternoon of the same day because the weapons carrier is owned
by a resident of Sallapadan who waits for them. Teresa came to know
Talingdan only when the latter became a policeman in Sallapadan, as
whenever any of the carabaos and horses they brought from Manabo to
Sallapadan got lost, she and Bernardo would go and report the matter
to the Mayor who would then refer the matter to his policemen, one of
whom is Talingdan, so that they may help locate the lost animals; Teresa
knew Talingdan well because they are neighbors, the latter's home
being only about 250-300 meters away from theirs. But illicit relationship
had never existed between them.
Early in the evening of June 24, 1967, Teresa was in the kitchen of their
house cooking their food for supper. Two of the children, Corazon and
Judit, were with her. Her husband, Bernardo, was then in the adjoining
room making a plow. He had to make the plow at that time of the night
because at daytime he worked as a carpenter in the convent. As soon
as the food was ready, she and the children moved over to the adjoining
room where Bernardo was to call him for supper, and he then proceeded
to the kitchen to eat. Teresa and the two children were about to follow
him to the kitchen when suddenly they heard more than five (5) or six
(6) successive gun shots coming from near their "batalan". They were
all so terrified that they immediately cried for help, albeit she did not
know yet at that precise time that her husband was shot, as she and the
children were still in the other room on their way to the kitchen, about
three (3) meters away from Bernardo. But soon Teresa heard her
husband crying in pain, and as soon as she reached him, she took
Bernardo into her arms. She did not see the killers of her husband, as
the night was then very dark and it was raining. Bernardo was in her
arms when the first group of people who responded to their cry for help
arrived. Among them were the chief of police, some members of the
municipal council and appellant Tobias who even advised Teresa not to
carry the lifeless body of Bernardo to avoid abortion as she was then six
(6) months pregnant. The chief of police then conducted an investigation
of the surroundings and he found some empty shells and foot prints on
the ground some meters away from the "batalan". He also found some
bullet holes on the southern walls of said "batalan" and on the nothern
wallings of the kitchen. Later, Teresa requested some persons to relay
the information about the death of her husband to her relatives in
Manabo, Abra, and they in turn passed on the news to Bernardo's
mother and her family in La Paz, Abra, where they were then residing,
as they have left their house in Sallapadan about two (2) months
previous after they lost the land they used to till there in a case with the
natives called Tingians. Two (2) PC soldiers arrived in the afternoon of
June 26, 1967, and after Bernardo's remains was autopsied and he was
buried under their house, they conducted an investigation, but she did
not give them any information relative to the Identity of the persons who
shot her husband because she did not really see them. Her mother-in-
law and a brother-in-law, Juanita Bagabag, arrived later, the former from
the town of La Paz, Abra, and the latter from Manila, and after the usual
nine (9) days mourning was over, they left Sallapadan, taking Teresa's
children under their custody. Teresa suspects that since her mother-in-
law and her brother-in-law have axes to grind against her and they have
her daughter, Corazon, under their custody, they had forced the said
child to testify against her. She further declared that her late husband,
Bernardo, had enemies during his lifetime, as he had quarrels with some
people over the land they work on.
Furthermore, the defense presented evidence to the effect that:
Talingdan was not in Sallapadan at the time of the killing of Bernardo on
June 24, 1967; being a policeman of the place at the time, he was one
of the two (2) policemen who escorted and acted as bodyguard of the
Mayor, when the latter attended the cursillo in Bangued, all of them
leaving Sallapadan on June 22 and returning thereto four (4) days later
on June 26, hence, he could not have anything to do with the said killing.
On the other hand, Tobias claimed to be in the house of one Mrs.
Bayongan in Sallapadan on the date of said killing, but he was one of
the persons who was called upon by the chief of police of the place to
accompany him in answer to the call for help of the wife of the victim.
The other two appellants Bides and Berras also alleged that they were
in the same house of Mrs. Bayongan on that date; they are tillers of the
land of said Mrs. Bayongan and had been staying in her house for a long
time. They were sleeping when the chief of police came that evening
and asked Tobias, who was then municipal secretary, to accompany him
to the place of the shooting. They did not join them, but continued
sleeping. They never left the said house of Mrs. Bayongan, which is
about 250-300 meters away from the place of the killing, that evening of
June 24, 1967.
After carefully weighing the foregoing conflicting evidence of the
prosecution and defense, We have no doubt in Our mind that in that fatal
evening of June 24, 1967, appellants Nemesio Talingdan, Magellan
Tobias, Augusto Berras and Pedro Bides, all armed with long firearms
and acting inconspiracy with each other gunned down Bernardo as the
latter was sitting by the supper table in their house at Sobosob,
Sallapadan, Abra. They were actually seen committing the offense by
the witness Corazon. She was the one who prepared the food and was
watching her father nearby. They were all known to her, for they were
all residents of Sobosob and she used to see them often before that
night. Although only Talingdan and Tobias continued firing at her father
after they had climbed the stairs of the "batalan", it was Bides who
threatened her that he would kill her if she called for help. Berras did not
fire any shot then. But even before the four appellants went up the
"batalan", they already fired shots from downstairs.
We also fully believe Corazon's testimony that two nights before, or on
Thursday, June 22, 1967, the deceased Bernardo and appellant Teresa
had a violent quarrel during which he slapped her several times. She
went to seek the help of the police, and it was appellant Talingdan, a
policeman of their town, who went to the vicinity of their house and
challenged her father to come down, but the latter refused because the
former was a policeman and was armed. And so, Talingdan left after
shouting to her father that "If I will find you someday, I will kill you."
We likewise accept as truthful, Corazon's declaration regarding the
amorous relationship between her mother and appellant Talingdan, as
already related earlier above. So also her testimony that in the morning
following the quarrel between her father and her mother and the threat
made by Talingdan to the former, between 10:00 and 11:00 o'clock, she
saw all the herein four male accused-appellants meeting with her mother
in a small hut some 300 or 400 meters away from their house, near
where she was then washing clothes, and that on said occasion she
overheard one of them ask "Could (sic) he elude a bullet?", We have our
doubts, however, as to whether or not her mother did say to her in
shoving her away upon seeing her approach, "You tell your father we
will kill him." If it were true that there was really such a message, it is to
be wondered why she never relayed the same to her father, specially
when she again saw the said appellants on the very night in question
shortly before the shooting talking together in subdued tones with her
mother and holding long arms. Moreover, it is quite unnatural that such
a warning could have been done in such a manner.
Accordingly, it is Our conclusion from the evidence related above and
which We have carefully reviewed that appellants Nemesio Talingdan,
Magellan Tobias, Augusto Berras and Pedro Bides are guilty of murder
qualified by treachery, as charged, and that they committed the said
offense in conspiracy with each other, with evident premeditation and in
the dwelling of the offended party. In other words, two aggravating
circumstances attended the commission of the offense, namely, evident
premeditation and that it was committed in the dwelling of the victim. No
mitigating circumstance has been proven.
Appellants insist in their brief that the lone testimony of Corazon suffered
from vital contradictions and inconsistencies and badges of falsehood
because of patently unnatural circumstances alleged by her. We do not
agree. As the Solicitor General has well pointed out, the fact that the
witness varied on cross-examination the exact time of some of the
occurrences she witnessed, such as, (1) whether it was before or after
Bernardo had began eating when he was shot; (2) whether it was before
or after seeing her mother's meeting with her co-accused in the morning
of Friday, June 23, 1967, that she went to wash clothes; and (3) whether
or not the accused were already upstairs or still downstairs when they
first fired their guns, cannot alter the veracity of her having seen
appellants in the act of mercilessly and cold-bloodedly shooting her
father to death.
Contrary to the contention of appellants, there was nothing inherently
unnatural in the circumstances related by her. We agree with the
following rebuttal of the Solicitor General:
Appellants also attempt to buttress their attack against the credibility of
Corazon Bagabag by pointing out five supposed unnatural declarations
in her testimony; First, she said that her father, appeared unconcerned
when she informed him of the presence of people downstairs. But as
correctly observed by the prosecuting fiscal the witness does not know
then "the mentality of her father" (p. 62, t.s.n., hearing of March 29,
1968). Second, Corazon also declared that the accused conversed that
Saturday night preceding the day the crime charged was committed in a
lighted place although there was a place which was unlighted in the
same premises. But this only proves that the accused were too
engrossed in their conversation, unmindful of whether the place where
they were talking was lighted or not, and unmindful even of the risk of
recognition. Third, witness declared that Pedro Bides and Augusto
Berras did not fire their guns. Even if these accused did withhold their
fire, however, since they were privies to the same criminal design, would
this alter their culpability? Should the witness Corazon Bagabag be
discredited for merely stating an observation on her part which is not
inherently unnatural? Fourth, Corazon also declared that only three
bullets from the guns of the four male accused found their mark on the
body of her father. But would this not merely prove that not all the
accused were good shots? And fifth, the witness declared that her father
was still able to talk after he was shot yet Dr. Jose Dalisan declared that
his death was instantaneous It is respectfully submitted, however, that
the doctor's opinion could yield to the positive testimony of Corazon
Bagabag in this regard without in the least affecting the findings of said
doctor as regards the cause of the death of the deceased. As thus
viewed, there are no evident badges of falsehood in the whole breadth
and length of Corazon Bagabag's testimony. (Pp. 9-10, People's Brief.)
Why and how Corazon could have concocted her version of the killing
of her father, if it were not basically true, is hardly conceivable,
considering she was hardly thirteen (13) years old when she testified,
an age when according to Moore, a child , is, as a rule, but little
influenced by the suggestion of others" because "he has already got
some principles, lying is distasteful to him, because he thinks it is mean,
he is no stranger to the sentiment of self- respect, and he never loses
an opportunity of being right in what he affirms." (II Moore on Facts, pp.
1055-1056.) No cogent explanation has been offered why she would
attribute the assault on her father to three other men, aside from
Talingdan whom she knew had relations with her mother, were she
merely making-up her account of how he was shot, no motive for her to
do so having been shown.
Demolishing the theory of the accused that such testimony was taught
to her by her uncle, His Honor pointed out that said "testimony, both
direct and cross, would show that she was constant, firm and steady in
her answers to questions directed to her." We have Ourselves read said
testimony and We are convinced of the sincerity and truthfulness of the
witness. We cannot, therefore, share appellants' apprehension in their
Seventh Assignment of Error that the grave imputation of a mother's
infidelity and her suggested participation in the killing of her husband,
would if consistently impressed in the mind of their child, constitute a
vicious poison enough to make the child, right or wrong, a willing
instrument in any scheme to get even with her wicked mother. We feel
Corazon was too young to he affected by the infidelity of her mother in
the manner the defense suggests. We are convinced from a reading of
her whole testimony that it could not have been a fabrication. On the
whole, it is too consistent for a child of thirteen years to be able to
substantially maintain throughout her stay on the witness stand without
any fatal flaw, in the face of severe and long cross-interrogations, if she
had not actually witnessed the event she had described. We reject the
possibility of her having been "brainwashed or coached" to testify as she
did.
The second to the sixth assignments of error in the appeal brief do not
merit serious consideration. Anent these alleged errors, suffice it to say
that the following refutations of the Solicitor General are well taken:
Appellants also decry that the trial court allegedly failed to consider the
testimony of Dr. Dalisan that the distance between the assailants and
the deceased could have been 4 to 5 meters when the shots were fired.
But the appellants overlook the testimony of Corazon Bagabag that
when the first shot was fired, the gunman was about 3- meters from
her father (p. 60, t.s.n., hearing of March 29, 1968), which disproves the
theory of the defense that the killers fired from a stonepile under
an avocado tree some 4 to 5 meters away from the deceased's house.
Appellants also insist that the Court a quo ignored the testimonies of
defense witness Cpl. Bonifacio Hall and Chief of Police Rafael Berras
on their having found bullet marks on the southern walling of the house
of the deceased, as well as empty cal. 30 carbine shells under the
aforementioned avocado tree. The trial court, however, made the
following apt observations on the testimony of defense witness Cpl.
Bonifacio Hall:
This witness stated that we went to the house of the deceased to
investigate the crime after the deceased had already been buried; that
he investigated the widow as well as the surroundings of the house
where the deceased was shot. He found empty shells of carbine under
the avocado tree. He stated that the 'batalan' of the house of the
deceased has a siding of about 1- meters high and that he saw bullet
holes on the top portion of the wall directly pointing to the open door of
the 'batalan' of the house of the deceased. When the court asked the
witness what could have been the position of the assailant in shooting
the deceased, he stated that the assailant might have been standing.
The assailant could not have made a bullet hole on the top portion of the
sidings of the 'batalan' because the 'batalan' is only 1- meters high,
and further, when asked as to the level of the ground in relation to the
top sidings of the 'batalan,' he answered that it is in the same level with
the ground. If this is true, it is impossible for the assailant to make a
bullet hole at the top portion sidings of the 'batalan,' hence, the testimony
of this witness who is a PC corporal is of no consequence and without
merit. The court is puzzled to find a PC corporal testifying for the defense
in this case, which case was filed by another PC sergeant belonging to
the same unit and assigned in the same province of Abra (pp. 324- 325,
rec.).
As regards the empty shells also found in the vicinity of the shooting,
suffice it to state that no testimony has been presented, expert or
otherwise, linking said shells to the bullets that were fired during the
shooting incident. Surmises in this respect surely would not overcome
the positive testimony of Corazon Bagabag that the accused shot her
father as they came up the 'batalan' of their house. (Pp. 11-12, People's
Brief.)
At the trial, the four male appellants tried to prove that they were not at
the scene of the crime when it happened. This defense of alibi was duly
considered by the trial court, but it was properly brushed aside as
untenable. In their brief, no mention thereof is made, which goes to show
that in the mind of the defense itself,. it cannot be successfully
maintained and they do not, therefore, insist on it. Nonetheless, it would
do well for this Court to specifically affirm the apt pertinent ratiocination
of His Honor in reference thereto thus:
This defense, therefore, is alibi which, in the opinion of the court, can not
stand firmly in the face of a positive and unwavering testimony of the
prosecution witness who pointed out to the accused as the authors of
the crime. This is so because, first, according to the three accused
Bides, Tobias and Berras they were sleeping at 8:00 o'clock that night
in the house of Mrs. Bayongan which is only 250 meters away from the
scene of the crime. Granting, for the sake of argument, but without
admitting, that they were already sleeping at 8:00 o'clock in the house
of Mrs. Bayongan, Corazon Bagabag clearly stated that her father was
gunned down at sunset which is approximately between 6:00 and 6:30
in the evening, hence, the accused Tobias, Berras and Bides could have
committed the crime and went home to sleep in the house of Mrs.
Bayongan after the commission of the crime. According to Pedro Bides,
the house of Mrs. Bayongan is only 250 meters away from the house of
the victim. Second, the three accused have failed miserably to present
the testimony of Mrs. Bayongan, the owner of the house where they
slept that night to corroborate or bolster their defense of alibi. (Pp. 27A-
28A, Annex of Appellants' Brief.)
xxx xxx xxx
Nemesio Talingdan, alias Oming, the last of the accused, also in his
defense of alibi, stated that on June 22, 1967, he accompanied Mayor
Gregorio Banawa of Sallapadan to Bangued, together with policeman
Cresencio Martinez for the purpose of attending a cursillo in Bangued
They started in Sallapadan in the early morning of June 22, 1967 and
arrived in Bangued the same day. According to him, he went to
accompany the mayor to the cursillo house near the Bangued Cathedral
and after conducting the mayor to the cursillo house, he went to board
in the house of the cousin of Mayor Banawa near the Filoil Station at
Bangued, Abra. From that time, he never saw the mayor until after they
went home to Sallapadan on June 26th.
This kind of alibi could not gain much weight because he could have
returned anytime on the evening of June 22 or anytime before the
commission of the offense to Sallapadan and commit the crime on the
24th at sunset, then returned to Bangued, Abra to fetch the mayor and
bring him back to Sallapadan on the 26th.
The irony of this defense of alibi is that the mayor who was alleged to
have been accompanied by witness-accused is still living and very much
alive. As a matter of fact, Mayor Gregorio Banawa is still the mayor of
Sallapadan, Abra, and also policeman Cresencio Martinez, another
policeman who accompanied the mayor to Bangued, is also still living
and still a policeman of Sallapadan. Why were not the mayor and the
policeman presented to corroborate or deny the testimony of Nemesio
Talingdan?
Conrado B. Venus, Municipal Judge of Penarrubia Abra, and a member
of the Cursillo Movement, was presented as rebuttal witness for the
prosecution. On the witness stand, he stated that he belongs to Cursillo
No. 3 of the Parish of Bangued, Abra, and said cursillo was held on
October 20 to 23, 1966, at the St. Joseph Seminary in Galicia, Pidigan
Abra, and not on June 23 to 26, 1967. As a matter of fact, Mayor Banawa
of Sallapadan also attended the cursillo held on October 20 to 23, 1966,
as could be seen in his 'Guide Book' where the signature of Gregorio
Banawa appears because they both attended Cursillo No. 3 of the
Parish of Bangued.
(To) this testimony of the rebuttal witness belies partly, if not in full, the
testimony of accused Nemesio Talingdan. (Pp. 29A-30A, Annex of
Appellants' Brief.)
Coming now to the particular case of appellant Teresa Domogma, as to
whom the Solicitor General has submitted a recommendation of
acquittal, We find that she is not as wholly innocent in law as she
appears to the Counsel of the People. It is contended that there is no
evidence proving that she actually joined in the conspiracy to kill her
husband because there is no showing of 'actual cooperation" on her part
with her co-appellants in their culpable acts that led to his death. If at all,
what is apparent, it is claimed, is "mere cognizance, acquiescence or
approval" thereof on her part, which it is argued is less than what is
required for her conviction as a conspirator per People vs. Mahlon, 99
Phil. 1068. We do not see it exactly that way.
True it is that the proof of her direct participation in the conspiracy is not
beyond reasonable doubt, for which reason, sue cannot have the same
liability as her co-appellants. Indeed, she had no hand at all in the actual
shooting of her husband. Neither is it clear that she helped directly in the
planning and preparation thereof, albeit We are convinced that she knew
it was going to be done and did not object. (U.S. vs. Romulo, 15 Phil.
408, 411-414.) It is not definitely shown that she masterminded it either
by herself alone or together with her co-appellant Talingdan. At best,
such conclusion could be plain surmise, suspicion and conjecture, not
really includible. After all, she had been having her own unworthy ways
with him for quite a long time, seemingly without any need of his
complete elimination. Why go to so much trouble for something she was
already enjoying, and not even very surreptitiously? In fact, the only
remark Bernardo had occasion to make to Teresa one time was "If you
become pregnant, the one in your womb is not my child." The worst he
did to her for all her faults was just to slap her.
But this is not saying that she is entirely free from criminal liability. There
is in the record morally convincing proof that she is at the very least an
accessory to the offense committed by her co-accused. She was inside
the room when her husband was shot. As she came out after the
shooting, she inquired from Corazon if she was able to recognize the
assailants of her father. When Corazon Identified appellants Talingdan,
Tobias, Berras and Bides as the culprits, Teresa did not only enjoin her
daughter not to reveal what she knew to anyone, she went to the extent
of warning her, "Don't tell it to anyone. I will kill you if you tell this to
somebody." Later, when the peace officers who repaired to their house
to investigate what happened, instead of helping them with the
information given to her by Corazon, she claimed she had no suspects
in mind. In other words, whereas, before the actual shooting of her
husband, she was more or less passive in her attitude regarding her co-
appellants' conspiracy, known to her, to do away with him, after
Bernardo was killed, she became active in her cooperation with them.
These subsequent acts of her constitute "concealing or assisting in the
escape of the principal in the crime" which makes her liable as an
accessory after the fact under paragraph 3 of Article 19 of the Revised
Penal Code.
As already indicated earlier, the offense committed by appellants was
murder qualified by treachery. It being obvious that appellants
deliberately chose nighttime to suddenly and without warning assault
their victim, taking advantage of their number and arms, it is manifest
that they employed treachery to insure success in attaining their
malevolent objective. In addition, it is indisputable that appellants acted
with evident premeditation. Talingdan made the threat to kill Bernardo
Thursday night, then he met with his co-accused to work out their
conspiracy Friday and again on Saturday evening just before the actual
shooting. In other words, they had motive Talingdan's taking up the
cudgels for his paramour, Teresa and enough time to meditate, and
desist, if they were not resolved to proceed with their objective. Finally,
they committed the offense in the dwelling of the offended party.
In these premises, the crime committed by the male appellants being
murder, qualified by treachery, and attended by the generic aggravating
circumstances of evident premeditation and that the offense was
committed in the dwelling of the offended party, the Court has no
alternative under the law but to impose upon them the capital penalty.
However, as to appellant Teresa, she is hereby found guilty only as an
accessory to the same murder.
WHEREFORE, with the above finding of guilt beyond reasonable doubt
of the appellants Nemesio Talingdan, Magellan Tobias, Augusto Berras
and Pedro Bides of the crime of murder with two aggravating
circumstances, without any mitigating circumstance to offset them, they
are each hereby sentenced to DEATH to be executed in accordance
with law. Guilty beyond reasonable doubt as accessory to the same
murder, appellant Teresa Domogma is hereby sentenced to suffer the
indeterminate penalty of five (5) years of prision correccional as
minimum to eight (8) years of prision mayor as maximum, with the
accessory penalties of the law. In all other respects, the judgment of the
trial court is affirmed, with costs against appellants.
Barredo, Muoz Palma, Aquino, Concepcion, Jr., Santos, Fernandez
and Guerrero, JJ., concur.
Antonio, Fernando, JJ., took no part.
Separate Opinions
MAKASIAR, J., dissenting:
I dissent insofar as the liability of the accused Teresa Domogma who
should be convicted, not merely as an accessory, but of parricide as
principal and meted the death penalty, is concerned. A marriage
certificate is not indispensable to establish the fact of marriage; because
the presumption that the deceased and the accused Teresa were
married subsists by reason of the fact that they had been living together
for about thirteen (13) years as evidenced by the birth of the child-
witness Corazon, who was 12 years old at the time her father was killed
on June 24, 1967 by the accused-appellants, and who was 13 years of
age when she testified. They have other children aside from Corazon.
That appellant Teresa is a co-conspirator, not merely an accessory after
the fact has been clearly demonstrated by the testimony of her own
daughter, Corazon, who declared categorically that she plotted with her
co-appellants the assassination of her own husband whom she betrayed
time and time again by her repeated illicit relations with her co-accused
Nemesio Talingdan, a town policeman and their neighbor. The record is
abundant with evidence that Teresa, without a feeling for shame and
unnaturally lacking any concern for her minor children of tender age,
deserted several times their family home to live with and continue with
her immoral relations with appellant Talingdan with whom at one time
she cohabited for more than three (3) weeks. Her patient husband had
to look for her and to beg her to return each time she left the family
abode for the embrace of her lover.
We should believe Corazon's statement that between 10 and 11 o'clock
Friday morning, she saw her mother, appellant Teresa, meeting with her
other co-appellants in a small hut owned by her father some 300 to 400
meters away from the latter's house near the creek where she was then
washing clothes; that she heard one of the conspirators say "Could he
elude a bullet?"; that when her mother noticed her presence, her mother
shoved her away saying, "You tell your father that we will kill him"; that
in the evening of the following day, Saturday, June 24, 1967, while she
was cooking supper in their house, she saw her mother go down the
stairs and meet the other appellants in the yard about 3 to 4 meters from
where she was in the "batalan"; that she heard them conversing in
subdued tones; that she was able to recognize all of them by the light
coming from the kitchen lamp through the open "batalan"; that she
knows all of them very well as they are all residents of their barrio and
she used to see them almost everyday; that she noted that appellants
were armed with long guns; that their meeting did not last long; that after
about 2 minutes her mother, appellant Teresa, came up the house and
proceed to her room while the other appellants hid under an avocado
tree nearby; that when supper was ready she called her parents to eat;
that her father did not heed her call but continued working on a plow
while her mother excused herself by saying she would first put her small
baby to sleep; that she (Corazon) ate alone after which she again called
her parents to eat; that about this time she informed her father about the
presence of persons downstairs but her father paid no heed to what she
said; that her father proceeded to the kitchen and sat on the floor near
the door while Corazon stayed nearby watching him; that at the that
moment her father was shot from below the stairs of the "batalan"; that
the four accused then went up the stairs of the "batalan" with their long
guns and, upon seeing that her father was still alive, appellants
Talingdan and Tobias fired at him again; that when she (Corazon) tried
to call for help, appellant Bides warned her saying "You call for help and
I will kill you"; and that thereafter, the assailants fled towards the east.
The foregoing testimony of 13-year old Corazon should be accorded
belief in the same way that credence was given to her statement that,
upon her mother's inquiry immediately after the shooting as to whether
she recognized the assailants of her father, she (Corazon) readily told
her mother that she Identified appellants Talingdan, Tobias, Berras and
Bides as the culprits; for which reason her mother warned her "Don't tell
it to anyone. I will kill you if you tell this to somebody."
On Thursday or two days before Bernardo was shot, he and Teresa had
a quarrel during which Bernardo slapped Teresa several times by
reason of which Teresa left the house and sought the help of the police.
Shortly thereafter appellant Talingdan came and called Bernardo to
come down. When Bernardo ignored him because Talingdan was a
policeman and was then armed, appellant Talingdan left after warning
Bernardo that someday he would kill him.
Can there be a clearer demonstration of the active cooperation of Teresa
in the conspiracy against the life of her husband? The majority opinion
admits that Teresa was a paramour of appellant Talingdan; hence, she
wanted freedom from her husband, the victim, so that she could enjoy
the company of her lover, appellant Talingdan.
From the evidence on record, appellant Teresa had no moral
compunction in deserting her family and her children for the company of
her lover. As heretofore stated, she did this several times and continued
to do so until the violent death of her husband even as she was carrying
a six-month old baby in her womb, the paternity of which her husband
denied.
CASTRO, CJ., concurring:
Concurs, with the observations, however, that the evidence points to the
appellant Teresa Domogma as a co-principal and that she should
therefore also be held guilty of murder and sentenced to death.
TEEHANKEE, J., concurring:
Concurs, but join in the partial dissent of Mr. Justice Makasiar insofar as
the penal liability of the accused Teresa Domogma is concerned.
Separate Opinions
MAKASIAR, J., dissenting:
I dissent insofar as the liability of the accused Teresa Domogma who
should be convicted, not merely as an accessory, but of parricide as
principal and meted the death penalty, is concerned. A marriage
certificate is not indispensable to establish the fact of marriage; because
the presumption that the deceased and the accused Teresa were
married subsists by reason of the fact that they had been living together
for about thirteen (13) years as evidenced by the birth of the child-
witness Corazon, who was 12 years old at the time her father was killed
on June 24, 1967 by the accused-appellants, and who was 13 years of
age when she testified. They have other children aside from Corazon.
That appellant Teresa is a co-conspirator, not merely an accessory after
the fact has been clearly demonstrated by the testimony of her own
daughter, Corazon, who declared categorically that she plotted with her
co-appellants the assassination of her own husband whom she betrayed
time and time again by her repeated illicit relations with her co-accused
Nemesio Talingdan, a town policeman and their neighbor. The record is
abundant with evidence that Teresa, without a feeling for shame and
unnaturally lacking any concern for her minor children of tender age,
deserted several times their family home to live with and continue with
her immoral relations with appellant Talingdan with whom at one time
she cohabited for more than three (3) weeks. Her patient husband had
to look for her and to beg her to return each time she left the family
abode for the embrace of her lover.
We should believe Corazon's statement that between 10 and 11 o'clock
Friday morning, she saw her mother, appellant Teresa, meeting with her
other co-appellants in a small hut owned by her father some 300 to 400
meters away from the latter's house near the creek where she was then
washing clothes; that she heard one of the conspirators say "Could he
elude a bullet?"; that when her mother noticed her presence, her mother
shoved her away saying, "You tell your father that we will kill him"; that
in the evening of the following day, Saturday, June 24, 1967, while she
was cooking supper in their house, she saw her mother go down the
stairs and meet the other appellants in the yard about 3 to 4 meters from
where she was in the "batalan"; that she heard them conversing in
subdued tones; that she was able to recognize all of them by the light
coming from the kitchen lamp through the open "batalan"; that she
knows all of them very well as they are all residents of their barrio and
she used to see them almost everyday; that she noted that appellants
were armed with long guns; that their meeting did not last long; that after
about 2 minutes her mother, appellant Teresa, came up the house and
proceed to her room while the other appellants hid under an avocado
tree nearby; that when supper was ready she called her parents to eat;
that her father did not heed her call but continued working on a plow
while her mother excused herself by saying she would first put her small
baby to sleep; that she (Corazon) ate alone after which she again called
her parents to eat; that about this time she informed her father about the
presence of persons downstairs but her father paid no heed to what she
said; that her father proceeded to the kitchen and sat on the floor near
the door while Corazon stayed nearby watching him; that at the that
moment her father was shot from below the stairs of the "batalan"; that
the four accused then went up the stairs of the "batalan" with their long
guns and, upon seeing that her father was still alive, appellants
Talingdan and Tobias fired at him again; that when she (Corazon) tried
to call for help, appellant Bides warned her saying "You call for help and
I will kill you"; and that thereafter, the assailants fled towards the east.
The foregoing testimony of 13-year old Corazon should be accorded
belief in the same way that credence was given to her statement that,
upon her mother's inquiry immediately after the shooting as to whether
she recognized the assailants of her father, she (Corazon) readily told
her mother that she Identified appellants Talingdan, Tobias, Berras and
Bides as the culprits; for which reason her mother warned her "Don't tell
it to anyone. I will kill you if you tell this to somebody."
On Thursday or two days before Bernardo was shot, he and Teresa had
a quarrel during which Bernardo slapped Teresa several times by
reason of which Teresa left the house and sought the help of the police.
Shortly thereafter appellant Talingdan came and called Bernardo to
come down. When Bernardo ignored him because Talingdan was a
policeman and was then armed, appellant Talingdan left after warning
Bernardo that someday he would kill him.
Can there be a clearer demonstration of the active cooperation of Teresa
in the conspiracy against the life of her husband? The majority opinion
admits that Teresa was a paramour of appellant Talingdan; hence, she
wanted freedom from her husband, the victim, so that she could enjoy
the company of her lover, appellant Talingdan.

From the evidence on record, appellant Teresa had no moral

compunction in deserting her family and her children for the company of
her lover. As heretofore stated, she did this several times and continued
to do so until the violent death of her husband even as she was carrying
a six-month old baby in her womb, the paternity of which her husband
denied.

CASTRO, CJ., concurring:

Concurs, with the observations, however, that the evidence points to the
appellant Teresa Domogma as a co-principal and that she should
therefore also be held guilty of murder and sentenced to death.

TEEHANKEE, J., concurring:

Concurs, but join in the partial dissent of Mr. Justice Makasiar insofar as
the penal liability of the accused Teresa Domogma is concerned.
EDUARDO P. MANUEL, G.R. No. 165842
Petitioner,
Present:
PUNO, J., Chairman,
AUSTRIA-MARTINEZ, - versus - CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO,* JJ.
Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. November 29, 2005
x-----------------------------------------------------------------------------------------x
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari of the Decision[1] of the
Court of Appeals (CA) in CA-G.R. CR No. 26877, affirming the
Decision[2] of the Regional Trial Court (RTC) of Baguio City, Branch 3,
convicting Eduardo P. Manuel of bigamy in Criminal Case No. 19562-R.
Eduardo was charged with bigamy in an Information filed on November
7, 2001, the accusatory portion of which reads:
That on or about the 22nd day of April, 1996, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused EDUARDO P. MANUEL, being then previously
and legally married to RUBYLUS [GAA] and without the said marriage
having been legally dissolved, did then and there willfully, unlawfully and
feloniously contract a second marriage with TINA GANDALERA-
MANUEL, herein complainant, who does not know the existence of the
first marriage of said EDUARDO P. MANUEL to Rubylus [Gaa].
CONTRARY TO LAW. [3]
The prosecution adduced evidence that on July 28, 1975, Eduardo was
married to Rubylus Gaa before Msgr. Feliciano Santos in Makati, which
was then still a municipality of the Province of Rizal.[4] He met the
private complainant Tina B. Gandalera in Dagupan City sometime in
January 1996. She stayed in Bonuan, Dagupan City for two days looking
for a friend. Tina was then 21 years old, a Computer Secretarial student,
while Eduardo was 39. Afterwards, Eduardo went to Baguio City to visit
her. Eventually, as one thing led to another, they went to a motel where,
despite Tinas resistance, Eduardo succeeded in having his way with her.
Eduardo proposed marriage on several occasions, assuring her that he
was single. Eduardo even brought his parents to Baguio City to meet
Tinas parents, and was assured by them that their son was still single.
Tina finally agreed to marry Eduardo sometime in the first week of March
1996. They were married on April 22, 1996 before Judge Antonio C.
Reyes, the Presiding Judge of the RTC of Baguio City, Branch 61.[5] It
appeared in their marriage contract that Eduardo was single.
The couple was happy during the first three years of their married life.
Through their joint efforts, they were able to build their home in Cypress
Point, Irisan, Baguio City. However, starting 1999, Manuel started
making himself scarce and went to their house only twice or thrice a
year. Tina was jobless, and whenever she asked money from Eduardo,
he would slap her.[6] Sometime in January 2001, Eduardo took all his
clothes, left, and did not return. Worse, he stopped giving financial
support.
Sometime in August 2001, Tina became curious and made inquiries
from the National Statistics Office (NSO) in Manila where she learned
that Eduardo had been previously married. She secured an NSO-
certified copy of the marriage contract.[7] She was so embarrassed and
humiliated when she learned that Eduardo was in fact already married
when they exchanged their own vows.[8]
For his part, Eduardo testified that he met Tina sometime in 1995 in a
bar where she worked as a Guest Relations Officer (GRO). He fell in
love with her and married her. He informed Tina of his previous marriage
to Rubylus Gaa, but she nevertheless agreed to marry him. Their marital
relationship was in order until this one time when he noticed that she
had a love-bite on her neck. He then abandoned her. Eduardo further
testified that he declared he was single in his marriage contract with Tina
because he believed in good faith that his first marriage was invalid. He
did not know that he had to go to court to seek for the nullification of his
first marriage before marrying Tina.
Eduardo further claimed that he was only forced to marry his first wife
because she threatened to commit suicide unless he did so. Rubylus
was charged with estafa in 1975 and thereafter imprisoned. He visited
her in jail after three months and never saw her again. He insisted that
he married Tina believing that his first marriage was no longer valid
because he had not heard from Rubylus for more than 20 years.
After trial, the court rendered judgment on July 2, 2002 finding Eduardo
guilty beyond reasonable doubt of bigamy. He was sentenced to an
indeterminate penalty of from six (6) years and ten (10) months, as
minimum, to ten (10) years, as maximum, and directed to indemnify the
private complainant Tina Gandalera the amount of P200,000.00 by way
of moral damages, plus costs of suit.[9]
The trial court ruled that the prosecution was able to prove beyond
reasonable doubt all the elements of bigamy under Article 349 of the
Revised Penal Code. It declared that Eduardos belief, that his first
marriage had been dissolved because of his first wifes 20-year absence,
even if true, did not exculpate him from liability for bigamy. Citing the
ruling of this Court in People v. Bitdu,[10] the trial court further ruled that
even if the private complainant had known that Eduardo had been
previously married, the latter would still be criminally liable for bigamy.
Eduardo appealed the decision to the CA. He alleged that he was not
criminally liable for bigamy because when he married the private
complainant, he did so in good faith and without any malicious intent. He
maintained that at the time that he married the private complainant, he
was of the honest belief that his first marriage no longer subsisted. He
insisted that conformably to Article 3 of the Revised Penal Code, there
must be malice for one to be criminally liable for a felony. He was not
motivated by malice in marrying the private complainant because he did
so only out of his overwhelming desire to have a fruitful marriage. He
posited that the trial court should have taken into account Article 390 of
the New Civil Code. To support his view, the appellant cited the rulings
of this Court in United States v. Pealosa[11] and Manahan, Jr. v. Court
of Appeals.[12]
The Office of the Solicitor General (OSG) averred that Eduardos
defense of good faith and reliance on the Courts ruling in United States
v. Enriquez[13] were misplaced; what is applicable is Article 41 of the
Family Code, which amended Article 390 of the Civil Code. Citing the
ruling of this Court in Republic v. Nolasco,[14] the OSG further posited
that as provided in Article 41 of the Family Code, there is a need for a
judicial declaration of presumptive death of the absent spouse to enable
the present spouse to marry. Even assuming that the first marriage was
void, the parties thereto should not be permitted to judge for themselves
the nullity of the marriage;
the matter should be submitted to the proper court for resolution.
Moreover, the OSG maintained, the private complainants knowledge of
the first marriage would not afford any relief since bigamy is an offense
against the State and not just against the private complainant.
However, the OSG agreed with the appellant that the penalty imposed
by the trial court was erroneous and sought the affirmance of the
decision appealed from with modification.
On June 18, 2004, the CA rendered judgment affirming the decision of
the RTC with modification as to the penalty of the accused. It ruled that
the prosecution was able to prove all the elements of bigamy. Contrary
to the contention of the appellant, Article 41 of the Family Code should
apply. Before Manuel could lawfully marry the private complainant, there
should have been a judicial declaration of Gaas presumptive death as
the absent spouse. The appellate court cited the rulings of this Court
in Mercado v. Tan[15]and Domingo v. Court of Appeals[16] to support
its ruling. The dispositive portion of the decision reads:
WHEREFORE, in the light of the foregoing, the Decision promulgated
on July 31, 2002 is hereby MODIFIED to reflect, as it hereby reflects,
that accused-appellant is sentenced to an indeterminate penalty of two
(2) years, four (4) months and one (1) day of prision correccional, as
minimum, to ten (10) years of prision mayor as maximum. Said Decision
is AFFIRMED in all other respects.
SO ORDERED.[17]
Eduardo, now the petitioner, filed the instant petition for review on
certiorari, insisting that:
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF
LAW WHEN IT RULED THAT PETITIONERS FIRST WIFE CANNOT
BE LEGALLY PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL
CODE AS THERE WAS NO JUDICIAL DECLARATION OF
PRESUMPTIVE DEATH AS PROVIDED FOR UNDER ARTICLE 41 OF
THE FAMILY CODE.
II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF
LAW WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS
MORAL DAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW.[18]
The petitioner maintains that the prosecution failed to prove the second
element of the felony, i.e., that the marriage has not been legally
dissolved or, in case his/her spouse is absent, the absent spouse could
not yet be presumed dead under the Civil Code. He avers that when he
married Gandalera in 1996, Gaa had been absent for 21 years since
1975; under Article 390 of the Civil Code, she was presumed dead as a
matter of law. He points out that, under the first paragraph of Article 390
of the Civil Code, one who has been absent for seven years, whether or
not he/she is still alive, shall be presumed dead for all purposes except
for succession, while the second paragraph refers to the rule on legal
presumption of death with respect to succession.
The petitioner asserts that the presumptive death of the absent spouse
arises by operation of law upon the satisfaction of two requirements: the
specified period and the present spouses reasonable belief that the
absentee is dead. He insists that he was able to prove that he had not
heard from his first wife since 1975 and that he had no knowledge of her
whereabouts or whether she was still alive; hence, under Article 41 of
the Family Code, the presumptive death of Gaa had arisen by operation
of law, as the two requirements of Article 390 of the Civil Code are
present. The petitioner concludes that he should thus be acquitted of the
crime of bigamy.
The petitioner insists that except for the period of absences provided for
in Article 390 of the Civil Code, the rule therein on legal presumptions
remains valid and effective. Nowhere under Article 390 of the Civil Code
does it require that there must first be a judicial declaration of death
before the rule on presumptive death would apply. He further asserts
that contrary to the rulings of the trial and appellate courts, the
requirement of a judicial declaration of presumptive death under Article
41 of the Family Code is only a requirement for the validity of the
subsequent or second marriage.
The petitioner, likewise, avers that the trial court and the CA erred in
awarding moral damages in favor of the private complainant. The private
complainant was a GRO before he married her, and even knew that he
was already married. He genuinely loved and took care of her and gave
her financial support. He also pointed out that she had an illicit
relationship with a lover whom she brought to their house.
In its comment on the petition, the OSG maintains that the decision of
the CA affirming the petitioners conviction is in accord with the law,
jurisprudence and the evidence on record. To bolster its claim,
the OSG cited the ruling of this Court in Republic v. Nolasco.[19]
The petition is denied for lack of merit.
Article 349 of the Revised Penal Code, which defines and penalizes
bigamy, reads:
Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon
any person who shall contract a second or subsequent marriage before
the former marriage has been legally dissolved, or before the absent
spouse has been declared presumptively dead by means of a judgment
rendered in the proper proceedings.
The provision was taken from Article 486 of the Spanish Penal Code, to
wit:
El que contrajere Segundo o ulterior matrimonio sin hallarse
legtimamente disuelto el anterior, ser castigado con la pena de prision
mayor. xxx
The reason why bigamy is considered a felony is to preserve and ensure
the juridical tie of marriage established by law.[20] The phrase or before
the absent spouse had been declared presumptively dead by means of
a judgment rendered in the proper proceedings was incorporated in the
Revised Penal Code because the drafters of the law were of the
impression that in consonance with the civil law which provides for the
presumption of death after an absence of a number of years, the judicial
declaration of presumed death like annulment of marriage should be a
justification for bigamy.[21]
For the accused to be held guilty of bigamy, the prosecution is burdened
to prove the felony: (a) he/she has been legally married; and (b) he/she
contracts a subsequent marriage without the former marriage having
been lawfully dissolved. The felony is consummated on the celebration
of the second marriage or subsequent marriage.[22] It is essential in the
prosecution for bigamy that the alleged second marriage, having all the
essential requirements, would be valid were it not for the subsistence of
the first marriage.[23] Viada avers that a third element of the crime is
that the second marriage must be entered into with fraudulent
intent (intencion fraudulente) which is an essential element of a felony
by dolo.[24] On the other hand, Cuello Calon is of the view that there are
only two elements of bigamy: (1) the existence of a marriage that has
not been lawfully dissolved; and (2) the celebration of a second
marriage. It does not matter whether the first marriage is void or voidable
because such marriages have juridical effects until lawfully dissolved by
a court of competent jurisdiction.[25] As the Court ruled in Domingo v.
Court of Appeals[26] and Mercado v. Tan,[27] under the Family Code of
the Philippines, the judicial declaration of nullity of a previous marriage
is a defense.
In his commentary on the Revised Penal Code, Albert is of the same
view as Viada and declared that there are three (3) elements of bigamy:
(1) an undissolved marriage; (2) a new marriage; and (3) fraudulent
intention constituting the felony of the act.[28] He explained that:
This last element is not stated in Article 349, because it is undoubtedly
incorporated in the principle antedating all codes, and, constituting one
of the landmarks of our Penal Code, that, where there is no willfulness
there is no crime. There is no willfulness if the subject
believes that the former marriage has been dissolved; and this must be
supported by very strong evidence, and if this be produced, the act shall
be deemed not to constitute a crime. Thus, a person who contracts a
second marriage in the reasonable and well-founded belief that his first
wife is dead, because of the many years that have elapsed since he has
had any news of her whereabouts, in spite of his endeavors to find her,
cannot be deemed guilty of the crime of bigamy, because there is no
fraudulent intent which is one of the essential elements of the crime.[29]
As gleaned from the Information in the RTC, the petitioner is charged
with bigamy, a felony by dolo (deceit). Article 3, paragraph 2 of the
Revised Penal Code provides that there is deceit when the act is
performed with deliberate intent. Indeed, a felony cannot exist without
intent. Since a felony by dolo is classified as an intentional felony, it is
deemed voluntary.[30] Although the words with malice do not appear in
Article 3 of the Revised Penal Code, such phrase is included in the word
voluntary.[31]
Malice is a mental state or condition prompting the doing of an overt act
without legal excuse or justification from which another suffers
injury.[32] When the act or omission defined by law as a felony is proved
to have been done or committed by the accused, the law presumes it to
have been intentional.[33] Indeed, it is a legal presumption of law that
every man intends the natural or probable consequence of his voluntary
act in the absence of proof to the contrary, and such presumption must
prevail unless a reasonable doubt exists from a consideration of the
whole evidence.[34]
For one to be criminally liable for a felony by dolo, there must be a
confluence of both an evil act and an evil intent. Actus non facit reum,
nisi mens sit rea.[35]
In the present case, the prosecution proved that the petitioner was
married to Gaa in 1975, and such marriage was not judicially declared
a nullity; hence, the marriage is presumed to subsist.[36] The
prosecution also proved that the petitioner married the private
complainant in 1996, long after the effectivity of the Family Code.
The petitioner is presumed to have acted with malice or evil intent when
he married the private complainant. As a general rule, mistake of fact or
good faith of the accused is a valid defense in a prosecution for a felony
by dolo; such defense negates malice or criminal intent. However,
ignorance of the law is not an excuse because everyone is presumed to
know the law. Ignorantia legis neminem excusat.
It was the burden of the petitioner to prove his defense that when he
married the private complainant in 1996, he was of the well-grounded
belief
that his first wife was already dead, as he had not heard from her for
more than 20 years since 1975. He should have adduced in evidence a
decision of a competent court declaring the presumptive death of his first
wife as required by Article 349 of the Revised Penal Code, in relation to
Article 41 of the Family Code. Such judicial declaration also constitutes
proof that the petitioner acted in good faith, and would negate criminal
intent on his part when he married the private complainant and, as a
consequence, he could not be held guilty of bigamy in such case. The
petitioner, however, failed to discharge his burden.
The phrase or before the absent spouse has been declared
presumptively dead by means of a judgment rendered on the
proceedings in Article 349 of the Revised Penal Code was not an
aggroupment of empty or useless words. The requirement for a
judgment of the presumptive death of the absent spouse is for the
benefit of the spouse present, as protection from the pains and the
consequences of a second marriage, precisely because he/she could
be charged and convicted of bigamy if the defense of good faith based
on mere testimony is found incredible.
The requirement of judicial declaration is also for the benefit of the State.
Under Article II, Section 12 of the Constitution, the State shall protect
and strengthen the family as a basic autonomous social institution.
Marriage is a social institution of the highest importance. Public policy,
good morals and the interest of society require that the marital relation
should be surrounded with every safeguard and its severance only in
the manner prescribed and the causes specified by law.[37] The laws
regulating civil marriages are necessary to serve the interest, safety,
good order, comfort or general welfare of the community and the parties
can waive nothing essential to the validity of the proceedings. A civil
marriage anchors an ordered society by encouraging stable
relationships over transient ones; it enhances the welfare of the
community.
In a real sense, there are three parties to every civil marriage; two willing
spouses and an approving State. On marriage, the parties assume new
The absentee shall not be presumed dead for the purpose of opening
his succession till after an absence of ten years. If he disappeared after
the age of seventy-five years, an absence of five years shall be sufficient
in order that his succession may be opened.
Art. 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for four years
since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has

relations to each other and the State touching nearly on every aspect of been missing for four years;

life and death. The consequences of an invalid marriage to the parties,

(3) A person who has been in danger of death under other
to innocent parties and to society, are so serious that the law may well
circumstances and his existence has not been known for four years.
take means calculated to ensure the procurement of the most positive
evidence of death of the first spouse or of the presumptive death of the
absent spouse[38] after the lapse of the period provided for under the
The presumption of death of the spouse who had been absent for seven
law. One such means is the requirement of the declaration by a
years, it being unknown whether or not the absentee still lives, is created
competent court of the presumptive death of an absent spouse as proof
by law and arises without any necessity of judicial
that the present spouse contracts a subsequent marriage on a well-
declaration.[42] However, Article 41 of the Family Code, which amended
grounded belief of the death of the first spouse. Indeed, men readily
the foregoing rules on presumptive death, reads:
believe what they wish to be true, is a maxim of the old jurists. To sustain
a second marriage and to vacate a first because one of the parties
believed the other to be dead would make the existence of the marital
Art. 41. A marriage contracted by any person during the subsistence of
relation determinable, not by certain extrinsic facts, easily capable of
a previous marriage shall be null and void, unless before the celebration
forensic ascertainment and proof, but by the subjective condition of
of the subsequent marriage, the prior spouse had been absent for four
individuals.[39] Only with such proof can marriage be treated as so
consecutive years and the spouse present had a well-founded belief that
dissolved as to permit second marriages.[40] Thus, Article 349 of the
the absent spouse was already dead. In case of disappearance where
Revised Penal Code has made the dissolution of marriage dependent
there is danger of death under the circumstances set forth in the
not only upon the personal belief of parties, but upon certain objective
provisions of Article 391 of the Civil Code, an absence of only two years
facts easily capable of accurate judicial cognizance,[41] namely, a
shall be sufficient.
judgment of the presumptive death of the absent spouse.

For the purpose of contracting the subsequent marriage under the

The petitioners sole reliance on Article 390 of the Civil Code as basis for
preceding paragraph, the spouse present must institute a summary
his acquittal for bigamy is misplaced.
proceeding as provided in this Court for the declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance
of the absent spouse.[43]
Articles 390 and 391 of the Civil Code provide

With the effectivity of the Family Code,[44] the period of seven years
Art. 390. After an absence of seven years, it being unknown whether or
under the first paragraph of Article 390 of the Civil Code was reduced to
not, the absentee still lives, he shall be presumed dead for all purposes,
four consecutive years. Thus, before the spouse present may contract a
except for those of succession.
subsequent marriage, he or she must institute summary proceedings for
the declaration of the presumptive death of the absentee
spouse,[45] without prejudice to the effect of the reappearance of the
absentee spouse. As explained by this Court in Armas v. Calisterio:[46]
 superfluous and of no benefit to the petitioner. The Court stated that it
should not waste its valuable time and be made to perform a superfluous
In contrast, under the 1988 Family Code, in order that a subsequent
and meaningless act.[50] The Court also took note that a petition for a
bigamous marriage may exceptionally be considered valid, the following
declaration of the presumptive death of an absent spouse may even be
conditions must concur, viz.: (a) The prior spouse of the contracting
made in collusion with the other spouse.
party must have been absent for four consecutive years, or two years
where there is danger of death under the circumstances stated in Article
391 of the Civil Code at the time of disappearance; (b) the spouse
In Lukban v. Republic of the Philippines,[51] the Court declared that the
present has a well-founded belief that the absent spouse is already
words proper proceedings in Article 349 of the Revised Penal Code can
dead; and (c) there is, unlike the old rule, a judicial declaration of
only refer to those authorized by law such as Articles 390 and 391 of the
presumptive death of the absentee for which purpose the spouse
Civil Code which refer to the administration or settlement of the estate
present can institute a summary proceeding in court to ask for that
of a deceased person. In Gue v. Republic of the Philippines,[52] the
declaration. The last condition is consistent and in consonance with the
Court rejected the contention of the petitioner therein that, under Article
requirement of judicial intervention in subsequent marriages as so
390 of the Civil Code, the courts are authorized to declare the
provided in Article 41, in relation to Article 40, of the Family Code.
presumptive death of a person after an absence of seven years. The
Court reiterated its rulings in Szatraw, Lukban and Jones.

The Court rejects petitioners contention that the requirement of

instituting a petition for declaration of presumptive death under Article
Former Chief Justice Ramon C. Aquino was of the view that the
41 of the Family Code is designed merely to enable the spouse present
provision of Article 349 or before the absent spouse has been declared
to contract a valid second marriage and not for the acquittal of one
presumptively dead by means of a judgment reached in the proper
charged with bigamy. Such provision was designed to harmonize civil
proceedings is erroneous and should be considered as not written. He
law and Article 349 of the Revised Penal Code, and put to rest the
opined that such provision presupposes that, if the prior marriage has
confusion spawned by the rulings of this Court and comments of eminent
not been legally dissolved and the absent first spouse has not been
authorities on Criminal Law.
declared presumptively dead in a proper court proceedings, the
subsequent marriage is bigamous. He maintains that the supposition is
not true.[53] A second marriage is bigamous only when the
As early as March 6, 1937, this Court ruled in Jones v.
circumstances in paragraphs 1 and 2 of Article 83 of the Civil Code are
Hortiguela[47] that, for purposes of the marriage law, it is not necessary
not present.[54] Former Senator Ambrosio Padilla was, likewise, of the
to have the former spouse judicially declared an absentee before the
view that Article 349 seems to require judicial decree of dissolution or
spouse present may contract a subsequent marriage. It held that the
judicial declaration of absence but even with such decree, a second
declaration of absence made in accordance with the provisions of the
marriage in good faith will not constitute bigamy. He posits that a second
Civil Code has for its sole purpose the taking of the necessary
marriage, if not illegal, even if it be annullable, should not give rise to
precautions for the administration of the estate of the absentee. For the
bigamy.[55]Former Justice Luis B. Reyes, on the other hand, was of the
celebration of civil marriage, however, the law only requires that the
view that in the case of an absent spouse who could not yet be
former spouse had been absent for seven consecutive years at the time
presumed dead according to the Civil Code, the spouse present cannot
of the second marriage, that the spouse present does not know his or
be charged and convicted of bigamy in case he/she contracts a second
her former spouse to be living, that such former spouse is generally
marriage.[56]
reputed to be dead and the spouse present so believes at the time of
the celebration of the marriage.[48] In In Re Szatraw,[49] the Court
declared that a judicial declaration that a person is presumptively dead,
The Committee tasked to prepare the Family Code proposed the
because he or she had been unheard from in seven years, being a
amendments of Articles 390 and 391 of the Civil Code to conform to
presumption juris tantum only, subject to contrary proof, cannot reach
Article 349 of the Revised Penal Code, in that, in a case where a spouse
the stage of finality or become final; and that proof of actual death of the
is absent for the requisite period, the present spouse may contract a
person presumed dead being unheard from in seven years, would have
subsequent marriage only after securing a judgment declaring the
to be made in another proceeding to have such particular fact finally
presumptive death of the absent spouse to avoid being charged and
determined. The Court ruled that if a judicial decree declaring a person
convicted of bigamy; the present spouse will have to adduce evidence
presumptively dead because he or she had not been heard from in
that he had a well-founded belief that the absent spouse was already
seven years cannot become final and executory even after the lapse of
dead.[57] Such judgment is proof of the good faith of the present spouse
the reglementary period within which an appeal may be taken, for such
who contracted a subsequent marriage; thus, even if the present spouse
presumption is still disputable and remains subject to contrary proof,
is later charged with bigamy if the absentee spouse reappears, he
then a petition for such a declaration is useless, unnecessary,
cannot be convicted of the crime. As explained by former Justice Alicia
Sempio-Diy:
Such rulings, however, conflict with Art. 349 of the Revised Penal Code
providing that the present spouse must first ask for a declaration of
presumptive death of the absent spouse in order not to be guilty of
bigamy in case he or she marries again.
The above Article of the Family Code now clearly provides that for the
purpose of the present spouse contracting a second marriage, he or she
must file a summary proceeding as provided in the Code for the
declaration of the presumptive death of the absentee, without prejudice
to the latters reappearance. This provision is intended to protect the
present spouse from a criminal prosecution for bigamy under Art. 349 of
the Revised Penal Code because with the judicial declaration that the
missing spouses presumptively dead, the good faith of the present
spouse in contracting a second marriage is already established.[58]
Of the same view is former Dean Ernesto L. Pineda (now
Undersecretary of Justice) who wrote that things are now clarified. He
says judicial declaration of presumptive death is now authorized for
purposes
remarriage. The present spouse must institute a summary proceeding
for declaration of presumptive death of the absentee, where the ordinary
rules of procedure in trial will not be followed. Affidavits will suffice, with
possible clarificatory examinations of affiants if the Judge finds it
necessary for a full grasp of the facts. The judgment declaring an
absentee as presumptively dead is without prejudice to the effect of
reappearance of the said absentee.
Dean Pineda further states that before, the weight of authority is that the
clause before the absent spouse has been declared presumptively dead
x x x should be disregarded because of Article 83, paragraph 3 of the
Civil Code. With the new law, there is a need to institute a summary
proceeding for the declaration of the presumptive death of the absentee,
otherwise, there is bigamy.[59]
According to Retired Supreme Court Justice Florenz D. Regalado, an
eminent authority on Criminal Law, in some cases where an absentee
spouse is believed to be dead, there must be a judicial declaration of
presumptive death, which could then be made only in the proceedings
for the settlement of his estate.[60] Before such declaration, it was held
that the remarriage of the other spouse is bigamous even if done in good
faith.[61] Justice Regalado opined that there were contrary views
because of the ruling in Jones and the provisions of Article 83(2) of the
Civil Code, which, however, appears to have been set to rest by Article
41 of the Family Code, which requires a summary hearing for the
declaration of presumptive death of the absent spouse before the other
spouse can remarry.
Under Article 238 of the Family Code, a petition for a declaration of the
presumptive death of an absent spouse under Article 41 of the Family
Code may be filed under Articles 239 to 247 of the same Code.[62]
On the second issue, the petitioner, likewise, faults the trial court and
the CA for awarding moral damages in favor of the private complainant.
The petitioner maintains that moral damages may be awarded only in
any of the cases provided in Article 2219 of the Civil Code, and bigamy
is not one of them. The petitioner asserts that the appellate court failed
to apply its ruling in People v. Bondoc,[63] where an award of moral
damages for bigamy was disallowed. In any case, the petitioner
maintains, the private complainant failed to adduce evidence to prove
moral damages.
The appellate court awarded moral damages to the private complainant
on its finding that she adduced evidence to prove the same. The
appellate court ruled that while bigamy is not included in those cases
enumerated in Article 2219 of the Civil Code, it is not proscribed from
of
awarding moral damages against the petitioner. The appellate court
ruled that it is not bound by the following ruling in People v. Bondoc:
... Pero si en dichos asuntos se adjudicaron daos, ello se debi
indedublamente porque el articulo 2219 del Cdigo Civil de Filipinas
autoriza la adjudicacin de daos morales en los delitos de estupro, rapto,
violacin, adulterio o concubinato, y otros actos lascivos, sin incluir en
esta enumeracin el delito de bigamia. No existe, por consiguiente, base
legal para adjudicar aqu los daos de P5,000.00 arriba mencionados.[64]
The OSG posits that the findings and ruling of the CA are based on the
evidence and the law. The OSG, likewise, avers that the CA was not
bound by its ruling in People v. Rodeo.
The Court rules against the petitioner.
Moral damages include physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock,
social humiliation, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they are the proximate
result of the defendants wrongful act or omission.[65] An award for moral
damages requires the confluence of the following conditions: first, there
must be an injury, whether physical, mental or psychological, clearly
sustained by the claimant; second, there must be culpable act or
omission factually established; third, the wrongful act or omission of the
defendant is the proximate cause of the injury sustained by the claimant;
and fourth, the award of damages is predicated on any of the cases
stated in Article 2219 or Article 2220 of the Civil Code.[66]
Moral damages may be awarded in favor of the offended party only in
criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7
of the Civil Code and analogous cases, viz.:
Art. 2219. Moral damages may be recovered in the following and
analogous cases.
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in article 309;
(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34
and 35.
The parents of the female seduced, abducted, raped, or abused,
referred to in No. 3 of this article, may also recover moral damages.
The spouse, descendants, ascendants, and brothers and sisters may
bring the action mentioned in No. 9 of this article in the order named.
Thus, the law does not intend that moral damages should be awarded
in all cases where the aggrieved party has suffered mental anguish,
fright, moral anxieties, besmirched reputation, wounded feelings, moral
shock, social humiliation and similar injury arising out of an act or
omission of another, otherwise, there would not have been any reason
for the inclusion of specific acts in Article 2219[67] and analogous cases
(which refer to those cases bearing analogy or resemblance,
corresponds to some others or resembling, in other respects, as in form,
proportion, relation, etc.)[68]
Indeed, bigamy is not one of those specifically mentioned in Article 2219
of the Civil Code in which the offender may be ordered to pay moral
damages to the private complainant/offended party. Nevertheless, the
petitioner is liable to the private complainant for moral damages under
Article 2219 in relation to Articles 19, 20 and 21 of the Civil Code.
According to Article 19, every person must, in the exercise of his rights
and in the performance of his act with justice, give everyone his due,
and observe honesty and good faith. This provision contains what is
commonly referred to as the principle of abuse of rights, and sets certain
standards which must be observed not only in the exercise of ones rights
but also in the performance of ones duties. The standards are the
following: act with justice; give everyone his due; and observe honesty
and good faith. The elements for abuse of rights are: (a) there is a legal
right or duty; (b) exercised in bad faith; and (c) for the sole intent of
prejudicing or injuring another.[69]
Article 20 speaks of the general sanctions of all other provisions of law
which do not especially provide for its own sanction. When a right is
exercised in a manner which does not conform to the standards set forth
in the said provision and results in damage to another, a legal wrong is
thereby committed for which the wrongdoer must be responsible.[70] If
the provision does not provide a remedy for its violation, an action for
damages under either Article 20 or Article 21 of the Civil Code would be
proper. Article 20 provides that every person who, contrary to law,
willfully or negligently causes damage to another shall indemnify the
latter for the same. On the other hand, Article 21 provides that any
person who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the
latter for damages. The latter provision
is adopted to remedy the countless gaps in the statutes which leave so
many victims of moral wrongs helpless, even though they have actually
suffered material and moral injury should vouchsafe adequate legal
remedy for that untold number of moral wrongs which it is impossible for
human foresight to prove for specifically in the statutes. Whether or not
the principle of abuse of rights has been violated resulting in damages
under Article 20 or Article 21 of the Civil Code or other applicable
provisions of law depends upon the circumstances of each case.[71]
In the present case, the petitioner courted the private complainant and
proposed to marry her. He assured her that he was single. He even
brought his parents to the house of the private complainant where he
and his parents made the same assurance that he was single. Thus, the
private complainant agreed to marry the petitioner, who even stated in
the certificate of marriage that he was single. She lived with the
petitioner and dutifully performed her duties as his wife, believing all the
while that he was her lawful husband. For two years or so until the
petitioner heartlessly abandoned her, the private complainant had no
inkling that he was already married to another before they were married.
Thus, the private complainant was an innocent victim of the petitioners
chicanery and heartless deception, the fraud consisting not of a single
act alone, but a continuous series of acts. Day by day, he maintained
the appearance of being a lawful husband to the private complainant,
who
changed her status from a single woman to a married woman, lost the
consortium, attributes and support of a single man she could have
married lawfully and endured mental pain and humiliation, being bound
to a man who it turned out was not her lawful husband.[72]
The Court rules that the petitioners collective acts of fraud and deceit
before, during and after his marriage with the private complainant were
willful, deliberate and with malice and caused injury to the latter. That
she did not sustain any physical injuries is not a bar to an award for
moral damages. Indeed, in Morris v. Macnab,[73] the New Jersey
Supreme Court ruled:
xxx The defendant cites authorities which indicate that, absent physical
injuries, damages for shame, humiliation, and mental anguish are not
recoverable where the actor is simply negligent. See Prosser, supra, at
p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all
recognize that where the wrong is willful rather than negligent, recovery
may be had for the ordinary, natural, and proximate consequences
though they consist of shame, humiliation, and mental anguish. See
Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup.
Ct. 1936); Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super,
579, 591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here
the defendants conduct was not merely negligent, but was willfully and
maliciously wrongful. It was bound to result in shame, humiliation, and
mental anguish for the plaintiff, and when such result did ensue the
plaintiff became entitled not only to compensatory but also to punitive
damages. See Spiegel v. Evergreen Cemetery Co., supra; Kuzma v
Millinery Workers, etc., Local 24, supra. CF. Note, Exemplary Damages
in the Law of Torts, 70 Harv. L. Rev. 517 (1957). The plaintiff testified
that because of the defendants bigamous marriage to her and the
attendant publicity she not only was embarrassed and ashamed to go
out but couldnt sleep but couldnt eat, had terrific headaches and lost
quite a lot of weight. No just basis appears for judicial interference with
the jurys reasonable allowance of $1,000 punitive damages on the first
count. See Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App.
Div.[74] 1955).
The Court thus declares that the petitioners acts are against public policy
as they undermine and subvert the family as a social institution, good
morals and the interest and general welfare of society.
Because the private complainant was an innocent victim of the
petitioners perfidy, she is not barred from claiming moral damages.
Besides, even considerations of public policy would not prevent her from
recovery. As held in Jekshewitz v. Groswald:[75]
Where a person is induced by the fraudulent representation of another
to do an act which, in consequence of such misrepresentation, he
believes to be neither illegal nor immoral, but which is in fact a criminal
offense, he has a right of action against the person so inducing him for
damages sustained by him in consequence of his having done such act.
Burrows v. Rhodes, [1899] 1 Q.B. 816. In Cooper v. Cooper, 147 Mass.
370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a false
representation by the defendant that he was divorced from his former
wife, whereby the plaintiff was induced to marry him, gave her a remedy
in tort for deceit. It seems to have been assumed that the fact that she
had unintentionally violated the law or innocently committed a crime by
cohabiting with him would be no bar to the action, but rather that it might
be a ground for enhancing her damages. The injury to the plaintiff was
said to be in her being led by the promise to give the fellowship and
assistance of a wife to one who was not her husband and to assume
and act in a relation and condition that proved to be false and
ignominious. Damages for such an injury were held to be recoverable in
Sherman v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339,
343, 8 Am. Rep. 336.
Furthermore, in the case at bar the plaintiff does not base her cause of
action upon any transgression of the law by herself but upon the
defendants misrepresentation. The criminal relations which followed,
innocently on her part, were but one of the incidental results of the
defendants fraud for which damages may be assessed.
[7] Actions for deceit for fraudulently inducing a woman to enter into the
marriage relation have been maintained in other jurisdictions. Sears v.
Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v.
McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434,
97 Am. Dec. 747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411.
Considerations of public policy would not prevent recovery where the
circumstances are such that the plaintiff was conscious of no moral
turpitude, that her illegal action was induced solely by the defendants
misrepresentation, and that she does not base her cause of action upon
any transgression of the law by herself. Such considerations
distinguish this case from cases in which the court has refused to lend
its aid to the enforcement of a contract illegal on its face or to one who
has consciously and voluntarily become a party to an illegal act upon
which the cause of action is founded. Szadiwicz v. Cantor, 257 Mass.
518, 520, 154 N.E. 251, 49 A. L. R. 958.[76]

Considering the attendant circumstances of the case, the Court finds the
award of P200,000.00 for moral damages to be just and reasonable.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The

assailed decision of the Court of Appeals isAFFIRMED. Costs against
the petitioner.

SO ORDERED.
SECOND DIVISION
[G.R. No. 141066. February 17, 2005]
EVANGELINE LADONGA, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Petitioner Evangeline Ladonga seeks a review of the Decision,[1] dated
May 17, 1999, of the Court of Appeals in CA-G.R. CR No. 20443,
affirming the Decision dated August 24, 1996, of the Regional Trial Court
(RTC), Branch 3 of Bohol, in Criminal Case Nos. 7068, 7069 and 7070
convicting her of violation of B.P. Blg. 22, otherwise known as The
Bouncing Checks Law.
The factual background of the case is as follows:
On March 27, 1991, three Informations for violation of B.P. Blg. 22 were
filed with the RTC, docketed as Criminal Case Nos. 7068 - 7070. The
Information in Criminal Case No. 7068 alleges as follows:
That, sometime in May or June 1990, in the City of Tagbilaran,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating, and mutually helping
with one another, knowing fully well that they did not have sufficient
funds deposited with the United Coconut Planters Bank (UCPB),
Tagbilaran Branch, did then and there willfully, unlawfully, and
feloniously, draw and issue UCPB Check No. 284743 postdated July 7,
1990 in the amount of NINE THOUSAND SEVENTY-FIVE PESOS AND
FIFTY-FIVE CENTAVOS (P9,075.55), payable to Alfredo Oculam, and
thereafter, without informing the latter that they did not have sufficient
funds deposited with the bank to cover up the amount of the check, did
then and there willfully, unlawfully and feloniously pass on, indorse, give
and deliver the said check to Alfredo Oculam by way of rediscounting of
the aforementioned checks; however, upon presentation of the check to
the drawee bank for encashment, the same was dishonored for the
reason that the account of the accused with the United Coconut Planters
Bank, Tagbilaran Branch, had already been closed, to the damage and
prejudice of the said Alfredo Oculam in the aforestated amount.
Acts committed contrary to the provisions of Batas Pambansa
Bilang 22.[2]
The accusatory portions of the Informations in Criminal Case Nos. 7069
and 7070 are similarly worded, except for the allegations concerning the
number, date and amount of each check, that is:
(a) Criminal Case No. 7069 - UCPB Check No. 284744 dated July 22,
1990 in the amount of P12,730.00;[3]
(b) Criminal Case No. 7070 UCPB Check No. 106136 dated July 22,
1990 in the amount of P8,496.55.[4]
The cases were consolidated and jointly tried. When arraigned on June
26, 1991, the two accused pleaded not guilty to the crimes charged.[5]
The prosecution presented as its lone witness complainant Alfredo
Oculam. He testified that: in 1989, spouses Adronico[6] and Evangeline
Ladonga became his regular customers in his pawnshop business in
Tagbilaran City, Bohol;[7] sometime in May 1990, the Ladonga spouses
obtained a P9,075.55 loan from him, guaranteed by United Coconut
Planters Bank (UCPB) Check No. 284743, post dated to dated July 7,
1990 issued by Adronico;[8] sometime in the last week of April 1990 and
during the first week of May 1990, the Ladonga spouses obtained an
additional loan of P12,730.00, guaranteed by UCPB Check No. 284744,
post dated to dated July 26, 1990 issued by Adronico;[9] between May
and June 1990, the Ladonga spouses obtained a third loan in the
amount of P8,496.55, guaranteed by UCPB Check No. 106136, post
dated to July 22, 1990 issued by Adronico;[10] the three checks
bounced upon presentment for the reason CLOSED
ACCOUNT;[11] when the Ladonga spouses failed to redeem the check,
despite repeated demands, he filed a criminal complaint against
them.[12]
While admitting that the checks issued by Adronico bounced because
there was no sufficient deposit or the account was closed, the Ladonga
spouses claimed that the checks were issued only to guarantee the
obligation, with an agreement that Oculam should not encash the checks
when they mature;[13] and, that petitioner is not a signatory of the
checks and had no participation in the issuance thereof.[14]
On August 24, 1996, the RTC rendered a joint decision finding the
Ladonga spouses guilty beyond reasonable doubt of violating B.P. Blg.
22, the dispositive portion of which reads:
Premises considered, this Court hereby renders judgment finding
accused Adronico Ladonga, alias Ronie, and Evangeline Ladonga guilty
beyond reasonable doubt in the aforesaid three (3) criminal cases, for
which they stand charged before this Court, and accordingly, sentences
them to imprisonment and fine, as follows:
1. In Criminal Case No. 7068, for (sic) an imprisonment of one (1) year
for each of them, and a fine in the amount of P9,075.55, equivalent to
the amount of UCPB Check No. 284743;
2. In Criminal Case No. 7069, for (sic) an imprisonment for each of them
to one (1) year and a fine of P12, 730.00, equivalent to the amount of
UCPB Check No. 284744; and,
3. In Criminal Case No. 7070, with (sic) an imprisonment of one year for
each of them and a fine of P8,496.55 equivalent to the amount of UCPB
Check No. 106136;
4. That both accused are further ordered to jointly and solidarily pay and
reimburse the complainant, Mr. Alfredo Oculam, the sum of P15,000.00
representing actual expenses incurred in prosecuting the instant
cases; P10,000.00 as attorneys fee; and the amount of P30,302.10
which is the total value of the three (3) subject checks which bounced;
but without subsidiary imprisonment in case of insolvency.
With Costs against the accused.
SO ORDERED.[15]
Adronico applied for probation which was granted.[16] On the other
hand, petitioner brought the case to the Court of Appeals, arguing that
the RTC erred in finding her criminally liable for conspiring with her
husband as the principle of conspiracy is inapplicable to B.P. Blg.
22which is a special law; moreover, she is not a signatory of the checks
and had no participation in the issuance thereof.[17]
On May 17, 1999, the Court of Appeals affirmed the conviction of
petitioner.[18] It held that the provisions of the penal code were made
applicable to special penal laws in the decisions of this Court in People
vs. Parel, [19] U.S. vs. Ponte, [20] and U.S. vs. Bruhez.[21] It noted that
Article 10 of the Revised Penal Code itself provides that its provisions
shall be supplementary to special laws unless the latter provide the
contrary. The Court of Appeals stressed that since B.P. Blg. 22 does not
prohibit the applicability in a suppletory character of the provisions of the
Revised Penal Code (RPC), the principle of conspiracy may be applied
to cases involving violations of B.P. Blg. 22. Lastly, it ruled that the fact
that petitioner did not make and issue or sign the checks did not
exculpate her from criminal liability as it is not indispensable that a co-
conspirator takes a direct part in every act and knows the part which
everyone performed. The Court of Appeals underscored that in
conspiracy the act of one conspirator could be held to be the act of the
other.
Petitioner sought reconsideration of the decision but the Court of
Appeals denied the same in a Resolution dated November 16, 1999.[22]
Hence, the present petition.
Petitioner presents to the Court the following issues for resolution:
1. WHETHER OR NOT THE PETITIONER WHO WAS NOT THE
DRAWER OR ISSUER OF THE THREE CHECKS THAT BOUNCED
BUT HER CO-ACCUSED HUSBAND UNDER THE LATTERS
ACCOUNT COULD BE HELD LIABLE FOR VIOLATIONS OF BATAS
PAMBANSA BILANG22 AS CONSPIRATOR.
2. ANCILLARY TO THE MAIN ISSUE ARE THE FOLLOWING ISSUES:
A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN
VIOLATIONS OF BATAS PAMBANSA BILANG 22 BY INVOKING THE
LAST SENTENCE OF ARTICLE 10 OF THE REVISED PENAL CODE
WHICH STATES:
Art. 10. Offenses not subject of the provisions of this Code. Offenses
which are or in the future may be punished under special laws are not
subject to the provisions of this Code. This Code shall be supplementary
to such laws, unless the latter should specially provide the contrary.
B. WHETHER OR NOT THE CASES CITED BY THE HONORABLE
COURT OF APPEALS IN AFFIRMING IN TOTO THE CONVICTION OF
PETITIONER AS CONSPIRATOR APPLYING THE SUPPLETORY
CHARACTER OF THE REVISED PENAL CODE TO SPECIAL LAWS
LIKE B.P. BLG. 22 IS APPLICABLE.[23]
Petitioner staunchly insists that she cannot be held criminally liable for
violation of B.P. Blg. 22 because she had no participation in the drawing
and issuance of the three checks subject of the three criminal cases, a
fact proven by the checks themselves. She contends that the Court of
Appeals gravely erred in applying the principle of conspiracy, as defined
under the RPC, to violations of B.P. Blg. 22. She posits that the
application of the principle of conspiracy would enlarge the scope of the
statute and include situations not provided for or intended by the
lawmakers, such as penalizing a person, like petitioner, who had no
participation in the drawing or issuance of checks.
The Office of the Solicitor General disagrees with petitioner and echoes
the declaration of the Court of Appeals that some provisions of the
Revised Penal Code, especially with the addition of the second sentence
in Article 10, are applicable to special laws. It submits that B.P.
Blg. 22 does not provide any prohibition regarding the applicability in a
suppletory character of the provisions of the Revised Penal Code to it.
Article 10 of the RPC reads as follows:
ART. 10. Offenses not subject to the provisions of this Code. Offenses
which are or in the future may be punishable under special laws are not
subject to the provisions of this Code. This Code shall be supplementary
to such laws, unless the latter should specially provide the contrary.
The article is composed of two clauses. The first provides that offenses
which in the future are made punishable under special laws are not
subject to the provisions of the RPC, while the second makes the RPC
supplementary to such laws. While it seems that the two clauses are
contradictory, a sensible interpretation will show that they can perfectly
be reconciled.
The first clause should be understood to mean only that the special
penal laws are controlling with regard to offenses therein specifically
punished. Said clause only restates the elemental rule of statutory
construction that special legal provisions prevail over general
ones.[24]Lex specialis derogant generali. In fact, the clause can be
considered as a superfluity, and could have been eliminated altogether.
The second clause contains the soul of the article. The main idea and
purpose of the article is embodied in the provision that the "code shall
be supplementary" to special laws, unless the latter should specifically
provide the contrary.
The appellate courts reliance on the cases of People vs. Parel,[25] U.S.
vs. Ponte,[26] and U.S. vs. Bruhez[27] rests on a firm basis. These
cases involved the suppletory application of principles under the then
Penal Code to special laws. People vs. Parel is concerned with the
application of Article 22[28] of the Code to violations of Act No. 3030,
the Election Law, with reference to the retroactive effect of penal laws if
they favor the accused. U.S. vs. Ponte involved the application of Article
17[29] of the same Penal Code, with reference to the participation of
principals in the commission of the crime of misappropriation of public
funds as defined and penalized by Act No. 1740. U.S. vs.
Bruhez covered Article 45[30] of the same Code, with reference to the
confiscation of the instruments used in violation of Act No. 1461, the
Opium Law.
B.P. Blg. 22 does not expressly proscribe the suppletory application of
the provisions of the RPC. Thus, in the absence of contrary provision
in B.P. Blg. 22, the general provisions of the RPC which, by their nature,
are necessarily applicable, may be applied suppletorily. Indeed, in the
recent case of Yu vs. People,[31] the Court applied suppletorily the
provisions on subsidiary imprisonment under Article 39[32] of the RPC
to B.P. Blg. 22.
The suppletory application of the principle of conspiracy in this case is
analogous to the application of the provision on principals under Article
17 in U.S. vs. Ponte. For once conspiracy or action in concert to achieve
a criminal design is shown, the act of one is the act of all the
conspirators, and the precise extent or modality of participation of each
of them becomes secondary, since all the conspirators are
principals.[33]
All these notwithstanding, the conviction of the petitioner must be set
aside.
Article 8 of the RPC provides that a conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony
and decide to commit it. To be held guilty as a co-principal by reason of
conspiracy, the accused must be shown to have performed an overt act
in pursuance or furtherance of the complicity.[34] The overt act or acts
of the accused may consist of active participation in the actual
commission of the crime itself or may consist of moral assistance to his
co-conspirators by moving them to execute or implement the criminal
plan.[35]
In the present case, the prosecution failed to prove that petitioner
performed any overt act in furtherance of the alleged conspiracy. As
testified to by the lone prosecution witness, complainant Alfredo
Oculam, petitioner was merely present when her husband, Adronico,
signed the check subject of Criminal Case No. 7068.[36] With respect to
Criminal Case Nos. 7069-7070, Oculam also did not describe the details
of petitioners participation. He did not specify the nature of petitioners
involvement in the commission of the crime, either by a direct act of
participation, a direct inducement of her co-conspirator, or cooperating
in the commission of the offense by another act without which it would
not have been accomplished. Apparently, the only semblance of overt
act that may be attributed to petitioner is that she was present when the
first check was issued. However, this inference cannot be stretched to
mean concurrence with the criminal design.
Conspiracy must be established, not by conjectures, but by positive and
conclusive evidence.[37] Conspiracy transcends mere companionship
and mere presence at the scene of the crime does not in itself amount
to conspiracy.[38] Even knowledge, acquiescence in or agreement to
cooperate, is not enough to constitute one as a party to a conspiracy,
absent any active participation in the commission of the crime with a
view to the furtherance of the common design and purpose.[39]
As the Court eloquently pronounced in a case of recent vintage, People
vs. Mandao:[40]
To be sure, conspiracy is not a harmless innuendo to be taken lightly or
accepted at every turn. It is a legal concept that imputes culpability under
specific circumstances; as such, it must be established as clearly as any
element of the crime. Evidence to prove it must be positive and
convincing, considering that it is a convenient and simplistic device by
which the accused may be ensnared and kept within the penal fold.
Criminal liability cannot be based on a general allegation of conspiracy,
and a judgment of conviction must always be founded on the strength of
the prosecutions evidence. The Court ruled thus in People v. Legaspi,
from which we quote:
At most, the prosecution, realizing the weakness of its evidence against
accused-appellant Franco, merely relied and pegged the latters criminal
liability on its sweeping theory of conspiracy, which to us, was not
attendant in the commission of the crime.
The rule is firmly entrenched that a judgment of conviction must be
predicated on the strength of the evidence for the prosecution and not
on the weakness of the evidence for the defense. The proof against him
must survive the test of reason; the strongest suspicion must not be
permitted to sway judgment. The conscience must be satisfied that on
the defense could be laid the responsibility for the offense charged; that
not only did he perpetrate the act but that it amounted to a crime. What
is required then is moral certainty.
Verily, it is the role of the prosecution to prove the guilt of the appellant
beyond reasonable doubt in order to overcome the constitutional
presumption of innocence.
In sum, conviction must rest on hard evidence showing that the accused
is guilty beyond reasonable doubt of the crime charged. In criminal
cases, moral certainty -- not mere possibility -- determines the guilt or
the innocence of the accused. Even when the evidence for the defense
is weak, the accused must be acquitted when the prosecution has not
proven guilt with the requisite quantum of proof required in all criminal
cases. (Citations omitted)[41]
All told, the prosecution failed to establish the guilt of the petitioner with
moral certainty. Its evidence falls short of the quantum of proof required
for conviction. Accordingly, the constitutional presumption of the
petitioners innocence must be upheld and she must be acquitted.
WHEREFORE, the instant petition is GRANTED. The assailed Decision,
dated May 17, 1999, of the Court of Appeals in CA-G.R. CR No. 20443
affirming the Decision, dated August 24, 1996, of the Regional Trial
Court (Branch 3), Bohol, in Criminal Case Nos. 7068, 7069 and 7070
convicting the petitioner of violation of B.P. Blg. 22 is hereby
REVERSED and SET ASIDE. Petitioner Evangeline Ladonga is
ACQUITTED of the charges against her under B.P. Blg. 22 for failure of
the prosecution to prove her guilt beyond reasonable doubt. No
pronouncement as to costs.
SO ORDERED.
Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.
[1] Penned by Justice Buenaventura J. Guerrero (now retired) and
concurred in by Justices Portia Alino-Hormachuelos and Eloy R. Bello
(now retired).
[2] Original Records, pp. 1-2.
[3] Id., p. 3.
[4] Id., p. 5.
[5] Id., pp. 29-31.
[6] Also known as Ronie.
[7] TSN of December 3, 1991, Testimony of Alfredo Oculam, pp. 4-7.
[8] Id., pp. 16-21.
[9] TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2-3.
[10] TSN of January 28, 1992, Testimony of Alfredo Oculam, pp. 1-2.
[11] TSN of December 3, 1991, Testimony of Alfredo Oculam, p. 19;
TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 1 and 3;
TSN of January 28, 1992, Testimony of Alfredo Oculam, p. 1; Original
Records, p. 128.
[12] TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2 and
4; TSN of January 28, 1992, Testimony of Alfredo Oculam, p. 2; Original
Records, p. 125.
[13] TSN of August 23, 1993, Testimony of Evangeline Ladonga, pp. 7-
8, 11-12 and 15; TSN of December 20, 1993, Testimony of Adronico
Ladonga, p. 18.
[14] TSN of August 23, 1993, Testimony of Evangeline Ladonga, p. 10;
TSN of December 20, 1993, Testimony of Adronico Ladonga, pp. 24-26.
[15] Original Records, p. 124.
[16] Id., p. 126.
[17] Court of Appeals (CA) Rollo, p. 28.
[18] Rollo, p. 133.
[19] No. 18260, January 27, 1923, 44 Phil. 437.
[20] No. 5952, October 24, 1911, 20 Phil. 379.
[21] No. 9268, November 4, 1914, 28 Phil. 305.
[22] Rollo, p. 39.
[23] Rollo, pp. 69-70.
[24] Bayan (Bagong Alyansang Makabayan) vs. Zamora, G.R. No.
138570, October 10, 2000, 342 SCRA 449, 483.
[25] Note No. 19, supra.
[26] Note No. 20, supra.
[27] Note No. 21, supra.
[28] ART. 22. Retroactive effect of penal laws. Penal laws shall have a
retroactive effect insofar as they favor the person guilty of a felony, who
is not a habitual criminal, as this term is defined in Rule 5 of Article 62
of this Code, although at the time of the publication of such laws a final
sentence has been pronounced and the convict is serving the same.
[29] ART. 17. Principals. The following are considered principals:
1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense by another
act without which it would not have been accomplished.
[30] ART. 45. Confiscation and forfeiture of the proceeds or instruments
of the crime. Every penalty imposed for the commission of a felony shall
carry with it the forfeiture of the proceeds of the crime and the
instruments or tools with which it was committed.
Such proceeds and instruments or tools shall be confiscated and
forfeited in favor of the Government, unless they be the property of a
third person not liable for the offense, but those articles which are not
subject of lawful commerce shall be destroyed.
[31] G.R. No. 134172, September 20, 2004.
[32] ART. 39. Subsidiary penalty. If the convict has no property with
which to meet the fine mentioned in paragraph 3 of the next preceding
article, he shall be subject to a subsidiary personal liability at the rate of
one day for each eight pesos, subject to the following rules:
1. If the principal penalty imposed be prision
correccional or arresto and fine, he shall remain under confinement until
his fine referred in the preceding paragraph is satisfied, but his
subsidiary imprisonment shall not exceed one-third of the term of the
sentence, and in no case shall it continue for more than one year, and
no fraction or part of a day shall be counted against the prisoner.
2. When the principal penalty imposed be only a fine, the subsidiary
imprisonment shall not exceed six months, if the culprit shall have been
prosecuted for a grave or less grave felony, and shall not exceed fifteen
days, if for a light felony.
3. When the principal penalty imposed is higher than prision
correccional no subsidiary imprisonment shall be imposed upon the
culprit.

4. If the principal penalty imposed is not to be executed by

confinement in a penal institution, but such penalty is of fixed duration,
the convict, during the period of time established in the preceding rules,
shall continue to suffer the same deprivation as those of which the
principal penalty consists.

5. The subsidiary personal liability which the convict may have

suffered by reason of his insolvency shall not relieve him from the fine
in case his financial circumstances should improve.

[33] People vs. Felipe, G.R. No. 142505, December 11, 2003, 418
SCRA 146, 176; People vs. Julianda, Jr., G.R. No. 128886, November
23, 2001, 370 SCRA 448, 469; People vs. Quinicio, G.R. No. 142430,
September 13, 2001, 365 SCRA 252, 266.

[34] People vs. Pickrell, G.R. No. 120409, October 23, 2003, 414 SCRA
19, 33; People vs. Bisda, G.R. No. 140895, July 17, 2003, 406 SCRA
454, 473; People vs. Pagalasan, G.R. Nos. 131926 & 138991, June 18,
2003, 404 SCRA 275, 291.

[35] People vs. Caballero, G.R. Nos. 149028-30, April 2, 2003, 400
SCRA 424, 437; People vs. Ponce, G.R. No. 126254, September 29,
2000, 341 SCRA 352, 359-360.

[36] TSN of December 3, 1991, Testimony of Alfredo Oculam, p. 20.

[37] People vs. Tamayo, G.R. No. 138608, September 24, 2002, SCRA
540, 553; People vs. Melencion, G.R. No. 121902, March 26, 2001, 355
SCRA 113, 123.

[38] People vs. Leao, G.R. No. 138886, October 9, 2001, 366 SCRA
774; People vs. Compo, G.R. No. 112990, May 28, 2001, 358 SCRA
266, 272.

[39] People vs. Natividad, G.R. No. 151072, September 23, 2003, 411
SCRA 587, 595.

[40] People vs. Mandao, G.R. No. 135048, December 3, 2002, 393
SCRA 292.

[41] Id., pp. 304-305.

 PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE AMURAO
y PUNO, alias "Enry," accused-appellants.

The Solicitor General for plaintiff-appellee.

Edward C. Castaeda for accused-appellants.

REGALADO, J.:

The primal issue for resolution in this case is whether accused-

appellants committed the felony of kidnapping for ransom under Article
267 of the Revised Penal Code, as charged in the information; or a
violation of Presidential Decree No. 532 (Anti-Piracy and Anti-Highway
Robbery Law of 1974), as contended by the Solicitor General and found
by the trial court; or the offense of simple robbery punished by
Paragraph 5, Article 294 of the Revised Penal Code, as claimed by the
defense.

In an information dated and filed on May 31, 1989 in the Regional Trial
Court of Quezon City, Branch 103, as Criminal Case No. Q-57404
thereof, appellants were charged with kidnapping for ransom allegedly
committed in the following manner:

That on or about the 13th day of January, 1988 in Quezon City,

Philippines and within the jurisdiction of this Honorable Court, the said
accused, being then private individuals, conspiring together,
confederating with and mutually helping each other, did, then and there,
wilfully, unlawfully and feloniously kidnap and carry away one MARIA
DEL SOCORRO SARMIENTO y MUTUC * for the purpose of extorting
ransom, to the damage and prejudice of the said offended party in such
amount as may be awarded to her under the provisions of the Civil
Code. 1

On a plea of not guilty when arraigned, 2 appellants went to trial which

ultimately resulted in a judgment promulgated on September 26, 1990
finding them guilty of robbery with extortion committed on a highway,
punishable under Presidential Decree No. 532, with this disposition in
the fallo thereof:

ACCORDINGLY, judgment is hereby rendered finding the accused

ISABELO PUNO and ENRIQUE AMURAO GUILTY as principals of
robbery with extortion committed on a highway and, in accordance with
P.D. 532, they are both sentenced to a jail term of reclusion perpetua.

The two accused are likewise ordered to pay jointly and severally the
offended private victim Ma. Socorro M. Sarmiento the sum of P7,000.00
as actual damages and P3,000.00 as temperate damages. 3

SECOND DIVISION Before us now in this appeal, appellants contend that the court a
quo erred (1) in convicting them under Presidential Decree No. 532
since they were not expressly charged with a crime therein; (2) in

G.R. No. 97471 February 17, 1993 applying Sections 4 and 5, Rule 120 of the Rules of Court since the
charge under said presidential decree is not the offense proved and
cannot rightly be used as the offense proved which is necessarily
included in the offense charged. 4
For the material antecedents of this case, we quote with approval the
following counter-statement of facts in the People's brief 5 which
adopted the established findings of the court a quo, documenting the
same with page references to the transcripts of the proceedings, and
which we note are without any substantial divergence in the version
proffered by the defense.
This is a prosecution for kidnapping for ransom allegedly done on
January 13, 1988 by the two accused (tsn, Jan. 8, 1990, p. 7).
Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta
Avenue, Quezon City called Nika Cakes and Pastries. She has a driver
of her own just as her husband does (Ibid., pp. 4-6).
At around 5:00 in the afternoon of January 13, 1988, the accused
Isabelo Puno, who is the personal driver of Mrs. Sarmiento's husband
(who was then away in Davao purportedly on account of local election
there) arrived at the bakeshop. He told Mrs. Socorro that her own driver
Fred had to go to Pampanga on an emergency (something bad befell a
child), so Isabelo will temporary (sic) take his place (Id., pp. 8-9).
Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she
got into the Mercedes Benz of her husband with Isabelo on (sic) the
wheel. After the car turned right in (sic) a corner of Araneta Avenue, it
stopped. A young man, accused Enrique Amurao, boarded the car
beside the driver (Id., pp. 9-10).
Once inside, Enrique clambered on top of the back side of the front seat
and went onto where Ma. Socorro was seated at the rear. He poke (sic)
a gun at her (Id., p. 10).
Isabelo, who earlier told her that Enrique is his nephew announced,
"ma'm, you know, I want to get money from you." She said she has
money inside her bag and they may get it just so they will let her go. The
bag contained P7,000.00 and was taken (Id., pp. 11-14).
Further on, the two told her they wanted P100,000.00 more. Ma. Socorro
agreed to give them that but would they drop her at her gas station in
Kamagong St., Makati where the money is? The car went about the Sta.
Mesa area. Meanwhile, Ma. Socorro clutched her Rosary and prayed.
Enrique's gun was menacingly storing (sic) at her soft bread (sic) brown,
perfumed neck. He said he is an NPA and threatened her (Id., p.15).
The car sped off north towards the North superhighway. There Isabelo,
Beloy as he is called, asked Ma. Socorro to issue a check for
P100,000.00. Ma. Socorro complied. She drafted 3 checks in
denominations of two for P30 thousand and one for P40 thousand.
Enrique ordered her to swallow a pill but she refused (Id., pp. 17-23).
Beloy turned the car around towards Metro Manila. Later, he changed
his mind and turned the car again towards Pampanga. Ma. Socorro,
according to her, jumped out of the car then, crossed to the other side
of the superhighway and, after some vehicles ignored her, she was
finally able to flag down a fish vendors van. Her dress had blood
because, according to Ma. Socorro, she fell down on the ground and
was injured when she jumped out of the car. Her dress was torn too (Id.,
pp. 23-26).
On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM
(Id., p. 27).
Both accused were, day after, arrested. Enrique was arrested trying to
encash Ma. Socorro's P40,000.00 check at PCI Bank, Makati. (tsn, Oct.
18, 1989, pp. 10-13) 6
As observed by the court below, the defense does not dispute said
narrative of complainant, except that, according to appellant Puno, he
stopped the car at North Diversion and freely allowed complainant to
step out of the car. He even slowed the car down as he drove away, until
he saw that his employer had gotten a ride, and he claimed that she fell
down when she stubbed her toe while running across the highway. 7
Appellants further testified that they brought the Mercedez Benz car to
Dolores, San Fernando, Pampanga and parked it near a barangay or
police outpost. They thereafter ate at a restaurant and divided their
loot. 8 Much later, when he took the stand at the trial of this case,
appellant Puno tried to mitigate his liability by explaining that he was in
dire need of money for the medication of his ulcers. 9
On these relatively simple facts, and as noted at the start of this opinion,
three theories have been advanced as to what crime was committed by
appellants. The trial court cohered with the submission of the defense
that the crime could not be kidnapping for ransom as charged in the
information. We likewise agree.
Prefatorily, it is worth recalling an accepted tenet in criminal law that in
the determination of the crime for which the accused should be held
liable in those instances where his acts partake of the nature of variant
offenses, and the same holds true with regard to the modifying or
qualifying circumstances thereof, his motive and specific intent in
perpetrating the acts complained of are invaluable aids in arriving at a
correct appreciation and accurate conclusion thereon.
Thus, to illustrate, the motive of the accused has been held to be
relevant or essential to determine the specific nature of the crime as, for
instance, whether a murder was committed in the furtherance of
rebellion in which case the latter absorbs the former, or whether the
accused had his own personal motives for committing the murder
independent of his membership in the rebellious movement in which
case rebellion and murder would constitute separate offenses. 10 Also,
where injuries were inflicted on a person in authority who was not then
in the actual performance of his official duties, the motive of the offender
assumes importance because if the attack was by reason of the previous
performance of official duties by the person in authority, the crime would
be direct assault; otherwise, it would only be physical injuries. 11
In the case at bar, there is no showing whatsoever that appellants had
any motive, nurtured prior to or at the time they committed the wrongful
acts against complainant, other than the extortion of money from her
under the compulsion of threats or intimidation. This much is admitted
by both appellants, without any other esoteric qualification or dubious
justification. Appellant Puno, as already stated, candidly laid the blame
for his predicament on his need for funds for, in his own testimony,
"(w)hile we were along the way Mam (sic) Corina was telling me "Beloy,
I know your family very well and I know that your (sic) not (a) bad person,
why are you doing this?" I told her "Mam, (sic), because I need money
and I had an ulcer and that I have been getting an (sic) advances from
our office but they refused to give me any bale (sic). . . ." 12
With respect to the specific intent of appellants vis-a-vis the charge that
they had kidnapped the victim, we can rely on the proverbial rule of
ancient respectability that for this crime to exist, there must be
indubitable proof that
the actual intent of the malefactors was to deprive the offended party of
her liberty, 13 and not where such restraint of her freedom of action was
merely an incident in the commission of another offense primarily
intended by the offenders. Hence, as early as United States
vs. Ancheta, 14 and consistently reiterated thereafter, 15 it has been
held that the detention and/or forcible taking away of the victims by the
accused, even for an appreciable period of time but for the primary and
ultimate purpose of killing them, holds the offenders liable for taking their
lives or such other offenses they committed in relation thereto, but the
incidental deprivation of the victims' liberty does not constitute
kidnapping or serious illegal detention.
That appellants in this case had no intention whatsoever to kidnap or
deprive the complainant of her personal liberty is clearly demonstrated
in the veritably confessional testimony of appellant Puno:
Q At what point did Mrs. Sarmiento handed (sic) the bag containing the
P7,000.00 to your nephew?
A Santo Domingo Exit.
Q And how about the checks, where were you already when the checks
was (sic) being handed to you?
A Also at the Sto. Domingo exit when she signed the checks.
Q If your intention was just to robbed (sic) her, why is it that you still did
not allow her to stay at Sto. Domingo, after all you already received the
money and the checks?
A Because we had an agreement with her that when she signed the
checks we will take her to her house at Villa (sic) Verde.
Q And why did you not bring her back to her house at Valle Verde when
she is (sic) already given you the checks?
A Because while we were on the way back I (sic) came to my mind that
if we reach Balintawak or some other place along the way we might be
apprehended by the police. So when we reached Santa Rita exit I told
her "Mam (sic) we will already stop and allow you to get out of the
car." 16
Neither can we consider the amounts given to appellants as equivalent
to or in the nature of ransom, considering the immediacy of their
obtention thereof from the complainant personally. Ransom, in
municipal criminal law, is the money, price or consideration paid or
demanded for redemption of a captured person or persons, a payment
that releases from captivity. 17 It can hardly be assumed that when
complainant readily gave the cash and checks demanded from her at
gun point, what she gave under the circumstances of this case can be
equated with or was in the concept of ransom in the law of kidnapping.
These were merely amounts involuntarily surrendered by the victim
upon the occasion of a robbery or of which she was summarily divested
by appellants. Accordingly, while we hold that the crime committed is
robbery as defined in Article 293 of the Code, we, however, reject the
theory of the trial court that the same constitutes the highway robbery
contemplated in and punished by Presidential Decree No. 532.
The lower court, in support of its theory, offers this ratiocination:
The court agrees that the crime is robbery. But it is also clear from the
allegation in the information that the victim was carried away and
extorted for more money. The accused admitted that the robbery was
carried on from Araneta Avenue up to the North Superhighway. They
likewise admitted that along the way they intimidated Ma. Socorro to
produce more money that she had with her at the time for which reason
Ma. Socorro, not having more cash, drew out three checks. . . .
In view of the foregoing the court is of the opinion that the crimes
committed is that punishable under P.D. 532 (Anti-Piracy and Anti-
Highway Robbery Law of 1974) under which where robbery on the
highway is accompanied by extortion the penalty is reclusion
perpetua. 18
The Solicitor General concurs, with the observation that pursuant to the
repealing clause in Section 5 of said decree, "P.D. No- 532 is a
modification of the provisions of the Revised Penal Code, particularly
Article 267 which
are inconsistent with it." 19 Such opinion and complementary
submission consequently necessitate an evaluation of the correct
interplay between and the legal effects of Presidential Decree No. 532
on the pertinent Provisions of the Revised Penal Code, on which matter
we are not aware that any definitive pronouncement has as yet been
made.
Contrary to the postulation of the Solicitor General, Presidential Decree
No. 532 is not a modification of Article 267 of the Revised Penal Code
on kidnapping and serious illegal detention, but of Articles 306 and 307
on brigandage. This is evident from the fact that the relevant portion
thereof which treats of "highway robbery" invariably uses this term in the
alternative and synonymously with brigandage, that is, as "highway
robbery/brigandage." This is but in line with our previous ruling, and
which still holds sway in criminal law, that highway robbers (ladrones)
and brigands are synonymous. 20
Harking back to the origin of our law on brigandage (bandolerismo) in
order to put our discussion thereon in the proper context and
perspective, we find that a band of brigands, also known as highwaymen
or freebooters, is more than a gang of ordinary robbers. Jurisprudence
on the matter reveals that during the early part of the American
occupation of our country, roving bands were organized for robbery and
pillage and since the then existing law against robbery was inadequate
to cope with such moving bands of outlaws, the Brigandage Law was
passed. 21
The following salient distinctions between brigandage and robbery are
succinctly explained in a treatise on the subject and are of continuing
validity:
The main object of the Brigandage Law is to prevent the formation of
bands of robbers. The heart of the offense consists in the formation of a
band by more than three armed persons for the purpose indicated in art.
306. Such formation is sufficient to constitute a violation of art. 306. It
would not be necessary to show, in a prosecution under it, that a
member or members of the band actually committed robbery or
kidnapping or any other purpose attainable by violent means. The crime
is proven when the organization and purpose of the band are shown to
be such as are contemplated by art 306. On the other hand, if robbery
is committed by a band, whose members were not primarily organized
for the purpose of committing robbery or kidnapping, etc., the crime
would not be brigandage, but only robbery. Simply because robbery was
committed by a band of more than three armed persons, it would not
follow that it was committed by a band of brigands. In the Spanish text
of art. 306, it is required that the band "sala a los campos para dedicarse
a robar." 22 (Emphasis supplied).
In fine, the purpose of brigandage is, inter alia, indiscriminate highway
robbery. If the purpose is only a particular robbery, the crime is only
robbery, or robbery in band if there are at least four armed
participants. 23 The martial law legislator, in creating and promulgating
Presidential Decree No. 532 for the objectives announced therein, could
not have been unaware of that distinction and is presumed to have
adopted the same, there being no indication to the contrary. This
conclusion is buttressed by the rule on contemporaneous construction,
since it is one drawn from the time when and the circumstances under
which the decree to be construed originated. Contemporaneous
exposition or construction is the best and strongest in the law. 24
Further, that Presidential Decree No. 532 punishes as highway robbery
or brigandage only acts of robbery perpetrated by outlaws
indiscriminately against any person or persons on Philippine highways
as defined therein, and not acts of robbery committed against only a
predetermined or particular victim, is evident from the preambular
clauses thereof, to wit:
WHEREAS, reports from law-enforcement agencies reveal that lawless
elements are still committing acts of depredation upon the persons and
properties of innocent and defenseless inhabitants who travel from one
place to another, thereby disturbing the peace, order and tranquility of
the nation and stunting the economic and social progress of the people:
WHEREAS, such acts of depredations constitute . . . highway
robbery/brigandage which are among the highest forms of lawlessness
condemned by the penal statutes of all countries;
WHEREAS, it is imperative that said lawless elements be discouraged
from perpetrating such acts of depredaions by imposing heavy penalty
on the offenders, with the end in view of eliminating all obstacles to the
economic, social, educational and community progress of the people.
(Emphasis supplied).
Indeed, it is hard to conceive of how a single act of robbery against a
particular person chosen by the accused as their specific victim could
be considered as committed on the "innocent and defenseless
inhabitants who travel from one place to another," and which single act
of depredation would be capable of "stunting the economic and social
progress of the people" as to be considered "among the highest forms
of lawlessness condemned by the penal statutes of all countries," and
would accordingly constitute an obstacle "to the economic, social,
educational and community progress of the people, " such that said
isolated act would constitute the highway robbery or brigandage
contemplated and punished in said decree. This would be an
exaggeration bordering on the ridiculous.
True, Presidential Decree No. 532 did introduce amendments to Articles
306 and 307 of the Revised Penal Code by increasing the penalties,
albeit limiting its applicability to the offenses stated therein when
committed on the highways and without prejudice to the liability for such
acts if committed. Furthermore, the decree does not require that there
be at least four armed persons forming a band of robbers; and the
presumption in the Code that said accused are brigands if they use
unlicensed firearms no longer obtains under the decree. But, and this
we broadly underline, the essence of brigandage under the Code as a
crime of depredation wherein the unlawful acts are directed not only
against specific, intended or preconceived victims, but against any and
all prospective victims anywhere on the highway and whosoever they
may potentially be, is the same as the concept of brigandage which is
maintained in Presidential Decree No. 532, in the same manner as it
was under its aforementioned precursor in the Code and, for that matter,
under the old Brigandage Law. 25
Erroneous advertence is nevertheless made by the court below to the
fact that the crime of robbery committed by appellants should be covered
by the said amendatory decree just because it was committed on a
highway. Aside from what has already been stressed regarding the
absence of the requisite elements which thereby necessarily puts the
offense charged outside the purview and intendment of that presidential
issuance, it would be absurd to adopt a literal interpretation that any
unlawful taking of property committed on our highways would be
covered thereby. It is an elementary rule of statutory construction that
the spirit or intent of the law should not be subordinated to the letter
thereof. Trite as it may appear, we have perforce to stress the
elementary caveat that he who considers merely the letter of an
instrument goes but skin deep into its meaning, 26 and the fundamental
rule that criminal justice inclines in favor of the milder form of liability in unlawful taking (apoderamiento) and appropriation by the offender of the
case of doubt. things subject of the robbery. 31

If the mere fact that the offense charged was committed on a highway
would be the determinant for the application of Presidential Decree No.
532, it would not be farfetched to expect mischievous, if not absurd,
effects on the corpus of our substantive criminal law. While we eschew
resort to a reductio ad absurdum line of reasoning, we apprehend that
the aforestated theory adopted by the trial court falls far short of the
desideratum in the interpretation of laws, that is, to avoid absurdities and
conflicts. For, if a motor vehicle, either stationary or moving on a
highway, is forcibly taken at gun point by the accused who happened to
take a fancy thereto, would the location of the vehicle at the time of the
unlawful taking necessarily put the offense within the ambit of
Presidential Decree No. 532, thus rendering nugatory the categorical
provisions of the Anti-Carnapping Act of 1972? 27 And, if the scenario
is one where the subject matter of the unlawful asportation is large cattle
which are incidentally being herded along and traversing the same
highway and are impulsively set upon by the accused, should we apply
Presidential Decree No. 532 and completely disregard the explicit
prescriptions in the Anti-Cattle Rustling Law of 1974? 28
We do not entertain any doubt, therefore, that the coincidental fact that
the robbery in the present case was committed inside a car which, in the
natural course of things, was casually operating on a highway, is not
within the situation envisaged by Section 2(e) of the decree in its
definition of terms. Besides, that particular provision precisely defines
"highway robbery/brigandage" and, as we have amply demonstrated,
the single act of robbery conceived and committed by appellants in this
case does not constitute highway robbery or brigandage.
These foregoing elements are necessarily included in the information
filed against appellants which, as formulated, allege that they wilfully,
unlawfully and feloniously kidnapped and extorted ransom from the
complainant. Such allegations, if not expressly but at the very least by
necessary implication, clearly convey that the taking of complainant's
money and checks (inaccurately termed as ransom) was unlawful, with
intent to gain, and through intimidation. It cannot be logically argued that
such a charge of kidnapping for ransom does not include but could
negate the presence of any of the elements of robbery through
intimidation of persons. 32
WHEREFORE, the assailed judgment of the trial court is hereby SET
ASIDE and another one is rendered CONVICTING accused-appellants
Isabelo Puno y Guevarra and Enrique Amurao y Puno of robbery as
Punished in Paragraph 5 of Article 294, in relation to Article 295, of the
Revised Penal Code and IMPOSING on each of them an indeterminate
sentence of four (4) years and two (2) months of prision correccional, as
minimum, to ten (10) years of prision mayor, as maximum, and jointly
and severally pay the offended party, Maria del Socorro M. Sarmiento,
the amounts of P7,000.00 as actual damages and P20,000.00 as moral
damages, with costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Nocon and Campos, Jr., JJ., concur.
# Footnotes

Accordingly, we hold that the offense committed by appellants is simple

* Complainant testified under the name of "Corina Mutuc Sarmiento" but
robbery defined in Article 293 and punished under Paragraph 5 of Article
made the clarification that her baptismal name is "Maria del Socorro
294 of the Revised Penal Code with prision correccional in its maximum
Mutuc Sarmiento" (TSN, January 8, 1990, 4).
period to prision mayor in its medium period. Appellants have
indisputably acted in conspiracy as shown by their concerted acts 1 Original Record, 1.
evidentiary of a unity of thought and community of purpose. In the
2 Ibid., 72.
determination of their respective liabilities, the aggravating
circumstances of craft 29 shall be appreciated against both appellants 3 Ibid., 137; per Judge Jaime N. Salazar, Jr.
and that of abuse of confidence shall be further applied against appellant
4 Appellant's Brief, 5; Rollo, 47.
Puno, with no mitigating circumstance in favor of either of them. At any
rate, the intimidation having been made with the use of a firearm, the 5 Brief for the Plaintiff-Appellee; Rollo, 68-84.
penalty shall be imposed in the maximum period as decreed by Article
295 of the Code. 6 Ibid., 73-75.

We further hold that there is no procedural obstacle to the conviction of 7 TSN, August 13, 1990, 14-15.

appellants of the crime of simple robbery upon an information charging

8 Ibid., id., 16; September 5, 1990, 18, 25-26.
them with kidnapping for ransom, since the former offense which has
been proved is necessarily included in the latter offense with which they 9 Ibid., id., 11.
are charged. 30 For the former offense, it is sufficient that the elements
10 People vs. Geronimo, 100 Phil. 90 (1956).
of unlawful taking, with intent to gain, of personal property through
intimidation of the owner or possessor thereof shall be, as it has been, 11 People vs. Cadag, et al., 2 SCRA 388 (1961).
proved in the case at bar. Intent to gain (animus lucrandi) is presumed
12 TSN, August, 30, 1990, 11.
to be alleged in an information where it is charged that there was
13 For this reason, kidnapping and serious illegal detention are jointly
provided for in Article 267 under Chapter One, Title Nine, Book Two of
the Revised Penal Code on Crimes Against Liberty.
14 1 Phil. 165 (1902); see also U.S. vs. De Leon, 1 Phil. 163 (1902).
15 People vs. Remalante, 92 Phil. 48 (1952); People vs. Guerrero, 103
Phil. 1136 (1958); People vs. Ong, et al., 62 SCRA 174 (1975); People
vs. Ty Sui Wong, et al., 83 SCRA 125 (1978); People vs. Jimenez, et
al., 105 SCRA 721 (1981).
16 TSN, August 13, 1990, 21-22.
17 Keith vs. State, 120 Fla. 847, 163 So. 136; People vs. Akiran, et al.,
18 SCRA 239, 246 (1966).
18 Original Record, 136.
19 Rollo, 79.
20 U.S. vs. Ibaez, 19 Phil. 463 (1911). Art. 306 of the Code also
specifically refers to them as "highway robbers or brigands."
21 U.S. vs. Carlos, 15 Phil. 47 (1910).
22 Aquino, R.C., The Revised Penal Code, Volume Three, 1989 ed., p.
174, citing U.S. vs. Decusin, 2 Phil. 536 (1903) and U.S. vs. Maao, 2
Phil. 718 (1903).
23 U.S. vs. Feliciano, 3 Phil. 422 (1904).
24 Contemporanea expositio est optima et fortissima in lege (2 Inst. 11;
Black's Law Dictionary, Fourth Edition, 390).
25 Act 518, as amended by Act 2036.
26 Qui haeret in litera haeret in cortice (Co. Litt. 289; Broom, Max. 685;
Black's Law Dictionary, Fourth Edition, 1413).
27 Republic Act No. 6539.
28 Presidential Decree No. 533.
29 People vs. San Pedro, 95 SCRA 306 (1980); People vs. Masilang,
142 SCRA 673 (1986).
30 Section 4, Rule 120, 1985 Rules of Criminal Procedure.
31 U.S. vs. San Pedro, 4 Phil. 405 (1905); U.S. vs. alabot, 38 Phil. 698
(1918).
32 See Section 5, Rule 120, 1985 Rules of Criminal Procedure.
[G.R. No. 142773. January 28, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARLON
DELIM, LEON DELIM, MANUEL DELIM aliasBONG (At Large),
ROBERT DELIM (At Large), and RONALD
DELIM alias BONG, accused-appellants.
DECISION
CALLEJO, SR., J.:
Before the Court on automatic review is the Decision,[1] dated January
14, 2000, of the Regional Trial Court, Branch 46, Urdaneta City, finding
accused-appellants Marlon Delim, Leon Delim and Ronald Delim guilty
beyond reasonable doubt of the crime of murder and sentencing them
to suffer the supreme penalty of death. The court also ordered accused-
appellants to pay, jointly and severally, the heirs of the victim the sums
of P75,000.00 as moral damages and P25,000.00 as exemplary
damages.
Accused-appellants Marlon, Ronald and Leon, together with Manuel
alias Bong and Robert, all surnamed Delim, were indicted for murder
under an Information dated May 4, 1999 which reads:
That on or about January 23, 1999, in the evening at Brgy. Bila, Sison,
Pangasinan, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with short firearms barged-in and
entered the house of Modesto Delim and once inside with intent to
kill, treachery, evident premedidation (sic), conspiring with one another,
did then and there, wilfully, unlawfully and feloniously grab, hold, hogtie,
gag with a piece of cloth, brought out and abduct Modesto Delim,
accused Leon Delim and Manuel Delim stayed in the house guarded
and prevented the wife and son of Modesto Delim from helping the latter,
thereafter with abuse of superior strength stabbed and killed said
Modesto Delim, to the damage and prejudice of his heirs.
CONTRARY to Article 248 of the Revised Penal Code, as amended by
Republic Act No. 7659.[2]
Only accused-appellants Marlon (Bongbong), Leon and Ronald, all
surnamed Delim, were apprehended. Accused Robert and Manuel
remain at-large.
At their arraignment, Marlon, Ronald and Leon, with the assistance of
their counsel, pleaded not guilty to the charge.
At the trial, the prosecution established the following relevant facts[3]
Marlon, Manuel and Robert Delim are brothers. They are the uncles of
Leon Delim and Ronald Delim. Modesto Manalo Bantas, the victim, was
an Igorot and a carpenter. He took the surname Delim after he was
adopted by the father of Marlon, Manuel and Robert.However, Modestos
wife, Rita, an illiterate, and their 16-year old son, Randy, continued using
Manalo Bantas as their surname. Modesto, Rita and Randy considered
Marlon, Robert, Ronald, Manuel and Leon as their relatives. Manuel and
Leon were the neighbors of Modesto.Marlon, Robert and Ronald used
to visit Modesto and his family. Modesto and his family and the Delim The cadaver was autopsied by Dr. Maria Fe L. De Guzman who
kins resided in Barangay Bila, Sison, Pangasinan. prepared her autopsy report, which reads:

On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and SIGNIFICANT EXTERNAL FINDINGS:
Randy were preparing to have their supper in their home.Joining them
- Body - both upper extremities are flexed
were Modesto and Ritas two young grandchildren, aged 5 and 7 years
old. They were about to eat their dinner when Marlon, Robert and - both lower extremities are flexed
Ronald suddenly barged into the house and closed the door. Each of the
three intruders was armed with a short handgun.Marlon poked his gun - (+) body decomposition

at Modesto while Robert and Ronald simultaneously grabbed and hog-

- (+) worms coming out from injuries
tied the victim. A piece of cloth was placed in the mouth of
Modesto.[4] Marlon, Robert and Ronald herded Modesto out of the - 10 x 10 ml. GSW, pre-auricular area, right
house on their way towards the direction of Paldit, Sison,
- 20 x 20 ml. GSW, mandibular areas, right
Pangasinan. Rita and Randy were warned by the intruders not to leave
the house. Leon and Manuel, who were also armed with short - 10 x 10 ml. GSW, maxillary area, right
handguns, stayed put by the door to the house of Modesto and ordered
- 10 x 10 ml. GSW, below middle nose, directed upward (POE)
Rita and Randy to stay where they were. Leon and Manuel left the house
of Modesto only at around 7:00 a.m. the following day, January 24, 1999. - 30 x 40 ml. GSW, mid parieto occipital area (POEx)

As soon as Leon and Manuel had left, Randy rushed to the house of his - 2 x 1 cms. lacerated wound, right cheek
uncle, Darwin Nio, at Sitio Labayog, informed the latter of the incident
the night before and sought his help for the retrieval of Modesto. Randy - 1 x 1 cm. stabbed wound, axillary area, left

was advised to report the matter to the police authorities.However,

- 1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm
Randy opted to first look for his father. He and his other relatives
scoured the vicinity to locate Modesto to no avail. They proceeded to - 1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm
Paldit, Sison, Pangasinan, around 200 meters away from Modestos
- 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm
house, to locate Modesto but failed to find him there. On January 25,
1999, Randy and his relatives returned to the housing project in Paldit, - 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm
Sison, Pangasinan to locate Modesto but again failed to find him
- #3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect,
there. On January 26, 1999, Randy reported the incident to the police
M/3rd, left forearm
authorities.

- 1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm

At around 3:00 in the afternoon of January 27, 1999, Randy, in the
company of his relatives, Nida Pucal, Pepito Pucal, Bernard Osias and - 10 x 6 cms. Inflamed scrotum
Daniel Delim, returned to the housing project in Paldit, Sison,
Pangasinan and this time they found Modesto under thick bushes in a - penis inflamed
grassy area. He was already dead. The cadaver was bloated and in the
SIGNIFICANT INTERNAL FINDINGS:
state of decomposition. It exuded a bad odor. Tiny white worms
swarmed over and feasted on the cadaver. Randy and his relatives - no significant internal findings
immediately rushed to the police station to report the incident and to
CAUSE OF DEATH:
seek assistance.

GUN SHOT WOUND, HEAD.[7]

When informed of the discovery of Modestos cadaver, the local chief of
police and SPO2 Jovencio Fajarito and other policemen rushed to the
scene and saw the cadaver under the thick bushes. Pictures were taken
of the cadaver.[5] Rita and Randy divulged to the police investigators
the names and addresses of Marlon, Ronald, Robert, Leon and Manuel,
whom they claimed were responsible for the death of Modesto. Rita and
Randy were at a loss why the five malefactors seized Modesto and killed
The stab wounds sustained by Modesto on his left arm and forearm were
defensive wounds. The police investigators were able to confirm that
Marlon, Ronald, Robert, Leon and Manuel had no licenses for their
firearms.[8]
Records of the PNP Criminal Investigation and Detection Group in

him. Rita and Randy gave their respective sworn statements to the Baguio City show that Marlon had pending cases for robbery in the

police investigators.[6] Police authorities proceeded to arrest Marlon, Regional Trial Court of Baguio City in Criminal Case No. 16193-R, and

Ronald, Robert, Manuel and Leon but failed to find them in their for robbery in band in Criminal Cases Nos. 9801 and 9802 pending with

respective houses. The police officers scoured the mountainous parts of the Regional Trial Court in Urdaneta, Pangasinan.[9]

Barangays Immalog and Labayog to no avail.

To exculpate themselves, Marlon, Ronald and Leon interposed denial
and alibi.[10]
Ronald claimed that on January 23, 1999, he, his wife and children, his
mother, his brothers and sisters were in their house at Asan Norte,
Sison, Pangasinan about two kilometers away from Modestos house.
He denied having been in the house of Modesto on January 23, 1999
and of abducting and killing him. He theorized that Rita and Randy
falsely implicated him upon the coaching of Melchor Javier who allegedly
had a quarrel with him concerning politics.
Leon for his part averred that on January 23, 1999, he was in the house
of his sister, Hermelita Estabillo at No. 55-B, Salet, Laoag City, Ilocos
Norte where he had been living since 1997 after leaving Asan Norte,
Sison, Pangasinan. Since then, he had been working for Sally Asuncion
at a hollow-block factory in that city where he was a stay-in worker.
Sally Asuncion corroborated Leons alibi. She testified that Leon Delim
never went home to his hometown in Pangasinan during his
employment. His sister, Hermelita Estabillo, likewise averred that on
January 23, 1999, his brother was at her house to give her his
laundry.She claimed that the distance between Laoag City and Bila,
Sison, Pangasinan can be traversed in six hours by bus. Leon presented
a Barangay Certificate to prove that he was a resident of Laoag City from
January 1998 up to February 1999.[11]
Marlon asserted that he was on vacation in Dumaguete City from
December 26, 1998 up to January 29, 1999. During his stay there, he
lived with his sister, Francisca Delim. Upon his return to Manila on
January 29, 1999, he immediately proceeded to Baguio to visit his
cousin. Marlon denied setting foot in Bila, Sison, Pangasinan after his
sojourn in Dumaguete City.
The trial court rendered judgment finding accused-appellants guilty of
murder. The dispositive portion of the trial courts decision reads:
WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable
doubt is hereby rendered against Ronald Delim, Marlon Delim and Leon
Delim (for) the commission of Aggravated Murder, an offense defined
and penalized under Article 248 of the Revised Penal Code, as
amended by R.A. 7659 and the Court sentences Marlon Delim, Ronald
Delim and Leon Delim to suffer the penalty of DEATH, to be
implemented in the manner as provided for by law; the Court likewise
orders the accused, jointly and solidarily, to indemnify the heirs of
Modesto Delim the sum of P75,000.00 as moral damages, plus the
amount of P25,000.00 as exemplary damages.
The Branch Clerk of Court is hereby ordered to transmit the entire
records of this case to the Honorable Supreme Court, and to prepare
the mittimus fifteen (15) days from date of promulgation.
The Jail Warden, Bureau of Jail Management and Penology, Urdaneta
District Jail, Urdaneta City is hereby ordered to transmit the persons of
Marlon, Ronald and Leon, all surnamed Delim to the New Bilibid Prisons,
Muntinlupa City, fifteen days from receipt of this decision.
SO ORDERED.[12]
The trial court appreciated treachery as a qualifying circumstance and
of taking advantage of superior strength, nighttime and use of
unlicensed firearms as separate of aggravating circumstances in the
commission of the crime. Marlon, Ronald and Leon, in their appeal brief,
assail the decision alleging that:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE
CRIME OF MURDER.
II
THE COURT A QUO GRAVELY ERRED IN FINDING THAT
CONSPIRACY EXISTED IN THE CASE AT BAR.
III
THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT
AND CREDENCE TO ACCUSED-APPELLANTS DEFENSE OF
ALIBI.[13]
Before resolving the merits of the case at bar, we first resolve the matter
of whether the crime charged in the Information is murder or
kidnapping. During the deliberation, some distinguished members of the
Court opined that under the Information, Marlon, Ronald and Leon are
charged with kidnapping under Article 267 of the Revised Penal Code
and not with murder in its aggravated form in light of the allegation
therein that the accused willfully, unlawfully and feloniously grab(bed),
h(e)ld, hog-tie(d), gag(ged), with a piece of cloth, brought out and
abduct(ed) Modesto Delim (while) Leon Delim and Manuel Delim stayed
in the house (and) guarded and prevented the wife and son of Modesto
Delim from helping the latter. They submit that the foregoing allegation
constitutes the act of deprivation of liberty of the victim, the gravamen in
the crime of kidnapping. They contend that the fact that the Information
went further to charge accused with the killing of the victim should be of
no moment, the real nature of the criminal charge being determined not
from the caption or the preamble of the Information nor from the
specification of the law alleged to have been violated these being
conclusions of law but by the actual recital of facts in the complaint or
information. They further submit that since the prosecution failed to
prove motive on the part of Marlon, Ronald and Leon to kill Modesto,
they are not criminally liable for the death of the victim but only for
kidnapping the victim.
It bears stressing that in determining what crime is charged in an
information, the material inculpatory facts recited therein describing the
crime charged in relation to the penal law violated are controlling. Where
the specific intent of the malefactor is determinative of the crime charged
such specific intent must be alleged in the information and proved by the
prosecution. A decade ago, this Court held in People v. Isabelo Puno,
et al.,[14] that for kidnapping to exist, there must be indubitable proof
that the actual specific intent of the malefactor is to deprive the offended
party of his liberty and not where such restraint of his freedom of action
is merely an incident in the commission of another offense primarily
intended by the malefactor. This Court further held:
x x x. Hence, as early as United States vs. Ancheta, and consistently
reiterated thereafter, it has been held that the detention and/or forcible
taking away of the victims by the accused, even for an appreciable
period of time but for the primary and ultimate purpose of killing them,
holds the offenders liable for taking their lives or such other offenses
they committed in relation thereto, but the incidental deprivation of the
victims liberty does not constitute kidnapping or serious illegal
detention.[15]
If the primary and ultimate purpose of the accused is to kill the victim,
the incidental deprivation of the victims liberty does not constitute the
felony of kidnapping but is merely a preparatory act to the killing, and
hence, is merged into, or absorbed by, the killing of the victim.[16]The
crime committed would either be homicide or murder.
What is primordial then is the specific intent of the malefactors as
disclosed in the information or criminal complaint that is determinative
of what crime the accused is charged with--that of murder or kidnapping.
Philippine and American penal laws have a common thread on the
concept of specific intent as an essential element of specific intent
crimes. Specific intent is used to describe a state of mind which exists
where circumstances indicate that an offender actively desired certain
criminal consequences or objectively desired a specific result to follow
his act or failure to act.[17] Specific intent involves a state of the mind. It
is the particular purpose or specific intention in doing the prohibited
act. Specific intent must be alleged in the Information and proved by the
state in a prosecution for a crime requiring specific
intent.[18] Kidnapping and murder are specific intent crimes.
Specific intent may be proved by direct evidence or by circumstantial
evidence. It may be inferred from the circumstances of the actions of the
accused as established by the evidence on record.[19]
Specific intent is not synonymous with motive. Motive generally is
referred to as the reason which prompts the accused to engage in a
particular criminal activity. Motive is not an essential element of a crime
and hence the prosecution need not prove the same. As a general rule,
proof of motive for the commission of the offense charged does not show
guilt and absence of proof of such motive does not establish the
innocence of accused for the crime charged such as murder.[20] The
history of crimes shows that murders are generally committed from
motives comparatively trivial.[21] Crime is rarely rational. In murder, the
specific intent is to kill the victim. In kidnapping, the specific intent is to
deprive the victim of his/her liberty. If there is no motive for the crime,
the accused cannot be convicted for kidnapping.[22] In kidnapping for
ransom, the motive is ransom. Where accused kills the victim to avenge
the death of a loved one, the motive is revenge.
In this case, it is evident on the face of the Information that the specific
intent of the malefactors in barging into the house of Modesto was to kill
him and that he was seized precisely to kill him with the attendant
modifying circumstances. The act of the malefactors of abducting
Modesto was merely incidental to their primary purpose of killing
him. Moreover, there is no specific allegation in the information that the
primary intent of the malefactors was to deprive Modesto of his freedom
or liberty and that killing him was merely incidental to
kidnapping.[23] Irrefragably then, the crime charged in the Information
is Murder under Article 248 of the Revised Penal Code and not
Kidnapping under Article 268 thereof.
The threshold issue that now comes to fore is whether or not the
prosecution mustered the requisite quantum of evidence to prove that
Marlon, Ronald and Leon are guilty of murder.
In criminal prosecutions, the prosecution is burdened to prove the guilt
of the accused beyond cavil of doubt. The prosecution must rely on the
strength of its own evidence and not on the weakness of the evidence
of the accused. The proof against the accused must survive the test of
reason; the strongest suspicion must not be permitted to sway
judgment.[24]
In the case at bar, the prosecution was burdened to prove the corpus
delicti which consists of two things: first, the criminal act and second,
defendants agency in the commission of the act.[25] Wharton says
that corpus delicti includes two things: first, the objective; second, the
subjective element of crimes.[26] In homicide (by dolo) and in murder
cases, the prosecution is burdened to prove: (a) the death of the party
alleged to be dead; (b) that the death was produced by the criminal act
of some other than the deceased and was not the result of accident,
natural cause or suicide; and (c) that defendant committed the criminal
act or was in some way criminally responsible for the act which produced
the death.[27] To prove the felony of homicide or murder, there must be
incontrovertible evidence, direct or circumstantial, that the victim was
deliberately killed (with malice); in other words, that there was intent to
kill. Such evidence may consist inter alia in the use of weapons by the
malefactors, the nature, location and number of wounds sustained by
the victim and the words uttered by the malefactors before, at the time
or immediately after the killing of the victim. If the victim dies because of
a deliberate act of the malefactor, intent to kill is conclusively presumed.
The prosecution is burdened to prove corpus delicti beyond reasonable
doubt either by direct evidence or by circumstantial or presumptive
evidence.[28]
In the case at bar, the prosecution adduced the requisite quantum of
proof of corpus delicti. Modesto sustained five (5) gunshot wounds.He
also sustained seven (7) stab wounds,[29] defensive in nature. The use
by the malefactors of deadly weapons, more specifically handguns and
knives, in the killing of the victim as well as the nature, number and
location of the wounds sustained by said victim are evidence of the intent
by the malefactors to kill the victim with all the consequences flowing
therefrom.[30] As the State Supreme Court of Wisconsin held in Cupps
v. State:[31]
This rule, that every person is presumed to contemplate the ordinary and
natural consequences of his own acts, is applied even in capital
cases. Because men generally act deliberately and by the determination
of their own will, and not from the impulse of blind passion, the law
presumes that every man always thus acts, until the contrary
appears. Therefore, when one man is found to have killed another, if the
circumstances of the homicide do not of themselves show that it was not
Q You said we, who were your companions eating then at that time?
A My father, my mother and the two children and myself, sir.
Q While taking your supper that time, do you recall if there was anything
unusual that happened at that time?
A When we were about to start to eat three armed men entered our

intended, but was accidental, it is presumed that the death of the house.

deceased was designed by the slayer; and the burden of proof is on him
Q Do you know these three armed men who entered your house?
to show that it was otherwise.
A Yes, sir.
The prosecution did not present direct evidence to prove the authors of
the killing of Modesto. It relied on circumstantial evidence to discharge Q Who are they, name them one by one?
its burden of proving the guilt of accused-appellants of
A Marlon Delim, Robert Delim and Ronald Delim.
murder. Circumstantial evidence consists of proof of collateral facts and
circumstances from which the existence of the main fact may be inferred Q Are these three persons inside the courtroom now?
according to reason and common experience.[32] What was once a rule
A Two of them, sir.
of account respectability is now entombed in Section 4, Rule 133 of the
Revised Rules of Evidence which states that circumstantial evidence, Q Who are these two who are inside the courtroom?
sometimes referred to as indirect or presumptive evidence, is sufficient
as anchor for a judgment of conviction if the following requisites concur: A Marlon and Ronald, sir.

x x x if (a) there is more than one circumstance; (b) the facts from which Q Will you please stand up and point to them?

the inferences are derived have been established; and (c) the
A (Witness is pointing to a person seated on the bench inside the
combination of all the circumstances is such as to warrant a finding of
courtroom, who, when his name was asked answered Marlon
guilt beyond reasonable doubt.[33]
Delim.Likewise, witness is pointing unto a person seated on the bench

The prosecution is burdened to prove the essential events which inside the courtroom, who, when his name was asked he answered

constitute a compact mass of circumstantial evidence, and the proof of Ronald Delim).

each being confirmed by the proof of the other, and all without exception
Q You said that these two armed persons entered your house, what kind
leading by mutual support to but one conclusion: the guilt of accused for
of arm were they carrying at that time?
the offense charged.[34] For circumstantial evidence to be sufficient to
support a conviction, all the circumstances must be consistent with each A Short handgun, sir.
other, consistent with the hypothesis that accused is guilty and at the
Q When these three armed persons whom you have mentioned, armed
same time inconsistent with the hypothesis that he is innocent, and with
with short firearms, what did they do then when they entered your
every other rational hypothesis except that of guilt.[35] If the prosecution
house?
adduced the requisite circumstantial evidence to prove the guilt of
accused beyond reasonable doubt, the burden of evidence shifts to the A They took my father, sir.
accused to controvert the evidence of the prosecution.
Q Who took your father?
In the present case, the prosecution mustered the requisite quantum of
A Marlon Delim, Robert Delim and Ronald Delim, sir.
circumstantial evidence to prove that accused-appellants, in
confabulation with their co-accused, conspired to kill and did kill Q When these three persons took your father, what did you do then?
Modesto:
A None, sir.
1. Randy Bantas testified that Marlon and Ronald barged into the house
of Modesto, each armed with a handgun. Marlon poked his gun on COURT: How did they get your father?
Modesto while Ronald hog-tied Modesto. They then seized Modesto
A They poked a gun and brought him outside the house, sir.
and herded him out of his house:
FISCAL TOMBOC: Who poked a gun?
FISCAL TOMBOC: What were you doing then at that time in your
house? A Marlon Delim, sir.

A We were eating, sir. Q Again, Mr. Witness, will you point to the person who poked a gun?
A (Witness is pointing to Malon (sic) Delim, one of the accused).
Q After bringing your father out from your house, what transpired next?
A Manuel Delim and Leon Delim said, Stay in your house, and guarded
us.
COURT: You said your father was taken out, who?
A Marlon, Robert and Ronald, sir.
FISCAL TOMBOC: Where did these three persons bring your father?
A I do not know where they brought my father, sir.
COURT: Was your father taken inside your house or outside?
A Inside our house, sir.
Q You said that Marlon poked a gun at your father, is that correct?
A Yes, sir.
Q What did Ronald and Robert do while Marlon was poking his gun to
your father?
A Ronald and Robert were the ones who pulled my father out, sir.[36]
Randys account of the incident was corroborated by his mother, Rita,
who testified:
PROSECUTION TOMBOC: You said during the last hearing that on
January 23, 1999 at around 6:30 in the evening while preparing for your
supper three (3) armed men entered inside your house, who were these
three (3) men who entered your house?
A I know, Marlon, Bongbong and Robert, sir.
ATTY. FLORENDO: We just make of record that the witness is taking
her time to answer, Your Honor.
PROSECUTOR TOMBOC: You said that Marlon Delim, Robert Delim
and Bongbong entered your house, are these three (3) persons who
entered your house in Court now?
A They are here except the other one, sir.
Q Will you please step down and point to the persons who entered your
house?
A Witness is pointing to Marlon Delim, Robert Delim is not in Court and
Bongbong is Ronald Delim.
Q After these three (3) armed men entered your house, what happened
then?
A My husband was brought out, sir.
Q What is the name of your husband?
A Modesto Delim, sir.[37]
2. Randy said that when Marlon and Ronald barged into their house,
Leon, armed with a handgun, acted as a lookout when he stood guard
by the door of the house of Modesto and remained thereat until 7:00
a.m. of the next day:
FISCAL TOMBOC: When your father was pulled out from your house by
these three persons, what did you and your mother do while these three
persons were taking out of your house?
A We did not do anything because Manuel and Leon Delim guarded us.
COURT: Where, in your house?
A Yes, sir.
FISCAL TOMBOC: From that very time that your father was pulled out
by these three persons Marlon, Robert and Ronal (sic), where were
Leon and Manuel then?
A They were at the door, sir.
COURT: Why do you know that they were guarding you?
A Because they were at the door, sir.
FISCAL TOMBOC: What was their appearance that time when these
two persons were guarding you, these Leon and Manuel?
A They were armed, sir.
Q What do you mean by armed?
A They have gun, sir.
Q What kind of firearm?
A Short firearm, sir.
Q By the way, where are these Leon and Manuel now, if you know?
A Leon is here, sir.
Q About Manuel?
A None, sir.
Q Will you please stand up and point at Leon, Mr. Witness?
A (Witness pointed to a person seated on the bench inside the
courtroom, who when his name was asked, answered, Leon Delim).[38]
3. Rita and Randy were ordered by Leon not to leave the house as
Ronald and Marlon left the house with Modesto in tow. Rita and Randy
were detained in their house up to 7:00 a.m. of January 24, 1999 to
prevent them from seeking help from their relatives and police
authorities.
4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m.,
the cadaver of Modesto was found under the thick bushes in a grassy
area in the housing project located about 200 meters away from the
house of Modesto. The cadaver exuded bad odor and was already in
the state of decomposition:
Q So what did you do then on January 27, where did you look for your
father?
A The same place and at 3:00 oclock P.M., we were able to find my
father.
COURT: Where?
A At the housing project at Paldit, Sison, Pangasinan, sir.
FISCAL TOMBOC: Do you have companions at that time when you
were able to look for your father on January 27, 1999 at 3:00 oclock
P.M.?
A Yes, sir.
Q Who?
A My Aunt, sir.
Q What is the name of your Aunt?
A Nida Pucal, sir.
Q Who else?
A Pepito Pucal, Bernard Osias and Daniel Delim, sir.
COURT: When you found your father, what was his condition?
A He was dead, sir.
COURT: Go ahead.
FISCAL TOMBOC: You said that he was already dead, what was his
appearance then when you saw him dead?
A He has bad odor, sir, in the state of decompsition (sic).[39]
The testimony of Randy was corroborated by Dr. de Guzman who
testified that the cadaver of Modesto was in a state of decomposition,
with tiny white worms crawling from his wounds, and that his penis and
scrotum were inflamed. The victim sustained five gunshot wounds and
defensive wounds on the left arm and forearm:
PROS. TOMBOC:
Q Will you please tell the Honorable Court your findings, Doctora?
WITNESS:
A First finding: Upon seeing the cadaver, this is the position of the body,
both upper extremities are flexed and both lower extremities are flexed
(Nakakukot).
Q How many days had already elapsed when you autopsied the cadaver
of the victim, Doctora?
A Four (4) days upon the recovery of the body, sir.
Q And what was your findings Doctora?
A The body was already under the state of decomposition, sir, with foul
odor and there were so many worms coming out from the injuries, there
were tiny white worms, sir.
Q What else did you observe Doctora?
A Upon seeing the cadaver I asked the relative to refer it to the NBI
sir. Actually the victim was an igorot (sic) and they have tradition that
they will bury immediately. Whether they like it or not I should do it, sir.
Q What else Doctora?
A And the penis was inflammed (sic), the scrotum was also inflammed
(sic), sir.
And for the head injuries there was 10 x 10 ml. GSW pre-auricular area,
right; there was also 20 ml x 20 ml. GSW, mandibular area, right; I
cannot also determine the exit.
Q So there were two (2) gunshot wounds (GSW) Doctora?
A Yes sir.
And there was also 10 x 10 ml. GSW, maxillary area, right; there was
also 10 x 10 ml. GSW, below middle nose, directed upward (POE); and
there was also 30 x 40 ml. GSW, mid parieto-occipital area (POEx).
Q How many all in all are the gunshot wound?
A Five (5) sir.
And also there was 2 x 1 cms. Lacerated wound, right cheek; 1 x 1 cm.
stabbed wound, axillary area, left; 1 x 1 cm. stabbed wound, lateral
aspect M/3rd, left arm; 1 x 1 cm. stabbed wound lateral aspect D/3rd,
left arm; 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm; 1 x 1
cm. stabbed wound, medial aspect D/3rd, left arm; and #3; 1 x 1 cm. in
line with each other, stabbed wound, medial aspect, M/3rd, left forearm.
Q How many stabbed wound are there Doctora?
A There were seven (7) stabbed wounds, sir.
Q Those stabbed wounds were defensive wounds, Doctora?
A Yes sir.[40]
The state of decomposition of the cadaver, with tiny white worms
swarming and feasting on it and the distention of his scrotum and penis
are evidence that the cadaver was in the stage of putrefaction and that
the victim had been dead for a period ranging from three to six
days.[41] Admittedly, there are variant factors determinative of the exact
death of the victim. An equally persuasive authority states:
Chronological Sequence of Putrefactive Changes Occurring in Tropical
Region:
Time Since Death Condition of the Body
48 hours Ova of flies seen.
Trunk bloated. Face discolored and swollen. Blisters present.
Moving maggots seen.
72 hours Whole body grossly swollen and
disfigured. Hair and nails loose.
Tissues soft and discolored.[42]
The lapse of two or three to four days from the seizure of the victim in
the evening of January 23, 1999 to the discovery of his cadaver which
was already in the state of putrefaction in the afternoon of January 27,
1999, about 200 meters away from his house, is consistent with and
confirmatory of the contention of the prosecution that the victim was
killed precisely by the very malefactors who seized him on January 23,
1999.
5. When police authorities went to the residences of all the malefactors,
the latter had flown the coop and were nowhere to be found:
COURT: In connection with this case, you investigated the wife and son
of Modesto Delim?
A Yes, sir.
Q In the course of the investigation did you come to know who were the
suspects?
A Yes, sir, she elaborated that the suspects were their neighbors,
Marlon Delim and his brothers, sir.
Q What are the names of the brothers?
A Manuel Delim, Leon Delim I cannot remember the others, sir.
Q By reason of that information were you able to apprehend any of them
for investigation?
A No, sir.
Q Why?
A Because when we were dispatched by the Chief of Police no Delim
brothers could be found, they all left the place, sir.
Q In what place did you look for the brothers Delim?
A Within the vicinity, sir.
Q In what place?
A Brgy. Bila and the place where the crime was committed in Brgy. Bila
and the place where the cadaver was found in Paldit, sir.
Q Where did you look for the Delim brothers?
A Nearby barangays, Immalog, sir.
Q Wherelse (sic)?
A Labayog, Sison, sir.
Q Wherelse?
A In mountainous part of Immalog, part of Tuba Benguet, sir.
Q What was the result?
A Negative result, sir.[43]
6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald
used to go to the house of Modesto and Rita:
COURT: These Leon and Manuel Delim are they known to you prior to
that day, January 23, 1999?
A Yes, sir, I know them.
Q Why do you know Manuel and Leon prior to January 23, 1999?
A They are my neighbors, sir.
Q How about Marlon, Robert and Bongbong do you know them before
January 23, 1999?
A I know them, sir.
Q Why do you know them?
A They used to go to our house, sir.
Q I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all
Delims and your husbands name is Modesto Delim are they related with
each other?
A Yes, sir.[44]
The sudden disappearance of Marlon, Ronald and Leon from their
houses in Barangay Bila, Sison is strong circumstantial evidence of their
guilt for the death of Modesto. Although flight after the commission of an
offense does not create a legal presumption of guilt, nevertheless, the
same is admissible in evidence against them and if not satisfactorily
explained in a manner consistent with their innocence, will tend to show
that they, in fact, killed Modesto.[45]
It is true that the prosecution failed to prove motive on the part of the
malefactors to abduct and kill Modesto. Indeed, Randy and Rita testified
that they were not aware of any misunderstanding or grudge between
Modesto on the one hand and Marlon, Ronald and Leon and their co-
accused on the other before the incident, or any motivation on the part
of the three malefactors to cause harm to Modesto.Nonetheless, it
cannot thereby be concluded that a person or persons other than
Marlon, Ronald and Leon were criminally responsible for the death of
the victim. It is a matter of judicial notice that nowadays persons have
killed or committed serious crimes for no reason at all.[46]In this case,
the inscrutable facts are that Marlon and Ronald, each of whom was
armed with a handgun, forcibly took Modesto from his house at the
gunpoint, hogtied, put a piece of cloth in his mouth and after Ronald and
Marlon had left the house with Modesto in tow, Rita heard three
gunshots or so and the cadaver of Modesto was found concealed under
the bushes and already in a state of putrefaction in the afternoon of
January 27, 1999. Modesto sustained several gunshot wounds and died
because of a gunshot wound on the head. The criminal acts and the
connection of Marlon, Ronald and Leon with said acts having been
proved by the prosecution beyond reasonable doubt, the act itself
furnishes the evidence, that to its perpetration there was some causes
or influences moving the mind.[47] The remarkable tapestry intricately
woven by the prosecution should not be trashed simply because the
malefactors had no motive to kill Modesto.
Ranged against the evidence of the prosecution, the burden of evidence
shifted on Marlon, Ronald and Leon to rebut the same and explain what
happened to the victim after taking him from his house in the evening of
January 23, 1999. They may have freed the victim shortly after taking
him, or the victim may have been able to escape and that thereafter a
person or some other persons may have killed him. However, Marlon,
Ronald and Leon failed to give any explanation. Instead, they merely
denied having seized and killed the victim and interposed alibi as their
defense.
Leon is equally guilty for the death of Modesto because the evidence on
record shows that he conspired with accused-appellants Marlon and
Ronald and accused Robert and Manuel in killing the victim.
There is conspiracy when two or more persons agree to commit a felony
and decide to commit it.[48] Conspiracy must be proven with the same
quantum of evidence as the felony itself, more specifically by proof
beyond reasonable doubt. Conspiracy is not presumed. It may be
proved by direct evidence or by circumstantial evidence. Conspiracy is
deducible from the acts of the malefactors before, during and after the
commission of the crime which are indicative of a joint purpose,
concerted action and concurrence of sentiment.[49] To establish
conspiracy, it is not essential that there be proof as to the existence of a
previous agreement to commit a crime.[50] It is sufficient if, at the time
of the commission of the crime, the accused had the same purpose and
were united in its execution. If conspiracy is established, the act of one
is deemed the act of all. It matters not who among the accused actually
shot and killed the victim.[51] This is based on the theory of a joint or
mutual agency ad hoc for the prosecution of the common plan:
x x x The acts and declarations of an agent, within the scope of his
authority, are considered and treated as the acts and declarations of his
principal. What is so done by an agent, is done by the principal through
him, as his mere instrument. Franklin Bank of Baltimore v. Pennsylvania
D. & M. Steam Navigation Co., 11 G. & J. 28, 33 (1839). If the conspiracy
be proved to have existed, or rather if evidence be given to the jury of
its existence, the acts of one in furtherance of the common design are
the acts of all; and whatever one does in furtherance of the common
design, he does as the agent of the co-conspirators. R. v. OConnell, 5
St.Tr. (N.S.) 1, 710.[52]
In the eyes of the law, conspirators are one man, they breathe one
breath, they speak one voice, they wield one arm and the law says that
the acts, words and declaration of each, while in the pursuit of the
common design, are the acts, words and declarations of all.[53]
In the case at bar, Marlon, Ronald and Leon arrived together in the
house of Modesto, each armed with a handgun. Marlon and Ronald
barged into said house while Leon stood guard by the door thereof. After
Marlon and Ronald had left with Modesto in tow, Leon stood by the door
and warned Randy and Rita not to leave the house. Leon stood guard
by the door of the house until 7:00 a.m. of January 24, 1999 when he
left the house. The overt acts of all the malefactors were so
synchronized and executed with precision evincing a preconceived plan
or design of all the malefactors to achieve a common purpose, namely
the killing of Modesto. Irrefragably, the tasks assigned to Leon in the
commission of the crime were (a) to act as a lookout; (b) to ensure that
Rita and Randy remain in their house to prevent them from seeking
assistance from police authorities and their relatives before their mission
to kill Modesto shall have been a fait accompli as well as the escape of
Marlon and Ronald.[54] Patently, Leon, a lookout for the group, is guilty
of the killing of Modesto.[55] Leon may not have been at the situs
criminis when Modesto was killed by Marlon and Ronald nevertheless
he is a principal by direct participation.[56] If part of a crime has been
committed in one place and part in another, each person concerned in
the commission of either part is liable as principal. No matter how wide
may be the separation of the conspirators, if they are all engaged in a
common plan for the execution of a felony and all take their part in
furtherance of the common design, all are liable as principals. Actual
presence is not necessary if there is a direct connection between the
actor and the crime. [57]
Ronald, Marlon and Leon, however, assail the testimonies of Randy and
Rita alleging that the same were marred by inconsistencies:
1. Randy initially stated that he did not know where the assailants
brought his father. Later however, Randy claimed that the malefactors
proceeded to the direction of Paldit, Sison, Pangasinan;
2. Rita on the other hand identified Leon, Marlon and Ronald as those
who barged into their house. She later changed her testimony and
declared that it was Robert, together with Marlon and Ronald who
barged into the house;
3. Rita likewise testified that two men stood outside the house guarding
them. Later, she testified that after the three men brought out the victim,
the two other accused entered the house and guarded them there;
4. Rita claimed that she went out to look for her husband the next day,
or on January 25, 1999, and she was accompanied by her son
Randy.However, Randy testified that he was alone when he looked for
his father from January 24 to 26, 1999.[58]
We do not agree with Marlon, Ronald and Leon. Case law has it that the
findings of facts of the trial court, its calibration of the collective
testimonies of witnesses and its assessment of the probative weight
thereof and its conclusions culled from its findings are accorded by the
appellate court great respect, if not conclusive effect, because of its
unique advantage of observing at close range the demeanor,
deportment and conduct of the witnesses as they give their testimonies
before the court. In the present case, the trial court gave credence and
full probative weight to the testimonies of the witnesses of the
prosecution. Moreover, there is no evidence on record that Randy and
Rita were moved by any improper or ill motive in testifying against the
malefactors and the other accused; hence, their testimonies must be
given full credit and probative weight.[59] The inconsistencies in the
testimonies of Rita and Randy do not render them incredible or their
testimonies barren of probative weight. It must be borne in mind that
human memory is not as unerring as a photograph and a persons sense
of observation is impaired by many factors including the shocking effect
of a crime. A truth-telling witness is not always expected to give an error-
free testimony considering the lapse of time and the treachery of human
memory. What is primordial is that the mass of testimony jibes on
material points, the slight clashing of statements dilute neither the
witnesses credibility nor the veracity of his testimony.[60] Variations on
the testimony of witnesses on the same side with respect to minor,
collateral or incidental matters do not impair the weight of their united
testimony to the prominent facts.[61] Inconsistencies on minor and trivial
matters only serve to strengthen rather than weaken the credibility of
witnesses for they erase the suspicion of rehearsed testimony.[62]
Moreover, the testimony of a witness should be construed in its entirety
and not in truncated terms and the true meaning of answers to isolated
questions propounded to a witness is to be ascertained by due
consideration of all the questions propounded to the witness and his
answers thereto.[63]
Randys testimony that he did know where the malefactors brought his
father is not inconsistent with his testimony that Ronald and Marlon
brought his father towards the direction of Paldit, Sison,
Pangasinan. Randy may not have known the destination of accused-
appellants but he saw the direction to which they went. While it may be
true that when asked to identify the three who barged into their house,
Rita pointed to Leon as one of them, however, Rita had been consistent
throughout her testimony that those who barged into their house were
Ronald and Marlon. Leons counsel never cross-examined Rita and
impeached her testimony on her identification of Leon as one of those
who barged into their house to give her an opportunity to explain her
perceived inconsistency conformably with Rule 132, Section 13 of the
Revised Rules of Evidence which reads:
Before a witness can be impeached by evidence that he has made at
other times statements inconsistent with his present testimony, the
statements must be related to him, with the circumstances of the times
and places and the persons present, and he must be asked whether he
made such statements, and if so, allowed to explain them. If the
statements be in writing they must be shown to the witness before any
question is put to him concerning them.[64]
Hence, the presentation of the inconsistent statements made by Rita is
insufficient for the desired impeachment of her.[65] As to whether Rita
and Randy were together in looking for Modesto or Leon merely stood
guard by the door of the house or entered the house are
inconsequential. The fact is that Leon stood guard throughout the night
to prevent Rita and Randy from seeking assistance for the seizure and
killing of Modesto.
This Court is convinced, as the trial court was, that the respective
testimonies of Randy and Rita bear the earmarks of truth and
sincerity. Despite intense and grueling cross-examination, they
responded with consistency upon material details that could only come
from a firsthand knowledge of the shocking events which unfolded
before their eyes. The Court thus finds no cogent reason to disregard
the findings of the trial court regarding their credibility.
Marlon, Ronald and Leon contend that the trial court committed a
reversible error in not giving credence and probative weight to their
evidence to prove their defense of alibi. They aver that their collective
evidence to prove their defense is strong.
We do not agree. Case law has it that the defense of alibi is one of the
weakest of defenses in criminal prosecution because the same is easy
to concoct between relatives, friends and even those not related to the
offender.[66] It is hard for the prosecution to disprove. For alibi to merit
approbation by the trial court and this Court, Marlon, Ronald and Leon
are burdened to prove with clear and convincing evidence that they were
in a place other than the situs criminis at the time of the commission of
the crime; that it was physically impossible for them to have committed
the said crime.[67] They failed to discharge their burden. Moreover, Rita
and Randy positively and spontaneously identified Marlon, Ronald and
Leon as the culprits. The house of Ronald, where he claimed he was
when the crime was committed, was only two kilometers away from the
house of Modesto and can be negotiated by a tricycle. Leon failed to
adduce any documentary evidence to prove his employment by Sally
Asuncion. The barefaced fact that he was a resident of Laoag City does
not constitute proof that he was in Laoag City on the day of the
commission of the crime. With respect to Marlon, he failed to adduce
evidence aside from his self-serving testimony that he resided in, left
Dumaguete City and arrived in Manila on January 29, 1999.
The trial court convicted Marlon, Ronald and Leon of murder with the
qualifying circumstance of treachery in the killing of Modesto. The trial
court likewise appreciated nighttime and abuse of superior strength and
the use of unlicensed firearms as separate aggravating
circumstances. The Office of the Solicitor General contends that indeed
treachery was attendant in the killing of Modesto. Hence, Marlon,
Ronald and Leon are guilty of murder defined in and penalized by Article
248 of the Revised Penal Code.
The Court however finds that Marlon, Ronald and Leon are guilty only
of homicide defined in and penalized by Article 248 of the Revised Penal
Code.
Qualifying circumstances such as treachery and abuse of superior
strength must be alleged and proved clearly and conclusively as the
crime itself. Mere conjectures, suppositions or presumptions are utterly
insufficient and cannot produce the effect of qualifying the crime.[68]As
this Court held: No matter how truthful these suppositions or
presumptions may seem, they must not and cannot produce the effect
of aggravating the condition of defendant.[69] Article 14, paragraph 16
of the Revised Penal Code provides that there is treachery when the
offender commits any of the crimes against the person, employing
means, methods or forms in the execution thereof which tend directly
and especially to insure its execution, without risk to himself arising from
the defense which the offended party might make. For treachery to be
appreciated as a qualifying circumstance, the prosecution is burdened
to prove the following elements: (a) the employment of means of
execution which gives the person attacked no opportunity to defend
himself or retaliate; (b) the means of execution is deliberately or
consciously adopted.[70] Although the victim may have been
defenseless at the time he was seized but there is no evidence as to the
particulars of how he was assaulted and killed, treachery cannot be
appreciated against the accused.[71] In this case, the victim was
defenseless when seized by Marlon and Ronald. However, the
prosecution failed to present any witness or conclusive evidence that
Modesto was defenseless immediately before and when he was
attacked and killed. It cannot be presumed that although he was
defenseless when he was seized the victim was in the same situation
when he was attacked, shot and stabbed by the malefactors. To take
advantage of superior strength means to purposely use force that is out
of proportion to the means of defense available to the person
attacked.[72] What is primordial, this Court held in People v. Rogelio
Francisco[73] is that the assailants deliberately took advantage of their
combined strength in order to consummate the crime. It is necessary to
show that the malefactors cooperated in such a way as to secure
advantage from their superiority in strength.[74] In this case, the
prosecution failed to adduce evidence that Marlon and Ronald
deliberately took advantage of their numerical superiority when Modesto
There being no modifying circumstances in the commission of homicide,
Marlon, Ronald and Leon should be meted an indeterminate penalty, the
minimum of which shall be taken from the entirety of prision
mayor, ranging from 6 years and one day to 12 years and the maximum
period of which shall be taken from the medium period of reclusion
temporal, ranging from 14 years, 8 months and one day to 17 years and
4 months.
Consequently, the award for damages in favor of the heirs of the victim
should be modified. The sum of P75,000.00 awarded as moral damages
should be reduced to P50,000.00 in accordance with prevailing
jurisprudence.[79] The amount of P25,000.00 as exemplary damages is
in order.[80] In addition, civil indemnity in the amount of P50,000.00
should be awarded without need of proof, likewise in consonance with
prevailing jurisprudence.[81]
IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is
AFFIRMED with MODIFICATION. Accused-appellants Marlon Delim,
Ronald Delim and Leon Delim are hereby found guilty beyond
reasonable doubt of the felony of Homicide defined in and penalized by
Article 249 of the Revised Penal Code. There being no modifying
circumstances in the commission of the crime, each of accused-
appellants is hereby meted an indeterminate penalty of from ten (10)
years and one (1) day of prision mayor in its maximum period as
minimum to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal in its medium period as maximum. Accused-
appellants are hereby ordered to pay, jointly and severally, to the heirs
of the victim the amount of P50,000.00 by way of civil indemnity, the
amount of P50,000.00 by way of moral damages and the amount
of P25,000.00 by way of exemplary damages.
SO ORDERED.

was killed. The barefaced facts that the malefactors outnumbered

Modesto and were armed while Modesto was not does not constitute
proof that the three took advantage of their numerical superioty and their
handguns when Modesto was shot and stabbed.[75]

In sum then, we believe that Marlon, Ronald and Leon are guilty only of
Homicide defined in and penalized by Article 249 of the Revised Penal
Code with reclusion temporal in its full period.

Although the special aggravating circumstance of the use of unlicensed

firearms was proven during the trial, there is no allegation in the
Information that Marlon, Ronald and Leon had no license to possess the
firearm. Lack of license to possess a firearm is an essential element of
the crime of violation of PD1866 as amended by Republic Act No. 8294,
or as a special aggravating circumstance in the felony of homicide or
murder.[76] Neither can dwelling, although proven, aggravate the crime
because said circumstance was not alleged in the Information as
required by Rule 110, Section 8 of the Revised Rules of
Court.[77] Although this rule took effect on December 1, 2000, after the
commission of the offense in this case, nonetheless it had been given
retroactive effect considering that the rule is favorable to the
accused.[78]
G.R. No. L-5272 March 19, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence as to many of the essential and vital facts in this case is
limited to the testimony of the accused himself, because from the very
nature of these facts and from the circumstances surrounding the
incident upon which these proceedings rest, no other evidence as to
these facts was available either to the prosecution or to the defense. We
think, however, that, giving the accused the benefit of the doubt as to
the weight of the evidence touching those details of the incident as to
which there can be said to be any doubt, the following statement of the
material facts disclose by the record may be taken to be substantially
correct:
The defendant, Ah Chong, was employed as a cook at "Officers'
quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same place
Pascual Gualberto, deceased, was employed as a house boy
or muchacho. "Officers' quarters No. 27" as a detached house situates
some 40 meters from the nearest building, and in August, 19087, was
occupied solely as an officers' mess or club. No one slept in the house
except the two servants, who jointly occupied a small room toward the
rear of the building, the door of which opened upon a narrow porch
running along the side of the building, by which communication was had
with the other part of the house. This porch was covered by a heavy
growth of vines for its entire length and height. The door of the room was
not furnished with a permanent bolt or lock, and occupants, as a
measure of security, had attached a small hook or catch on the inside of
the door, and were in the habit of reinforcing this somewhat insecure
means of fastening the door by placing against it a chair. In the room
there was but one small window, which, like the door, opened on the
porch. Aside from the door and window, there were no other openings
of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who
had received for the night, was suddenly awakened by some trying to
force open the door of the room. He sat up in bed and called out twice,
"Who is there?" He heard no answer and was convinced by the noise at
the door that it was being pushed open by someone bent upon forcing
his way into the room. Due to the heavy growth of vines along the front
of the porch, the room was very dark, and the defendant, fearing that the
intruder was a robber or a thief, leaped to his feet and called out. "If you
enter the room, I will kill you." At that moment he was struck just above
the knee by the edge of the chair which had been placed against the
door. In the darkness and confusion the defendant thought that the blow
had been inflicted by the person who had forced the door open, whom
he supposed to be a burglar, though in the light of after events, it is
probable that the chair was merely thrown back into the room by the
sudden opening of the door against which it rested. Seizing a common
kitchen knife which he kept under his pillow, the defendant struck out
wildly at the intruder who, it afterwards turned out, was his roommate,
Pascual. Pascual ran out upon the porch and fell down on the steps in
a desperately wounded condition, followed by the defendant, who
immediately recognized him in the moonlight. Seeing that Pascual was
wounded, he called to his employers who slept in the next house, No.
28, and ran back to his room to secure bandages to bind up Pascual's
wounds.
There had been several robberies in Fort McKinley not long prior to the
date of the incident just described, one of which took place in a house in
which the defendant was employed as cook; and as defendant alleges,
it was because of these repeated robberies he kept a knife under his
pillow for his personal protection.
The deceased and the accused, who roomed together and who appear
to have on friendly and amicable terms prior to the fatal incident, had an
understanding that when either returned at night, he should knock at the
door and acquiant his companion with his identity. Pascual had left the
house early in the evening and gone for a walk with his friends, Celestino
Quiambao and Mariano Ibaez, servants employed at officers' quarters
No. 28, the nearest house to the mess hall. The three returned from their
walk at about 10 o'clock, and Celestino and Mariano stopped at their
room at No. 28, Pascual going on to his room at No. 27. A few moments
after the party separated, Celestino and Mariano heard cries for
assistance and upon returning to No. 27 found Pascual sitting on the
back steps fatally wounded in the stomach, whereupon one of them ran
back to No. 28 and called Liuetenants Jacobs and Healy, who
immediately went to the aid of the wounded man.
The defendant then and there admitted that he had stabbed his
roommate, but said that he did it under the impression that Pascual was
"a ladron" because he forced open the door of their sleeping room,
despite defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of
Pascuals suggests itself, unless it be that the boy in a spirit of mischief
was playing a trick on his Chinese roommate, and sought to frightened
him by forcing his way into the room, refusing to give his name or say
who he was, in order to make Ah Chong believe that he was being
attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was
conveyed to the military hospital, where he died from the effects of the
wound on the following day.
The defendant was charged with the crime of assassination, tried, and
found guilty by the trial court of simple homicide, with extenuating
circumstances, and sentenced to six years and one day presidio mayor,
the minimum penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed his
roommate, Pascual Gualberto, but insisted that he struck the fatal blow
without any intent to do a wrongful act, in the exercise of his lawful right
of self-defense.
Article 8 of the Penal Code provides that
The following are not delinquent and are therefore exempt from criminal
liability:
xxx xxx xxx
4 He who acts in defense of his person or rights, provided there are the
following attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent or repel it.
(3) Lack of sufficient provocation on the part of the person defending
himself.
Under these provisions we think that there can be no doubt that
defendant would be entitle to complete exception from criminal liability
for the death of the victim of his fatal blow, if the intruder who forced
open the door of his room had been in fact a dangerous thief or "ladron,"
as the defendant believed him to be. No one, under such circumstances,
would doubt the right of the defendant to resist and repel such an
intrusion, and the thief having forced open the door notwithstanding
defendant's thrice-repeated warning to desist, and his threat that he
would kill the intruder if he persisted in his attempt, it will not be
questioned that in the darkness of the night, in a small room, with no
means of escape, with the thief advancing upon him despite his
warnings defendant would have been wholly justified in using any
available weapon to defend himself from such an assault, and in striking
promptly, without waiting for the thief to discover his whereabouts and
deliver the first blow.
But the evidence clearly discloses that the intruder was not a thief or a
"ladron." That neither the defendant nor his property nor any of the
property under his charge was in real danger at the time when he struck
the fatal blow. That there was no such "unlawful aggression" on the part
of a thief or "ladron" as defendant believed he was repelling and
resisting, and that there was no real "necessity" for the use of the knife
to defend his person or his property or the property under his charge.
The question then squarely presents it self, whether in this jurisdiction
one can be held criminally responsible who, by reason of a mistake as
to the facts, does an act for which he would be exempt from criminal
liability if the facts were as he supposed them to be, but which would
constitute the crime of homicide or assassination if the actor had known
the true state of the facts at the time when he committed the act. To this
question we think there can be but one answer, and we hold that under
such circumstances there is no criminal liability, provided always that the
alleged ignorance or mistake or fact was not due to negligence or bad
faith.
In broader terms, ignorance or mistake of fact, if such ignorance or
mistake of fact is sufficient to negative a particular intent which under
the law is a necessary ingredient of the offense charged (e.g., in
larcerny, animus furendi; in murder, malice; in crimes intent) "cancels
the presumption of intent," and works an acquittal; except in those cases
where the circumstances demand a conviction under the penal
provisions touching criminal negligence; and in cases where, under the
provisions of article 1 of the Penal Code one voluntarily committing a
crime or misdeamor incurs criminal liability for any wrongful act
committed by him, even though it be different from that which he
intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited;
McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap.,
240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y.,
509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met.,
500.)
The general proposition thus stated hardly admits of discussion, and the
only question worthy of consideration is whether malice or criminal intent
is an essential element or ingredient of the crimes of homicide and
assassination as defined and penalized in the Penal Code. It has been
said that since the definitions there given of these as well as most other
crimes and offense therein defined, do not specifically and expressly
declare that the acts constituting the crime or offense must be committed
with malice or with criminal intent in order that the actor may be held
criminally liable, the commission of the acts set out in the various
definitions subjects the actor to the penalties described therein, unless
it appears that he is exempted from liability under one or other of the
express provisions of article 8 of the code, which treats of exemption.
But while it is true that contrary to the general rule of legislative
enactment in the United States, the definitions of crimes and offenses
as set out in the Penal Code rarely contain provisions expressly
declaring that malice or criminal intent is an essential ingredient of the
crime, nevertheless, the general provisions of article 1 of the code
clearly indicate that malice, or criminal intent in some form, is an
essential requisite of all crimes and offense therein defined, in the
absence of express provisions modifying the general rule, such as are
those touching liability resulting from acts negligently or imprudently
committed, and acts done by one voluntarily committing a crime or
misdemeanor, where the act committed is different from that which he
intended to commit. And it is to be observed that even these exceptions
are more apparent than real, for "There is little distinction, except in
degree, between a will to do a wrongful thing and indifference whether
it is done or not. Therefore carelessness is criminal, and within limits
supplies the place of the affirmative criminal intent" (Bishop's New
Criminal Law, vol. 1, s. 313); and, again, "There is so little difference
between a disposition to do a great harm and a disposition to do harm
that one of them may very well be looked upon as the measure of the
other. Since, therefore, the guilt of a crime consists in the disposition to
do harm, which the criminal shows by committing it, and since this
disposition is greater or less in proportion to the harm which is done by
the crime, the consequence is that the guilt of the crime follows the same
proportion; it is greater or less according as the crime in its own nature
does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been
otherwise stated, the thing done, having proceeded from a corrupt mid,
is to be viewed the same whether the corruption was of one particular
form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions punished
by law.
Acts and omissions punished by law are always presumed to be
voluntarily unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall incur
criminal liability, even though the wrongful act committed be different
from that which he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the
word "voluntary" as used in this article, say that a voluntary act is a free,
intelligent, and intentional act, and roundly asserts that without intention
(intention to do wrong or criminal intention) there can be no crime; and
that the word "voluntary" implies and includes the words "con malicia,"
which were expressly set out in the definition of the word "crime" in the
code of 1822, but omitted from the code of 1870, because, as Pacheco
insists, their use in the former code was redundant, being implied and
included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime
can only be said to exempt from criminal responsibility when the act
which was actually intended to be done was in itself a lawful one, and in
the absence of negligence or imprudence, nevertheless admits and
recognizes in his discussion of the provisions of this article of the code
that in general without intention there can be no crime. (Viada, vol. 1, p.
16.) And, as we have shown above, the exceptions insisted upon by
Viada are more apparent than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared that
where there is no intention there is no crime . . . in order to affirm, without
fear of mistake, that under our code there can be no crime if there is no
act, an act which must fall within the sphere of ethics if there is no moral
injury. (Vol. 2, the Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court of
Spain, as, for example in its sentence of May 31, 1882, in which it made
use of the following language:
It is necessary that this act, in order to constitute a crime, involve all the
malice which is supposed from the operation of the will and an intent to
cause the injury which may be the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that
"considering that, whatever may be the civil effects of the inscription of
his three sons, made by the appellant in the civil registry and in the
parochial church, there can be no crime because of the lack of the
necessary element or criminal intention, which characterizes every
action or ommission punished by law; nor is he guilty of criminal
negligence."
And to the same effect in its sentence of December 30, 1896, it made
use of the following language:
. . . Considering that the moral element of the crime, that is, intent or
malice or their absence in the commission of an act defined and
punished by law as criminal, is not a necessary question of fact
submitted to the exclusive judgment and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice to
be an essential element of the various crimes and misdemeanors therein
defined becomes clear also from an examination of the provisions of
article 568, which are as follows:
He who shall execute through reckless negligence an act that, if done
with malice, would constitute a grave crime, shall be punished with the
penalty of arresto mayor in its maximum degree, to prision
correccional in its minimum degrees if it shall constitute a less grave
crime.
He who in violation of the regulations shall commit a crime through
simple imprudence or negligence shall incur the penalty of arresto
mayor in its medium and maximum degrees.
In the application of these penalties the courts shall proceed according
to their discretion, without being subject to the rules prescribed in article
81.
The provisions of this article shall not be applicable if the penalty
prescribed for the crime is equal to or less than those contained in the
first paragraph thereof, in which case the courts shall apply the next one
thereto in the degree which they may consider proper.
The word "malice" in this article is manifestly substantially equivalent to
the words "criminal intent," and the direct inference from its provisions is
that the commission of the acts contemplated therein, in the absence of
malice (criminal intent), negligence, and imprudence, does not impose
any criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem
to approximate in meaning the word "willful" as used in English and
American statute to designate a form of criminal intent. It has been said
that while the word "willful" sometimes means little more than
intentionally or designedly, yet it is more frequently understood to extent
a little further and approximate the idea of the milder kind of legal malice;
that is, it signifies an evil intent without justifiable excuse. In one case it
was said to mean, as employed in a statute in contemplation, "wantonly"
or "causelessly;" in another, "without reasonable grounds to believe the
thing lawful." And Shaw, C. J., once said that ordinarily in a statute it
means "not merely `voluntarily' but with a bad purpose; in other words,
corruptly." In English and the American statutes defining crimes
"malice," "malicious," "maliciously," and "malice aforethought" are words
indicating intent, more purely technical than "willful" or willfully," but "the
difference between them is not great;" the word "malice" not often being
understood to require general malevolence toward a particular
individual, and signifying rather the intent from our legal justification.
(Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting out a
condition in the definition of a crime that it be committed "voluntarily,"
willfully," "maliciously" "with malice aforethought," or in one of the
various modes generally construed to imply a criminal intent, we think
that reasoning from general principles it will always be found that with
the rare exceptions hereinafter mentioned, to constitute a crime evil
intent must combine with an act. Mr. Bishop, who supports his position
with numerous citations from the decided cases, thus forcely present
this doctrine:
In no one thing does criminal jurisprudence differ more from civil than in
the rule as to the intent. In controversies between private parties the quo
animo with which a thing was done is sometimes important, not always;
but crime proceeds only from a criminal mind. So that
There can be no crime, large or small, without an evil mind. In other
words, punishment is the sentence of wickedness, without which it can
not be. And neither in philosophical speculation nor in religious or mortal
sentiment would any people in any age allow that a man should be
deemed guilty unless his mind was so. It is therefore a principle of our
legal system, as probably it is of every other, that the essence of an
offense is the wrongful intent, without which it can not exists. We find
this doctrine confirmed by
Legal maxims. The ancient wisdom of the law, equally with the
modern, is distinct on this subject. It consequently has supplied to us
such maxims as Actus non facit reum nisi mens sit rea, "the act itself
does not make man guilty unless his intention were so;" Actus me incito
factus non est meus actus, "an act done by me against my will is not my
act;" and others of the like sort. In this, as just said, criminal
jurisprudence differs from civil. So also
Moral science and moral sentiment teach the same thing. "By reference
to the intention, we inculpate or exculpate others or ourselves without
any respect to the happiness or misery actually produced. Let the result
of an action be what it may, we hold a man guilty simply on the ground
of intention; or, on the dame ground, we hold him innocent." The calm
judgment of mankind keeps this doctrine among its jewels. In times of
excitement, when vengeance takes the place of justice, every guard
around the innocent is cast down. But with the return of reason comes
the public voice that where the mind is pure, he who differs in act from
his neighbors does not offend. And
In the spontaneous judgment which springs from the nature given by
God to man, no one deems another to deserve punishment for what he
did from an upright mind, destitute of every form of evil. And whenever
a person is made to suffer a punishment which the community deems
not his due, so far from its placing an evil mark upon him, it elevates him
to the seat of the martyr. Even infancy itself spontaneously pleads the
want of bad intent in justification of what has the appearance of wrong,
with the utmost confidence that the plea, if its truth is credited, will be
accepted as good. Now these facts are only the voice of nature uttering
one of her immutable truths. It is, then, the doctrine of the law, superior
to all other doctrines, because first in nature from which the law itself
proceeds, that no man is to be punished as a criminal unless his intent
is wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent
departure from this doctrine of abstract justice result from the adoption
of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the
law excuses no man"), without which justice could not be administered
in our tribunals; and compelled also by the same doctrine of necessity,
the courts have recognized the power of the legislature to forbid, in a
limited class of cases, the doing of certain acts, and to make their
commission criminal without regard to the intent of the doer. Without
discussing these exceptional cases at length, it is sufficient here to say
that the courts have always held that unless the intention of the
lawmaker to make the commission of certain acts criminal without regard
to the intent of the doer is clear and beyond question the statute will not
be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77);
and the rule that ignorance of the law excuses no man has been said
not to be a real departure from the law's fundamental principle that crime
exists only where the mind is at fault, because "the evil purpose need
not be to break the law, and if suffices if it is simply to do the thing which
the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases
cited.)
But, however this may be, there is no technical rule, and no pressing
necessity therefore, requiring mistake in fact to be dealt with otherwise
that in strict accord with the principles of abstract justice. On the
contrary, the maxim here is Ignorantia facti excusat ("Ignorance or
mistake in point of fact is, in all cases of supposed offense, a sufficient
excuse"). (Brown's Leg. Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every crime, any
such mistake of fact as shows the act committed to have proceeded from
no sort of evil in the mind necessarily relieves the actor from criminal
liability provided always there is no fault or negligence on his part; and
as laid down by Baron Parke, "The guilt of the accused must depend on
the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den.
C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342;
Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625;
Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209;
Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to
whether he honestly, in good faith, and without fault or negligence fell
into the mistake is to be determined by the circumstances as they
appeared to him at the time when the mistake was made, and the effect
which the surrounding circumstances might reasonably be expected to
have on his mind, in forming the intent, criminal or other wise, upon
which he acted.
If, in language not uncommon in the cases, one has reasonable cause
to believe the existence of facts which will justify a killing or, in terms
more nicely in accord with the principles on which the rule is founded, if
without fault or carelessness he does believe them he is legally
guiltless of the homicide; though he mistook the facts, and so the life of
an innocent person is unfortunately extinguished. In other words, and
with reference to the right of self-defense and the not quite harmonious
authorities, it is the doctrine of reason and sufficiently sustained in
adjudication, that notwithstanding some decisions apparently adverse,
whenever a man undertakes self-defense, he is justified in acting on the
facts as they appear to him. If, without fault or carelessness, he is misled
concerning them, and defends himself correctly according to what he
thus supposes the facts to be the law will not punish him though they
are in truth otherwise, and he was really no occassion for the extreme
measures. (Bishop's New Criminal Law, sec. 305, and large array of
cases there cited.)
The common illustration in the American and English textbooks of the
application of this rule is the case where a man, masked and disguised
as a footpad, at night and on a lonely road, "holds up" his friends in a
spirit of mischief, and with leveled pistol demands his money or his life,
but is killed by his friend under the mistaken belief that the attack is a
real one, that the pistol leveled at his head is loaded, and that his life
and property are in imminent danger at the hands of the aggressor. No
one will doubt that if the facts were such as the slayer believed them to
be he would be innocent of the commission of any crime and wholly
exempt from criminal liability, although if he knew the real state of the
facts when he took the life of his friend he would undoubtedly be guilty
of the crime of homicide or assassination. Under such circumstances,
proof of his innocent mistake of the facts overcomes the presumption of
malice or criminal intent, and (since malice or criminal intent is a
necessary ingredient of the "act punished by law" in cases of homicide
or assassination) overcomes at the same time the presumption
established in article 1 of the code, that the "act punished by law" was
committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the person
slain had a felonious design against him, and under that supposition
killed him, although it should afterwards appear that there was no such
design, it will not be murder, but it will be either manslaughter or
excusable homicide, according to the degree of caution used and the
probable grounds of such belief. (Charge to the grand jury in Selfridge's
case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as
follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward
him, with an outstretched arms and a pistol in his hand, and using violent
menaces against his life as he advances. Having approached near
enough in the same attitude, A, who has a club in his hand, strikes B
over the head before or at the instant the pistol is discharged; and of the
wound B dies. It turns out the pistol was loaded with powder only, and
that the real design of B was only to terrify A. Will any reasonable man
say that A is more criminal that he would have been if there had been a
bullet in the pistol? Those who hold such doctrine must require that a
man so attacked must, before he strikes the assailant, stop and
ascertain how the pistol is loaded a doctrine which would entirely take
away the essential right of self-defense. And when it is considered that
the jury who try the cause, and not the party killing, are to judge of the
reasonable grounds of his apprehension, no danger can be supposed
to flow from this principle. (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain,
cited by Viada, a few of which are here set out in full because the facts
are somewhat analogous to those in the case at bar.
QUESTION III. When it is shown that the accused was sitting at his
hearth, at night, in company only of his wife, without other light than
reflected from the fire, and that the man with his back to the door was
attending to the fire, there suddenly entered a person whom he did not
see or know, who struck him one or two blows, producing a contusion
on the shoulder, because of which he turned, seized the person and took
from his the stick with which he had undoubtedly been struck, and gave
the unknown person a blow, knocking him to the floor, and afterwards
striking him another blow on the head, leaving the unknown lying on the
floor, and left the house. It turned out the unknown person was his
father-in-law, to whom he rendered assistance as soon as he learned
his identity, and who died in about six days in consequence of cerebral
congestion resulting from the blow. The accused, who confessed the
facts, had always sustained pleasant relations with his father-in-law,
whom he visited during his sickness, demonstrating great grief over the
occurrence. Shall he be considered free from criminal responsibility, as
having acted in self-defense, with all the circumstances related in
paragraph 4, article 8, of the Penal Code? The criminal branch of
the Audiencia of Valladolid found that he was an illegal aggressor,
without sufficient provocation, and that there did not exists rational
necessity for the employment of the force used, and in accordance with
articles 419 and 87 of the Penal Code condemned him to twenty months
of imprisonment, with accessory penalty and costs. Upon appeal by the
accused, he was acquitted by the supreme court, under the following
sentence: "Considering, from the facts found by the sentence to have
been proven, that the accused was surprised from behind, at night, in
his house beside his wife who was nursing her child, was attacked,
struck, and beaten, without being able to distinguish with which they
might have executed their criminal intent, because of the there was no
other than fire light in the room, and considering that in such a situation
and when the acts executed demonstrated that they might endanger his
existence, and possibly that of his wife and child, more especially
because his assailant was unknown, he should have defended himself,
and in doing so with the same stick with which he was attacked, he did
not exceed the limits of self-defense, nor did he use means which were
not rationally necessary, particularly because the instrument with which
he killed was the one which he took from his assailant, and was capable
of producing death, and in the darkness of the house and the
consteration which naturally resulted from such strong aggression, it
was not given him to known or distinguish whether there was one or
more assailants, nor the arms which they might bear, not that which they
might accomplish, and considering that the lower court did not find from
the accepted facts that there existed rational necessity for the means
employed, and that it did not apply paragraph 4 of article 8 of the Penal door of his sleeping room was a thief, from whose assault he was in
Code, it erred, etc." (Sentence of supreme court of Spain, February 28, imminent peril, both of his life and of his property and of the property
1876.) (Viada, Vol. I, p. 266.) . committed to his charge; that in view of all the circumstances, as they
must have presented themselves to the defendant at the time, he acted
QUESTION XIX. A person returning, at night, to his house, which was
in good faith, without malice, or criminal intent, in the belief that he was
situated in a retired part of the city, upon arriving at a point where there
doing no more than exercising his legitimate right of self-defense; that
was no light, heard the voice of a man, at a distance of some 8 paces,
had the facts been as he believed them to be he would have been wholly
saying: "Face down, hand over you money!" because of which, and
exempt from criminal liability on account of his act; and that he can not
almost at the same money, he fired two shots from his pistol,
be said to have been guilty of negligence or recklessness or even
distinguishing immediately the voice of one of his friends (who had
carelessness in falling into his mistake as to the facts, or in the means
before simulated a different voice) saying, "Oh! they have killed me," and
adopted by him to defend himself from the imminent danger which he
hastening to his assistance, finding the body lying upon the ground, he
believe threatened his person and his property and the property under
cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing
his charge.
that he had been the victim of a joke, and not receiving a reply, and
observing that his friend was a corpse, he retired from the place. Shall The judgment of conviction and the sentence imposed by the trial court
he be declared exempt in toto from responsibility as the author of this should be reversed, and the defendant acquitted of the crime with which
homicide, as having acted in just self-defense under the circumstances he is charged and his bail bond exonerated, with the costs of both
defined in paragraph 4, article 8, Penal Code? The criminal branch of instance de oficio. So ordered.
the Audiencia of Malaga did not so find, but only found in favor of the
Johnson Moreland and Elliott, JJ., concur.
accused two of the requisites of said article, but not that of the
Arellano, C.J., and Mapa, J., dissent.
reasonableness of the means employed to repel the attack, and,
therefore, condemned the accused to eight years and one day of prison
mayor, etc. The supreme court acquitted the accused on his appeal from
this sentence, holding that the accused was acting under a justifiable
and excusable mistake of fact as to the identity of the person calling to Separate Opinions

him, and that under the circumstances, the darkness and remoteness,
TORRES, J., dissenting:
etc., the means employed were rational and the shooting justifiable.
(Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.) The writer, with due respect to the opinion of the majority of the court,
believes that, according to the merits of the case, the crime of homicide
QUESTION VI. The owner of a mill, situated in a remote spot, is
by reckless negligence, defined and punishes in article 568 of the Penal
awakened, at night, by a large stone thrown against his window at
Code, was committed, inasmuch as the victim was wilfully
this, he puts his head out of the window and inquires what is wanted,
(voluntariomente) killed, and while the act was done without malice or
and is answered "the delivery of all of his money, otherwise his house
criminal intent it was, however, executed with real negligence, for the
would be burned" because of which, and observing in an alley
acts committed by the deceased could not warrant the aggression by
adjacent to the mill four individuals, one of whom addressed him with
the defendant under the erroneous belief on the part of the accused that
blasphemy, he fired his pistol at one the men, who, on the next morning
the person who assaulted him was a malefactor; the defendant therefore
was found dead on the same spot. Shall this man be declared exempt
incurred responsibility in attacking with a knife the person who was
from criminal responsibility as having acted in just self-defense with all
accustomed to enter said room, without any justifiable motive.
of the requisites of law? The criminal branch of the requisites of law?
The criminal branch of the Audiencia of Zaragoza finds that there By reason of the nature of the crime committed, in the opinion of the
existed in favor of the accused a majority of the requisites to exempt him undersigned the accused should be sentenced to the penalty of one year
from criminal responsibility, but not that of reasonable necessity for the and one month of prision correctional, to suffer the accessory penalties
means, employed, and condemned the accused to twelve months provided in article 61, and to pay an indemnify of P1,000 to the heirs of
of prision correctional for the homicide committed. Upon appeal, the the deceased, with the costs of both instances, thereby reversing the
supreme court acquitted the condemned, finding that the accused, in judgment appealed from.
firing at the malefactors, who attack his mill at night in a remote spot by
threatening robbery and incendiarism, was acting in just self-defense of
his person, property, and family. (Sentence of May 23, 1877). (I Viada,
p. 128.)

A careful examination of the facts as disclosed in the case at bar

convinces us that the defendant Chinaman struck the fatal blow alleged
in the information in the firm belief that the intruder who forced open the
G.R. No. L-47722 July 27, 1943
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.
Antonio Z. Oanis in his own behalf.
Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibaez and Assistant Attorney Torres for
appellee.
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the accused
Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan and
corporal of the Philippine Constabulary, respectively, were, after due
trial, found guilty by the lower court of homicide through reckless
imprudence and were sentenced each to an indeterminate penalty of
from one year and six months to two years and two months of prison
correccional and to indemnify jointly and severally the heirs of the
deceased in the amount of P1,000. Defendants appealed separately
from this judgment.
In the afternoon of December 24, 1938. Captain Godofredo Monsod,
Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija, received
from Major Guido a telegram of the following tenor: "Information
received escaped convict Anselmo Balagtas with bailarina and Irene in
Cabanatuan get him dead or alive." Captain Monsod accordingly called
for his first sergeant and asked that he be given four men. Defendant
corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio
Serna and D. Fernandez, upon order of their sergeant, reported at the
office of the Provincial Inspector where they were shown a copy of the
above-quoted telegram and a newspaper clipping containing a picture
of Balagtas. They were instructed to arrest Balagtas and, if
overpowered, to follow the instruction contained in the telegram. The
same instruction was given to the chief of police Oanis who was likewise
called by the Provincial Inspector. When the chief of police was asked
whether he knew one Irene, a bailarina, he answered that he knew one
of loose morals of the same name. Upon request of the Provincial
Inspector, the chief of police tried to locate some of his men to guide the
constabulary soldiers in ascertaining Balagtas' whereabouts, and failing
to see anyone of them he volunteered to go with the party. The
Provincial Inspector divided the party into two groups with defendants
Oanis and Galanta, and private Fernandez taking the route to Rizal
street leading to the house where Irene was supposedly living. When
this group arrived at Irene's house, Oanis approached one Brigida
Mallare, who was then stripping banana stalks, and asked her where
Irene's room was. Brigida indicated the place and upon further inquiry
also said that Irene was sleeping with her paramour. Brigida trembling,
immediately returned to her own room which was very near that
occupied by Irene and her paramour. Defendants Oanis and Galanta
then went to the room of Irene, and an seeing a man sleeping with his
back towards the door where they were, simultaneously or successively
fired at him with their .32 and .45 caliber revolvers. Awakened by the
gunshots, Irene saw her paramour already wounded, and looking at the
door where the shots came, she saw the defendants still firing at him.
Shocked by the entire scene. Irene fainted; it turned out later that the
person shot and killed was not the notorious criminal Anselmo Balagtas
but a peaceful and innocent citizen named Serapio Tecson, Irene's
paramour. The Provincial Inspector, informed of the killing, repaired to
the scene and when he asked as to who killed the deceased. Galanta,
referring to himself and to Oanis, answered: "We two, sir." The corpse
was thereafter brought to the provincial hospital and upon autopsy by
Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and a
.45 caliber revolvers were found on Tecson's body which caused his
death.
These are the facts as found by the trial court and fully supported by the
evidence, particularly by the testimony of Irene Requinea. Appellants
gave, however, a different version of the tragedy. According to Appellant
Galanta, when he and chief of police Oanis arrived at the house, the
latter asked Brigida where Irene's room was. Brigida indicated the place,
and upon further inquiry as to the whereabouts of Anselmo Balagtas,
she said that he too was sleeping in the same room. Oanis went to the
room thus indicated and upon opening the curtain covering the door, he
said: "If you are Balagtas, stand up." Tecson, the supposed Balagtas,
and Irene woke up and as the former was about to sit up in bed. Oanis
fired at him. Wounded, Tecson leaned towards the door, and Oanis
receded and shouted: "That is Balagtas." Galanta then fired at Tecson.
On the other hand, Oanis testified that after he had opened the curtain
covering the door and after having said, "if you are Balagtas stand up."
Galanta at once fired at Tecson, the supposed Balagtas, while the latter
was still lying on bed, and continued firing until he had exhausted his
bullets: that it was only thereafter that he, Oanis, entered the door and
upon seeing the supposed Balagtas, who was then apparently watching
and picking up something from the floor, he fired at him.
The trial court refused to believe the appellants. Their testimonies are
certainly incredible not only because they are vitiated by a natural urge
to exculpate themselves of the crime, but also because they are
materially contradictory. Oasis averred that be fired at Tecson when the
latter was apparently watching somebody in an attitudes of picking up
something from the floor; on the other hand, Galanta testified that Oasis
shot Tecson while the latter was about to sit up in bed immediately after
he was awakened by a noise. Galanta testified that he fired at Tecson,
the supposed Balagtas, when the latter was rushing at him. But Oanis
assured that when Galanta shot Tecson, the latter was still lying on bed.
It is apparent from these contradictions that when each of the appellants
tries to exculpate himself of the crime charged, he is at once belied by
the other; but their mutual incriminating averments dovetail with and
corroborate substantially, the testimony of Irene Requinea. It should be
recalled that, according to Requinea, Tecson was still sleeping in bed
when he was shot to death by appellants. And this, to a certain extent,
is confirmed by both appellants themselves in their mutual
recriminations. According, to Galanta, Oanis shot Tecson when the
latter was still in bed about to sit up just after he was awakened by a
noise. And Oanis assured that when Galanta shot Tecson, the latter was
still lying in bed. Thus corroborated, and considering that the trial court
had the opportunity to observe her demeanor on the stand, we believe
and so hold that no error was committed in accepting her testimony and
in rejecting the exculpatory pretensions of the two appellants.
Furthermore, a careful examination of Irene's testimony will show not
only that her version of the tragedy is not concocted but that it contains
all indicia of veracity. In her cross-examination, even misleading
questions had been put which were unsuccessful, the witness having
stuck to the truth in every detail of the occurrence. Under these
circumstances, we do not feel ourselves justified in disturbing the
findings of fact made by the trial court.
The true fact, therefore, of the case is that, while Tecson was sleeping
in his room with his back towards the door, Oanis and Galanta, on sight,
fired at him simultaneously or successively, believing him to be Anselmo
Balagtas but without having made previously any reasonable inquiry as
to his identity. And the question is whether or not they may, upon such
fact, be held responsible for the death thus caused to Tecson. It is
contended that, as appellants acted in innocent mistake of fact in the
honest performance of their official duties, both of them believing that
Tecson was Balagtas, they incur no criminal liability. Sustaining this
theory in part, the lower court held and so declared them guilty of the
crime of homicide through reckless imprudence. We are of the opinion,
however, that, under the circumstances of the case, the crime committed
by appellants is murder through specially mitigated by circumstances to
be mentioned below.
In support of the theory of non-liability by reasons of honest mistake of
fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The
maxim is ignorantia facti excusat, but this applies only when the mistake
is committed without fault or carelessness. In the Ah Chong case,
defendant therein after having gone to bed was awakened by someone
trying to open the door. He called out twice, "who is there," but received
no answer. Fearing that the intruder was a robber, he leaped from his
bed and called out again., "If you enter the room I will kill you." But at
that precise moment, he was struck by a chair which had been placed
against the door and believing that he was then being attacked, he
seized a kitchen knife and struck and fatally wounded the intruder who
turned out to be his room-mate. A common illustration of innocent
mistake of fact is the case of a man who was marked as a footpad at
night and in a lonely road held up a friend in a spirit of mischief, and with
leveled, pistol demanded his money or life. He was killed by his friend
under the mistaken belief that the attack was real, that the pistol leveled
at his head was loaded and that his life and property were in imminent
danger at the hands of the aggressor. In these instances, there is an
innocent mistake of fact committed without any fault or carelessness
because the accused, having no time or opportunity to make a further
inquiry, and being pressed by circumstances to act immediately, had no
alternative but to take the facts as they then appeared to him, and such
facts justified his act of killing. In the instant case, appellants, unlike the
accused in the instances cited, found no circumstances whatsoever
which would press them to immediate action. The person in the room
being then asleep, appellants had ample time and opportunity to
ascertain his identity without hazard to themselves, and could even
effect a bloodless arrest if any reasonable effort to that end had been
made, as the victim was unarmed, according to Irene Requinea. This,
indeed, is the only legitimate course of action for appellants to follow
even if the victim was really Balagtas, as they were instructed not to kill
Balagtas at sight but to arrest him, and to get him dead or alive only if
resistance or aggression is offered by him.
Although an officer in making a lawful arrest is justified in using such
force as is reasonably necessary to secure and detain the offender,
overcome his resistance, prevent his escape, recapture him if he
escapes, and protect himself from bodily harm (People vs. Delima, 46
Phil, 738), yet he is never justified in using unnecessary force or in
treating him with wanton violence, or in resorting to dangerous means
when the arrest could be effected otherwise (6 C.J.S., par. 13, p. 612).
The doctrine is restated in the new Rules of Court thus: "No unnecessary
or unreasonable force shall be used in making an arrest, and the person
arrested shall not be subject to any greater restraint than is necessary
for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot
claim exemption from criminal liability if he uses unnecessary force or
violence in making an arrest (5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil.,
109). It may be true that Anselmo Balagtas was a notorious criminal, a
life-termer, a fugitive from justice and a menace to the peace of the
community, but these facts alone constitute no justification for killing him
when in effecting his arrest, he offers no resistance or in fact no
resistance can be offered, as when he is asleep. This, in effect, is the
principle laid down, although upon different facts, in U.S. vs. Donoso (3
Phil., 234, 242).
It is, however, suggested that a notorious criminal "must be taken by
storm" without regard to his right to life which he has by such notoriety
already forfeited. We may approve of this standard of official conduct
where the criminal offers resistance or does something which places his
captors in danger of imminent attack. Otherwise we cannot see how, as
in the present case, the mere fact of notoriety can make the life of a
criminal a mere trifle in the hands of the officers of the law. Notoriety
rightly supplies a basis for redoubled official alertness and vigilance; it
never can justify precipitate action at the cost of human life. Where, as
here, the precipitate action of the appellants has cost an innocent life
and there exist no circumstances whatsoever to warrant action of such
character in the mind of a reasonably prudent man, condemnation
not condonation should be the rule; otherwise we should offer a
premium to crime in the shelter of official actuation.
The crime committed by appellants is not merely criminal negligence,
the killing being intentional and not accidental. In criminal negligence,
the injury caused to another should be unintentional, it being simply the
incident of another act performed without malice. (People vs. Sara, 55
Phil., 939). In the words of Viada, "para que se celifique un hecho de
imprudencia es preciso que no haya mediado en el malicia ni intencion
alguna de daar; existiendo esa intencion, debera calificarse el hecho
del delito que ha producido, por mas que no haya sido la intencion del
agente el causar un mal de tanta gravedad como el que se produjo."
(Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once
held by this Court, a deliberate intent to do an unlawful act is essentially
inconsistent with the idea of reckless imprudence (People vs. Nanquil,
43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful
act is wilfully done, a mistake in the identity of the intended victim cannot
be considered as reckless imprudence (People vs. Gona, 54 Phil., 605)
to support a plea of mitigated liability.
As the deceased was killed while asleep, the crime committed is murder
with the qualifying circumstance of alevosia. There is, however, a
mitigating circumstance of weight consisting in the incomplete justifying
circumstance defined in article 11, No. 5, of the Revised Penal Code.
According to such legal provision, a person incurs no criminal liability
when he acts in the fulfillment of a duty or in the lawful exercise of a right
or office. There are two requisites in order that the circumstance may be
taken as a justifying one: (a) that the offender acted in the performance
of a duty or in the lawful exercise of a right; and (b) that the injury or
offense committed be the necessary consequence of the due
performance of such duty or the lawful exercise of such right or office.
In the instance case, only the first requisite is present appellants have
acted in the performance of a duty. The second requisite is wanting for
the crime by them committed is not the necessary consequence of a due
performance of their duty. Their duty was to arrest Balagtas or to get him
dead or alive if resistance is offered by him and they are overpowered.
But through impatience or over-anxiety or in their desire to take no
chances, they have exceeded in the fulfillment of such duty by killing the
person whom they believed to be Balagtas without any resistance from
him and without making any previous inquiry as to his identity. According
to article 69 of the Revised Penal Code, the penalty lower by one or two
degrees than that prescribed by law shall, in such case, be imposed.
For all the foregoing, the judgment is modified and appellants are hereby
declared guilty of murder with the mitigating circumstance above
mentioned, and accordingly sentenced to an indeterminate penalty of
from five (5) years of prision correctional to fifteen (15) years of reclusion
temporal, with the accessories of the law, and to pay the heirs of the
deceased Serapio Tecson jointly and severally an indemnity of P2,000,
with costs.
Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.
Separate Opinions
PARAS, J., dissenting:
Anselmo Balagtas, a life termer and notorious criminal, managed to
escape and flee form Manila to the provinces. Receiving information to
the effect that he was staying with one Irene in Cabanatuan, Nueva
Ecija, the office of the Constabulary in Manila ordered the Provincial
Inspector in Cabanatuan by telegram dispatched on December 25,
1938, to get Balagtas "dead or alive". Among those assigned to the task
of carrying out the said order, were Antonio Z. Oanis, chief of police of
Cabanatuan, and Alberto Galanta, a Constabulary corporal, to whom the
telegram received by the Provincial Inspector and a newspaper picture
of Balagtas were shown. Oanis, Galanta and a Constabulary private,
after being told by the Provincial Inspector to gather information about
Balagtas, "to arrest him and, if overpowered, to follow the instructions
contained in the telegram," proceeded to the place where the house of
Irene was located. Upon arriving thereat, Oanis approached Brigida
Mallari, who was then gathering banana stalks in the yard, and inquired
for the room of Irene. After Mallari had pointed out the room, she was
asked by Oanis to tell where Irene's paramour, Balagtas, was,
whereupon Mallari answered that he was sleeping with Irene. Upon
reaching the room indicated, Oanis and Galanta, after the former had
shouted "Stand up, if you are Balagtas," started shooting the man who
was found by them lying down beside a woman. The man was thereby
killed, but Balagtas was still alive, for it turned out that the person shot
by Oanis and Galanta was one Serapio Tecson.
Consequently, Oanis and Galanta were charged with having committed
murder. The Court of First Instance of Nueva Ecija, however, convicted
them only of homicide through reckless imprudence and sentenced
them each to suffer the indeterminate penalty of from 1 year and 6
months to 2 years and 2 months of prision correctional, to jointly and
severally indemnify the heirs of Serapio Tecson in the amount of P1,000,
and to pay the costs. Oanis and Galanta have appealed.
In accomplishing the acts with which the appellants were charged, they
undoubtedly followed the order issued by the Constabulary authorities
in Manila requiring the Provincial Inspector in Cabanatuan to get
Balagtas dead or alive, in the honest belief that Serapio Tecson was
Anselmo Balagtas. As the latter became a fugitive criminal, with
revolvers in his possession and a record that made him extremely
dangerous and a public terror, the Constabulary authorities were
justified in ordering his arrest, whether dead or alive. In view of said
order and the danger faced by the appellants in carrying it out, they
cannot be said to have acted feloniously in shooting the person honestly
believed by them to be the wanted man. Conscious of the fact that
Balagtas would rather kill than be captured, the appellants did not want
to take chances and should not be penalized for such prudence. On the
contrary, they should be commended for their bravery and courage
bordering on recklessness because, without knowing or ascertaining
whether the wanted man was in fact asleep in his room, they proceeded
thereto without hesitation and thereby exposed their lives to danger.
The Solicitor-General, however, contends that the appellants were
authorized to use their revolvers only after being overpowered by
Balagtas. In the first place, the alleged instruction by the Provincial
Inspector to that effect, was in violation of the express order given by the
Constabulary authorities in Manila and which was shown to the
appellants. In the second place, it would indeed be suicidal for the
appellants or, for that matter, any agent of the authority to have waited
until they have been overpowered before trying to put our such a
character as Balagtas. In the third place, it is immaterial whether or not
the instruction given by the Provincial Inspector was legitimate and
proper, because the facts exist that the appellants acted in conformity
with the express order of superior Constabulary authorities, the legality
or propriety of which is not herein questioned.
The theory of the prosecution has acquired some plausibility, though
quite psychological or sentimental, in view only of the fact that it was not
Balagtas who was actually killed, but an "innocent man . . . while he was
deeply asleep." Anybody's heart will be profoundly grieved by the trade,
but in time will be consoled by the realization that the life of Serapio
Tecson was not vainly sacrificed, for the incident will always serve as a
loud warning to any one desiring to follow in the footsteps of Anselmo
Balagtas that in due time the duly constituted authorities will, upon
proper order, enforce the summary forfeiture of his life.
In my opinion, therefore, the appellants are not criminally liable if the
person killed by them was in fact Anselmo Balagtas for the reason that
they did so in the fulfillment of their duty and in obedience to an order
issued by a superior for some lawful purpose (Revised Penal Code, art.
11, pars. 5 and 6). They also cannot be held criminally liable even if the
person killed by them was not Anselmo Balagtas, but Serapio Tecson,
because they did so under an honest mistake of fact not due to
negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil., 488).
It is true that, under article 4 of the Revised Penal Code, criminal liability
is incurred by any person committing a felony although the wrongful act
done be different from that which he intended; but said article is clearly
inapplicable since the killing of the person who was believed to be
Balagtas was, as already stated, not wrongful or felonious.
The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-
General, is not in point, inasmuch as the defendant therein, who
intended to injure Hilario Lauigan with whom he had a quarrel, but killed
another by mistake, would not be exempted from criminal liability if he
actually injured or killed Hilario Lauigan, there being a malicious design
on his part. The other case involved by the prosecution is U.S. vs.
Donoso (3 Phil., 234). This is also not in point, as it appears that the
defendants therein killed one Pedro Almasan after he had already
surrendered and allowed himself to be bound and that the said
defendants did not have lawful instructions from superior authorities to
capture Almasan dead or alive.
The appealed judgment should therefore be reversed and the
appellants, Antonio Z. Oanis and Alberto Galanta, acquitted, with
costs de oficio.
HONTIVEROS, J., dissenting:
According to the opinion of the majority, it is proper to follow the rule that
a notorious criminal "must be taken by storm without regard to his life
which he has, by his conduct, already forfeited," whenever said criminal
offers resistance or does something which places his captors in danger
of imminent attack. Precisely, the situation which confronted the
accused-appellants Antonio Z. Oanis and Alberto Galanta in the
afternoon of December 24, 1938, was very similar to this. It must be
remembered that both officers received instructions to get Balagtas
"dead or alive" and according to the attitude of not only the said
appellants but also of Capt. Monsod, constabulary provincial inspector
of Nueva Ecija, it may be assumed that said instructions gave more
emphasis to the first part; namely, to take him dead. It appears in the
record that after the shooting, and having been informed of the case,
Capt. Monsod stated that Oanis and Galanta might be decorated for
what they had done. That was when all parties concerned honestly
believed that the dead person was Balagtas himself, a dangerous
criminal who had escaped from his guards and was supposedly armed
with a .45 caliber pistol Brigida Mallari, the person whom the appellants
met upon arriving at the house of Irene Requinea, supposed mistress of
Balagtas, informed them that said Balagtas was upstairs. Appellants
found there asleep a man closely resembling the wanted criminal. Oanis
said: If you are Balagtas stand up," But the supposed criminal showed
his intention to attack the appellants, a conduct easily explained by the
fact that he should have felt offended by the intrusion of persons in the
room where he was peacefully lying down with his mistress. In such
predicament, it was nothing but human on the part of the appellants to
employ force and to make use of their weapons in order to repel the
imminent attack by a person who, according to their belief, was Balagtas
It was unfortunate, however that an innocent man was actually killed.
But taking into consideration the facts of the case, it is, according to my
humble opinion, proper to apply herein the doctrine laid down in the case
of U.S. vs. Ah Chong (15 Phil., 488). In the instant case we have, as in
the case supra, an innocent mistake of fact committed without any fault
or carelessness on the part of the accused, who having no time to make
a further inquiry, had no alternative but to take the facts as they
appeared to them and act immediately.
The decision of the majority, in recognition of the special circumstances
of this case which favored the accused-appellants, arrives at the
conclusion that an incomplete justifying circumstance may be invoked,
and therefore, according to Article 69 of the Revised Penal Code, the
imposable penalty should be one which is lower by one or two degrees
than that prescribed by law. This incomplete justifying circumstance is
that defined in Article 11, No. 5 of the Revised Penal Code, in favor of
"a person who acts in the fulfillment of a duty or in the lawful exercise of
a right or office." I believe that the application of this circumstance is not
proper. Article 69 of the Revised Penal Code provides as follows:
Art. 69. Penalty to be imposed when the crime committed is not wholly
excusable. A penalty lower by one or two degrees than that
prescribed by law shall be imposed if the deed is not wholly excusable
by reason of the lack of some of the conditions required to justify the
same or to exempt from criminal liability in the several cases mentioned
in articles 11 and 12, provided that the majority of such conditions be
present. The courts shall impose the penalty in the period which may be
deemed proper, in view of the number and nature of the conditions of
exemption present or lacking.
This provision has been copied almost verbatim from Article 84 of the
old Penal Code of the Philippines, and which was also taken from Article
87 of the Spanish Penal Code of 1870.
Judge Guillermo Guevara, one of the members of the Committee
created by Administrative Order No. 94 of the Department of Justice for
the drafting of the Revised Penal Code, in commenting on Article 69,
said that the justifying circumstances and circumstances exempting
from liability which are the subject matter of this article are the following:
self-defense, defense of relatives, defense of strangers, state of
necessity and injury caused by mere accident. Accordingly, justifying
circumstance No. 5 of Article 11 dealing with the fulfillment of a duty or
the lawful exercise of a right, calling or office, cannot be placed within its
scope.
The eminent treatiser of criminal law Mr. Groizard, in his commentary of
Article 87 of the Spanish Penal Code of 1870 which is the source of
Article 69 of our Code says:
Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni
del que obra violentado por una fuerza inrresistible o impulsado por
miedo insuperable de un mal igual o mayor, o en cumplimiento de un
deber, o en el ejercito legitimo de un derecho, oficio o cargo, o en virtud
de obediencia debida, ni del que incurre en alguna omision hallandose
impedido por causa legitima o insuperable, puede tener aplicacion al
articulo que comentamos. Y la razon es obvia. En ninguna de estas
execiones hay pluralidad de requisitos. La irrespondabilidad depende
de una sola condicion. Hay o no perturbacion de la razon; el autor del
hecho es o no menor de nueve aos; existe o no violencia material o
moral irresistible, etc., etc.; tal es lo que respectivamente hay que
examinar y resolver para declarar la culpabilidad o inculpabilidad. Es,
por lo tanto, imposible que acontezca lo que el texto que va al frente de
estas lineas rquiere, para que se imponga al autor del hecho la
penalidad excepcional que establece; esto es, que
falten algunos requisitos de los que la ley exige para eximir de
responsabilidad, y que concurran el mayor numero de ellos, toda vez
que, en los casos referidos, la ley no exige multiples condiciones.
It must be taken into account the fact according to Article 69 a penalty
lower by one or two degrees than that prescribed by law shall be
imposed if the deed is not wholly excusable by reason of the lack of
some of the conditions required by the law to justify the same or exempt
from criminal liability. The word "conditions" should not be confused with
the word "requisites". In dealing with justifying circumstance No. 5 Judge
Guevara states: "There are two requisites in order that this circumstance
may be taken into account: (a) That the offender acted in the
performance of his duty or in the lawful exercise of a right; and (b) That
the injury or offense committed be the necessary consequence of the
performance of a duty or the lawful exercise of a right or office." It is
evident that these two requisites concur in the present case if we
consider the intimate connection between the order given to the
appellant by Capt. Monsod, the showing to them of the telegram from
Manila to get Balagtas who was with a bailarina named Irene, the
conduct of said appellants in questioning Brigida Mallari and giving a
warning to the supposed criminal when both found him with Irene, and
the statement made by Capt. Monsod after the shooting.
If appellant Oanis is entitled to a reversal of the decision of the court
below, there are more reasons in favor of the acquittal of appellant
Galanta. According to the evidence no bullet from the gun fired by this
accused ever hit Serapio Tecson. Galanta was armed in the afternoon
of December 24, 1938, with a .45 caliber revolver (Exhibit L). He so
testified and was corroborated by the unchallenged testimony of his
superior officer Sgt. Valeriano Serafica. According to this witness, since
Galanta was made a corporal of the Constabulary he was given, as part
of his equipment, revolver Exhibit L with a serial No. 37121. This gun
had been constantly used by Galanta, and, according to Sgt. Pedro
Marasigan, who accompanied said accused when he took it from his
trunk in the barracks on the night of December 24, 1938, upon order of
Captain Monsod, it was the same revolver which was given to the
witness with five .45 caliber bullets and one empty shell. Fourteen
unused bullets were also taken from Galanta by Sergeant Serafica, thus
completing his regular equipment of twenty bullets which he had on the
morning of December 24, 1938, when Sergeant Serafica made the usual
inspection of the firearms in the possession of the non-commissioned
officers and privates of the constabulary post at Cabanatuan. Galanta
stated that he had fired only one shot and missed. This testimony is
corroborated by that of a ballistic expert who testified that bullets exhibits
F and O, the first being extracted from the head of the deceased,
causing wound No. 3 of autopsy report Exhibit C and the second found
at the place of the shooting, had not been fired from revolver Exhibit
L nor from any other revolver of the constabulary station in Cabanatuan.
It was impossible for the accused Galanta to have substituted his
revolver because when Exhibit L was taken from him nobody in the
barracks doubted that the deceased was none other than Balagtas.
Moreover, Exhibit L was not out of order and therefore there was no
reason why Galanta should carry along another gun, according to the
natural course of things. On the other hand, aside from wound No. 3 as
above stated, no other wound may be said to have been caused by a
.45 caliber revolver bullet. Doctor Castro's record gives the conclusion
that wound No. 2 must have been caused by a .45 caliber revolver bullet.
Doctor Castro's record gives the conclusion that wound No. 2 must have
been caused by a .45 caliber bullet, but inasmuch as the diameter of the
wound's entrance was only 8 mm., the caliber should be .32 and not .45,
because according to the medico-legal expert who testified in this case,
a bullet of a .45 caliber will produce a wound entrance with either 11
mm. or 12 mm. diameter. All other wounds found by the surgeon who
performed the autopsy appeared to have been caused by bullets of a
lesser caliber. In consequence, it can be stated that no bullet fired by
Galanta did ever hit or kill Serapio Tecson and therefore there is no
reason why he should be declared criminally responsible for said death.
Adm. Case No. 3086 February 23, 1988 carrying with him foreign currency and foreign exchange instruments
(380 pieces) amounting to US$ 355,349.57, in various currency
ALEXANDER PADILLA, complainant,
denominations, to wit: Japanese Yen, Swiss Franc, Australian Dollar,
vs.
Singapore Dollar, HFL Guilder, French Franc, U.S. Dollar, English
THE HON. BALTAZAR R. DIZON, Presiding Judge of the Regional Trial
Pound, Malaysian Dollar, Deutsche Mark, Canadian Dollar and
Court of Pasay City Branch 113, respondent.
Hongkong Dollar, without any authority as provided by law. At the time
RESOLUTION the accused was apprehended, he was able to exhibit two currency
declarations which he was supposed to have accomplished upon his
arrival in Manila in previous trips, namely, CB Currency Declaration No.
05048, dated May 4, 1986 for US$39,600.00 and Japanese Yen
PER CURIAM:
4,000,000.00, and CB Currency Declaration No. 06346, dated June 29,
This is an administrative complaint, dated August 6, 1987, filed by the 1986 for Japanese Yen 6,600,000.00.
then Commissioner of Customs, Alexander Padilla, against respondent
An information was filed against Lo Chi Fai, with the RTC of Pasay City
Baltazar R. Dizon, RTC Judge, Branch 115, Pasay City, for rendering a
for violation of Sec. 6, Central Bank Circular No. 960, as follows:
manifestly erroneous decision due, at the very least, to gross
incompetence and gross ignorance of the law, in Criminal Case No. 86- That on or about the 9th day of July, 1986, in the City of Pasay, Metro
10126-P, entitled "People of the Philippines vs. Lo Chi Fai", acquitting Manila, Philippines and within the jurisdiction of this Honorable Court,
said accused of the offense charged, i.e., smuggling of foreign currency the above-named accused, Mr. LO CHI FAI, did then and there wilfully,
out of the country. unlawfully and feloniously attempt to take out of the Philippines through
the Manila International Airport the following foreign currencies in cash
Required by the Court to answer the complaint, the respondent judge
and in checks:
filed an Answer, dated October 6, 1987, reciting his "commendable
record as a fearless prosecutor" since his appointment as Assistant City
Japanese Yen Y 32,800,000.00
Fiscal of Manila on December 4, 1962, until his appointment eventually
as RTC Judge on February 18, 1983; that at in the reorganization of the
Swiss Franc
judiciary after the February 26, 1986 revolution, he was reappointed to SW. FR 6,9000.00
his present position; that his length of service as prosecutor and judge
is "tangible proof that would negate the allegations of the petitioner"
Australian Dollar A$ 17,425.00
(should be complainant), whereas the latter did not last long in the
service for reasons only known to him; that the decision involved in the
Singapore Dollar S$ 9,945.00
complaint was promulgated by respondent on September 29, 1986, but
the complaint against him was filed only on August 6, 1987, a clear
indication of malice and ill-will of the complainant
Deutscheto subject
Marck respondent DM 18,595.00
to harassment, humiliation and vindictiveness; that his decision, of which
he submits a copy (Annex A) as part of his Answer, is based on
Canadian Dollar CS 13,330.00
"fundamental principles and the foundation of rights and justice" and that
if there are mistakes or errors in the questioned decision, they are
Hongkong Dollar HK$ 15,630.00
committed in good faith. Accordingly, respondent prays for the dismissal
of the petition (should be complaint).
HFL Guilder HFL 430.00
The issue before the Court is whether or not the respondent judge is
guilty of gross incompetence or gross ignorance of the law in rendering
French
the decision in question. A judge can not be Franc
held to account or answer, F/6,860.00

criminally, civilly or administratively, for an erroneous decision rendered

by him in good faith. US Dollar US$ 73,950.00

The case in which the respondent rendered a decision of acquittal

English
involved a tourist, Lo Chi Fai, who was caught byPound
a Customs guard at 5,318.00
the Manila International Airport while attempting to smuggle foreign
currency and foreign exchange instruments out of the
Malaysian country. Lo Chi
Dollar M$. 14,760.00
Fai, was apprehended by a customs guard and two PAFSECOM officers
on July 9, 1986, while on board Flight PR 300 of the Philippine Air Lines
(in checks)
bound for Hongkong. At the time of his apprehension, he was found

A$ 7,750.00
700.00
US$ 17,630.00
C$ 990.00
without authority from the Central Bank.
Contrary to Law.
The case, which was docketed as Criminal Case No. 86-10126-P, was
subsequently raffled to Branch 113, presided by herein respondent
Judge Baltazar A. Dizon.
Section 6 of Circular No. 960 of the Central Bank provides as follows:
Sec. 6. Export, import of foreign exchange; exceptions. No person
shall take out or transmit or attempt to take out or transmit foreign
exchange in any form, out of the Philippines directly, through other
persons, through the mails or through international carriers except when
specifically authorized by the Central Bank or allowed under existing
international agreements or Central Bank regulations.
Tourists and non-resident visitors may take out or send out from the
Philippine foreign exchange in amounts not exceeding such amounts of
foreign exchange brought in by them. For purposes of establishing the
amount of foreign exchange brought in or out of the Philippines, tourists
and non-resident temporary visitors bringing with them more than
US$3,000.00 or its equivalent in other foreign currencies shall declare
their foreign exchange in the form prescribed by the Central Bank at
points of entries upon arrival in the Philippines.
The penal sanction is provided by Section 1, P.D. No. 1883, which reads
as follows:
Section 1. Blackmarketing of Foreign Exchange . That any person
who shall engage in the trading or purchase and sale of foreign currency
in violation of existing laws or rules and regulations of the Central Bank
shall be guilty of the crime of blackmarketing of foreign exchange and
shall suffer the penalty of reclusion temporal, (minimum of 12 years and
I day and maximum of 20 years) and a fine of no less than fifty thousand
(P50,000.00) Pesos.
At the trial, the accused tried to establish that he was a businessman
from Kowloon, Hongkong, engaged in the garment business, in which
he had invested 4 to 5 million Hongkong Dollars; that he had come to
the Philippines 9 to 1 0 times, although the only dates he could
remember were April 2, 1986, May 4, 1986, June 28,1986, and July 8,
1986; that the reason for his coming to the Philippines was to invest in
business in the Philippines and also to play in the casino; that he had a
group of business associates who decided to invest in business with
him, namely: Wakita Noboyuki, Kobayashi Nabuo, Lee Shiang Pin, Lee
Chin and Cze Kai Kwan, who had their own businesses in Japan and
Hongkong; that when he came to the Philippines on April 2,1986, he
brought US$50,000.00 and 8,500,000.00 Japanese Yen which he tried
to declare but the Central Bank representative refused to accept his
declaration, until he could get a confirmation as to the source of the
money, for which reason he contacted his bank in Hongkong and a telex
was sent to him on April 3,1986 (Exh. 4). He also brought in with him
US$39,000.00 and 4,000,000.00 Japanese Yen when he arrived on May
4,1986 which he declared (Exh. 1). Again, he declared 8,600,000.00
Japanese Yen when he arrived on June 28, 1986 (Exh. 2). He also
testified that his business associates, as per their agreement to invest in
some business with him in the Philippines, started putting their money
for this purpose in a common fund, hence, every time anyone of them
came to the Philippines, they would declare the money they were
bringing in, and all declarations were handed to and kept by him; these
currency declarations were presented at the trial as exhibits for the
defense. When asked by the court why he did not present all of these
declarations when he was apprehended at the airport, his answer was
that he was not asked to present the declaration papers of his
associates, and besides, he does not understand English and he was
not told to do so. He also testified on cross-examination that the reason
he was going back to Hongkong bringing with him all the money
intended to be invested in the Philippines was because of the fear of his
group that the "revolution" taking place in Manila might become
widespread. It was because of this fear that he was urged by his
associates to come to Manila on July 8, 1986 to bring the money out of
the Philippines.
The respondent judge, in his decision acquitting the accused, stated:
The factual issue for this Court to determine is whether or not the
accused wilfully violated Section 6 of Circular No. 960. The fact that the
accused had in his possession the foreign currencies when he was
about to depart from the Philippines did not by that act alone make him
liable for Violation of Section 6.
What is imperative is the purpose for which the act of bringing foreign
currencies out of the country was done the very intention. It is that which
qualifies the act as criminal or not. There must be that clear intention to
violate and benefit from the act done. Intent is a mental state, the
existence of which is shown by overt acts of a person.
The respondent proceeded to analyze the evidence which, according to
him, tended to show that the accused had no wilfull intention to violate
the law. According to the respondent in his decision:
... this Court is persuaded to accept the explanation of the defense that
the currencies confiscated and/or seized from the accused belong to him
and his business associates abovenamed. And from the unwavering
and unequivocal testimonies of Mr. Templo and all of currencies in
question came from abroad and not from the local source which is what
is being prohibited by the government. Yes, simply reading the
provisions of said circular will, readily show that the currency declaration
is required for the purpose of establishing the amount of currency being
brought by tourist or temporary non-resident visitors into the country.
The currency declarations, therefore, is already (sic) intended to serve
as a guideline for the Customs authorities to determine the amounts
actually brought in by them to correspond to the amounts that could be
allowed to be taken out. Indeed, this Court is amazed and really has its
misgivings in the manner currency declarations were made as testified
to by the Central Bank employees. Why the Bureau of Customs
representative never took part in all these declarations testified to by no
less than five (5) Central Bank employees? Seemingly, these
employees are the favorites of these travellers. It is the hope of this
Court that the authorities must do something to remedy the evident flaw
in the system for effective implementation of the questioned Central
Bank Circular No. 960.
But even with a doubtful mind this Court would not be able to pin criminal
responsibility on the accused. This is due to its steadfast adherence and
devotion to the rule of law-a factor in restoring the almost lost faith and
erosion of confidence of the people in the administration of justice.
Courts of Justice are guided only by the rule of evidence.
The respondent-judge has shown gross incompetence or gross
ignorance of the law in holding that to convict the accused for violation
of Central Bank Circular No. 960, the prosecution must establish that the
accused had the criminal intent to violate the law. The respondent ought
to know that proof of malice or deliberate intent (mens rea) is not
essential in offenses punished by special laws, which are mala prohibita.
In requiring proof of malice, the respondent has by his gross ignorance
allowed the accused to go scot free. The accused at the time of his
apprehension at the Manila International Airport had in his possession
the amount of US$355,349.57 in assorted foreign currencies and foreign
exchange instruments (380 pieces), without any specific authority from
the Central Bank as required by law. At the time of his apprehension, he
was able to exhibit only two foreign currency declarations in his
possession. These were old declarations made by him on the occasion
of his previous trips to the Philippines.
Although lack of malice or wilfull intent is not a valid defense in a case
for violation of Central Bank Circular No. 960, the respondent
nonetheless chose to exonerate the accused based on his defense that
the foreign currency he was bringing out of the country at the time he
was apprehended by the customs authorities were brought into the
Philippines by him and his alleged business associates on several
previous occasions when they came to the Philippines, supposedly to
be used for the purpose of investing in some unspecified or
undetermined business ventures; that this money was kept in the
Philippines and he precisely came to the Philippines to take the money
out as he and his alleged business associates were afraid that the
"attempted revolution" which occurred on July 6,1986 might spread.
Such fantastic tale, although totally irrelevant to the matter of the criminal
liability of the accused under the information, was swallowed by the
respondent-judge "hook, line and sinker." It did not matter to the
respondent that the foreign currency and foreign currency instruments
found in the possession of the accused when he was apprehended at
the airport-380 pieces in all-and the amounts of such foreign exchange
did not correspond to the foreign currency declarations presented by the
accused at the trial. It did not matter to the respondent that the accused
by his own story admitted, in effect, that he was a carrier" of foreign
currency for other people. The respondent closed his eyes to the fact
that the very substantial amounts of foreign exchange found in the
possession of the accused at the time of his apprehension consisted of
personal checks of other people, as well as cash in various currency
denominations (12 kinds of currency in all), which clearly belied the claim
of the accused that they were part of the funds which he and his
supposed associates had brought in and kept in the Philippines for the
purpose of investing in some business ventures. The respondent
ignored the fact that most of the CB Currency declarations presented by
the defense at the trial were declarations belonging to other people
which could not be utilized by the accused to justify his having the
foreign exchange in his possession. Although contrary to ordinary
human experience and behavior, the respondent judge chose to give
credence to the fantastic tale of the accused that he and his alleged
business associates had brought in from time to time and accumulated
and kept in the Philippines foreign exchange (of very substantial
amounts in cash and checks in various foreign currency denominations)
for the purpose of investing in business even before they knew and had
come to an agreement as to the specific business venture in which they
were going to invest. These and other circumstances which make the
story concocted by the accused so palpably unbelievable as to render
the findings of the respondent judge obviously contrived to favor the
acquittal of the accused, thereby clearly negating his claim that he
rendered the decision "in good faith." His actuations in this case amount
to grave misconduct prejudicial to the interest of sound and fair
administration of justice.
He not only acquitted the accused Lo Chi Fai, but directed in his decision
the release to the accused of at least the amount of US$3,000.00,
allowed, according to respondent, under Central Bank Circular No. 960.
This, in spite of the fact that forfeiture proceedings had already been
instituted by the Bureau of Customs over the currency listed in the
information, which according to the respondent should be respected
since the Bureau of Customs "has the exclusive jurisdiction in the matter
of seizure and forfeiture of the property involved in the alleged
infringements of the aforesaid Central Bank Circular." In invoking the
provisions of CB Circular No. 960 to justify the release of US$ 3,000.00
to the accused, the respondent judge again displayed gross
incompetence and gross ignorance of the law. There is nothing in the
said CB Circular which could be taken as authority for the trial court to
release the said amount of U.S. Currency to the accused. According to
the above-cited CB Circular, tourists may take out or send out from the
Philippines foreign exchange in amounts not exceeding such amounts
of foreign exchange brought in by them; for the purpose of establishing
such amount, tourists or non-resident temporary visitors bringing with
them more than US$3,000.00 or its equivalent in other foreign
currencies must declare their foreign exchange at points of entries upon
arrival in the Philippines. In other words, CB Circular No. 960 merely
provides that for the purpose of establishing the amount of foreign
currency brought in or out of the Philippines, a tourist upon arrival is
required to declare any foreign exchange he is bringing in at the time of
his arrival, if the same exceeds the amount of US$3,000.00 or its
equivalent in other foreign currencies. There is nothing in said circular
that would justify returning to him the amount of at least US$3,000.00, if
he is caught attempting to bring out foreign exchange in excess of said
amount without specific authority from the Central Bank.

Accordingly, the Court finds the respondent Regional Trial Court Judge,
Baltazar R. Dizon, guilty of gross incompetence, gross ignorance of the
law and grave and serious misconduct affecting his integrity and
efficiency, and consistent with the responsibility of this Court for the just
and proper administration of justice and for the attainment of the
objective of maintaining the people's faith in the judiciary (People vs.
Valenzuela, 135 SCRA 712), it is hereby ordered that the Respondent
Judge be DISMISSED from the service. All leave and retirement benefits
and privileges to which he may be entitled are hereby forfeited with
prejudice to his being reinstated in any branch of government service,
including government-owned and/or controlled agencies or
corporations.

This resolution is immediately executory.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Melencio-Herrera, Gutierrez, Jr., Cruz,

Paras, Feliciano, Gancayco, Bidin, Sarmiento Cortes, and Grio-
Aquino, JJ., concur.

Padilla, Narvasa, JJ., took no part.

G.R. No. 96132 June 26, 1992
ORIEL MAGNO, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
PARAS, J.:
This is an appeal by certiorari under Rule 45 of the Revised Rules of
Court, from the decision* of the respondent Court of Appeals which
affirmed in toto the decision of the Regional Trial Court of Quezon City,
Branch 104 finding the accused petitioner, guilty of violations of Batas
Pambansa Blg. 22, in Criminal Cases Q-35693 to 35696 before they
were elevated on appeal to the respondent appellate Court under CA-
G.R. CR No. 04889.
The antecedent facts and circumstances of the four (4) counts of the
offense charged, have been clearly illustrated, in the Comment of the
Office of the Solicitor General as official counsel for the public
respondent, thus:
Petitioner was in the process of putting up a car repair shop sometime
in April 1983, but a did not have complete equipment that could make
his venture workable. He also had another problem, and that while he
was going into this entrepreneurship, he lacked funds with which to
purchase the necessary equipment to make such business operational.
Thus, petitioner, representing Ultra Sources International Corporation,
approached Corazon Teng, (private complainant) Vice President of
Mancor Industries (hereinafter referred to as Mancor) for his needed car
repair service equipment of which Mancor was a distributor, (Rollo, pp.
40-41)
Having been approached by petitioner on his predicament, who fully
bared that he had no sufficient funds to buy the equipment needed, the
former (Corazon Teng) referred Magno to LS Finance and Management
Corporation (LB Finance for brevity) advising its Vice-President, Joey
Gomez, that Mancor was willing and able to supply the pieces of
equipment needed if LS Finance could accommodate petitioner and
provide him credit facilities. (Ibid., P. 41)
The arrangement went through on condition that petitioner has to put up
a warranty deposit equivalent to thirty per centum (30%) of the total
value of the pieces of equipment to be purchased, amounting to
P29,790.00. Since petitioner could not come up with such amount, he
requested Joey Gomez on a personal level to look for a third party who
could lend him the equivalent amount of the warranty deposit, however,
unknown to petitioner, it was Corazon Teng who advanced the deposit
in question, on condition that the same would be paid as a short term
loan at 3% interest (Ibid., P. 41)
The specific provision in the Leasing Agreement, reads:
1.1. WARRANTY DEPOSIT Before or upon delivery of each item of
Equipment, the Lessee shall deposit with the Lessor such sum or sums
specified in Schedule A to serve as security for the faithful performance
of its obligations.
This deposit shall be refunded to the Lessee upon the satisfactory
completion of the entire period of Lease, subject to the conditions of
clause 1.12 of this Article. (Ibid., p. 17)
As part of the arrangement, petitioner and LS Finance entered into a
leasing agreement whereby LS Finance would lease the garage
equipments and petitioner would pay the corresponding rent with the
option to buy the same. After the documentation was completed, the
equipment were delivered to petitioner who in turn issued a postdated
check and gave it to Joey Gomez who, unknown to the petitioner,
delivered the same to Corazon Teng. When the check matured,
Petitioner requested through Joey Gomez not to deposit the check as
he (Magno) was no longer banking with Pacific Bank.
To replace the first check issued, petitioner issued another set of six (6)
postdated checks. Two (2) checks dated July 29, 1983 were deposited
and cleared while the four (4) others, which were the subject of the four
counts of the aforestated charges subject of the petition, were held
momentarily by Corazon Teng, on the request of Magno as they were
not covered with sufficient funds. These checks were a) Piso Bank
Check Nos. 006858, dated August 15, 1983, 006859 dated August 28,
1983 and 006860 dated September 15, 1983, all in the amount of
P5,038.43 and No. 006861 dated September 28, 1983, in the amount of
P10,076.87. (Ibid., pp. 42 & 43).
Subsequently, petitioner could not pay LS Finance the monthly rentals,
thus it pulled out the garage equipments. It was then on this occasion
that petitioner became aware that Corazon Teng was the one who
advanced the warranty deposit. Petitioner with his wife went to see
Corazon Teng and promised to pay the latter but the payment never
came and when the four (4) checks were deposited they were returned
for the reason "account closed." (Ibid., p. 43)
After joint trial before the Regional Trial Court of Quezon City, Branch
104, the accused-petitioner was convicted for violations of BP Blg. 22
on the four (4) cases, as follows:
. . . finding the accused-appellant guilty beyond reasonable doubt of the
offense of violations of B.P. Blg. 22 and sentencing the accused to
imprisonment for one year in each Criminal Case Nos. Q-35693, Q-
35695 and Q-35696 and to pay to complainant the respective amounts
reflected in subject checks. (Ibid., pp. 25, 27)
Reviewing the above and the affirmation of the above-stated decision of
the court a quo, this Court is intrigued about the outcome of the checks
subject of the cases which were intended by the parties, the petitioner
on the one hand and the private complainant on the other, to cover the
"warranty deposit" equivalent to the 30% requirement of the financing
company. Corazon Teng is one of the officers of Mancor, the supplier of
the equipment subject of the Leasing Agreement subject of the high
financing scheme undertaken by the petitioner as lessee of the repair
service equipment, which was arranged at the instance of Mrs. Teng
from the very beginning of the transaction.
By the nature of the "warranty deposit" amounting to P29,790.00
corresponding to 30% of the "purchase/lease" value of the equipments
subject of the transaction, it is obvious that the "cash out" made by Mrs.
Teng was not used by petitioner who was just paying rentals for the
equipment. It would have been different if petitioner opted to purchase
the pieces of equipment on or about the termination of the lease-
purchase agreement in which case he had to pay the additional amount
of the warranty deposit which should have formed part of the purchase
price. As the transaction did not ripen into a purchase, but remained a
lease with rentals being paid for the loaned equipment, which were
pulled out by the Lessor (Mancor) when the petitioner failed to continue
paying possibly due to economic constraints or business failure, then it
is lawful and just that the warranty deposit should not be charged against
the petitioner.
To charge the petitioner for the refund of a "warranty deposit" which he
did not withdraw as it was not his own account, it having remained with
LS Finance, is to even make him pay an unjust "debt", to say the least,
since petitioner did not receive the amount in question. All the while, said
amount was in the safekeeping of the financing company, which is
managed, supervised and operated by the corporation officials and
employees of LS Finance. Petitioner did not even know that the checks
he issued were turned over by Joey Gomez to Mrs. Teng, whose
operation was kept from his knowledge on her instruction. This fact
alone evoke suspicion that the transaction is irregular and immoral per
se, hence, she specifically requested Gomez not to divulge the source
of the "warranty deposit".
It is intriguing to realize that Mrs. Teng did not want the petitioner to know
that it was she who "accommodated" petitioner's request for Joey
Gomez, to source out the needed funds for the "warranty deposit". Thus
it unfolds the kind of transaction that is shrouded with mystery,
gimmickry and doubtful legality. It is in simple language, a scheme
whereby Mrs. Teng as the supplier of the equipment in the name of her
corporation, Mancor, would be able to "sell or lease" its goods as in this
case, and at the same time, privately financing those who desperately
need petty accommodations as this one. This modus operandi has in so
many instances victimized unsuspecting businessmen, who likewise
need protection from the law, by availing of the deceptively called
"warranty deposit" not realizing that they also fall prey to leasing
equipment under the guise of a lease-purchase agreement when it is a
scheme designed to skim off business clients.
This maneuvering has serious implications especially with respect to the
threat of the penal sanction of the law in issue, as in this case. And, with
a willing court system to apply the full harshness of the special law in
question, using the "mala prohibitia" doctrine, the noble objective of the
law is tainted with materialism and opportunism in the highest, degree.
This angle is bolstered by the fact that since the petitioner or lessee
referred to above in the lease agreement knew that the amount of
P29,790.00 subject of the cases, were mere accommodation-
arrangements with somebody thru Joey Gomez, petitioner did not even
attempt to secure the refund of said amount from LS Finance,
notwithstanding the agreement provision to the contrary. To argue that
after the termination of the lease agreement, the warranty deposit should
be refundable in full to Mrs. Teng by petitioner when he did not cash out
the "warranty deposit" for his official or personal use, is to stretch the
nicety of the alleged law (B.P. No, 22) violated.
For all intents and purposes, the law was devised to safeguard the
interest of the banking system and the legitimate public checking
account user. It did not intend to shelter or favor nor encourage users of
the system to enrich themselves through manipulations and
circumvention of the noble purpose and objective of the law. Least
should it be used also as a means of jeopardizing honest-to-goodness
transactions with some color of "get-rich" scheme to the prejudice of
well-meaning businessmen who are the pillars of society.
Under the utilitarian theory, the "protective theory" in criminal law,
"affirms that the primary function of punishment is the protective (sic) of
society against actual and potential wrongdoers." It is not clear whether
petitioner could be considered as having actually committed the wrong
sought to be punished in the offense charged, but on the other hand, it
can be safely said that the actuations of Mrs. Carolina Teng amount to
that of potential wrongdoers whose operations should also be clipped at
some point in time in order that the unwary public will not be failing prey
to such a vicious transaction (Aquino, The Revised Penal Code, 1987
Edition, Vol. I, P. 11)
Corollary to the above view, is the application of the theory that "criminal
law is founded upon that moral disapprobation . . . of actions which are
immoral, i.e., which are detrimental (or dangerous) to those conditions
upon which depend the existence and progress of human society. This
disappropriation is inevitable to the extent that morality is generally
founded and built upon a certain concurrence in the moral opinions of
all. . . . That which we call punishment is only an external means of
emphasizing moral disapprobation the method of punishment is in reality
the amount of punishment," (Ibid., P. 11, citing People v. Roldan
Zaballero, CA 54 O.G. 6904, Note also Justice Pablo's view in People
v. Piosca and Peremne, 86 Phil. 31).
Thus, it behooves upon a court of law that in applying the punishment
imposed upon the accused, the objective of retribution of a wronged
society, should be directed against the "actual and potential
wrongdoers." In the instant case, there is no doubt that petitioner's four
(4) checks were used to collateralize an accommodation, and not to
cover the receipt of an actual "account or credit for value" as this was
absent, and therefore petitioner should not be punished for mere
issuance of the checks in question. Following the aforecited theory, in
petitioner's stead the "potential wrongdoer", whose operation could be a
menace to society, should not be glorified by convicting the petitioner.
While in case of doubt, the case should have been resolved in favor of
the accused, however, by the open admission of the appellate court
below, oven when the ultimate beneficiary of the "warranty deposit" is of
doubtful certainty, the accused was convicted, as shown below:
Nor do We see any merit in appellant's claim that the obligation of the
accused to complainant had been extinguished by the termination of the
leasing agreement by the terms of which the warranty deposit
advanced by complainant was refundable to the accused as lessee
and that as the lessor L.S. Finance neither made any liquidation of said
amount nor returned the same to the accused, it may he assumed that
the amount was already returned to the complainant. For these
allegations, even if true, do not change the fact, admitted by appellant
and established by the evidence, that the four checks were originally
issued on account or for value. And as We have already observed, in
order that there may be a conviction under the from paragraph of Section
2 of B.P. Blg 22 with respect to the element of said offense that the
check should have been made and issued on account or for value it
is sufficient, all the other elements of the offense being present, that the
check must have been drawn and issued in payment of an obligation.
Moreover, even granting, arguendo, that the extinguishment, after the
issuance of the checks, of the obligation in consideration of which the
checks were issued, would have resulted in placing the case at bar
beyond the purview of the prohibition in Section 1 of BP Blg. 22, there is
no satisfactory proof that there was such an extinguishment in the
present case. Appellee aptly points out that appellant had not adduced
any direct evidence to prove that the amount advanced by the
complainant to cover the warranty deposit must already have been
returned to her. (Rollo, p. 30)
It is indubitable that the respondent Court of Appeals even disregarded
the cardinal rule that the accused is presumed innocent until proven
guilty beyond reasonable doubt. On the contrary, the same court even
expected the petitioner-appellant to adduce evidence to show that he
was not guilty of the crime charged. But how can be produce documents
showing that the warranty deposit has already been taken back by Mrs.
Teng when she is an officer of Mancor which has interest in the
transaction, besides being personally interested in the profit of her side-
line. Thus, even if she may have gotten back the value of the
accommodation, she would still pursue collecting from the petitioner
since she had in her possession the checks that "bounced".
That the court a quo merely relied on the law, without looking into the
real nature of the warranty deposit is evident from the following
pronouncement:
And the trail court concluded that there is no question that the accused
violated BP Blg. 22, which is a special statutory law, violations of which
are mala prohibita. The court relied on the rule that in cases ofmala
prohibita, the only inquiry is whether or not the law had been violated,
proof of criminal intent not being necessary for the conviction of the
accused, the acts being prohibited for reasons of public policy and the
defenses of good faith and absence of criminal intent being unavailing
in prosecutions for said offenses." (Ibid., p. 26)
The crux of the matter rests upon the reason for the drawing of the
postdated checks by the petitioner, i.e., whether they were drawn or
issued "to apply on account or for value", as required under Section 1 of
B.P. Blg, 22. When viewed against the following definitions of the catch-
terms "warranty" and "deposit", for which the postdated checks were
issued or drawn, all the more, the alleged crime could not have been
committed by petitioner:
a) Warranty A promise that a proposition of fact is true. A promise
that certain facts are truly as they are represented to be and that they
will remain so: . . . (Black's Law Dictionary, Fifth Edition, (1979) p. 1423)
A cross-reference to the following term shows:
Fitness for Particular Purpose:
Where the seller at the time of contracting has reason to know any
particular purpose for which the goods are required and that the buyer
is relying on the seller's skill or judgment to select or furnish suitable
goods, there is, unless excluded or modified, an implied warranty that
the goods shall be fit for such purpose, (Ibid., p. 573)
b) Deposit: Money lodged with a person as an earnest or security for
the performance of some contract, to be forfeited if the depositor fails in
his undertaking. It may be deemed to be part payment and to that extent
may constitute the purchaser the actual owner of the estate.
To commit to custody, or to lay down; to place; to put. To lodge for safe-
keeping or as a pledge to intrust to the care of another.
The act of placing money in the custody of a bank or banker, for safety
or convenience, to be withdrawn at the will of the depositor or under
rules and regulations agreed on. Also, the money so deposited, or the
credit which the depositor receives for it. Deposit, according to its
commonly accepted and generally understood among bankers and by
the public, includes not only deposits payable on demand and for which
certificates, whether interest-bearing or not, may be issued, payable on
demand, or on certain notice or at a fixed future time. (Ibid., pp. 394-
395)
Furthermore, the element of "knowing at the time of issue that he does
not have sufficient funds in or credit with the drawee bank for the
payment of such check in full upon its presentment, which check is
subsequently dishonored by the drawee bank for insufficiency of funds
or credit or would have been dishonored for the same reason . . . is
inversely applied in this case. From the very beginning, petitioner never
hid the fact that he did not have the funds with which to put up the
warranty deposit and as a matter of fact, he openly intimated this to the
vital conduit of the transaction, Joey Gomez, to whom petitioner was
introduced by Mrs. Teng. It would have been different if this predicament
was not communicated to all the parties he dealt with regarding the lease
agreement the financing of which was covered by L.S. Finance
Management.
WHEREFORE, the appealed decision is REVERSED and the accused-
petitioner is hereby ACQUITTED of the crime charged.

SO ORDERED.

Padilla and Regalado, JJ., concur.

Narvasa, C.J.,, concurs in the result.

Nocon, J., is on leave.

Footnotes

* Penned by Associate Justice Lorna S. Lombos-De La Fuente and

concurred in by Associate Justices Jesus M. Elbinias and Luis L. Victor.
G.R. No. 157171 March 14, 2006
ARSENIA B. GARCIA, Petitioner,
vs.
HON. COURT OF APPEALS and the PEOPLE OF THE
PHILIPPINES, Respondents
DECISION
QUISUMBING, J.:
This petition seeks the review of the judgment of the Court of Appeals in
CA-G.R. CR No. 245471that affirmed the conviction of petitioner by the
Regional Trial Court2of Alaminos City, Pangasinan, Branch 54, for
violation of Section 27(b) of Republic Act No. 6646.3
Based on the complaint-affidavit of Aquilino Q. Pimentel, Jr., who ran in
the 1995 senatorial elections, an information dated March 30, 1998, was
filed in the Regional Trial Court of Alaminos, charging Herminio R.
Romero, Renato R. Viray, Rachel Palisoc and Francisca de Vera, and
petitioner, with violation of Section 27(b). The information reads:
That on or about May 11, 1995, which was within the canvassing period
during the May 8, 1995 elections, in the Municipality of Alaminos,
Province of Pangasinan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, Election Officer Arsenia B.
Garcia, Municipal Treasurer Herminio R. Romero, Public School District
Supervisor Renato R. Viray, Chairman, Vice-Chairman, and Member-
Secretary, respectively, of the Municipal Board of Canvassers of
Alaminos, Pangasinan, tabulators Rachel Palisoc and Francisca de
Vera, conspiring with, confederating together and mutually helping each
other, did, then and there, willfully, and unlawfully decrease[d] the votes
received by senatorial candidate Aquilino Q. Pimentel, Jr. from six
thousand nine hundred ninety-eight (6,998) votes, as clearly disclosed
in the total number of votes in the one hundred fifty-nine (159) precincts
of the Statement of Votes by Precincts of said municipality, with Serial
Nos. 008417, 008418, 008419, 008420, 008421, 008422 and 008423 to
one thousand nine hundred twenty-one (1,921) votes as reflected in the
Statement of Votes by Precincts with Serial No. 008423 and Certificate
of Canvass with Serial No. 436156 with a difference of five thousand
seventy-seven (5,077) votes.
CONTRARY TO LAW.4
In a Decision dated September 11, 2000, the RTC acquitted all the
accused for insufficiency of evidence, except petitioner who was
convicted as follows:
xxx
5. And finally, on the person of Arsenia B. Garcia, the Court pronounces
her GUILTY beyond reasonable doubt, of the crime defined under
Republic Act 6646, Section 27 (b) for decreasing the votes of Senator
Pimentel in the total of 5,034 and in relation to BP Blg. 881, considering
that this finding is a violation of Election Offense, she is thus sentenced
to suffer an imprisonment of SIX (6) YEARS as maximum, but applying
the INDETERMINATE SENTENCE LAW, the minimum penalty is the
next degree lower which is SIX (6) MONTHS; however, accused Arsenia
B. Garcia is not entitled to probation; further, she is sentenced to suffer
disqualification to hold public office and she is also deprived of her right
of suffrage.
The bailbond posted by her is hereby ordered cancelled, and the
Provincial Warden is ordered to commit her person to the Bureau of
Correctional Institution for Women, at Metro Manila, until further orders
from the court.
No pronouncement as to costs.
IT IS SO ORDERED.5
Petitioner appealed before the Court of Appeals which affirmed with
modification the RTC Decision, thus,
WHEREFORE, foregoing considered, the appealed decision is hereby
affirmed with modification, increasing the minimum penalty imposed by
the trial court from six (6) months to one (1) year.
SO ORDERED.6
The Court of Appeals likewise denied the motion for reconsideration.
Hence, this appeal assigning the following as errors of the appellate
court:
I
ON THE FIRST AND SECOND GROUNDS RELIED UPON BY THE
RESPONDENT COURT, NAMELY, THAT IT COULD NOT HAVE BEEN
SECRETARY VIRAY WHO DECREASED THE VOTES OF
COMPLAINANT PIMENTEL SINCE HE MERELY RELIED ON WHAT
THE PETITIONER DICTATED, AND THAT IT COULD NOT HAVE
ALSO BEEN THE TABULATORS BECAUSE PETITIONER WAS THE
ONE WHO READ THE ADDING [MACHINE] TAPE.
II
ON THE THIRD GROUND, NAMELY, THAT PETITIONER DID NOT
PRODUCE THE TAPES DURING THE TRIAL BECAUSE IF
PRODUCED, IT IS GOING TO BE ADVERSE TO HER.
III
ON THE FOURTH GROUND, NAMELY, THAT THE PETITIONER WAS
THE ONE WHO ENTERED THE REDUCED FIGURE OF 1,921 IN THE
CERTIFICATE OF CANVASS (COC), Exh. "7", WHEN THE DUTY WAS
THAT OF THE SECRETARY OF THE BOARD.
IV
THE REDUCTION OF THE VOTES OF CANDIDATE PIMENTEL WAS
CLEARLY NOT WILLFUL OR INTENTIONAL.7
Petitioner contends that (1) the Court of Appeals judgment is erroneous,
based on speculations, surmises and conjectures, instead of substantial
evidence; and (2) there was no motive on her part to reduce the votes
of private complainant.
Respondent on the other hand contends that good faith is not a defense
in the violation of an election law, which falls under the class of mala
prohibita.
The main issue is, Is a violation of Section 27(b) of Rep. Act No. 6646,
classified under mala in se or mala prohibita? Could good faith and lack
of criminal intent be valid defenses?
Generally, mala in se felonies are defined and penalized in the Revised
Penal Code. When the acts complained of are inherently immoral, they
are deemed mala in se, even if they are punished by a special
law.8Accordingly, criminal intent must be clearly established with the
other elements of the crime; otherwise, no crime is committed. On the
other hand, in crimes that are mala prohibita, the criminal acts are not
inherently immoral but become punishable only because the law says
they are forbidden. With these crimes, the sole issue is whether the law
has been violated.9Criminal intent is not necessary where the acts are
prohibited for reasons of public policy.10
Section 27(b) of Republic Act No. 664611provides:
SEC. 27. Election Offenses.- In addition to the prohibited acts and
election offenses enumerated in Sections 261 and 262 of Batas
Pambansa Blg. 881, as amended, the following shall be guilty of an
election offense:
xxx
(b) Any member of the board of election inspectors or board of
canvassers who tampers, increases, or decreases the votes received by
a candidate in any election or any member of the board who refuses,
after proper verification and hearing, to credit the correct votes or deduct
such tampered votes.
xxx
Clearly, the acts prohibited in Section 27(b) are mala in se.12For
otherwise, even errors and mistakes committed due to overwork and
fatigue would be punishable. Given the volume of votes to be counted
and canvassed within a limited amount of time, errors and
miscalculations are bound to happen. And it could not be the intent of
the law to punish unintentional election canvass errors. However,
intentionally increasing or decreasing the number of votes received by a
candidate is inherently immoral, since it is done with malice and intent
to injure another.
Criminal intent is presumed to exist on the part of the person who
executes an act which the law punishes, unless the contrary shall
appear.13Thus, whoever invokes good faith as a defense has the
burden of proving its existence.
Records show that the canvassing of votes on May 11, 1995 before the
Board of Canvassers of the Municipality of Alaminos, Pangasinan was
conducted as follows:
1. After the votes in the 159 precincts of the municipality of Alaminos
were tallied, the results thereof were sealed and forwarded to the
Municipal Board of Canvassers for canvassing;
2. The number of votes received by each candidate in each precinct was
then recorded in the Statement of Votes with appellant, in her capacity
as Chairman, reading the figures appearing in the results from the
precincts and accused Viray, in his capacity as secretary of the Board,
entering the number in the Statements of Votes as read by the appellant.
Six Statements of Votes were filled up to reflect the votes received by
each candidate in the 159 precincts of the Municipality of Alaminos,
Pangasinan.
3. After the number of votes received by each candidate for each
precincts were entered by accused Viray in the Statements of Votes,
these votes were added by the accused Palisoc and de Vera with the
use of electrical adding machines.
4. After the tabulation by accused Palisoc and de Vera, the
corresponding machine tapes were handed to appellant who reads the
subtotal of votes received by each candidate in the precincts listed in
each Statement of Votes. Accused Viray [then] records the subtotal in
the proper column in the Statement of Votes.
5. After the subtotals had been entered by accused Viray, tabulators
accused Palisoc and de Vera added all the subtotals appearing in all
Statement of Votes.
6. After the computation, the corresponding machine tape on which the
grand total was reflected was handed to appellant who reads the same
and accused Viray enters the figure read by appellant in the column for
grand total in the Statement of Votes.14
Neither the correctness of the number of votes entered in the Statement
of Votes (SOV) for each precinct, nor of the number of votes entered as
subtotals of votes received in the precincts listed in SOV Nos. 008417
to 008422 was raised as an issue.
At first glance, however, there is a noticeable discrepancy in the addition
of the subtotals to arrive at the grand total of votes received by each
candidate for all 159 precincts in SOV No. 008423.15The grand total of
the votes for private complainant, Senator Aquilino Pimentel, was only
1,921 instead of 6,921, or 5,000 votes less than the number of votes
private complainant actually received. This error is also evident in the
Certificate of Canvass (COC) No. 436156 signed by petitioner, Viray and
Romero.16
During trial of this case, petitioner admitted that she was indeed the one
who announced the figure of 1,921, which was subsequently entered by
then accused Viray in his capacity as secretary of the board.17Petitioner
likewise admitted that she was the one who prepared the COC (Exhibit
A-7), though it was not her duty. To our mind, preparing the COC even
if it was not her task, manifests an intention to perpetuate the erroneous
entry in the COC.18
Neither can this Court accept petitioners explanation that the Board of
Canvassers had no idea how the SOV (Exhibit "6") and the COC
reflected that private complainant had only 1,921 votes instead of 6,921
votes. As chairman of the Municipal Board of Canvassers, petitioners
concern was to assure accurate, correct and authentic entry of the votes.
Her failure to exercise maximum efficiency and fidelity to her trust
deserves not only censure but also the concomitant sanctions as a
matter of criminal responsibility pursuant to the dictates of the law.19

The fact that the number of votes deducted from the actual votes
received by private complainant, Sen. Aquilino Pimentel, Jr. was not
added to any senatorial candidate does not relieve petitioner of liability
under Section 27(b) of Rep. Act No. 6646. The mere decreasing of the
votes received by a candidate in an election is already punishable under
the said provision.20

At this point, we see no valid reason to disturb the factual conclusions

of the appellate court. The Court has consistently held that factual
findings of the trial court, as well as of the Court of Appeals are final and
conclusive and may not be reviewed on appeal, particularly where the
findings of both the trial court and the appellate court on the matter
coincide.21

Public policy dictates that extraordinary diligence should be exercised

by the members of the board of canvassers in canvassing the results of
the elections. Any error on their part would result in the
disenfranchisement of the voters. The Certificate of Canvass for
senatorial candidates and its supporting statements of votes prepared
by the municipal board of canvassers are sensitive election documents
whose entries must be thoroughly scrutinized.22

In our review, the votes in the SOV should total 6,998.23

As between the grand total of votes alleged to have been received by

private complainant of 6,921 votes and statement of his actual votes
received of 6,998 is a difference of 77 votes. The discrepancy may be
validly attributed to mistake or error due to fatigue. However, a decrease
of 5,000 votes as reflected in the Statement of Votes and Certificate of
Canvass is substantial, it cannot be allowed to remain on record
unchallenged, especially when the error results from the mere transfer
of totals from one document to another.

WHEREFORE, the instant petition is DENIED. The assailed Decision of

the Court of Appeals sustaining petitioners conviction but increasing the
minimum penalty in her sentence to one year instead of six months
is AFFIRMED.

SO ORDERED.
G.R. No. L-74324 November 17, 1988
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y
MAGDALENA, accused-appellants.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellants.
MEDIALDEA, J.:
For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y
BALCITA and BENJAMIN SAMSON y MAGDALENA were charged with
the crime of MURDER in Criminal Case No. L-175-82 of the Court of
First Instance (now Regional Trial Court) of Cavite, under an information
which reads as follows:
That on or about May 19, 1982 at the town plaza of the Municipality of
Rosario, Province of Cavite, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping and assisting one another, with
treachery and evident premeditation, taking advantage of their superior
strength, and with the decided purpose to kill, poured gasoline, a
combustible liquid to the body of Bayani Miranda and with the use of fire
did then and there, wilfully, unlawfully and feloniously, burn the whole
body of said Bayani Miranda which caused his subsequent death, to the
damage and prejudice of the heirs of the aforenamed Bayani Miranda.
That the crime was committed with the qualifying circumstance of
treachery and the aggravating circumstances of evident premeditation
and superior strength, and the means employed was to weaken the
defense; that the wrong done in the commission of the crime was
deliberately augmented by causing another wrong, that is the burning of
the body of Bayani Miranda.
CONTRARY TO LAW (p. 1, Records).
Upon being arraigned, both accused pleaded not guilty to the offense
charged. After trial, the trial court rendered a decision finding both
accused guilty on the crime of murder but crediting in favor of the
accused Pugay the mitigating circumstance of lack of intention to commit
so grave a wrong, the dispositive portion of which reads as follows:
WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin
Samson y Magdalena are pronounced guilty beyond reasonable doubt
as principals by direct participation of the crime of murder for the death
of Bayani Miranda, and appreciating the aforestated mitigating
circumstance in favor of Pugay, he is sentenced to a prison term ranging
from twelve (12) years of prision mayor, as minimum, to twenty (20)
years of reclusion temporal, as maximum, and Samson to suffer the
penalty of reclusion perpetua together with the accessories of the law
for both of them. The accused are solidarily held liable to indemnify the
heirs of the victim in the amount of P13,940.00 plus moral damages of
P10,000.00 and exemplary damages of P5,000.00.
Let the preventive imprisonment of Pugay be deducted from the principal
penalty.
Cost against both accused.
SO ORDERED (p. 248, Records).
Not satisfied with the decision, both accused interposed the present
appeal and assigned the following errors committed by the court a quo:
1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF
ACCUSED-APPELLANTS IN ITS APPRECIATION OF FACTS
DESPITE ITS ADMISSION THAT THE ACCUSED-APPELLANTS
WERE NOT ASSISTED BY A COUNSEL DURING THE CUSTODIAL
INVESTIGATION.
2. THE COURT A QUO ERRED IN NOT FINDING THAT THE
SUPPRESSION BY THE PROSECUTION OF SOME EVIDENCE IS
FATAL TO ITS CASE.
3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE
INCREDIBLE TESTIMONY OF EDUARDO GABION WHO WAS ONE
OF THE MANY SUSPECTS ARRESTED BY THE POLICE (Accused-
appellants' Brief, p. 48, Rollo).
The antecedent facts are as follows:
The deceased Miranda, a 25-year old retardate, and the accused Pugay
were friends. Miranda used to run errands for Pugay and at times they
slept together. On the evening of May 19, 1982, a town fiesta fair was
held in the public plaza of Rosario, Cavite. There were different kinds of
ride and one was a ferris wheel.
Sometime after midnight of the same date, Eduardo Gabion was sitting
in the ferris wheel and reading a comic book with his friend Henry. Later,
the accused Pugay and Samson with several companions arrived.
These persons appeared to be drunk as they were all happy and noisy.
As the group saw the deceased walking nearby, they started making fun
of him. They made the deceased dance by tickling him with a piece of
wood.
Not content with what they were doing with the deceased, the accused
Pugay suddenly took a can of gasoline from under the engine of the
ferns wheel and poured its contents on the body of the former. Gabion
told Pugay not to do so while the latter was already in the process of
pouring the gasoline. Then, the accused Samson set Miranda on fire
making a human torch out of him.
The ferris wheel operator later arrived and doused with water the burning
body of the deceased. Some people around also poured sand on the
burning body and others wrapped the same with rags to extinguish the
flame.
The body of the deceased was still aflame when police officer Rolando
Silangcruz and other police officers of the Rosario Police Force arrived
at the scene of the incident. Upon inquiring as to who were responsible
for the dastardly act, the persons around spontaneously pointed to
Pugay and Samson as the authors thereof.
The deceased was later rushed to the Grace Hospital for treatment. In
the meantime, the police officers brought Gabion, the two accused and
five other persons to the Rosario municipal building for interrogation.
Police officer Reynaldo Canlas took the written statements of Gabion
and the two accused, after which Gabion was released. The two
accused remained in custody.
After a careful review of the records, We find the grounds relied upon by
the accused-appellants for the reversal of the decision of the court a
quo to be without merit.
It bears emphasis that barely a few hours after the incident, accused-
appellants gave their written statements to the police. The accused
Pugay admitted in his statement, Exhibit F, that he poured a can of
gasoline on the deceased believing that the contents thereof was water
and then the accused Samson set the deceased on fire. The accused
Samson, on the other hand, alleged in his statement that he saw Pugay
pour gasoline on Miranda but did not see the person who set him on fire.
Worthy of note is the fact that both statements did not impute any
participation of eyewitness Gabion in the commission of the offense.
While testifying on their defense, the accused-appellants repudiated
their written statements alleging that they were extracted by force. They
claimed that the police maltreated them into admitting authorship of the
crime. They also engaged in a concerted effort to lay the blame on
Gabion for the commission of the offense.
Thus, while it is true that the written statements of the accused-
appellants were mentioned and discussed in the decision of the court a
quo, the contents thereof were not utilized as the sole basis for the
findings of facts in the decision rendered. The said court categorically
stated that "even without Exhibits 'F' and 'G', there is still Gabion's
straightforward, positive and convincing testimony which remains
unaffected by the uncorroborated, self-serving and unrealiable
testimonies of Pugay and Samson" (p. 247, Records).
Accused-appellants next assert that the prosecution suppressed the
testimonies of other eyewitnesses to the incident. They claim that
despite the fact that there were other persons investigated by the police,
only Gabion was presented as an eyewitness during the trial of the case.
They argue that the deliberate non- presentation of these persons raises
the presumption that their testimonies would be adverse to the
prosecution.
There is no dispute that there were other persons who witnessed the
commission of the crime. In fact there appears on record (pp. 16-
17, Records) the written statements of one Abelardo Reyes and one
Monico Alimorong alleging the same facts and imputing the respective
acts of pouring of gasoline and setting the deceased on fire to the
accused-appellants as testified to by Gabion in open court. They were
listed as prosecution witnesses in the information filed. Considering that
their testimonies would be merely corroborative, their non-presentation
does not give rise to the presumption that evidence wilfully suppressed
would be adverse if produced. This presumption does not apply to the
suppression of merely corroborative evidence (U.S. vs. Dinola, 37 Phil.
797).<re||an1w> Besides, the matter as to whom to utilize as
witness is for the prosecution to decide.
Accused-appellants also attack the credibility of the eyewitness Gabion
alleging that not only was the latter requested by the mother of the
deceased to testify for the prosecution in exchange for his absolution
from liability but also because his testimony that he was reading a comic
book during an unusual event is contrary to human behavior and
experience.
Gabion testified that it was his uncle and not the mother of the deceased
who asked him to testify and state the truth about the incident. The
mother of the deceased likewise testified that she never talked to Gabion
and that she saw the latter for the first time when the instant case was
tried. Besides, the accused Pugay admitted that Gabion was his friend
and both Pugay and the other accused Samson testified that they had
no previous misunderstanding with Gabion. Clearly, Gabion had no
reason to testify falsely against them.
In support of their claim that the testimony of Gabion to the effect that
he saw Pugay pour gasoline on the deceased and then Samson set him
on fire is incredible, the accused-appellants quote Gabion's testimony
on cross-examination that, after telling Pugay not to pour gasoline on
the deceased, he (Gabion) resumed reading comics; and that it was only
when the victim's body was on fire that he noticed a commotion.
However, explaining this testimony on re-direct examination, Gabion
stated:
Q. Mr. Gabion, you told the Court on cross-examination that you were
reading comics when you saw Pugay poured gasoline unto Bayani
Miranda and lighted by Samson. How could you possibly see that
incident while you were reading comics?
A. I put down the comics which I am reading and I saw what they were
doing.
Q. According to you also before Bayani was poured with gasoline and
lighted and burned later you had a talk with Pugay, is that correct?
A. When he was pouring gasoline on Bayani Miranda I was trying to
prevent him from doing so.
Q. We want to clarify. According to you a while ago you had a talk with
Pugay and as a matter of fact, you told him not to pour gasoline. That is
what I want to know from you, if that is true?
A. Yes, sir.
Q. Aside from Bayani being tickled with a stick on his ass, do you mean
to say you come to know that Pugay will pour gasoline unto him?
A. I do not know that would be that incident.
Q. Why did you as(k) Pugay in the first place not to pour gasoline before
he did that actually?
A. Because I pity Bayani, sir.
Q. When you saw Pugay tickling Bayani with a stick on his ass you tried
according to you to ask him not to and then later you said you asked not
to pour gasoline. Did Pugay tell you he was going to pour gasoline on
Bayani?
A. I was not told, sir.
Q. Did you come to know..... how did you come to know he was going
to pour gasoline that is why you prevent him?
A. Because he was holding on a container of gasoline. I thought it was
water but it was gasoline.
Q. It is clear that while Pugay was tickling Bayani with a stick on his ass,
he later got hold of a can of gasoline, is that correct?
A. Yes, sir.
Q. And when he pick up the can of gasoline, was that the time you told
him not to pour gasoline when he merely pick up the can of gasoline.
A. I saw him pouring the gasoline on the body of Joe.
Q. So, it is clear when you told Pugay not to pour gasoline he was
already in the process of pouring gasoline on the body of Bayani?
A. Yes, sir (Tsn, July 30, 1983, pp. 32-33).
It is thus clear that prior to the incident in question, Gabion was reading
a comic book; that Gabion stopped reading when the group of Pugay
started to make fun of the deceased; that Gabion saw Pugay get the can
of gasoline from under the engine of the ferris wheel; that it was while
Pugay was in the process of pouring the gasoline on the body of the
deceased when Gabion warned him not to do so; and that Gabion later
saw Samson set the deceased on fire.
However, there is nothing in the records showing that there was previous
conspiracy or unity of criminal purpose and intention between the two
accused-appellants immediately before the commission of the crime.
There was no animosity between the deceased and the accused Pugay
or Samson. Their meeting at the scene of the incident was accidental. It
is also clear that the accused Pugay and his group merely wanted to
make fun of the deceased. Hence, the respective criminal responsibility
of Pugay and Samson arising from different acts directed against the
deceased is individual and not collective, and each of them is liable only
for the act committed by him (U.S. vs. Magcomot, et. al. 13, Phil. 386;
U.S. vs. Abiog, et. al. 37 Phil. 1371).
The next question to be determined is the criminal responsibility of the
accused Pugay. Having taken the can from under the engine of the ferris
wheel and holding it before pouring its contents on the body of the
deceased, this accused knew that the can contained gasoline. The
stinging smell of this flammable liquid could not have escaped his notice
even before pouring the same. Clearly, he failed to exercise all the
diligence necessary to avoid every undesirable consequence arising
from any act that may be committed by his companions who at the time
were making fun of the deceased. We agree with the Solicitor General
that the accused is only guilty of homicide through reckless imprudence
defined in Article 365 of the Revised Penal Code, as amended. In U.S.
vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as follows:
A man must use common sense and exercise due reflection in all his
acts; it is his duty to be cautious, careful, and prudent, if not from instinct,
then through fear of incurring punishment. He is responsible for such
results as anyone might foresee and for acts which no one would have
performed except through culpable abandon. Otherwise his own person,
rights and property, all those of his fellow-beings, would ever be exposed
to all manner of danger and injury.
The proper penalty that the accused Pugay must suffer is an
indeterminate one ranging from four (4) months of arresto mayor, as
minimum, to four (4) years and two (2) months of prision correccional,
as maximum. With respect to the accused Samson, the Solicitor General
in his brief contends that "his conviction of murder, is proper considering
that his act in setting the deceased on fire knowing that gasoline had just
been poured on him is characterized by treachery as the victim was left
completely helpless to defend and protect himself against such an
outrage" (p. 57, Rollo). We do not agree.
There is entire absence of proof in the record that the accused Samson
had some reason to kill the deceased before the incident. On the
contrary, there is adequate evidence showing that his act was merely a
part of their fun-making that evening. For the circumstance of treachery
to exist, the attack must be deliberate and the culprit employed means,
methods, or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from any
defense which the offended party might make.
There can be no doubt that the accused Samson knew very well that the
liquid poured on the body of the deceased was gasoline and a
flammable substance for he would not have committed the act of setting
the latter on fire if it were otherwise. Giving him the benefit of doubt, it
call be conceded that as part of their fun-making he merely intended to
set the deceased's clothes on fire. His act, however, does not relieve
him of criminal responsibility. Burning the clothes of the victim would
cause at the very least some kind of physical injuries on his person, a
felony defined in the Revised Penal Code. If his act resulted into a graver
offense, as what took place in the instant case, he must be held
responsible therefor. Article 4 of the aforesaid code provides, inter alia,
that criminal liability shall be incurred by any person committing a felony
(delito) although the wrongful act done be different from that which he
intended.
As no sufficient evidence appears in the record establishing any
qualifying circumstances, the accused Samson is only guilty of the crime
of homicide defined and penalized in Article 249 of the Revised Penal
Code, as amended. We are disposed to credit in his favor the ordinary
mitigating circumstance of no intention to commit so grave a wrong as
that committed as there is evidence of a fact from which such conclusion
can be drawn. The eyewitness Gabion testified that the accused Pugay
and Samson were stunned when they noticed the deceased burning
(Tsn, June 1, 1983, pp. 16-17).<re||an1w>

The proper penalty that the accused Samson must suffer is an

indeterminate one ranging from eight (8) years of prision mayor, as
minimum, to fourteen (14) years of reclusion temporal, as maximum.

The lower court held the accused solidarily liable for P13,940.00, the
amount spent by Miranda's parents for his hospitalization, wake and
interment. The indemnity for death is P30,000.00. Hence, the indemnity
to the heirs of the deceased Miranda is increased to P43,940.00.

Both accused shall be jointly and severally liable for the aforesaid
amount plus the P10,000.00 as moral damages and P5,000.00 as
exemplary damages as found by the court a quo.

Accordingly, the judgment is affirmed with the modifications above-

indicated. Costs against the accused-appellants.

SO ORDERED.

Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

G.R. No. 172716 November 17, 2010
JASON IVLER y AGUILAR, Petitioner,
vs.
HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the
Metropolitan Trial Court, Branch 71, Pasig City, and EVANGELINE
PONCE, Respondents.
DECISION
CARPIO, J.:
The Case
The petition seeks the review1 of the Orders2 of the Regional Trial Court
of Pasig City affirming sub-silencio a lower courts ruling finding
inapplicable the Double Jeopardy Clause to bar a second prosecution
for Reckless Imprudence Resulting in Homicide and Damage to
Property. This, despite the accuseds previous conviction for Reckless
Imprudence Resulting in Slight Physical Injuries arising from the same
incident grounding the second prosecution.
The Facts
Following a vehicular collision in August 2004, petitioner Jason Ivler
(petitioner) was charged before the Metropolitan Trial Court of Pasig
City, Branch 71 (MeTC), with two separate offenses: (1) Reckless
Imprudence Resulting in Slight Physical Injuries (Criminal Case No.
82367) for injuries sustained by respondent Evangeline L. Ponce
(respondent Ponce); and (2) Reckless Imprudence Resulting in
Homicide and Damage to Property (Criminal Case No. 82366) for the
death of respondent Ponces husband Nestor C. Ponce and damage to
the spouses Ponces vehicle. Petitioner posted bail for his temporary
release in both cases.
On 7 September 2004, petitioner pleaded guilty to the charge in Criminal
Case No. 82367 and was meted out the penalty of public censure.
Invoking this conviction, petitioner moved to quash the Information in
Criminal Case No. 82366 for placing him in jeopardy of second
punishment for the same offense of reckless imprudence.
The MeTC refused quashal, finding no identity of offenses in the two
cases.3
After unsuccessfully seeking reconsideration, petitioner elevated the
matter to the Regional Trial Court of Pasig City, Branch 157 (RTC), in a
petition for certiorari (S.C.A. No. 2803). Meanwhile, petitioner sought
from the MeTC the suspension of proceedings in Criminal Case No.
82366, including the arraignment on 17 May 2005, invoking S.C.A. No.
2803 as a prejudicial question. Without acting on petitioners motion, the
MeTC proceeded with the arraignment and, because of petitioners
absence, cancelled his bail and ordered his arrest.4 Seven days later,
the MeTC issued a resolution denying petitioners motion to suspend
proceedings and postponing his arraignment until after his
arrest.5 Petitioner sought reconsideration but as of the filing of this
petition, the motion remained unresolved.
Relying on the arrest order against petitioner, respondent Ponce sought
in the RTC the dismissal of S.C.A. No. 2803 for petitioners loss of
standing to maintain the suit. Petitioner contested the motion.
The Ruling of the Trial Court
In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803,
narrowly grounding its ruling on petitioners forfeiture of standing to
maintain S.C.A. No. 2803 arising from the MeTCs order to arrest
petitioner for his non-appearance at the arraignment in Criminal Case
No. 82366. Thus, without reaching the merits of S.C.A. No. 2803, the
RTC effectively affirmed the MeTC. Petitioner sought reconsideration
but this proved unavailing.6
Hence, this petition.
Petitioner denies absconding. He explains that his petition in S.C.A. No.
2803 constrained him to forego participation in the proceedings in
Criminal Case No. 82366. Petitioner distinguishes his case from the line
of jurisprudence sanctioning dismissal of appeals for absconding
appellants because his appeal before the RTC was a special civil action
seeking a pre-trial relief, not a post-trial appeal of a judgment of
conviction.7
Petitioner laments the RTCs failure to reach the merits of his petition in
S.C.A. 2803. Invoking jurisprudence, petitioner argues that his
constitutional right not to be placed twice in jeopardy of punishment for
the same offense bars his prosecution in Criminal Case No. 82366,
having been previously convicted in Criminal Case No. 82367 for the
same offense of reckless imprudence charged in Criminal Case No.
82366. Petitioner submits that the multiple consequences of such crime
are material only to determine his penalty.
Respondent Ponce finds no reason for the Court to disturb the RTCs
decision forfeiting petitioners standing to maintain his petition in S.C.A.
2803. On the merits, respondent Ponce calls the Courts attention to
jurisprudence holding that light offenses (e.g. slight physical injuries)
cannot be complexed under Article 48 of the Revised Penal Code with
grave or less grave felonies (e.g. homicide). Hence, the prosecution was
obliged to separate the charge in Criminal Case No. 82366 for the slight
physical injuries from Criminal Case No. 82367 for the homicide and
damage to property.
In the Resolution of 6 June 2007, we granted the Office of the Solicitor
Generals motion not to file a comment to the petition as the public
respondent judge is merely a nominal party and private respondent is
represented by counsel.
The Issues
Two questions are presented for resolution: (1) whether petitioner
forfeited his standing to seek relief in S.C.A. 2803 when the MeTC
ordered his arrest following his non-appearance at the arraignment in
Criminal Case No. 82366; and (2) if in the negative, whether petitioners
constitutional right under the Double Jeopardy Clause bars further
proceedings in Criminal Case No. 82366.
The Ruling of the Court
We hold that (1) petitioners non-appearance at the arraignment in
Criminal Case No. 82366 did not divest him of personality to maintain
the petition in S.C.A. 2803; and (2) the protection afforded by the
Constitution shielding petitioner from prosecutions placing him in
jeopardy of second punishment for the same offense bars further
proceedings in Criminal Case No. 82366.
Petitioners Non-appearance at the Arraignment in
Criminal Case No. 82366 did not Divest him of Standing
to Maintain the Petition in S.C.A. 2803
Dismissals of appeals grounded on the appellants escape from custody
or violation of the terms of his bail bond are governed by the second
paragraph of Section 8, Rule 124,8 in relation to Section 1, Rule 125, of
the Revised Rules on Criminal Procedure authorizing this Court or the
Court of Appeals to "also, upon motion of the appellee or motu proprio,
dismiss the appeal if the appellant escapes from prison or confinement,
jumps bail or flees to a foreign country during the pendency of the
appeal." The "appeal" contemplated in Section 8 of Rule 124 is a suit to
review judgments of convictions.
The RTCs dismissal of petitioners special civil action for certiorari to
review a pre-arraignment ancillary question on the applicability of the
Due Process Clause to bar proceedings in Criminal Case No. 82366
finds no basis under procedural rules and jurisprudence. The RTCs
reliance on People v. Esparas9 undercuts the cogency of its ruling
because Esparas stands for a proposition contrary to the RTCs ruling.
There, the Court granted review to an appeal by an accused who was
sentenced to death for importing prohibited drugs even though she
jumped bail pending trial and was thus tried and convicted in absentia.
The Court in Esparas treated the mandatory review of death sentences
under Republic Act No. 7659 as an exception to Section 8 of Rule
124.10
The mischief in the RTCs treatment of petitioners non-appearance at
his arraignment in Criminal Case No. 82366 as proof of his loss of
standing becomes more evident when one considers the Rules of
Courts treatment of a defendant who absents himself from post-
arraignment hearings. Under Section 21, Rule 11411 of the Revised
Rules of Criminal Procedure, the defendants absence merely renders
his bondsman potentially liable on its bond (subject to cancellation
should the bondsman fail to produce the accused within 30 days); the
defendant retains his standing and, should he fail to surrender, will be
tried in absentia and could be convicted or acquitted. Indeed, the 30-day
period granted to the bondsman to produce the accused underscores
the fact that mere non-appearance does not ipso facto convert the
accuseds status to that of a fugitive without standing.
Further, the RTCs observation that petitioner provided "no explanation
why he failed to attend the scheduled proceeding"12 at the MeTC is
belied by the records. Days before the arraignment, petitioner sought
the suspension of the MeTCs proceedings in Criminal Case No. 82366
in light of his petition with the RTC in S.C.A. No. 2803. Following the
MeTCs refusal to defer arraignment (the order for which was released
days after the MeTC ordered petitioners arrest), petitioner sought
reconsideration. His motion remained unresolved as of the filing of this
petition.
Petitioners Conviction in Criminal Case No. 82367
Bars his Prosecution in Criminal Case No. 82366
The accuseds negative constitutional right not to be "twice put in
jeopardy of punishment for the same offense"13protects him from,
among others, post-conviction prosecution for the same offense, with
the prior verdict rendered by a court of competent jurisdiction upon a
valid information.14 It is not disputed that petitioners conviction in
Criminal Case No. 82367 was rendered by a court of competent
jurisdiction upon a valid charge. Thus, the case turns on the question
whether Criminal Case No. 82366 and Criminal Case No. 82367 involve
the "same offense." Petitioner adopts the affirmative view, submitting
that the two cases concern the same offense of reckless imprudence.
The MeTC ruled otherwise, finding that Reckless Imprudence Resulting
in Slight Physical Injuries is an entirely separate offense from Reckless
Imprudence Resulting in Homicide and Damage to Property "as the
[latter] requires proof of an additional fact which the other does not."15
We find for petitioner.
Reckless Imprudence is a Single Crime,
its Consequences on Persons and
Property are Material Only to Determine
the Penalty
The two charges against petitioner, arising from the same facts, were
prosecuted under the same provision of the Revised Penal Code, as
amended, namely, Article 365 defining and penalizing quasi-offenses.
The text of the provision reads:
Imprudence and negligence. Any person who, by reckless
imprudence, shall commit any act which, had it been intentional, would
constitute a grave felony, shall suffer the penalty of arresto mayor in its
maximum period to prision correccional in its medium period; if it would
have constituted a less grave felony, the penalty of arresto mayor in its
minimum and medium periods shall be imposed; if it would have
constituted a light felony, the penalty of arresto menor in its maximum
period shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an
act which would otherwise constitute a grave felony, shall suffer the
penalty of arresto mayor in its medium and maximum periods; if it would
have constituted a less serious felony, the penalty of arresto mayor in
its minimum period shall be imposed.
When the execution of the act covered by this article shall have only
resulted in damage to the property of another, the offender shall be
punished by a fine ranging from an amount equal to the value of said
damages to three times such value, but which shall in no case be less
than twenty-five pesos.
A fine not exceeding two hundred pesos and censure shall be imposed
upon any person who, by simple imprudence or negligence, shall cause
some wrong which, if done maliciously, would have constituted a light
felony.
In the imposition of these penalties, the court shall exercise their sound
discretion, without regard to the rules prescribed in Article sixty-four.
The provisions contained in this article shall not be applicable:
1. When the penalty provided for the offense is equal to or lower than
those provided in the first two paragraphs of this article, in which case
the court shall impose the penalty next lower in degree than that which
should be imposed in the period which they may deem proper to apply.
2. When, by imprudence or negligence and with violation of the
Automobile Law, to death of a person shall be caused, in which case the
defendant shall be punished by prision correccional in its medium and
maximum periods.
Reckless imprudence consists in voluntary, but without malice, doing or
failing to do an act from which material damage results by reason of
inexcusable lack of precaution on the part of the person performing or
failing to perform such act, taking into consideration his employment or
occupation, degree of intelligence, physical condition and other
circumstances regarding persons, time and place.
Simple imprudence consists in the lack of precaution displayed in those
cases in which the damage impending to be caused is not immediate
nor the danger clearly manifest.
The penalty next higher in degree to those provided for in this article
shall be imposed upon the offender who fails to lend on the spot to the
injured parties such help as may be in this hand to give.
Structurally, these nine paragraphs are collapsible into four sub-
groupings relating to (1) the penalties attached to the quasi-offenses of
"imprudence" and "negligence" (paragraphs 1-2); (2) a modified penalty
scheme for either or both quasi-offenses (paragraphs 3-4, 6 and 9); (3)
a generic rule for trial courts in imposing penalties (paragraph 5); and
(4) the definition of "reckless imprudence" and "simple imprudence"
(paragraphs 7-8). Conceptually, quasi-offenses penalize "the mental
attitude or condition behind the act, the dangerous recklessness, lack of
care or foresight, the imprudencia punible,"16 unlike willful offenses
which punish the intentional criminal act. These structural and
conceptual features of quasi-offenses set them apart from the mass of
intentional crimes under the first 13 Titles of Book II of the Revised Penal
Code, as amended.
Indeed, the notion that quasi-offenses, whether reckless or simple, are
distinct species of crime, separately defined and penalized under the
framework of our penal laws, is nothing new. As early as the middle of
the last century, we already sought to bring clarity to this field by
rejecting in Quizon v. Justice of the Peace of Pampanga the proposition
that "reckless imprudence is not a crime in itself but simply a way of
committing it x x x"17 on three points of analysis: (1) the object of
punishment in quasi-crimes (as opposed to intentional crimes); (2) the
legislative intent to treat quasi-crimes as distinct offenses (as opposed
to subsuming them under the mitigating circumstance of minimal intent)
and; (3) the different penalty structures for quasi-crimes and intentional
crimes:
The proposition (inferred from Art. 3 of the Revised Penal Code) that
"reckless imprudence" is not a crime in itself but simply a way of
committing it and merely determines a lower degree of criminal liability
is too broad to deserve unqualified assent. There are crimes that by their
structure cannot be committed through imprudence: murder, treason,
robbery, malicious mischief, etc. In truth, criminal negligence in our
Revised Penal Code is treated as a mere quasi offense, and dealt with
separately from willful offenses. It is not a mere question of classification
or terminology. In intentional crimes, the act itself is punished; in
negligence or imprudence, what is principally penalized is the mental
attitude or condition behind the act, the dangerous recklessness, lack of
care or foresight, the imprudencia punible. x x x x
Were criminal negligence but a modality in the commission of felonies,
operating only to reduce the penalty therefor, then it would be absorbed
in the mitigating circumstances of Art. 13, specially the lack of intent to
commit so grave a wrong as the one actually committed. Furthermore,
the theory would require that the corresponding penalty should be fixed
in proportion to the penalty prescribed for each crime when committed
willfully. For each penalty for the willful offense, there would then be a
corresponding penalty for the negligent variety. But instead, our Revised
Penal Code (Art. 365) fixes the penalty for reckless imprudence at
arresto mayor maximum, to prision correccional [medium], if the willful
act would constitute a grave felony, notwithstanding that the penalty for
the latter could range all the way from prision mayor to death, according
to the case. It can be seen that the actual penalty for criminal negligence
bears no relation to the individual willful crime, but is set in relation to a
whole class, or series, of crimes.18 (Emphasis supplied)
This explains why the technically correct way to allege quasi-crimes is
to state that their commission results in damage, either to person or
property.19
Accordingly, we found the Justice of the Peace in Quizon without
jurisdiction to hear a case for "Damage to Property through Reckless
Imprudence," its jurisdiction being limited to trying charges for Malicious
Mischief, an intentional crime conceptually incompatible with the
element of imprudence obtaining in quasi-crimes.
Quizon, rooted in Spanish law20 (the normative ancestry of our present
day penal code) and since repeatedly reiterated,21 stands on solid
conceptual foundation. The contrary doctrinal pronouncement in People
v. Faller22 that "[r]eckless impudence is not a crime in itself x x x [but]
simply a way of committing it x x x,"23 has long been abandoned when
the Court en banc promulgated Quizon in 1955 nearly two
decades after the Court decided Faller in 1939. Quizon rejected Fallers
conceptualization of quasi-crimes by holding that quasi-crimes under
Article 365 are distinct species of crimes and not merely methods of
committing crimes. Faller found expression in
jurisprudence24 only by dint of lingering doctrinal confusion arising from
an indiscriminate fusion of criminal law rules defining Article 365 crimes
and the complexing of intentional crimes under Article 48 of the Revised
Penal Code which, as will be shown shortly, rests on erroneous
conception of quasi-crimes. Indeed, the Quizonian conception of quasi-
crimes undergirded a related branch of jurisprudence applying the
Double Jeopardy Clause to quasi-offenses, barring second prosecutions
for a quasi-offense alleging one resulting act after a prior conviction or
acquittal of a quasi-offense alleging another resulting act but arising from
the same reckless act or omission upon which the second prosecution
was based.
Prior Conviction or Acquittal
Reckless Imprudence
Subsequent Prosecution for the
Quasi-Offense
The doctrine that reckless imprudence under Article 365 is a single
quasi-offense by itself and not merely a means to commit other crimes
such that conviction or acquittal of such quasi-offense bars subsequent
prosecution for the same quasi-offense, regardless of its various
resulting acts, undergirded this Courts unbroken chain of jurisprudence
on double jeopardy as applied to Article 365 starting with People v.
Diaz,25 decided in 1954. There, a full Court, speaking through Mr.
Justice Montemayor, ordered the dismissal of a case for "damage to
property thru reckless imprudence" because a prior case against the
same accused for "reckless driving," arising from the same act upon
which the first prosecution was based, had been dismissed earlier. Since
then, whenever the same legal question was brought before the Court,
that is, whether prior conviction or acquittal of reckless imprudence bars
subsequent prosecution for the same quasi-offense, regardless of the
consequences alleged for both charges, the Court unfailingly and
consistently answered in the affirmative in
Belga26 (promulgated in 1957 by the Court en banc, per Reyes, J.), Yap
v. Lutero27 (promulgated in 1959, unreported, per Concepcion, J.),
People v. Narvas28 (promulgated in 1960 by the Court en banc, per
Bengzon J.), People v. Silva29 (promulgated in 1962 by the Court en
banc, per Paredes, J.), People v. Macabuhay30 (promulgated in 1966
by the Court en banc, per Makalintal, J.),
Buan31 (promulgated in 1968 by the Court en banc, per Reyes, J.B.L.,
acting C. J.), Buerano v. Court of Appeals32 (promulgated in 1982 by
the Court en banc, per Relova, J.), and People v. City Court of
Manila33 (promulgated in 1983 by the First Division, per Relova, J.).
These cases uniformly barred the second prosecutions
constitutionally impermissible under the Double Jeopardy Clause.
The reason for this consistent stance of extending the constitutional
protection under the Double Jeopardy Clause to quasi-offenses was
best articulated by Mr. Justice J.B.L. Reyes in Buan, where, in barring a
subsequent prosecution for "serious physical injuries and damage to
property thru reckless imprudence" because of the accuseds prior
post-Quizon acquittal of "slight physical injuries thru reckless imprudence," with both
charges grounded on the same act, the Court explained:34
Reason and precedent both coincide in that once convicted or acquitted
of a specific act of reckless imprudence, the accused may not be
prosecuted again for that same act. For the essence of the quasi offense
of criminal negligence under article 365 of the Revised Penal Code lies
in the execution of an imprudent or negligent act that, if intentionally
done, would be punishable as a felony. The law penalizes thus the
negligent or careless act, not the result thereof. The gravity of the
consequence is only taken into account to determine the penalty, it does
not qualify the substance of the offense. And, as the careless act is
single, whether the injurious result should affect one person or several
of persons, the offense (criminal negligence) remains one and the same,
Bars and can not be split into different crimes and prosecutions.35 x x x
Same (Emphasis supplied)
Evidently, the Diaz line of jurisprudence on double jeopardy merely
extended to its logical conclusion the reasoning of Quizon.
There is in our jurisprudence only one ruling going against this unbroken
line of authority. Preceding Diaz by more than a decade, El Pueblo de
Filipinas v. Estipona,36 decided by the pre-war colonial Court in
November 1940, allowed the subsequent prosecution of an accused for
reckless imprudence resulting in damage to property despite his
previous conviction for multiple physical injuries arising from the same
reckless operation of a motor vehicle upon which the second
prosecution was based. Estiponas inconsistency with the post-war Diaz
chain of jurisprudence suffices to impliedly overrule it. At any rate, all
doubts on this matter were laid to rest in 1982 in Buerano.37 There, we
reviewed the Court of Appeals conviction of an accused for "damage to
property for reckless imprudence" despite his prior conviction for "slight
and less serious physical injuries thru reckless imprudence," arising
from the same act upon which the second charge was based. The Court
People v.
of Appeals had relied on Estipona. We reversed on the strength of
Buan:38
Th[e] view of the Court of Appeals was inspired by the ruling of this Court
in the pre-war case of People vs. Estipona decided on November 14,
1940. However, in the case of People vs. Buan, 22 SCRA 1383 (March
People v. 29, 1968), this Court, speaking thru Justice J. B. L. Reyes, held that
Reason and precedent both coincide in that once convicted or acquitted
of a specific act of reckless imprudence, the accused may not be
prosecuted again for that same act. For the essence of the quasi offense
as of criminal negligence under Article 365 of the Revised Penal Code lies
in the execution of an imprudent or negligent act that, if intentionally
done, would be punishable as a felony. The law penalizes thus the
negligent or careless act, not the result thereof. The gravity of the
consequence is only taken into account to determine the penalty, it does
not qualify the substance of the offense. And, as the careless act is
single, whether the injurious result should affect one person or several
persons, the offense (criminal negligence) remains one and the same,
and can not be split into different crimes and prosecutions.
xxxx
. . . the exoneration of this appellant, Jose Buan, by the Justice of the
Peace (now Municipal) Court of Guiguinto, Bulacan, of the charge of
slight physical injuries through reckless imprudence, prevents his being
prosecuted for serious physical injuries through reckless imprudence in
the Court of First Instance of the province, where both charges are
derived from the consequences of one and the same vehicular
accident, because the second accusation places the appellant in second
jeopardy for the same offense.39 (Emphasis supplied)
Thus, for all intents and purposes, Buerano had effectively overruled
Estipona.
It is noteworthy that the Solicitor General in Buerano, in a reversal of his
earlier stance in Silva, joined causes with the accused, a fact which did
not escape the Courts attention:
Then Solicitor General, now Justice Felix V. Makasiar, in his
MANIFESTATION dated December 12, 1969 (page 82 of the Rollo)
admits that the Court of Appeals erred in not sustaining petitioners plea
of double jeopardy and submits that "its affirmatory decision dated
January 28, 1969, in Criminal Case No. 05123-CR finding petitioner
guilty of damage to property through reckless imprudence should be set
aside, without costs." He stressed that "if double jeopardy exists where
the reckless act resulted into homicide and physical injuries. then the
same consequence must perforce follow where the same reckless act
caused merely damage to property-not death-and physical injuries.
Verily, the value of a human life lost as a result of a vehicular collision
cannot be equated with any amount of damages caused to a motors
vehicle arising from the same mishap."40 (Emphasis supplied)
Hence, we find merit in petitioners submission that the lower courts
erred in refusing to extend in his favor the mantle of protection afforded
by the Double Jeopardy Clause. A more fitting jurisprudence could not
be tailored to petitioners case than People v. Silva, 41 a Diaz progeny.
There, the accused, who was also involved in a vehicular collision, was
charged in two separate Informations with "Slight Physical Injuries thru
Reckless Imprudence" and "Homicide with Serious Physical Injuries thru
Reckless Imprudence." Following his acquittal of the former, the
accused sought the quashal of the latter, invoking the Double Jeopardy
Clause. The trial court initially denied relief, but, on reconsideration,
found merit in the accuseds claim and dismissed the second case. In
affirming the trial court, we quoted with approval its analysis of the issue
following Diaz and its progeny People v. Belga:42
On June 26, 1959, the lower court reconsidered its Order of May 2, 1959
and dismissed the case, holding:
[T]he Court believes that the case falls squarely within the doctrine of
double jeopardy enunciated in People v. Belga, x x x In the case cited,
Ciriaco Belga and Jose Belga were charged in the Justice of the Peace
Court of Malilipot, Albay, with the crime of physical injuries through
reckless imprudence arising from a collision between the two
automobiles driven by them (Crim. Case No. 88). Without the aforesaid
complaint having been dismissed or otherwise disposed of, two other
criminal complaints were filed in the same justice of the peace court, in
connection with the same collision one for damage to property through
reckless imprudence (Crim. Case No. 95) signed by the owner of one of
the vehicles involved in the collision, and another for multiple physical
injuries through reckless imprudence (Crim. Case No. 96) signed by the
passengers injured in the accident. Both of these two complaints were
filed against Jose Belga only. After trial, both defendants were acquitted
of the charge against them in Crim. Case No. 88. Following his acquittal,
Jose Belga moved to quash the complaint for multiple physical injuries
through reckless imprudence filed against him by the injured
passengers, contending that the case was just a duplication of the one
filed by the Chief of Police wherein he had just been acquitted. The
motion to quash was denied and after trial Jose Belga was convicted,
whereupon he appealed to the Court of First Instance of Albay. In the
meantime, the case for damage to property through reckless
imprudence filed by one of the owners of the vehicles involved in the
collision had been remanded to the Court of First Instance of Albay after
Jose Belga had waived the second stage of the preliminary
investigation. After such remand, the Provincial Fiscal filed in the Court
of First Instance two informations against Jose Belga, one for physical
injuries through reckless imprudence, and another for damage to
property through reckless imprudence. Both cases were dismissed by
the Court of First Instance, upon motion of the defendant Jose Belga
who alleged double jeopardy in a motion to quash. On appeal by the
Prov. Fiscal, the order of dismissal was affirmed by the Supreme Court
in the following language: .
The question for determination is whether the acquittal of Jose Belga in
the case filed by the chief of police constitutes a bar to his subsequent
prosecution for multiple physical injuries and damage to property
through reckless imprudence.
In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March 30,
1954, the accused was charged in the municipal court of Pasay City with
reckless driving under sec. 52 of the Revised Motor Vehicle Law, for
having driven an automobile in a fast and reckless manner ... thereby
causing an accident. After the accused had pleaded not guilty the case
was dismissed in that court for failure of the Government to prosecute.
But some time thereafter the city attorney filed an information in the
Court of First Instance of Rizal, charging the same accused with damage
to property thru reckless imprudence. The amount of the damage was
alleged to be P249.50. Pleading double jeopardy, the accused filed a
motion, and on appeal by the Government we affirmed the ruling. Among
other things we there said through Mr. Justice Montemayor
The next question to determine is the relation between the first offense
of violation of the Motor Vehicle Law prosecuted before the Pasay City
Municipal Court and the offense of damage to property thru reckless
imprudence charged in the Rizal Court of First Instance. One of the tests
of double jeopardy is whether or not the second offense charged
necessarily includes or is necessarily included in the offense charged in
the former complaint or information (Rule 113, Sec. 9). Another test is
whether the evidence which proves one would prove the other that is to
say whether the facts alleged in the first charge if proven, would have
been sufficient to support the second charge and vice versa; or whether
one crime is an ingredient of the other. x x x
xxxx
The foregoing language of the Supreme Court also disposes of the
contention of the prosecuting attorney that the charge for slight physical
injuries through reckless imprudence could not have been joined with
the charge for homicide with serious physical injuries through reckless
imprudence in this case, in view of the provisions of Art. 48 of the
Revised Penal Code, as amended. The prosecutions contention might
be true. But neither was the prosecution obliged to first prosecute the
accused for slight physical injuries through reckless imprudence before
pressing the more serious charge of homicide with serious physical
injuries through reckless imprudence. Having first prosecuted the
defendant for the lesser offense in the Justice of the Peace Court of
Meycauayan, Bulacan, which acquitted the defendant, the prosecuting
attorney is not now in a position to press in this case the more serious
charge of homicide with serious physical injuries through reckless
imprudence which arose out of the same alleged reckless imprudence
of which the defendant have been previously cleared by the inferior
court.43
Significantly, the Solicitor General had urged us in Silva to reexamine
Belga (and hence, Diaz) "for the purpose of delimiting or clarifying its
application."44 We declined the invitation, thus:
The State in its appeal claims that the lower court erred in dismissing
the case, on the ground of double jeopardy, upon the basis of the
acquittal of the accused in the JP court for Slight Physical Injuries, thru
Reckless Imprudence. In the same breath said State, thru the Solicitor
General, admits that the facts of the case at bar, fall squarely on the
ruling of the Belga case x x x, upon which the order of dismissal of the
lower court was anchored. The Solicitor General, however, urges a re-
examination of said ruling, upon certain considerations for the purpose
of delimiting or clarifying its application. We find, nevertheless, that
further elucidation or disquisition on the ruling in the Belga case, the
facts of which are analogous or similar to those in the present case, will
yield no practical advantage to the government. On one hand, there is
nothing which would warrant a delimitation or clarification of the
applicability of the Belga case. It was clear. On the other, this Court has
reiterated the views expressed in the Belga case, in the identical case
of Yap v. Hon. Lutero, etc., L-12669, April 30, 1959.45 (Emphasis
supplied)
Article 48 Does not Apply to Acts Penalized
Under Article 365 of the Revised Penal Code
The confusion bedeviling the question posed in this petition, to which the
MeTC succumbed, stems from persistent but awkward attempts to
harmonize conceptually incompatible substantive and procedural rules
in criminal law, namely, Article 365 defining and penalizing quasi-
offenses and Article 48 on complexing of crimes, both under the Revised
Penal Code. Article 48 is a procedural device allowing single prosecution
of multiple felonies falling under either of two categories: (1) when a
single act constitutes two or more grave or less grave felonies (thus
excluding from its operation light felonies46); and (2) when an offense is
a necessary means for committing the other. The legislature crafted this
procedural tool to benefit the accused who, in lieu of serving multiple
penalties, will only serve the maximum of the penalty for the most
serious crime.
In contrast, Article 365 is a substantive rule penalizing not an act defined
as a felony but "the mental attitude x x x behind the act, the dangerous
recklessness, lack of care or foresight x x x,"47 a single mental attitude
regardless of the resulting consequences. Thus, Article 365 was crafted
as one quasi-crime resulting in one or more consequences.
Ordinarily, these two provisions will operate smoothly. Article 48 works
to combine in a single prosecution multiple intentional crimes falling
under Titles 1-13, Book II of the Revised Penal Code, when proper;
Article 365 governs the prosecution of imprudent acts and their
consequences. However, the complexities of human interaction can
produce a hybrid quasi-offense not falling under either models that of
a single criminal negligence resulting in multiple non-crime damages to
persons and property with varying penalties corresponding to light, less
grave or grave offenses. The ensuing prosecutorial dilemma is obvious:
how should such a quasi-crime be prosecuted? Should Article 48s
framework apply to "complex" the single quasi-offense with its multiple
(non-criminal) consequences (excluding those amounting to light
offenses which will be tried separately)? Or should the prosecution
proceed under a single charge, collectively alleging all the
consequences of the single quasi-crime, to be penalized separately
following the scheme of penalties under Article 365?
Jurisprudence adopts both approaches. Thus, one line of rulings (none
of which involved the issue of double jeopardy) applied Article 48 by
"complexing" one quasi-crime with its multiple consequences48 unless
one consequence amounts to a light felony, in which case charges were
split by grouping, on the one hand, resulting acts amounting to grave or
less grave felonies and filing the charge with the second level courts
and, on the other hand, resulting acts amounting to light felonies and
filing the charge with the first level courts.49 Expectedly, this is the
approach the MeTC impliedly sanctioned (and respondent Ponce
invokes), even though under Republic Act No. 7691,50 the MeTC has
now exclusive original jurisdiction to impose the most serious penalty
under Article 365 which is prision correccional in its medium period.
Under this approach, the issue of double jeopardy will not arise if the
"complexing" of acts penalized under Article 365 involves only resulting
acts penalized as grave or less grave felonies because there will be a
single prosecution of all the resulting acts. The issue of double jeopardy
arises if one of the resulting acts is penalized as a light offense and the
other acts are penalized as grave or less grave offenses, in which case
Article 48 is not deemed to apply and the act penalized as a light offense
is tried separately from the resulting acts penalized as grave or less
grave offenses.
The second jurisprudential path nixes Article 48 and sanctions a single
prosecution of all the effects of the quasi-crime collectively alleged in
one charge, regardless of their number or severity,51 penalizing each
consequence separately. Thus, in Angeles v. Jose,52 we interpreted
paragraph three of Article 365, in relation to a charge alleging "reckless
imprudence resulting in damage to property and less serious physical
injuries," as follows:
[T]he third paragraph of said article, x x x reads as follows:
When the execution of the act covered by this article shall have only
resulted in damage to the property of another, the offender shall be
punished by a fine ranging from an amount equal to the value of said
damage to three times such value, but which shall in no case be less
than 25 pesos.
The above-quoted provision simply means that if there is only damage
to property the amount fixed therein shall be imposed, but if there are
also physical injuries there should be an additional penalty for the latter.
The information cannot be split into two; one for the physical injuries,
and another for the damage to property, x x x.53 (Emphasis supplied)
By "additional penalty," the Court meant, logically, the penalty scheme
under Article 365.
Evidently, these approaches, while parallel, are irreconcilable.
Coherence in this field demands choosing one framework over the other.
Either (1) we allow the "complexing" of a single quasi-crime by breaking
its resulting acts into separate offenses (except for light felonies), thus
re-conceptualize a quasi-crime, abandon its present framing under
Article 365, discard its conception under the Quizon and Diaz lines of
cases, and treat the multiple consequences of a quasi-crime as separate
intentional felonies defined under Titles 1-13, Book II under the penal
code; or (2) we forbid the application of Article 48 in the prosecution and
sentencing of quasi-crimes, require single prosecution of all the resulting
acts regardless of their number and severity, separately penalize each
as provided in Article 365, and thus maintain the distinct concept of
quasi-crimes as crafted under Article 365, articulated in Quizon and
applied to double jeopardy adjudication in the Diaz line of
cases.1avvphi1
A becoming regard of this Courts place in our scheme of government
denying it the power to make laws constrains us to keep inviolate the
conceptual distinction between quasi-crimes and intentional felonies
under our penal code. Article 48 is incongruent to the notion of quasi-
crimes under Article 365. It is conceptually impossible for a quasi-
offense to stand for (1) a single act constituting two or more grave or
less grave felonies; or (2) an offense which is a necessary means for
committing another. This is why, way back in 1968 in Buan, we rejected
the Solicitor Generals argument that double jeopardy does not bar a
second prosecution for slight physical injuries through reckless
imprudence allegedly because the charge for that offense could not be
joined with the other charge for serious physical injuries through reckless
imprudence following Article 48 of the Revised Penal Code:
The Solicitor General stresses in his brief that the charge for slight
physical injuries through reckless imprudence could not be joined with
the accusation for serious physical injuries through reckless
imprudence, because Article 48 of the Revised Penal Code allows only
the complexing of grave or less grave felonies. This same argument was
considered and rejected by this Court in the case of People vs. [Silva] x
x x:
[T]he prosecutions contention might be true. But neither was the
prosecution obliged to first prosecute the accused for slight physical
injuries through reckless imprudence before pressing the more serious
charge of homicide with serious physical injuries through reckless
imprudence. Having first prosecuted the defendant for the lesser offense
in the Justice of the Peace Court of Meycauayan, Bulacan, which
acquitted the defendant, the prosecuting attorney is not now in a position
to press in this case the more serious charge of homicide with serious
physical injuries through reckless imprudence which arose out of the
same alleged reckless imprudence of which the defendant has been
previously cleared by the inferior court.
[W]e must perforce rule that the exoneration of this appellant x x x by
the Justice of the Peace x x x of the charge of slight physical injuries
through reckless imprudence, prevents his being prosecuted for serious
physical injuries through reckless imprudence in the Court of First
Instance of the province, where both charges are derived from the
consequences of one and the same vehicular accident, because the
second accusation places the appellant in second jeopardy for the same
offense.54 (Emphasis supplied)
Indeed, this is a constitutionally compelled choice. By prohibiting the
splitting of charges under Article 365, irrespective of the number and
severity of the resulting acts, rampant occasions of constitutionally
impermissible second prosecutions are avoided, not to mention that
scarce state resources are conserved and diverted to proper use.
Hence, we hold that prosecutions under Article 365 should proceed from
a single charge regardless of the number or severity of the
consequences. In imposing penalties, the judge will do no more than
apply the penalties under Article 365 for each consequence alleged and
proven. In short, there shall be no splitting of charges under Article 365,
and only one information shall be filed in the same first level court.55
Our ruling today secures for the accused facing an Article 365 charge a
stronger and simpler protection of their constitutional right under the
Double Jeopardy Clause. True, they are thereby denied the beneficent
effect of the favorable sentencing formula under Article 48, but any
disadvantage thus caused is more than compensated by the certainty of
non-prosecution for quasi-crime effects qualifying as "light offenses" (or,
as here, for the more serious consequence prosecuted belatedly). If it is
so minded, Congress can re-craft Article 365 by extending to quasi-
crimes the sentencing formula of Article 48 so that only the most severe
penalty shall be imposed under a single prosecution of all resulting acts,
whether penalized as grave, less grave or light offenses. This will still
keep intact the distinct concept of quasi-offenses. Meanwhile, the lenient
schedule of penalties under Article 365, befitting crimes occupying a
lower rung of culpability, should cushion the effect of this ruling.

WHEREFORE, we GRANT the petition. We REVERSE the Orders

dated 2 February 2006 and 2 May 2006 of the Regional Trial Court of
Pasig City, Branch 157. We DISMISS the Information in Criminal Case
No. 82366 against petitioner Jason Ivler y Aguilar pending with the
Metropolitan Trial Court of Pasig City, Branch 71 on the ground of double
jeopardy.

Let a copy of this ruling be served on the President of the Senate and
the Speaker of the House of Representatives.
EN BANC
G.R. No. L-1477 January 18, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JULIO GUILLEN, defendant-appellant.
Mariano A. Albert for appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor
Francisco A. Carreon for appellee.
PER CURIAM, J.:
This case is before us for review of, and by virtue of appeal from, the
judgment rendered by the Court of First Instance of Manila in case No.
2746, whereby Julio Guillen y Corpus, or Julio C. Guillen, is found guilty
beyond reasonable doubt of the crime of murder and multiple frustrated
murder, as charged in the information, and is sentenced to the penalty
of death, to indemnify the of the deceased Simeon Valera (or Barrela) in
the sum of P2,000 and to pay the costs.
Upon arraignment the accused entered a plea of not guilty to the
charges contained in the information.
Then the case was tried in one of the branches of the Court of First
Instance of Manila presided over by the honorable Buenaventura
Ocampo who, after the submission of the evidence of the prosecution
and the defense, rendered judgment as above stated.
In this connection it should be stated that, at the beginning of the trial
and before arraignment, counsel de oficio for the accused moved that
the mental condition of Guillen be examined. The court, notwithstanding
that it had found out from the answers of the accused to questions
propounded to him in order to test the soundness of his mind, that he
was not suffering from any mental derangement, ordered that Julio
Guillen be confined for Hospital, there to be examined by medical
experts who should report their findings accordingly. This was done,
and, according to the report of the board of medical experts, presided
over by Dr. Fernandez of the National Psychopathic Hospital, Julio
Guillen was not insane. Said report (Exhibit L), under the heading
"Formulation and Diagnosis," at pages 13 and 14, reads:
FORMULATION AND DIAGNOSIS
Julio C. Guillen was placed under constant observation since admission.
There was not a single moment during his whole 24 hours daily, that he
was not under observation.
The motive behind the commission of the crime is stated above. The
veracity of this motivation was determined in the Narcosynthesis. That
the narco-synthesis was successful was checked up the day after the
test. The narco-synthesis proved not only reveal any conflict or complex
that may explain a delusional or hallucinatory motive behind the act.
Our observation and examination failed to elicit any sign or symptom of
insanity in Mr. Julio C. Guillen. He was found to be intelligent, always
able to differentiate right from wrong, fully aware of the nature of the
crime he committed and is equally decided to suffer for it in any manner
or form.
His version of the circumstances of the crime, his conduct and
conversation relative thereto, the motives, temptations and provocations
that preceded the act, were all those of an individual with a sound mind.
On the other hand he is an man of strong will and conviction and once
arriving at a decision he executes, irrespective of consequences and as
in this case, the commission of the act at Plaza Miranda.
What is of some interest in the personality of Julio C. Guillen is his
commission of some overt acts. This is seen not only in the present
instance, but sometime when an employee in la Clementina Cigar
Factory he engaged in a boxing bout Mr. Manzano, a Span-wanted to
abuse the women cigar makers, and felt it his duty to defend them. One
time he ran after a policeman with a knife in hand after being provoked
to a fight several times. He even challenged Congressman Nueno to a
fight sometime before when Mr. Nueno was running for a seat in the
Municipal Board of the City of Manila, after hearing him deliver one of
his apparently outspoken speeches.
All these mean a defect in his personality characterized by a weakness
of censorship especially in relation to rationalization about the
consequences of his acts.
In view of the above findings it is our considered opinion that Julio C.
Guillen is not insane but is an individual with a personality defect which
in Psychiatry is termed, Constitutional Psychopathic Inferiority.
Final Diagnosis
Not insane: Constitutional Psychopathic Inferiority, without psychosis.
In view of the above-quoted findings of the medical board, and
notwithstanding the contrary opinion of one Dr. Alvarez, who was asked
by the defense to give his opinion on the matter, the court ruled that
Guillen, not being insane, could be tired, as he was tired, for the offenses
he committed on the date in question.
THE FACTS
Upon careful perusal of the evidence and the briefs submitted by
counsel for the accused, the Solicitor General and their respective
memoranda, we find that there is no disagreement between the
prosecution and the defense, as to the essential facts which caused the
filing of the present criminal case against this accused. Those facts may
be stated as follows:
On the dates mentioned in this decision, Julio Guillen y Corpus, although
not affirmed with any particular political group, has voted for the defeated
candidate in the presidential elections held in 1946. Manuel A. Roxas,
the successful candidate, assumed the office of President of the
Commonwealth and subsequently President of the President of the
Philippine Republic. According to Guillen, he became disappointed in
President Roxas for his alleged failure to redeem the pledges and fulfill
the promises made by him during the presidential election campaign;
and his disappointment was aggravated when, according to him,
President Roxas, instead of looking after the interest of his country,
sponsored and campaigned for the approval of the so-called "parity"
measure. Hence he determined to assassinate the President.
After he had pondered for some time over the ways and means of
assassinating President Roxas, the opportunity presented itself on the
night of March 10, 1947, when at a popular meeting held by the Liberal
Party at Plaza de Miranda, Quiapo, Manila attended by a big crowd,
President Roxas, accompanied by his wife and daughter and
surrounded by a number of ladies and gentlemen prominent in
government and politics, stood on a platform erected for that purpose
and delivered his speech expounding and trying to convince his
thousand of listeners of the advantages to be gained by the Philippines,
should the constitutional amendment granting American citizens the
same rights granted to Filipino nationals be adopted.
Guillen had first intended to use a revolver for the accomplishment of his
purpose, but having lost said firearm, which was duly licensed, he
thought of two hand grenades which were given him by an American
soldier in the early days of the liberation of Manila in exchange for two
bottles of whisky. He had likewise been weighing the chances of killing
President Roxas, either by going to Malacaan, or following his intended
victim in the latter's trips to provinces, for instance, to Tayabas (now
Quezon) where the President was scheduled to speak, but having
encountered many difficulties, he decided to carry out his plan at the
pro-parity meeting held at Plaza de Miranda on the night of March 10,
1947.
On the morning of that he went to the house of Amando Hernandez
whom he requested to prepare for him a document (Exhibit B), in
accordance with their pervious understanding in the preceding
afternoon, when they met at the premises of the Manila Jockey Club on
the occasion of an "anti-parity" meeting held there. On account of its
materially in this case, we deem it proper to quote hereunder the
contents of said document. An English translation (Exhibit B-2) from its
original Tagalog reads:
FOR THE SAKE OF A FREE PHILIPPINES
I am the only one responsible for what happened. I conceived it, I
planned it, and I carried it out all by myself alone. It took me many days
and nights pondering over this act, talking to my own conscience, to my
God, until I reached my conclusion. It was my duty.
I did not expected to live long; I only had on life to spare. And had I
expected to lives to spare, I would not have hesitated either ton sacrifice
it for the sake of a principle which was the welfare of the people.
Thousands have died in Bataan; many more have mourned the loss of
their husbands, of their sons, and there are millions now suffering. Their
deeds bore no fruits; their hopes were frustrated.
I was told by my conscience and by my God that there was a man to be
blamed for all this: he had deceived the people, he had astounded them
with no other purpose than to entice them; he even went to the extent of
risking the heritage of our future generations. For these reasons he
should not continue any longer. His life would mean nothing as
compared with the welfare of eighteen million souls. And why should I
not give up my life too if only the good of those eighteen million souls.
These are the reasons which impelled me to do what I did and I am
willing to bear up the consequences of my act. I t matters not if others
will curse me. Time and history will show, I am sure, that I have only
displayed a high degree of patriotism in my performance of my said act.
Hurrah for a free Philippines.
Cheers for the happiness of every Filipino home.
May God pity on me.
Amen.
JULIO C. GUILLEN
A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the
request of Guillen by his nephew, was handed to him only at about 6
o'clock in the afternoon of March 10, 1947, for which reason said Exhibit
B-1 appears unsigned, because he was in a hurry for that meeting at
Plaza de Miranda.
When he reached Plaza de Miranda, Guillen was carrying two hand
grenades concealed in a paper bag which also contained peanuts. He
buried one of the hand grenades (Exhibit D), in a plant pot located close
to the platform, and when he decided to carry out his evil purpose he
stood on the chair on which he had been sitting and, from a distance of
about seven meters, he hurled the grenade at the President when the
latter had just closed his speech, was being congratulated by
Ambassador Romulo and was about to leave the platform.
General Castaeda, who was on the platform, saw the smoking, hissing,
grenade and without losing his presence of mind, kicked it away from
the platform, along the stairway, and towards an open space where the
general thought the grenade was likely to do the least harm; and,
covering the President with his body, shouted to the crowd that
everybody should lie down. The grenade fell to the ground and exploded
in the middle of a group of persons who were standing close to the
platform. Confusion ensued, and the crowd dispersed in a panic. It was
found that the fragments of the grenade had seriously injured Simeon
Varela (or Barrela ) who died on the following day as the result of
mortal wounds caused by the fragments of the grenade (Exhibits F and
F-1) Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang.
Guillen was arrested by members of the Police Department about two
hours after the occurrence. It appears that one Angel Garcia, who was
one spectators at that meeting, saw how a person who was standing
next to him hurled an object at the platform and, after the explosion, ran
away towards a barber shop located near the platform at Plaza de
Miranda. Suspecting that person was the thrower of the object that
exploded, Garcia went after him and had almost succeeded in holding
him, but Guillen offered stiff resistance, got loose from Garcia and
managed to escape. Garcia pursued him, but some detectives,
mistaking the former for the real criminal and the author of the explosion,
placed him under arrest. In the meantime, while the City Mayor and
some agents of the Manila Police Department were investigating the
affair, one Manuel Robles volunteered the information that the person
with whom Angel Garcia was wrestling was Julio Guillen; that he
(Manuel Robles) was acquainted with Julio Guillen for the previous ten
years and had seen each other in the plaza a few moments previous to
the explosion.
The police operatives interrogated Garcia and Robles, and Julio Guillen
was, within two hours after the occurrence, found in his home at 1724
Juan Luna Street, Manila, brought to the police headquarters and
identified by Angel Garcia, as the same person who hurled towards the
platform the object which exploded and whom Garcia tried to hold when
he was running away.
During the investigation conducted by the police he readily admitted his
responsibility, although at the same time he tried to justify his action in
throwing the bomb at President Roxas. He also indicated to his captors
the place where he had hidden his so called last will quoted above and
marked Exhibit B, which was then unsigned by him and subsequently
signed at the police headquarters.
Re-enacting the crime (Exhibit C), he pointed out to the police where he
had buried (Exhibit C-1) the other hand grenade (Exhibit D), and, in the
presence of witnesses he signed a statement which contained his
answers to question propounded to him by Major A. Quintos of the
Manila Police, who investigated him soon after his arrest (Exhibit E).
From a perusal of his voluntary statement, we are satisfied that it tallies
exactly with the declarations and made by him on the witness stand
during the trial of this case.
THE ISSUES
In the brief submitted by counsel de oficio for this appellant, several
errors are assigned allegedly committed by the trial court, namely: first,
"in finding the appellant guilty of murder for the death of Simeon
Varela"; second, "in declaring the appellant guilty of the complex crime
of murder and multiple frustrated murder"; third, "in applying sub-section
1 of article 49 of the Revised Penal Code in determining the penalty to
be imposed upon the accused"; andfourth, "in considering the
concurrence of the aggravating circumstances of nocturnity and of
contempt of public authorities in the commission of crime."
The evidence for the prosecution, supported by the brazen statements
made by the accused, shows beyond any shadow of doubt that, when
Guillen attended that meeting, carrying with him two hand grenades, to
put into execution his preconceived plan to assassinate President
Roxas, he knew fully well that, by throwing one of those two hand
grenades in his possession at President Roxas, and causing it to
explode, he could not prevent the persons who were around his main
and intended victim from being killed or at least injured, due to the highly
explosive nature of the bomb employed by him to carry out his evil
purpose.
Guillen, testifying in his own behalf, in answer to questions propounded
by the trial judge (page 96 of transcript) supports our conclusion. He
stated that he performed the act voluntarily; that his purpose was to kill
the President, but that it did not make any difference to him if there were
some people around the President when he hurled that bomb, because
the killing of those who surrounded the President was tantamount to
killing the President, in view of the fact that those persons, being loyal
to the President being loyal to the President, were identified with the
latter. In other word, although it was not his main intention to kill the
persons surrounding the President, he felt no conjunction in killing them
also in order to attain his main purpose of killing the President.
The facts do not support the contention of counsel for appellant that the
latter is guilty only of homicide through reckless imprudence in regard to
the death of Simeon Varela and of less serious physical injuries in regard
to Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang, and
that he should be sentenced to the corresponding penalties for the
different felonies committed, the sum total of which shall not exceed
three times the penalty to be imposed for the most serious crime in
accordance with article 70 in relation to article 74 of the Revised Penal
Code.
In throwing hand grenade at the President with the intention of killing
him, the appellant acted with malice. He is therefore liable for all the
consequences of his wrongful act; for in accordance with article 4 of the
Revised Penal Code, criminal liability is incurred by any person
committing felony (delito) although the wrongful act done be different
from that which he intended. In criminal negligence, the injury caused to
another should be unintentional, it being simply the incident of another
act performed without malice. (People vs. Sara, 55 Phil., 939.) In the
words of Viada, "in order that an act may be qualified as imprudence it
is necessary that either malice nor intention to cause injury should
intervene; where such intention exists, the act should qualified by the
felony it has produced even though it may not have been the intention
of the actor to cause an evil of such gravity as that produced.' (Viada's
Comments on the Penal Code, vol. 7, 5th ed., p.7.) And, as held by this
Court, a deliberate intent to do an unlawful act is essentially inconsistent
with the idea of reckless imprudence. (People vs. Nanquil, 43 Phil., 232.)
Where such unlawful act is wilfully done, a mistake in the identity of the
intended victim cannot be considered as reckless imprudence. (People
vs. Gona, 54 Phil., 605)
Squarely on the point by counsel is the following decision of the
Supreme Court of Spain:
Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B
a comprar tabaco, y habiendose negado este a darselo al fiado, se retira
a quel sin mediar entre ambos disputa alguna; pero; trnscurrido un
cuarto de hora, hallandose el estanquero despachando a C, se oye la
detonacion de un arma de fuego disparada por A desde la calle,
quedando muertos en el acto C y el estanquero; supuesta la no
intencion en A de matar a C y si solo al estanquero, cabe calificar la
muerte de este de homicidio y la de c de imprudencia temeraria? La
Sala de lo Criminal de la Auudiencia de Granada lo estimo asi, y
condeno al procesado a catorse anos de reclusion por el homivcidio y a
un ao de prision correctional por la imprudencia. Aparte de que la
muerte del estanquero debio calificarse de assesinato y no de
homicidio, por haberse ejecutado con aleviosa. es evidente que la
muerte de C, suponiendo que no se propusiera ejecutaria el procesado,
no pudo calificarse de imprudencia teme raria, sino que tambien debio
declararsele responsable de la misma, a tenor de lo puesto en este
apartado ultimo del articulo; y que siendo ambas muertes producidas
por un solo hecho, o sea por un solo disparo, debio imponerse al reo la
pena del delito de asesinato en el grado maximo, a tenor de lo dispuesto
en el art. 90 del Codigo, o sea la pena de muerte. Se ve, pues,
claramente que en el antedicha sentencia, aparte de otros articulos del
Codigo, se infringio por la Sala la disposicion de este apartado ultimo
del articulo muy principalmente, y asi lo declaro el Tribunal Supremo en
S. de 18 junio de 1872. (Gaceta de 1,0 de agosto.) (I Viada, 5th Ed., p.
42.)
Article 48 of the Revised Penal Code provides as follows:
Art. 48. Penalty for Complex Crimes. When a single act constitutes
two or more grave or less grave felonies, or when an offense is a
necessary means for committing the other, the penalty for the most
serious crime shall be imposed, the same to be applied in its maximum
period.
We think it is the above-quoted article and not paragraph 1 of article 49
that is applicable. The case before us is clearly governed by the first
clause of article 48 because by a single act, that a throwing highly
explosive hand grenade at President Roxas, the accused committed two
grave felonies, namely: (1) murder, of which Simeon Varela was the
victim; and (2) multiple attempted murder, of which President Roxas,
Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang were the
injured parties.
other than his own spontaneous desistance." For the same reason we
qualify the injuries caused on the four other persons already named as
merely attempted and not frustrated murder.
In this connection, it should be stated that , although there is abundant
proof that , in violation of the provisions of article 148 of the Revised
Penal Code, the accused Guillen has committed among others the
offense of assault upon a person in authority, for in fact his efforts were
directed towards the execution of his main purpose of eliminating
President Roxas for his failure to redeem his electoral campaign
promises, by throwing at him in his official capacity as the Chief
Executive of the nation the hand grenade in question, yet, in view of the
appropriate allegation charging Guillen with the commission of said
offense, we shall refrain making a finding to that effect.
The complex crimes of murder and multiple attempted murder
committed by the accused with the single act of throwing a hand grenade
at the President, was attended by the various aggravating
circumstances alleged in the information, without any mitigating
circumstance. But we do not deem it necessary to consider said
aggravating circumstances because in any event article 48 of the
Revised Penal Code above-quoted requires that the penalty for the most
serious of said crimes be applied in its maximum period. The penalty for
murder is reclusion temporal in its maximum period to death. (Art. 248.)
It is our painful duty to apply the law and mete out to the accused the
extreme penalty provided by it upon the facts and circumstances
hereinabove narrated.
The sentence of the trial court being correct, we have no alternative but
to affirm it, and we hereby do so by a unanimous vote. The death
sentence shall be executed in accordance with article 81 of the Revised
Penal Code, under authority of the Director of Prisons, on such working
day as the trial court may fix within 30 days from the date the record
shall have been remanded. It is so ordered.
Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Padilla, Tuason,
Montemayor, Reyes and Torres, JJ., concur.

The killing of Simeon Varela was attended by the qualifying

circumstance of treachery. In the case of People vs. Mabug-at, supra,
this court held that the qualifying circumstance of treachery may be
properly considered, even when the victim of the attack was not the one
whom the defendant intended to kill, if it appears from the evidence that
neither of the two persons could in any manner put up defense against
the attack, or become aware of it. In the same case it was held that the
qualifying circumstance of premeditation may not be properly taken into
the account when the person whom the defendant proposed to kill was
different from the one who became his victim.

There can be no question that the accused attempted to kill President

Roxas by throwing a hand grenade at him with the intention to kill him,
thereby commencing the commission of a felony by over acts, but he did
not succeed in assassinating him "by reason of some cause or accident
[G.R. No. 123485. August 31, 1998] Honorable Court, the above-named accused, conspiring, confederating
and mutually helping one another, armed with high-powered firearms,
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLUSAPE
with intent to kill and treachery, did [then] and there wilfully, unlawfully
SABALONES alias Roling, ARTEMIO TIMOTEO BERONGA,
and feloniously attack, assault and shoot ALFREDO NARDO, who was
TEODULO ALEGARBES and EUFEMIO CABANERO, accused,
riding on a jeep and who gave no provocation, thereby inflicting upon
ROLUSAPE SABALONES alias Roling and ARTEMIO TIMOTEO
the latter several gunshot wounds, thereby causing his instantaneous
BERONGA, accused-appellants.
death.
DECISION
CONTRARY TO Article 248 of the Revised Penal Code.
PANGANIBAN, J.:
3) Crim Case No. CBU-9259 for frustrated murder:
Factual findings of trial courts which are affirmed by the Court of Appeals
That on the 1st day of June, 1985 at 11:45 oclock in the evening, more
are, as a general rule, binding and conclusive upon the Supreme
or less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Court. Alibi, on the other hand, cannot prevail over positive identification
Province of Cebu, Philippines, and within the jurisdiction of this
by credible witnesses. Furthermore, alleged violations of constitutional
Honorable Court, the above-named accused conspiring, confederating
rights during custodial investigation are relevant only when the
and mutually helping one another, armed with high-powered firearms,
conviction of the accused by the trial court is based on the evidence
with intent to kill and treachery, did and there wilfully, unlawfully and
obtained during such investigation.
feloniously attack, assault and shoot REY BOLO who was riding in a car
The Case and who gave no provocation, thereby inflicting upon the latter the
following injuries to wit:
These are the principles relied upon by the Court in resolving this appeal
from the Court of Appeals (CA)[1] Decision[2] dated September 28, laceration, mouth due to gunshot wound, gunshot wound (L) shoulder

1995, convicting Rolusape Sabalones and Timoteo Beronga of murder penetrating (L) chest; gunshot wound (R) hand (palm); open fracture (L)

and frustrated murder. The convictions arose from a shooting incident clavicle (L) scapula; contusion (L) lung;
on June 1, 1985 in Talisay, Cebu, which resulted in the killing of two
thereby performing all the acts of execution which would produce the
persons and the wounding of three others, who were all riding in two
crime of [m]urder as a consequence but which, nevertheless, did not
vehicles which were allegedly ambushed by appellants.
produce it by reason of causes independent of the will of the perpetrator,
After conducting a preliminary investigation, Second Assistant Provincial i.e. the timely medical attendance.
Prosecutor Juanito M. Gabiana Sr. filed before the Regional Trial Court
IN VIOLATION of Article 248 of the Revised Penal Code.
(RTC) of Cebu City, Branch 7,[3] five amended Informations charging
four John Does, who were later identified as Rolusape Sabalones, 4) Criminal Case No. 9260 for frustrated murder:
Artemio Timoteo Beronga, Teodulo Alegarbes and Eufemio Cabanero,
That on the 1st day of June, 1985 at 11:45 oclock in the evening, more
with two counts of murder and three counts of frustrated murder. The
or less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Informations are quoted hereunder.
Province of Cebu, Philippines, and within the jurisdiction of this
1) Crim Case No. CBU-9257 for murder: Honorable Court, the above-named accused conspiring, confederating
and mutually helping one another, armed with high-powered firearms,
That on the 1st day of June, 1985, at 11:45 oclock in the evening, more
with intent to kill and treachery, did then and there wilfully, unlawfully and
or less, at Mansueto Village, Bulacao, Municipality of Talisay, Province
feloniously attack, assault and shoot ROGELIO PRESORES, who was
of Cebu, Philippines, and within the jurisdiction of this Honorable Court,
riding in a car and who gave no provocation, thereby inflicting upon the
the above-named accused, conspiring, confederating and mutually
latter the following injuries, to wit:
helping one another, armed with high-powered firearms, with intent to
kill and treachery, did then and there wilfully, unlawfully and feloniously gunshot wound, thru and thru right chest
attack, assault and shoot GLENN TIEMPO, who was riding [i]n a jeep
thereby performing all the acts of execution which would produce the
and who gave no provocation, thereby inflicting upon the latter several
crime of [m]urder as a consequence but which, nevertheless, did not
gunshot wounds, thereby causing his instantaneous death.
produce it by reason of causes independent of the will of the perpetrator,
CONTRARY TO Article 248 of the Revised Penal Code. i.e. the timely medical attendance.

2) Criminal Case No. 9258 for murder: IN VIOLATION of Article 248 of the Revised Penal Code.

That on the 1st day of June, 1985 at 11:45 oclock in the evening, more 5) Criminal Case No. 9261 for frustrated murder:
or less at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this
That on the 1st day of June, 1985 at 11:45 oclock in the evening, more
or less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused conspiring, confederating
and mutually helping one another, armed with high-powered firearms,
with intent to kill and treachery, did then and there wilfully, unlawfully and
feloniously attack, assault and shoot NELSON TIEMPO, who was riding
in a car and who gave no provocation, thereby inflicting upon the latter
the following injuries, to wit:
Gunshot wound neck penetrating wound perforating trachea (cricoid)
thereby performing all the acts of execution which would produce the
crime of [m]urder as a consequence but which nevertheless, did not
produce it by reason of causes independent of the will of the perpetrator,
i.e. the timely medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.
Of the four indictees in the five Informations, Teodulo Alegarbes and
Artemio Timoteo Beronga were the first to be arraigned. Upon the arrest
of the two, the Informations were amended by the public prosecutor, with
the conformity of the defense counsel, by substituting the names of the
two accused for the John Does appearing in the original
Informations. When arraigned, said accused, assisted by their
respective lawyers, pleaded not guilty to the five Informations.
Alegarbes died in the course of trial; thus, the cases against him were
dismissed. Accused Cabanero remained at large. Sabalones, on the
other hand, was eventually arrested. Subsequently, he jumped bail but
was recaptured in 1988 and thereafter pleaded not guilty during his
arraignment.
The cases against Sabalones and Beronga were jointly
tried. Thereafter, the lower court found them guilty beyond reasonable
doubt of the crimes charged. The RTC disposed as follows:
WHEREFORE, premises above-set forth, the Court finds accused
ROLUSAPE SABALONES and (ARTEMIO) TIMOTEO BERONGA,
[g]uilty beyond reasonable doubt, as principals:
In Crim. Case No. CBU-9257, for MURDER, defined and penalized in
Art. 248 of the Revised Penal Code, hereby sentences each said
accused to suffer the penalty of [f]ourteen (14) years, [e]ight (8) months
and [o]ne (1) day, as minimum, to [s]eventeen (17) years, [f]our (4)
months and [o]ne (1) day, of [r]eclusion [t]emporal, as maximum, to
indemnify the heirs of deceased, Glenn Tiempo, the sum of P50,000.00;
In Crim. Case No. CBU-9258, for MURDER, defined and penalized in
Art. 248 of the Revised Penal Code, hereby sentences each said
accused to suffer the penalty of [f]ourteen (14) years, [e]ight (8) months
and [o]ne (1) day, as minimum, to [s]eventeen (17) years, [f]our (4)
months and [o]ne (1) day, of [r]eclusion [t]emporal, as maximum, to
indemnify the heirs of deceased, Alfredo Nardo, the sum of P50,000.00;
In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, defined and
penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code,
hereby sentences each said accused to suffer the penalty of [e]ight (8)
years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight
(8) months of [re]clusion [t]emporal, as maximum, to indemnify the
victim, Rey Bolo, the sum of P20,000.00;
In Crim. Case No. CBU-9260, for FRUSTRATED MURDER, defined and
penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code,
hereby sentences each said accused to suffer the penalty of [e]ight (8)
years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight
months of [r]eclusion [t]emporal, as maximum, to indemnify the victim,
Rogelio Presores, the sum of P20,000.00;
In Crim. Case no. CBU-9261, for FRUSTRATED MURDER, defined and
penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code,
hereby sentences each said accused to suffer the penalty of [e]ight (8)
years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight
(8) months of [r]eclusion [t]emporal, as maximum, to indemnify the
victim, Nelson Tiempo, the sum of P20,000.00; and
To pay the costs in all instances. The period of their preventive
imprisonment shall be credited to each accused in full.
SO ORDERED.[4]
Appellants filed a notice of appeal to the Court of Appeals. Thereafter,
the CA affirmed their conviction but sentenced them to reclusion
perpetua for the murders they were found guilty of. Accordingly, the
appellate court, without entering judgment, certified the case to the
Supreme Court in accordance with Section 13, Rule 124 of the Rules of
Court. The dispositive portion of the CA Decision reads:
WHEREFORE, the Decision of the trial court convicting accused-
appellants Rolusa[p]e Sabalones and Artemio Timoteo Beronga for
murder in Crim. Cases Nos. CBU-9257 and CBU-9258, and [f]rustrated
[m]urder in Crim. Cases Nos. CBU-9259, CBU-9260, and CBU-9261 is
hereby AFFIRMED; however, the penalties in the [f]rustrated [m]urder
and [m]urder cases are hereby MODIFIED, such that both accused-
appellants are each sentenced to imprisonment of TEN (10) YEARS of
[p]rision [m]ayor medium as minimum to SEVENTEEN (17) YEARS and
FOUR (4) MONTHS of [r]eclusion [t]emporal medium as maximum in
each of the three [f]rustrated [m]urder cases (Crim. Cases Nos. CBU-
9259, CBU-9260 and CBU-9261); and are each sentenced to
[r]eclusion [p]erpetua in each of the two [m]urder cases (Crim. Cases
Nos. CBU-9257 and CBU-9258). The indemnity to the victim in each
[f]rustrated [m]urder case shall remain. In conformity with Rule 124,
Section 13 of the Rules of Court, however, this Court refrains from
entering judgment, and hereby certifies the case and orders that the
entire record hereof be elevated to the Supreme Court for review.[5]
After the Court of Appeals certified the case to this Court, we required
appellants to file supplemental briefs. Appellants failed to comply within
the prescribed period and were deemed to have waived their right to do
so.[6] Thus, in resolving this case, this Court will address primarily the
arguments raised by the appellants in their Brief before the Court of
Appeals, which assailed the RTC Decision.
The Facts
Version of the Prosecution
The solicitor general[7] quoted the following factual findings of the trial
court:
Edwin Santos, a resident of Mambaling, Cebu City stated that on June
1, 1985 at 6:00 oclock in the evening, he was at the residence of Inday
Presores, sister of Rogelio Presores, located at Rizal Ave., Cebu City to
attend a wedding. He stayed until 9:00 oclock in the evening and
proceeded to the house of Maj. Tiempo at Basak, Mambaling, Cebu City
where a small gathering was also taking place. (pp. 3-6, tsn, April 7,
1987)
Arriving thereat, he saw Nelson and Glenn Tiempo as well as Rogelio
Presores, Rogelio Oliveros, Junior Villoria, Rey Bolo and Alfredo
Nardo. (p. 7, ibid.)
At about 11:00 oclock in the evening, Stephen Lim, who was also at the
party, called their group and requested them to push his car. When the
engine started, the former asked them to drive his car home. (pp. 7-
11, ibid.)
Together with Nelson Tiempo, who was at the wheel, Rogelio Presores,
Rogelio Oliveros and Junior Villoria, they drove to the residence of
Stephen Lim at Mansueto Compound, Bulacao, Talisay, Cebu. (p.
12, ibid.)
Glenn Tiempo, Rey Bolo and Alfredo Nardo also went with them riding
in an owner-type jeep, driven by the latter, in order to bring back the
group [as] soon as the car of Mr. Lim was parked in his home. (p.
21, ibid.)
The two vehicles traveled in convoy with the jeep 3 to 4 meters ahead
of the car. When they arrived at the gate of the house of Stephen Lim,
they were met with a sudden burst of gunfire. He looked at the direction
where the gunfire came, and saw [the] persons [who] fired at the
jeep. He identified accused, Teodulo Alegarbes, Rolusape Sabalones
and Timoteo Beronga as the persons who fired at the vehicle.Except for
Teodulo Alegarbes, who was naked from [the] waist up, the gunmen
wore clothes. (pp. 21-23; 13-16; 33, ibid.)
After firing at the jeep, the assailants shot the car they were riding[,]
hitting Nelson Tiempo on the throat and Rogelio Presores on the
breast. Despite the injury he sustained, Nelson Tiempo was able to
maneuver the car back to their residence. (pp. 17-19, ibid.)
He immediately informed Maj. Tiempo about the incident and the lat[t]er
brought the victims to the Cebu Doctors Hospital. (p. 20, ibid.)
Rogelio Presores corroborated in substance the testimony of Edwin
Santos, being one of those who were in the car driven by Nelson Tiempo
to the residence of Stephen Lim. (pp. 4-6, tsn, Aug. 14, 1987)
He further testified that when the jeep driven by Alfredo Nardo with Rey
Bolo and Glenn Tiempo as passengers arrived at the front gate of Lims
residence and while their car was 3 meters from the rear end of the jeep,
there was a volley of gunfire. He glanced at the direction of the gunfire
and saw the jeep being fired at by four persons, who were standing
behind a concrete wall, 42 inches in height, and armed with long
firearms. Thenceforth, he saw Alfredo Nardo, Glenn Tiempo and Rey
Bolo f[a]ll to the ground. (pp. 6-7, ibid.)
He recognized accused, Rolusape Sabalones, as one of those who fired
at the jeep. He also identified in Court accused, Teodulo Alegarbes,
Timoteo Beronga and another person, whom he recognized only
through his facial appearance. (pp. 7-8, ibid.)
When the shots were directed [at] their car[,] they were able to bend their
heads low. When the firing stopped, he directed Nelson Tiempo to back
out from the place. As the latter was maneuvering the car, the shooting
continued and he was hit in the breast while Nelson Tiempo, in the neck,
and the windshield of the vehicle was shattered. (p. 10, ibid.)
Arriving at the house of Maj. Tiempo, they were brought to Cebu Doctors
Hospital. He and Nelson Tiempo were operated on. He had incurred
hospital expenses in the sum of P5,412.69, (Exh. I, K). (pp. 11-12, ibid.)
Ladislao Diola, Jr., [m]edico-[l]egal [o]fficer of the PC Crime Laboratory,
Regional Unit 7 stationed at Camp Sotero Cabahug, Cebu City
remembered having performed a post-mortem examination on the dead
body of Glenn Tiempo on June 2, 1985 at the Cosmopolitan Funeral
Homes, Cebu City. (p. 7, tsn, Nov. 11, 1987)
He issued the necessary Death Certificate, (Exh. D) and Necropsy
Report, (Exh. F) and indicated therein that the victims cause of death
was [c]ardio respiratory arrest due to [s]hock and [h]emorrhage
[s]econdary to [g]unshot wounds to the trunk. (p. 8, ibid.)
The victim sustained gunshot wounds in the right chest and left lumbar
area. (pp. 10-11, ibid.)
He explained that in gunshot wound no. 1, the wound entrance[,] which
[was] characterized by invaginated edges and contusion collar[,] was
located in the right chest and the bullet went up to the left clavicle hitting
a bone which incompletely fractured it causing the navigation of the
bullet to the left and to the anterior side of the body. He recovered a slug,
(Exh. G) below the muscles of the left clavicle. (p. 21, ibid.)
Based on the trajectory of the bullet, the assailant could have been [o]n
the right side of the victim or in front of the victim but [o]n a lower level
than the latter.
In both gunshot wounds, he did not find any powder burns which would
indicate that the muzzle of the gun was beyond a distance of 12 inches
from the target. (p. 15, ibid.)
At the time he conducted the autopsy, he noted that rigor mortis in its
early stage had already set in which denote[s] that death had occurred
5 to 6 hours earlier. (pp. 34-5, ibid.)
Maj. Juan Tiempo, father of the victims, Glenn and Nelson Tiempo,
testified that when he learned about the incident in question, he
immediately summoned military soldiers and together they proceeded
to the scene. (pp. 4-6, tsn, Nov. 12, 1988)
Arriving thereat, he saw the lifeless body of his son, Glenn. He
immediately carried him in his arms and rushed him to the hospital but
the victim was pronounced Dead on Arrival. (pp. 6-7, ibid.)
They buried his son, who was then barely 14 years old, at Cebu
Memorial Park and had incurred funeral expenses (Exhs. K, L, O). (pp.
7-8, ibid.)
His other son, Nelson, then 21 years old and a graduate of [m]edical
[t]echology, was admitted at the Cebu Doctors Hospital for gunshot
wound in the neck. The latter survived but could hardly talk as a result
of the injuries he sustained. He had incurred medical and hospitalization
expenses in the sum of P21,594.22, (Exh. H), (pp. 8-10, ibid.)
He had also incurred expenses in connection with the hospitalization of
the injured victims, Rogelio Presores and Rey Bolo in the amount[s]
of P5,412.69, (exh. I) and P9,431.10, (Exh. J), respectively. (p. 11, ibid.)
He further stated that he [was] familiar with the accused, Roling
Sabalones, because the latter had a criminal record in their office in
connection with the kidnapping of a certain Zabate and Macaraya. (p.
16, ibid.)
xxxxxxxxx
Dr. Jesus P. Cerna, [m]edico-[l]egal [o]fficer of the PC/INP, Cebu
Metrodiscom, had conducted an autopsy on the dead body of Alfredo
Nardo, who sustained two (2) gunshot wounds in the lower lip and left
intraclavicular region, upon the request of the [c]hief of the Homicide
Section of Cebu Metrodiscom. He issued the victims Necropsy Report,
(Exh. F) and Death Certificate, (Exh. G). (pp. 5-8, tsn, Dec. 4, 1987; pp.
4-6, tsn, Nov. 29, 1988)
He stated that the wound of entrance in gunshot wound no. 1 was
located in the lower lip, more or less[,] on the left side making an exit in
the left mandibular region. (pp. 9-11, tsn, Dec. 4, 1987; pp. 6-8, tsn, Nov.
29, 1988)
In gunshot wound no. 2, the wound of entrance was in the left
intraclavicular region exiting at the back as reflected in the sketch, (Exh.
F-2).This wound was fatal and [could] almost cause an instantaneous
death considering that the bullet penetrated the thoracic cavity,
lacerating the lungs and perforating the heart before making an exit. (pp.
11-13, tsn, Dec. 4, 1987; pp. 13-15, tsn, Nov. 29, 1988)
He found no tattooing around the wound of entrance in both gunshot
wounds. (pp. 8-9, tsn, Nov. 29, 1988)
He prepared and issued th[e] Necropsy Report, (Exh. F) and Death
Certificate, (Exh. G) of Alfredo Nardo who was identified to him by the
latters daughter, Anita Nardo. (pp. 26-27, ibid.)
Rey Bolo, one of the victims, testified that when the jeep he was riding
[in] together with Glenn Tiempo and Alfredo Nardo, reached the gate of
the residence of Stephen Lim, they were suddenly fired upon. (pp. 5-8,
tsn, March 6, 1989)
He was hit in the right palm and left cheek. He jumped out of the vehicle
and ran towards the car which was behind them but he was again shot
at [,] [and hit] in the left scapular region. He was still able to reach the
road despite the injuries he sustained and tried to ask help from the
people who were in the vicinity but nobody dared to help him, [they]
simply disappeared from the scene, instead. (pp. 8-9, ibid.)
He took a passenger jeepney to the city and had himself treated at the
Cebu Doctors Hospital, and incurred medical expenses in the sum
of P9,000.00. (p. 9, ibid.)
He was issued a Medical Certificate, (Exh. N) by his attending physician.
Dr. Miguel Mancao, a [p]hysician-[s]urgeon, recalled having attended
[to] the victims, Nelson Tiempo, Rey Bolo and Rogelio Presores at the
Cebu Doctors Hospital on June 2, 1985. (pp. 7-8, 11, 14, tsn, May 30,
1989)
Nelson Tiempo sustained gunshot wound[s] in the neck and in the right
chest but the bullet did not penetrate the chest cavity but only the left
axilla. He was not able to recover any slugs because the same
disintegrated while the other was thru and thru. The wound could have
proved fatal but the victim miraculously survived. As a consequence of
the injury he sustained, Nelson Tiempo permanently lost his voice
because his trachea was shattered. His only chance of recovery is by
coaching and speech therapy. He issued his Medical Certificate. (Exh.
O). (pp. 8-11, ibid.)
With regard to the patient, Rey Bolo, the latter suffered multiple gunshot
wounds in the left shoulder penetrating the chest and fracturing the 2nd,
3rd, and 4th ribs in the process, in the right hand fracturing the proximal
right thumb and in the mouth lacerating its soft tissues, per Medical
Certificate, (Exh. N) which he issued. (pp. 11-16, ibid.)
Based on the trajectory of the bullet, the gunman could have been in
front of the victim, when gunshot would no. 1 was inflicted. (p. 30, ibid.)
With respect to the patient, Rogelio Presores, the latter suffered [a]
gunshot wound in the chest with the wound of entrance in the right
anterior chest exiting at the back which was slightly lower than the
wound of entrance. He issued the victims Medical Certificate, (Exh.
M).(pp. 34-35, ibid.)
Based on the location of the wound, the gunman could have been in
front of the victim but [o]n a slightly higher elevation than the latter. (pp.
35-36, ibid.)[8]
Version of the Defense
Appellants interposed denial and alibi. Their version of the facts is
summarized by the trial court[9] thus:
xxx Timoteo Beronga, a cristo or bet caller in the cockpit, testified that in
the afternoon of June 1, 1985, he was in the Talisay Sports Complex
located at Tabunok, Talisay, Cebu to attend a cock-derby.
At about 7:00 oclock in the evening, he was fetched by his wife and they
left taking a taxicab going to their residence in Lapulapu City. After
passing by the market place, they took a tricycle and arrived home at
8:00 oclock in the evening.
After taking his supper with his family, he went home to sleep at 10:30
in the evening. The following morning, after preparing breakfast, he went
back to sleep until 11:00 in the morning.
On February 24, 1987, while he was playing mahjong at the corner of
R.R. Landon and D. Jakosalem Sts., Cebu City, complainant, Maj. Juan
Tiempo with some companions, arrived and after knowing that he [was]
Timmy, [which was] his nickname, the former immediately held him by
the neck.
He ran away but the latter chased him and kicked the door of the house
where he hid. He was able to escape through the back door and took
refuge in Mandaue at the residence of Nito Seno, a driver of Gen. Emilio
Narcissi.(Tsn-Abangan, pp. 4-17, October 19, 1989)
On February 27, 1987, upon the advi[c]e of his friend, they approached
Gen. Narcissi and informed him of the incident. The latter brought him
to the Provincial Command Headquarters in Lahug, Cebu City to
confront Maj. Juan Tiempo.
After several days, he was brought by Maj. Tiempo to the PC
Headquarter[s] in Jones Ave., Cebu City where he was provided with a
lawyer to defend him but he was instructed that he should assent to
whatever his lawyer would ask of him.
He was introduced to Atty. Marcelo Guinto, his lawyer, who made him
sign an Affidavit, (Exh. U) the contents of which, co[u]ched in the dialect,
were read to him.
He also testified that before he was detained at the CPDRC,
complainant brought him inside the shop of a certain Den Ong, where
he was again mauled after he denied having any knowledge of the
whereabouts of Roling Sabalones and the carbine.
At the instance of Col. Medija, he was physically examined at the
Southern Islands Hospital, Cebu City and was issued a [M]edical
Certificate. (Tsn-Formentera, pp. 3-36, Jan. 18, 1990).
Justiniano Cuizon, [a]ccount [o]fficer of the Visayan Electric Company
(VECO) South Extension Office, who is in charge of the billing,
disconnection and reconnection of electric current, testified that based
on the entries in their logbook, (Exh. 3) made by their checker, Remigio
Villaver, the electrical supply at the Mansueto Compound, Bulacao,
Talisay, Cebu, particularly the Mansueto Homeowners covered by
Account No. 465-293000-0, (Exh. 4-B) was disconnected on January
10, 1985, (Exh. 3-A) for non-payment of electric bills from March 1984
to January 1985 and was reconnected only on June 17, 1985 (Exh. 4,
4-A). (Tsn-Abangan, pp. 22-27, Jan. 31, 1990).
Remigio Villaver, a checker of VECO, whose area of responsibility
cover[ed] the towns of Talisay and San Fernando, Cebu had kept the
record of disconnection of electrical supply of Mansueto Subdivision in
Bulacao, Talisay, Cebu and the same showed that on January 10, 1985,
(Exh. 3-A), a service order was issued by their office to the Mansueto
Homeowners for the permanent disconnection of their electric lights due
to non-payment of their electric bills from March 1984 until January
1985. The actual disconnection took place on December 29, 1984.
Witness Fredo Canete made efforts to corroborate their testimony. (Tsn-
Formentera, pp.3-5, Apr. 20, 1990).
Vicente Cabanero, a resident of Mansueto Compound in Talisay, Cebu
since 1957 until the present, remembered that on June 1, 1985, between
10:00 oclock and 11:00 oclock in the evening, he heard a burst of gunfire
about 15 to 20 armslength [sic] from his residence.
He did not bother to verify because he was scared since the whole place
was in total darkness. (Tsn-Abangan, pp. 18-23, Feb. 22, 1990).
Marilyn Boc, another witness for the accused, stated that on the date
and time of the incident in question, while she was at the wake of Junior
Sabalones, younger brother of Roling Sabalones, who died on May 26,
1985, a sudden burst of gunfire occurred more or less 60 meters away.
Frightened, she went inside a room to hide and saw accused, Roling
Sabalones, sound asleep.
She came to know accused, Timoteo Beronga, only during one of the
hearings of this case and during the entire period that the body of the
late Junior Sabalones [lay] in state at his residence, she never saw said
accused.
She was requested to testify in this case by Thelma Beronga, wife of
Timoteo Beronga. (Tsn-Abangan, pp. 9-13, February 28, 1990).
Dr. Daniel Medina, while then the [r]esident [p]hysician of Southern
Islands Hospital, Cebu City had treated the patient, Timoteo Beronga on
March 18, 1987.
Upon examination, he found out that the patient sustained linear
abrasion, linear laceration and hematoma in the different parts of the
body.Except for the linear laceration which he believed to have been
inflicted two or three days prior to [the] date of examination, all the other
injuries were already healed indicating that the same were inflicted 10
to 12 days earlier.
He issued the corresponding Medical Certificate (Exh. 2) to the patient.
(Tsn-Abangan, pp. 9-13, May 21, 1990).
Atty. Jesus Pono, counsel for accused Beronga, mounted the witness
stand and averred that he [was] a resident of Mansueto Compound,
Bulacao, Talisay, Cebu. As shown in the pictures, (Exhs. 3, 4 & 5 with
submarkings) his house is enclosed by a concrete fence about 5 feet 6
inches tall. It is situated 6 meters from the residence of accused, Roling
Sabalones, which was then being rented by Stephen Lim. Outside the
fence [are] shrubs and at the left side is a lamp post provided with 200
watts fluorescent bulb.
On June 1, 1985 at about 7:00 oclock in the evening, he saw Roling
Sabalones, whom he personally [knew] because they used to be
neighbors in Talisay, Cebu, at the wake of his brother, Federico
Sabalones, Jr. or Junior Sabalones, as mentioned repeatedly
hereabout.They even had a talk and he noticed accused to be physically
indisposed being gravely affected by the loss of his only brother, who
met a violent death in the hands of an unknown hitman on May 26, 1985.
He went home after he saw accused [lie] down on a bamboo bench to
rest.
At about 12:00 oclock midnight, he was awakened by a rapid burst of
gunfire which emanated near his house. He did not attempt to go down
or look outside. He [was] in no position to tell whether or not the street
light was lighted.
When he verified the following morning, he noticed bloodstains on the
ground as well as inside the jeep which was parked 2 to 3 meters from
his fence and 50 to 70 meters from the house where Junior Sabalones
[lay] in state. He observed that the jeep was riddled with bullets and its
windshield shattered. (Tsn-Abangan, pp. 3-16, June 6, 1990).
He admitted that he used to be a counsel of accused, Roling Sabalones,
in several cases, among which involved the death of a certain Garces
and Macaraya, which cases were however, dismissed by the Office of
the Provincial Fiscal of Cebu. (Tsn-Tumarao, pp. 2-3, June 13, 1990).
Doroteo Ejares, a relative of accused, testified that when he attended
the wake of Junior Sabalones on June 1, 1985 at 8:00 oclock in the
evening, he saw accused lying on a bamboo bench in the yard of the
house of the deceased.
At past 10:00 oclock in the evening, accused excused himself as he was
not feeling well and entered a room to rest while he remained by the
door and slept.
At almost 12:00 oclock midnight, he was awakened by a burst of gunfire
which took place more or less 20 meters away and saw the people
scamper[ing] for safety. He hid inside the room where accused was
sleeping and peeped thru the door. Not long after, Marilyn Boc entered
and in a low voice talked about the incident.
They decided to wake up the accused to inform him of what was
happening, but the latter merely opened his eyes and realizing that
accused was too weak, they allowed him to go back to sleep.
When he went home at past 5:00 oclock in the morning of June 2, 1985,
he saw a jeep outside of the compound. He did not bother to investigate
or inquire about the incident as he was in a hurry to go home and prepare
for the burial of Junior Sabalones.
He was requested to testify in this case by his aunt and mother of
accused Rolusape Sabalones. (Tsn-Tumarao, pp. 10-15, June 13,
1990).
Russo Sabalones, uncle of accused, Sabalones, averred that the latter
was once, one of his undercover agents while he was then the [c]hief of
the Intelligence Service of the PC from 1966 until 1968.
As part of their intelligence tradition, an undercover agent is not allowed
to carry his real name. In the case of his nephew and accused, Rolusape
Sabalones, the latter chose the name Paciano Laput which name was
recorded in their code of names.
When he retired in 1968, the accused ceased to be an agent and xxx
likewise ceased to have the authority to use the name Paciano Laput.
(Tsn-Abangan, p. 12, July 23, 1990).
Alfonso Allere, a distant relative of the accused, remembered having
received a call from Roling Sabalones, one morning after the burial of
the latters brother, asking for his advise because of the threats [to] his
life which he received thru telephone from the group of Nabing Velez
and the group of the military.
After he had advised accused to lie low, he had not heard of him, since
then.
Godofredo Mainegro of the Public Assistance and Complaint Action
Office of the Regional Unified Command 7, received a complaint from
one Inocencia Sabalones on March 13, 1986.
He recorded the complaint in their Complaint Sheet, (Exh. 6) and let
complainant affix her signature.
After the document was subscribed and sworn to before him, (Exh. 6-
C), he indorsed it to their [c]ommanding [o]fficer, Apolinario Castano.
(Tsn-Formentera, pp. 3-10, July 24, 1990).
Ret. Col. Apolinario Castano, recalled that while he was then with the
Regional Unified Command 7, his niece, Racquel Sabalones together
with her husband Roling Sabalones, came to him for advi[c]e because
the latter was afraid of his life brought about by the rampant killings of
which his brother and the son of Maj. Tiempo were victims.
Considering that accuseds problem was a police matter, they
approached Gen. Ecarma, the then [c]ommander of the PC/INP, Recom
7, and the latter referred them to his [c]hief of [s]taff, Col. Roger Denia,
who informed them that there was no case filed against the
accused.Nevertheless, the latter was advised to be careful and consult
a lawyer.
Inocencia Sabalones, mother of accused, Roling Sabalones, narrated
that on March 12, 1986 at past 10:00 oclock in the evening, she was
roused from sleep by a shout of a man demanding for Roling Sabalones.
Upon hearing the name of her son, she immediately stood up and
peeped through the door of her store and saw men in fatigue uniforms
carrying long firearms. Thenceforth, these men boarded a vehicle and Frightened and cowed, they decided to seek the advice of Col.
left. Apolinario Castano, who after relating to him their fears, advised her
husband to lie low and to consult a lawyer.
On the following morning, she was again awakened by the persistent
shouts and pushing of the gate. When she verified, the man who To allay their apprehension, accused, Roling Sabalones, left Cebu City
introduced himself to her as Maj. Tiempo, ordered her to open the for Iligan, Manila and other cities to avoid those who were after
gate. Once opened, the men of Maj. Tiempo entered the house and him.When she learned about the threat made by Maj. Tiempo on her
proceeded to search for Roling Sabalones, whom Maj. Tiempo husband, she forewarned the latter not to return to Cebu.
suspected to have killed his son and shot another to near death. When
Marlyn Sabarita, an illegitimate daughter of Rolusape Sabalones, stated
she demanded for a search warrant, she was only shown a piece of
that in the night in question, she was at the wake of Junior Sabalones
paper but was not given the chance to read its contents.
and saw her Papa Roling, the herein accused, lying on the lawn of the
Racquel Sabalones, wife of accused, Rolusape Sabalones, maintained house of the deceased.
that on June 1, 1985 at 1:00 oclock in the afternoon, she was at the wake
She was already in the apartment with her Mama Racquel when she
of her brother-in-law, Junior Sabalones, at his residence in Bulacao,
heard a burst of gunfire. Upon instructions of the latter, she went out to
Talisay, Cebu.
call the police thru the phone located [in] the third apartment occupied
At 11:00 oclock in the evening of the same day, together with her 3 by a certain Jet. (Tsn-Tumarao, pp. 3-15, Oct. 15, 1990).
daughters as well as Marlyn Sabarita, Rose Lapasaran and Gloria
Edward Gutang, [a]sst. lay-out [e]ditor and [a]sst. [s]ports [e]ditor of Sun-
Mondejar, left the place in order to sleep in an unoccupied apartment
Star Daily, while then a military and police reporter had covered the
situated 30 meters away from the house where her deceased, brother-
shooting incident which took place on June 1, 1985 at the Mansueto
in-law, Junior, was lying in state, as shown in the Sketch, (Exh. 7 and
Compound, Bulacao, Talisay, Cebu.
submarkings) prepared by her. They brought with them a flashlight
because the whole place was in total darkness. At past 1:00 oclock dawn, together with their newspaper photographer,
Almario Bitang, they went to the crime scene boarding the vehicle of the
As they were about to enter the gate leading to her apartment she
Cosmopolitan Funeral Homes. Arriving thereat, they decided not to
noticed a sedan car coming towards them. She waited for the car to
proceed inside the compound because of fear. The place was then in
come nearer as she thought that the same belong[ed] to her friend, but
complete darkness.
the vehicle instead stopped at the corner of the road, (Exh. 7-F) and then
proceeded to the end portion of Mansueto Compound, (Exh. 7-G). As it Upon being informed that the victims were brought to Cebu City Medical
moved slowly towards the highway, she rushed inside the apartment. Center, they rushed to the place and met Maj. Tiempo hugging the dead
body of his 14-year old son. His photographer took a picture of that
Few minutes later, she heard a burst of gunfire outside their gate. She
pathetic scene. (Exh. 8-B).
immediately gathered her children and instructed Marlyn Sabarita to use
the phone situated at the third door apartment and call the police. Samson Sabalones, a retired [a]mbassador and uncle of Rolusape
Sabalones, posted a bail bond for his nephew with Eastern Insurance
After the lull of gunfire, she went to the terrace and saw people in civilian
Company, when a warrant for his arrest was issued by the Municipal
and in fatigue uniforms with firearms, gathered around the place.One of
Court, on March 12, 1986 because he was bothered by the fact that the
these men even asked her about the whereabouts of her husband,
latter was being unreasonably hunted by several groups. He even
whom she left sleeping in the house of the deceased.
advised the accused to appear in [c]ourt to clarify the nature of the case
At 8:30 in the morning of June 2, 1985, during the burial of Junior filed against him.
Sabalones, they were informed by Pedro Cabanero that Roling
Virgincita Pajigal, a resident of Butuan City, met accused, Rolusape
Sabalones was a suspect for the death of Nabing Velez and the son of
Sabalones, who introduced himself to her as Paciano Laput nicknamed,
Maj. Tiempo.
Ondo, in a massage clinic where she was working.
She believed that the reason why her husband was implicated in the
For less than a year, they lived together as husband and wife without
killing of Nabing Velez was because of the slapping incident involving
the benefit of marriage because according to her the accused was
her father-in-law, Federico Sabalones, Sr. and Nabing Velez which took
married but separated from his wife, whose name was never mentioned
place prior to the death of Junior Sabalones.
to her. For such a short span of time being together, her love for the
After the funeral, she began to receive mysterious calls at their accused developed to the extent that whatever happen[ed] to him, she
residence in Sikatuna St., Cebu City where they began staying since [would] always be there to defend him.
1978.She also noticed cars with tinted windows strangely parked in front
With the help of Maj. delos Santos, who advised her to always stay close
of their residence.
[to] the accused, she was able to board the same vessel. She saw the
latter clad in green T-shirt, (Exh. 14) and pants, handcuffed and
guarded.
Reaching Cebu City, they took a taxicab and as the vehicle went around
the city, she was instructed by Maj. Tiempo to place the towel, (Exh. 15)
which she found inside her bag, on the head of the accused. They
stopped at the Reclamation Area and Maj. Tiempo pulled them out of
the vehicle but she held on tightly to Ondo, ripping his shirt. This pulling
incident happened for several times but complainant failed to let them
out of the vehicle.
The accused was finally brought to the Provincial Jail while she stayed
in the residence of the accused. She returned to Butuan after a
week. (Tsn-Formentera, pp. 5-33, Jan. 22, 1991).
Accused, Rolusape Sabalones, alias Roling, in his defense, with
ancillary incidental narrations, testified , that on June 1, 1985 at 6:00
oclock in the evening, he was at the wake of his only brother, Junior
Sabalones, who was killed on May 26, 1985.
He had no idea as to who was responsible for the killing of his brother
inasmuch as the latter had plenty of enemies. He also did not exert effort
to look into the case and to place it under police authority since he had
lost faith in the capabilities of the police. The matter was however
reported by his uncle, Ambassador Sabalones, to the authorities.
He stayed at the wake until 10:00 oclock in the evening because he was
not feeling well. He retired in a small room adjacent to the sala of the
house of the deceased. Not long after, he felt somebody waking him up
but he merely opened his eyes and went back to sleep as he was really
exhausted.
At 6:30 the following morning, he was roused by his wife so he could
prepare for the burial. He came to know about the burst of gunfire which
took place the previous night upon the information of his wife. He did not
take the news seriously as he was busy preparing for the burial of his
deceased brother, Jun.
The funeral started at past 8:00 oclock in the morning and he noticed
the presence of Maj. Eddie Ricardo and his men, who were sent by Col.
Castano purposely to provide the burial with military security, upon the
request of his wife.
He had a conversation with Maj. Ricardo who inquired about the
shooting incident which resulted in the death of the son of Maj. Tiempo
and others in his company. Also in the course of their conversation, he
came to know that Nabing Velez was killed earlier on that same night in
Labangon, Cebu [C]ity.
On the same occasion, Pedro Cabanero also notified him that he was a
suspect in the killing of Nabing Velez, a radio commentator of ferocious
character, who was engaged in a protection racket with several under
his control.
He remembered that a month prior to the death of Nabing Velez, his
father, Federico Sabalones, Sr. and the deceased while matching their
fighting cocks at the Talisay Sports Complex, had an altercation and the
latter slapped his paralytic father and challenged him to ask one of his
sons to avenge what he had done to him. He came to know about the
incident only after a week.
He did not deny the fact that he was hurt by the actuation of the
deceased for humiliating his father but it did not occur to him to file a
case or take any action against the deceased because he was too busy
with his business and with his work as a bet caller in the cockpit.
He advised his father to stay in Bohol to avoid further trouble because
he knew that the latter would frequent the cockpit[,] being a
cockfight aficionado.
Likewise, during the burial, he was informed by a PC soldier, Roger
Capuyan, that he was also a suspect in the killing of the son of Maj.
Tiempo and even advised him to leave the place.
On the following days after the burial, his wife started to notice cars
suspiciously parked in front of their house and [she] also received
mysterious calls.
Together with his wife, they decided to see Col. Apolinario Castao to
seek his advise. The latter verified from the Cebu Metrodiscom and
learned that there was no case filed against him.
In the evening of June 6, 1985, he left for Iligan and after a month, he
transferred to Ozamis and then to Pagadian. He likewise went to Manila
especially when he learned that his uncle, Samson Sabalones, had
arrived from abroad. The latter posted a bond for his temporary liberty
immediately after being informed that a case was filed against him,
before the Municipal Court of Talisay.
Despite xxx the bond put up by his uncle, he did not return to Cebu City
because it came to his knowledge that Maj. Tiempo inquired from the
bonding company as to his address.
He also stayed in Marikina in the house of his friend and during his stay
in the said place, he registered as a voter and was issued a Voters
Affidavit, (Exh. 19; Exh. R for the prosecution) which bore the name
Paciano Mendoza Laput which [was] his baptismal name. He explained
that the name[s] Mendoza and Laput [were] the middle name and
surname, respectively of his mother. The name Rolusape was given to
him by his father and the same [was] not his registered name because
during the old days, priests would not allow parents to name their
children with names not found in the Almanac; thus, Paciano [was] his
chosen name and the same appeared in his Baptismal Certificate, (Exh.
20) issued by the Parish of the Blessed Trinity of Talibon, Bohol. In his
Birth Certificate, it [was] the name Rolusape which appeared based
upon the data supplied by his father.
He had used the name Paciano during the time when he [was] still a
secret agent under his uncle, Gen. Russo Sabalones, when the latter
was still the [c]hief of the C-2 in 1966 until 1967 and as such, he was
issued a firearm. He likewise used said name at the time he was
employed at the Governors Office in Agusan and when he registered in
the Civil Service Commission to conceal his identity to protect himself
from those who were after him.
From Marikina he proceeded to Davao and then to Butuan City where
he was made to campaign for the candidacy of Gov. Eddie Rama.When
the latter won in the election, he was given a job at the Provincial Capitol
and later became an agent of the PC in Butuan using the name, Paciano
Laput.
During his stay in Butuan, he met Virgie Pajigal, a manicurist who
became his live-in partner.
On October 23, 1988 while he was at the Octagon Cockpit in Butuan
with Sgt. Tambok, he was arrested by Capt. Ochate and was brought to
the PC Headquarter[s] in Libertad, Butuan City and was
detained. Among the papers confiscated from him was his Identification
Card No. 028-88, (Exh. 21) issued by the PC Command bearing the
name Paciano Laput.
On October 26, 1988 he was taken from the City Jail by Capt. Ochate
and some soldiers, one of whom was Maj. Tiempo whom he met for the
first time.
On their way to Nasipit to board a vessel bound for Cebu City, Maj.
Tiempo made him lie flat on his belly and stepped on his back and
handcuffed him. He cried in pain because of his sprained shoulder. A
certain soldier also took his watch and ring.
Arriving in Cebu at 7:00 oclock in the morning, he and Virgie Pajigal,
who followed him in the boat, were made to board a taxicab. Maj.
Tiempo alighted in certain place and talked to a certain guy. Thereafter,
they were brought to the Reclamation Area and were forced to go down
from the vehicle but Virgie Pajigal held him tightly. They were again
pulled out of the taxi but they resisted.
From the Capitol Building, they proceeded to CPDRC and on their way
thereto, Maj. Tiempo sat beside him inside the taxi and boxed him on
the right cheek below the ear and pulled his cuffed hands apart.
At the Provincial Jail, he was physically examined by its resident
physician, Dr. Dionisio Sadaya, and was also fingerprinted and
photographed, (Exh. 21). He was issued a Medical Certificate, (Exh. 22).
He further stated that he [was] acquainted with his co-accused Timoteo
Beronga, known to him as Timmy being also a bet caller in the
cockpit. (Tsn-Formentera, pp. 5-23, Feb. 26, 1991; Tsn-Abangan, pp. 3-
33, Feb. 27, 1991; Tsn-Abangan, pp. 4-18, Apr. 10, 1991).
As surrebuttal witness, accused Rolusape Sabalones denied that he
bribed a certain soldier because at the time he was arrested, his wallet
as well as his wristwatch and ring worth P2,000.00 each were
confiscated and his hands tied behind his back.
He also denied the allegation of Maj. Tiempo that he offered the latter
the amount of P1,000.000.00 to drop the case against him, the truth
being that while they were on board a vessel bound for Cebu City, Maj.
Tiempo compelled him to tell [who] the real killers of his son [were]
because he knew that he (Rolusape Sabalones) was not
responsible. The former also inquired from him as to the whereabouts
of the carbine.
He also rebutted complainants testimony that upon their arrival here in
Cebu City and while on board a taxicab, he directed the former [to] first
go around the city to locate a certain Romeo Cabaero, whom he did not
know personally.[10]
Ruling of the Court of Appeals
Giving full credence to the evidence of the prosecution, the Court of
Appeals affirmed the trial courts Decision convicting appellants of two
counts of murder and three counts of frustrated murder. Like the trial
court, it appreciated the qualifying circumstance of treachery and
rejected appellants defense of alibi.
The Court of Appeals, however, ruled that the penalties imposed by the
trial court were erroneous. Hence, for each count of murder, it sentenced
appellants to reclusion perpetua. For each count of frustrated murder, it
imposed the following penalty: ten years (10) of prision mayor (medium),
as minimum, to seventeen years (17) years and four (4) months
of reclusion temporal (medium), as maximum. Sustaining the trial court,
the Court of Appeals awarded indemnity of P20,000 to each of the
victims of frustrated murder. However, it was silent on the indemnity
of P50,000 awarded by the trial court to the heirs of each of the two
deceased.
Having imposed reclusion perpetua on the appellants, the Court of
Appeals, as earlier noted, refrained from entering judgment and certified
the case to the Supreme Court for review, in conformity with Section 13,
Rule 124 of the Rules of Court.
Hence, this appeal before this Court.[11]
The Issues
In his Brief,[12] Appellant Sabalones raised the following errors
allegedly committed by the trial court:
I
The court a quo erred in finding that accused Sabalones and his friends
left the house where his brother Sabalones Junior was lying in state and
went to their grisly destination amidst the dark and positioned
themselves in defense of his turf against the invasion of a revengeful
gang of the supporters of Nabing Velez.
II
The court a quo erred in finding that accused Sabalones and his two co-
accused were identified as among the four gunmen who fired at the
victims.
III
The court a quo erred in overlooking or disregarding physical evidence
that would have contradicted the testimony of prosecution witnesses
Edwin Santos and Rogelio Presores that the gunmen were shooting at
them from a standing position.
IV
The court a quo erred in holding that the instant case is one of aberratio
ictus, which is not a defense, and that the defense of alibi interposed by
the accused may not be considered.
V identified the appellants as the authors of the crime. His categorical and
The court a quo erred in not finding that the evidence of the prosecution
has not overcome the constitutional presumption of innocence in favor
of the accused.
VI
The court a quo erred in not acquitting the accused on ground of
reasonable doubt.
In a Manifestation dated December 20, 1995, Appellant Beronga,
through counsel, adopted as his own the Brief of Sabalones.[13]
The foregoing assignment of errors shall be reformulated by the Court
into these three issues or topics: (1) credibility of the witnesses and
sufficiency of the prosecution evidence, (2) defense of denial and alibi,
and (3) characterization of the crimes committed and the penalty
therefor.
The Courts Ruling
The appeal is devoid of merit.
First Issue:
Credibility of Witnesses and Sufficiency of Evidence
Well-entrenched is the tenet that this Court will not interfere with the trial
courts assessment of the credibility of the witnesses, absent any
indication or showing that the trial court has overlooked some material
facts or gravely abused its discretion,[14] especially where, as in this
case, such assessment is affirmed by the Court of Appeals. As this
Court has reiterated often enough, the matter of assigning values to
declarations at the witness stand is best and most competently
performed or carried out by a trial judge who, unlike appellate
magistrates, can weigh such testimony in light of the accuseds behavior,
demeanor, conduct and attitude at the trial.[15] Giving credence to the
testimonies of the prosecution witnesses, the trial court concluded:
Stripped of unnecessary verbiage, this Court, given the evidence, finds
that there is more realism in the conclusion based on a keener and
realistic appraisal of events, circumstances and evidentiary facts on
record, that the gun slaying and violent deaths of Glenn Tiempo and
Alfredo Nardo, and the near fatal injuries of Nelson Tiempo, Rey Bolo
and Rogelio Presores, resulted from the felonious and wanton acts of
the herein accused for mistaking said victims for the persons [who were]
objects of their wrath.[16]
We stress that factual findings of the lower courts, the trial court and the
Court of Appeals are, as a general rule, binding and conclusive upon the
Supreme Court.[17] We find nothing in the instant case to justify a
reversal or modification of the findings of the trial court and the Court of
Appeals that appellants committed two counts of murder and three
counts of frustrated murder.
Edwin Santos, a survivor of the assault, positively pointed to and
straightforward testimony is quoted hereunder:[18]
COURT:
Q You stated there was a gun fired. What happened next?
WITNESS:
A There was a rapid fire in succession.
Q When you heard this rapid firing, what did you do?
A I tried to look from where the firing came from.
Q After that, what did you find?
A I saw persons firing towards us.
Q Where were these persons situated when they were firing towards
you?
A Near the foot of the electric post and close to the cemented wall.
Q This electric post, was that lighted at that moment?
A Yes, sir, it was lighted.
Q How far were these persons firing, to the place where you were?
A From here to there (The witness indicating the distance by pointing to
a place inside the courtroom, indicating a distance of about 6 to 7
meters, making the witness stand as the point of reference).
Q Were you able to know how many persons fired towards you?
A I only saw 3 to 4 persons.
Q How long did these persons fire the guns at you?
A Until we went home. The persons were still firing, until we went home.
Q You stated that you saw these persons who were firing at you. Do you
know these persons?
A I can identify [them] when I [see] them.
Q Try to look around this courtroom, if these persons you saw who were
firing at you are present in the courtroom[.]
A Yes, sir.
Q Can you point to these persons?
A Yes, sir.
Q Point at them. A Alfredo Nardo.

COURT INTERPRETER: Q What happened after that?

The Court directed the witness to go down from the witness stand and A So, I looked, whence the burst of gunfire came from.
[point] at them, Beronga and Alegarbes.
Q What did you see from that gunfire?
FISCAL GABIANA:
A I saw 4 persons standing at the back of the fence.
I would like to make it of record that on the bench of prisoner, only the
Q What were those 4 persons doing when they were standing at the
two accused were seated.
back of the fence?
COURT:
A They were bringing long firearms.
Make it of record that only two prisoners were present.
Q Did you recognize these persons?
Q Now, Mr. Santos, aside from these two accused you identified as
A I can clearly recognize one and the 3 persons[.] I can identify them, if
among those who fired [at] you on that evening, were there other
I can see them again.
persons that you saw on that particular occasion who fired at you?
Q If you are shown these persons, can you recognize them? Can you
A Yes, sir, there were[;] if I can see them, I can identify them.
name these persons?
Corroborating the foregoing, Rogelio Presores, another survivor, also
A No, sir. Only their facial appearance.
pointed to Timoteo Beronga, Teodulo Alegarbes and Roling Sabalones
as the perpetrators of the crime. His testimony proceeded in this Q What about the 3 persons?
manner:[19]
A Thats why the 3 persons, I do not know them. I can recognize only
Q When you arrived at the residence of Stephen Lim, can you remember their facial appearance.
of any unusual incident that took place?
Q What about one person?
A Yes, sir.
A Yes, sir.
Q What was that?
Q What is the name of the person?
A When the jeep arrived, the car was following.
A Roling Sabalones.
Q What happened next?
Q If Roling Sabalones is inside the courtroom, can you recognize Roling
A When the jeep was near the gate, the car was following. Sabalones?

Q The car was following the jeep, at what distance? A Yes, sir, he is around.

A 3 to 4 meters. Q Can you point to Roling Sabalones?

Q While the car was following the jeep at that distance of 3 to 4 meters, A Yes, he is there (The witness pointing to the person who answered
what happened? the name of Roling Sabalones).

A All of a sudden, we heard the burst of gunfire.
Q From what direction was the gunfire?
A Through the direction of the jeep.
Q After hearing the gunfire, what happened?
Q I would like [you] again to please look around and see, if those
persons whom you know through their faces, if they are here around?
A The two of them (The witness pointing to the 2 persons, who, when
asked, answered that his name [was] Teofilo Beronga and the other
[was] Alegarbes).

A We looked at the jeep. Indeed, we have carefully waded through the voluminous records of this
case and the testimonies of all the fifty-nine witnesses, and we find that
Q What did you see?
the prosecution has presented the required quantum of proof to
A We saw Alfredo Nardo and Glenn Tiempo and Rey Bolo f[a]ll to the establish that appellants are indeed guilty as charged. Appellants
ground. There were only 3. arguments, as we shall now discuss, fail to rebut this conclusion.

Q Who was driving the jeep at that time? Positive Identification

Appellants allege that the two witnesses could not have properly
identified the appellants because, after the first burst of shooting, they
both crouched down, such that they could not have seen the faces of
their assailants. This contention does not persuade. Both eyewitnesses
testified that the firing was not continuous; thus, during a lull in the firing,
they raised their heads and managed a peek at the perpetrators. Edwin
Santos testified as follows:
Atty. Albino, counsel for accused Beronga:
Q You mean to say that when you bent you heard the successive shots,
[and] you again raised your head. Is that correct?
A There were times that the shots were not in succession and
continuous and that was the time I raised my head again.[20]
Like Santos, Rogelio Presores also stooped down when the firing
started, but he raised his head during a break in the gunfire:
Atty. Albino:
Q So, what did you do when you first heard that one shot?
A So, after the first shot, we looked towards the direction we were facing
and when we heard the second shot, that was the time we stooped
down.[21]
He further testified:
Atty. Acido: [Counsel for Appellant Sabalones]
Q And you said you stooped down inside the car when you heard the
first firing to the jeep. Is that what you want the Court to understand[?]
Presores:
A Yes, sir.
Q So, you never saw who fired the successive shots to the car as you
said you stooped down inside the car?
A The bursts of gunfire stopped for a while and that was the time I reared
of [sic] my head.
Q And that was the first time you saw them?
A Yes, sir.[22]
The records clearly show that two vehicles proceeded to the house of
Stephen Lim on that fateful day. The first was the jeep where Alfredo
Nardo, Glenn Tiempo and Rey Bolo were riding. About three to four
meters behind was the second car carrying Nelson Tiempo, Guillermo
Viloria, Rogelio Oliveros and the two prosecution witnesses -- Edwin
Santos and Rogelio Presores.[23] As stated earlier, said witnesses
attested to the fact that after the first volley of shots directed at the jeep,
they both looked at the direction where the shots were coming from, and
they saw their friends in the jeep falling to the ground, as well as the
faces of the perpetrators.[24] It was only then that a rapid succession of
gunshots were directed at them, upon which they started crouching to
avoid being hit.
Hence, they were able to see and identify the appellants, having had a
good look at them after the initial burst of shots. We stress that the
normal reaction of a person is to direct his sights towards the source of
a startling shout or occurrence. As held in People v. Dolar,[25]the most
natural reaction for victims of criminal violence is to strive to see the
looks and faces of their assailants and to observe the manner in which
the crime is committed.
In bolstering their claim that it was impossible for the witnesses to have
identified them, appellants further aver that the crime scene was dark,
there being no light in the lampposts at the time. To prove that the
service wire to the street lamps at the Mansueto Compound was
disconnected as early as December 1984 and reconnected only on June
27, 1985, they presented the testimonies of Vicente
Cabanero,[26]Remigio Villaver,[27] Fredo Canete[28]and Edward
Gutang.[29] The trial court, however, did not lend weight to said
testimonies, preferring to believe the statement of other prosecution
witnesses that the place was lighted during that time.
The Court of Appeals sustained said findings by citing the testimonies
of defense witnesses. Fredo Canete of the Visayan Electric Company
(VECO), for instance, admitted that it was so easy to connect and
disconnect the lights. He testified thus:
Atty. Kintanar:
Q Now, as a cutter, what instruments do you usually use in cutting the
electrical connection of a certain place?
Canete:
A Pliers and screw driver.
Q Does it need xxx very sophisticated instruments to disconnect the
lights?
A No, these are the only instruments we use.
Q Ordinary pliers and ordinary screw driver?
A Yes, sir.
Q And does [one] need to be an expert in electronic [sic] in order to
conduct the disconnection?
A No, sir.
Q In other words, Mr. Canete, any ordinary electrician can cut it?
A That is if they are connected with the Visayan Electric Company.
Q What I mean is that, can the cutting be done by any ordinary
electrician?
A Yes, sir.[30]
Said witness even admitted that he could not recall if he did in fact cut
the electrical connection of the Mansueto Compound.[31] The Court of
Appeals further noted that none of the above witnesses were at the
crime scene at or about the exact time that the ambush occurred. Thus,
none was in a position to state with absolute certainty that there was
allegedly no light to illuminate the gunmen when they rained bullets on
the victims.[32]
Even assuming arguendo that the lampposts were not functioning at the
time, the headlights of the jeep and the car were more than sufficient to
illuminate the crime scene.[33] The Court has previously held that the
light from the stars or the moon, an oven, or a wick lamp or gasera can
give ample illumination to enable a person to identify or recognize
another.[34] In the same vein, the headlights of a car or a jeep are
sufficient to enable eyewitnesses to identify appellants at the distance
of 4 to 10 meters.
Extrajudicial Statement of Beronga
Appellants insist that Berongas extrajudicial statement was obtained
through violence and intimidation. Citing the res inter alios actarule, they
also argue that the said statement is inadmissible against
Sabalones. Specifically, they challenge the trial courts reliance on the
following portions of Berongas statement:
Q After Roling knew that Na[b]ing Velez was killed, have you observed
[if] Roling and his companions prepared themselves for any eventuality?
A It did not take long after we knew that Na[b]ing was killed, somebody
called up by telephone looking for Roling, and this was answered by
Roling but we did not know what they were conversing about and then
Roling went back to the house of Junior after answering the phone. And
after more than two hours, we heard the sound of engines of vehicles
arriving, and then Meo, the man who was told by Roling to guard,
shouted saying: They are already here[;] after that, Roling came out
carrying a carbine accompanied by Tsupe, and not long after we heard
gunshots and because of that we ran towards the house where the wake
was. But before the gun-shots, I heard Pedring Sabalones father of
Roling saying: You clarify, [t]hat you watch out for mistake[n] in identity,
and after that shout, gunshots followed. [sic] Then after the gun-shots
Roling went back inside still carrying the carbine and shouted: GATHER
THE EMPTY SHELLS AND MEO[,] YOU BRING A FLASHLIGHT, and
then I was called by Meo to help him gather the empty shells of the
carbine and also our third companion to gather the empty shells.
These arguments have no merit. In the first place, it is well to stress that
appellants were convicted based primarily on the positive identification
of the two survivors, Edwin Santos and Rogelio Presores, and not only
on the extrajudicial statement, which merely corroborates the
eyewitness testimonies. Thus, said arguments have no relevance to this
case. As the Court held in People vs. Tidula:[35]Any allegation of
violation of rights during custodial investigation is relevant and material
only to cases in which an extrajudicial admission or confession extracted
from the accused becomes the basis of their conviction.
In any case, we sustain the trial courts holding, as affirmed by the Court
of Appeals, that the extrajudicial statement of Beronga was executed in
compliance with the constitutional requirements.[36] Extrajudicial
confessions, especially those which are adverse to the declarants
interests are presumed voluntary, and in the absence of conclusive
evidence showing that the declarants consent in executing the same has
been vitiated, such confession shall be upheld.[37]
The exhaustive testimony of Sgt. Miasco, who undertook the
investigation, shows that the appellant was apprised of his constitutional
rights to remain silent and to have competent and independent counsel
of his own choice.[38] Said witness also stated that Beronga was
assisted by Atty. Marcelo Guinto during the custodial
investigation.[39] In fact, Atty. Guinto also took the witness stand and
confirmed that Appellant Beronga was informed of his rights, and that
the investigation was proper, legal and not objectionable. Indeed, other
than appellants bare allegations, there was no showing that Berongas
statement was obtained by force or duress.[40]
Equally unavailing is appellants reliance on the res inter alios acta rule
under Section 30, Rule 130 of the Rules of Court, which provides:
The act or declaration of a conspirator relating to the conspiracy and
during its existence, may be given in evidence against the co-conspirator
after the conspiracy is shown by evidence other than such act or
declaration.
Appellants assert that the admission referred to in the above provision
is considered to be against a co-conspirator only when it is
given during the existence of the conspiracy. They argue that Berongas
statement was made after the termination of the conspiracy; thus, it
should not be admitted and used against Sabalones.
The well-settled rule is that the extrajudicial confession of an accused is
binding only upon himself and is not admissible as evidence against his
co-accused, it being mere hearsay evidence as far as the other accused
are concerned.[41] But this rule admits of exception. It does not apply
when the confession, as in this case, is used as circumstantial evidence
to show the probability of participation of the co-accused in the killing of
the victims[42] or when the confession of the co-accused is corroborated
by other evidence.[43]
Berongas extrajudicial statement is, in fact, corroborated by the
testimony of Prosecution Witness Jennifer Binghoy. Pertinent portions
of said testimony are reproduced hereunder:
Q While you were at the wake of Jun Sabalones and the group were
sitting with Roling Sabalones, what were they doing?
A They were gathered in one table and they were conversing with each
other.
xxxxxxxxx
Q On that same date, time and place, at about 10:00 [i]n the evening,
can you remember if there was unusual incident that took place?
A I heard over the radio at the Sabalones Family that a certain Nabing
Velez was shot.
Q That [a] certain Nabing Velez was shot? What else xxx transpired?
A I observed that their reactions were so queer, - as if they were running.
xxxxxxxxx
Q In that evening of June 1, 1985, when you went there at the house of
Jun Sabalones, have you seen an armalite?
A Yes, sir.
Q Where did you see this armalite?
A At the table where they were conversing.
Q How many armalites or guns [did you see] that evening in that place?
A Two (2).
xxxxxxxxx
Q This armalite that you saw, - how far was this in relation to the groups
of Sabalones?
A There (The witness indicating a distance of about 4 to 5 meters).
ATTY. KINTANAR:
Q When you looked xxx through the window and saw there were two
vehicles and there were bursts of gunfire, what happened after that?
A I did not proceed to look xxx through the window because I stooped
down.
Q When you stooped down, what happened?
A After the burst of gunfire, I again opened the window.
Q And when again you opened the window, what happened?
A I saw two persons going towards the jeep.
Q What transpired next after [you saw] those 2 persons?
A When they arrived there, they nodded their head[s].
Q After that, what happened?
A So, they went back to the direction where they came from, going to
the house of Sabalones.
Q While they were going to the direction of the house of Sabalones, what
transpired?
A I saw 5 to 6 persons coming from the highway and looking to the jeep,
and before they reached the jeep, somebody shouted that its ours.
Q Who shouted?
A The voice was very familiar to me.
Q Whose voice?
A The voice of Roling Sabalones.
Q What else have you noticed during the commotion [when] wives were
advising their husbands to go home?
A They were really in chaos.[44]
A careful reading of her testimony buttresses the finding of the trial court
that Rolusape Sabalones and his friends were gathered at one table,
conversing in whispers with each other, that there were two rifles on top
of the table, and that they became panicky after hearing of the death of
Nabing Velez on the radio. Hence, the observation of the trial court that
they went to their grisly destination amidst the dark and positioned
themselves in defense of his turf against the invasion of a revengeful
gang of supporters of the recently slain Nabing Velez.[45]
Alleged Inconsistencies
Appellants also allege that the prosecution account had inconsistencies
relating to the number of shots heard, the interval betweengunshots and
the victims positions when they were killed. These, however, are minor
and inconsequential flaws which strengthen, rather than impair, the
credibility of said eyewitnesses. Such harmless errors are indicative of
truth, not falsehood, and do not cast serious doubt on the veracity and
reliability of complainants testimony.[46]
Appellants further claim that the relative positions of the gunmen, as
testified to by the eyewitnesses, were incompatible with the wounds
sustained by the victims. They cite the testimony of Dr. Ladislao Diola,
who conducted the autopsy on Glenn Tiempo. He declared that the
victim must necessarily be on a higher level than the assailant, in the
light of the path of the bullet from the entrance wound to where the slug
was extracted. This finding, according to appellant, negates the
prosecutions account that the appellants were standing side by side
behind a wall when they fired at the victims. If standing, appellants must
have been on a level higher than that of the occupants of the vehicles;
if beside each other, they could not have inflicted wounds which were
supposed to have come from opposite angles.
We are not persuaded. The defense presumes that the victims were
sitting still when they were fired upon, and that they froze in the same
position during and after the shooting. This has no testimonial
foundation. On the contrary, it was shown that the victims ducked and
hid themselves, albeit in vain, when the firing began. After the first volley,
they crouched and tried to take cover from the hail of bullets. It would
have been unnatural for them to remain upright and still in their
seats. Hence, it is not difficult to imagine that the trajectories of the bullet
wounds varied as the victims shifted their positions. We agree with the
following explanation of the Court of Appeals:
The locations of the entry wounds can readily be explained. xxx Glenn
Tiempo, after looking in the direction of the explosion, turned his body
around; and since the ambushers were between the jeep and the car,
he received a bullet in his right chest (wound no. 1) which traveled to the
left. As to wound No. 2, it can be explained by the spot where Major
Tiempo found his fallen son.
Atty. Kintanar:
Q: Upon being informed by these occupants who were ambushed and
[you] were able to return the car, what did you do?
Major Tiempo:
A: I immediately got soldiers and we immediately proceeded to the area
or to the place where my fallen son was located and when we reached x
x xthe place, I saw my fallen son [in] a kneeling position where both
knees [were] touching the ground and the toes also and the forehead
was touching towards the ground. (TSN, Feb. 12, 1988, p. 6)
In such position, the second bullet necessarily traveled upwards in
relation to the body, and thus the entry wound should be lower than the
exit wound.There is no showing that both wounds were inflicted at the
same time.[47]
In any event, the witnesses saw that the appellants were the gunmen
who were standing side by side firing at them. They could have been in
a different position and in another hiding place when they first fired, but
this is not important. They were present at the crime scene, and they
were shooting their rifles at the victims.
Aberratio Ictus
Appellants likewise accuse the trial court of engaging in conjecture in
ruling that there was aberratio ictus in this case. This allegation does not
advance the cause of the appellants. It must be stressed that the trial
court relied on the concept of aberratio ictus to explain why the
appellants staged the ambush, not to prove that appellants did in fact
commit the crimes. Even assuming that the trial court did err in
explaining the motive of the appellants, this does not detract from its
findings, as affirmed by the Court of Appeals and sustained by this Court
in the discussion above, that the guilt of the appellants was proven
beyond reasonable doubt.
In any event, the trial court was not engaging in conjecture in so
ruling. The conclusion of the trial court and the Court of Appeals that the
appellants killed the wrong persons was based on the extrajudicial
statement of Appellant Beronga and the testimony of Jennifer
Binghoy. These pieces of evidence sufficiently show that appellants
believed that they were suspected of having killed the recently slain
Nabing Velez, and that they expected his group to retaliate against
them. Hence, upon the arrival of the victims vehicles which they mistook
to be carrying the avenging men of Nabing Velez, appellants opened
fire. Nonetheless, the fact that they were mistaken does not diminish
their culpability. The Court has held that mistake in the identity of the
victim carries the same gravity as when the accused zeroes in on his
intended victim.[48]
Be that as it may, the observation of the solicitor general on this point is
well-taken. The case is better characterized as error in personae or
mistake in the identity of the victims, rather than aberratio ictus which
means mistake in the blow, characterized by aiming at one but hitting
the other due to imprecision in the blow.
Second Issue:
Denial and Alibi
Appellants decry the lower courts disregard of their defense of alibi. We
disagree. As constantly enunciated by this Court, the established
doctrine requires the accused to prove not only that he was at some
other place at the time of the commission of the crime, but that it was
physically impossible for him at the time to have been present at
the locus criminis or its immediate vicinity.[49] This the appellants
miserably failed to do.
Appellant Beronga testified that, at the time of the incident, he was in his
residence in Lapulapu City, which was not shown to be so remote and
inaccessible that it precluded his presence in Mansueto Subdivision.
The alibi of Sabalones is even more unworthy of belief; he sought to
establish that he was a mere 20-25 meters away from the scene of the
crime. He was allegedly in the house of his brother who was lying in
state, which was so near the ambush site that some of the defense
witnesses even testified that they were terrified by the gunfire. Clearly,
appellants failed to establish the requisites of alibi.
Furthermore, the defense of alibi cannot overcome the positive
identification of the appellants.[50] As aptly held by this Court in People
v. Nescio:[51]
Alibi is not credible when the accused-appellant is only a short distance
from the scene of the crime. The defense of alibi is further offset by the
positive identification made by the prosecution witnesses. Alibi, to
reiterate a well-settled doctrine, is accepted only upon the clearest proof
that the accused-appellant was not or could not have been at the crime
scene when it was committed.
Flight
Appellants further object to the finding that Sabalones, after the incident,
made himself scarce from the place of commission. He left for Manila,
thence Mindanao on the supposition that he want[ed] to escape from the
wrath of Maj. Tiempo and his men for the death of Glenn Tiempo and
the near fatal shooting of the other son or from the supporters of Nabing
Velez. x x x On his supposedly borrowed freedom, he jumped bail and
hid himself deeper into Mindanao, under a cloak of an assumed
name. Why, did his conscience bother him for comfort?[52]
Appellants rationalized that Sabalones was forced to jump bail in order
to escape two groups, who were allegedly out to get him, one of Nabing
Velez and the other of Major Tiempo. Their ratiocination is
futile. It is well-established that the flight of an accused is competent
evidence to indicate his guilt, and flight, when unexplained, is a
circumstance from which an inference of guilt may be drawn.[53] It must
be stressed, nonetheless, that appellants were not convicted based on
legal inference alone but on the overwhelming evidence presented
against them.
Third Issue:
Crime and Punishment
We agree with the appellate court that accused-appellants are guilty of
murder for the deaths of Glenn Tiempo and Alfredo Nardo. The
allegation of treachery as charged in the Information was duly proven by
the prosecution. Treachery is committed when two conditions concur,
namely, that the means, methods, and forms of execution employed
gave the person attacked no opportunity to defend himself or to retaliate;
and that such means, methods and forms of execution were deliberately
and consciously adopted by the accused without danger to his
person.[54] These requisites were evidently present when the accused,
swiftly and unexpectedly, fired at the victims who were inside their
vehicles and were in no position and without any means to defend
themselves.
The appellate court also correctly convicted them of frustrated murder
for the injuries sustained by Nelson Tiempo, Rey Bolo and Rogelio
Presores. As evidenced by the medical certificates and the testimony of
Dr. Miguel Mancao who attended to the victims, Nelson Tiempo
sustained a neck wound which completely shattered his trachea and
rendered him voiceless, as well as a wound on the right chest which
penetrated his axilla but not his chest cavity.[55] Rey Bolo sustained
three injuries which affected his clavicle, ribs and lungs.[56]Rogelio
Presores, on the other hand, sustained an injury to his lungs from a
bullet wound which entered his right chest and exited through his
back.[57]
The wounds sustained by these survivors would have caused their death
had it not been for the timely medical intervention. Hence, we sustain
the ruling of the Court of Appeals that appellants are guilty of three
counts of frustrated murder.
We also uphold the Court of Appeals modification of the penalty for
murder, but not its computation of the sentence for frustrated murder.
For each of the two counts of murder, the trial court imposed the penalty
of fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal (medium), as minimum, to seventeen (17) years, four (4)
months and one (1) day of reclusion temporal (maximum), as
maximum. This is incorrect. Under Article 248 of the Revised Penal
Code, the imposable penalty is reclusion temporal, in its maximum
period, to death. There being no aggravating or mitigating circumstance,
aside from the qualifying circumstance of treachery, the appellate court
correctly imposed reclusion perpetua for murder.
The Court of Appeals, however, erred in computing the penalty for each
of the three counts of frustrated murder. It sentenced appellants to
imprisonment of ten years of prision mayor (medium) as minimum to
seventeen years and four months of reclusion temporal (medium) as
maximum. It modified the trial courts computation of eight (8) years
of prision mayor (minimum), as minimum, to fourteen (14) years and
eight (8) months of reclusion temporal (minimum) as maximum.
Under Article 50 of the Revised Penal Code, the penalty for a frustrated
felony is the next lower in degree than that prescribed by law for the
consummated felony x x x. The imposable penalty for frustrated murder,
therefore, is prision mayor in its maximum period to reclusion
temporal in its medium period.[58] Because there are no aggravating or
mitigating circumstance as the Court of Appeals itself held,[59] the
penalty prescribed by law should be imposed in its medium period. With
the application of the Indeterminate Sentence Law, the penalty for
frustrated murder should be 8 years of prision mayor (minimum), as
minimum, to 14 years and 8 months of reclusion temporal(minimum) as
maximum.
Although the Court of Appeals was silent on this point, the trial court
correctly ordered the payment of P50,000 as indemnity to the heirs of
each of the two murdered victims. In light of current jurisprudence, this
amount is awarded without need of proof other than the fact of the
victims death.[60] The trial court and the CA, however, erred in awarding
indemnity of P20,000 each to Nelson Tiempo, Rogelio Presores and
Rey Bolo. There is no basis, statutory or jurisprudential, for the award of
a fixed amount to victims of frustrated murder. Hence, they are entitled
only to the amounts of actual expenses duly proven during the trial.
Thus, Nelson Tiempo, who was treated for a gunshot wound on the neck
which shattered his trachea, should be awarded indemnity of
P21,594.22 for his medical expenses. This is evidenced by a statement
of account from Cebu Doctors Hospital.[61]
Rogelio Presores, who was likewise treated for gunshot wound in the
same hospital, presented a statement of account amounting
to P5,412.69 for his hospitalization.[62] Hence, he is likewise entitled to
indemnity in the said amount.
Rey Bolo, on the other hand, incurred an expense of P9,431.10 for the
treatment of his gunshot wounds, as evidenced by a statement of
account from the same hospital.[63] This amount should be awarded to
him as indemnity.
WHEREFORE, the appeal is DENIED and the assailed Decision is
AFFIRMED. However, the penalties are hereby MODIFIED as follows:
1) In Crim. Case No. CBU-9257, for MURDER, the accused-appellants
are each hereby sentenced to reclusion perpetua and to indemnify,
jointly and severally, the heirs of the deceased, Glenn Tiempo, in the
sum of P50,000;
2) In Crim. Case No. CBU-9258, for MURDER, the accused-appellants
are each hereby sentenced to reclusion perpetua and to indemnify,
jointly and severally, the heirs of the deceased, Alfredo Nardo, in the
sum of P50,000;
3) In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, the
accused-appellants are each hereby sentenced to suffer the penalty of
8 years of prision mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as maximum; and to jointly and
severally pay the victim, Rey Bolo, in the sum of P9,431.10 as actual
damages;

4) In Crim Case No. CBU-9260, for FRUSTRATED MURDER, the

accused-appellants are hereby sentenced to suffer the penalty of 8
years of prision mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as maximum; and to jointly and
severally indemnify the victim, Rogelio Presores, in the sum
of P5,412.69 for actual damages;

5) In Crim. Case No. CBU-9261 for FRUSTRATED MURDER, the

accused-appellants are hereby sentenced to suffer the penalty of 8
years of prision mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as maximum; and to jointly and
severally indemnify the victim, Nelson Tiempo, in the sum of P21,594.22
as actual damages.

Let copies of this Decision be furnished the Secretary of Interior and

Local Government and the Secretary of Justice so that Accused Eufemio
Cabanero may be brought to justice.

Costs against appellants.

SO ORDERED.

Davide, Jr., (Chairman), Bellosillo, Vitug and Quisumbing, JJ., concur.


G.R. No. L-38773 December 19, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee,
vs. GINES ALBURQUERQUE Y SANCHEZ, Defendant-Appellant.
Gibbs and McDonough and Roman Ozaeta, for appellant.
Office of the Solicitor-General Hilado for appellee.
AVANCEA, C.J.: chanrobles virtual law library
The judgment appealed from finds the appellants Gines Alburquerque
guilty of the crime of homicide committed on the person of Manuel Osma
and sentences him to eight years and one day of prision mayor, and to
indemnify the heirs of the deceased in the sum of P1,000, with
costs.chanroblesvirtualawlibrary chanrobles virtual law library
The appellant herein, who is a widower of fifty-five years of age and
father of nine living children, has been suffering from partial paralysis for
some time, walks dragging one leg and has lost control of the movement
of his right arm. He has been unable to work since he suffered the stroke
of paralysis. One of his daughters was named Maria and another, are
married, while still another one is a nun. With the exemption of the other
married daughter and the nun, of all of them, including the appellant, live
with Maria upon whom they depend for
support.chanroblesvirtualawlibrary chanrobles virtual law library
Among the daughters living with Maria, one named Pilar became
acquainted and had intimate relations later with the deceased Manuel
Osma about the end of the year 1928. It was then that the appellant
became acquainted with the deceased who frequently visited Pilar in his
house. The relations between Pilar and the deceased culminated in
Pilar's giving birth to a child. The appellant did not know that his
daughter's relations with the deceased had gone to such extremes, that
he had to be deceived with the information that she had gone to her
godfather's house in Singalong, when in fact she had been taken to the
Chinese Hospital for delivery. The appellant learned the truth only when
Pilar returned home with her
child.chanroblesvirtualawlibrary chanrobles virtual law library
Naturally the appellant was deeply affected by this incident, since which
time he has appeared sad and worried not only because of the dishonor
it brought upon his family but also because the child meant an added
burden to Maria upon whom they all depended for support. For some
time the appellant wrote letters, that at times were hostile and
threatening and at other times entreating the deceased to legitimize his
union with Pilar by marrying her, or at least, to support her and his child.
Although the deceased agreed to give the child a monthly allowance by
way of support, he never complied with his
promise.chanroblesvirtualawlibrary chanrobles virtual law library
The appellant was in such a mood when he presented himself one day
at the office where the deceased worked and asked leave of the
manager thereof to speak to Osma. They both went downstairs. What
happened later, nobody witnessed. But the undisputed fact is that on
that occasion the appellant inflicted a wound at the base of the neck of
the deceased, causing his death.chanroblesvirtualawlibrary chanrobles
virtual law library
After excluding the improbable portions thereof, the court infers from the
testimony of the appellant that he proposed to said deceased to marry
his daughter and that, upon hearing that the latter refused to do so, he
whipped out his penknife. Upon seeing the appellant's attitude, the
deceased tried to seize him by the neck whereupon the said appellant
stabbed him on the face with the said penknife. Due to his lack of control
of the movement of his arm, the weapon landed on the base of the neck
of the deceased.chanroblesvirtualawlibrary chanrobles virtual law
library
The trial court found that the appellant did not intend to cause so grave
an injury as the death of the deceased. We find that his conclusion is
supported by the evidence. In his testimony the appellant emphatically
affirmed that he only wanted to inflict a wound that would leave a
permanent scar on the face of the deceased, or one that would compel
him to remain in the hospital for a week or two but never intended to kill
him, because then it would frustrate his plan of compelling him to marry
or, at least, support his daughter. The appellant had stated this intention
in some of his letters to the deceased by way of a threat to induce him
to accept his proposal for the benefit of his daughter. That the act of the
appellant in stabbing the deceased resulted in the fatal wound at the
base of his neck, was due solely to the fact hereinbefore mentioned that
appellant did not have control of his right arm on account of paralysis
and the blow, although intended for the face, landed at the base of the
neck.chanroblesvirtualawlibrary chanrobles virtual law library
Therefore, the mitigating circumstance of lack of intention to cause so
grave an injury as the death of the deceased as well as those of his
having voluntarily surrendered himself to the authorities, and acted
under the influence of passion and obfuscation, should be taken into
consideration in favor of the
appellant.chanroblesvirtualawlibrary chanrobles virtual law library
Under the facts above stated, we cannot entertain the appellant's
contention that he acted in legitimate self-defense inasmuch as he
provoked and commenced the aggression by whipping out and
brandishing his penknife.chanroblesvirtualawlibrary chanrobles virtual
law library
The defense likewise claims that, at all events, article 49 of the Revised
Penal Code, which refers to cases where the crime committed is
different from that intended by the accused, should be applied herein.
This article is a reproduction of article 64 of the old Code and has been
interpreted as applicable only in cases where the crime befalls a different
person (decisions of the Supreme Court of Spain of October 20, 1897,
and June 28,1899), which is not the case
herein.chanroblesvirtualawlibrary chanrobles virtual law library
The facts as herein proven constitute the crime of homicide defined and
penalized in article 249 of the Revised Penal Code with reclusion
temporal. In view of the concurrence therein of three mitigating
circumstances without any aggravating circumstance, the penalty next
lower in degree, that is prision mayor, should be
imposed.chanroblesvirtualawlibrary chanrobles virtual law library

Wherefore, pursuant to the provisions of Act No. 4103, the appellant is

hereby sentenced to suffer the indeterminate penalty of from one (1)
year of prision correccional to eight (8) years and (1) day of prision
mayor, affirming the judgment appealed from in all other respects, with
the costs. So ordered.chanroblesvirtualawlibrary chanrobles virtual law
library

Street, Abad Santos, Vickers, and Butte, JJ., concur.


EN BANC
G.R. No. L-10126 October 22, 1957
SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA,
LUZVIMINDA, ELENITA, OSCAR and ALFREDO BATACLAN,
represented by their Natural guardian, SALUD VILLANUEVA VDA. DE
BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.
Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for
plaintiffs-appellants.
Fortunato Jose for defendant and appellant.
MONTEMAYOR, J.:
Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina
Transportation, operated by its owner defendant Mariano Medina under
a certificate of public convenience, left the town of Amadeo, Cavite, on
its way to Pasay City, driven by its regular chauffeur, Conrado Saylon.
There were about eighteen passengers, including the driver and
conductor. Among the passengers were Juan Bataclan, seated beside
and to the right of the driver, Felipe Lara, sated to the right of Bataclan,
another passenger apparently from the Visayan Islands whom the
witnesses just called Visaya, apparently not knowing his name, seated
in the left side of the driver, and a woman named Natalia Villanueva,
seated just behind the four last mentioned. At about 2:00 o'clock that
same morning, while the bus was running within the jurisdiction of Imus,
Cavite, one of the front tires burst and the vehicle began to zig-zag until
it fell into a canal or ditch on the right side of the road and turned turtle.
Some of the passengers managed to leave the bus the best way they
could, others had to be helped or pulled out, while the three passengers
seated beside the driver, named Bataclan, Lara and the Visayan and the
woman behind them named Natalia Villanueva, could not get out of the
overturned bus. Some of the passengers, after they had clambered up
to the road, heard groans and moans from inside the bus, particularly,
shouts for help from Bataclan and Lara, who said they could not get out
of the bus. There is nothing in the evidence to show whether or not the
passengers already free from the wreck, including the driver and the
conductor, made any attempt to pull out or extricate and rescue the four
passengers trapped inside the vehicle, but calls or shouts for help were
made to the houses in the neighborhood. After half an hour, came about
ten men, one of them carrying a lighted torch made of bamboo with a
wick on one end, evidently fueled with petroleum. These men
presumably approach the overturned bus, and almost immediately, a
fierce fire started, burning and all but consuming the bus, including the
four passengers trapped inside it. It would appear that as the bus
overturned, gasoline began to leak and escape from the gasoline tank
on the side of the chassis, spreading over and permeating the body of
the bus and the ground under and around it, and that the lighted torch
brought by one of the men who answered the call for help set it on fire.
That same day, the charred bodies of the four deemed passengers
inside the bus were removed and duly identified that of Juan Bataclan.
By reason of his death, his widow, Salud Villanueva, in her name and in
behalf of her five minor children, brought the present suit to recover from
Mariano Medina compensatory, moral, and exemplary damages and
attorney's fees in the total amount of P87,150. After trial, the Court of
First Instance of Cavite awarded P1,000 to the plaintiffs plus P600 as
attorney's fee, plus P100, the value of the merchandise being carried by
Bataclan to Pasay City for sale and which was lost in the fire. The
plaintiffs and the defendants appealed the decision to the Court of
Appeals, but the latter endorsed the appeal to us because of the value
involved in the claim in the complaint.
Our new Civil Code amply provides for the responsibility of common
carrier to its passengers and their goods. For purposes of reference, we
are reproducing the pertinent codal provisions:
ART. 1733. Common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extraordinary diligence in
the vigilance over the goods and for the safety of the passengers
transported by them, according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further
expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the
extra ordinary diligence for the safety of the passengers is further set
forth in articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the passengers safely
as far as human care and foresight can provide, using the utmost
diligence of very cautious persons, with a due regard for all the
circumstances.
ART. 1756. In case of death of or injuries to passengers, common
carriers are presumed to have been at fault or to have acted negligently,
unless they prove that they observed extraordinary diligence as
prescribed in articles 1733 and 1755
ART. 1759. Common carriers are liable for the death of or injuries to
passengers through the negligence or willful acts of the former's
employees, although such employees may have acted beyond the
scope of their authority or in violation of the order of the common
carriers.
This liability of the common carriers does not cease upon proof that they
exercised all the diligence of a good father of a family in the selection
and supervision of their employees.
ART. 1763. A common carrier responsible for injuries suffered by a
passenger on account of the willful acts or negligence of other
passengers or of strangers, if the common carrier's employees through
the exercise of the diligence of a good father of a family could have
prevented or stopped the act or omission.
We agree with the trial court that the case involves a breach of contract
of transportation for hire, the Medina Transportation having undertaken
to carry Bataclan safely to his destination, Pasay City. We also agree
with the trial court that there was negligence on the part of the defendant,
through his agent, the driver Saylon. There is evidence to show that at
the time of the blow out, the bus was speeding, as testified to by one of
the passengers, and as shown by the fact that according to the
testimony of the witnesses, including that of the defense, from the point
where one of the front tires burst up to the canal where the bus
overturned after zig-zaging, there was a distance of about 150 meters.
The chauffeur, after the blow-out, must have applied the brakes in order
to stop the bus, but because of the velocity at which the bus must have
been running, its momentum carried it over a distance of 150 meters
before it fell into the canal and turned turtle.
There is no question that under the circumstances, the defendant carrier
is liable. The only question is to what degree. The trial court was of the
opinion that the proximate cause of the death of Bataclan was not the
overturning of the bus, but rather, the fire that burned the bus, including
himself and his co-passengers who were unable to leave it; that at the
time the fire started, Bataclan, though he must have suffered physical
injuries, perhaps serious, was still alive, and so damages were awarded,
not for his death, but for the physical injuries suffered by him. We
disagree. A satisfactory definition of proximate cause is found in Volume
38, pages 695-696 of American jurisprudence, cited by plaintiffs-
appellants in their brief. It is as follows:
. . . 'that cause, which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury, and without
which the result would not have occurred.' And more comprehensively,
'the proximate legal cause is that acting first and producing the injury,
either immediately or by setting other events in motion, all constituting a
natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and probable result of the
cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinary prudent and
intelligent person, have reasonable ground to expect at the moment of
his act or default that an injury to some person might probably result
therefrom.
It may be that ordinarily, when a passenger bus overturns, and pins
down a passenger, merely causing him physical injuries, if through some
event, unexpected and extraordinary, the overturned bus is set on fire,
say, by lightning, or if some highwaymen after looting the vehicle sets it
on fire, and the passenger is burned to death, one might still contend
that the proximate cause of his death was the fire and not the overturning
of the vehicle. But in the present case under the circumstances obtaining
in the same, we do not hesitate to hold that the proximate cause was the
overturning of the bus, this for the reason that when the vehicle turned
not only on its side but completely on its back, the leaking of the gasoline
from the tank was not unnatural or unexpected; that the coming of the
men with a lighted torch was in response to the call for help, made not
only by the passengers, but most probably, by the driver and the
conductor themselves, and that because it was dark (about 2:30 in the
morning), the rescuers had to carry a light with them, and coming as
they did from a rural area where lanterns and flashlights were not
available; and what was more natural than that said rescuers should
innocently approach the vehicle to extend the aid and effect the rescue
requested from them. In other words, the coming of the men with a torch
was to be expected and was a natural sequence of the overturning of
the bus, the trapping of some of its passengers and the call for outside
help. What is more, the burning of the bus can also in part be attributed
to the negligence of the carrier, through is driver and its conductor.
According to the witness, the driver and the conductor were on the road
walking back and forth. They, or at least, the driver should and must
have known that in the position in which the overturned bus was,
gasoline could and must have leaked from the gasoline tank and soaked
the area in and around the bus, this aside from the fact that gasoline
when spilled, specially over a large area, can be smelt and directed even
from a distance, and yet neither the driver nor the conductor would
appear to have cautioned or taken steps to warn the rescuers not to
bring the lighted torch too near the bus. Said negligence on the part of
the agents of the carrier come under the codal provisions above-
reproduced, particularly, Articles 1733, 1759 and 1763.
As regard the damages to which plaintiffs are entitled, considering the
earning capacity of the deceased, as well as the other elements entering
into a damage award, we are satisfied that the amount of SIX
THOUSAND (P6,000) PESOS would constitute satisfactory
compensation, this to include compensatory, moral, and other damages.
We also believe that plaintiffs are entitled to attorney's fees, and
assessing the legal services rendered by plaintiffs' attorneys not only in
the trial court, but also in the course of the appeal, and not losing sight
of the able briefs prepared by them, the attorney's fees may well be fixed
at EIGHT HUNDRED (P800) PESOS for the loss of merchandise carried
by the deceased in the bus, is adequate and will not be disturbed.
There is one phase of this case which disturbs if it does not shock us.
According to the evidence, one of the passengers who, because of the
injuries suffered by her, was hospitalized, and while in the hospital, she
was visited by the defendant Mariano Medina, and in the course of his
visit, she overheard him speaking to one of his bus inspectors, telling
said inspector to have the tires of the bus changed immediately because
they were already old, and that as a matter of fact, he had been telling
the driver to change the said tires, but that the driver did not follow his
instructions. If this be true, it goes to prove that the driver had not been
diligent and had not taken the necessary precautions to insure the safety
of his passengers. Had he changed the tires, specially those in front,
with new ones, as he had been instructed to do, probably, despite his
speeding, as we have already stated, the blow out would not have
occurred. All in all, there is reason to believe that the driver operated
and drove his vehicle negligently, resulting in the death of four of his
passengers, physical injuries to others, and the complete loss and
destruction of their goods, and yet the criminal case against him, on
motion of the fiscal and with his consent, was provisionally dismissed,
because according to the fiscal, the witnesses on whose testimony he
was banking to support the complaint, either failed or appear or were
reluctant to testify. But the record of the case before us shows the
several witnesses, passengers, in that bus, willingly and unhesitatingly
testified in court to the effect of the said driver was negligent. In the
public interest the prosecution of said erring driver should be pursued,
this, not only as a matter of justice, but for the promotion of the safety of
passengers on public utility buses. Let a copy of this decision be
furnished the Department of Justice and the Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded
by the trial court are increased from ONE THOUSAND (P1,000) PESOS
TO SIX THOUSAND (P6,000) PESOS, and from SIX HUNDRED
PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan
and for the attorney's fees, respectively, the decision appealed is from
hereby affirmed, with costs.

Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador,

Concepcion, Reyes, J. B. L., Endencia, and Felix, JJ., concur.

THIRD DIVISION
[G.R. No. 75369. November 26, 1990.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FERNANDO
ILIGAN y JAMITO, EDMUNDO ASIS y ILIGAN and JUAN MACANDOG
(at large), Defendants, FERNANDO ILIGAN y JAMITO and EDMUNDO
ASIS y ILIGAN, Defendants-Appellants.
The Solicitor General for Plaintiff-Appellee.
Cesar R. Canonizado, for Defendants-Appellants.
SYLLABUS
1. REMEDIAL LAW; APPEAL; THROWS THE CASE OPEN FOR A
COMPLETE REVIEW OF ALL ERRORS AS MAY BE IMPUTABLE TO
THE TRIAL COURT. While the factual findings of the trial court are
generally given due respect by the appellate court, an appeal of a
criminal case throws it open for a complete review of all errors, by
commission or omission, as may be imputable to the trial court. (People
v. Valerio, Jr., L-4116, February 25, 1982, 112 SCRA 208, 231) In this
instance, the lower court erred in finding that the maceration of one half
of the head of the victim was also caused by Iligan for the evidence on
record point to a different conclusion. We are convinced beyond
peradventure that indeed, after Quiones, Jr. had fallen from the bolo-
hacking perpetrated by Iligan, he was run over by a vehicle. This finding,
however, does not in any way exonerate Iligan from liability for the death
of Quiones, Jr.
2. CRIMINAL LAW; LIABILITY; REQUISITES THEREOF, PRESENT IN
THE CASE AT BAR. Under Article 4 of the Revised Penal Code,
criminal liability shall be incurred "by any person committing a felony
(delito) although the wrongful act done be different from that which he
intended." Based on the doctrine that "el que es causa de la causa es
causa del mal causado" (he who is the cause of the cause is the cause
of the evil caused), (People v. Ural, G.R. No. L-30801, March 27, 1974,
56 SCRA 138, 144) the essential requisites of Article 4 are: (a) that an
intentional felony has been committed, and (b) that the wrong done to
the aggrieved party be the direct, natural and logical consequence of the
felony committed by the offender. (People v. Mananquil, L-35574,
September 28, 1984, 132 SCRA 196, 207). We hold that these
requisites are present in this case.
3. ID.; ID.; PROXIMATE LEGAL CAUSE, DEFINED. The intentional
felony committed was the hacking of the head of Quiones, Jr. by Iligan.
That it was considered as superficial by the physician who autopsied
Quiones is beside the point. What is material is that by the instrument
used in hacking Quiones, Jr. and the location of the wound, the assault
was meant not only to immobilize the victim but to do away with him as
it was directed at a vital and delicate part of the body: the head. (See:
People v. Diana, 32 Phil. 344 [1915]). The hacking incident happened
on the national highway where vehicles are expected to pass any
moment. One such vehicle passed seconds later when Lukban and
Zaldy Asis, running scared and having barely negotiated the distance of
around 200 meters, heard shouts of people. Quiones, Jr., weakened
by the hacking blow which sent him to the cemented highway, was run
over by a vehicle. Under these circumstances, we hold that while Iligans
hacking of Quiones, Jr.s head might not have been the direct cause, it
was the proximate cause of the latters death. Proximate legal cause is
defined as "that acting first and producing the injury, either immediately
or by setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection with
its immediate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the cause which
first acted, under such circumstances that the person responsible for the
first event should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an
injury to some person might probably result therefrom. (Urbano v.
Intermediate Appellate Court, G.R. No. 72964, January 7, 1988, 157
SCRA 1 quoting Vda. De Bataclan v. Medina, 102 Phil. 181). In other
words, the sequence of events from Iligans assault on him to the time
Quiones, Jr. was run over by a vehicle is, considering the very short
span of time between them, one unbroken chain of events. Having
triggered such events, Iligan cannot escape liability.
4. ID.; ALIBI; NOT CONSIDERED WHEN ACCUSED IS POSITIVELY
IDENTIFIED BY WITNESSES. We agree with the lower court that the
defense of alibi cannot turn the tide in favor of Iligan because he was
positively seen at the scene of the crime and identified by the
prosecution witnesses. (People v. Pineda, G.R. No. 72400, January 15,
1988, 157 SCRA 71).
5. ID.; AGGRAVATING CIRCUMSTANCES; TREACHERY AND
EVIDENT PREMEDITATION, WRONGLY APPRECIATED IN THE
CASE AT BAR. But we disagree with the lower court with regards to
its findings on the aggravating circumstances of treachery and evident
premeditation. Treachery has been appreciated by the lower court in
view of the suddenness of the attack on the group of Quiones, Jr.
Suddenness of such attack, however, does not by itself show treachery.
(People v. Gadiano, L-31818, July 30, 1982, 115 SCRA 559) There must
be evidence that the mode of attack was consciously adopted by the
appellant to make it impossible or hard for the person attacked to defend
himself. (People v. Crisostomo, L-32243, April 15, 1988, 160 SCRA 47).
In this case, the hacking of Edmundo Asis by Iligan followed by the
chasing of the trio by the group of Iligan was a warning to the deceased
and his companions of the hostile attitude of the appellants. The group
of Quiones, Jr. was therefore placed on guard for any subsequent
FERNAN, J.:
attacks against them. (People v. Mercado, L-33492, March 30, 1988,
159 SCRA 455). The requisites necessary to appreciate evident
premeditation have likewise not been met in this case. Thus, the
prosecution failed to prove all of the following: (a) the time when the
accused determined to commit the crime; (b) an act manifestly indicating In this appeal, uncle and nephew, Fernando Iligan and Edmundo Asis,

that the accused had clung to their determination to commit the crime; seek a reversal of the decision of the then Court of First Instance of

and (c) the lapse of sufficient length of time between the determination Camarines Norte, Branch II 1 convicting them of the crime of murder and

and execution to allow him to reflect upon the consequences of his act. sentencing them to suffer the penalty of reclusion perpetua and to

(People v. Batas, G.R. Nos. 84277-78, August 2, 1989, 176 SCRA 46). indemnify the heirs of Esmeraldo Quiones, Jr. in the amounts of
P30,000 for the latters death and P256,960 representing the victims

6. ID.; CONSPIRACY; NOT SUFFICIENTLY CONSTITUTED BY MERE unrealized income.

KNOWLEDGE, ACQUIESCENCE OR APPROVAL OF THE ACT

WITHOUT COOPERATION OR AGREEMENT TO COOPERATE NOR On October 21, 1980, the following information for murder was filed

BY MERE PRESENCE AT THE SCENE OF THE CRIME. Absent any against Fernando Iligan, Edmundo Asis and Juan

qualifying circumstances, Iligan must be held liable only for homicide. Macandog:chanrobles.com.ph : virtual law library

Again, contrary to the lower courts finding, proof beyond reasonable

doubt has not been established to hold Edmundo Asis liable as Iligans "That on or about 3:00 a.m., August 4, 1980, at sitio Lico II, barangay

co-conspirator. Edmundo Asis did not take any active part in the infliction Sto. Domingo, municipality of Vinzons, province of Camarines Norte,

of the wound on the head of Quiones, Jr., which led to his running over Philippines, and within the jurisdiction of the Honorable Court, the above

by a vehicle and consequent death. As earlier pointed out, the testimony named accused, conspiring and mutually helping one another, with

that he was carrying a stone at the scene of the crime hardly merits treachery and evident premeditation, one of the accused Fernando

credibility being uncorroborated and coming from an undeniably biased Iligan armed with a bolo (sinampalok) and with deliberate intent to kill,

witness. Having been the companion of Iligan, Edmundo Asis must have did then and there wilfully, unlawfully and feloniously, gang up and in a

known of the formers criminal intent but mere knowledge, acquiescense sudden unexpected manner, hacked Esmeraldo Quiones, Jr., on his

or approval of the act without cooperation or agreement to cooperate, is face, thus causing fatal injuries on the latters face which resulted to (sic)

not enough to constitute one a party to a conspiracy. There must be the death of said Esmeraldo Quiones.

intentional participation in the act with a view to the furtherance of the

common design and purpose. (People v. Izon, 104 Phil. 690 [1958]) "CONTRARY TO LAW."cralaw virtua1aw library

Such being the case, his mere presence at the scene of the crime did
not make him a co-conspirator, a co-principal or an accomplice to the Juan Macandog was never apprehended and he remains at large. At

assault perpetrated by Iligan. (Orobio v. Court of Appeals, G.R. No. their arraignment on January 12, 1981 Fernando Iligan and Edmundo

57519, September 13, 1988, 165 SCRA 316) Edmundo Asis therefore Asis pleaded not guilty to the crime charged. Thereafter, the prosecution

deserves exoneration. presented the following version of the commission of the

crime.chanrobles.com.ph : virtual law library

7. ID.; HOMICIDE; PENALTY; ABSENT ANY MITIGATING

CIRCUMSTANCE AND APPLYING THE INDETERMINATE At around 2:00 oclock in the morning of August 4, 1980, Esmeraldo

SENTENCE LAW. There being no mitigating circumstance, the Quiones, Jr. and his companions, Zaldy Asis and Felix Lukban, were

penalty imposable on Iligan is reclusion temporal medium (Arts. 249 and walking home from barangay Sto. Domingo, Vinzons, Camarines Norte

64, Revised Penal Code). Applying the Indeterminate Sentence Law, after attending a barrio fiesta dance. In front of the ricemill of a certain

the proper penalty is that within the range of prision mayor as minimum Almadrones, they met the accused Fernando Iligan, his nephew,

and reclusion temporal medium as maximum. We find insufficient proof Edmundo Asis, and Juan Macandog. Edmundo Asis pushed ("winahi")

to warrant the award of P256,960 for the victims unrealized income and them aside thereby prompting Zaldy Asis to box him. 2 Felix Lukban

therefore, the same is disallowed. quickly told the group of the accused that they had no desire to fight. 3
Fernando Iligan, upon seeing his nephew fall, drew from his back a bolo
and hacked Zaldy Asis but missed. Terrified, the trio ran pursued by the
three accused. They ran for about half an hour, passing by the house of
Quiones, Jr. They stopped running only upon seeing that they were no
DECISION
longer being chased. After resting for a short while, Quiones, Jr. invited
the two to accompany him to his house so that he could change to his
working clothes and report for work as a bus conductor. 4
While the trio were walking towards the house of Quiones, Jr., the three
accused suddenly emerged on the roadside and without a word,
Fernando Iligan hacked Quiones, Jr. with his bolo hitting him on the
forehead and causing him to fall down. 5 Horrified, Felix Lukban and
Zaldy Asis fled to a distance of 200 meters, but returned walking after
they heard shouts of people. Zaldy Asis specifically heard someone
shout "May nadale na." 6 Abas to the effect that Quiones, Jr. died because of a vehicular
On the spot where Quiones, Jr. was hacked, Zaldy Asis and Felix
Lukban saw him already dead with his head busted. 7 They helped the
brother of Quiones, Jr. in carrying him to their house. 8
That same day, August 4, 1980, the body of Quiones, Jr. was autopsied
at the Funeraria Belmonte in Labo, Camarines Norte by the municipal
health officer, Dr. Marcelito E. Abas. The postmortem examination report
which is found at the back of the death certificate reveals that Esmeraldo
Quiones, Jr., who was 21 years old when he died, sustained the
following injuries:jgc:chanrobles.com.ph
"1. Shock and massive cerebral hemorrhages due to multiple fracture of
the entire half of the frontal left, temporal, parietal and occipital bone of
the head, with massive maceration of the brain tissue.
"2. Other findings Incised wound at the right eyebrow, medial aspect
measuring about 4 cms. in length, 0.5 cm. in width and 0.5 cm. in depth,
abrasion on the left shoulder and right side of the neck." 9
The death certificate also indicates that Quiones, Jr. died of "shock and
massive cerebral hemorrhages due to a vehicular accident."cralaw
virtua1aw library
The defendants denied having perpetrated the crime. They alleged that
they were in their respective houses at the time the crime was
committed.chanrobles law library
Accused Fernando Iligan testified that at around midnight of August 4,
1980, he left his house to fetch his visitors at the dance hall. 10 Along
the way, he met his nephew, Edmundo Asis, whom he presumed was
drunk. He invited his nephew to accompany him to the dance hall.
However, they were not able to reach their destination because
Edmundo was boxed by somebody whom he (Edmundo) sideswiped.
11 Instead, Fernando Iligan brought his nephew home. 12 On their way,
they were overtaken by Juliano Mendoza whom Fernando Iligan invited
to his house to help him cook. 13 After bringing his nephew home,
Fernando Iligan and Juliano Mendoza proceeded to Iligans house and
arrived there between 1:30 and 2:00 oclock in the morning of the same
day. 14
Edmundo Asis corroborated Iligans testimony. He testified that while
they were walking in front of the Almadrones ricemill, he sideswiped
someone whom he did not recognize because there were several
persons around. He said, "Sorry, pare" but the person to whom he
addressed his apology boxed him on his left face. He fell down and Iligan
helped him. Later, Iligan accompanied him to his home in Lico II. 15 After
Iligan and Juliano Mendoza had left his house, he slept and woke up at
7:00 oclock the following morning. 16
The defense made capital of the testimony of prosecution witness Dr.
accident. In ruling out said theory, however, the lower court, in its
decision of May 7, 1986, said:jgc:chanrobles.com.ph
"The accused, to augment their alibi, have pointed to this Court that the
Certificate of Death have shown that the victims death was caused by
a vehicular accident. To this, notwithstanding, the Court cannot give
credit for some reasons. First, the fact of the alleged vehicular accident
has not been fully established. Second, Esmeraldo Quiones, Sr., (the)
father of the victim, testified that Dr. Abas told him that if his son was
hacked by a bolo on the face and then run over the entire head by a
vehicles tire, then that hacking on the face could not be visibly seen on
the head (t.s.n., pp. 16-17, October 13, 1981) Third, Exhibit 2 (the
photograph of the victim taken immediately after his body had been
brought home) is a hard evidence. It will attestly (sic) show that the entire
head was not crushed by any vehicle. On the contrary, it shows that only
half of the face and head, was damaged with the wound starting on a
sharp edge horizontally. There are contusions and abrasions on the
upper left shoulder and on the neck while the body downwards has none
of it, while on the right forehead there is another wound caused by a
sharp instrument. Therefore, it is simple, that if the victim was run over
by a vehicle, the other half portion of his head and downward part of his
body must have been likewise seriously damaged, which there are
none." 17
The lower court also found that Iligans group conspired to kill anyone or
all members of the group of the victim to vindicate the boxing on the face
of Edmundo Asis. It appreciated the aggravating circumstances of
evident premeditation and treachery and accordingly convicted Iligan
and Edmundo Asis of the crime of murder and imposed on them the
aforementioned penalty.
Iligan and Edmundo Asis interposed this appeal professing innocence
of the crime for which they were convicted. For the second time, they
attributed Quiones, Jr.s death to a vehicular accident.
No eyewitnesses were presented to prove that Quiones, Jr. was run
over by a vehicle. The defense relies on the testimony of Dr. Abas, a
prosecution witness, who swore that the multiple fracture on the head of
Quiones, Jr. was caused by a vehicular accident 18 which opinion was
earlier put in writing by the same witness in the postmortem examination.
Dr. Abas justified his conclusion by what he considered as tire marks on
the victims left shoulder and the right side of his neck. 19 He also
testified that the incised wound located at the victims right eyebrow
could have been caused by a sharp bolo but it was so superficial that it
could not have caused the victims death. 20
Circumstantial evidence on record indeed point to the veracity of the
actual occurrence of the vehicular mishap. One such evidence is the
testimony of prosecution witness Zaldy Asis that when he helped bring
home the body of Quiones, Jr., he told the victims father, Esmeraldo
Quiones, Sr. that "before Esmeraldo Quiones (Jr.) was run over by a
vehicle, he was hacked by Fernando Iligan." 21 When asked why he
mentioned an automobile, Zaldy Asis said that he did not notice any
vehicle around but he mentioned it "because his (Quiones, Jr.) head
was busted." 22 It is therefore not farfetched to conclude that Zaldy Asis
had actual knowledge of said accident but for understandable reasons
he declined to declare it in court. Defense witness Marciano Mago, the
barangay captain of Sto. Domingo, also testified that when he went to
the scene of the crime, he saw bits of the brain of the victim scattered
across the road where he also saw tire marks. 23
For its part, the prosecution, through the victims father, presented
evidence to the effect that Iligan authored the maceration of half of the
victims head. Quiones, Sr. testified that from their house, which was
about five meters away from the road, he saw Fernando Iligan holding
a "sinampalok" as he, together with Edmundo Asis and Juan Macandog,
chased someone. During the second time that he saw the three
accused, he heard Iligan say, "Dali, ayos na yan." 24 Hence, the lower
court concluded that the victims head was "chopped" resulting in the
splattering of his brain all over the place. 25 It should be emphasized,
however, that the testimony came from a biased witness and it was
uncorroborated.
While the factual findings of the trial court are generally given due
respect by the appellate court, an appeal of a criminal case throws it
open for a complete review of all errors, by commission or omission, as
may be imputable to the trial court. 26 In this instance, the lower court
erred in finding that the maceration of one half of the head of the victim
was also caused by Iligan for the evidence on record point to a different
conclusion. We are convinced beyond peradventure that indeed, after
Quiones, Jr. had fallen from the bolo-hacking perpetrated by Iligan, he
was run over by a vehicle. This finding, however, does not in any way
exonerate Iligan from liability for the death of Quiones,
Jr.chanrobles.com : virtual law library
Under Article 4 of the Revised Penal Code, criminal liability shall be
incurred "by any person committing a felony (delito) although the
wrongful act done be different from that which he intended." Based on
the doctrine that "el que es causa de la causa es causa del mal causado"
(he who is the cause of the cause is the cause of the evil caused), 27
the essential requisites of Article 4 are: (a) that an intentional felony has
been committed, and (b) that the wrong done to the aggrieved party be
the direct, natural and logical consequence of the felony committed by
the offender. 28 We hold that these requisites are present in this case.
The intentional felony committed was the hacking of the head of
Quiones, Jr. by Iligan. That it was considered as superficial by the
physician who autopsied Quiones is beside the point. What is material
is that by the instrument used in hacking Quiones, Jr. and the location
of the wound, the assault was meant not only to immobilize the victim
but to do away with him as it was directed at a vital and delicate part of
the body: the head. 29
The hacking incident happened on the national highway 30 where
vehicles are expected to pass any moment. One such vehicle passed
seconds later when Lukban and Zaldy Asis, running scared and having
barely negotiated the distance of around 200 meters, heard shouts of
people. Quiones, Jr., weakened by the hacking blow which sent him to
the cemented highway, was run over by a vehicle.
Under these circumstances, we hold that while Iligans hacking of
Quiones, Jr.s head might not have been the direct cause, it was the
proximate cause of the latters death. Proximate legal cause is defined
as "that acting first and producing the injury, either immediately or by
setting other events in motion, all constituting a natural and continuous
chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the cause which
first acted, under such circumstances that the person responsible for the
first event should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an
injury to some person might probably result therefrom." 31 In other
words, the sequence of events from Iligans assault on him to the time
Quiones, Jr. was run over by a vehicle is, considering the very short
span of time between them, one unbroken chain of events. Having
triggered such events, Iligan cannot escape liability.chanrobles law
library
We agree with the lower court that the defense of alibi cannot turn the
tide in favor of Iligan because he was positively seen at the scene of the
crime and identified by the prosecution witnesses. 32
But we disagree with the lower court with regards to its findings on the
aggravating circumstances of treachery and evident premeditation.
Treachery has been appreciated by the lower court in view of the
suddenness of the attack on the group of Quiones, Jr. Suddenness of
such attack, however, does not by itself show treachery. 33 There must
be evidence that the mode of attack was consciously adopted by the
appellant to make it impossible or hard for the person attacked to defend
himself. 34 In this case, the hacking of Edmundo Asis by Iligan followed
by the chasing of the trio by the group of Iligan was a warning to the
deceased and his companions of the hostile attitude of the appellants.
The group of Quiones, Jr. was therefore placed on guard for any
subsequent attacks against them. 35
The requisites necessary to appreciate evident premeditation have
likewise not been met in this case. Thus, the prosecution failed to prove
all of the following: (a) the time when the accused determined to commit
the crime; (b) an act manifestly indicating that the accused had clung to
their determination to commit the crime; and (c) the lapse of sufficient
length of time between the determination and execution to allow him to
reflect upon the consequences of his act. 36

Absent any qualifying circumstances, Iligan must be held liable only for
homicide. Again, contrary to the lower courts finding, proof beyond
reasonable doubt has not been established to hold Edmundo Asis liable
as Iligans co-conspirator. Edmundo Asis did not take any active part in
the infliction of the wound on the head of Quiones, Jr., which led to his
running over by a vehicle and consequent death. As earlier pointed out,
the testimony that he was carrying a stone at the scene of the crime
hardly merits credibility being uncorroborated and coming from an
undeniably biased witness. Having been the companion of Iligan,
Edmundo Asis must have known of the formers criminal intent but mere
knowledge, acquiescense or approval of the act without cooperation or
agreement to cooperate, is not enough to constitute one a party to a
conspiracy. There must be intentional participation in the act with a view
to the furtherance of the common design and purpose. 37 Such being
the case, his mere presence at the scene of the crime did not make him
a co-conspirator, a co-principal or an accomplice to the assault
perpetrated by Iligan. 38 Edmundo Asis therefore deserves exoneration.

There being no mitigating circumstance, the penalty imposable on Iligan

is reclusion temporal medium (Arts. 249 and 64, Revised Penal Code).
Applying the Indeterminate Sentence Law, the proper penalty is that
within the range of prision mayor as minimum and reclusion temporal
medium as maximum. We find insufficient proof to warrant the award of
P256,960 for the victims unrealized income and therefore, the same is
disallowed.cralawnad

WHEREFORE, appellant Fernando Iligan y Jamito is hereby convicted

of the crime of homicide for which he is imposed the indeterminate
penalty of six (6) years and one (1) day of prision mayor as minimum to
fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal medium as maximum and he shall indemnify the heirs of
Esmeraldo Quiones, Jr. in the amount of fifty thousand pesos
(P50,000). Appellant Edmundo Asis is hereby acquitted of the crime
charged against him. Costs against appellant Iligan.

SO ORDERED.

Gutierrez, Jr and Bidin, JJ., concur.

Feliciano, J., is on leave.


G.R. No. 72964 January 7, 1988
FILOMENO URBANO, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE
PHILIPPINES, respondents.
GUTIERREZ, JR., J.:
This is a petition to review the decision of the then Intermediate
Appellate Court which affirmed the decision of the then Circuit Criminal
Court of Dagupan City finding petitioner Filomeno Urban guilty beyond
reasonable doubt of the crime of homicide.
The records disclose the following facts of the case.
At about 8:00 o'clock in the morning of October 23, 1980, petitioner
Filomeno Urbano went to his ricefield at Barangay Anonang, San
Fabian, Pangasinan located at about 100 meters from the tobacco
seedbed of Marcelo Javier. He found the place where he stored his
palay flooded with water coming from the irrigation canal nearby which
had overflowed. Urbano went to the elevated portion of the canal to see
what happened and there he saw Marcelo Javier and Emilio Erfe cutting
grass. He asked them who was responsible for the opening of the
irrigation canal and Javier admitted that he was the one. Urbano then
got angry and demanded that Javier pay for his soaked palay. A quarrel
between them ensued. Urbano unsheathed his bolo (about 2 feet long,
including the handle, by 2 inches wide) and hacked Javier hitting him on
the right palm of his hand, which was used in parrying the bolo hack.
Javier who was then unarmed ran away from Urbano but was overtaken
by Urbano who hacked him again hitting Javier on the left leg with the
back portion of said bolo, causing a swelling on said leg. When Urbano
tried to hack and inflict further injury, his daughter embraced and
prevented him from hacking Javier.
Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe
brought Javier to his house about 50 meters away from where the
incident happened. Emilio then went to the house of Barangay Captain
Menardo Soliven but not finding him there, Emilio looked for barrio
councilman Felipe Solis instead. Upon the advice of Solis, the Erfes
together with Javier went to the police station of San Fabian to report
the incident. As suggested by Corporal Torio, Javier was brought to a
physician. The group went to Dr. Guillermo Padilla, rural health
physician of San Fabian, who did not attend to Javier but instead
suggested that they go to Dr. Mario Meneses because Padilla had no
available medicine.
After Javier was treated by Dr. Meneses, he and his companions
returned to Dr. Guillermo Padilla who conducted a medico-legal
examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C"
dated September 28, 1981) which reads:
TO WHOM IT MAY CONCERN:
This is to certify that I have examined the wound of Marcelo Javier, 20
years of age, married, residing at Barangay Anonang, San Fabian,
Pangasinan on October 23, 1980 and found the following:
1 -Incised wound 2 inches in length at the upper portion of the lesser
palmar prominence, right.
As to my observation the incapacitation is from (7-9) days period. This
wound was presented to me only for medico-legal examination, as it was
already treated by the other doctor. (p. 88, Original Records)
Upon the intercession of Councilman Solis, Urbano and Javier agreed
to settle their differences. Urbano promised to pay P700.00 for the
medical expenses of Javier. Hence, on October 27, 1980, the two
accompanied by Solis appeared before the San Fabian Police to
formalize their amicable settlement. Patrolman Torio recorded the event
in the police blotter (Exhibit A), to wit:
xxx xxx xxx
Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both
parties appeared before this Station accompanied by brgy. councilman
Felipe Solis and settled their case amicably, for they are neighbors and
close relatives to each other. Marcelo Javier accepted and granted
forgiveness to Filomeno Urbano who shoulder (sic) all the expenses in
his medical treatment, and promising to him and to this Office that this
will never be repeated anymore and not to harbour any grudge against
each other. (p. 87, Original Records.)
Urbano advanced P400.00 to Javier at the police station. On November
3, 1980, the additional P300.00 was given to Javier at Urbano's house
in the presence of barangay captain Soliven.
At about 1:30 a.m. on November 14, 1980, Javier was rushed to the
Nazareth General Hospital in a very serious condition. When admitted
to the hospital, Javier had lockjaw and was having convulsions. Dr.
Edmundo Exconde who personally attended to Javier found that the
latter's serious condition was caused by tetanus toxin. He noticed the
presence of a healing wound in Javier's palm which could have been
infected by tetanus.
On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital.
The medical findings of Dr. Exconde are as follows:
Date Diagnosis
11-14-80 ADMITTED due to trismus
adm. at DX TETANUS
1:30 AM Still having frequent muscle spasm. With diffi-
#35, 421 culty opening his mouth. Restless at times. Febrile
11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessa-
tion of respiration and HR after muscular spasm.
02 inhalation administered. Ambo bag resuscita-
tion and cardiac massage done but to no avail.
Pronounced dead by Dra. Cabugao at 4:18 P.M.
PMC done and cadaver brought home by rela-
tives. (p. 100, Original Records)
In an information dated April 10, 1981, Filomeno Urbano was charged
with the crime of homicide before the then Circuit Criminal Court of
Dagupan City, Third Judicial District.
Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court
found Urbano guilty as charged. He was sentenced to suffer an
indeterminate prison term of from TWELVE (12) YEARS of prision
mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS
and ONE (1) DAY of reclusion temporal, as maximum, together with the
accessories of the law, to indemnify the heirs of the victim, Marcelo
Javier, in the amount of P12,000.00 without subsidiary imprisonment in
case of insolvency, and to pay the costs. He was ordered confined at
the New Bilibid Prison, in Muntinlupa, Rizal upon finality of the decision,
in view of the nature of his penalty.
The then Intermediate Appellate Court affirmed the conviction of Urbano
on appeal but raised the award of indemnity to the heirs of the deceased
to P30,000.00 with costs against the appellant.
The appellant filed a motion for reconsideration and/or new trial. The
motion for new trial was based on an affidavit of Barangay Captain
Menardo Soliven (Annex "A") which states:
That in 1980, I was the barrio captain of Barrio Anonang, San Fabian,
Pangasinan, and up to the present having been re-elected to such
position in the last barangay elections on May 17, 1982;
That sometime in the first week of November, 1980, there was a typhoon
that swept Pangasinan and other places of Central Luzon including San
Fabian, a town of said province;
That during the typhoon, the sluice or control gates of the Bued irrigation
dam which irrigates the ricefields of San Fabian were closed and/or
controlled so much so that water and its flow to the canals and ditches
were regulated and reduced;
That due to the locking of the sluice or control gates of the dam leading
to the canals and ditches which will bring water to the ricefields, the
water in said canals and ditches became shallow which was suitable for
catching mudfishes;
That after the storm, I conducted a personal survey in the area affected,
with my secretary Perfecto Jaravata;
That on November 5, 1980, while I was conducting survey, I saw the late
Marcelo Javier catching fish in the shallow irrigation canals with some
companions;
That few days there after,or on November l5, l980, I came to know that
said Marcelo Javier died of tetanus. (p. 33, Rollo)
The motion was denied. Hence, this petition.
In a resolution dated July 16, 1986, we gave due course to the petition.
The case involves the application of Article 4 of the Revised Penal Code
which provides that "Criminal liability shall be incurred: (1) By any person
committing a felony (delito) although the wrongful act done be different
from that which he intended ..." Pursuant to this provision "an accused
is criminally responsible for acts committed by him in violation of law and
for all the natural and logical consequences resulting therefrom."
(People v. Cardenas, 56 SCRA 631).
The record is clear that Marcelo Javier was hacked by the petitioner who
used a bolo as a result of which Javier suffered a 2-inch incised wound
on his right palm; that on November 14, 1981 which was the 22nd day
after the incident, Javier was rushed to the hospital in a very serious
condition and that on the following day, November 15, 1981, he died
from tetanus.
Under these circumstances, the lower courts ruled that Javier's death
was the natural and logical consequence of Urbano's unlawful act.
Hence, he was declared responsible for Javier's death. Thus, the
appellate court said:
The claim of appellant that there was an efficient cause which
supervened from the time the deceased was wounded to the time of his
death, which covers a period of 23 days does not deserve serious
consideration. True, that the deceased did not die right away from his
wound, but the cause of his death was due to said wound which was
inflicted by the appellant. Said wound which was in the process of
healing got infected with tetanus which ultimately caused his death.
Dr. Edmundo Exconde of the Nazareth General Hospital testified that
the victim suffered lockjaw because of the infection of the wound with
tetanus. And there is no other way by which he could be infected with
tetanus except through the wound in his palm (tsn., p. 78, Oct. 5, 1981).
Consequently, the proximate cause of the victim's death was the wound
which got infected with tetanus. And the settled rule in this jurisdiction is
that an accused is liable for all the consequences of his unlawful act.
(Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; People v.
Cornel 78 Phil. 418).
Appellant's allegation that the proximate cause of the victim's death was
due to his own negligence in going back to work without his wound being
properly healed, and lately, that he went to catch fish in dirty irrigation
canals in the first week of November, 1980, is an afterthought, and a
desperate attempt by appellant to wiggle out of the predicament he
found himself in. If the wound had not yet healed, it is impossible to
conceive that the deceased would be reckless enough to work with a
disabled hand. (pp. 20-21, Rollo)
The petitioner reiterates his position that the proximate cause of the
death of Marcelo Javier was due to his own negligence, that Dr. Mario
Meneses found no tetanus in the injury, and that Javier got infected with
tetanus when after two weeks he returned to his farm and tended his
tobacco plants with his bare hands exposing the wound to harmful
elements like tetanus germs.
The evidence on record does not clearly show that the wound inflicted
by Urbano was infected with tetanus at the time of the infliction of the
wound. The evidence merely confirms that the wound, which was
already healing at the time Javier suffered the symptoms of the fatal
ailment, somehow got infected with tetanus However, as to when the
wound was infected is not clear from the record.
In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the
following definition of proximate cause:
xxx xxx xxx
... A satisfactory definition of proximate cause is found in Volume 38,
pages 695-696 of American Jurisprudence, cited by plaintiffs-appellants
in their brief. It is as follows:
... "that cause, which, in natural and continuous sequence, unbroken by
any efficient intervening cause, produces the injury, and without which
the result would not have occurred."And more comprehensively, "the
proximate legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural
and continuous chain of events, each having a close causal connection
with its immediate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the cause which
first acted, under such circumstances that the person responsible for the
first event should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an
injury to some person might probably result therefrom." (at pp. 185-186)
The issue, therefore, hinges on whether or not there was an efficient
intervening cause from the time Javier was wounded until his death
which would exculpate Urbano from any liability for Javier's death.
We look into the nature of tetanus-
The incubation period of tetanus, i.e., the time between injury and the
appearance of unmistakable symptoms, ranges from 2 to 56 days.
However, over 80 percent of patients become symptomatic within 14
days. A short incubation period indicates severe disease, and when
symptoms occur within 2 or 3 days of injury the mortality rate
approaches 100 percent.
Non-specific premonitory symptoms such as restlessness, irritability,
and headache are encountered occasionally, but the commonest
presenting complaints are pain and stiffness in the jaw, abdomen, or
back and difficulty swallowing. As the progresses, stiffness gives way to
rigidity, and patients often complain of difficulty opening their mouths. In
fact, trismus in the commonest manifestation of tetanus and is
responsible for the familiar descriptive name of lockjaw. As more
muscles are involved, rigidity becomes generalized, and sustained
contractions called risus sardonicus. The intensity and sequence of
muscle involvement is quite variable. In a small proportion of patients,
only local signs and symptoms develop in the region of the injury. In the
vast majority, however, most muscles are involved to some degree, and
the signs and symptoms encountered depend upon the major muscle
groups affected.
Reflex spasm usually occur within 24 to 72 hours of the first symptom,
an interval referred to as the onset time. As in the case of the incubation
period, a short onset time is associated with a poor prognosis. Spasms
are caused by sudden intensification of afferent stimuli arising in the
periphery, which increases rigidity and causes simultaneous and
excessive contraction of muscles and their antagonists. Spasms may be
both painful and dangerous. As the disease progresses, minimal or
inapparent stimuli produce more intense and longer lasting spasms with
increasing frequency. Respiration may be impaired by laryngospasm or
tonic contraction of respiratory muscles which prevent adequate
ventilation. Hypoxia may then lead to irreversible central nervous system
damage and death.
Mild tetanus is characterized by an incubation period of at least 14 days
and an onset time of more than 6 days. Trismus is usually present, but
dysphagia is absent and generalized spasms are brief and mild.
Moderately severe tetanus has a somewhat shorter incubation period
and onset time; trismus is marked, dysphagia and generalized rigidity
are present, but ventilation remains adequate even during spasms. The
criteria for severe tetanus include a short incubation time, and an onset
time of 72 hrs., or less, severe trismus, dysphagia and rigidity and
frequent prolonged, generalized convulsive spasms. (Harrison's
Principle of Internal Medicine, 1983 Edition, pp. 1004-1005; Emphasis
supplied)
Therefore, medically speaking, the reaction to tetanus found inside a
man's body depends on the incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right
palm when he parried the bolo which Urbano used in hacking him. This
incident took place on October 23, 1980. After 22 days, or on November
14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle
spasms. The following day, November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was already
infected by tetanus germs at the time, it is more medically probable that
Javier should have been infected with only a mild cause of tetanus
because the symptoms of tetanus appeared on the 22nd day after the
hacking incident or more than 14 days after the infliction of the wound.
Therefore, the onset time should have been more than six days. Javier,
however, died on the second day from the onset time. The more credible
conclusion is that at the time Javier's wound was inflicted by the
appellant, the severe form of tetanus that killed him was not yet present.
Consequently, Javier's wound could have been infected with tetanus
after the hacking incident. Considering the circumstance surrounding
Javier's death, his wound could have been infected by tetanus 2 or 3 or
a few but not 20 to 22 days before he died.
The rule is that the death of the victim must be the direct, natural, and
logical consequence of the wounds inflicted upon him by the accused.
(People v. Cardenas, supra) And since we are dealing with a criminal
conviction, the proof that the accused caused the victim's death must
convince a rational mind beyond reasonable doubt. The medical
findings, however, lead us to a distinct possibility that the infection of the
wound by tetanus was an efficient intervening cause later or between
the time Javier was wounded to the time of his death. The infection was,
therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil.
1038).
Doubts are present. There is a likelihood that the wound was but
the remote cause and its subsequent infection, for failure to take
necessary precautions, with tetanus may have been
the proximate cause of Javier's death with which the petitioner had
nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al. (99
Phil. 118).
"A prior and remote cause cannot be made the be of an action if such
remote cause did nothing more than furnish the condition or give rise to
the occasion by which the injury was made possible, if there intervened
between such prior or remote cause and the injury a distinct, successive,
unrelated, and efficient cause of the injury, even though such injury
would not have happened but for such condition or occasion. If no
danger existed in the condition except because of the independent
cause, such condition was not the proximate cause. And if an
independent negligent act or defective condition sets into operation the
instances which result in injury because of the prior defective condition,
such subsequent act or condition is the proximate cause." (45 C.J. pp.
931-932). (at p. 125)
It strains the judicial mind to allow a clear aggressor to go scot free of
criminal liability. At the very least, the records show he is guilty of
inflicting slight physical injuries. However, the petitioner's criminal
liability in this respect was wiped out by the victim's own act. After the
hacking incident, Urbano and Javier used the facilities of barangay
mediators to effect a compromise agreement where Javier forgave
Urbano while Urbano defrayed the medical expenses of Javier. This
settlement of minor offenses is allowed under the express provisions of
Presidential Decree G.R. No. 1508, Section 2(3). (See also People v.
Caruncho, 127 SCRA 16).
We must stress, however, that our discussion of proximate cause and
remote cause is limited to the criminal aspects of this rather unusual
case. It does not necessarily follow that the petitioner is also free of civil
liability. The well-settled doctrine is that a person, while not criminally
liable, may still be civilly liable. Thus, in the recent case of People v.
Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987), we said:
xxx xxx xxx
... While the guilt of the accused in a criminal prosecution must be
established beyond reasonable doubt, only a preponderance of
evidence is required in a civil action for damages. (Article 29, Civil
Code). The judgment of acquittal extinguishes the civil liability of the
accused only when it includes a declaration that the facts from which the
civil liability might arise did not exist. (Padilla v. Court of Appeals, 129
SCRA 559).
The reason for the provisions of article 29 of the Civil Code, which
provides that the acquittal of the accused on the ground that his guilt has
not been proved beyond reasonable doubt does not necessarily exempt
him from civil liability for the same act or omission, has been explained
by the Code Commission as follows:
The old rule that the acquittal of the accused in a criminal case also
releases him from civil liability is one of the most serious flaws in the
Philippine legal system. It has given use to numberless instances of
miscarriage of justice, where the acquittal was due to a reasonable
doubt in the mind of the court as to the guilt of the accused. The
reasoning followed is that inasmuch as the civil responsibility is derived
from the criminal offense, when the latter is not proved, civil liability
cannot be demanded.
This is one of those causes where confused thinking leads to
unfortunate and deplorable consequences. Such reasoning fails to draw
a clear line of demarcation between criminal liability and civil
responsibility, and to determine the logical result of the distinction. The
two liabilities are separate and distinct from each other. One affects the
social order and the other, private rights. One is for the punishment or
correction of the offender while the other is for reparation of damages
suffered by the aggrieved party. The two responsibilities are so different
from each other that article 1813 of the present (Spanish) Civil Code
reads thus: "There may be a compromise upon the civil action arising
from a crime; but the public action for the imposition of the legal penalty
shall not thereby be extinguished." It is just and proper that, for the
purposes of the imprisonment of or fine upon the accused, the offense
should be proved beyond reasonable doubt. But for the purpose of
indemnity the complaining party, why should the offense also be proved
beyond reasonable doubt? Is not the invasion or violation of every
private right to be proved only by a preponderance of evidence? Is the
right of the aggrieved person any less private because the wrongful act
is also punishable by the criminal law?
"For these reasons, the Commission recommends the adoption of the
reform under discussion. It will correct a serious defect in our law. It will
close up an inexhaustible source of injustice-a cause for disillusionment
on the part of the innumerable persons injured or wronged."
The respondent court increased the P12,000.00 indemnification
imposed by the trial court to P30,000.00. However, since the
indemnification was based solely on the finding of guilt beyond
reasonable doubt in the homicide case, the civil liability of the petitioner
was not thoroughly examined. This aspect of the case calls for fuller
development if the heirs of the victim are so minded.
WHEREFORE, the instant petition is hereby GRANTED. The
questioned decision of the then Intermediate Appellate Court, now Court
of Appeals, is REVERSED and SET ASIDE. The petitioner is
ACQUITTED of the crime of homicide. Costs de oficio.
SO ORDERED.
Fernan, (Chairman), Feliciano, Bidin and,Cortes, JJ., concur.
G.R. No. 103119 October 21, 1992
SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
CAMPOS, JR., J.:
Petitioner, Sulpicio Intod, filed this petition for review of the decision of
the Court of Appeals 1 affirming in toto the judgment of the Regional
Trial Court, Branch XIV, Oroquieta City, finding him guilty of the crime of
attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian,
Santos Tubio and Avelino Daligdig went to Salvador Mandaya's house
in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go
with them to the house of Bernardina Palangpangan. Thereafter,
Mandaya and Intod, Pangasian, Tubio and Daligdig had a meeting with
Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to
be killed because of a land dispute between them and that Mandaya
should accompany the four (4) men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner,
Mandaya, Pangasian, Tubio and Daligdig, all armed with firearms,
arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis
Occidental. At the instance of his companions, Mandaya pointed the
location of Palangpangan's bedroom. Thereafter, Petitioner, Pangasian,
Tubio and Daligdig fired at said room. It turned out, however, that
Palangpangan was in another City and her home was then occupied by
her son-in-law and his family. No one was in the room when the accused
fired the shots. No one was hit by the gun fire.
Petitioner and his companions were positively identified by witnesses.
One witness testified that before the five men left the premises, they
shouted: "We will kill you (the witness) and especially Bernardina
Palangpangan and we will come back if (sic) you were not injured". 2
After trial, the Regional Trial Court convicted Intod of attempted murder.
The court (RTC), as affirmed by the Court of Appeals, holding that
Petitioner was guilty of attempted murder. Petitioner seeks from this
Court a modification of the judgment by holding him liable only for an
impossible crime, citing Article 4(2) of the Revised Penal Code which
provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal Responsibility shall
be incurred:
xxx xxx xxx
2. By any person performing an act which would be an offense against
persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or
ineffectual means.
Petitioner contends that, Palangpangan's absence from her room on the
night he and his companions riddled it with bullets made the crime
inherently impossible.
On the other hand, Respondent People of the Philippines argues that
the crime was not impossible. Instead, the facts were sufficient to
constitute an attempt and to convict Intod for attempted murder.
Respondent alleged that there was intent. Further, in its Comment to the
Petition, respondent pointed out that:
. . . The crime of murder was not consummated, not because of the
inherent impossibility of its accomplishment (Art. 4(2), Revised Penal
Code), but due to a cause or accident other than petitioner's and his
accused's own spontaneous desistance (Art. 3., Ibid.) Palangpangan
did not sleep at her house at that time. Had it not been for this fact, the
crime is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This
seeks to remedy the void in the Old Penal Code where:
. . . it was necessary that the execution of the act has been commenced,
that the person conceiving the idea should have set about doing the
deed, employing appropriate means in order that his intent might
become a reality, and finally, that the result or end contemplated shall
have been physically possible. So long as these conditions were not
present, the law and the courts did not hold him criminally liable. 5
This legal doctrine left social interests entirely unprotected. 6 The
Revised Penal Code, inspired by the Positivist School, recognizes in the
offender his formidability, 7 and now penalizes an act which were it not
aimed at something quite impossible or carried out with means which
prove inadequate, would constitute a felony against person or against
property. 8 The rationale of Article 4(2) is to punish such criminal
tendencies. 9
Under this article, the act performed by the offender cannot produce an
offense against person or property because: (1) the commission of the
offense is inherently impossible of accomplishment: or (2) the means
employed is either (a) inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission of the
offense is inherently impossible of accomplishment is the focus of this
petition. To be impossible under this clause, the act intended by the
offender must be by its nature one impossible of
accomplishment. 11 There must be either impossibility of accomplishing
the intended act 12 in order to qualify the act an impossible crime.
Legal impossibility occurs where the intended acts, even if completed,
would not amount to a crime. 13 Thus:
Legal impossibility would apply to those circumstances where (1) the
motive, desire and expectation is to perform an act in violation of the
law; (2) there is intention to perform the physical act; (3) there is a
performance of the intended physical act; and (4) the consequence
resulting from the intended act does not amount to a crime. 14
The impossibility of killing a person already dead 15 falls in this
category.
On the other hand, factual impossibility occurs when extraneous
circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime. 16 One example is the man who
puts his hand in the coat pocket of another with the intention to steal the
latter's wallet and finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the place
where he thought his victim would be, although in reality, the victim was
not present in said place and thus, the petitioner failed to accomplish his
end.
One American case had facts almost exactly the same as this one.
In People vs. Lee Kong, 18 the accused, with intent to kill, aimed and
fired at the spot where he thought the police officer would be. It turned
out, however, that the latter was in a different place. The accused failed
to hit him and to achieve his intent. The Court convicted the accused of
an attempt to kill. It held that:
The fact that the officer was not at the spot where the attacking party
imagined where he was, and where the bullet pierced the roof, renders
it no less an attempt to kill. It is well settled principle of criminal law in
this country that where the criminal result of an attempt is not
accomplished simply because of an obstruction in the way of the thing
to be operated upon, and these facts are unknown to the aggressor at
the time, the criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to
accomplish his intent to kill the victim because the latter did not pass by
the place where he was lying-in wait, the court held him liable for
attempted murder. The court explained that:
It was no fault of Strokes that the crime was not committed. . . . It only
became impossible by reason of the extraneous circumstance that Lane
did not go that way; and further, that he was arrested and prevented
from committing the murder. This rule of the law has application only
where it is inherently impossible to commit the crime. It has no
application to a case where it becomes impossible for the crime to be
committed, either by outside interference or because of miscalculation
as to a supposed opportunity to commit the crime which fails to
materialize; in short it has no application to the case when the
impossibility grows out of extraneous acts not within the control of the
party.
In the case of Clark vs. State, 20 the court held defendant liable for
attempted robbery even if there was nothing to rob. In disposing of the
case, the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment by
reason of his criminal intent, no one can seriously doubt that the
protection of the public requires the punishment to be administered,
equally whether in the unseen depths of the pocket, etc., what was
supposed to exist was really present or not. The community suffers from
the mere alarm of crime. Again: Where the thing intended (attempted)
as a crime and what is done is a sort to create alarm, in other words,
excite apprehension that the evil; intention will be carried out, the
incipient act which the law of attempt takes cognizance of is in reason
committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window
of victim's room thinking that the latter was inside. However, at that
moment, the victim was in another part of the house. The court convicted
the accused of attempted murder.
The aforecited cases are the same cases which have been relied upon
by Respondent to make this Court sustain the judgment of attempted
murder against Petitioner. However, we cannot rely upon these
decisions to resolve the issue at hand. There is a difference between the
Philippine and the American laws regarding the concept and
appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly
provided for impossible crimes and made the punishable. Whereas, in
the United States, the Code of Crimes and Criminal Procedure is silent
regarding this matter. What it provided for were attempts of the crimes
enumerated in the said Code. Furthermore, in said jurisdiction, the
impossibility of committing the offense is merely a defense to an attempt
charge. In this regard, commentators and the cases generally divide the
impossibility defense into two categories: legal versus factual
impossibility. 22 In U.S. vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is not a defense.
If the crime could have been committed had the circumstances been as
the defendant believed them to be, it is no defense that in reality the
crime was impossible of commission.
Legal impossibility, on the other hand, is a defense which can be invoked
to avoid criminal liability for an attempt. In U.S. vs. Berrigan, 24 the
accused was indicated for attempting to smuggle letters into and out of
prison. The law governing the matter made the act criminal if done
without knowledge and consent of the warden. In this case, the offender
intended to send a letter without the latter's knowledge and consent and
the act was performed. However, unknown to him, the transmittal was
achieved with the warden's knowledge and consent. The lower court
held the accused liable for attempt but the appellate court reversed. It
held unacceptable the contention of the state that "elimination of
impossibility as a defense to a charge of criminal attempt, as suggested
by the Model Penal Code and the proposed federal legislation, is
consistent with the overwhelming modern view". In disposing of this
contention, the Court held that the federal statutes did not contain such
provision, and thus, following the principle of legality, no person could
be criminally liable for an act which was not made criminal by law.
Further, it said:
Petitioner, this Court sentences him to suffer the penalty of six (6)
months of arresto mayor, together with the accessory penalties provided
by the law, and to pay the costs.
SO ORDERED.
Feliciano, Regalado and Nocon, JJ., concur.

Congress has not yet enacted a law that provides that intent plus act
plus conduct constitutes the offense of attempt irrespective of legal
impossibility until such time as such legislative changes in the law take
place, this court will not fashion a new non-statutory law of criminal
attempt.

To restate, in the United States, where the offense sought to be

committed is factually impossible or accomplishment, the offender
cannot escape criminal liability. He can be convicted of an attempt to
commit the substantive crime where the elements of attempt are
satisfied. It appears, therefore, that the act is penalized, not as an
impossible crime, but as an attempt to commit a crime. On the other
hand, where the offense is legally impossible of accomplishment, the
actor cannot be held liable for any crime neither for an attempt not for
an impossible crime. The only reason for this is that in American law,
there is no such thing as an impossible crime. Instead, it only recognizes
impossibility as a defense to a crime charge that is, attempt.

This is not true in the Philippines. In our jurisdiction, impossible crimes

are recognized. The impossibility of accomplishing the criminal intent is
not merely a defense, but an act penalized by itself. Furthermore, the
phrase "inherent impossibility" that is found in Article 4(2) of the Revised
Penal Code makes no distinction between factual or physical
impossibility and legal impossibility. Ubi lex non distinguit nec nos
distinguere debemos.

The factual situation in the case at bar present a physical impossibility

which rendered the intended crime impossible of accomplishment. And
under Article 4, paragraph 2 of the Revised Penal Code, such is
sufficient to make the act an impossible crime.

To uphold the contention of respondent that the offense was Attempted

Murder because the absence of Palangpangan was a supervening
cause independent of the actor's will, will render useless the provision in
Article 4, which makes a person criminally liable for an act "which would
be an offense against persons or property, were it not for the inherent
impossibility of its accomplishment . . ." In that case all circumstances
which prevented the consummation of the offense will be treated as an
accident independent of the actor's will which is an element of attempted
and frustrated felonies.

WHEREFORE, PREMISES CONSIDERED. the petition is hereby

GRANTED, the decision of respondent Court of Appeals holding
Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby
hold Petitioner guilty of an impossible crime as defined and penalized in
Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively.
Having in mind the social danger and degree of criminality shown by

his stomach about thirty meters away from the house. Three days
afterwards Bernabe wasintered.Saladino lost no time preparing his
defense. On that same day, June 24, he swore beforethe assistant fiscal
an affidavit stating that, while he was conversing with Pasion inside
thehouse, Luis Bernabe was downstairs under the vigilance of
Anastacio Alejo; that four shots weresuddenly heard; and that Alejo, it
turned out, had fired at Bernabe because the latter hadattempted to
escape.We also wrote a joint affidavit of the three policemen
corroborating his own version of the affair. He requested the
said officers to sign, and they had not the courage to decline.However a
few days afterwards the fiscal quizzed Quevedo, and this man gave a
different
story: one that subsequently accorded with the account given by the
Peoples witnesses during
the trial.On the witness stand, Bartolo Saladino stuck to his version,
which was corroborated byFelix Pasion, the man who having charged
Luis Bernabe, was indirectly the cause of the outrage,
and who was understandably interested in Saladinos
exoneration. However it was rejected bythe trial judge, correctly we
believe, because it was contradicted (1) by the three policemen whohad
no reason to falsify (2) by the nature and direction of the wounds
described by the doctorwho saw them, wounds which could not have
been inflicted while Bernabe was running awayand (3) by the discovery
of one of the bullets embedded in the ground underneath the corpse
of Luis Bernabe. There is no doubt in our minds that this man is guilty of
having cruelly torturedand treacherously caused the death of Luis
Bernabe.On the other hand Anastacio Alejo admitted having whipped
and shot Luis Bernabe uponorders of Saladino, who allegedly backed
his command to shoot by pointing his pistol at Alejo.His attorneys also
insist that Luis Bernabe was already dead when Alejo fired at the
corpse.Of course obedience to the order of a superior official is not an
excuse where the orderwas not for a lawful purpose. (People v. Baaga
54 Phil. 247; People v. Moreno 43 Of. Gaz.4644)Like the trial judge, we
do not believe Alejo fired the shots at the point of Saladino
s gun.
We believe the shooting occurred in the manner described by the
prosecution witnesses.
Yet the matter of Bernabes moment of death is of grave doubt. Two eye
-witnesses whodeclared for the prosecution, namely, policemen
Quevedo and Oaman repeatedly stated on thewitness stand that after
the maltreatment, and before Bernabe was carried downstairs to be
shot,he had already expired. Policeman Jorge Plan, another eye-
witness confirming Alejos
testimony declared that when Bernabe lay flat on the floor and did not
stir, an old man felt hispulse and pronounced him dead.
The medical expert, on the contrary, asserted that death was due to the
loss of bloodoccasioned by the three shots that pierced the body of
Bernabe. Alejos attorney
-de-officio madea thorough analysis of such testimony, pointing out that
the medical examination was superficial,because it took place a few
moments before the burial when the body was already in a
moderately advance state of decomposition
, and that the conclusion derived by said expertfrom the amount of blood
in the garments worn by the corpse which he examined were not
thoseworn at the time of the shooting; second because the cadaver had
been embalmed and the stainson the clothing might have been
produced by the embalming fluid that oozed out; and thirdbecause in
post-mortem wounds blood comes out too from the blood
vessels. (Angeles, LegalMedicine Sec. 105) All of which raise, at least,
a doubt that Bernabe, was already dead whenshot. Such doubt must be
resolved in favor of appellant Alejo.From the foregoing it is plain that
Bernabe having died as a consequence of the violentmauling
by Saladino, the latter must be declared guilty of
assassination. Anastacio Alejo doesnot appear to have conspired with
him, and is not liable either as principal or as accomplice of the
murder. But he is guilty as accessory after the fact for having performed
acts tending toconceal Saladino
s crime by making it appear that Ber
nabe had run away.U.S. v. Cuison 20 Phil. 433 is a relevant
example. Facundo Balangac was shot frombehind by Private Valentin
Fortuna in the cemetery of Barili, Cebu.
Some hours afterwards, thedefendant Cuison with several constabulary
privates, among them Valentin Fortuna, went byorder of Lieutenant
Poggi to the place where the body of the deceased lay, and commanded
thesoldiers to spread out in skirmish like and discharge their firearms
into the air; then thedefendant, with the private Fortunam, went to the
house of Epimaco Sosa to ask him for a daggerto place beside the body
of a man whom they had shot, thereby to give the appearance that
thedeceased had been carrying a dagger.
This court declared the defendant Cuison guilty of accessory after the
fact saying:
But we do find criminal liability in the acts performed by Corporal
Cuison, even
though he obeyed orders from his Lieutenant, Poggi; such liability
consists in his havingintervened subsequently to the commission of the
crime, by furnishing the means to makeit appear that the deceased was
armed and that it was necessary to kill him on account of his resistance
to the constabulary man, who, to lend color to such pretended
resistance,discharged their firearms into the air, under the direction of
Cuison, at the place therewhere the corpse was lying; and also consists
in his having tried to find a dagger to placebeside the deceased. Such
acts must be characterized as concealment, and since they arenot only
wrong but also unlawful, the defendant is not exempt from liability, even
thoughhe acted in obedience to a command from his superior, because
such command wasillegal and in conflict with law and justice. Therefore
it can not be alleged that obediencewas due, or that it exempts the
defendant from criminal liability.

As accessory after the fact, Alejo is liable to a penalty lower by two

degrees than that prescribedby law for the consummated felony of
murder, namely, prision correctional in its maximumperiod to prision
mayor in its medium period. (Art. 53 in connection with Art. 248 of
theRevised Penal Code.)Therefore, inasmuch as the penalty imposed
on appellant Saladino accords with the law,the judgment against him is
affirmed, with costs.As to appellant Alejo the appealed decision is
revoked and one will be entered sentencinghim to imprisonment for not
less than 3 years of prision correctional nor more than six years andtwo
months, of prision mayor; and in case of insolvency of Saladino to
indemnify the heirs of thedeceased in the sum of P6000 without
subsidiary imprisonment in case of his own inability
topay. No costs against this appellant. So ordered.(SGD) CESAR
BENGZONWE CONCUR:(SGD) RICARDO PARAS
 Petitioner, along with two other women, namely, Anita Busog de
Valencia y Rivera and Jacqueline Capitle, was charged before the
Regional Trial Court (RTC) of Caloocan City, Branch 131, with the crime
THIRD DIVISION of Qualified Theft, allegedly committed as follows:

That on or about and sometime in the month of July 1997, in Kalookan

City, Metro Manila, and within the jurisdiction of this Honorable Court,
GEMMA T. JACINTO, G.R. No. 162540 the above-named accused, conspiring together and mutually helping
one another, being then all employees of MEGA FOAM
Petitioner,
INTERNATIONAL INC., herein represented by JOSEPH DYHENGCO Y
Present: CO, and as such had free access inside the aforesaid establishment,
with grave abuse of trust and confidence reposed upon them with intent
to gain and without the knowledge and consent of the owner thereof, did
YNARES-SANTIAGO, J., then and there willfully, unlawfully and feloniously take, steal and
deposited in their own account, Banco De Oro Check No. 0132649
Chairperson,
dated July 14, 1997 in the sum of P10,000.00, representing payment

- versus - CHICO-NAZARIO, made by customer Baby Aquino to the Mega Foam Int'l. Inc. to the
damage and prejudice of the latter in the aforesaid stated amount
VELASCO, JR., of P10,000.00.

NACHURA, and

PERALTA, JJ. CONTRARY TO LAW.[3]

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent. The prosecution's evidence, which both the RTC and the CA found to
be more credible, reveals the events that transpired to be as follows.
July 13, 2009

x-----------------------------------------------------------------------------------------x

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby
Aquino, handed petitioner Banco De Oro (BDO) Check Number
0132649 postdated July 14, 1997 in the amount of P10,000.00. The
check was payment for Baby Aquino's purchases from Mega Foam Int'l.,
DECISION
Inc., and petitioner was then the collector of Mega Foam. Somehow, the
check was deposited in the Land Bank account of Generoso Capitle, the
husband of Jacqueline Capitle; the latter is the sister of petitioner and
the former pricing, merchandising and inventory clerk of Mega Foam.

Meanwhile, Rowena Ricablanca, another employee of Mega Foam,

PERALTA, J.:
Before us is a petition for review on certiorari filed by petitioner Gemma
T. Jacinto seeking the reversal of the Decision[1] of the Court of Appeals
(CA) in CA-G.R. CR No. 23761 dated December 16, 2003, affirming
petitioner's conviction of the crime of Qualified Theft, and its
Resolution[2] dated March 5, 2004 denying petitioner's motion for
reconsideration.
received a phone call sometime in the middle of July from one of their
customers, Jennifer Sanalila. The customer wanted to know if she could
issue checks payable to the account of Mega Foam, instead of issuing
the checks payable to CASH. Said customer had apparently been
instructed by Jacqueline Capitle to make check payments to Mega Foam
payable to CASH. Around that time, Ricablanca also received a phone
call from an employee of Land Bank, Valenzuela Branch, who was
looking for Generoso Capitle. The reason for the call was to inform
Capitle that the subject BDO check deposited in his account had been
dishonored.
 decided not to go with the group because she decided to go shopping. It
was only petitioner, her husband, Ricablanca and Valencia who then
Ricablanca then phoned accused Anita Valencia, a former
boarded petitioner's jeep and went on to Baby Aquino's factory. Only
employee/collector of Mega Foam, asking the latter to inform Jacqueline
Ricablanca alighted from the jeep and entered the premises of Baby
Capitle about the phone call from Land Bank regarding the bounced
Aquino, pretending that she was getting cash from Baby
check. Ricablanca explained that she had to call and relay the message
Aquino. However, the cash she actually brought out from the premises
through Valencia, because the Capitles did not have a phone; but they
was the P10,000.00 marked money previously given to her by
could be reached through Valencia, a neighbor and former co-employee
Dyhengco. Ricablanca divided the money and upon returning to the
of Jacqueline Capitle at Mega Foam.
jeep, gave P5,000.00 each to Valencia and petitioner. Thereafter,
Valencia then told Ricablanca that the check came from Baby Aquino, petitioner and Valencia were arrested by NBI agents, who had been
and instructed Ricablanca to ask Baby Aquino to replace the check with watching the whole time.
cash. Valencia also told Ricablanca of a plan to take the cash and divide
it equally into four: for herself, Ricablanca, petitioner Jacinto and
Jacqueline Capitle. Ricablanca, upon the advise of Mega Foam's Petitioner and Valencia were brought to the NBI office where the
accountant, reported the matter to the owner of Mega Foam, Joseph Forensic Chemist found fluorescent powder on the palmar and dorsal
Dyhengco. aspects of both of their hands. This showed that petitioner
and Valencia handled the marked money. The NBI filed a criminal case
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to
for qualified theft against the two and one Jane Doe who was later
confirm that the latter indeed handed petitioner a BDO check
identified as Jacqueline Capitle, the wife of Generoso Capitle.
for P10,000.00 sometime in June 1997 as payment for her purchases
from Mega Foam.[4] Baby Aquino further testified that, sometime in July The defense, on the other hand, denied having taken the subject check
1997, petitioner also called her on the phone to tell her that the BDO and presented the following scenario.
check bounced.[5] Verification from company records showed that
petitioner never remitted the subject check to Mega Foam. However,
Baby Aquino said that she had already paid Mega Foam P10,000.00 Petitioner admitted that she was a collector for Mega Foam until she
cash in August 1997 as replacement for the dishonored check.[6] resigned on June 30, 1997, but claimed that she had stopped collecting
payments from Baby Aquino for quite some time before her resignation
Generoso Capitle, presented as a hostile witness, admitted depositing
from the company. She further testified that, on the day of the arrest,
the subject BDO check in his bank account, but explained that the check
Ricablanca came to her mothers house, where she was staying at that
came into his possession when some unknown woman arrived at his
time, and asked that she accompany her (Ricablanca) to Baby Aquino's
house around the first week of July 1997 to have the check
house. Since petitioner was going for a pre-natal check-up at
rediscounted. He parted with his cash in exchange for the check without
the Chinese General Hospital, Ricablanca decided to hitch a ride with
even bothering to inquire into the identity of the woman or her
the former and her husband in their jeep going to Baby Aquino's place
address. When he was informed by the bank that the check bounced,
in Caloocan City. She allegedly had no idea why Ricablanca asked
he merely disregarded it as he didnt know where to find the woman who
them to wait in their jeep, which they parked outside the house of Baby
rediscounted the check.
Aquino, and was very surprised when Ricablanca placed the money on
Meanwhile, Dyhengco filed a Complaint with the National Bureau of her lap and the NBI agents arrested them.
Investigation (NBI) and worked out an entrapment operation with its
Anita Valencia also admitted that she was the cashier of Mega Foam
agents. Ten pieces of P1,000.00 bills provided by Dyhengco were
until she resigned on June 30, 1997. It was never part of her job to
marked and dusted with fluorescent powder by the NBI.Thereafter, the
collect payments from customers. According to her, on the morning
bills were given to Ricablanca, who was tasked to pretend that she was
of August 21, 1997, Ricablanca called her up on the phone, asking if she
going along with Valencia's plan.
(Valencia) could accompany her (Ricablanca) to the house of Baby
On August 15, 2007, Ricablanca and petitioner met at the latter's Aquino. Valencia claims that she agreed to do so, despite her admission
house. Petitioner, who was then holding the bounced BDO check, during cross-examination that she did not know where Baby Aquino
handed over said check to Ricablanca. They originally intended to resided, as she had never been to said house. They then met at the
proceed to Baby Aquino's place to have the check replaced with cash, house of petitioner's mother, rode the jeep of petitioner and her
but the plan did not push through. However, they agreed to meet again husband, and proceeded to Baby Aquino's place. When they arrived at
on August 21, 2007. said place, Ricablanca alighted, but requested them to wait for her in the
jeep. After ten minutes, Ricablanca came out and, to her
On the agreed date, Ricablanca again went to petitioners house, where
surprise, Ricablanca gave her money and so she even asked, What is
she met petitioner and Jacqueline Capitle. Petitioner, her husband, and
this? Then, the NBI agents arrested them.
Ricablanca went to the house of Anita Valencia; Jacqueline Capitle
 2. Whether or not a worthless check can be the object of theft; and

The trial of the three accused went its usual course and, on October 4,
1999, the RTC rendered its Decision, the dispositive portion of which
3. Whether or not the prosecution has proved petitioner's guilt beyond
reads:
reasonable doubt.[8]

The petition deserves considerable thought.

WHEREFORE, in view of the foregoing, the Court finds
accused Gemma Tubale De Jacinto y Latosa, Anita Busog De Valencia
y Rivera and Jacqueline Capitle GUILTY beyond reasonable doubt of
the crime of QUALIFIED THEFT and each of them is hereby sentenced The prosecution tried to establish the following pieces of evidence to

to suffer imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND constitute the elements of the crime of qualified theft defined under

ELEVEN (11) DAYS, as minimum, to SIX (6) YEARS, EIGHT (8) Article 308, in relation to Article 310, both of the Revised Penal Code:

MONTHS AND TWENTY (20) DAYS, as maximum. (1) the taking of personal property - as shown by the fact that petitioner,
as collector for Mega Foam, did not remit the customer's check payment
to her employer and, instead, appropriated it for herself; (2) said property
belonged to another the check belonged to Baby Aquino, as it was her
SO ORDERED.[7]
payment for purchases she made; (3) the taking was done with intent to
gain this is presumed from the act of unlawful taking and further shown
by the fact that the check was deposited to the bank account of
The three appealed to the CA and, on December 16, 2003, a Decision
petitioner's brother-in-law; (4) it was done without the owners consent
was promulgated, the dispositive portion of which reads, thus:
petitioner hid the fact that she had received the check payment from her
employer's customer by not remitting the check to the company; (5) it
was accomplished without the use of violence or intimidation against
IN VIEW OF THE FOREGOING, the decision of the trial persons, nor of force upon things the check was voluntarily handed to
court is MODIFIED, in that: petitioner by the customer, as she was known to be a collector for the
company; and (6) it was done with grave abuse of confidence petitioner
is admittedly entrusted with the collection of payments from customers.
(a) the sentence against accused Gemma Jacinto stands;
However, as may be gleaned from the aforementioned Articles of the
(b) the sentence against accused Anita Valencia is reduced to 4 Revised Penal Code, the personal property subject of the theft must
months arresto mayor medium. have some value, as the intention of the accused is to gain from the
thing stolen. This is further bolstered by Article 309, where the law
(c) The accused Jacqueline Capitle is acquitted.
provides that the penalty to be imposed on the accused is dependent on
the value of the thing stolen.

SO ORDERED. In this case, petitioner unlawfully took the postdated check belonging to
Mega Foam, but the same was apparently without value, as it was
subsequently dishonored. Thus, the question arises on whether the

A Partial Motion for Reconsideration of the foregoing CA Decision was crime of qualified theft was actually produced.

filed only for petitioner Gemma Tubale Jacinto, but the same was denied
per Resolution dated March 5, 2004.
The Court must resolve the issue in the negative.

Hence, the present Petition for Review on Certiorari filed by petitioner

alone, assailing the Decision and Resolution of the CA. The issues Intod v. Court of Appeals[9] is highly instructive and applicable to the
raised in the petition are as follows: present case. In Intod, the accused, intending to kill a person, peppered
the latters bedroom with bullets, but since the intended victim was not
home at the time, no harm came to him. The trial court and the CA held

1. Whether or not petitioner can be convicted of a crime not charged Intod guilty of attempted murder. But upon review by this Court, he was

in the information; adjudged guilty only of an impossible crime as defined and penalized in
paragraph 2, Article 4, in relation to Article 59, both of the Revised Penal
Code, because of the factual impossibility of producing the
crime. Pertinent portions of said provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be
incurred:
xxxx
2. By any person performing an act which would be an
offense against persons or property, were it not for the inherent
impossibility of its accomplishment or on account of the employment of
inadequate to ineffectual means. (emphasis supplied)
Article 59. Penalty to be imposed in case of failure to commit the crime
because the means employed or the aims sought are impossible. -
When the person intending to commit an offense has already performed
the acts for the execution of the same but nevertheless the crime was
not produced by reason of the fact that the act intended was by its nature
one of impossible accomplishment or because the means employed by
such person are essentially inadequate to produce the result desired by
him, the court, having in mind the social danger and the degree of
criminality shown by the offender, shall impose upon him the penalty
of arresto mayor or a fine ranging from 200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act
performed would be an offense against persons or property; (2) that the
act was done with evil intent; and (3) that its accomplishment was
inherently impossible, or the means employed was either inadequate or
ineffectual. The aspect of the inherent impossibility of accomplishing the
intended crime under Article 4(2) of the Revised Penal Code was further
explained by the Court in Intod[10] in this wise:
Under this article, the act performed by the offender cannot produce an
offense against persons or property because: (1) the commission ofthe
offense is inherently impossible of accomplishment; or (2) the means
employed is either (a) inadequate or (b) ineffectual.
That the offense cannot be produced because the commission of the
offense is inherently impossible of accomplishment is the focus of this
petition. To be impossible under this clause, the act intended by the
offender must be by its nature one impossible of accomplishment.There
must be either (1) legal impossibility, or (2) physical impossibility of
accomplishing the intended act in order to qualify the act as an
impossible crime.
Legal impossibility occurs where the intended acts, even if completed,
would not amount to a crime.
xxxx
The impossibility of killing a person already dead falls in this category.
On the other hand, factual impossibility occurs when extraneous
circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime. x x x [11]
In Intod, the Court went on to give an example of an offense that
involved factual impossibility, i.e., a man puts his hand in the coat
pocket of another with the intention to steal the latter's wallet, but gets
nothing since the pocket is empty.
Herein petitioner's case is closely akin to the above example of factual
impossibility given in Intod. In this case, petitioner performed all the acts
to consummate the crime of qualified theft, which is a crime against
property. Petitioner's evil intent cannot be denied, as the mere act of
unlawfully taking the check meant for Mega Foam showed her intent to
gain or be unjustly enriched. Were it not for the fact that the check
bounced, she would have received the face value thereof, which was
not rightfully hers. Therefore, it was only due to the extraneous
circumstance of the check being unfunded, a fact unknown to petitioner
at the time, that prevented the crime from being produced. The thing
unlawfully taken by petitioner turned out to be absolutely worthless,
because the check was eventually dishonored, and Mega Foam had
received the cash to replace the value of said dishonored check.
The fact that petitioner was later entrapped receiving the P5,000.00
marked money, which she thought was the cash replacement for the
dishonored check, is of no moment. The Court held in Valenzuela v.
People[12] that under the definition of theft in Article 308 of the Revised
Penal Code, there is only one operative act of execution by the actor
involved in theft the taking of personal property of another. Elucidating
further, the Court held, thus:
x x x Parsing through the statutory definition of theft under Article 308,
there is one apparent answer provided in the language of the law that
theft is already produced upon the tak[ing of] personal property of
another without the latters consent.
xxxx
x x x when is the crime of theft produced? There would be all but certain
unanimity in the position that theft is produced when there is deprivation
of personal property due to its taking by one with intent to gain. Viewed
from that perspective, it is immaterial to the product of the felony that the
offender, once having committed all the acts of execution for theft, is
able or unable to freely dispose of the property stolen since the
deprivation from the owner alone has already ensued from such acts of
execution. x x x
xxxx
x x x we have, after all, held that unlawful taking, or apoderamiento, is
deemed complete from the moment the offender gains possession of
the thing, even if he has no opportunity to dispose of the same. x x x
x x x Unlawful taking, which is the deprivation of ones personal property,
is the element which produces the felony in its consummated stage. x x
x [13]
From the above discussion, there can be no question that as of the time
that petitioner took possession of the check meant for Mega Foam, she
had performed all the acts to consummate the crime of theft, had it not
been impossible of accomplishment in this case. The circumstance
of petitioner receiving the P5,000.00 cash as supposed replacement for
the dishonored check was no longer necessary for the consummation of
the crime of qualified theft. Obviously, the plan to convince Baby Aquino
to give cash as replacement for the check was hatched only after the
check had been dishonored by the drawee bank. Since the crime of theft
is not a continuing offense, petitioner's act of receiving the cash
replacement should not be considered as a continuation of the theft. At
most, the fact that petitioner was caught receiving the marked money
was merely corroborating evidence to strengthen proof of her intent to
gain.
Moreover, the fact that petitioner further planned to have the dishonored
check replaced with cash by its issuer is a different and separate
fraudulent scheme. Unfortunately, since said scheme was not included
or covered by the allegations in the Information, the Court cannot
pronounce judgment on the accused; otherwise, it would violate the due
process clause of the Constitution. If at all, that fraudulent scheme could
have been another possible source of criminal liability.
IN VIEW OF THE FOREGOING, the petition is GRANTED. The
Decision of the Court of Appeals, dated December 16, 2003, and its
Resolution dated March 5, 2004, are MODIFIED. Petitioner Gemma T.
Jacinto is found GUILTY of an IMPOSSIBLE CRIME as defined and
penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code,
respectively. Petitioner is sentenced to suffer the penalty of six (6)
months of arrresto mayor, and to pay the costs.
SO ORDERED.
G.R. No. L-12155 February 2, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
PROTASIO EDUAVE, defendant-appellant.
Manuel Roxas for appellant.
Attorney-General Avancea for appellee.
MORELAND, J.:
We believe that the accused is guilty of frustrated murder.
We are satisfied that there was an intent to kill in this case. A deadly
weapon was used. The blow was directed toward a vital part of the body.
The aggressor stated his purpose to kill, thought he had killed, and threw
the body into the bushes. When he gave himself up he declared that he
had killed the complainant.
There was alevosia to qualify the crime as murder if death had resulted.
The accused rushed upon the girl suddenly and struck her from behind,
in part at least, with a sharp bolo, producing a frightful gash in the lumbar
region and slightly to the side eight and one-half inches long and two
inches deep, severing all of the muscles and tissues of that part.
The motive of the crime was that the accused was incensed at the girl
for the reason that she had theretofore charged him criminally before the
local officials with having raped her and with being the cause of her
pregnancy. He was her mother's querido and was living with her as such
at the time the crime here charged was committed.
That the accused is guilty of some crime is not denied. The only question
is the precise crime of which he should be convicted. It is contended, in
the first place, that, if death has resulted, the crime would not have been
murder but homicide, and in the second place, that it is attempted and
not frustrated homicide.
As to the first contention, we are of the opinion that the crime committed
would have been murder if the girl had been killed. It is qualified by the
circumstance of alevosia, the accused making a sudden attack upon his
victim from the rear, or partly from the rear, and dealing her a terrible
blow in the back and side with his bolo. Such an attack necessitates the
finding that it was made treacherously; and that being so the crime would
have been qualified as murder if death had resulted.
As to the second contention, we are of the opinion that the crime was
frustrated and not attempted murder. Article 3 of the Penal Code defines
a frustrated felony as follows:
A felony is frustrated when the offender performs all the acts of
execution which should produce the felony as a consequence, but
which, nevertheless, do not produce it by reason of causes independent not been passed and it is an attempt. If he is not so stopped but
of the will of the perpetrator. continues until he performs the last act, it is frustrated.

An attempted felony is defined thus: That the case before us is frustrated is clear.

There is an attempt when the offender commences the commission of The penalty should have been thirteen years of cadena temporal there
the felony directly by overt acts, and does not perform all the acts of being neither aggravating nor mitigating circumstance. As so modified,
execution which constitute the felony by reason of some cause or the judgment is affirmed with costs. So ordered.
accident other than his own voluntarily desistance.
Torres and Araullo, JJ., concur.
The crime cannot be attempted murder. This is clear from the fact that Carson and Trent, JJ., concur in the result.
the defendant performed all of the acts which should have resulted in
the consummated crime and voluntarily desisted from further acts. A
crime cannot be held to be attempted unless the offender, after
beginning the commission of the crime by overt acts, is prevented,
against his will, by some outside cause from performing all of the acts
which should produce the crime. In other words, to be an attempted
crime the purpose of the offender must be thwarted by a foreign force or
agency which intervenes and compels him to stop prior to the moment
when he has performed all of the acts which should produce the crime
as a consequence, which acts it is his intention to perform. If he has
performed all of the acts which should result in the consummation of the
crime and voluntarily desists from proceeding further, it can not be an
attempt. The essential element which distinguishes attempted from
frustrated felony is that, in the latter, there is no intervention of a foreign
or extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts have been
performed which should result in the consummated crime; while in the
former there is such intervention and the offender does not arrive at the
point of performing all of the acts which should produce the crime. He is
stopped short of that point by some cause apart from his voluntary
desistance.

To put it in another way, in case of an attempt the offender never passes

the subjective phase of the offense. He is interrupted and compelled to
desist by the intervention of outside causes before the subjective phase
is passed.

On the other hand, in case of frustrated crimes the subjective phase is

completely passed. Subjectively the crime is complete. Nothing
interrupted the offender while he was passing through the subjective
phase. The crime, however, is not consummated by reason of the
intervention of causes independent of the will of the offender. He did all
that was necessary to commit the crime. If the crime did not result as a
consequence it was due to something beyond his control.

The subjective phase is that portion of the acts constituting the crime
included between the act which begins the commission of the crime and
the last act performed by the offender which, with the prior acts, should
result in the consummated crime. From that time forward the phase is
objective. It may also be said to be that period occupied by the acts of
the offender over which he has control that period between the point
where he begins and the points where he voluntarily desists.
If between these two points the offender is stopped by reason of any
cause outside of his own voluntary desistance, the subjective phase has
 On April 12, 1999, an Information was filed in the RTC of Imus, Cavite,
charging Esmeraldo, Ismael and Edgardo, all surnamed Rivera, of
attempted murder. The accusatory portion of the Information reads:
FIRST DIVISION

ESMERALDO RIVERA, ISMAEL G.R. No. 166326 That on or about the 3rd day of May 1998, in the Municipality of
Dasmarias, Province of Cavite, Philippines, and within the jurisdiction of
RIVERA, EDGARDO RIVERA, this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, with intent to kill, with
Petitioners, Present:
treachery and evident premeditation, did then and there, wilfully,
PANGANIBAN, C.J., Chairperson, unlawfully, and feloniously attack, assault and hit with a piece of hollow
block, one RUBEN RODIL who thereby sustained a non-mortal injury on
YNARES-SANTIAGO,
his head and on the different parts of his body, the accused thus
AUSTRIA-MARTINEZ, commenced the commission of the felony directly by overt acts, but
failed to perform all the acts of execution which would produce the crime
- versus - CALLEJO, SR., and
of Murder by reason of some causes other than their own spontaneous

CHICO-NAZARIO, JJ. desistance, that is, the said Ruben Rodil was able to ran (sic) away and
the timely response of the policemen, to his damage and prejudice.

CONTRARY TO LAW.[3]
Promulgated:

PEOPLE OF THE PHILIPPINES,

Ruben Rodil testified that he used to work as a taxi driver. He stopped
Respondent. January 25, 2006 driving in April 1998 after a would-be rapist threatened his life. He was
even given a citation as a Bayaning Pilipino by the television network
ABS-CBN for saving the would-be victim. His wife eked out a living as a
x-------------------------------------------------- manicurist. They and their three children resided in Barangay San Isidro
x Labrador II, Dasmarias, Cavite, near the house of Esmeraldo Rivera and
his brothers Ismael and Edgardo.

DECISION
At noon of May 2, 1998, Ruben went to a nearby store to buy food.
Edgardo mocked him for being jobless and dependent on his wife for
support. Ruben resented the rebuke and hurled invectives at Edgardo.
A heated exchange of words ensued.
CALLEJO, SR., J.:

At about 7:30 p.m. the next day, a Sunday, Ruben went to the store to
buy food and to look for his wife. His three-year-old daughter was with

This is a petition for review of the Decision[1] of the Court of Appeals him. Momentarily, Esmeraldo and his two brothers, Ismael and Edgardo,

(CA) in CA-G.R. CR No. 27215 affirming, with modification, the emerged from their house and ganged up on Ruben. Esmeraldo and

Decision[2] of the Regional Trial Court (RTC) of Cavite, Branch 90, in Ismael mauled Ruben with fist blows and he fell to the ground. In that

Criminal Case No. 6962-99, entitled People of the Philippines. v. helpless position, Edgardo hit Ruben three times with a hollow block on

Esmeraldo Rivera, et al. the parietal area. Esmeraldo and Ismael continued mauling Ruben.
People who saw the incident shouted: Awatin sila! Awatin sila! Ruben
felt dizzy but managed to stand up. Ismael threw a stone at him, hitting
him at the back. When policemen on board a mobile car arrived,
Esmeraldo, Ismael and Edgardo fled to their house.
 SO ORDERED.[8]

Ruben was brought to the hospital. His attending physician, Dr.

Lamberto Cagingin, Jr., signed a medical certificate in which he declared
The trial court gave no credence to the collective testimonies of the
that Ruben sustained lacerated wounds on the parietal area, cerebral
accused and their witnesses. The accused appealed to the CA, which
concussion or contusion, hematoma on the left upper buttocks, multiple
rendered judgment on June 8, 2004 affirming, with modification, the
abrasions on the left shoulder and hematoma periorbital left.[4] The
appealed decision. The dispositive portion of the CA decision reads:
doctor declared that the lacerated wound in the parietal area was slight
and superficial and would heal from one to seven days.[5] The doctor
prescribed medicine for Rubens back pain, which he had to take for one
month.[6] WHEREFORE, the Decision of the Regional Trial Court of Imus, Cavite,
Branch 90, is MODIFIED in that the appellants are convicted of
ATTEMPTED MURDER and sentenced to an indeterminate penalty of
2 years of prision correccional as minimum to 6 years and 1 day
Esmeraldo testified that at around 1:00 p.m. on May 3, 1998, Ruben
of prision mayor as maximum. In all other respects, the decision
arrived at his house and banged the gate. Ruben challenged him and
appealed from is AFFIRMED.
his brothers to come out and fight. When he went out of the house and
talked to Ruben, the latter punched him. They wrestled with each other.
He fell to the ground. Edgardo arrived and pushed Ruben aside. His wife
arrived, and he was pulled away and brought to their house. SO ORDERED.[9]

For his part, Ismael testified that he tried to pacify Ruben and his brother The accused, now petitioners, filed the instant petition for review

Esmeraldo, but Ruben grabbed him by the hair. He managed to free on certiorari, alleging that the CA erred in affirming the RTC decision.

himself from Ruben and the latter fled. He went home afterwards. He They insist that the prosecution failed to prove that they had the intention

did not see his brother Edgardo at the scene. to kill Ruben when they mauled and hit him with a hollow block.
Petitioners aver that, based on the testimony of Dr. Cagingin, Ruben
sustained only a superficial wound in the parietal area; hence, they
should be held criminally liable for physical injuries only. Even if
Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was
petitioners had the intent to kill Ruben, the prosecution failed to prove
throwing garbage in front of their house. Ruben arrived and he went
treachery; hence, they should be held guilty only of attempted homicide.
inside the house to avoid a confrontation. Ruben banged the gate and
ordered him to get out of their house and even threatened to shoot him.
His brother Esmeraldo went out of their house and asked Ruben what
the problem was. On the other hand, the CA held that the prosecution was able to prove

A fist fight ensued. Edgardo rushed out of the house and pushed Ruben petitioners intent to kill Ruben:

aside. Ruben fell to the ground. When he stood up, he pulled at

Edgardos shirt and hair, and, in the process, Rubens head hit the lamp
post.[7] On the first assigned error, intent to kill may be deduced from the nature
of the wound inflicted and the kind of weapon used. Intent to kill was
established by victim Ruben Rodil in his testimony as follows:

On August 30, 2002, the trial court rendered judgment finding all the
accused guilty beyond reasonable doubt of frustrated murder. The
dispositive portion of the decision reads: Q: And while you were being boxed by Esmeraldo and Bong, what
happened next?

A: When I was already lying [down] xxx, Dagol Rivera showed up with a
WHEREFORE, premises considered, all the accused are found GUILTY
piece of hollow block xxx and hit me thrice on the head, Sir.
beyond reasonable doubt and are sentenced to an imprisonment of six
(6) years and one (1) day to eight (8) years of prision mayor as the
prosecution has proved beyond reasonable doubt the culpability of the
Q: And what about the two (2), what were they doing when you were hit
accused. Likewise, the accused are to pay, jointly and severally, civil
with a hollow block by Dagol?
indemnity to the private complainant in the amount of P30,000.00.
A: I was already lying on the ground and they kept on boxing me while
Dagol was hitting, Sir.
 wound is not sufficient to cause death, but intent to kill is evident, the
crime is attempted. Intent to kill was shown by the fact that the three (3)
As earlier stated by Dr. Cagingin, appellants could have killed the victim
brothers helped each other maul the defenseless victim, and even after
had the hollow block directly hit his head, and had the police not
he had already fallen to the ground; that one of them picked up a cement
promptly intervened so that the brothers scampered away. When a
hollow block and proceeded to hit the victim on the head with it three
wound is not sufficient to cause death, but intent to kill is evident, the
times; and that it was only the arrival of the policemen that made the
crime is attempted. Intent to kill was shown by the fact that the (3)
appellants desist from their concerted act of trying to kill Ruben
brothers helped each other maul the defenseless victim, and even after
Rodil.[11]
he had already fallen to the ground; that one of them even picked up a
cement hollow block and proceeded to hit the victim on the head with it
three times; and that it was only the arrival of the policemen that made
The petition is denied for lack of merit.
the appellants desist from their concerted act of trying to kill Ruben
Rodil.[10]

An essential element of murder and homicide, whether in their

consummated, frustrated or attempted stage, is intent of the offenders
The Office of the Solicitor General (OSG), for its part, asserts that the
to kill the victim immediately before or simultaneously with the infliction
decision of the CA is correct, thus:
of injuries. Intent to kill is a specific intent which the prosecution must
prove by direct or circumstantial evidence, while general criminal intent
is presumed from the commission of a felony by dolo.
The evidence and testimonies of the prosecution witnesses defeat the
presumption of innocence raised by petitioners. The crime has been
clearly established with petitioners as the perpetrators. Their intent to kill
In People v. Delim,[12] the Court declared that evidence to prove intent
is very evident and was established beyond reasonable doubt.
to kill in crimes against persons may consist, inter alia, in the means
used by the malefactors, the nature, location and number of wounds
sustained by the
Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly
victim, the conduct of the malefactors before, at the time, or immediately
and categorically declared that the victim Ruben Rodil was walking
after the killing of the victim, the circumstances under which the crime
along St. Peter Avenue when he was suddenly boxed by Esmeraldo
was committed and the motives of the accused. If the victim dies as a
Baby Rivera. They further narrated that, soon thereafter, his two
result of a deliberate act of the malefactors, intent to kill is presumed.
brothers Ismael and Edgardo Dagul Rivera, coming from St. Peter
II, ganged up on the victim. Both Alicia Vera Cruz and Lucita Villejo
recounted that they saw Edgardo Dagul Rivera pick up a hollow block
In the present case, the prosecution mustered the requisite quantum of
and hit Ruben Rodil with it three (3) times. A careful review of their
evidence to prove the intent of petitioners to kill Ruben. Esmeraldo and
testimonies revealed the suddenness and unexpectedness of the attack
Ismael pummeled the victim with fist blows. Even as Ruben fell to the
of petitioners. In this case, the victim did not even have the slightest
ground, unable to defend himself against the sudden and sustained
warning of the danger that lay ahead as he was carrying his three-year
assault of petitioners, Edgardo hit him three times with a hollow block.
old daughter. He was caught off-guard by the assault of Esmeraldo Baby
Edgardo tried to hit Ruben on the head, missed, but still managed to hit
Rivera and the simultaneous attack of the two other petitioners. It was
the victim only in the parietal area, resulting in a lacerated wound and
also established that the victim was hit by Edgardo Dagul Rivera, while
cerebral contusions.
he was lying on the ground and being mauled by the other petitioners.
Petitioners could have killed the victim had he not managed to escape
and had the police not promptly intervened.
That the head wounds sustained by the victim were merely superficial
and could not have produced his death does not negate petitioners
criminal liability for attempted murder. Even if Edgardo did not hit the
Petitioners also draw attention to the fact that the injury sustained by the
victim squarely on the head, petitioners are still criminally liable for
victim was superficial and, thus, not life threatening. The nature of the
attempted murder.
injury does not negate the intent to kill. The Court of Appeals held:

The last paragraph of Article 6 of the Revised Penal Code defines an

As earlier stated by Dr. Cagingin, appellants could have killed the victim
attempt to commit a felony, thus:
had the hollow block directly hit his head, and had the police not
promptly intervened so that the brothers scampered away. When a

There is an attempt when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause or
accident other than his own spontaneous desistance.
The essential elements of an attempted felony are as follows:
1. The offender commences the commission of the felony directly by
overt acts;
2. He does not perform all the acts of execution which should produce
the felony;
3. The offenders act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or
accident other than his spontaneous desistance.[13]
The first requisite of an attempted felony consists of two elements,
namely:
(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to
be committed.[14]
The Court in People v. Lizada[15] elaborated on the concept of an overt
or external act, thus:
An overt or external act is defined as some physical activity or deed,
indicating the intention to commit a particular crime, more than a mere
planning or preparation, which if carried out to its complete termination
following its natural course, without being frustrated by external
obstacles nor by the spontaneous desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense. The raison
detre for the law requiring a direct overt act is that, in a majority of cases,
the conduct of the accused consisting merely of acts of preparation has
never ceased to be equivocal; and this is necessarily so, irrespective of
his declared intent. It is that quality of being equivocal that must be
lacking before the act becomes one which may be said to be a
commencement of the commission of the crime, or an overt act or before
any fragment of the crime itself has been committed, and this is so for
the reason that so long as the equivocal quality remains, no one can say
with certainty what the intent of the accused is. It is necessary that the
overt act should have been the ultimate step towards the consummation
of the design. It is sufficient if it was the first or some subsequent step in
a direct movement towards the commission of the offense after the
preparations are made. The act done need not constitute the last
proximate one for completion. It is necessary, however, that the attempt
must have a causal relation to the intended crime. In the words of Viada,
the overt acts must have an immediate and necessary relation to the
offense.[16]
In the case at bar, petitioners, who acted in concert, commenced the
felony of murder by mauling the victim and hitting him three times with a
hollow block; they narrowly missed hitting the middle portion of his head.
If Edgardo had done so, Ruben would surely have died.
We reject petitioners contention that the prosecution failed to prove
treachery in the commission of the felony. Petitioners attacked the victim
in a sudden and unexpected manner as Ruben was walking with his
three-year-old daughter, impervious of the imminent peril to his life. He
had no chance to defend himself and retaliate. He was overwhelmed by
the synchronized assault of the three siblings. The essence of treachery
is the sudden and unexpected attack on the victim.[17] Even if the attack
is frontal but is sudden and unexpected, giving no opportunity for the
victim to repel it or defend himself, there would be
treachery.[18] Obviously, petitioners assaulted the victim because of the
altercation between him and petitioner Edgardo Rivera a day before.
There being conspiracy by and among petitioners, treachery is
considered against all of them.[19]
The appellate court sentenced petitioners to suffer an indeterminate
penalty of two (2) years of prision correccional in its minimum period, as
minimum, to six years and one day of prision mayor in its maximum
period, as maximum. This is erroneous. Under Article 248 of the Revised
Penal Code, as amended by Republic Act No. 7659, the penalty for
murder is reclusion perpetua to death. Since petitioners are guilty only
of attempted murder, the penalty should be reduced by two degrees,
conformably to Article 51 of the Revised Penal Code. Under paragraph
2 of Article 61, in relation to Article 71 of the Revised Penal Code, such
a penalty is prision mayor. In the absence of any modifying circumstance
in the commission of the felony (other than the qualifying circumstance
of treachery), the maximum of the indeterminate penalty shall be taken
from the medium period of prision mayorwhich has a range of from eight CHICO-NAZARIO,
(8) years and one (1) day to ten (10) years. To determine the minimum
GARCIA,
of the indeterminate penalty, the penalty of prision mayor should be
reduced by one degree, prision correccional, which has a range of six VELASCO, and
(6) months and one (1) day to six (6) years.
PEOPLE OF THE PHILIPPINES NACHURA, JJ.

and HON. COURT OF APPEALS,

Respondents.

Hence, petitioners should be sentenced to suffer an indeterminate Promulgated:

penalty of from two (2) years of prision correccional in its minimum

period, as minimum, to nine (9) years and four (4) months of prision
mayor in its medium period, as maximum.

June 21, 2007

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of

merit. The Decision of the Court of Appeals is AFFIRMED WITH THE
x----------------------------------------------------------------------------x
MODIFICATION that petitioners are sentenced to suffer an
indeterminate penalty of from two (2) years of prision correccional in its
minimum period, as minimum, to nine (9) years and four (4) months
of prision mayor in its medium period, as maximum. No costs.

DECISION

SO ORDERED.

TINGA, J.:

This case aims for prime space in the firmament of our criminal law
jurisprudence. Petitioner effectively concedes having performed the
ARISTOTEL VALENZUELA y G. R. No. 160188 felonious acts imputed against him, but instead insists that as a result,
he should be adjudged guilty of frustrated theft only, not the felony in its
NATIVIDAD,
consummated stage of which he was convicted. The proposition rests
Petitioner, Present: on a common theory expounded in two well-known
decisions[1] rendered decades ago by the Court of Appeals, upholding
the existence of frustrated theft of which the accused in both cases were

PUNO, C.J., found guilty. However, the rationale behind the rulings has never been
affirmed by this Court.
QUISUMBING,

SANTIAGO,
As far as can be told,[2] the last time this Court extensively considered
- versus - GUTIERREZ, whether an accused was guilty of frustrated or consummated theft was
in 1918, in People v. Adiao.[3] A more cursory
CARPIO,

MARTINEZ,

CORONA,

CARPIO MORALES,
treatment of the question was followed in 1929, in People v.
AZCUNA, Sobrevilla,[4] and in 1984, in Empelis v. IAC.[5] This petition now gives
occasion for us to finally and fully measure if or how frustrated theft is
TINGA,
susceptible to commission under the Revised Penal Code.

I.
The basic facts are no longer disputed before us. The case stems from
an Information[6] charging petitioner Aristotel Valenzuela (petitioner)
and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994,
at around 4:30 p.m., petitioner and Calderon were sighted outside the
Super Sale Club, a supermarket within the ShoeMart (SM) complex
along North EDSA, by Lorenzo Lago (Lago), a security guard who was
then manning his post at the open parking area of the supermarket. Lago
saw petitioner, who was wearing an identification card with the mark
Receiving Dispatching Unit (RDU), hauling a push cart with cases of
detergent of the well-known Tide brand. Petitioner unloaded these
cases in an open parking space, where Calderon was waiting. Petitioner
then returned inside the supermarket, and after five (5) minutes,
emerged with more cartons of Tide Ultramatic and again unloaded these
boxes to the same area in the open parking space.[7]
Thereafter, petitioner left the parking area and haled a taxi. He boarded
the cab and directed it towards the parking space where Calderon was
waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi,
then boarded the vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the open parking area. When
Lago asked petitioner for a receipt of the merchandise, petitioner and
Calderon reacted by fleeing on foot, but Lago fired a warning shot to
alert his fellow security guards of the incident. Petitioner and Calderon
were apprehended at the scene, and the stolen merchandise
recovered.[8] The filched items seized from the duo were four (4) cases
of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3)
additional cases of detergent, the goods with an aggregate value
of P12,090.00.[9]
Petitioner and Calderon were first brought to the SM security office
before they were transferred on the same day to the Baler Station II of
the Philippine National Police, Quezon City, for investigation. It appears
from the police investigation records that apart from petitioner and
Calderon, four (4) other persons were apprehended by the security
guards at the scene and delivered to police custody at the Baler PNP
Station in connection with the incident. However, after the matter was
referred to the Office of the Quezon City Prosecutor, only petitioner and
Calderon were charged with theft by the Assistant City Prosecutor, in
Informations prepared on 20 May 1994, the day after the incident.[10]
After pleading not guilty on arraignment, at the trial, petitioner and
Calderon both claimed having been innocent bystanders within the
vicinity of the Super Sale Club on the afternoon of 19 May 1994 when
they were haled by Lago and his fellow security guards after a
commotion and brought to the Baler PNP Station. Calderon alleged that
on the afternoon of the incident, he was at the Super Sale Club to
withdraw from his ATM account, accompanied by his neighbor, Leoncio
Rosulada.[11] As the queue for the ATM was long, Calderon and
Rosulada decided to buy snacks inside the supermarket. It was
while they were eating that they heard thegunshot fired by
Lago, leading them to head out of the building to check what was
transpiring. As they were outside, they were suddenly grabbed by a
security guard, thus commencing their detention.[12]Meanwhile,
petitioner testified during trial that he and his cousin, a Gregorio
Valenzuela,[13] had been at the parking lot, walking beside the nearby
BLISS complex and headed to ride a tricycle going to Pag-asa, when
they saw the security guard Lago fire a shot. The gunshot caused him
and the other people at the scene to start running, at which point he was
apprehended by Lago and brought to the security office. Petitioner
claimed he was detained at the security office until around 9:00 p.m., at
which time he and the others were brought to the Baler Police Station.
At the station, petitioner denied having stolen the cartons of detergent,
but he was detained overnight, and eventually brought to the
prosecutors office where he was charged with theft.[14] During
petitioners cross-examination, he admitted that he had been employed
as a bundler of GMS Marketing, assigned at the supermarket though not
at SM.[15]
In a Decision[16] promulgated on 1 February 2000, the Regional Trial
Court (RTC) of Quezon City, Branch 90, convicted both petitioner and
Calderon of the crime of consummated theft. They were sentenced to
an indeterminate prison term of two (2) years of prision correccional as
minimum to seven (7) years of prision mayor as maximum.[17] The RTC
found credible the testimonies of the prosecution witnesses and
established the convictions on the positive identification of the accused
as perpetrators of the crime.
Both accused filed their respective Notices of Appeal,[18] but only
petitioner filed a brief[19] with the Court of Appeals, causing the
appellate court to deem Calderons appeal as abandoned and
consequently dismissed. Before the Court of Appeals, petitioner argued
that he should only be convicted of frustrated theft since at the time he
was apprehended, he was never placed in a position to freely dispose
of the articles stolen.[20] However, in its Decision dated 19 June
2003,[21] the Court of Appeals rejected this contention and affirmed
petitioners conviction.[22] Hence the present Petition for
Review,[23] which expressly seeks that petitioners conviction be
modified to only of Frustrated Theft.[24]
Even in his appeal before the Court of Appeals, petitioner effectively
conceded both his felonious intent and his actual participation in the theft
of several cases of detergent with a total value of P12,090.00 of which
he was charged.[25] As such, there is no cause for the Court to consider
a factual scenario other than that presented by the prosecution, as
affirmed by the RTC and the Court of Appeals. The only question to
consider is whether under the given facts, the theft should be deemed
as consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner
cites[26] two decisions rendered many years ago by the Court of
Appeals: People v. Dio[27] and People v. Flores.[28] Both decisions
elicit the interest of this Court, as they modified trial court convictions
from consummated to frustrated theft and involve a factual milieu that
bears similarity to the present case. Petitioner invoked the same rulings
in his appeal to the Court of Appeals, yet the appellate court did not
expressly consider the import of the rulings when it affirmed the
conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to
the Dio and Flores rulings since they have not yet been
expressly adopted as precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not
come to pass before us. Yet despite the silence on our
part, Dio and Flores have attained a level of renown reached by very
few other appellate court rulings. They are comprehensively discussed
in the most popular of our criminal law annotations,[29] and studied in
criminal law classes as textbook examples of frustrated crimes or even
as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the
fanciful scenarios that populate criminal law exams more than they
actually occur in real life. Indeed, if we finally say that Dio and Flores are
doctrinal, such conclusion could profoundly influence a multitude of
routine theft prosecutions, including commonplace shoplifting. Any
scenario that involves the thief having to exit with the stolen property
through a supervised egress, such as a supermarket checkout counter
or a parking area pay booth, may easily call for the application
of Dio and Flores. The fact that lower courts have not hesitated to lay
down convictions for frustrated theft further validates
that Dio and Flores and the theories offered therein on frustrated theft
have borne some weight in our jurisprudential system. The time is thus
ripe for us to examine whether those theories are correct and should
continue to influence prosecutors and judges in the future.
III.
To delve into any extended analysis of Dio and Flores, as well as the
specific issues relative to frustrated theft, it is necessary to first refer to
the basic rules on the three stages of crimes under our Revised Penal
Code.[30]
Article 6 defines those three stages, namely the consummated,
frustrated and attempted felonies. A felony is consummated when all the
elements necessary for its execution and accomplishment are present.
It is frustrated when the offender performs all the acts of execution which
would produce the felony as a consequence but which, nevertheless, do
not produce it by reason of causes independent of the will of the
perpetrator. Finally, it is attempted when the offender commences the
commission of a felony directly by overt acts, and does not perform all
the acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance.
Each felony under the Revised Penal Code has a subjective phase, or
that portion of the acts constituting the crime included between the act
which begins the commission of the crime and the last act performed by
the offender which, with prior acts, should result in the consummated
crime.[31] After that point has been breached, the subjective phase
ends and the objective phase begins.[32] It has been held that if the
offender never passes the subjective phase of the offense, the crime is
merely attempted.[33] On the other hand, the subjective phase is
completely passed in case of frustrated crimes, for in such instances,
[s]ubjectively the crime is complete.[34]
Truly, an easy distinction lies between consummated and frustrated
felonies on one hand, and attempted felonies on the other. So long as
the offender fails to complete all the acts of execution despite
commencing the commission of a felony, the crime is undoubtedly in the
attempted stage. Since the specific acts of execution that define each
crime under the Revised Penal Code are generally enumerated in the
code itself, the task of ascertaining whether a crime is attempted only
would need to compare the acts actually performed by the accused as
against the acts that constitute the felony under the Revised Penal
Code.
our Revised Penal Code does not suffer from such infirmity. From the
statutory definition of any felony, a decisive passage or term is
embedded which attests when the felony is produced by the acts of
execution. For example, the statutory definition of murder or homicide
expressly uses the phrase shall kill another, thus making it clear that the
felony is produced by the death of the victim, and conversely, it is not
produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the
Revised Penal Code, its elements are spelled out as follows:

In contrast, the determination of whether a crime is frustrated or

consummated necessitates an initial concession that all of the acts of
execution have been performed by the offender. The critical distinction
instead is whether the felony itself was actually produced by the acts of
execution. The determination of whether the felony was produced after
all the acts of execution had been performed hinges on the particular
statutory definition of the felony. It is the statutory definition that
Art. 308. Who are liable for theft. Theft is committed by any person who,
with intent to gain but without violence against or intimidation of persons
nor force upon things, shall take personal property of another without
the latters consent.
Theft is likewise committed by:

generally furnishes the elements of each crime under the Revised Penal
1. Any person who, having found lost property, shall fail to deliver the
Code, while the elements in turn unravel the particular requisite acts of
same to the local authorities or to its owner;
execution and accompanying criminal intent.
2. Any person who, after having maliciously damaged the property of
another, shall remove or make use of the fruits or object of the damage

The long-standing Latin maxim actus non facit reum, nisi mens sit caused by him; and

rea supplies an important characteristic of a crime, that ordinarily, evil

3. Any person who shall enter an inclosed estate or a field where
intent must unite with an unlawful act for there to be a crime, and
trespass is forbidden or which belongs to another and without the
accordingly, there can be no crime when the criminal mind is
consent of its owner, shall hunt or fish upon the same or shall gather
wanting.[35] Accepted in this jurisdiction as material in crimes mala in
cereals, or other forest or farm products.
se,[36] mens rea has been defined before as a guilty mind, a guilty or
wrongful purpose or criminal intent,[37] and essential for criminal
liability.[38] It follows that the statutory definition of our mala in se crimes
Article 308 provides for a general definition of theft, and three alternative
must be able to supply what the mens rea of the crime is, and indeed
and highly idiosyncratic means by which theft may be committed.[41] In
the U.S. Supreme Court has comfortably held that a criminal law that
the present discussion, we need to concern ourselves only with the
contains no mens rea requirement infringes on constitutionally protected
general definition since it was under it that the prosecution of the
rights.[39] The criminal statute must also provide for the overt acts that
accused was undertaken and sustained. On the face of the definition,
constitute the crime. For a crime to exist in our legal law, it is not enough
there is only one operative act of execution by the actor involved in theft
that mens rea be shown; there must also be an actus reus.[40]
the taking of personal property of another. It is also clear from the
provision that in order that such taking may be qualified as theft, there
must further be present the descriptive circumstances that the taking
was with intent to gain; without force upon things or violence against or
intimidation of persons; and it was without the consent of the owner of
the property.
It is from the actus reus and the mens rea, as they find expression in the
criminal statute, that the felony is produced. As a postulate in the
craftsmanship of constitutionally sound laws, it is extremely preferable
Indeed, we have long recognized the following elements of theft as
that the language of the law expressly provide when the felony is
provided for in Article 308 of the Revised Penal Code, namely: (1) that
produced. Without such provision, disputes would inevitably ensue on
there be taking of personal property; (2) that said property belongs to
the elemental question whether or not a crime was committed, thereby
another; (3) that the taking be done with intent to gain; (4) that the taking
presaging the undesirable and legally dubious set-up under which the
be done without the consent of the owner; and (5) that the taking be
judiciary is assigned the legislative role of defining crimes. Fortunately,
accomplished without the use of violence against or intimidation of
persons or force upon things.[42]
In his commentaries, Judge Guevarra traces the history of the definition
of theft, which under early Roman law as defined by Gaius, was so broad
enough as to encompass any kind of physical handling of property
belonging to another against the will of the owner,[43] a definition similar
to that by Paulus that a thief handles (touches, moves) the property of
another.[44] However, with the Institutes of Justinian, the idea had taken
hold that more than mere physical handling, there must further be an
intent of acquiring gain from the object, thus: [f]urtum est contrectatio rei
fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus
possessinisve.[45] This requirement of animo lucrandi, or intent to gain,
was maintained in both the Spanish and Filipino penal laws, even as it
has since been abandoned in Great Britain.[46]
In Spanish law, animo lucrandi was compounded with apoderamiento,
or unlawful taking, to characterize theft. Justice Regalado notes that the
concept of apoderamiento once had a controversial interpretation and
application. Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding that it had to
be coupled with the intent to appropriate the object in order to
constitute apoderamiento; and to appropriate means to deprive the
lawful owner of the thing.[47]However, a conflicting line of cases decided
by the Court of Appeals ruled, alternatively, that there must be
permanency in the taking[48] or an intent to permanently deprive the
owner of the stolen property;[49] or that there was no need for
permanency in the taking or in its intent, as the mere temporary
possession by the offender or disturbance of the proprietary rights of the
owner already constituted apoderamiento.[50] Ultimately, as Justice
Regalado notes, the Court adopted the latter thought that there was no
need of an intent to permanently deprive the owner of his property to
constitute an unlawful taking.[51]
So long as the descriptive circumstances that qualify the taking are
present, including animo lucrandi and apoderamiento, the completion of
the operative act that is the taking of personal property of another
establishes, at least, that the transgression went beyond the attempted
stage. As applied to the present case, the moment petitioner obtained
physical possession of the cases of detergent and loaded them in the
pushcart, such seizure motivated by intent to gain, completed without
need to inflict violence or intimidation against persons nor force upon
things, and accomplished without the consent of the SM Super Sales
Club, petitioner forfeited the extenuating benefit a conviction for only
attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated
theft, we are obliged to apply Article 6 of the Revised Penal Code to
ascertain the answer. Following that provision, the theft would have
been frustrated only, once the acts committed by petitioner, if ordinarily
sufficient to produce theft as a consequence, do not produce [such theft]
by reason of causes independent of the will of the perpetrator. There are
clearly two determinative factors to consider: that the felony is not
produced, and that such failure is due to causes independent of the will
of the perpetrator. The second factor ultimately depends on the evidence
at hand in each particular case. The first, however, relies primarily on a
doctrinal definition attaching to the individual felonies in the Revised
Penal Code[52] as to when a particular felony is not produced, despite
the commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or frustrated,
it is necessary to inquire as to how exactly is the felony of theft produced.
Parsing through the statutory definition of theft under Article 308, there
is one apparent answer provided in the language of the law that theft is
already produced upon the tak[ing of] personal property of another
without the latters consent.
U.S. v. Adiao[53] apparently supports that notion. Therein, a customs
inspector was charged with theft after he abstracted a leather belt from
the baggage of a foreign national and secreted the item in his desk at
the Custom House. At no time was the accused able to get the
merchandise out of the Custom House, and it appears that he was under
observation during the entire transaction.[54]Based apparently on those
two circumstances, the trial court had found him guilty, instead, of
frustrated theft. The Court reversed, saying that neither circumstance
was decisive, and holding instead that the accused was guilty of
consummated theft, finding that all the elements of the completed crime
of theft are present.[55] In support of its conclusion that the theft was
consummated, the Court cited three (3) decisions of the Supreme Court
of Spain, the discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the land of
another. As he was in the act of taking the fruit[,] he was seen by a
policeman, yet it did not appear that he was at that moment caught by
the policeman but sometime later. The court said: "[x x x] The trial court
did not err [x x x ] in considering the crime as that of consummated theft
instead of frustrated theft inasmuch as nothing appears in the record
showing that the policemen who saw the accused take the fruit from the
adjoining land arrested him in the act and thus prevented him from taking
full possession of the thing stolen and even its utilization by him for an
interval of time." (Decision of the Supreme Court of Spain, October 14,
1898.)
Defendant picked the pocket of the offended party while the latter was
hearing mass in a church. The latter on account of the solemnity of the
act, although noticing the theft, did not do anything to prevent it.
Subsequently, however, while the defendant was still inside the church,
the offended party got back the money from the defendant. The court
said that the defendant had performed all the acts of execution and
considered the theft as consummated. (Decision of the Supreme Court
of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by means
of a key opened up a case, and from the case took a small box, which
was also opened with a key, from which in turn he took a purse
containing 461 reales and 20 centimos, and then he placed the money
over the cover of the case; just at this moment he was caught by two
guards who were stationed in another room near-by. The court
considered this as consummated robbery, and said: "[x x x] The accused
[x x x] having materially taken possession of the money from the moment
he took it from the place where it had been, and having taken it with his
hands with intent to appropriate the same, he executed all the acts
necessary to constitute the crime which was thereby produced; only the
act of making use of the thing having been frustrated, which, however,
does not go to make the elements of the consummated crime." (Decision
of the Supreme Court of Spain, June 13, 1882.)[56]
It is clear from the facts of Adiao itself, and the three (3) Spanish
decisions cited therein, that the criminal actors in all these cases had
been able to obtain full possession of the personal property prior to their
apprehension. The interval between the commission of the acts of theft
and the apprehension of the thieves did vary, from sometime later in the
1898 decision; to the very moment the thief had just extracted the money
in a purse which had been stored as it was in the 1882 decision; and
before the thief had been able to spirit the item stolen from the building
where the theft took place, as had happened in Adiao and the 1897
decision. Still, such intervals proved of no consequence in those cases,
as it was ruled that the thefts in each of those cases was consummated
by the actual possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was
guilty only of frustrated rather than consummated theft. The case
is People v. Sobrevilla,[57] where the accused, while in the midst of a
crowd in a public market, was already able to abstract a pocketbook from
the trousers of the victim when the latter, perceiving the theft, caught
hold of the [accused]s shirt-front, at the same time shouting for a
policeman; after a struggle, he recovered his pocket-book and let go of
the defendant, who was afterwards caught by a policeman.[58] In
rejecting the contention that only frustrated theft was established, the
Court simply said, without further comment or elaboration:
We believe that such a contention is groundless. The [accused]
succeeded in taking the pocket-book, and that determines the crime of
theft. If the pocket-book was afterwards recovered, such recovery does
not affect the [accuseds] criminal liability, which arose from the
[accused] having succeeded in taking the pocket-book.[59]
If anything, Sobrevilla is consistent with Adiao and the Spanish
Supreme Court cases cited in the latter, in that the fact that the offender
was able to succeed in obtaining physical possession of the stolen item,
no matter how momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited
therein contradict the position of petitioner in this case. Yet to simply
affirm without further comment would be disingenuous, as there is
another school of thought on when theft is consummated, as reflected
in the Dio and Flores decisions.
Dio was decided by the Court of Appeals in 1949, some 31 years
after Adiao and 15 years before Flores. The accused therein, a driver
employed by the United States Army, had driven his truck into the port
area of the South Harbor, to unload a truckload of materials to waiting
U.S. Army personnel. After he had finished unloading, accused drove
away his truck from the Port, but as he was approaching a checkpoint
of the Military Police, he was stopped by an M.P. who inspected the truck
and found therein three boxes of army rifles. The accused later
contended that he had been stopped by four men who had loaded the
boxes with the agreement that they were to meet him and retrieve the
rifles after he had passed the checkpoint. The trial court convicted
accused of consummated theft, but the Court of Appeals modified the
conviction, holding instead that only frustrated theft had been
committed.
In doing so, the appellate court pointed out that the evident intent of the
accused was to let the boxes of rifles pass through the checkpoint,
perhaps in the belief that as the truck had already unloaded its cargo
inside the depot, it would be allowed to pass through the check point
without further investigation or checking.[60] This point was deemed
material and indicative that the theft had not been fully produced, for the
Court of Appeals pronounced that the fact determinative of
consummation is the ability of the thief to dispose freely of the articles
stolen, even if it were more or less momentary.[61] Support for this
proposition was drawn from a decision of the Supreme Court of Spain
dated 24 January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea
determinate de la consumacion del delito de hurto es preciso que so
haga en circunstancias tales que permitan al sustractor la libre
disposicion de aquella, siquiera sea mas o menos momentaneamente,
pues de otra suerte, dado el concepto del delito de hurto, no puede
decirse en realidad que se haya producido en toda su extension, sin
materializar demasiado el acto de tomar la cosa ajena.[62]
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the
booty subject to the control and disposal of the culprits, the articles
stolen must first be passed through the M.P. check point, but since the
offense was opportunely discovered and the articles seized after all the
acts of execution had been performed, but before the loot came under
the final control and disposal of the looters, the offense can not be said
to have been fully consummated, as it was frustrated by the timely
intervention of the guard. The offense committed, therefore, is that of
frustrated theft.[63]
Dio thus laid down the theory that the ability of the actor to freely dispose
of the items stolen at the time of apprehension is determinative as to
whether the theft is consummated or frustrated. This theory was applied
again by the Court of Appeals some 15 years later, in Flores, a case
which according to the division of the court that decided it, bore no
substantial variance between the circumstances [herein] and in
[Dio].[64] Such conclusion is borne out by the facts in Flores. The
accused therein, a checker employed by the Luzon Stevedoring
Company, issued a delivery receipt for one empty sea van to the truck
driver who had loaded the purportedly empty sea van onto his truck at
the terminal of the stevedoring company. The truck driver proceeded to
show the delivery receipt to the guard on duty at the gate of the terminal.
However, the guards insisted on inspecting the van, and discovered that
the empty sea van had actually contained other merchandise as
well.[65] The accused was prosecuted for theft qualified by abuse of
confidence, and found himself convicted of the consummated crime.
Before the Court of Appeals, accused argued in the alternative that he
was guilty only of attempted theft, but the appellate court pointed out
that there was no intervening act of spontaneous desistance on the part
of the accused that literally frustrated the theft. However, the Court of
Appeals, explicitly relying on Dio, did find that the accused was guilty
only of frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found no substantial
variance between Dio and Flores then before it. The prosecution
in Flores had sought to distinguish that case from Dio, citing a traditional
ruling which unfortunately was not identified in the decision itself.
However, the Court of Appeals pointed out that the said traditional ruling
was qualified by the words is placed in a situation where [the actor] could
dispose of its contents at once.[66] Pouncing on this qualification, the
appellate court noted that [o]bviously, while the truck and the van were
still within the compound, the petitioner could not have disposed of the
goods at once. At the same time, the Court of Appeals conceded that
[t]his is entirely different from the case where a much less bulk and more
common thing as money was the object of the crime, where freedom to
dispose of or make use of it is palpably less restricted,[67] though no
further qualification was offered what the effect would have been had
that alternative circumstance been present instead.
Synthesis of the Dio and Flores rulings is in order. The determinative
characteristic as to whether the crime of theft was produced is the ability
of the actor to freely dispose of the articles stolen, even if it were only
momentary. Such conclusion was drawn from an 1888 decision of the
Supreme Court of Spain which had pronounced that in determining
whether theft had been consummated, es preciso que so haga en
circunstancias tales que permitan al sustractor de aquella, siquiera sea
mas o menos momentaneamente. The qualifier siquiera sea mas o
menos momentaneamente proves another important consideration, as
it implies that if the actor was in a capacity to freely dispose of the stolen
items before apprehension, then the theft could be deemed
consummated. Such circumstance was not present in
either Dio or Flores, as the stolen items in both cases were retrieved
from the actor before they could be physically extracted from the
guarded compounds from which the items were filched. However, as
implied in Flores, the character of the item stolen could lead to a different
conclusion as to whether there could have been free disposition, as in
the case where the chattel involved was of much less bulk and more
common x x x, [such] as money x x x.[68]
In his commentaries, Chief Justice Aquino makes the following pointed
observation on the import of the Dio ruling:
 the concept of frustrated theft itself, the question can even be asked
whether there is really such a crime in the first place.

There is a ruling of the Court of Appeals that theft is consummated when

the thief is able to freely dispose of the stolen articles even if it were
more or less momentary. Or as stated in another case[[69]], theft is
IV.
consummated upon the voluntary and malicious taking of property
belonging to another which is realized by the material occupation of the
thing whereby the thief places it under his control and in such a situation
that he could dispose of it at once. This ruling seems to have been based The Court in 1984 did finally rule directly that an accused was guilty of

on Viadas opinion that in order the theft may be consummated, es frustrated, and not consummated, theft. As we undertake this inquiry,

preciso que se haga en circumstancias x x x [[70]][71] we have to reckon with the import of this Courts 1984 decision
in Empelis v. IAC.[78]

In the same commentaries, Chief Justice Aquino, concluding

from Adiao and other cases, also states that [i]n theft or robbery the As narrated in Empelis, the owner of a coconut plantation had espied

crime is consummated after the accused had material possession of the four (4) persons in the premises of his plantation, in the act of gathering

thing with intent to appropriate the same, although his act of making use and tying some coconuts. The accused were surprised by the owner

of the thing was frustrated.[72]
There are at least two other Court of Appeals rulings that are at seeming
variance with the Dio and Flores rulings. People v. Batoon[73] involved
an accused who filled a container with gasoline from a petrol pump
within view of a police detective, who followed the accused onto a
passenger truck where the arrest was made. While the trial court found
the accused guilty of frustrated qualified theft, the Court of Appeals held
that the accused was guilty of consummated qualified theft, finding that
[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x
x indicate that actual taking with intent to gain is enough to consummate
the crime of theft.[74]
within the plantation as they were carrying with them the coconuts they
had gathered. The accused fled the scene, dropping the coconuts they
had seized, and were subsequently arrested after the owner reported
the incident to the police. After trial, the accused were convicted of
qualified theft, and the issue they raised on appeal was that they were
guilty only of simple theft. The Court affirmed that the theft was qualified,
following Article 310 of the Revised Penal Code,[79] but further held that
the accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether
the theft was consummated or frustrated was raised by any of the
parties. What does appear, though, is that the disposition of that issue
was contained in only two sentences, which we reproduce in full:

However, the crime committed is only frustrated qualified theft because

In People v. Espiritu,[75] the accused had removed nine pieces of petitioners were not able to perform all the acts of execution which
hospital linen from a supply depot and loaded them onto a truck. should have produced the felony as a consequence. They were not able
However, as the truck passed through the checkpoint, the stolen items to carry the coconuts away from the plantation due to the timely arrival
were discovered by the Military Police running the checkpoint. Even of the owner.[80]
though those facts clearly admit to similarity with those in Dio, the Court
of Appeals held that the accused were guilty of consummated theft, as
the accused were able to take or get hold of the hospital linen and that
No legal reference or citation was offered for this averment,
the only thing that was frustrated, which does not constitute any element
whether Dio, Flores or the Spanish authorities who may have bolstered
of theft, is the use or benefit that the thieves expected from the
the conclusion. There are indeed evident problems with this formulation
commission of the offense.[76]
in Empelis.

In pointing out the distinction between Dio and Espiritu, Reyes wryly
Empelis held that the crime was only frustrated because the actors
observes that [w]hen the meaning of an element of a felony is
were not able to perform all the acts of execution which should have
controversial, there is bound to arise different rulings as to the stage of
produced the felon as a consequence.[81] However, per Article 6 of the
execution of that felony.[77] Indeed, we can discern from this survey of
Revised Penal Code, the crime is frustrated when the offender performs
jurisprudence that the state of the law insofar as frustrated theft is
all the acts of execution, though not producing the felony as a result. If
concerned is muddled. It fact, given the disputed foundational basis of
the offender was not able to perform all the acts of execution, the crime
is attempted, provided that the
performance was by reason of some cause or accident other than
spontaneous desistance. Empelis concludes that the crime was
frustrated because not all of the acts of execution were performed due
to the timely arrival of the owner. However, following Article 6 of the
Revised Penal Code, these facts should elicit the conclusion that the
crime was only attempted, especially given that the acts were not
performed because of the timely arrival of the owner, and not because
of spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we
consider the present petition. Even if the two sentences we had cited
actually aligned with the definitions provided in Article 6 of the Revised
Penal Code, such passage bears no reflection that it is the product of
the considered evaluation of the relevant legal or jurisprudential thought.
Instead, the passage is offered as if it were sourced from an indubitable
legal premise so settled it required no further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even
cited as authority on theft. Indeed, we cannot see how Empeliscan
contribute to our present debate, except for the bare fact that it proves
that the Court had once deliberately found an accused guilty of frustrated
theft. Even if Empelis were considered as a precedent for frustrated
theft, its doctrinal value is extremely compromised by the erroneous
legal premises that inform it, and also by the fact that it has not been
entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that
frustrated theft is viable in this jurisdiction. Considering the flawed
reasoning behind its conclusion of frustrated theft, it cannot present any
efficacious argument to persuade us in this case. Insofar
as Empelis may imply that convictions for frustrated theft are beyond
cavil in this jurisdiction, that decision is subject to reassessment.
V.
non- At the time our Revised Penal Code was enacted in 1930, the
1870 Codigo Penal de Espaa was then in place. The definition of the
crime of theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las
personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
voluntad de su dueo.
2. Los que encontrndose una cosa perdida y sabiendo quin es su
dueo se la apropriaren co intencin de lucro.
3. Los daadores que sustrajeren o utilizaren los frutos u objeto del
dao causado, salvo los casos previstos en los artculos 606, nm. 1.0;
607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617
y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited
Spanish Supreme Court decisions were handed down. However, the
said code would be revised again in 1932, and several times thereafter.
In fact, under the Codigo Penal Espaol de 1995, the crime of theft is now
simply defined as [e]l que, con nimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueo ser
castigado[82]
Notice that in the 1870 and 1995 definition of theft in the penal code
of Spain, la libre disposicion of the property is not an element or a
statutory characteristic of the crime. It does appear that the principle
originated and perhaps was fostered in the realm of Spanish
jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his
1926 commentaries on the 1870 Codigo Penal de Espaa. Therein, he
raised at least three questions for the reader whether the crime of
frustrated or consummated theft had occurred. The passage cited
in Dio was actually utilized by Viada to answer the question whether
frustrated or consummated theft was committed [e]l que en el momento
mismo de apoderarse de la cosa ajena, vindose sorprendido, la arroja
al suelo.[83] Even as the answer was as stated in Dio, and was indeed
derived from the 1888 decision of the Supreme Court of Spain, that
decisions factual predicate occasioning the statement was apparently
very different from Dio, for it appears that the 1888 decision involved an
accused who was surprised by the employees of a haberdashery as he
was abstracting a layer of clothing off a mannequin, and who then
proceeded to throw away the garment as he fled.[84]
Nonetheless, Viada does not contest the notion of frustrated theft, and
willingly recites decisions of the Supreme Court of Spain that have held
to that effect.[85] A few decades later, the esteemed Eugenio Cuello
Caln pointed out the inconsistent application by the Spanish Supreme
Court with respect to frustrated theft.
Hay frustracin cuando los reos fueron sorprendidos por las guardias
cuando llevaban los sacos de harino del carro que los conducia a otro
que tenan preparado, 22 febrero 1913; cuando el resultado no tuvo
efecto por la intervencin de la policia situada en el local donde se realiz
la sustraccin que impidi pudieran los reos disponer de lo sustrado, 30
de octubre 1950. Hay "por lo menos" frustracin, si existe apoderamiento,
pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay
frustracin "muy prxima" cuando el culpable es detenido por el
perjudicado acto seguido de cometer la sustraccin, 28 febrero 1931.
Algunos fallos han considerado la existencia de frustracin cuando,
perseguido el culpable o sorprendido en el momento de llevar los
efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11
marzo 1921; esta doctrina no es admissible, stos, conforme a lo antes
expuesto, son hurtos consumados.[86]
Ultimately, Cuello Caln attacked the very idea that frustrated theft is
actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se
consuma cuando la cosa queda de hecho a la disposicin delagente. Con
este criterio coincide la doctrina sentada ltimamente porla jurisprudencia
espaola que generalmente considera consumado el hurto cuando el
culpable coge o aprehende la cosa y sta quede por tiempo ms o menos
duradero bajo su poder. El hecho de que ste pueda aprovecharse o no
de lo hurtado es indiferente. El delito no pierde su carcter de consumado
aunque la cosa hurtada sea devuelta por el culpable o fuere
recuperada. No se concibe la frustracin, pues es muy dificil que el que
hace cuanto es necesario para la consumacin del hurto no lo consume
efectivamente, los raros casos que nuestra jurisprudencia, muy
vacilante, declara hurtos frustrados son verdaderos delitos
consumados.[87] (Emphasis supplied)
Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who
was content with replicating the Spanish Supreme Court decisions on
the matter, Cuello Caln actually set forth his own thought that questioned
whether theft could truly be frustrated, since pues es muy dificil que el
que hace cuanto es necesario para la consumacin del hurto no lo
consume efectivamente. Otherwise put, it would be difficult to foresee
how the execution of all the acts necessary for the completion of the
crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no
weighted force in scholarly thought that obliges us to accept frustrated
theft, as proposed in Dio and Flores. A final ruling by the Court that there
is no crime of frustrated theft in this jurisdiction will not lead to scholastic
pariah, for such a submission is hardly heretical in light of Cuello Calns
position.
Accordingly, it would not be intellectually disingenuous for the Court to
look at the question from a fresh perspective, as we are not bound by
the opinions of the respected Spanish commentators, conflicting as they
are, to accept that theft is capable of commission in its frustrated stage.
Further, if we ask the question whether there is a mandate of statute or
precedent that must compel us to adopt the Dio and Flores doctrines,
the answer has to be in the negative. If we did so, it would arise not out
of obeisance to an inexorably higher command, but from the exercise of
the function of statutory interpretation that comes as part and parcel of
judicial review, and a function that allows breathing room for a variety of
theorems in competition until one is ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that it
lies in the province of the legislature, through statute, to define what
constitutes a particular crime in this jurisdiction. It is the legislature, as
representatives of the sovereign people, which determines which acts
or combination of acts are criminal in nature. Judicial interpretation of
penal laws should be aligned with what was the evident legislative intent,
as expressed primarily in the language of the law as it defines the crime.
It is Congress, not the courts, which is to define a crime, and ordain its
punishment.[88] The courts cannot arrogate the power to introduce a
new element of a crime which was unintended by the legislature, or
redefine a crime in a manner that does not hew to the statutory
language. Due respect for the prerogative of Congress in defining
crimes/felonies constrains the Court to refrain from a broad
interpretation of penal laws where a narrow interpretation is
appropriate. The Court must take heed of language, legislative history
and purpose, in order to strictly determine the wrath and breath of the
conduct the law forbids.[89]

With that in mind, a problem clearly emerges with the Dio/Flores dictum.
The ability of the offender to freely dispose of the property stolen is not
a constitutive element of the crime of theft. It finds no support or
extension in Article 308, whether as a descriptive or operative element
of theft or as the mens rea or actus reus of the felony. To restate what
this Court has repeatedly held: the elements of the crime of theft as
provided for in Article 308 of the Revised Penal Code are: (1) that there
be taking of personal property; (2) that said property belongs to another;
(3) that the taking be done with intent to gain; (4) that the taking be done
without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of
persons or force upon things.[90]
Such factor runs immaterial to the statutory definition of theft, which is
the taking, with intent to gain, of personal property of another without the
latters consent. While the Dio/Flores dictum is considerate to the
mindset of the offender, the statutory definition of theft considers only
the perspective of intent to gain on the part of the offender, compounded
by the deprivation of property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of
commission in the frustrated stage, the question is again, when is the
crime of theft produced? There would be all but certain unanimity in the
position that theft is produced when there is deprivation of personal
property due to its taking by one with intent to gain. Viewed from that
perspective, it is immaterial to the product of the felony that the offender,
once having committed all the acts of execution for theft, is able or
unable to freely dispose of the property stolen since the deprivation from
the owner alone has already ensued from such acts of execution. This
conclusion is reflected in Chief Justice Aquinos commentaries, as earlier
cited, that [i]n theft or robbery the crime is consummated after the
accused had material possession of the thing with intent to appropriate
the same, although his act of making use of the thing was frustrated.[91]
It might be argued, that the ability of the offender to freely dispose of the
property stolen delves into the concept of taking itself, in that there could
be no true taking until the actor obtains such degree of control over the
stolen item. But even if this were correct, the effect would be to
downgrade the crime to its attempted, and not frustrated stage, for it
would mean that not all the acts of execution have not been completed,
the taking not having been accomplished. Perhaps this point could serve
as fertile ground for future discussion, but our concern now is whether
there is indeed a crime of frustrated theft, and such consideration proves
ultimately immaterial to that question. Moreover, such issue will not
apply to the facts of this particular case. We are satisfied beyond
reasonable doubt that the taking by the petitioner was completed in this
case. With intent to gain, he acquired physical possession of the stolen
cases of detergent for a considerable period of time that he was able to
drop these off at a spot in the parking lot, and long enough to load these
onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento,
is deemed complete from the moment the offender gains possession of
the thing, even if he has no opportunity to dispose of the same.[92] And
long ago, we asserted in People v. Avila:[93]
x x x [T]he most fundamental notion in the crime of theft is the taking of
the thing to be appropriated into the physical power of the thief, which
idea is qualified by other conditions, such as that the taking must be
effected animo lucrandi and without the consent of the owner; and it will
be here noted that the definition does not require that the taking should
be effected against the will of the owner but merely that it should be
without his consent, a distinction of no slight importance.[94]
Insofar as we consider the present question, unlawful taking is most
material in this respect. Unlawful taking, which is the deprivation of ones
personal property, is the element which produces the felony in its
consummated stage. At the same time, without unlawful taking as an act
of execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article 308
of the Revised Penal Code, theft cannot have a frustrated stage. Theft
can only be attempted or consummated.
Neither Dio nor Flores can convince us otherwise. Both fail to consider
that once the offenders therein obtained possession over the stolen
items, the effect of the felony has been produced as there has been
deprivation of property. The presumed inability of the offenders to freely
dispose of the stolen property does not negate the fact that the owners
have already been deprived of their right to possession upon the
completion of the taking.
Moreover, as is evident in this case, the adoption of the rule that the
inability of the offender to freely dispose of the stolen property frustrates
the theft would introduce a convenient defense for the accused which
does not reflect any legislated intent,[95]since the Court would have
carved a viable means for offenders to seek a mitigated penalty under
applied circumstances that do not admit of easy classification. It is
difficult to formulate definite standards as to when a stolen item is
susceptible to free disposal by the thief. Would this depend on the
psychological belief of the offender at the time of the commission of the
crime, as implied in Dio?
 theft under the Revised Penal Code does not detract from the
correctness of this conclusion. It will take considerable amendments to
our Revised Penal Code in order that frustrated theft may be recognized.
Our deference to Viada yields to the higher reverence for legislative
intent.

Or, more likely, the appreciation of several classes of factual

circumstances such as the size and weight of the property, the location WHEREFORE, the petition is DENIED. Costs against petitioner.

of the property, the number and identity of people present at the scene
of the crime, the number and identity of people whom the offender is
expected to encounter upon fleeing with the stolen property, the manner SO ORDERED.
in which the stolen item had been housed or stored; and quite frankly, a
whole lot more. Even the fungibility or edibility of the stolen item would
come into account, relevant as that would be on whether such property
is capable of free disposal at any stage, even after the taking has been
consummated.

All these complications will make us lose sight of the fact that beneath
all the colorful detail, the owner was indeed deprived of property by one
who intended to produce such deprivation for reasons of gain. For such
will remain the presumed fact if frustrated theft were recognized, for
therein, all of the acts of execution, including the taking, have been
completed. If the facts establish the non-completion of the taking due to
these peculiar circumstances, the effect could be to downgrade the
crime to the attempted stage, as not all of the acts of execution have
been performed. But once all these acts have been executed, the taking
has been completed, causing the unlawful deprivation of property, and
ultimately the consummation of the theft.

Maybe the Dio/Flores rulings are, in some degree, grounded in common

sense. Yet they do not align with the legislated framework of the crime
of theft. The Revised Penal Code provisions on theft have not been
designed in such fashion as to accommodate said rulings. Again, there
is no language in Article 308 that expressly or impliedly allows that the
free disposition of the items stolen is in any way determinative of
whether the crime of theft has been produced. Dio itself did not rely on
Philippine laws or jurisprudence to bolster its conclusion, and the
later Flores was ultimately content in relying on Dio alone for legal
support.These cases do not enjoy the weight of stare decisis, and even
if they did, their erroneous appreciation of our law on theft leave them
susceptible to reversal. The same holds true of Empilis, a regrettably
stray decision which has not since found favor from this Court.

We thus conclude that under the Revised Penal Code, there is no crime
of frustrated theft. As petitioner has latched the success of his appeal on
our acceptance of the Dio and Flores rulings, his petition must be
denied, for we decline to adopt said rulings in our jurisdiction. That it has
taken all these years for us to recognize that there can be no frustrated
G.R. No. L-43530 August 3, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto K. Bausa for appellant.
Office of the Solicitor-General Hilado for appellee.
RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from a
decision of the Court of First Instance of Iloilo, finding him guilty of
attempted robbery and sentencing him to suffer two years and four
months of prision correccional and to an additional penalty of ten years
and one day of prision mayor for being an habitual delinquent, with the
accessory penalties of the law, and to pay the costs of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was
patrolling his beat on Delgado and C.R. Fuentes streets of the City of
Iloilo, caught the accused in the act of making an opening with an iron
bar on the wall of a store of cheap goods located on the last named
street. At that time the owner of the store, Tan Yu, was sleeping inside
with another Chinaman. The accused had only succeeded in breaking
one board and in unfastening another from the wall, when the policeman
showed up, who instantly arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the
provincial fiscal of Iloilo, the trial judge and the Solicitor-General, as
constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal
Code punishes is that which has a logical relation to a particular,
concrete offense; that, which is the beginning of the execution of the
offense by overt acts of the perpetrator, leading directly to its realization
and consummation. The attempt to commit an indeterminate offense,
inasmuch as its nature in relation to its objective is ambiguous, is not a
juridical fact from the standpoint of the Penal Code. There is no doubt
that in the case at bar it was the intention of the accused to enter Tan
Yu's store by means of violence, passing through the opening which he
had started to make on the wall, in order to commit an offense which,
due to the timely arrival of policeman Tomambing, did not develop
beyond the first steps of its execution. But it is not sufficient, for the
purpose of imposing penal sanction, that an act objectively performed
constitute a mere beginning of execution; it is necessary to establish its
unavoidable connection, like the logical and natural relation of the cause
and its effect, with the deed which, upon its consummation, will develop
into one of the offenses defined and punished by the Code; it is
necessary to prove that said beginning of execution, if carried to its
complete termination following its natural course, without being
frustrated by external obstacles nor by the voluntary desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense.
Thus, in case of robbery, in order that the simple act of entering by
means of force or violence another person's dwelling may be considered
an attempt to commit this offense, it must be shown that the offender
clearly intended to take possession, for the purpose of gain, of some
personal property belonging to another. In the instant case, there is
nothing in the record from which such purpose of the accused may
reasonably be inferred. From the fact established and stated in the
decision, that the accused on the day in question was making an
opening by means of an iron bar on the wall of Tan Yu's store, it may
only be inferred as a logical conclusion that his evident intention was to
enter by means of force said store against the will of its owner. That his
final objective, once he succeeded in entering the store, was to rob, to
cause physical injury to the inmates, or to commit any other offense,
there is nothing in the record to justify a concrete finding.1avvphil.et
It must be borne in mind (I Groizard, p. 99) that in offenses not
consummated, as the material damage is wanting, the nature
of the action intended (accion fin) cannot exactly be
ascertained, but the same must be inferred from the nature of
the acts executed (accion medio). Hence, the necessity that
these acts be such that by their very nature, by the facts to
which they are related, by the circumstances of the persons
performing the same, and by the things connected therewith,
they must show without any doubt, that they are aimed at the
consummation of a crime. Acts susceptible of double
interpretation , that is, in favor as well as against the culprit,
and which show an innocent as well as a punishable act, must
not and can not furnish grounds by themselves for attempted
nor frustrated crimes. The relation existing between the facts
submitted for appreciation and the offense which said facts
are supposed to produce must be direct; the intention must be
ascertained from the facts and therefore it is necessary, in
order to avoid regrettable instances of injustice, that the mind
be able to directly infer from them the intention of the
perpetrator to cause a particular injury. This must have been
the intention of the legislator in requiring that in order for an
attempt to exist, the offender must commence the commission
of the felony directly by overt acts, that is to say, that the acts
performed must be such that, without the intent to commit an
offense, they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt
acts leading to the commission of the offense, are not punished except
when they are aimed directly to its execution, and therefore they must
have an immediate and necessary relation to the offense."
Considering says the Supreme Court of Spain in its
decision of March 21, 1892 that in order to declare that
such and such overt acts constitute an attempted offense it is
necessary that their objective be known and established, or
that said acts be of such nature that they themselves should
obviously disclose the criminal objective necessarily intended,
 said objective and finality to serve as ground for the
designation of the offense: . . . .

In view of the foregoing, we are of the opinion, and so hold that the fact
under consideration does not constitute attempted robbery but
attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil.,
606, and decisions of the Supreme Court of Spain therein cited). Under
article 280 of the Revised Penal Code, this offense is committed when
a private person shall enter the dwelling of another against the latter's
will. The accused may be convicted and sentenced for an attempt to
commit this offense in accordance with the evidence and the following
allegation contained in the information: "... the accused armed with an
iron bar forced the wall of said store by breaking a board and unfastening
another for the purpose of entering said store ... and that the accused
did not succeed in entering the store due to the presence of the
policeman on beat Jose Tomambing, who upon hearing the noise
produced by the breaking of the wall, promptly approached the accused
... ." Under the circumstances of this case the prohibition of the owner
or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31
Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615;
U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against
the accused must be taken into consideration the aggravating
circumstances of nighttime and former convictions, inasmuch as the
G.R. No. 33463 December 18, 1930
record shows that several final judgments for robbery and theft have
been rendered against him and in his favor, the mitigating
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
circumstance of lack of instruction. The breaking of the wall should not
vs.
be taken into consideration as an aggravating circumstance inasmuch
BASILIO BORINAGA, defendant-appellant.
as this is the very fact which in this case constitutes the offense of
attempted trespass to dwelling.
Paulo Jaro for appellant.
Attorney-General Jaranilla for appellee.
The penalty provided by the Revised Penal Code for the consummated
offense of trespass to dwelling, if committed with force, is prision
correccional in its medium and maximum periods and a fine not
exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding
MALCOM, J.:
to attempted trespass to dwelling is to degrees lower (art. 51), or, arresto
mayor in its minimum and medium periods. Because of the presence of
Sometime prior to March 4, 1929, an American by the name of Harry H.
two aggravating circumstances and one mitigating circumstance the
Mooney, a resident of the municipality of Calubian, Leyte, contracted
penalty must be imposed in its maximum period. Pursuant to article 29
with one Juan Lawaan for the construction of a fish corral. Basilio
of the same Code, the accused is not entitled to credit for one-half of his
Borinaga was associated with Lawaan in the construction of the corral.
preventive imprisonment.
On the morning of March 4, 1929, Lawaan, with some of his men, went
to Mooney's shop and tried to collect from him the whole amount fixed
Wherefore, the sentence appealed from is revoked and the accused is
by the contract, notwithstanding that only about two-thirds of the fish
hereby held guilty of attempted trespass to dwelling, committed by
corral had been finished. As was to be expected, Mooney refused to pay
means of force, with the aforesaid aggravating and mitigating
the price agreed upon at that time. On hearing this reply of Mooney,
circumstances and sentenced to three months and one day of arresto
Lawaan warned him that if he did not pay, something would happen to
mayor, with the accessory penalties thereof and to pay the costs.
him, to which Mooney answered that if they wanted to do something to
him they should wait until after breakfast, Lawaan then left with his men,
Avancea, C.J., Abad Santos, Hull, and Vickers, JJ., concur.
and Mooney, after partaking of his morning meal, returned to his shop.

On the evening of the same day, Mooney was in the store of a neighbor
by the name of Perpetua Najarro. He had taken a seat on a chair in front
of the Perpetua, his back being to the window. Mooney had not been
there long when Perpetua saw Basilio Borinaga from the window strike
with a knife at Mooney, but fortunately for the latter, the knife lodged in
the back of the chair on which Mooney was seated. Mooney fell from the
chair as a result of the force of the blow, but was not injured. Borinaga
ran away towards the market place. Before this occurred, it should be
stated that Borinaga had been heard to tell a companion: "I will stab this
Mooney, who is an American brute." After the attack, Borinaga was also
heard to say that he did not hit the back of Mooney but only the back of
the chair. But Borinaga was persistent in his endeavor, and hardly ten
minutes after the first attack, he returned, knife in hand, to renew it, but
was unable to do so because Mooney and Perpetua were then on their
guard and turned a flashlight on Borinaga, frightening him away. Again
the same night, Borinaga was overheard stating that he had missed his
mark and was unable to give another blow because of the flashlight. The
point of the knife was subsequently, on examination of the chair, found
embedded in it.
The foregoing occurrences gave rise to the prosecution of Basilio
Borinaga in the Court of First Instance of Leyte for the crime of frustrated
murder. The defense was alibi, which was not given credence. The
accused was convicted as charged, by Judge Ortiz, who sentenced him
to fourteen years, eight months, and one day of imprisonment, reclusion
temporal, with the accessory penalties and the costs.
The homicidal intent of the accused was plainly evidenced. The
attendant circumstances conclusively establish that murder was in the
heart and mind of the accused. More than mere menaces took place.
The aggressor stated his purpose, which was to kill, and apologized to
his friends for not accomplishing that purpose. A deadly weapon was
used. The blow was directed treacherously toward vital organs of the
victim. The means used were entirely suitable for accomplishment. The
crime should, therefore, be qualified as murder because of the presence
of the circumstance of treachery.
The only debatable question, not referred to in the briefs, but which must
be decided in order to dispose of the appeal, is: Do the facts constitute
frustrated murder or attempted murder within the meaning of article 3 of
the Penal Code? Although no exact counterpart to the facts at bar has
been found either in Spanish or Philippine jurisprudence, a majority of
the court answer the question propounded by stating that the crime
committed was that of frustrated murder. This is true notwithstanding the
admitted fact that Mooney was not injured in the least.
The essential condition of a frustrated crime, that the author perform all
the acts of execution, attended the attack. Nothing remained to be done
to accomplish the work of the assailant completely. The cause resulting
in the failure of the attack arose by reason of forces independent of the
will of the perpetrator. The assailant voluntarily desisted from further
acts. What is known as the subjective phase of the criminal act was
passed. (U. S. vs. Eduave [1917], 36 Phil., 209; People vs. Mabugat
[1926], 51 Phil., 967.)
No superfine distinctions need be drawn in favor of that accused to
establish a lesser crime than that of frustrated murder, for the facts
disclose a wanton disregard of the sanctity of human life fully meriting
the penalty imposed in the trial court.
Based on foregoing considerations, the judgment appealed from will be
affirmed, with the costs of this instance against the appellant.
Avancea, C.J., Villamor, Ostrand, Johns and Romualdez, JJ.,
concur.lawphi1>net
Separate Opinions
VILLA-REAL, J., dissenting:
We dissent from the opinion of the majority in so far as it finds the
defendant-appellant guilty of the crime of frustrated murder instead of
that of an attempt to commit murder.
Article 3 of the Penal Code provides as follows:
ART. 3. Frustrated felonies and attempts to commit felonies
are punishable, as well as those which are consummated.
A felony is frustrated when the offender performs all the acts
of execution which should produce the felony as a
consequence, but which, nevertheless, do no produce it by
reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the
commission of the felony directly by overt acts, and does not
perform all the acts of execution which constitute the felony
by reason of some cause or accident other than his own
voluntary desistance.
The pertinent facts as found by the court below and by this court are the
following:
On the evening of the same day, Mooney was in the store of a neighbor
by the name of Perpetua Najarro. He had taken a seat on a chair in front
of Perpetua, his back being to the window. Mooney had not been there
long when Perpetua saw Basilio Borinaga from the window strike with a
knife at Mooney, but fortunately for the latter, the knife lodged in the back
of the chair on which Mooney was seated. Mooney fell from the chair as
a result of the force of the blow, but was not injured. Borinaga ran away
towards the market place. Before this occurred, it should be stated that
Borinaga had been heard to tell a companion: "I will stab this Mooney,
who is an American brute." After the attack, Borinaga was also heard to
say that he did not hit the back of Mooney but only the back of the chair.
But Borinaga was persistent in his endeavor, and hardly ten minutes
after the first attack, he returned, knife in hand, to renew it, but was
unable to do so because Mooney and Perpetua were then on their guard
and turned a flashlight on Borinaga, frightening him away. Again that
same night, Borinaga was overheard stating that he had missed his
mark and was unable to give another blow because of the flashlight. The
point of the knife was subsequently, on examination of the chair, found
embedded in it.
Since the facts constituting frustrated felony and those constituting an
attempt to commit felony are integral parts of those constituting
consummated felony, it becomes important to know what facts would
have been necessary in order that the case at bar might have been a
consummated murder, so that we may determine whether the facts
proved during the trial constitute frustrated murder or simply an attempt
to commit murder.
frustrated felony, according to the law, and not the preventing of the
performance of all the acts of execution which constitute the felony, as
in the present case. The interference of the frame of the back of the chair
which prevented the defendant-appellant from wounding Mooney in the
back with a deadly knife, made his acts constitute an attempt to commit
murder; for he had commenced the commission of the felony directly by
overt acts, and did not perform all the acts of execution which constitute
the felony by reason of a cause or accident other than his own voluntary
desistance.
The foregoing considerations force us to the conclusion that the facts
alleged in the information and proved during the trial are not sufficient to
constitute the crime of frustrated murder, but simply the crime of an
attempt to commit murder.
Johnson and Street, JJ., concur.

In order that the crime committed by the defendant-appellant might have

been a consummated murder it would have been necessary for him to
have inflicted a deadly wound upon a vital spot of the body of Mooney,
with treachery, as a result of which he should have died.

Since according to the definition given by the Code a frustrated felony is

committed "when the offender performs all the acts of execution which
should produce the felony as a consequence, but which, nevertheless,
do not produce it by reason of causes independent of the will of the
perpetrator" let us examine the facts of record to find out whether the
said defendant-appellant has performed all the acts of execution which
should produce the murder of Mooney as a consequence. The prisoner
at bar, intending to kill Mooney, approached him stealthily from behind
and made movement with his right hand to strike him in the back with a
deadly knife, but the blow, instead of reaching the spot intended, landed
on the frame of the back of the chair on which Mooney was sitting at the
time and did not cause the slightest physical injury on the latter. The acts
of execution performed by the defendant-appellant did not produce the
death of Mooney as a consequence nor could they have produced it
because the blow did not reach his body; therefore the culprit did not
perform all the acts of execution which should produce the felony. There
was lacking the infliction of the deadly wound upon a vital spot of the
body of Mooney.

It is true that the frame of the back of the chair stood between the deadly
knife and the back of Mooney; but what it prevented was the wounding
of said Mooney in the back and not his death, had he been wounded. It
is the preventing of death by causes independent of the will of the
perpetrator, after all the acts of execution which should produce the
felony as a consequence had been performed, that constitutes
 Meynardo M. Farol and Feliciano Gomez for appellants.
Acting Solicitor-General Pea for appellee.

DIAZ, J.:

On November 10, 1932, the herein appellants Felipe Kalalo, Marcelo

Kalalo, Juan Kalalo, and Gregorio Ramos, were tried in the Court of First
Instance of Batangas jointly with Alejandro Garcia, Fausta Abrenica and
Alipia Abrenica in criminal cases Nos. 6858, 6859 and 6860, the first two
for murder, and the last for frustrated murder. Upon agreement of the
parties said three cases were tried together and after the presentation
of their respective evidence, the said court acquitted Alejandro Garcia,
Fausta Abrenica and Alipia Abrenica, and sentenced the appellants as
follows:

In case No. 6858, for the alleged murder of Marcelino Panaligan, to

seventeen years, four months and one day of reclusion temporal, with
the corresponding accessory penalties, and to indemnify the heirs of the
said deceased Marcelino Panaligan in the sum of P1,000, with the costs.

In case No. 6859, for the alleged murder of Arcadio Holgado, to

seventeen years, four months and one day of reclusion temporal, with
the corresponding accessory penalties, and to indemnify the heirs of the
aforesaid victim, the deceased Arcadio Holgado, in the sum of P1,000,
with the costs.

In the third case, that is, No. 6860, wherein the court a quo held that the
crime committed was simply that of discharge of firearm, not frustrated
murder, the appellant Marcelo Kalalo was sentenced to one year, eight
months and twenty-one days of prision correccional and to pay the
proportionate part of the costs of the proceedings. Felipe Kalalo and
Juan Kalalo, as well as their co-accused Fausta and Alipia Abrenica,
Gregorio Ramos and Alejandro Garcia, were acquitted of the charges
therein.

The accused in the aforesaid three cases appealed from their respective
sentences assigning six alleged errors as committed by the trial court,
all of which may be discussed jointly in view of the fact that they raise
only one question, to wit: whether or not said sentences are in
accordance with law.

A careful study and examination of the evidence presented disclose the

following facts: Prior to October 1, 1932, the date of the commission of
the three crimes alleged in the three informations which gave rise to the
aforesaid three cases Nos. 6858, 6859 and 6860, the appellant Marcelo
G.R. Nos. L-39303-39305 March 17, 1934
Kalalo or Calalo and Isabela Holgado or Olgado, the latter being the
sister of the deceased Arcadio Holgado and a cousin of the other
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffs-appellee,
deceased Marcelino Panaligan, had a litigation over a parcel of land
vs.
situated in the barrio of Calumpang of the municipality of San Luis,
FELIPE KALALO, ET AL., defendants.
Province of Batangas. On September 28, 1931, and again on December
FELIPE KALALO, MARCELO KALALO, JUAN KALALO, and
8th of the same year, Marcelo Kalalo filed a complaint against the said
GREGORIO RAMOS, appellants.
woman in the Court of First Instance of Batangas. By virtue of a motion
filed by his opponent Isabela Holgado, his first complaint was dismissed
on December 7, 1931, and his second complaint was likewise dismissed
on February 5, 1932. Marcelo Kalalo cultivated the land in question
during the agricultural years 1931 and 1932, but when harvest time
came Isabela Holgado reaped all that had been planted thereon.
On October 1, 1932, Isabela Holgado and her brother Arcadio Holgado,
one of the deceased, decided to order the aforesaid land plowed, and
employed several laborers for that purpose. These men, together with
Arcadio Holgado, went to the said land early that day, but Marcelo
Kalalo, who had been informed thereof, proceeded to the place
accompanied by his brothers Felipe and Juan Kalalo, his brother-in-law
Gregorio Ramos and by Alejandro Garcia, who were later followed by
Fausta Abrenica and Alipia Abrenica, mother and aunt, respectively, of
the first three.
The first five were all armed with bolos. Upon their arrival at the said
land, they ordered those who were plowing it by request of Isabela and
Arcadio Holgado, to stop, which they did in view of the threatening
attitude of those who gave them said order.1vvphi1.ne+
Shortly after nine o'clock on the morning of the same day, Isabela
Holgado, Maria Gutierrez and Hilarion Holgado arrived at the place with
food for the laborers. Before the men resumed their work, they were
given their food and not long after they had finished eating, Marcelino
Panaligan, cousin of said Isabela and Arcadio, likewise arrived. Having
been informed of the cause of the suspension of the work, Marcelino
Panaligan ordered said Arcadio and the other laborers to again hitch
their respective carabaos to continue the work already began. At this
juncture, the appellant Marcelo Kalalo approached Arcadio, while the
appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos, in turn,
approached Marcelino Panaligan. At a remark from Fausta Abrenica,
mother of the Kalalos, about as follows, "what is detaining you?" they all
simultaneously struck with their bolos, the appellant Marcelo Kalalo
slashing Arcadio Holgado, while the appellants Felipe Kalalo, Juan
Kalalo and Gregorio Ramos slashed Marcelino Panaligan, inflicting
upon them the wounds enumerated and described in the medical
certificates Exhibits I and H. Arcadio Holgado and Marcelino Panaligan
died instantly from the wounds received by them in the presence of
Isabela Holgado and Maria Gutierrez, not to mention the accused. The
plowmen hired by Arcadio and Isabela all ran away.
Arcadio Holgado's body bore the following six wounds, to wit:
1. A cut wound on the ulnar side of right arm near the wrist,
cutting the ulnar bone completely and, the radius partially.
2. A cut wound on the anterior upper portion of the left arm
measuring about 7 cm. long and 5 cm. wide extending to the
bone and cutting the deltoid muscle across.
3. A penetrating wound on the left chest just below the clavicle
going thru the first intercostal space measuring about 8 cm.
long and 2 cm wide.
4. A wound on the left side of the back about 20 cm. long
following the 10th intercostal space and injuring the lung,
diaphragm, stomach and large intestine.
5. A small superficial cut wound about 2 cm. long and cm.
wide situated on the inner side of the right scapula.
6. A superficial wound barely cutting the skin, about 4 cm. long
in the lumbar region just to the right of the spinal column.
(Exhibit I.)
Marcelino Panaligan's body, in turn, bore the following fourteen wounds,
to wit:
1. A penetrating cut wound in the epigastric region of the
abdomen measuring about 7 cm. long and 3 cm. wide cutting
the omentum and injuring the lower portion of the stomach
and a portion of the transverse colon, but no actual perforation
of either one of the two organs.
2. A cut wound on the head just above the forehead about 6
cm. long and 4 cm. wide lifting a portion of scalp as a flap.
3. A cut wound on the left side of the head measuring about 7
cm. long and 2 cm. wide.
4. A cut wound about 12 cm. long across the face just below
the eyes extending from one cheek bone to the other,
perforating the left antrum and cutting the nasal bone.
5. A cut wound on the anterior portion of the left forearm
extending to the bone with a flap of skin and muscle which
measures about 12 cm long and 6 cm. wide.
6. A cut wound across the dorsal side of the right hand about
5 cm. long and 2 cm. wide cutting the bones of the hand.
7. A superficial wound about 6 cm. long and 4 cm. wide and 2
cm. deep situated in the left axilla.
8. A cut wound about 6 cm. long and 2 cm. wide situated over
the left scapula.
9. A cut wound on the right shoulder about 6 cm. long passing
near the inner angle of the scapula cutting the muscles of the
shoulder.
 10. A cut wound about 7 cm. long and 3 cm. wide situated
near and almost parallel to the inner border of the right
scapula.
11. A wound on the back of the head, oval in shape, about 10
cm. long and 5 cm. wide from which a flap of scalp was
removed.
12. A wound across the back and left side of the neck about
12 cm. long and 7 cm. deep cutting the vertebral column
together with the great arteries and veins on the left side of
the neck.
13. A wound about 15 cm. long and 4 cm. wide on the left side
of the back.
14. A small wound on the left thumb from which a portion of
the bone and other tissues were removed. (Exhibit H.)
The above detailed description of the wounds just enumerated discloses
and there is nothing of record to contradict it all of them were caused
by a sharp instrument or instruments.
After Arcadio Holgado and Marcelino Panaligan had fallen to the ground
dead, the appellant Marcelo Kalalo took from its holster on the belt of
Panaligans' body, the revolver which the deceased carried, and fired
four shots at Hilarion Holgado who was then fleeing from the scene
inorder to save his own life.
The appellants attempted to prove that the fight, which resulted in the
death of the two deceased, was provoked by Marcelino Panaligan who
fired a shot at Marcelo Kalalo upon seeing the latter's determination to
prevent Arcadio Holgado and his men from plowing the land in question.
No such firing, however, can be taken into consideration, in the first
place, because of the existence of competent evidence such as the
testimony of Maria Gutierrez, who is a disinterested witness, which
corroborates that of Isabela Holgado in all its details, showing that the
said deceased was already lying prostrate and lifeless on the ground
when the appellant Marcelo Kalalo approached him to take his revolver
for the purpose of using it, as he in fact did, against Hilarion Holgado; in
the second place, because the assault and aggression of the said
appellant were not directed against said Marcelino Panaligan but
exclusively against Arcadio Holgado, the evidence of record on this point
being overwhelming, and if his claim were true, he naturally should have
directed his attack at the person who openly made an attempt against
his life; in the third place, because the evidence shows without question
that Panaligan was an expert shot with a revolver, and among the eight
wounds that the appellant Marcelo Kalalo received (Exhibit 3), not one
appears to have been caused by bullet, and similarly, none of the other
appellants received any wound that might, in any way, suggest the
possibility of having been caused by bullet; and finally, because the fact
that he and his co-appellants, together with those who had been charged
jointly with them, had gone to the place of the crime armed with bolos,
determined at any cost to prevent the Holgados from plowing the land in
dispute, cannot but disclose not only their determination to resort to
violence or something worse, but that they did not need any provocation
in order to carry out their intent.
They likewise attempted to prove that the appellant Marcelo Kalalo alone
fought against the deceased Marcelino Panaligan and Arcadio Holgado
and inflicted upon them the wounds which resulted in their death, said
appellant testifying that he was compelled to do so in defense of his own
life because both of the deceased attacked him first, the former with a
revolver, firing three shots at him, and the latter with a bolo. For the same
reasons hereinbefore stated, such defense of the appellants cannot be
given credit. One man alone could not have inflicted on the two
deceased their multiple wounds, particularly when it is borne in mind that
one of them was better armed, because he carried a revolver, and that
he was furthermore an expert shot and scarcely two arm-lengths from
Kalalo, according to the latter's own testimony. The two witnesses for
the defense, who witnessed the crime very closely, refuted such
allegation saying that Marcelo Kalalo alone fought the deceased Arcadio
Holgado and that the other three appellants went after the other
deceased. It is true that Arcadio Holgado also used his bolo to defend
himself from Marcelo Kalalo's aggression but it is no less true that five
of the principal wounds of the other deceased Marcelino Panaligan were
inflicted on him from behind, inasmuch as according to Exhibit H they
were all found at the back of the head, on the neck and on his back.
Neither is it less true that all the wounds of the appellant Marcelo Kalalo
were inflicted on him from the front, which fact shows that it was not he
alone who inflicted the wounds on the two deceased because had he
been alone Panaligan would not have exposed his back to be thus
attacked from behind, inasmuch as he was armed with a revolver, which
circumstance undoubtedly allowed him to keep at a distance from
Kalalo; and in connection with the testimony of Isabela Holgado and
Maria Gutierrez, said circumstance shows furthermore that the three
appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos attacked
said Panaligan with their respective bolos at the same time that Marcelo
Kalalo attacked Arcadio Holgado, in order that all might act
simultaneously in conformity with the common intent of the four and of
their coaccused to eliminate through violence and at any cost, without
much risk to them, all those who wanted to plow the land which was the
cause of the dispute between the two parties. And it is not strange that
the three appellants, who inflicted the wounds upon Marcelino
Panaligan, should act as they did, because they knew that the latter
carried a revolver in a holster on his belt.
Although it may seem a repetition or redundancy, it should be stated that
Marcelo Kalalo's allegation that he acted in self-defense is absolutely
unfounded on the ground that, were it true that the deceased Marcelino
Panaligan succeeded in using his revolver, he would have wounded if
not the said appellant, at least the other appellants.
The trial court has acted correctly in not giving credit to the testimony of
the appellants Juan and Felipe Kalalo and Gregorio Ramos that they
proceeded to the scene of the crime completely unarmed, with the
exception that one of them had a brush in his hand and the other a plane,
after Marcelino Panaligan and Arcadio Holgado had already expired,
which is incredible and improbable under the circumstances, knowing,
as in fact they then knew, that their brother Marcelo Kalalo had been
attacked by armed men. This court cannot help but agree with the
decision of the lower court where it states:
It is improbable that after having been informed that their
brother was engaged in a fight, they went to the scene of the
crime, one merely armed with a plane and the other with a
brush. It is improbable that Felipe Kalalo also went to that
place simply to follow Juan Kalalo and Gregorio Ramos upon
seeing them run unarmed in that direction. These
improbabilities of the defenses of the accused, in the face of
the positive and clear testimony of the eyewitnesses pointing
to the said accused as the aggressors of the deceased
Marcelino Panaligan and Arcadio Holgado, cannot, of course,
prevail against nor detract from the weight of the evidence of
the prosecution, particularly taking into consideration the
numerous wounds of each of the deceased and the positions
thereof, which show that the said deceased were attacked by
several persons and that those several persons were the
defendants. Furthermore, the established fact that after the
commission of the crime the said defendants had been in
hiding in order to avoid arrest, is corroborative evidence of
their guilt.
It certainly is a fact of record that the said three appellants Felipe Kalalo,
Juan Kalalo and Gregorio Ramos were not arrested until after several
days, because they had been hiding or, at least, absenting themselves
from their homes.
That the four appellants should all be held liable for the death of the two
deceased leaves no room for doubt. All of them, in going to the land
where the killing took place, were actuated by the same motive which
was to get rid of all those who might insist on plowing the land which
they believed belonged to one of them, that is, to Marcelo Kalalo, a fact
naturally inferable from the circumstance that all of them went there fully
armed and that they simultaneously acted after they had been instigated
by their mother with the words hereinbefore stated, to wit: "What is
detaining you?"
The question now to be decided is whether the appellants are guilty of
murder or of simple homicide in each of cases G.R. No. L-39303 and
G.R. No. L-39304. The Attorney-General maintains that they are guilty
of murder in view of the presence of the qualifying circumstance of
abuse of superior strength in the commission of the acts to which the
said two cases particularly refer. The trial court was of the opinion that
they are guilty of simple homicide but with the aggravating circumstance
of abuse of superior strength.
It is true that under article 248 of the Revised Penal Code, which defines
murder, the circumstance of "abuse of superior strength", if proven to
have been presented, raises homicide to the category of murder; but this
court is of the opinion that said circumstance may not properly be taken
into consideration in the two cases at bar, either as a qualifying or as a
generic circumstance, if it is borne in mind that the deceased were also
armed, one of them with a bolo, and the other with a revolver. The risk
was even for the contending parties and their strength was almost
balanced because there is no doubt but that, under circumstances
similar to those of the present case, a revolver is as effective as, if not
more than three bolos. For this reason, this court is of the opinion that
the acts established in cases Nos. 6858 and 6859 (G.R. Nos. L-39303
and 39304, respectively), merely constitute two homicides, with no
modifying circumstance to be taken into consideration because none
has been proved.
As to case No. 6860 (G.R. No. 39305), the evidence shows that Marcelo
Kalalo fired four successive shots at Hilarion Holgado while the latter
was fleeing from the scene of the crime in order to be out of reach of the
appellants and their companions and save his own life. The fact that the
said appellant, not having contended himself with firing only once, fired
said successive shots at Hilarion Holgado, added to the circumstance
that immediately before doing so he and his co-appellants had already
killed Arcadio Holgado and Marcelino Panaligan, cousin and brother-in-
law, respectively, of the former, shows that he was then bent on killing
said Hilarion Holgado. He performed everything necessary on his pat to
commit the crime that he determined to commit but he failed by reason
of causes independent of his will, either because of his poor aim or
because his intended victim succeeded in dodging the shots, none of
which found its mark. The acts thus committed by the said appellant
Marcelo Kalalo constitute attempted homicide with no modifying
circumstance to be taken into consideration, because none has been
established.
Wherefore, the three appealed sentences are hereby modified as
follows:
In case No. 6858, or G.R. No. 39303, the court finds that the crime
committed by the appellants is homicide and they hereby sentenced to
fourteen years, eight months and one day of reclusion temporal each, to
jointly and severally indemnify the heirs of Marcelino Panaligan in the
sum of P1,000 and to pay the proportionate part of the costs of the
proceedings of both instances; and by virtue of the provisions of Act No.
4103, the minimum of the said penalty of reclusion temporal is hereby
fixed at nine years;
In case No. 6859, or G.R. No. 39304, the court likewise finds that the
crime committed by the appellants is homicide, and they are hereby
sentenced to fourteen years, eight months and one day of reclusion
temporal each, to jointly and severally indemnify the heirs of Arcadio
Holgado in the sum of P1,000 and to pay the proportionate part of the
costs of both instances; and in conformity with the provisions of Act No.
4103, the minimum of the penalty of reclusion temporal herein imposed
upon them is hereby fixed at nine years;

In case No. 6860, or G.R. No. 39305, the court finds that the crime
committed by the appellant Marcelo Kalalo is attempted homicide, and
he is hereby sentenced to two years, four months and one day of prision
correccional, it being understood that by virtue of the provisions of said
Act No. 4103, the minimum of this penalty is six months, and he is
furthermore sentenced to pay the costs of the appeal in this case.

In all other respects, the appealed sentences in the said three cases are
hereby affirmed without prejudice to crediting the appellants therein with
one-half of the time during which they have undergone preventive
imprisonment, in accordance with article 29 of the Revised Penal Code.
So ordered.

Street, Abad Santos, Hull, and Butte, JJ., concur.

G.R. No. 79123-25 January 9, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EMELIANO TRINIDAD, accused-appellant.

The Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for accused-appellant.


MELENCIO-HERRERA, J.:
On the sole issue that the adduced evidence is insufficient to prove his
guilt beyond reasonable doubt of two crimes of Murder and one of
Frustrated Murder with which he has been charged, accused Emeliano
Trinidad appeals from the judgment of the Regional Trial Court, Branch
7, Bayugan, Agusan del Sur.
From the testimony of the principal witness, Ricardo TAN, the
prosecution presents the following factual version:
The deceased victim, Lolito Soriano, was a fish dealer based in Davao
City. His helpers were TAN, a driver, and the other deceased victim
Marcial LAROA. On 19 January 1983, using a Ford Fiera, they arrived
at Butuan City to sell fish. In the morning of 20 January 1983 SORIANO
drove the Fiera to Buenavista, Agusan del Norte, together with LAROA
and a helper of one Samuel Comendador. TAN was left behind in
Butuan City to dispose of the fish left at the Langihan market. He
followed SORIANO and LAROA, however, to Buenavista later in the
morning.
While at Buenavista, accused Emeliano TRINIDAD, a member of the
Integrated National Police, assigned at Nasipit Police Station, and
residing at Baan, Butuan City, asked for a ride to Bayugan, Agusan del
Sur, which is on the way to Davao City. TRINIDAD was in uniform and
had two firearms, a carbine, and the other, a side-arm .38 caliber
revolver. SORIANO, LAROA, TAN, and TRINIDAD then left Butuan on
20 January 1983 at about 5:20 P.M. bound for Davao City. TAN was
driving the Fiera. Seated to his right was SORIANO, LAROA and the
accused TRINIDAD, in that order. When they reached the stretch
between El Rio and Afga, TRINIDAD advised them to drive slowly
because, according to him, the place was dangerous. All of a sudden,
TAN heard two gunshots. SORIANO and LAROA slumped dead. TAN
did not actually see the shooting of LAROA but he witnessed the
shooting of SORIANO having been alerted by the sound of the first
gunfire. Both were hit on the head. TRINIDAD had used his carbine in
killing the two victims.
TAN then hurriedly got off the Fiera, ran towards the direction of Butuan
City and hid himself in the bushes. The Fiera was still running slowly
then but after about seven (7) to ten (10) meters it came to a halt after
hitting the muddy side of the road. TAN heard a shot emanating from the
Fiera while he was hiding in the bushes.
After about twenty (20) to thirty (30) minutes, when a passenger jeep
passed by, TAN hailed it and rode on the front seat. After a short interval
of time, he noticed that TRINIDAD was seated at the back. Apparently
noticing TAN as well, TRINIDAD ordered him to get out and to approach
him (TRINIDAD) but, instead, TAN moved backward and ran around the
jeep followed by TRINIDAD. When the jeep started to drive away, TAN
clung to its side. TRINIDAD fired two shots, one of which hit TAN on his
right thigh. As another passenger jeep passed by, TAN jumped from the
first jeep and ran to the second. However, the passengers in the latter
jeep told him to get out not wanting to get involved in the affray. Pushed
out, TAN crawled until a member of the P.C. chanced upon him and
helped him board a bus for Butuan City.
TRINIDAD's defense revolved around denial and alibi. He contended
that he was in Cagayan de Oro City on the date of the incident, 20
January 1983. At that time, he was assigned as a policeman at Nasipit
Police Station, Agusan del Norte. He reported to his post on 19 January
1983 but asked permission from his Station Commander to be relieved
from work the next day, 20 January, as it was his birthday. He left Baan,
his Butuan City residence, at about 3:00 P.M. on 20 January 1983 and
took a bus bound for Cagayan de Oro City. He arrived at Cagayan de
Oro at around 8:00 P.M. and proceeded to his sister's house at Camp
Alagar to get his subsistence allowance, as his sister was working
thereat in the Finance Section.
At his sister's house he saw Sgt. Caalim, Mrs. Andoy, one Paelmo, in
addition to his sister. Sgt. Caalim corroborated having seen TRINIDAD
then.
Continuing, TRINIDAD claimed that he left Cagayan de Oro for Butuan
at lunch time on 21 January 1983 arriving at the latter place around 6:00
P.M., and went to his house directly to get his service carbine. He was
on his way to Nasipit to report for duty on 21 January 1983 when he was
arrested at around 6:00 P.M. at Buenavista, Agusan del Norte.
After joint trial on the merits and unimpressed by the defense by the Trial
Court** sentenced the accused in an "Omnibus Decision", thus:
WHEREFORE PREMISES CONSIDERED, this
Court finds Emeliano Trinidad GUILTY beyond
reasonable doubt of the crimes of Murder and
Frustrated Murder.
In the Frustrated Murder, there being no mitigating
circumstance, and taking into account the
provisions of the Indeterminate Sentence Law,
accused Trinidad is meted out a penalty of:
1) 8 years and 1 day to 12 years of prision
mayor medium;
2) to indemnify the complainant the amount of P
5,000.00; and
3) to pay the costs.
Likewise, in the two murder cases, Trinidad is
accordingly sentenced:
 1) to a penalty of Reclusion Perpetua in each case; Q Now,
what time
2) to indemnify the heirs of Marcial Laroa and Lolito did you
Soriano the amount of P30,000.00 each; and leave for
Buenavist
3) to pay the cost. (p. 14, RTC Decision, p. 28, a from
Rollo). Langihan
?
Before us now, TRINIDAD claims that the Trial Court erred in giving full
faith and credit to TAN's testimony who, TRINIDAD alleges, was an A It was
unreliable witness. That is not so. more or
less at
We find no variance in the statement made by TAN before the 6:00 to
NAPOLCOM Hearing Officer that when TRINIDAD boarded the Fiera in 7:00
Buenavista, he (TAN) was not in the vehicle, and that made in open o'clock.
Court when he said that he was with TRINIDAD going to Butuan City on
board the Fiera. For the facts disclose that when TRINIDAD boarded the Q You
Fiera in Buenavista, TAN was still in Langihan distributing fish. The Fiera were
left for Buenavista, driven by SORIANO between 6:00 to 7:00 A.M., riding the
while TAN followed only at 11:00, A.M. in another vehicle. So that when fish car
TRINIDAD boarded the Fiera in Buenavista, TAN was not yet in that which you
vehicle although on the return trip from Butuan City to Davao City, TAN said?
was already on board. In fact, TAN was the one driving. TAN's testimony
clarifying this point reads: A I was
not able
Q Did you to take
not say in the fish
your car in
direct going to
examinati Buenavist
on that a
you went because
to they left
Buenavist me fishes
a, Agusan to be
del dispatche
Norte? d yet.

A We Q In other
were in words,
Langihan you did
and since not go to
our fishes Buenavist
were not a on
consume January
d there, 20, 1983?
we went
to A I was
Buenavist able to go
a. to
Buenavist
a after the
fishes A Lolito
were Soriano
consume and
d. Marcia
Laroa
Q What with his
time did helper.
you go to
Buenavist xxxxxx
a?
Q Now,
A It was when this
more or fish car
less from returned
11:00 to Butuan
o'clock City who
noon. drove it?

Q What A Lolito
transport Soriano.
ation did
you take? Q Were
you with
A I just the fish
took a car in
ride with going
another back to
fish car Langihan
because ?
they were
also going A Yes, sir.
to (T.S.N.,
dispatch Decembe
fishes in r 6, 1985,
Buenavist pp. 53-
a. 54).

Q Now, Felimon Comendador, also a fish vendor, and a resident of Butuan City,
who then testified that he saw TRINIDAD riding in the Fiera on the front seat in the
went to company of TAN, SORIANO and LAROA, when the Fiera stopped by
Buenavist his house at Butuan City (TSN, November 5, 1985, pp. 32-33).
a with the
fish car at The other inconsistencies TRINIDAD makes much of, such as, that TAN
about was unsure before the NAPOLCOM Hearing Officer whether TRINIDAD
7:00 was wearing khaki or fatigue uniform but, in open Court, he testified
o'clock in positively that TRINIDAD was in khaki uniform; and that while TAN
the declared that TRINIDAD was wearing a cap, prosecution witness
morning Felimon Comendador said that he was not but was in complete fatigue
of uniform, are actually trivial details that do not affect the positive
January identification of TRINIDAD that TAN has made nor detract from the
20, 1983? latter's overall credibility.
Nor is there basis for TRINIDAD to contend that the absence of Trinidad,
gunpowder burns on the deceased victims negates TAN's claim that sir.
they were shot "point-blank." Actually, this term refers merely to the "aim
directed straight toward a target" (Webster's Third New International Q Are you
Dictionary) and has no reference to the distance between the gun and referring
the target. And in point of fact, it matters not how far the assailant was to
at the time he shot the victims, the crucial factor being whether he did accused
shoot the victim or not. Emeliano
Trinidad
TRINIDAD's defense of alibi is inherently weak and cannot prevail over whom you
the straightforward and detailed descriptive narration of TAN, thus: pointed to
the court
Q Now, awhile
from ago?
Butuan
City, A Yes, sir.
where did
you Q Will you
proceed? tell the
Court how
A We did
proceede Emeliano
d to Trinidad
Davao. holdup
you?
Q Did you
in fact A When
reach we reach
Davao on between
that date? El Rio and
Afga,
A No, sir. Trinidad
advised
Q Could us to run
you tell slowly
the Court because
why you this place
failed to is
reach dangerou
Davao? s. Then
suddenly
A there
Because were two
we were gun
held-up. bursts.

Q Who Q Now,
held-up you heard
you? two gun
bursts.
A What
Emeliano happened
? What Laroa but
did you since I
see if was
there was already
any? alerted by
the first
A I have burst, I
found out have
that Lolito seen that
Soriano it was
and Trinidad
Marcial who shot
Laroa Soriano.
already
fall. Q What
was the
Q Fall firearm
dead? used?

A They A
were Carbine,
dead sir.
because
they were xxxxxx
hit at the
head. Q Now,
after you
Q You saw that
mean to the two
inform the fell dead,
Court that what did
these two you do?
died
because A I got out
of that from the
gun shot Ford
bursts? Fiera
while it
A Yes, sir. was
running.
Q Did you
actually xxxxxx
see
Trinidad Q From
shooting the place
the two? where
you were
A I did not because
see that it you said
was really you ran,
Trinidad what
who shot
transpired go back to
next? Butuan,
Then, I
A I hid boarded
myself at the jeep
the side of and sat at
the jeep, the front
at the seat but I
bushes. found out
that
Q While Emeliano
hiding Trinidad
yourself was at the
at the back seat.
bushes,
what Q When
transpired you found
? out that
Trinidad
A I heard was at the
one gun back,
burst. what
happened
Q From ?
what
direction A He
was that ordered
gun me to get
bursts out.
you
heard? Q Now,
when you
A From got down,
the Ford what
Fiera, sir. happened
?
Q After
that, what A When I
happened got out
? from the
jeep,
A At Trinidad
around 20 also got
to 30 out.
minutes, I
moved Q Tell the
out from Court,
the place what
where I happened
hid myself after you
because I and
wanted to Trinidad
got out A The
from the driver
jeep? drove the
jeep.
A He
called me Q Now,
because after that,
he what did
wanted you do?
me to get
near him. A I ran
after the
Q What jeep and
did you then I was
do? able to
take the
A I moved jeep at
backward the side of
. it.

'Q Now, Q How

what did about
Trinidad Trinidad,
do? where
was he at
A He that time?
followed
me. A He also
ran, sir.
Q While
Trinidad Q Now,
followed when
you, what Trinidad
happened ran after
? you what
happened
A I ran ?
away
around A Trinidad
the jeep. was able
to
Q Now, catchup
while you with the
were jeep and
running fired his
around gun.
the jeep,
what Q Were
happened you hit?
?
A At that
time I did
not know and
that I was stood-up
hit at the
because it middle of
was the road
sudden. so that I
can catch
Q When up the
for the other
first time jeep.'
did you (TSN,
notice Decembe
that you r 6, 1985,
were hit? pp. 44-49)

A At the TAN's testimony remained unshaken even during cross- examination.

second No ill motive has been attributed to him to prevaricate the truth. He was
jeep. in the vehicle where the killing transpired was a witness to the actual
happening, and was a victim himself who managed narrowly to escape
Q You death despite the weaponry with which TRINIDAD was equipped.
mean to
inform the The defense is correct, however, in contending that in the Frustrated
Court that Murder case, TRINIDAD can only be convicted of Attempted Murder.
the jeep TRINIDAD had commenced the commission of the felony directly by
you first overt acts but was unable to perform all the acts of execution which
rode is would have produced it by reason of causes other than his spontaneous
not the desistance, such as, that the jeep to which TAN was clinging was in
very motion, and there was a spare tire which shielded the other parts of his
same body. Moreover, the wound on his thigh was not fatal and the doctrinal
jeep that rule is that where the wound inflicted on the victim is not sufficient to
you took cause his death, the crime is only Attempted Murder, the accused not
for the having performed all the acts of execution that would have brought about
second death (People vs. Phones, L-32754-5, July 21, 1978, 84 SCRA 167;
time? People vs. Garcia, L-40106, March 13, 1980, 96 SCRA 497).

A No, sir. But while the circumstances do spell out the two crimes of Murder, the
penalty will have to be modified. For, with the abolition of capital
Q Now, punishment in the 1987 Constitution, the penalty for Murder is
when you now reclusion temporal in its maximum period to reclusion
have perpetua (People vs. Lopez, et al. G.R. No. 71876-76, January 25, 1988
notice citing People vs. Gavarra, No. L-37673, October 30, 1987; People vs.
that you Masangkay, G.R. No. 73461, October 27, 1987). With no attending
were hit, mitigating or aggravating circumstance, said penalty is imposable in its
what did medium period or from eighteen (18) years, eight (8) months and one
you do? (1) day to twenty (20) years. The penalty next lower in degree for
purposes of the Indeterminate Sentence Law is prision mayor,
A At the maximum, to reclusion temporal, medium, or from ten (10) years and
first jeep one (1) day to seventeen (17) years and four (4) months (Article 61,
that I took parag. 3, Revised Penal Code).
I was hit,
so I got WHEREFORE, the guilt of the accused Emeliano Trinidad for the crimes
out from it of Murder (on two counts) and Attempted Murder, having been proven
beyond reasonable doubt, his conviction is hereby AFFIRMED and he
is hereby sentenced as follows:
1) In each of Criminal Cases Nos. 79123-24 (Nos.
96 and 99 below) for Murder, he shall suffer the
indeterminate penalty of ten (10) years and one (1)
day of prision mayor, as minimum, to eighteen (18)
years, eight (8) months and one (1) day of reclusion
temporal, as maximum; to indemnify the heirs of
Marcial Laroa and Lolito Soriano, respectively, in
the amount of P30,000.00 each; and to pay the
costs.
2) In Criminal Case No. 79125 (No. 100 below) for
Frustrated Murder, he is hereby found guilty only of
Attempted Murder and sentenced to an
indeterminate penalty of six (6) months and one (1)
day of prision correccional, as minimum, to six (6)
years and one (1) day of prision mayor, as
maximum; to indemnify Ricardo Tan in the sum of
P5,000,00; and to pay the costs.
SO ORDERED.
Paras, Padilla, Sarmiento and Regalado, JJ., concur.
G.R. No. 168827 April 13, 2007
BENJAMIN P. MARTINEZ, Petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
CALLEJO, SR., J.:
This is a Petition for Review on Certiorari of the Decision1 and the
Resolution2 of the Court of Appeals (CA) in CA-G.R. CR No. 25436,
affirming with modification the trial courts judgment finding Benjamin P.
Martinez guilty beyond reasonable doubt of frustrated homicide.
The Antecedents
Dean Dongui-is was a teacher at the Tubao National High School, La
Union. Petitioner Benjamin Martinez was the husband of Deans co-
teacher, Lilibeth Martinez. Petitioner eked out a living as a tricycle driver.
On October 28, 1998, Dean and his wife Freda filed a complaint for
damages against the spouses Martinez in the Municipal Circuit Trial
Court (MCTC) of Tubao, La Union. They alleged that in March 1998,
petitioner, a suitor of Elvisa Basallo, had been peddling false reports that
Dean and Elvisa had illicit relations; he even told Freda that Elvisa was
Deans mistress. This led to a quarrel between Dean and Freda, and the
latter was hospitalized for her heart ailment. Dean requested Lilibeth to
stop her husband from spreading lies, and she replied that Elvisa had
been her husbands mistress. They prayed that they be awarded moral
and exemplary damages and litigation fees in the total amount
of P100,000.00.3 The case was docketed as Civil Case No. 226.
For her part, Elvisa also filed a complaint against the spouses Martinez
in the MCTC of Tubao for damages anchored on Article 26 of the New
Civil Code. She alleged that on several occasions, petitioner went to the
Shaltene Pawnshop and Pharmacy where she was employed and
accused her of having an illicit affair with Dean; on one occasion, he held
her hand and forcibly pulled her outside, which caused her to scratch his
face and run after him with a knife; he also told her husbands cousin,
Willy Ordanza, that she had an illicit affair with Dean; Willy, in turn, told
her mother-in-law about it; petitioner relayed the same rumors to her co-
worker, Melba Dacanay, and his wife spread to people in the
Municipality, including Ramil Basallo, her brother-in-law. Elvisa also
prayed for damages in the total amount of P100,000.00. The case was
docketed as Civil Case No. 227.4
The spouses Martinez filed a motion to dismiss the complaint in Civil
Case No. 226 which was heard in the morning of February 3, 1999. The
court denied the motion.
At about 1:40 p.m. that day, Dean went to the Tubao Credit Cooperative
(TCC) office to pick up the dividend certificate of his wife who was a
member of the cooperative. He left the building and walked to his car
which was parked in front. As he did, he read the dividend certificate of
his wife. Dean was about a step away from an L-300 van which was
parked in front of the building when petitioner, armed with a bolo,
suddenly emerged from behind the vehicle and stabbed him on the left
breast. Dean instantly moved backward and saw his assailant. Dean fled
to the bank office and was able to gain entry into the bank. Petitioner ran
after him and upon cornering him, tried to stab him again. Dean was able
to parry the blow with his right hand, and the bolo hit him on the right
elbow. Dean fell to the floor and tried to stand up, but petitioner stabbed
him anew on his left breast.5 Dean managed to run to the counter which
was partitioned by a glass. Unable to get inside the counter, petitioner
shouted at Dean: "Agparentomeng ka tatta ta talaga nga patayen ka
tatta nga aldawen (You kneel down because I will really kill you now this
6
day)."
Meantime, SPO1 Henry Sulatre was at the Tubao Police Station, about
100 meters away. He was informed that a fight was going on in the bank.
He rushed to the place on board the police car. When he arrived at the
scene, he saw Barangay Captain Rodolfo Oller and his son Nicky
Oller.7 Nicky handed to him the bolo which petitioner had used to stab
Dean.8 He and Rodolfo brought petitioner to the police station. On the
way, they passed by the loading area of tricycles, about 40 meters away
from the police station. Petitioner shouted: "Sinaksak kon pare,
sangsangaili laeng isuna saan isuna to agari ditoy Tubao (I stabbed him,
he is just a visitor so he should not act like a king here in Tubao)." SPO1
Sulatre placed Benjamin in jail. Benjamin kept on shouting: "Napatay
kon, napatay kon (I killed him, I killed him)."9
In the meantime, PO3 Valenzuela brought Dean to the Doa Gregoria
Memorial Hospital in Agoo, La Union. The victim was transferred to the
Ilocos Regional Hospital (IRH) in San Fernando, La Union where Dean
was examined and operated on by Dr. Nathaniel Rimando, with the
assistance of Dr. Darius Parias.10 Dean sustained two stab wounds in
the anterior chest, left, and a lacerated wound in the right elbow,
forearm. Had it not been for the blood clot that formed in the stab wound
on the left ventricle that prevented the heart from bleeding excessively,
Dean would have died from profuse bleeding.11
On February 7, 1999, Dean gave a sworn statement to SPO1
12
Sulatre. However, he deferred swearing to the truth of his statement
before the Public Prosecution because SPO1 Sulatre was waiting for the
permanent medical certificate to be issued by the hospital. SPO1 Sulatre
deferred the execution and submission of an arrest report also pending
the issuance of the medical certificate.
Instead of issuing a permanent medical certificate, the IRH issued on
February 8, 1999 the following Temporary Certificate:
TO WHOM IT MAY CONCERN:
According to hospital record, DEAN N. DONGUI-IS, 30 years old, male,
married, a resident of Francia West, Tubao, La Union, was
examined/treated/confined in this hospital on/from February 3-20, 1999.
WITH THE FOLLOWING FINDINGS AND DIAGNOSIS:
Stab Wound (L) Chest with Hemothorax (L), (L) Ventricular
Perforation;
OPERATIONS:
Exploratory Thoracotomy (L); Evacuation of Retained Blood Clots;
Ventriculorrhaphy Decortication 2/11/99
and would need medical attendance for more than thirty (30) days
barring complications.13
On March 10, 1999, SPO1 Sulatre filed a criminal complaint for
frustrated murder against petitioner in the MCTC.14 The MCTC opted not
to act on the crime pending the arrest report and SPO1 Sulatres
submission of Deans sworn statement.
The IRH issued a medical certificate on February 28, 1999, stating that
Deans wounds would need medical attendance of more than 30
days.15 Barangay Captain Oller and SPO1 Sulatre executed an affidavit
on petitioners arrest.16 Dean had his affidavit sworn before the Public
Prosecutor on March 30, 1999.
On September 13, 2000 the Provincial Prosecutor of La Union indicted
Benjamin for frustrated murder before the Regional Trial Court (RTC),
Branch 31, of the same province. The accusatory portion of the
Information reads:
That on or about the 3rd day of February 1999, in the Municipality of
Tubao, Province of La Union, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, with intent to kill, and
with treachery and evident premeditation, being then armed with a small
pointed bolo, did then and there willfully, unlawfully and feloniously
attack, assault and stab one DEAN DONGUI-IS y Manalo, hitting him on
his left breast and right elbow, and thereby inflicting on him injuries that
would have produced the crime of Murder as a consequence but which
nevertheless, did not produce it by reason of causes independent of the
will of the accused, mainly the timely rendition of medical assistance of
on the said offended party, which prevented his death, to his damage
and prejudice.
CONTRARY TO LAW.17
On October 13, 2000, the accused, assisted by counsel, was arraigned
and entered a plea of not guilty.
The Case for Petitioner
Petitioner declared that he merely defended himself against Deans
assault. Dean was so jealous of him because his mistress, Elvisa, had
also been his mistress. Unknown to Dean, he had already terminated
his relation with Elvisa sometime in March 1997 when his wife Lilibeth
18
discovered the illicit relationship. Dean also suspected that he
(petitioner) had been sending letters to his (Deans) wife relative to the
illicit relationship with Elvisa. Dean also suspected that he was
responsible for the raid conducted by the Criminal Investigation Service
19
(CIS) of his house for possession of a gun. As a result, Dean filed a
civil complaint against him for damages, docketed as Civil Case No. 266.
Before and after the filing of the civil case, Dean had hurled invectives
at him in the presence of Joselito Madriaga and other tricycle
drivers.20 Dean even attempted to sideswipe him with his car.21
Petitioner declared that the criminal charge against him was Deans
concoction, and intended solely to harass him. He narrated that he went
to the TCC office at about 1:30 p.m. on February 3, 1999. His wife had
earlier received a note from the cooperative to get the interest on her
deposit.22 He parked his tricycle in front of the building on the left side of
the railing going to the entrance of the cooperative. Deans car was
23
parked on the right side of the railing.24 On his way, he met his 82-year-
old uncle, Godofredo Sarmiento, who was also on his way to the
cooperative to update his passbook because he was intending to apply
for a loan.25 He told Godofredo that they could go to the TCC together.
When they were about to pass through the entrance door, Dean was
about to exit from the cooperative. Dean thought that he was blocking
his way and shouted invectives at him and his uncle; Dean also spat on
his breast and face; and threw a punch which he was able to parry with
his left elbow.26 Dean kept attacking him, forcing him to move backward
through the railing and towards his tricycle. Dean punched him again but
he managed to parry the blow with his bolo which he took from his
tricycle. He stabbed Dean on his right elbow.27 He swung his bolo at
Dean which forced the latter to run back into the office. He entered the
office and stood by the entrance door to see if Dean would get a weapon.
Dean continued hurling invectives at him but was later pacified by
Patricio Alterado, an employee of the cooperative. 28 When Barangay
Captain Oller arrived, he surrendered, along with his bolo. 29 He never
boasted on the way to the police station that he had killed Dean. 30
Godofredo partially corroborated the testimony of petitioner. He
31
declared that Dean spat on the face of petitioner. By the time Dean and
petitioner reached the place where the latters tricycle was parked, he
had left; he was afraid of being involved.32 He did not report the incident
to the police authorities.
Joselito Madriaga testified that he and petitioner were bosom buddies
with a long history of friendship. Dean had an axe to grind against
petitioner because the two maintained a common mistress, Elvisa. 33
The Trial Courts Decision
On April 30, 2001, the trial court rendered judgment34 convicting
petitioner of frustrated homicide. The fallo of the decision reads
WHEREFORE, this Court, after a consideration of the evidence
adduced in this case, finds accused BENJAMIN MARTINEZ guilty of the
crime of Frustrated Homicide as principal. Neither aggravating
circumstance nor mitigating circumstance has been appreciated.
Applying the Indeterminate Sentence Law, accused Benjamin Martinez
is sentenced to suffer the penalty of imprisonment ranging from FOUR
(4) YEARS OF PRISION CORRECTIONAL MEDIUM as minimum to
EIGHT (8) YEARS and ONE (1) DAY OF PRISION MAYOR MEDIUM
as maximum. He is also ordered to pay DEAN DONGUI-IS the amount
of ONE HUNDRED FIFTY THOUSAND (P150,000.00) PESOS, broken
into the following:
(a) Ninety-Two Thousand (P92,000.00) Pesos for medical
expenses;
(b) Twenty-Six Thousand (P26,000.00) Pesos, representing
his salaries for two (2) months when he could not attend to
teach due to his injuries;
(c) Twenty-Two Thousand (P22,000.00) Pesos as moral
damages; and
(d) Ten Thousand (P10,000.00) Pesos as complainants
attorneys fees.
SO ORDERED.35
The trial court gave credence and full probative weight to the testimony
of Dean, Dr. Rimando, SPO1 Sulatre, and the documentary evidence of
the prosecution. The court rejected petitioners twin defenses of denial
and self-defense. It declared that his version lacked strong
corroboration, and that his witnesses (a close relative and a friend) were
biased.
Finding that the prosecution failed to prove the qualifying circumstances
of treachery, the trial court convicted petitioner of frustrated homicide.
The court declared that the crime involved a "love triangle," 36 and
considered the protagonists history of personal animosity. There was
no evident premeditation because Dean had been "forewarned" of the
attack.37
On appeal before the CA, petitioner raised the following issues:
I. THE TRIAL COURT COMMITTED SERIOUS ERRORS WHEN IT
WRONGFULLY GAVE CREDENCE TO THE FABRICATED CLAIMS
OF THE SOLE WITNESS FOR THE PROSECUTION.
II. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT
WRONGFULLY GAVE CREDENCE TO THE FALSE AND SPECIOUS
TESTIMONY OF THE COMPLAINANT.
III. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT
CONVICTED THE ACCUSED FOR FRUSTRATED HOMICIDE FOR
INJURIES NOT ATTESTED BY ANY COMPETENT MEDICAL
CERTIFICATE.
IV. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT
CONVICTED THE ACCUSED FOR FRUSTRATED HOMICIDE
WITHOUT ANY PROOF BEYOND REASONABLE DOUBT.
V. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT
DISREGARDED THE CONCLUSIVE EVIDENCE FOR THE DEFENSE
WHICH COMPLETELY NEGATED ANY PROOF FOR THE
PROSECUTION AND WHICH DEFINITELY WARRANTED THE
ACQUITTAL OF THE ACCUSED.38
Maintaining his innocence, petitioner claimed that he had merely acted
in self-defense when Dean insulted him, spat on his face and assaulted
him with fist blows on a mere suspicion that he (petitioner) was blocking
Deans way through the exit door of the cooperative.
The Decision of the Court of Appeals
On February 21, 2005, the CA rendered judgment affirming the assailed
decision of the RTC with modification. The fallo reads
WHEREFORE, the appealed Decision dated April 30, 2001 of the trial
court is affirmed, subject to the afforested modification of the minimum
period of the sentence. Loss of earnings in the amount of P26,000.00
and attorneys fees in the amount of P10,000.00 are deleted, and the
award of actual damages is increased to P92,715.68.
39
SO ORDERED.
The CA ruled that the case is more of a "retaliation" rather than a case
of self-defense. It declared that Dean sustained two fatal stab wounds
in his left chest, a fact which belied petitioners defense and confirmed
the prosecutions theory that he purposely and vigorously attacked the
victim. The CA ruled that when an unlawful aggression which has begun
no longer exists, the one making the defense has no more right to kill or
even wound the aggressor. The appellate court pointed out that in the
case before it, the supposed unlawful aggression of Dean ceased from
the moment he retreated inside the cooperative building; there was no
need for petitioner to follow Dean inside the building and stab him with
his bolo. Petitioner should have simply stood his ground and walked
away.
In discounting the qualifying circumstances of treachery and evident
premeditation, the CA simply adverted to the stipulation of facts
contained in the Pre-Trial Order dated December 20, 2000 issued by the
RTC, stating "[t]hat the accused stabbed the private complainant when
the latter assaulted and boxed him (accused)."40 Petitioners plea of
voluntary surrender was not appreciated in his favor. However, the
appellate court modified the minimum sentence imposed by the trial
court to four (4) years and two (2) months of prision correctional, as
minimum.
As to damages, the CA deleted the RTCs award of loss of earning
capacity and attorney fees, holding that they lack factual and legal basis.
It, however, increased the award of actual damages from P92,000.00
to P92,715.68 reasoning that latter amount was duly receipted. The CA
denied the appellants motion for reconsideration.41
Before this Court, petitioner assigns the following errors allegedly
committed by the CA
I. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET
ASIDE, AS THEY AROSE FROM MISAPPREHENSION OF FACTS
THAT PROVE THAT THE PROCEEDINGS AND THE FINDINGS
MADE IN THE DECISION OF THE TRIAL COURT AS WELL AS IN THE
ASSAILED DECISION ITSELF, WERE BASED ON A FALSE CHARGE
WHICH IS PATENTLY FABRICATED BY A POLICE INVESTIGATOR
AND WHICH COMPRISES MALICIOUS PROSECUTION.
II. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET
ASIDE, AS THEY ARE BASED ON THE FABRICATED STATEMENT
AS WELL AS ON THE SOLE, SELF-SERVING, CONTRADICTORY
AND UNCORROBORATED TESTIMONY OF THE COMPLAINANT,
WHICH ARE MANIFESTLY CONCOCTED AND CANNOT ESTABLISH
THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT.
III. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SE[T]
ASIDE, AS THERE IS TOTAL ABSENCE OF EVIDENCE TO PROVE
THE VACUOS CHARGE AS WELL AS THE SAID DECISION AND
RESOLUTION, FOR WHICH REASON THE GUILT OF THE ACCUSED
WAS NOT DULY PROVED BEYOND REASONABLE DOUBT[.]
IV. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET
ASIDE, AS THE SAME WERE RENDERED IN ALL GRAVE ABUSE OF
DISCRETION AND IN TOTAL DISREGARD OF THE COMPETENT
AND UNREBUTTED TESTIMONY FOR THE DEFENSE, WHICH
NEGATE ANY REASONABLE DOUBT ON THE GUILT OF THE
ACCUSED.
V. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET
ASIDE, AS THE INFERENCES MADE ON THE UNDISPUTED FACTS
ARE CONTRARY TO LAW AND JURISPRUDENCE AND CANNOT
JUSTIFY ANY FINDING OF ANY PROOF BEYOND REASONABLE
DOUBT.42
Petitioner insists that the criminal complaint filed by SPO1 Sulatre was
a fabrication because the latter never conducted a formal investigation
of the stabbing incident or of any witness to the incident. The police
officer filed the criminal complaint against petitioner on the basis of a
sworn statement by Dean which was taken only on March 10, 1999, long
after the criminal complaint was filed in the MCTC. Worse, when he
testified on cross-examination, Dean admitted that he did not see the
questions prepared by SPO1 Sulatre at the hospital, nor his answers to
the policemans questions. The affidavit dated March 10, 1999 was not
typewritten in the hospital, and he was not present when the affidavit
was typewritten in the police station. Thus, the testimony of the victim
was self-serving and uncorroborated, tailored solely to support the
charge filed by SPO1 Sulatre.
In its comment on the petition, respondent, through the Office of the
Solicitor General (OSG), avers that the issues raised by petitioner are
factual, hence, inappropriate in a petition for review on certiorari in this
Court.
The OSG maintains that the Revised Rules of Criminal Procedure does
not require that the affidavit of the offended party or the witnesses to the
crime charged be appended to the criminal complaint filed in court.
Moreover, the issue of the validity of the criminal complaint in the MCTC
had became moot and academic after the Information was filed in the
trial court, and when petitioner was arraigned, assisted by counsel, and
entered a plea of not guilty.
It insists that Deans testimony, by itself, is sufficient to warrant the
conviction of petitioner for frustrated homicide. Petitioners conviction
may be anchored on Deans testimony since the trial court found it
credible and entitled to full probative weight. Petitioner failed to prove
his plea of self-defense by clear and convincing evidence.
The Courts Decision
The petition is denied for lack of merit.
Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal
Procedure43 provide:
Sec. 3. Procedure. The preliminary investigation shall be conducted in
the following manner:
(a) The complaint shall state the address of the respondent
and shall be accompanied by the affidavits of the complainant
and his witnesses, as well as other supporting documents to
establish probable cause. They shall be in such number of
copies as there are respondents, plus two (2) copies for the
official file. The affidavits shall be subscribed and sworn to
before any prosecutor or government official authorized to
administer oath, or, in their absence or unavailability, before a
notary public, each of whom must certify that he personally
examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the
investigating officer shall either dismiss it if he finds no ground
to continue with the investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint and its
supporting affidavits and documents.
It bears stressing that the officer conducting the preliminary investigation
has to determine whether to dismiss the complaint outright based on the
averments of the complaint and the appendages thereof if it finds no
ground to continue with the investigation. If he finds ground to continue
with the investigation of the accused, a subpoena should be issued to
the accused, appending thereto a copy of the complaint and the
supporting affidavits. Unless the affidavits of the witnesses named in the
complaint and supporting documents are appended to the complaint, the
investigating officer may not be able to determine whether to dismiss the
complaint outright or to conduct an investigation and issue a subpoena
to the accused.44
We agree with petitioner that the criminal complaint filed by SPO1
Sulatre with the MCTC on March 10, 1999 was defective. As gleaned
from the RTC records, the criminal complaint was not accompanied by
any medical certificate showing the nature and number of wounds
sustained by the victim, the affidavits of any of the witnesses listed at
the bottom of the criminal complaint (particularly the victim himself), and
the arrest report of SPO1 Sulatre, Brgy. Capt. Rodolfo Oller, and his son
Nicky.
The MCTC had the option not to act one way or the other on the criminal
complaint of SPO1 Sulatre because the latter failed to comply with
Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal
Procedure; or to order SPO1 Sulatre to comply with the aforequoted
rule; or to dismiss the complaint without prejudice to its refiling with the
requisite documents. However, the MCTC opted not to act on the
complaint until after SPO1 Sulatre shall have submitted the requisite
affidavits/medical certificate/arrest report. When SPO1 Sulatre filed with
the MCTC, on March 10, 1999, the permanent medical certificate issued
by the IRH, the affidavit of Dean and his and Brgy. Capt. Ollers affidavit
of arrest of petitioner, the MCTC forthwith issued a subpoena to
petitioner appending thereto the said medical certificate, affidavit of
Dean and the affidavit of arrest of SPO1 Sulatre.45 Hence, SPO1 Sulatre
had complied with Section 3(a) and (b), Rule 112 of the Revised Rules
of Criminal Procedure.
Moreover, petitioner submitted his counter-affidavit without any protest.
Neither did he assail the validity of the criminal complaint or the tardy
submission by SPO1 Sulatre of the medical certificate, the affidavit of
Dean and the affidavit of arrest of SPO1 Sulatre. Aside from this,
petitioner was arraigned in the RTC, assisted by counsel, and entered a
plea of not guilty.
On the second issue, the rulings of the trial court and the appellate court
are correct. Whether or not petitioner acted in self-defense whether
complete or incomplete is a question of fact, 46 the well-entrenched rule
is that findings of fact of the trial court in the ascertainment of the
credibility of witnesses and the probative weight of the evidence on
record affirmed, on appeal, by the CA are accorded high respect, if not
conclusive effect, by the Court and in the absence of any justifiable
reason to deviate from the said findings.47
In this case, the trial court gave no credence and probative weight to the
evidence of petitioner to prove that he acted in self-defense, complete
or incomplete. Petitioner failed to establish that the trial court and the
appellate court misconstrued, misappropriated or ignored facts and
circumstances of substance which, if considered, would warrant a
modification or reversal of the decision of the CA that petitioner failed to
establish clear and convincing evidence that he acted in self-defense,
complete or incomplete.
Like alibi, petitioners claim of self-defense is weak; it is also settled that
self-defense is easy to fabricate and difficult to disprove. Such a plea is
48
both a confession and avoidance. One who invokes self-defense,
complete or incomplete, thereby admits having killed the victim by
inflicting injuries on him. The burden of evidence is shifted on the
accused to prove the confluence of the essential elements for the
defense as provided in Article 11, paragraph 1 of the Revised Penal
Code:
x x x (1) unlawful aggression; (2) reasonable necessity of the means
employed to prevent or repel it; and (3) lack of sufficient provocation on
49
the part of the person defending himself. x x x
The accused must rely on the strength of his own evidence and not on
the weakness of that of the prosecution because even if the evidence of
the prosecution is weak, the same can no longer be disbelieved. 50 The
accused cannot escape conviction if he fails to prove the essential
elements of complete self-defense.
In Garcia v. People,51 the Court defined unlawful aggression:
x x x Unlawful aggression presupposes an actual, sudden and
unexpected or imminent danger on the life and limb of a person a mere
threatening or intimidating attitude is not sufficient. There must be actual
physical force or a threat to inflict physical injury. In case of a threat, it
must be offensive and positively strong so as to display a real, not
imagined, intent to cause injury. Aggression, if not continuous, does not
constitute, aggression warranting self-defense.52
Aggression, if not continuous, does not constitute aggression warranting
self-defense.53 When unlawful aggression ceases, the defender no
longer has any justification to kill or wound the original aggressor. The
assailant is no longer acting in self-defense but in retaliation against the
54
original aggressor.
There can be no self-defense, complete or incomplete, unless the
accused proves unlawful aggression on the part of the victim.55 Unlawful
aggression is a sudden and unexpected attack or an imminent danger
thereof, and not merely a threatening or an intimidating attitude.56
Petitioner failed to discharge his burden.
First. Petitioner failed to surrender himself to the responding
authorities who arrived at the situs criminis, as well as the bolo
he used in stabbing the victim. One who acted in self-defense
is expected to surrender, not only himself, but also the
weapon he used to kill or inflict physical injuries on the
victim.57
Second. The victim sustained three stab wounds on different
parts of his body. Two were fatal stab wounds at his left chest.
The presence of a large number of wounds on the part of the
victim, their nature and location disprove self-defense and
instead indicate a determined effort to kill the victim.58
Third. Petitioner testified that he was punched by the victim.
However, there is not a scintilla of evidence to show that
petitioner suffered even a scratch as a result of the alleged fist
blows.
Neither can the RTC nor the CA be faulted for giving credence to the
testimony of SPO1 Salutre. No evidence was adduced by the defense
to show that he harbored any ill-motive against petitioner to charge him
with such a crime. Absent any proof of improper motive, the prosecution
witness who is law enforcer is presumed to have regularly performed his
duty in arresting and charging petitioner.59 His testimony is thus entitled
to full faith and credit. Moreover, the conviction of petitioner was not
based solely on the testimony of the SPO1 Salutre. The unimpeached
testimony of Dean categorically established the crime; this was
corroborated by the testimony of Dr. Nathaniel Rimando.
Petitioners argument that he should be acquitted because the criminal
complaint against him was not supported by the victims sworn
statement or by an affidavit of any witness is totally untenable. This issue
should have been raised during the preliminary investigation. It is much
too late in the day to complain about this issue after a judgment of
conviction has been rendered against him.
Contrary to petitioners stance, the testimonies of his corroborating
witnesses are unimpressive. For one, Godofredos testimony was
limited only to the alleged fact that happened outside of the cooperative
building. He himself admitted that when the protagonists started fighting
each other, for fear for his life, he hurriedly flagged and boarded a
tricycle which revved up to the highway; it was from there that he saw
petitioner slumped on his tricycle. In other words, he did not witness
what transpired thereafter or how the fight ended.
Joselitos testimony did not fare any better. It was given neither credence
nor weight by the trial court. And even if it had been proved that the
victim was rabid against petitioner, such evidence would only have
established a probability that he had indeed started an unlawful assault
on petitioner. This probability cannot, however, overcome the victims
positive statement that petitioner waylaid and assaulted him without any
provocation. The theory that Dean may have started the fight since he
had a score to settle against petitioner is flimsy, at best. Furthermore,
Joselito admitted that he was petitioners best friend; hence, his bias
cannot be discounted.
The Crime Committed by the Petitioner
Petitioner next argues that should he be convicted of any crime, it should
be of less serious physical injuries only, absence the element of intent
to kill. He advances the argument that the single wound suffered by the
victim was not life threatening and that the latter was transferred to
undergo operation in another hospital only because the medical staff
where he was first rushed bungled their job. He makes much of the fact
that Dr. Darius R. Parias who issued the Medical Certificate never
testified for the prosecution.
Again, the Court is not swayed.1a\^/phi1.net
If one inflicts physical injuries on another but the latter survives, the
crime committed is either consummated physical injuries, if the offender
had no intention to kill the victim or frustrated or attempted homicide or
frustrated murder or attempted murder if the offender intends to kill the
victim. Intent to kill may be proved by evidence of the following: (a)
motive; (b) the nature or number of weapons used in the commission of
the crime; (c) the nature and number of wounds inflicted on the victim;
(d) the manner the crime was committed; and (e) words uttered by the
offender at the time the injuries are inflicted by him on the victim. 60
Petitioner insists that he had no intent to kill Dean. However, the physical
evidence belies petitioners pose.
To begin with, as between petitioner and the victim, the former had more
hatred to harbor arising from the fact that the victim filed a lawsuit
against him and his wife. Petitioner thus had more motive to do harm
than the victim. By his own account, he and Dean had a history of
personal animosity.
Secondly, petitioner was armed with a deadly 14-inch bolo.
Thirdly, if it were true that petitioner stabbed Dean merely to defend
himself, it defies reason why he had to stab the victim three times.
Petitioners claim that Dean suffered only a single non-life threatening
wound is misleading. Dr. Rimando, who attended to and operated on
Dean, testified that the victim sustained three (3) stab wounds, two (2)
of which penetrated his heart and lung, causing massive blood clotting
necessitating operation; the other lacerated Deans his right elbow. The
presence of these wounds, their location and their seriousness would
not only negate self-defense; they likewise indicate a determined effort
to kill.61 Moreover, physical evidence is evidence of the highest order. It
speaks more eloquently than a hundred witnesses.62
Neither does the non-presentation of Dr. Darius R. Parias, the doctor
who signed the medical certificate, would dent a bit the evidence for the
prosecution. This is so because Dr. Parias, who assisted Dr. Rimaldo
during the operation of Dean, would merely corroborate Dr. Rimaldos
testimony. As such, his testimony is not indispensable.
Fourthly, from the manner the crime was committed, there can hardly be
any doubt that intent to kill was present. It has been clearly established
that petitioner ambushed Dean and struck him with a bolo. Dean was
defenseless and unarmed, while petitioner was deadly
armed.1vvphi1.nt
Lastly, the words of the petitioner while he was assaulting Dean were
most revealing:
Atty. Atitiw:
Q : When you were in the counter, what was accused
Benjamin doing?
A : When I was inside the counter and hes outside and
between us is a glass and there he shouting at me telling in
Ilocano that AGPARENTONG KA TATTA TA TALAGA NGA
PATAYEN KA TATTA NGA ALDAWEN "You kneel down
because I will really kill you now."63
xxxx
Atty. Atitiw:
Q : While passing through the loading area of the tricycle, do
you remember anything that transpired there at the loading
area?
A : Yes, Sir.
Q : What is that, Mr. Witness?
A : While Benjamin Martinez, Barangay Captain Oller and I
were walking proceeding to our Police Station and when we
were near the area, at the loading area if the tricycle,
Benjamin Martinez shouted and I quote: "SINAKSAK KON
PARE, SANGSANGAILI LAENG ISUNA SAAN NGA ISUNA
TI AGARI DITOY TUBAO," that was the utterance, Sir.64
xxxx
Q : After bringing him to the Police Station, what did you do
next?
 A : We put him in jail, Sir.
Q : And while in jail do you remember whether accused
Benjamin Martinez did anything while in jail?
A : Yes, Sir.
Q : What is that, Mr. Witness?
A : He kept on shouting words, Sir.
Q : What are those words if you can remember?
A : He kept on shouting "NAPATAY KON, NAPATAY KON,"
Sir.65
Anent the allegation of negligence on the part of the medical staff of
Doa Gregoria Memorial Hospital where Dean was rushed, suffice it to
say that this is a new theory being foisted by petitioner. It was never
raised in the two courts below and thus it will not be entertained here. At
any rate, this allegation finds no support in the records of the case.
It cannot be denied that petitioner had the intention to kill Dean.
Petitioner performed all the acts of execution but the crime was not
consummated because of the timely medical intervention applied on the
victim.
An appeal in a criminal case opens the entire case for review on any
question including one not raised by the parties.66 In this regard, we find
ample evidence to establish treachery. The CAs advertence to the
stipulation of facts contained in the Pre-Trial Order dated December 20,
67
2000 is misplaced. This alleged stipulation was stricken off the record
on motion of the prosecution on the ground that no stipulation of such
fact was made.68
There is treachery when the offender commits any of the crimes against
the person, employing means, methods, or forms in the execution
thereof which tend directly and specially to insure its execution without
risk to himself arising from the defense which the offended party might
take.69
In the present case, the prosecution had met the requisites for alevosia
to be appreciated: (1) at the time of the attack the victim was not in a
position to defend himself; and (2) that the offender consciously adopted
the particular means, method, or form of the attack employed by
him.70 Dean lived to tell about the swiftness of the attempt against his
life:
Q : After getting the dividend certificate where did you proceed
next?
A : I went out from the bank, sir. I was able to go to school.
Q : Where you able to go to the school?
A : No, Sir.
Q : Why were you not able to reach the school?
A : Because I was suddenly stabbed by Benjamin Martinez.
Q : Where did Benjamin Martinez stab you?
A : In front of the bank, Sir.
Q : And how did Benjamin Martinez stab you?
A : I was about to go to my car, Sir. I was reading the dividend
certificate that I got from the bank but when I was about one
step away from the back of the L300 van that was parked in
front of the bank, I was suddenly stabbed by him.
Q : Where was Benjamin Martinez at that time when he was
stabbed you?
A : Probably he was hiding at the back of the L300 van, Sir.71
When Dean was attacked he was unarmed. He had just exited the
cooperative building and had no inkling that he would be waylaid as he
made his way towards his car. Upon the other hand, petitioner was
armed with a deadly 14-inch bolo. The attacked on Dean was swift and
unannounced; undeniably, petitioners attack was treacherous.
Petitioner is guilty of frustrated murder under Article 248 in relation to
Article 6, first paragraph of the Revised Penal Code which reads:
A felony is consummated when all the elements necessary for its
execution and accomplishment are present; and it is frustrated when the
offender performs all the acts of execution which would produce the
felony as a consequence but which, nevertheless, do not produce it by
reason of causes independent of the will of the perpetrator.
The essential elements of a frustrated felony are as follows:
1. The offender performs all the acts of execution;
2. All the acts performed would produce the felony as a
consequence;
3. But the felony is not produced;
4. By reason of causes independent of the will of the
perpetrator.72
A crime is frustrated when the offender has performed all the acts of
execution which should result in the consummation of the crime. The
offender has passed the subjective phase in the commission of the
crime. Subjectively, the crime is complete. Nothing interrupted the
offender while passing through the subjective phase. He did all that is
necessary to consummate the crime. However, the crime was not
consummated by reason of the intervention of causes independent of
the will of the offender. In homicide cases, the offender is said to have
performed all the acts of execution if the wound inflicted on the victim is
mortal and could cause the death of the victim barring medical
73
intervention or attendance.
The penalty for frustrated murder is one degree lower than reclusion
perpetua to death, which is reclusion temporal. 74 The latter penalty has
a range of 12 years and 1 day to 20 years. Applying the Indeterminate
Sentence Law, the maximum of the indeterminate penalty should be
taken from reclusion temporal, the penalty for the crime, taking into
account any modifying circumstances in its commission. The minimum
of the indeterminate penalty shall be taken from the full range of prision
mayor which is one degree lower than reclusion temporal. Since there
is no modifying circumstance in the commission of frustrated murder,
the appellants should be meted an indeterminate penalty of from nine
(9) years and four (4) months of prision mayor in its medium period as
minimum, to seventeen (17) years and four (4) months of reclusion
temporal in its medium period, as maximum.
Petitioner, likewise, insists that he voluntarily surrendered to Barangay
Captain Rodolfo Oller. He faults the trial and appellate courts for relying
on the prosecutions Affidavit of Arrest, arguing that the same is
inadmissible as hearsay, the affiants not having testified to affirm their
declarations.
For voluntary surrender to be appreciated, the following requisites
should be present: (1) the offender has not been actually arrested; (2)
the offender surrendered himself to a person in authority or the latters
agent; and (3) the surrender was voluntary. The surrender must be
spontaneous, made in such a manner that it shows the interest of the
accused to surrender unconditionally to the authorities, either because
he acknowledged his guilt or he wishes to save them the trouble and
expenses that would necessarily be incurred in the search and
capture.75
In the case at bar, SPO1 Salutre testified that petitioner did not
voluntarily surrender but was forcibly apprehended by Barangay Captain
Oller, and thereafter turned over to him. Petitioner however insists that
said testimony is hearsay inasmuch as SPO1 Salutre was not the person
who actually arrested him. We disagree. During SPO1 Salutres
testimony, petitioner failed to object to the questions propounded to
SPO1 Salutre regarding his apprehension. Consequently, he cannot
now claim that SPO1 Salutres testimony on the arrest was hearsay.
Petitioners assertion of having voluntarily surrendered to Barangay
Captain Oller was not corroborated by any competent and reliable
evidence. Considering the damning averments in the Affidavit of Arrest,
petitioner should have at least called Barangay Captain Oller to the
witness stand just to shed light on his alleged voluntary surrender.
We agree with the trial court that the qualifying circumstance of evident
premeditation has not been adequately shown. To properly appreciate
the same, it is necessary to establish: (1) the time when the offender
determined to commit the crime; (2) an act manifestly indicating that the
culprit has clung to this determination; and (3) a sufficient lapse of time
between the determination and the execution to allow him to reflect upon
the consequences of his act.76 Since there is dearth of evidence on
when petitioner first conceived of killing Dean and that he was afforded
sufficient time to reflect on the consequences of his contemplated crime
before its final execution, the circumstance of evident premeditation
cannot be appreciated.
Civil Liabilities of Petitioner
The trial court awarded Dean the amount of P92,000.00 representing
his hospitalization and medical expenses which was increased by the
CA to P92,715.68. To be entitled to actual damages, it is necessary to
prove the actual amount of loss with a reasonable degree of certainty,
premised upon competent proof and the best evidence obtainable to the
injured party.77 For Deans hospitalization and medical expenses, the
receipts submitted to support said claim amounted only to P56,275.48;
hence, Dean is entitled only to the said amount.
The Court awards exemplary damages in the amount of P25,000.00,
inasmuch as the qualifying circumstance of treachery attended the
commission of the crime. In People v. Catubig,78 we emphasized that
insofar as the civil aspect of the crime is concerned, exemplary damages
in the amount of P25,000.00 is recoverable if there is present an
aggravating circumstance, whether qualifying or ordinary, in the
commission of the crime.
The CA is correct in deleting Deans claim for lost salary while
recuperating, since this was not supported by evidence. However, the
trial courts award of P10,000.00 as attorneys fees should be reinstated,
Dean having hired a private prosecutor to prosecute his case.
Lastly, for the suffering Dean endured from petitioners felonious act, the
award of P22,000.00 moral damages is increased to P25,000.00, in
keeping with the latest jurisprudence.79
IN LIGHT OF ALL THE FOREGOING, the assailed Decision is hereby
AFFIRMED WITH MODIFICATION. Petitioner is hereby found guilty
beyond reasonable doubt of Frustrated Murder under Article 248 in
relation to Article 6, first paragraph of the Revised Penal Code and is
hereby sentenced to suffer an indeterminate penalty from nine (9) years
and four (4) months of prision mayor in its medium period, as minimum,
to seventeen (17) years and four (4) months of reclusion temporal in its
medium period, as maximum.
Petitioner is ordered to pay Dean Dongui-is the amount of P56,275.48
as actual damages; P25,000 as moral damages; P25,000.00 as
exemplary damages; and P10,000.00 as attorneys fees.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA. ALICIA AUSTRIA-

MINITA V. CHICO-NAZARIO
MARTINEZ
Asscociate Justice
Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in

consultation before the case was assigned to the writer of the opinion of
the Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice
 of First Instance of Iloilo found him guilty of the crime of attempted
homicide and sentenced him to an indeterminate prison term of from 4
months and 21 days of arresto mayor to 2 years, 4 months and 1 day
of prision correccional, with the accessory penalties of the law and the
costs. Mondragon appealed to the Court of Appeals, and the latter court
affirmed the decision of the Court of First Instance of Iloilo in all its parts,
with costs. This case is now before us on a petition for certiorari to
review the decision of the Court of Appeals. No brief for the respondent.
The People of the Philippines, was filed by the Solicitor General.

The pertinent portion of the decision of the Court of Appeals, which

embody the findings of fact and conclusion of said court, is as follows:

At about 5:00 in the afternoon of July 11, 1954, while complainant

Serapion Nacionales was opening the dike of his ricefield situated in
Antandan, Miagao, Iloilo, to drain the water therein and prepare the
ground for planting the next day, he heard a shout from afar telling him
not to open the dike, Nacionales continued opening the dike, and the
same voice shouted again, "Don't you dare open the dike." When he
looked up, he saw Isidoro Mondragon coming towards him. Nacionales
informed appellant that he was opening the dike because he would plant
the next morning. Without much ado, Mondragon tried to hit the
complainant who dodged the blow. Thereupon, appellant drew his bolo
and struck complainant on different parts of his body. Complainant
backed out, unsheathed his own bolo, and hacked appellant on the head
and forearm and between the middle and ring fingers in order to defend
himself. The appellant retreated, and the complainant did not pursue him
but went home instead. The following day, the complainant was treated
by Dr. Alfredo Jamandre, Municipal Health Officer of Miagao, Iloilo, for
the following lesions (Exhibit A):

"1. Incised wound about 2-1/2 inches long and 1/3 inches
deep cutting diagonally across the angle of the left jaw.

"2. Incised wound 1-1/2 inches long and cutting the bone
underneath (3/4 centimeters deep) below the right eye.

"3. Incised wound about 1 inch long at the lunar side of the left

G.R. No. L-17666 June 30, 1966 wrist.

ISIDORO MONDRAGON, petitioner, "4. Incised wound about 3-1/2 inches long and 1/2 inch deep

vs. at the left side of the lower part of the left arm.

THE PEOPLE OF THE PHILIPPINES, respondent.

"5. Incised wound about 1/2 inch long at the back of the left

Jose Gaton for petitioner. index, middle and ring fingers.

Assistant Solicitor General E. Umali and Solicitor N. P. Eduardo for

respondent. "6. Incised wound about 1 inch long of the palmar side of the
left thumb.

ZALDIVAR, J.:
"Barring complication the above lesions may heal

The petitioner, Isidoro Mondragon, was prosecuted in the Court of First from 20 to 25 days."

Instance of Iloilo of the crime of frustrated homicide. After trial the Court
 xxx xxx xxx
Also upon the evidence, the offense committed is attempted
homicide. Appellant's intention to kill may be inferred from his
admission made in court that he would do everything he could
to stop Nacionales from digging the canal because he needed
the water. However, it was established that the injuries
received by the complainant were not necessarily fatal as to
cause the death of said complainant.
The issue raised by the petitioner in the present appeal is that the Court
of Appeals erred in finding him guilty of the crime of attempted homicide
and not of the crime of less serious physical injuries. It is the contention
of the petitioner that the facts as found by the Court of Appeals do not
show that the petitioner had the intention to kill the offended
party.1wph1.t
There is merit in the contention of the petitioner. We have carefully
examined the record, and We find that the intention of the petitioner to
kill the offended party has not been conclusively shown. The finding of
the Court of Appeals that the petitioner had the intention to kill the
offended party is simply the result of an inference from an answer made
by the petitioner while testifying in his own behalf. Thus in the decision
appealed from, it stated:
x x x Appellant's intention to kill may be inferred from his
admission made in Court that he would do everything he could
to stop Nacionales from digging the canal because he needed
the water.
The facts as found by the Court of Appeals, in our opinion, do not
establish the intent to kill on the part of the petitioner. Rather, We gather
that what happened was that the petitioner and the offended party had
a quarrel over the matter regarding the opening of the canal which would
drain the water away from the land of the petitioner, and because of this
quarrel a fight between them took place. The fight started with the
petitioner first giving first blows to the offended party and later he drew
his bolo and inflicted on the offended party the injuries which the Court
of Appeals found to be not necessarily fatal and which were certified by
a government medical officer that they would heal in less than 30 days.
The facts as found by the Court of Appeals also show that the offended
party drew his bolo and hit the petitioner on different parts of his body,
and that the petitioner retreated and did not insist on hitting the offended
party with his bolo. It may be assumed that the petitioner drew his bolo
and hit the offended party with it only when the offended party had
shown a defiant attitude, considering that the offended party himself had
a bolo, as in fact the offended party had also drawn his bolo and hit the
petitioner with it, We consider that under the circumstances surrounding
the fight between the petitioner and the offended party the intention of
the petitioner to kill the offended party was not manifest.
The Court of Appeals concluded that the petitioner had the intention to
kill the offended party when the petitioner answered in the affirmative
the question as to whether he would do everything that he could do to
stop the offended party from digging the canal because he needed the
water. We reproduce here the transcript of the pertinent testimony:
xxx xxx xxx
ATTY. MORADA:
Q In other words you want to tell us that you will do
everything you could to stop Nacionales digging the canal,
because you need water?
ATTY. CANTO:
I object to the question. It is misleading.
COURT:
Witness may answer.
WITNESS:
Yes, sir, because I need the water.
xxx xxx xxx
The foregoing statement or answer was made by the petitioner during
the trial which took place on January 14, 1959. The incident in question
took place on July 11, 1954. The statement made by the petitioner
almost five years after the occurrence of the incident should not, in our
opinion, be considered as an accurate indication of what he had in his
mind at the time of the incident. Besides, that answer of the petitioner is
not a categorical statement of an intention on his part to kill the offended
party. The term "will do everything" has a broad meaning and it should
be construed in a manner as to give the petitioner the benefit of the doubt
as to what he really meant to do. At least it cannot be said that when the
petitioner answered "yes", when he was asked whether he would do
everything to stop Nacionales from digging the canal, the only way he
had in mind to stop Nacionales was to kill him. It must be noted that this
answer of the petitioner was made to a qualifying question propounded
to him by the private prosecutor over the objection of his counsel on the
ground that the question was misleading. At most, that answer of the
petitioner may only be considered as an expression of opinion of what
he would do under a given circumstance.
The intent to kill being an essential element of the offense of frustrated
or attempted homicide, said element must be proved by clear and
convincing evidence. That element must be proved with the same
degree of certainty as is required of the other elements of the crime. The
inference of intent to kill should not be drawn in the absence of
circumstances sufficient to prove such intent beyond reasonable doubt
(People vs. Villanueva, 51 Phil. 488).1

We hold that the facts brought out in the decision of the Court of Appeals
in the present case do not justify a finding that the petitioner had the
intention to kill the offended party. On the contrary, there are facts
brought out by the decision appealed from which indicates that the
petitioner had no intention to kill, namely: the petitioner started the
assault on the offended party by just giving him fist blows; the wounds
inflicted on the offended party were of slight nature, indicating no
homicidal urge on the part of the petitioner; the petitioner retreated and
went away when the offended party started hitting him with a bolo,
thereby indicating that if the petitioner had intended to kill the offended
party he would have held his ground and kept on hitting the offended
party with his bolo to kill him.

The element of intent to kill not having been duly established, and
considering that the injuries suffered by the offended party were not
necessarily fatal and could be healed in less than 30 days, We hold that
the offense that was committed by the petitioner is only that of less
serious physical injuries.

The offense of less serious physical injuries, as defined in Article 265 of

the Revised Penal Code, is punishable by arresto mayor or
imprisonment of from 1 month and 1 day to 6 months. The facts as found
by the Court of Appeals do not show any aggravating or mitigating
circumstance that may be considered in the imposition of the penalty on
the petitioner. We, therefore, sentence the petitioner to suffer the penalty
of three (3) months and fifteen (15) days of arresto mayor.

In view of the foregoing, the decision of the Court of Appeals appealed

from should be, as it is hereby, modified in the sense that the petitioner
is declared guilty of the offense of less serious physical injuries and he
is sentenced to suffer the penalty of three (3) months and fifteen (15)
days of arresto mayor, with costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Bengzon and Sanchez,

JJ., concur.
Barrera and Makalintal, JJ., took no part.

Footnotes

1
See also: U.S. vs. Reyes and Palanca, 80 Phil. 551; U.S. vs.
Mendoza, 38 Phil. 691; People vs. Montes. 53 Phil. 323;
People vs. Pacusbas and Pacusbas, 64 Phil. 614; and People
vs. Penesa 81 Phil. 398.

G.R. No. L-5848 April 30, 1954
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SY PIO, alias POLICARPIO DE LA CRUZ, defendant-appellant.
Exequiel Zaballero, Jr. for appellant.
Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio
Villamor for appellee.
LABRADOR, J.:
This is an appeal from a judgment of the Court of First Instance of Manila
finding the defendant-appellant herein Sy Pio, alias Policarpio de la
Cruz, guilty of frustrated murder against the person of Tan Siong Kiap,
and sentencing him to suffer an indeterminate sentence of 6 years, 1
month, and 11 days of prision mayor, to 14 years, 8 months, and 1 day
of reclusion temporal, to indemnify the offended party Tan Siong Kiap in
the sum of P350, without subsidiary imprisonment in case of insolvency,
and to pay the costs. The case was appealed to the Court of Appeals,
but that court certified it to this Court under the provisions of section 17
(4) of Republic Act No. 296, on the ground that the crime charged was
committed on the same occasion that the defendant-appellant had
committed crime of murder, with which the defendant-appellant was also
charged.
The evidence for the prosecution shows that early in the morning of
September 3, 1949, the defendant-appellant entered the store at 511
Misericordia, Sta Cruz, Manila. Once inside he started firing a .45 caliber
pistol that he had in his hand. The first one shot was Jose Sy. Tan Siong
Kiap, who was in the store and saw the accused enter and afterwards
fire a shot at Jose Sy, asked the defendant-appellant, "What is the
idea?" Thereupon defendant-appellant turned around and fired at him
also. The bullet fired from defendant-appellant's pistol entered the right
shoulder of Tan Siong Kiap immediately ran to a room behind the store
to hide. From there he still heard gunshot fired from defendant-
appellant's pistol, but afterwards defendant-appellant ran away.
Tan Siong Kiap was brought to the Chinese General Hospital, where his
wound was treated. He stayed there from September 3 to September
12, 1949, when he was released upon his request and against the
physician's advice. He was asked to return to the hospital for further
treatment, and he did so five times for a period of more than ten days.
Thereafter his wound was completely healed. He spent the sum of P300
for hospital and doctor's fees.
The defendant-appellant shot two other persons in the morning of
September 3, 1949, before shooting and wounding Tan Siong Kiap; one
was Ong Pian and the other Jose Sy. On September 5 information was
received by the Manila Police Department that defendant-appellant was
in custody of the Constabulary in Tarlac, so a captain of the Manila
police by the name of Daniel V. Lomotan proceeded to Tarlac. There he
saw the defendant-appellant and had a conversation with him. On this
occasion defendant-appellant and had a conversation with him. On this
occasion defendant-appellant admitted to Lomotan that his victims were
Tan Siong Kiap, Ong Pian, and Jose Sy. The Constabulary in Tarlac
also delivered to Lomotan the pistol used by the defendant-appellant,
marked Exhibit C, and its magazine, Exhibit C-1, both of which the
Constabulary had confiscated from the defendant-appellant. The
defendant-appellant was thereupon delivered to the custody of
Lomotan, and the latter brought him to Manila, where his statement was
taken down in writing. This declaration was submitted at the time of the
trial as Exhibit D, and it contains all the details of the assaults that
defendant-appellant 3 against the persons of Tan Siong Kiap, Ong Pian,
and Jose Sy. This written statement was taken down on a typewriter and
afterwards signed by the defendant-appellant in both his Chinese and
Filipino names, the latter being Policarpio de la Cruz.
According to the declaration of the defendant-appellant, some months
prior to September 3, 1949, he was employed as an attendant in a
restaurant belonging to Ong Pian. Defendant-appellant's wife by the
name of Vicenta was also employed by Ong Pian's partner, Eng Cheng
Suy. Prior to September 3 the relatives of his wife had been asking the
latter for help, because her father was sick. Defendant-appellant asked
money from Ong Pian, but the latter could only give him P1. His wife
was able to borrow P20 from her employer, and this was sent to his
wife's parents in Cebu. Afterwards defendant-appellant was dismissed
from his work at the restaurant of Ong Pian, and he became a peddler.
Ong Pian presented a list of the sums that defendant-appellant had
borrowed from him, and these sums were deducted from the salary of
his wife. Defendant-appellant did not recognize these sums as his
indebtedness, and so he resented Ong Pian's conduct.
As to Tan Siong Kiap, the confession states that a few days before
September 3, 1949, defendant-appellant had been able to realize the
sum of P70 from the sales of medicine that he peddled. He laid his
money in a place in his room, but the following morning he found that it
had disappeared from the place in which he had placed it. Tan Siong
Kiap and Jose Sy, upon the discovery of the loss of money, told
defendant-appellant that he must have given the money to his wife, and
that nobody had stolen it. After this incident of the loss, the defendant-
appellant used to hear Tan Siong Kiap and Jose Sy and other Chinamen
say that the money had not been actually stolen, but that he lost it in
gambling. Because of these accusations against him, he nurtured
resentment against both Tan Siong Kiap and Jose Sy.
So early in the morning of September 3, while a Chinaman by the name
of Ngo Cho, who the possessor of a caliber .45 pistol, was away from
his room, defendant-appellant got his pistol and tucked it in his belt. With
this pistol he went to the restaurant at 822 Ongpin, and there shot Ong
Pian. After shooting him, he proceeded to 511 Misericordia, in store
where Jose Sy and Tan Siong Kiap were, and there he fired at them.
Then he escaped to Legarda Street, in Sampaloc, where he borrowed
P1 from his relatives. From there he went to Malabon, to the house of
his mother, to whom he told he had killed two persons and from he asked
money.
The foregoing is the substance of the written declaration made by the
defendant-appellant in Exhibit D on September 6, 1949. At the time of
the trial, however, he disowned the confession and explained that he
signed it without having read its contents. He declared that it was not he
who shot the three victims, but it was one by the name of Chua Tone,
with whom he had previously connived to kill the three other victims. He
introduced no witnesses, however, to support his denial. Neither did he
deny that he admitted before Captain Lomotan having killed the three
persons, or having been found in Tarlac in possession of the caliber .45
pistol, Exhibit C, and its magazine, Exhibit C-1. In his cross-examination
he admitted many of the incidents mentioned in the confession,
especially the cause of his resentment against his victims Ong Pian,
Jose Sy, and Tan Siong Kiap.
The trial court refused to believed his testimony, and therefore, found
him guilty of the crime charged.
On this appeal counsel for the defendant-appellant claims that the trial
court erred in not finding that Tan Siong Kiap received the shot
accidentally from the same bullet that had been fired at Jose Sy, and in
finding that defendant-appellant has committed a crime distinct and
separate from that of murder for the slaying of Jose Sy. We find no merit
in this contention. According to the uncontradicted testimony of the
offended party Tan Siong Kiap, when the latters saw defendant-
appellant firing shots he asked him why he was doing so, and the
defendant-appellant, instead of answering him, turned around and fired
at him also. It is not true, therefore, that the shot which hit him was fired
at Sy.
It is also contended that the evidence is not sufficient to sustain the
judgment of conviction. We also find no merit in this contention. The
evidence submitted to prove the charge consists of: the uncontradicted
testimony of the victim himself; the admissions made verbally by the
defendant-appellant before Captain Lomotan in Tarlac; the fact that the
defendant-appellant had escaped and was found in Tarlac; his
possession of the .45 caliber pistol coupled with the fact, attested to by
the testimony of the physician who examined and treated the wounds of
Tan Siong Kiap, that the wounds found in his person must have been
caused by the caliber .45 bullet; and, lastly, the confession of the
defendant-appellant himself, Exhibit D, which he was not able to impugn.
As against this mass of evidence, defendant-appellant has only made a
very unbelievable story that it was not he but another that had committed
the crime charged. His admissions at the time of the trial regarding the
incidents, as well as the cause of his having assaulted his victims,
coincide exactly with the reasons given in his written confession. This
shows that he had made the confession himself, for nobody but himself
could have known the facts therein stated. The claim that the offense
has not been proved beyond reasonable doubt must be dismissed.
The defendant-appellant lastly claims that the lower court also erred in
sentencing him to pay an indemnity of P350. The offended party testified
that he actually spent P300 for hospital and doctor's fees, and that he
was confined in the hospital for nine days. The above facts stand
uncontradicted. This assignment of error must also be dismissed.
It is lastly contended that the defendant-appellant should be found guilty
only of less serious physical injuries instead of the crime of frustrated
murder as defendant-appellant admitted in his confession in the open
court that he had a grudge against the offended party, and that he
connived with another to kill the latter. The intent to kill is also evident
from his conduct in firing the shot directly at the body of the offended
party.
But while intent to kill is conclusively proved the wound inflicted was not
necessarily fatal, because it did not touch any of the vital organs of the
body. As a matter of fact, the medical certification issued by the
physician who examined the wound of the offended party at the time he
went to the hospital, states that the wound was to heal within a period of
fourteen days, while the offended party actually stayed in the hospital
for nine days and continued receiving treatment thereafter five time for
the period of more than ten days, or a total of not more than thirty days.
The question that needs to be determined, therefore, is: Did the
defendant-appellant perform all the acts of execution necessary to
produce the death of his victim?
In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. Dagman, 47
Phil., 768 and People vs. Borinaga, 55 Phil., 433, this Court has held
that it is not necessary that the accused actually commit all the acts of
execution necessary to produce the death of his victim, but that it is
sufficient that he believes that he has committed all said acts. In the case
of People vs. Dagman, supra, the victim was first knocked down by a
stone thrown at him, then attacked with a lance, and then wounded by
bolos and clubs wielded by the accused, but the victim upon falling down
feigned death, and the accused desisted from further continuing in the
assault in the belief that their victim was dead. And in the case of
People vs. Borinaga, supra, the accused stabbed his intended victim,
but the knife with which he committed the aggression instead of hitting
the body of the victim, lodged in the back of the chair in which he was
seated, although the accused believed that he had already harmed him.
In both these cases this Court held that of the crime committed was that
of frustrated murder, because the subjective phase of the acts
necessary to commit the offense had already passed; there was full and
complete belief on the part of the assailant that he had committed all the
acts of execution necessary to produce the death of the intended victim.

In the case at bar, however, the defendant-appellant fired at his victim,

and the latter was hit, but he was able to escape and hide in another
room. The fact that he was able to escape, which appellant must have
seen, must have produced in the mind of the defendant-appellant that
he was not able to his his victim at a vital part of the body. In other words,
the defendant-appellant knew that he had not actually all the acts of
execution necessary to kill his victim. Under these circumstances, it can
not be said that the subjective phase of the acts of execution had been
completed. And as it does not appear that the defendant-appellant
continued in the pursuit, and as a matter of fact, he ran away afterwards
a reasonable doubt exist in our mind that the defendant-appellant had
actually believed that he has committed all the acts of execution or
passed the subjective phase of the said acts. This doubt must be
resolved in favor of the defendant-appellant.

We are, therefore, not prepared to find the defendant-appellant guilty of

frustrated murder, as charged in the information. We only find him guilty
of attempted murder, because he did not perform all the acts of
execution, actual and subjective, in order that the purpose and intention
that he had to kill his victim might be carried out.

Therefore, the judgment appealed from should be, as it is hereby,

modified and the defendant-appellant is found guilty of the crime of G.R. No. L-36461 June 29, 1984
attempted murder, and the sentence imposed upon him reduced to an
indeterminate penalty of from 4 years, 2 months, and 1 day of prision THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
correccional to 10 years of prision mayor. In all other respects the vs.
judgment is affirmed. With costs against the defendant-appellant. HERNANDO DIO, accused-appellant.

Paras, C.J., Pablo, Bengzon, Reyes, Jugo, Bautista Angelo, and The Solicitor General for plaintiff-appellee.
Concepcion, JJ., concur.

Luis R. Feria for accused-appellant.

ABAD SANTOS, J.:

Automatic review of a decision of the defunct Circuit Criminal Court, 7th

Judicial District, which imposed the death penalty.
An information for robbery with homicide was filed on October 1, 1971,
against Danilo Tobias and a John Doe. The order to arrest Tobias was
returned unserved and he is still on the "Wanted Persons Files."
On December 7, 1971, the information was amended to name Hernando
Dio as the John Doe, the appellant herein. As amended, the information
reads:
That on or about the 24th day of July 1971, in Pasay
City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused Danilo
Tobias @ Danny Kulot and Hernando Dio @ Way
Kaon, conspiring and confederating together and
mutually helping one another, with intent to gain
and without the knowledge and consent of the
owner, and with the use of 'balisong', one of the
accused was provided with, and by means of force,
threats and intimidation employed upon the latter,
did then and there wilfully, unlawfully and
feloniously take, steal and rob away from one
Crispulo P. Alega, one Seiko brand men's wrist
watch (recovered); and the said accused in
accordance with and pursuant to their conspiracy,
and in order to carry out their avowed purpose, with
intent to kill did then and there wilfully, unlawfully
and feloniously attack, assault and stab for several
times Crispulo P. Alega, and which "balisong" was
directly aimed at the vital portions of the body of
said Crispulo P. Alega, thus performing all the acts
of execution causing his instantaneous death.
(Expediente, p. 68.)
Accused Hernando Dio pleaded not guilty when he was arraigned and
after trial the court rendered the following judgment:
WHEREFORE, finding the accused, Hernando Dio,
Guilty, beyond reasonable doubt, of the crime of
Robbery with Homicide as defined under Article
294 of the Revised Penal Code, as charged in the
Amended Information, the Court hereby sentences
him to suffer the penalty of DEATH; to indemnify the
heirs of the victim, Crispulo Alega the amount of
P12,000.00; to pay moral damages in the amount
of P10,000.00 and another P10,000.00, as
exemplary damages; and to pay the costs. (Id., pp.
105-106.)
The People's version of the facts is as follows:
At about noontime on July 24, 1971, Crispulo
Alega, a civil engineer by profession working at the
Sugar Construction Company, with a salary of more
than P500.00 a month went to the Southeastern
College, Pasay City to fetch his girlfriend,
Remedios Maniti, a third year high school student
thereat (pp. 55, 59, 63-64, 11 1973). They
proceeded to the Pasay City Public Market. As they
were going up the stairs leading to the Teresa and
Sons Restaurant, Remedios, who was was about
an arms-length ahead of Crispulo suddenly heard
the dropping of her folders and other things, being
carried by Crispulo. When she looked back, she
saw a man later Identified as Danilo Tobias but
still at large twisting the neck of Crispulo, while
the appellant was holding his (Crispulo's) two hands
(pp. 56-57, 61, tsn., Id.). The appellant and his
companion tried to divest Crispulo of his "Seiko"
wrist watch, but Crispulo resisted their attempt and
fought the robbers. At this juncture, the man who
was twisting the neck of Crispulo stabbed the latter
on the left side of his chest. Crispulo ran down the
stairs followed by Remedies who shouted for help.
When he reached the front of the Pasay
Commercial Bank he fell down and expired. At the
time of his death, the "Seiko" watch was strapped
to his wrist. (pp. 57-61, tsn., Id., pp. 7-9, tsn., Jan.
22, 1973).lwphl@it
An autopsy conducted on the victim's body by Dr.
Ricardo Ibarola medicolegal officer of the NBI
revealed that the cause of death was a stab wound
at the region below his left breast which penetrated
the heart. Said doctor opined that judging from the
natural appearance of the stab wound, it must have
been caused by a single-bladed pointed instrument
(pp. 6, 13-14, tsn., Jan. 11, 1973; Exh. C and C-1,
p. 87, rec.). The necropsy report (Exh. A, p. 85, rec.)
stated that the decease sustained the following
injuries:
Abrasions: right zygomatic
region, 0.6 x 0.4 infralabial
region, right side 1.7 x 1.4
come forearm right, upper
third, posterolateral aspect,
0.6 x 0.4 clean and left, lower
third, posterior aspect, 0.4 x
0.2 come right knee, 0.6 x 0.4
come right leg, upper third,
anterior aspect, 1.4 x 0.8
Incise wounds, neck, left
supers-lateral aspect, two in
 number, 2.5 and 1.2 crime in
lengths, both superficial
Stab wound: left
inframammary region, level of
the 5th intercostal space along
the parasternal line, 6.0 cm.
from the anterior midline, 0.5
crime below the left nipple,
elliptical in shape, 3.0 cm. long
extended laterally by 3.0 crime
long rising slightly downwards,
medially edges, clean cut,
sutured, medial extremity of
which is blunt and lateral
extremity, sharp; directed
upwards, medially and
backwards involving, among
others, the soft tissues, thru
the 5th intercostal muscles,
grazing the 6th rib superiorly,
perforating the left pleural
cavity only, into the middle
mediastinum by penetrating
the pericardium antero-
inferiorly, perforating the
interventricular system and
penetrating the left ventricle of
the heart at its apical portions,
approximate depth 11.0 cm.
After the appellant's arrest on October 24, 1972, he
was investigated at the Detective Bureau of the
Pasay City Police Department and gave a
statement (Exh. D, p. 90, rec.) in the presence of
Pat. Arturo Rimorin admitting that on the date and
nine of the incident, he and his co-accused, Danilo
Tobias administrative Kardong Kaliwa alias Danny
Kulot, held up a man and a woman; that they did
not get the watch of the man; that he held the
victim's hands but the latter was able to free
himself; that Danny Kulot stabbed the man, that
when the victim ran, they also ran away; and that
he did not know what happened to the victim (Exhs.
D, D-1, D-2, D-3, D-4 and D-5, p. 90, rec.; pp. 27-3
1, tsn., Jan. 11, 1973). (Brief, pp. 2-6.)
Atty. Luis R. Feria, counsel de oficio of the appellant, states:
After a careful, considered and conscientious
examination of the evidence adduced in the instant
case, undersigned counsel is constrained to
conclude that the findings of fact of the trial court,
upholding the version of the prosecution as against
that of the defense, must have to be sustained. As
against the sole and uncorroborated testimony of
appellant merely denying any participation in the
commission of the crime imputed to him (while
admitting that he was present at the scene of the
crime), there is a formidable array of evidence
against him consisting of the clear and convincing
testimony of Remedios Maniti, who was in the
company of the deceased at the time he was killed
and an eyewitness to the entire incident; the extra-
judicial written confession of defendant-appellant
(Exhibit D) admitting participation in the
commission of the crime; the testimony of
Patrolman Arturo Rimorin who conducted the
investigation of, and before whom Exhibit D was
executed and signed by, defendant- appellant, as
well straight the testimony of Sgt. Geronimo de los
Santos of the Pasay Police to whom defendant-
appellant orally admitted that he held the victim's
hands although he had no part in the actual
stabbing of the deceased.
With respect to the testimony of the eyewitness
Remedios Maniti there is absolutely nothing in the
record (except perhaps that she was the
sweetheart of the deceased) to show, or even hint,
that she had any reasons to perjure herself by
falsely incriminating defendant-appellant in such a
grievous crime, no bias, interest or prejudice
against the latter as would move or induce her to
faithlessly accuse him of a crime which he had not
committed. More than ever, the time-honored ruling
of this Honorable Court, too elemental to require
citations, that the findings of the trial court on the
question of credibility of the witnesses, having had
the advantage of observing their demeanor and
manner of testifying, should not be disturbed in the
absence of strong and cogent reasons therefor,
applies fully to the case at bar. No such reasons
can be found herein.
The same observations may be made with respect
to the testimonies of Patrolman Rimorin and Sgt. de
los Santos. Moreover, as has been held by this
Honorable Court, where the prosecution witnesses,
being government employees who testified as to
what transpired in the performance of their duties,
were neutral and disinterested and had no reason
to falsely testify against the accused, and did not
subject him to any violence, torture or bodily harm,
 their testimonies should be given more weight than
that of the accused (P. v. Pereto, 21 SCRA 1469:
P. v. Del Castillo, 25 SCRA 716.)
Then there is the extrajudicial confession of
defendant-appellant, Exhibit D. True it is that,
belatedly during the trial, appellant claimed that his
answers appearing in Exhibit D were given because
he was afraid as he was intimidated and struck on
the buttock with a long piece of wood (pp. 32-34,
t.s.n. Ses. of January 22, 1973). It is submitted that
this last-minute, desperate and uncorroborated
claim falls flat in the face not only of the
presumption of voluntariness in the execution of
confessions, but also of the testimony of Patrolman
Rimorin to the effect that Exhibit D was executed
voluntarily and that defendant-appellant was never
maltreated (pp. 26, 31-32, t.s.n. Ses. of January 11,
1973), and the latter's own admission that before he
signed Exhibit D, its contents were first read to him
in Tagalog and that he fully understood the same
(pp. 24, t.s.n. Ses. of January 22, 1973), and his
further admission that he has not filed any case
against those who had allegedly maltreated him (p.
33, t.s.n,Id.). Moreover, where the alleged
confession reveals spontaneity of the declarations
belying the claim that they were concocted or
dictated by the police, the court win reject the case
that the confession was involuntary (P. v. Castro,
11 SCRA 699).lwphl@it (Brief, pp. 3-5.)
Notwithstanding the foregoing factual admission, Atty. Feria makes the
following assignment of errors:
1. THE TRIAL COURT ERRED IN CONVICTING
DEFENDANT- APPELLANT OF THE SPECIAL
COMPLEX CRIME OF ROBBERY WITH
HOMICIDE AS DEFINED AND PENALIZED
UNDER ART. 294, PAR. 1, OF THE REVISED
PENAL CODE.
2. EVEN ASSUMING THAT THE CRIME
COMMITTED BY DEFENDANT-APPELLANT IS
ROBBERY WITH HOMICIDE, THE TRIAL COURT
ERRED IN SENTENCING HIM TO SUFFER THE
DEATH PENALTY.
We have scrutinized the record, particularly the testimonial evidence,
and indeed there is no doubt that the appellant had a hand in the death
of Crispulo Alega. There remains to be considered, however, the claims
of the appellant which are made in the assignment of errors.
The appellant claims in his first assignment of error that he should not
have been convicted of the special complex crime of robbery with
homicide because the robbery was not consummated. He states that
there was only an attempted robbery.
The Solicitor General states:
... We are constrained to agree with defense'
contention. The evidence adduced show that the
appellant and his companion were unsuccessful in
their criminal venture of divesting the victim of his
wrist watch so as to constitute the consummated
crime of robbery. Indeed, as adverted to earlier,
when the victim expired, the 'Seiko' watch was still
securely strapped to his wrist (p. 59, t.s.n., Jan. 11,
1973). The killing of Crispulo Alega may be
considered as merely incidental to and an offshoot
of the plan to carry out the robbery, which however
was not consummated because of the resistance
offered by the deceased. Consequently, this case
would properly come under the provision of Art. 297
of the Revised Penal Code which states that
When by reason or on
occasion of an attempted or
frustrated robbery a homicide
is committed, the person guilty
of such offenses shall be
punished by reclusion
temporal in its maximum
period to reclusion
perpetua, unless the homicide
committed shall deserve a
higher penalty under the
provisions of this Code. (Brief,
pp. 5-6.)
In his second assignment of error the appellant claims that the
information does not allege any aggravating circumstance nor was any
proved during the trial.
Again the Solicitor General states:
We likewise agree with the contention of counsel in
his second assigned error that the evidence
presented by the prosecution did not show the
attendance of any aggravating circumstance in the
commands of the crime and neither did the court a
quo make any finding in this respect (pp. 7-8,
appellant's brief). (Id, p. 6.)
The crime committed by the appellant is attempted robbery with
homicide and the penalty prescribed by law is reclusion temporal in its
maximum period to reclusion perpetua. Since there was no attendant
mitigating nor aggravating circumstance, the penalty should be applied
in its medium period, i.e. 18 years, 8 months and 1 day to 20 years. The
Indeterminate Sentence Law has also to be applied.
WHEREFORE, the judgment of the trial court is hereby modified; the
appellant is found guilty beyond reasonable doubt of the special complex
crime of attempted robbery with homicide and he is sentenced to suffer
an indeterminate penalty of 10 years and 1 day of prision mayor as
minimum to 20 years of reclusion temporal as maximum, to indemnify
the heirs of Crispulo Alega in the amount of P30,000.00, and to pay one-
half of the costs. SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Aquino, Concepcion, Jr.,
Guerrero, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De
la Fuente and Cuevas, JJ., concur.
G.R. No. 86163 April 26, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO
CANASARES, and SIMPLICIO CANASARES, BIENVENIDO
SALVILLA, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Resurreccion S. Salvilla for defendant-appellant.
MELENCIO-HERRERA, J.:
Accused Bienvenido Salvilla alone appeals from the Decision of the
Regional Trial Court, Branch 28, Iloilo City, *dated 29 August 1988, in
Criminal Case No. 20092, finding him and his co-accused Reynaldo,
Ronaldo and Simplicio, all surnamed Canasares, guilty beyond
reasonable doubt of the crime of "Robbery with Serious Physical Injuries
and Serious Illegal Detention" and sentencing them to suffer the penalty
of reclusion perpetua.
The Information filed against them reads:
The undersigned City Fiscal accuses BIENVENIDO
SALVILLA, REYNALDO CANASARES, RONALDO
CANASARES, and SIMPLICIO CANASARES, whose
maternal surnames, dated and places of birth cannot be
ascertained of the crime of ROBBERY WITH SERIOUS
PHYSICAL INJURIES AND SERIOUS ILLEGAL DETENTION
(Art, 294, paragraph 3, in conjunction with Article 267 of the
Revised Penal Code), committed as follows:
That on or about the 12th day of April, 1986, in the City of
Iloilo, Philippines and within the jurisdiction of this Court, said
accused, conspiring and confederating among themselves,
working together and helping one another, armed with guns
and handgrenade and with the use of violence or intimidation
employed on the person of Severino Choco, Mary Choco,
Mimie Choco and Rodita Hablero did then and there wilfully,
unlawfully and criminally take and carry away, with intent of
gain, cash in the amount of P20,000.00, two (2) Men's wrist
watches, one (1) Lady's Seiko quartz wrist watch and one (1)
Lady's Citizen wrist watch and assorted jewelries, all valued
at P50,000.00; that on the occasion and by reason of said
robbery, Mary Choco suffered serious physical injuries under
paragraph 2 of Article 263, Bienvenido Salvilla likewise
suffered serious physical injuries and Reynaldo Canasares
also suffered physical injuries; that the said accused also
illegally detained, at the compound of the New Iloilo Lumber
Company, Iznart Street, Iloilo City, Severino Choco,
owner/proprietor of said Lumber Company, Mary Choco,
Mimie Choco, who is a minor, being 15 years of age, and
Rodita Hablero, who is a salesgirl at said Company; that
likewise on the occasion of the robbery, the accused also
asked and were given a ransom money of P50,000.00; that
the said crime was attended by aggravating circumstances of
band, and illegal possession of firearms and explosives; that
the amount of P20,000.00, the ransom money of P50,000.00,
two (2) Men's wrist watches, two (2) lady's wrist watches, one
(1) .38 caliber revolver and one (1) live grenade were
recovered from the accused; to the damage and prejudice of
the New Iloilo Lumber Company in the amount of
P120,000.00.
The evidence for the prosecution may be re-stated as follows:
On 12 April 1986, a robbery was staged by the four accused at the New
Iloilo Lumber Yard at about noon time. The plan was hatched about two
days before. The accused were armed with homemade guns and a hand
grenade. When they entered the establishment, they met Rodita
Hablero an employee thereat who was on her way out for her meal break
and announced to her that it was a hold-up. She was made to go back
to the office and there Appellant Salvilla pointed his gun at the owner,
Severino Choco, and his two daughters, Mary and Mimie the latter being
a minor 15 years of age, and told the former that all they needed was
money. Hearing this, Severino told his daughter, Mary, to get a paper
bag wherein he placed P20,000.00 cash (P5,000.00, according to the
defense) and handed it to Appellant. Thereafter, Severino pleaded with
the four accused to leave the premises as they already had the money
but they paid no heed. Instead, accused Simplicio Canasares took the
wallet and wristwatch of Severino after which the latter, his two
daughters, and Rodita, were herded to the office and kept there as
hostages.
At about 2:00 o'clock of the same day, the hostages were allowed to eat.
The four accused also took turns eating while the others stood guard.
Then, Appellant told Severino to produce P100,000.00 so he and the
other hostages could be released. Severino answered that he could not
do so because it was a Saturday and the banks were closed.
In the meantime, police and military authorities had surrounded the
premises of the lumber yard. Major Melquiades B. Sequio Station
Commander of the INP of Iloilo City, negotiated with the accused using
a loud speaker and appealed to them to surrender with the assurance
that no harm would befall them as he would accompany them personally
to the police station. The accused refused to surrender or to release the
hostages.
Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the
negotiations. In her dialogue with the accused, which lasted for about
four hours, Appellant demanded P100,000.00, a coaster, and some
raincoats. She offered them P50,000.00 instead, explaining the difficulty
of raising more as it was a Saturday. Later, the accused agreed to
receive the same and to release Rodita to be accompanied by Mary
Choco in going out of the office. When they were out of the door, one of
the accused whose face was covered by a handkerchief, gave a key to
Mayor Caram. With this, Mayor Caram unlocked the padlocked door and
handed to Rodita the P50,000.00, which the latter, in turn, gave to one
of the accused. Rodita was later set free but Mary was herded back to
the office.
Mayor Caram, Major Sequio and even volunteer radio newscasters
continued to appeal to the accused to surrender peacefully but they
refused.1wphi1 UItimatums were given but the accused did not budge.
Finally, the police and military authorities decided to launch an offensive
and assault the place. This resulted in injuries to the girls, Mimie and
Mary Choco as well as to the accused Ronaldo and Reynaldo
Canasares. Mary suffered a "macerated right lower extremity just below
the knee" so that her right leg had to be amputated. The medical
certificate described her condition as "in a state of hemorrhagic shock
when she was brought in to the hospital and had to undergo several
major operations during the course of her confinement from April 13,
1986 to May 30, 1986."
For his part, Appellant Salvilla confirmed that at about noon time of 12
April 1986 he and his co-accused entered the lumber yard and
demanded money from the owner Severino Choco He demanded
P100,000.00 but was given only P5,000.00, which he placed on the
counter of the office of the lumber yard. He admitted that he and his co-
accused kept Severino, his daughters, and Rodita inside the office. He
maintained, however, that he stopped his co-accused from getting the
wallet and wristwatch of Severino and, like the P5,000.00 were all left
on the counter, and were never touched by them. He claimed further that
they had never fired on the military because they intended to surrender.
Appellant's version also was that during the gunfire, Severino's daughter
stood up and went outside; he wanted to stop her but he himself was hit
by a bullet and could not prevent her. Appellant also admitted the
appeals directed to them to surrender but that they gave themselves up
only much later.
After trial, the Court a quo meted out a judgment of conviction and
sentenced each of the accused "to suffer the penalty of reclusion
perpetua, with the accessory penalties provided by law and to pay the
costs."
Appellant Salvilla's present appeal is predicated on the following
Assignments of Error:
1. The lower court erred in holding that the crime charged was
consummated and in not holding that the same was merely
attempted.
2. The lower court erred in not appreciating the mitigating
circumstance of voluntary surrender."
Upon the facts and the evidence, we affirm.
The defense contends that "The complete crime of larceny
(theft/robbery) as distinguished from an attempt requires asportation or
carrying away, in addition to the taking, In other words, the crime of
robbery/theft has three consecutive stages: 1) the giving 2) the taking
and 3) the carrying away or asportation And without asportation the
crime committed is only attempted" (Memorandum for Appellant Salvilla,
Records, p. 317).
There is no question that in robbery, it is required that there be a taking
of personal property belonging to another. This is known as the element
of asportation the essence of which is the taking of a thing out of the
possession of the owner without his privity and consent and without
the animus revertendi (Aquino, Revised Penal Code, p. 97, citing5 C.J.
607). In fact, if there is no actual taking, there can be no robbery.
Unlawful taking of personal property of another is an essential part of
the crime of robbery.
Appellant insists that while the "giving" has been proven, the "taking"
has not. And this is because neither he nor his three co-accused touched
the P5,000.00 given by Severino nor the latter's wallet or watch during
the entire incident; proof of which is that none of those items were
recovered from their persons.
Those factual allegations are contradicted by the evidence. Rodita, the
lumberyard employee, testified that upon demand by Appellant,
Severino put P20,000.00 inside a paper bag and subsequently handed
it to Appellant. In turn, accused Simplicio Canasares took the wallet and
wristwatch of Severino. In respect of the P50,000.00 from Mayor Caram,
Rodita declared that the Mayor handed the amount to her after she (the
Mayor) had opened the padlocked door and that she thereafter gave the
amount to one of the holduppers. The "taking" was, therefore, sufficiently
proved (TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The money
demanded, and the wallet and wristwatch were within the dominion and
control of the Appellant and his co-accused and completed the taking.
The State established a "taking" sufficient to support a
conviction of robbery even though the perpetrators were
interrupted by police and so did not pick up the money offered
by the victim, where the defendant and an accomplice, armed
with a knife and a club respectively, had demanded the money
from the female clerk of a convenience store, and the clerk
had complied with their instructions and placed money from
the register in a paper bag and then placed the bag on the
counter in front of the two men; these actions brought the
money within the dominion and control of defendant and
completed the taking. (Johnson vs. State, 432 So 2d 758).
"Severance of the goods from the possession of the owner
and absolute control of the property by the taker,even for an
instant, constitutes asportation (Adams vs. Commonwealth,
154 SW 381; State vs. Murray, 280 SW 2d 809; Mason vs.
Commonwealth, 105 SE 2d 149) [Emphasis supplied].
It is no defense either that Appellant and his co-accused had no
opportunity to dispose of the personalities taken. That fact does not
affect the nature of the crime, From the moment the offender gained
possession of the thing, even if the culprit had no opportunity to dispose
of the same, the unlawful taking is complete (Reyes, Revised Penal
Code Annotated, Book II, 1981 ed., p. 594).
The crime is consummated when the robber acquires
possession of the property, even if for a short time, and it is
not necessary that the property be taken into the hands of the
robber, or that he should have actually carried the property
away, out of the physical presence of the lawful possessor, or
that he should have made his escape with it" (People vs.
Quinn, 176 P 2d 404; Woods vs. State, 220 SW 2d 644;
People vs. Beal, 39 P 2d 504; People vs. Clark, 160 P 2d 553).
Contrary to Appellant's submission, therefore, a conviction for
consummated and not merely attempted Robbery is in order.
It is the contention of Appellant that Rodita could not have seen the
taking because the place was dark since the doors were closed and
there were no windows. It will be recalled, however, that Rodita was one
of the hostages herself and could observe the unfolding of events. Her
failure to mention the taking in her sworn statement would not militate
against her credibility, it being settled that an affidavit is almost always
incomplete and inaccurate and does not disclose the complete facts for
want of inquiries or suggestions (People vs. Andaya, G.R. No. L-63862,
31 July 1987, 152 SCRA 570; People vs. Tan, et al., 89 Phil. 337 [1951]).
The fact, too, that Rodita was an employee of Severino would not lessen
her credibility. The defense has not proven that she was actuated by any
improper motive in testifying against the accused.
In the last analysis, the basic consideration centers around the credibility
of witnesses in respect of which the findings of the Trial Court are
entitled to great weight as it was in a superior position to assess the
same in the course of the trial (see People vs. Ornoza G.R. No. L-56283,
30 June 1987, 151 SCRA 495; People vs. Alcantara, G.R. No. L-38042,
30 June 1987, 151 SCRA 326).
Anent the second assignment of error, the "surrender" of the Appellant
and his co-accused cannot be considered in their favor to mitigate their
liability. To be mitigating, a surrender must have the following requisites:
(a) that the offender had not been actually arrested; (b) that the offender
surrendered himself to a person in authority or to his agent; and (c) that
the surrender was voluntary (People vs. Canamo, G.R. No. L-62043, 13
August 1985, 138 SCRA 141).
The "surrender" by the Appellant and his co-accused hardly meets these
requirements. They were, indeed, asked to surrender by the police and
military authorities but they refused until only much later when they could
no longer do otherwise by force of circumstances when they knew they
were completely surrounded and there was no chance of escape. The
surrender of the accused was held not to be mitigating as when he gave
up only after he was surrounded by the constabulary and police forces
(People vs. Sigayan et al., G.R. Nos. L-18523-26, 30 April 1966, 16
SCRA 839; People vs. Mationg G.R. No. L-33488, 29 March 1982, 113
SCRA 167). Their surrender was not spontaneous as it was motivated
more by an intent to insure their safety. And while it is claimed that they
intended to surrender, the fact is that they did not despite several
opportunities to do so. There is no voluntary surrender to speak of
(People vs. Dimdiman 106 Phil. 391 [1959]).
All told, the assigned errors remain unsubstantiated and we find the guilt
of the accused-appellant, Bienvenido Salvilla, established beyond
reasonable doubt.
Although unassigned as an error, we deem it necessary to turn now to
the nature of the linked offenses involved and the penalty imposed by
the Trial Court.
Appellant and his co-accused were charged in the Information with
"Robbery with Serious Physical Injuries and Serious Illegal Detention
("Art. 295, par. 3, in conjunction with Art. 267, RPC )and sentenced
to reclusion perpetua. We agree with the Trial Court that a complex
crime under Article 48 of the Revised Penal Code has been committed
such that the penalty for the more serious offense of Serious Illegal
Detention (Art. 267, Revised Penal Code), or "reclusion perpetua to
death," is to be imposed instead of the penalty prescribed for Robbery
with Serious Physical Injuries (Art. 294 (3), which is reclusion temporal.
Under Article 48, a complex crime arises "when an offense is a
necessary means for committing the other." The term "necessary
means" does not connote indispensable means for if it did then the
offense as a "necessary means" to commit another would be an
indispensable element of the latter and would be an ingredient thereof.
The phrase "necessary means" merely signifies that one crime is
committed to facilitate and insure the commission of the other (Aquino,
Revised Penal Code, Vol. I, 1987 ed., p. 624, citing Dissent,
Montemayor, J., Amado Hernandez, 99 Phil. 515). In this case, the crime
of Serious Illegal Detention was such a "necessary means" as it was
selected by Appellant and his co-accused to facilitate and carry out more
effectively their evil design to stage a robbery.
The facts of this case differ from those in People vs. Astor, et al. (G.R.
Nos. L-71765-66, 29 April 1987, 149 SCRA 325) where the accused
were convicted of Robbery but acquitted in the case for Serious Illegal
Detention and where it was held that "the detention is absorbed in the
crime of robbery." For one, in Astor, there were two (2) separate
Informations filed, one for Robbery and another for Serious Illegal
Detention. In the present case, only one Information was filed charging
the complex offense. For another, in Astor, the robbery had already
been consummated and the detention was merely to forestall the
capture of the robbers by the police. Not so in this case, where the
detention was availed of as a means of insuring the consummation of
the robbery. Further, in Astor, the detention was only incidental to the
main crime of robbery so that it was held therein:
. . . were appellants themselves not trapped by the early
arrival of the police at the scene of the crime, they would have
not anymore detained the people inside since they have
already completed their job. Obviously, appellants were left
with no choice but to resort to detention of these people as
security, until arrangements for their safe passage were
made. This is not the crime of illegal detention punishable
under the penal laws but an act of restraint in order to delay
the pursuit of the criminals by peace officers (People v. Sol, 9
Phil. 265; People v. Uday 55 Phil. 167, cited in the Revised
Penal Code, Aquino, Vol. 3, 1976 ed., p. 1337). Where the
victims in a robbery case were detained in the course of
robbery, the detention is absorbed by the crime of robbery (P.
v. Baysa, 92 Phil. 1008, id.). In the case at bar, the detention
was only incidental to the main crime of robbery, and although
in the course thereof women and children were also held, that
threats to kill were made, the act should not be considered as
a separate offense. Appellants should only be held guilty of
robbery.
In contract, the detention in the case at bar was not only incidental to the
robbery but was a necessary means to commit the same.1wphi1 After
the amount of P20,000.00 was handed to Appellant, the latter and his
co-accused still refused to leave. The victims were then taken as
hostages and the demand to produce an additional P100,000.00 was
made as a prerequisite for their release. The detention was not because
the accused were trapped by the police nor were the victims held as
security against the latter. The detention was not merely a matter of
restraint to enable the malefactors to escape, but deliberate as a means
of extortion for an additional amount. The police and other authorities
arrived only much later after several hours of detention had already
passed. And, despite appeals to appellant and his co-accused to
surrender, they adamantly refused until the amount of P100,000.00 they
demanded could be turned over to them. They even considered
P50,000.00, the amount being handed to them, as inadequate.
The foregoing features also distinguish this case from those of U.S. v.
Sol, 9 Phil. 265 [1907] where the restraint was for no other purpose than
to prevent the victims from reporting the crime to the authorities; from
People v. Gamboa, 92 Phil. 1085 [1953] where the victims were taken
to a place one kilometer away and shot in order to liquidate the
witnesses to the robbery; from People v. Baysa, 92 Phil. 1008 [1953];
People v. Manzanilla, 43 Phil. 167 [1922], all of which cases were cited
in Astor and where the victims were only incidentally detained so that
the detention was deemed absorbed in robbery.
In other words, unlike in the above cases, the elements of the offense of
Serious Illegal Detention are present in this case. The victims were
illegally deprived of their liberty. Two females (Mary and Minnie) and a
minor (Minnie), a specified circumstance in Article 267 (3), were among
those detained. The continuing detention was also for the purpose of
extorting ransom, another listed circumstance in Article 267 (last parag.)
not only from the detained persons themselves but even from the
authorities who arrived to rescue them.
It follows then that as the detention in this case was not merely incidental
to the robbery but a necessary means employed to facilitate it, the
penalty imposed by the Trial Court is proper.
WHEREFORE, the judgment appealed from is hereby AFFIRMED.
Proportionate costs.
SO ORDERED.
Paras, Padilla Sarmiento and Regalado JJ., concur.
G.R. No. 88724 April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CEILITO ORITA alias "Lito," defendant-appellant.

The Office of the Solicitor General for plaintiff-appellee.

C. Manalo for defendant-appellant.

MEDIALDEA, J.:

The accused, Ceilito Orita alias Lito, was charged with the crime of rape
in Criminal Case No. 83-031-B before the Regional Trial Court, Branch
II, Borongan, Eastern Samar. The information filed in the said case
reads as follows (p. 47, Rollo):

The undersigned Second Assistant Provincial Fiscal upon

prior complaint under oath by the offended party, accuses
CEILITO ORITA alias LITO of the crime of Rape committed
as follows:
 That on March 20, 1983, at about 1:30 o'clock in the morning
inside a boarding house at Victoria St., Poblacion, Borongan,
Eastern Samar, Philippines, and within the jurisdiction of this
Honorable Court, above named accused with lewd designs
and by the use of a Batangas knife he conveniently provided
himself for the purpose and with threats and intimidation, did,
then and there wilfully, unlawfully and feloniously lay with and
succeeded in having sexual intercourse with Cristina S.
Abayan against her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the
offense charged. After the witnesses for the People testified and the
exhibits were formally offered and admitted, the prosecution rested its
case. Thereafter, the defense opted not to present any exculpatory
evidence and instead filed a Motion to Dismiss. On August 5, 1985, the
trial court rendered its decision, the dispositive portion of which reads
(pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of
accused CEILITO ORITA @ LITO, of the crime of Frustrated
Rape (Art. 335, RPC), beyond reasonable doubt, with the
aggravating circumstances of dwelling and nightime (sic) with
no mitigating circumstance to offset the same, and
considering the provisions of the Indeterminate Sentence
Law, imposes on accused an imprisonment of TEN (10)
YEARS and ONE (1) DAY,PRISION MAYOR, as minimum to
TWELVE (12) YEARS PRISION MAYOR, maximum; to
indemnify CRISTINA S. ABAYAN, the amount of Four
Thousand (P4,000.00) Pesos, without subsidiary
imprisonment in case of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of
Appeals. On December 29, 1988, the Court of Appeals rendered its
decision, the dispositive portion of which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby
MODIFIED, and the appellant found guilty of the crime of rape,
and consequently, sentenced to suffer imprisonment
of reclusion perpetua and to indemnify the victim in the
amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting
aside its December 29, 1988 decision and forwarded the case to this
Court, considering the provision of Section 9, paragraph 3 of Batas
Pambansa Blg. 129 in conjunction with Section 17, paragraph 3,
subparagraph 1 of the Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows
(pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman
student at the St. Joseph's College at Borongan, Eastern
Samar. Appellant was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived
at her boarding house. Her classmates had just brought her
home from a party (p. 44, tsn, May 23, 1984). Shortly after her
classmates had left, she knocked at the door of her boarding
house (p. 5, ibid). All of a sudden, somebody held her and
poked a knife to her neck. She then recognized appellant who
was a frequent visitor of another boarder (pp. 8-9, ibid).
She pleaded with him to release her, but he ordered her to go
upstairs with him. Since the door which led to the first floor
was locked from the inside, appellant forced complainant to
use the back door leading to the second floor (p. 77, ibid).
With his left arm wrapped around her neck and his right hand
poking a "balisong" to her neck, appellant dragged
complainant up the stairs (p. 14, ibid). When they reached the
second floor, he commanded her to look for a room. With the
Batangas knife still poked to her neck, they entered
complainant's room.
Upon entering the room, appellant pushed complainant who
hit her head on the wall. With one hand holding the knife,
appellant undressed himself. He then ordered complainant to
take off her clothes. Scared, she took off her T-shirt. Then he
pulled off her bra, pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her.
He made her hold his penis and insert it in her vagina. She
followed his order as he continued to poke the knife to her. At
said position, however, appellant could not fully penetrate her.
Only a portion of his penis entered her as she kept on moving
(p. 23, ibid).
Appellant then lay down on his back and commanded her to
mount him. In this position, only a small part again of his penis
was inserted into her vagina. At this stage, appellant had both
his hands flat on the floor. Complainant thought of escaping
(p. 20, ibid).
She dashed out to the next room and locked herself in.
Appellant pursued her and climbed the partition. When she
saw him inside the room, she ran to another room. Appellant
again chased her. She fled to another room and jumped out
through a window (p. 27, ibid).
 Still naked, she darted to the municipal building, which was
about eighteen meters in front of the boarding house, and
knocked on the door. When there was no answer, she ran
around the building and knocked on the back door. When the
policemen who were inside the building opened the door, they
found complainant naked sitting on the stairs crying. Pat.
Donceras, the first policeman to see her, took off his jacket
and wrapped it around her. When they discovered what
happened, Pat. Donceras and two other policemen rushed to
the boarding house. They heard a sound at the second floor
and saw somebody running away. Due to darkness, they
failed to apprehend appellant.
Meanwhile, the policemen brought complainant to the Eastern
Samar Provincial Hospital where she was physically
examined.
Dr. Ma. Luisa Abude, the resident physician who examined
complainant, issued a Medical Certificate (Exhibit "A") which
states:
Physical Examination Patient is fairly built, came
in with loose clothing with no under-clothes;
appears in state of shock, per unambulatory.
PE Findings Pertinent Findings only.
Neck- Circumscribed hematoma at Ant. neck.
Breast Well developed, conical in shape with
prominent nipples; linear abrasions below (L)
breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L) knees.
Vulva No visible abrasions or marks at the
perineal area or over the
vulva, errythematous (sic) areas noted surrounding
vaginal orifice, tender, hymen intact; no laceration
fresh and old noted; examining finger can barely
enter and with difficulty; vaginal canal tight; no
discharges noted.
As aforementioned, the trial court convicted the accused of frustrated
rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in
the testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was
committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras
because they "show remarkable and vital inconsistencies and its
incredibility amounting to fabrication and therefore casted doubt to its
candor, truth and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer
to trivial inconsistencies which are not sufficient to blur or cast doubt on
the witnesses' straightforward attestations. Far from being badges of
fabrication, the inconsistencies in their testimonies may in fact be
justifiably considered as manifestations of truthfulness on material
points. These little deviations also confirm that the witnesses had not
been rehearsed. The most candid witnesses may make mistakes
sometimes but such honest lapses do not necessarily impair their
intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988,
160 SCRA 98). Rather than discredit the testimonies of the prosecution
witnesses, discrepancies on minor details must be viewed as adding
credence and veracity to such spontaneous testimonies (Aportadera et
al. v. Court of Appeals, et al., G.R. No. L-41358, March 16, 1988, 158
SCRA 695). As a matter of fact, complete uniformity in details would be
a strong indication of untruthfulness and lack of spontaneity (People v.
Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one
of the alleged inconsistencies deserves a little discussion which is, the
testimony of the victim that the accused asked her to hold and guide his
penis in order to have carnal knowledge of her. According to the
accused, this is strange because "this is the only case where an
aggressor's advances is being helped-out by the victim in order that
there will be a consumation of the act." (p. 34, Rollo). The allegation
would have been meritorious had the testimony of the victim ended
there. The victim testified further that the accused was holding a
Batangas knife during the aggression. This is a material part of the
victim's testimony which the accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the
findings of fact of the trial court on the credibility of witnesses should be
accorded the highest respect because it has the advantage of observing
the demeanor of witnesses and can discern if a witness is telling the
truth (People v. Samson, G.R. No. 55520, August 25, 1989). We quote
with favor the trial court's finding regarding the testimony of the victim (p
56, Rollo):
As correctly pointed out in the memorandum for the People,
there is not much to be desired as to the sincerity of the
offended party in her testimony before the court. Her answer
to every question profounded (sic), under all circumstances,
are plain and straightforward. To the Court she was a picture
of supplication hungry and thirsty for the immediate
vindication of the affront to her honor. It is inculcated into the
mind of the Court that the accused had wronged her; had
traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all
that is necessary to show that rape was committed provided her
testimony is clear and free from contradiction and her sincerity and
candor, free from suspicion (People v Alfonso, G.R. No. 72573, August
31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88,
February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498,
December 16, 1985, 140 SCRA 400). The victim in this case did not only
state that she was raped but she testified convincingly on how the rape
was committed. The victim's testimony from the time she knocked on the
door of the municipal building up to the time she was brought to the
hospital was corroborated by Pat. Donceras. Interpreting the findings as
indicated in the medical certificate, Dr. Reinerio Zamora (who was
presented in view of the unavailability of Dr. Abude) declared that the
abrasions in the left and right knees, linear abrasions below the left
breast, multiple pinpoint marks, circumscribed hematoma at the anterior
neck, erythematous area surrounding the vaginal orifice and tender
vulva, are conclusive proof of struggle against force and violence
exerted on the victim (pp. 52-53, Rollo). The trial court even inspected
the boarding house and was fully satisfied that the narration of the scene
of the incident and the conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition
safe enough to carry the weight of both accused and offended
party without the slightest difficulty, even in the manner as
narrated. The partitions of every room were of strong
materials, securedly nailed, and would not give way even by
hastily scaling the same.
A little insight into human nature is of utmost value in judging rape
complaints (People v. Torio, et al., G.R. No. L-48731, December 21,
1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that
balcony (opening) to the ground which was correctly
estimated to be less than eight (8) meters, will perhaps
occasion no injury to a frightened individual being pursued.
Common experience will tell us that in occasion of
conflagration especially occuring (sic) in high buildings, many
have been saved by jumping from some considerable heights
without being injured. How much more for a frightened barrio
girl, like the offended party to whom honor appears to be more
valuable than her life or limbs? Besides, the exposure of her
private parts when she sought assistance from authorities, as
corroborated, is enough indication that something not ordinary
happened to her unless she is mentally deranged. Sadly,
nothing was adduced to show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30,
1982, 117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is
her having been rendered entirely naked by appellant and that
even in her nudity, she had to run away from the latter and
managed to gain sanctuary in a house owned by spouses
hardly known to her. All these acts she would not have done
nor would these facts have occurred unless she was sexually
assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present
other witnesses to corroborate the allegations in the complaint and the
non-presentation of the medico-legal officer who actually examined the
victim. Suffice it to say that it is up to the prosecution to determine who
should be presented as witnesses on the basis of its own assessment
of their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679,
June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989). As
for the non-presentation of the medico-legal officer who actually
examined the victim, the trial court stated that it was by agreement of
the parties that another physician testified inasmuch as the medico-legal
officer was no longer available. The accused did not bother to contradict
this statement.
Summing up, the arguments raised by the accused as regards the first
assignment of error fall flat on its face. Some were not even
substantiated and do not, therefore, merit consideration. We are
convinced that the accused is guilty of rape. However, We believe the
subject matter that really calls for discussion, is whether or not the
accused's conviction for frustrated rape is proper. The trial court was of
the belief that there is no conclusive evidence of penetration of the
genital organ of the victim and thus convicted the accused of frustrated
rape only.
The accused contends that there is no crime of frustrated rape. The
Solicitor General shares the same view.
Article 335 of the Revised Penal Code defines and enumerates the
elements of the crime of rape:
Art. 335. When and how rape is committed. Rape is
committed by having carnal knowledge of a woman under any
of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious and
3. When the woman is under twelve years of age, even though
neither of the circumstances mentioned in the two next
preceding paragraphs shall be present.
xxx xxx xxx
Carnal knowledge is defined as the act of a man in having sexual bodily
connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies.
Consummated felonies as well as those which are frustrated
and attempted, are punishable.
A felony is consummated when all the elements necessary for
its execution and accomplishment are present; and it is
frustrated when the offender performs all the acts of execution
which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his own
spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted
and consummated stages apply to the crime of rape.1wphi1 Our
concern now is whether or not the frustrated stage applies to the crime
of rape.
The requisites of a frustrated felony are: (1) that the offender has
performed all the acts of execution which would produce the felony and
(2) that the felony is not produced due to causes independent of the
perpetrator's will. In the leading case of United States v. Eduave, 36
Phil. 209, 212, Justice Moreland set a distinction between attempted and
frustrated felonies which is readily understood even by law students:
. . . A crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime by overt
acts, is prevented, against his will, by some outside cause
from performing all of the acts which should produce the
crime. In other words, to be an attempted crime the purpose
of the offender must be thwarted by a foreign force or agency
which intervenes and compels him to stop prior to the moment
when he has performed all of the acts which should produce
the crime as a consequence, which acts it is his intention to
perform. If he has performed all of the acts which should result
in the consummation of the crime and voluntarily desists from
proceeding further, it can not be an attempt. The essential
element which distinguishes attempted from frustrated felony
is that, in the latter, there is no intervention of a foreign or
extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts
have been performed which should result in the
consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of
performing all of the acts which should produce the crime. He
is stopped short of that point by some cause apart from his
voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has carnal
knowledge of his victim he actually attains his purpose and, from that
moment also all the essential elements of the offense have been
accomplished. Nothing more is left to be done by the offender, because
he has performed the last act necessary to produce the crime.Thus, the
felony is consummated. In a long line of cases (People v. Oscar, 48 Phil.
527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-
31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-
32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule
that for the consummation of rape, perfect penetration is not essential.
Any penetration of the female organ by the male organ is sufficient. Entry
of the labia or lips of the female organ, without rupture of the hymen or
laceration of the vagina is sufficient to warrant conviction. Necessarily,
rape is attempted if there is no penetration of the female organ (People
v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United
States v. Garcia: 9 Phil. 434) because not all acts of execution was
performed. The offender merely commenced the commission of a felony
directly by overt acts. Taking into account the nature, elements and
manner of execution of the crime of rape and jurisprudence on the
matter, it is hardly conceivable how the frustrated stage in rape can ever
be committed.
Of course, We are aware of our earlier pronouncement in the case of
People v. Eria 50 Phil. 998 [1927] where We found the offender guilty
of frustrated rape there being no conclusive evidence of penetration of
the genital organ of the offended party. However, it appears that this is
a "stray" decision inasmuch as it has not been reiterated in Our
subsequent decisions. Likewise, We are aware of Article 335 of the
Revised Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965)
which provides, in its penultimate paragraph, for the penalty of death
when the rape is attempted or frustrated and a homicide is committed
by reason or on the occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead provision. The Eria
case, supra, might have prompted the law-making body to include the
crime of frustrated rape in the amendments introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the
genital organ of the victim, the trial court relied on the testimony of Dr.
Zamora when he "categorically declared that the findings in the vulva
does not give a concrete disclosure of penetration. As a matter of fact,
he tossed back to the offended party the answer as to whether or not
there actually was penetration." (p. 53, Rollo) Furthermore, the trial court
stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical
certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora
and the equivocal declaration of the latter of uncertainty
whether there was penetration or not. It is true, and the Court
 is not oblivious, that conviction for rape could proceed from
the uncorroborated testimony of the offended party and that a
medical certificate is not necessary (People v. Royeras
People v. Orteza, 6 SCRA 109, 113). But the citations the
people relied upon cannot be applicable to the instant case.
The testimony of the offended party is at variance with the
medical certificate. As such, a very disturbing doubt has
surfaced in the mind of the court. It should be stressed that in
cases of rape where there is a positive testimony and a
medical certificate, both should in all respect, compliment
each other, for otherwise to rely on the testimony alone in utter
disregard of the manifest variance in the medical certificate,
would be productive of mischievous results.
The alleged variance between the testimony of the victim and the
medical certificate does not exist. On the contrary, it is stated in the
medical certificate that the vulva was erythematous (which means
marked by abnormal redness of the skin due to capillary congestion, as
in inflammation) and tender. It bears emphasis that Dr. Zamora did not
rule out penetration of the genital organ of the victim. He merely testified
that there was uncertainty whether or not there was penetration. Anent
this testimony, the victim positively testified that there was penetration,
even if only partially (pp. 302, 304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx xxx xxx
Article 335, paragraph 3, of the Revised Penal Code provides that
whenever the crime of rape is committed with the use of a deadly
weapon, the penalty shall be reclusion perpetua to death. The trial court
appreciated the aggravating circumstances of dwelling and nighttime.
Thus, the proper imposable penalty is death. In view, however, of Article
111, Section 19(1) of the 1987 Constitution and Our ruling in People
v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited
Constitutional provision did not declare the abolition of the death penalty
but merely prohibits the imposition of the death penalty, the Court has
since February 2, 1987 not imposed the death penalty whenever it was
called for under the Revised Penal Code but instead reduced the same
to reclusion perpetua (People v. Solis, et al., G.R. Nos. 78732-33,
February 14, 1990). Reclusion perpetua, being a single indivisible
penalty under Article 335, paragraph 3, is imposed regardless of any
mitigating or aggravating circumstances (in relation to Article 63,
paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No.
59713, March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No.
L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R.
No. 70744, May 31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby
MODIFIED. The accused Ceilito Orita is hereby found guilty beyond
reasonable doubt of the crime of rape and sentenced to reclusion
perpetua as well as to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

Q What do you mean when you said comply, or what act do

you referred (sic) to, when you said comply?

A I inserted his penis into my vagina.

Q And was it inserted?

A Yes only a little.

The fact is that in a prosecution for rape, the accused may be convicted
even on the sole basis of the victim's testimony if credible (People v.
Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v.
Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569;
People v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154
SCRA 349). Moreover, Dr. Zamora's testimony is merely corroborative
and is not an indispensable element in the prosecution of this case
(People v. Alfonso, supra).

Although the second assignment of error is meritorious, it will not tilt the
scale in favor of the accused because after a thorough review of the
records, We find the evidence sufficient to prove his guilt beyond
reasonable doubt of the crime of consummated rape.
EN BANC
[G.R. No. 129433. March 30, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y
BELLO, accused.
DECISION
BELLOSILLO, J.:
[1]
On 3 April 1990 this Court in People v. Orita finally did away with
[2]
frustrated rape and allowed only attempted rape and consummated
rape to remain in our statute books. The instant case lurks at the
threshold of another emasculation of the stages of execution of rape by
considering almost every attempt at sexual violation of a woman as
consummated rape, that is, if the contrary view were to be adopted. The
danger there is that that concept may send the wrong signal to every
roaming lothario, whenever the opportunity bares itself, to better intrude
with climactic gusto, sans any restraint, since after all any attempted
fornication would be considered consummated rape and punished as
such. A mere strafing of the citadel of passion would then be considered
a deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment the
offender had carnal knowledge of the victim since by it he attained his
objective. All the elements of the offense were already present and
nothing more was left for the offender to do, having performed all the
acts necessary to produce the crime and accomplish it. We ruled then
that perfect penetration was not essential; any penetration of the female
organ by the male organ, however slight, was sufficient. The Court
further held that entry of the labia or lips of the female organ, even
without rupture of the hymen or laceration of the vagina, was sufficient
to warrant conviction for consummated rape. We distinguished
consummated rape from attempted rape where there was no
penetration of the female organ because not all acts of execution were
performed as the offender merely commenced the commission of a
felony directly by overt acts.[3] The inference that may be derived
therefrom is that complete or full penetration of the vagina is not required
for rape to be consummated. Any penetration, in whatever degree, is
enough to raise the crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by
requiring entry into the labia or lips of the female organ, even if there be
no rupture of the hymen or laceration of the vagina, to warrant a
conviction for consummated rape. While the entry of the penis into the
lips of the female organ was considered synonymous with mere
touching of the external genitalia, e.g., labia majora, labia minora,
etc.,[4] the crucial doctrinal bottom line is
that touching must be inextricably viewed in light of, in relation to, or as
an essential part of, the process of penile penetration, and not just mere
touching in the ordinary sense. In other words, the touching must be
tacked to the penetration itself. The importance of the requirement of
penetration, however slight, cannot be gainsaid because where entry
into the labia or the lips of the female genitalia has not been established,
the crime committed amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining whether
rape has been committed either in its attempted or in its consummated
stage; otherwise, no substantial distinction would exist between the two,
despite the fact that penalty-wise, this distinction, threadbare as it may
seem, irrevocably spells the difference between life and death for the
accused - a reclusive life that is not even perpetua but only temporal on
one hand, and the ultimate extermination of life on the other. And,
arguing on another level, if the case at bar cannot be deemed attempted
but consummated rape, what then would constitute attempted rape?
Must our field of choice be thus limited only to consummated rape and
acts of lasciviousness since attempted rape would no longer be possible
in light of the view of those who disagree with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory
rape and sentenced by the court a quo to the extreme penalty of
death,[5] hence this case before us on automatic review under Art. 335
of the Revised Penal Code as amended by RA 7659.[6]
As may be culled from the evidence on record, on 25 April 1996, at
around 4 oclock in the afternoon, Ma. Corazon P. Pamintuan, mother of
four (4)-year old Crysthel Pamintuan, went down from the second floor
of their house to prepare Milo chocolate drinks for her two (2) children.
At the ground floor she met Primo Campuhan who was then busy filling
small plastic bags with water to be frozen into ice in the freezer located
at the second floor. Primo was a helper of Conrado Plata Jr., brother of
Corazon. As Corazon was busy preparing the drinks, she heard one of
her daughters cry, "Ayo'ko, ayo'ko!"[7] prompting Corazon to rush
upstairs. Thereupon, she saw Primo Campuhan inside her childrens
room kneeling before Crysthel whose pajamas or "jogging pants" and
panty were already removed, while his short pants were down to his
knees.
According to Corazon, Primo was forcing his penis into Crysthels vagina.
Horrified, she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and
boxed him several times. He evaded her blows and pulled up his pants.
He pushed Corazon aside when she tried to block his path. Corazon
then ran out and shouted for help thus prompting her brother, a cousin
and an uncle who were living within their compound, to chase the
accused.[8] Seconds later, Primo was apprehended by those who
answered Corazon's call for help. They held the accused at the back of
their compound until they were advised by their neighbors to call
the barangay officials instead of detaining him for his misdeed. Physical
examination of the victim yielded negative results. No evident sign of
extra-genital physical injury was noted by the medico-legal officer on
Crysthels body as her hymen was intact and its orifice was only 0.5 cm.
in diameter.
Primo Campuhan had only himself for a witness in his defense. He
maintained his innocence and assailed the charge as a mere scheme of
Crysthel's mother who allegedly harbored ill will against him for his
[9]
refusal to run an errand for her. He asserted that in truth Crysthel was
in a playing mood and wanted to ride on his back when she suddenly
pulled him down causing both of them to fall down on the floor. It was in
this fallen position that Corazon chanced upon them and became
hysterical. Corazon slapped him and accused him of raping her child.
He got mad but restrained himself from hitting back when he realized
she was a woman. Corazon called for help from her brothers to stop him
as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and
accosted Primo. Vicente punched him and threatened to kill him. Upon
hearing the threat, Primo immediately ran towards the house of Conrado
Plata but Vicente followed him there. Primo pleaded for a chance to
explain as he reasoned out that the accusation was not true. But Vicente
kicked him instead. When Primo saw Vicente holding a piece of lead
pipe, Primo raised his hands and turned his back to avoid the blow. At
this moment, the relatives and neighbors of Vicente prevailed upon him
to take Primo to the barangay hall instead, and not to maul or possibly
kill him.
Although Primo Campuhan insisted on his innocence, the trial court on
27 May 1997 found him guilty of statutory rape, sentenced him to the
extreme penalty of death, and ordered him to pay his victim P50,000.00
for moral damages, P25,000.00 for exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma.
Corazon Pamintuan. He argues that her narration should not be given
any weight or credence since it was punctured with implausible
statements and improbabilities so inconsistent with human nature and
experience. He claims that it was truly inconceivable for him to commit
the rape considering that Crysthels younger sister was also in the room
playing while Corazon was just downstairs preparing Milo drinks for her
daughters. Their presence alone as possible eyewitnesses and the fact
that the episode happened within the family compound where a call for
assistance could easily be heard and responded to, would have been
enough to deter him from committing the crime. Besides, the door of the
room was wide open for anybody to see what could be taking place
inside. Primo insists that it was almost inconceivable that Corazon could
give such a vivid description of the alleged sexual contact when from
where she stood she could not have possibly seen the
alleged touching of the sexual organs of the accused and his victim. He
asserts that the absence of any external signs of physical injuries or of
penetration of Crysthels private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the
testimony of Corazon that she saw Primo with his short pants down to
his knees kneeling before Crysthel whose pajamas and panty were
supposedly "already removed" and that Primo was "forcing his penis into
Crysthels vagina." The gravamen of the offense of statutory rape is
carnal knowledge of a woman below twelve (12), as provided in Art. 335,
par. (3), of the Revised Penal Code. Crysthel was only four (4) years old
when sexually molested, thus raising the penalty, from reclusion
perpetua to death, to the single indivisible penalty of death under RA
7659, Sec. 11, the offended party being below seven (7) years old. We
have said often enough that in concluding that carnal knowledge took
place, full penetration of the vaginal orifice is not an essential ingredient,
nor is the rupture of the hymen necessary; the mere touching of the
external genitalia by the penis capable of consummating the sexual act
is sufficient to constitute carnal knowledge.[10] But the act
of touching should be understood here as inherently part of the entry of
the penis into the labias of the female organ and not mere touching
alone of the mons pubis or the pudendum.
In People v. De la Pea[11] we clarified that the decisions finding a case
for rape even if the attackers penis merely touched the external portions
of the female genitalia were made in the context of the presence or
existence of an erect penis capable of full penetration. Where the
accused failed to achieve an erection, had a limp or flaccid penis, or an
oversized penis which could not fit into the victim's vagina, the Court
nonetheless held that rape was consummated on the basis of the
victim's testimony that the accused repeatedly tried, but in vain, to insert
his penis into her vagina and in all likelihood reached the labia of
her pudendum as the victim felt his organ on the lips of her vulva,[12]or
that the penis of the accused touched the middle part of her
vagina.[13] Thus, touching when applied to rape cases does not simply
mean mere epidermal contact, stroking or grazing of organs, a slight
brush or a scrape of the penis on the external layer of the victims vagina,
or the mons pubis, as in this case. There must be sufficient and
convincing proof that the penis indeed touched the labias or slid into the
female organ, and not merely stroked the external surface thereof, for
an accused to be convicted of consummated rape. [14] As
the labias, which are required to be "touched" by the penis, are by their
natural situs or location beneath the mons pubis or the vaginal surface,
to touch them with the penis is to attain some degree of penetration
beneath the surface, hence, the conclusion that touching the labia
majoraor the labia minora of the pudendum constitutes consummated
rape.
The pudendum or vulva is the collective term for the female genital
organs that are visible in the perineal area, e.g., mons pubis, labia
majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc.
The mons pubis is the rounded eminence that becomes hairy after
puberty, and is instantly visible within the surface. The next layer is
the labia majora or the outer lips of the female organ composed of the
outer convex surface and the inner surface. The skin of the outer convex
surface is covered with hair follicles and is pigmented, while the inner
surface is a thin skin which does not have any hair but has many
sebaceous glands. Directly beneath the labia majora is the labia
minora.[15] Jurisprudence dictates that the labia majora must
[16]
be entered for rape to be consummated, and not merely for the penis
to stroke the surface of the female organ. Thus, a grazing of the surface
of the female organ or touching the mons pubis of the pudendum is not
sufficient to constitute consummated rape. Absent any showing of the
slightest penetration of the female organ, i.e., touching of either labia of
the pudendum by the penis, there can be no consummated rape; at
most, it can only be attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the
oft-quoted "touching of the female organ,"[17] but has also progressed
into being described as "the introduction of the male organ into
the labia of the pudendum,"[18] or "the bombardment of the
[19]
drawbridge." But, to our mind, the case at bar merely constitutes a
"shelling of the castle of orgasmic potency," or as earlier stated, a
"strafing of the citadel of passion."
A review of the records clearly discloses that the prosecution utterly
failed to discharge its onus of proving that Primos penis was able to
penetrate Crysthels vagina however slight. Even if we
grant arguendo that Corazon witnessed Primo in the act of sexually
molesting her daughter, we seriously doubt the veracity of her claim that
she saw the inter-genital contact between Primo and Crysthel. When
asked what she saw upon entering her childrens room Corazon plunged
into saying that she saw Primo poking his penis on the vagina of Crysthel
without explaining her relative position to them as to enable her to see
clearly and sufficiently, in automotive lingo, the contact point. It should
be recalled that when Corazon chanced upon Primo and Crysthel, the
former was allegedly in a kneeling position, which Corazon described
thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that
the chest of the accused is pinning down the victim,
while his right hand is holding his penis and his left
hand is spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that Primos
kneeling position rendered an unbridled observation impossible. Not
even a vantage point from the side of the accused and the victim would
have provided Corazon an unobstructed view of Primos penis
supposedly reaching Crysthels external genitalia, i.e., labia
majora, labia minora, hymen, clitoris, etc., since the legs and arms of
Primo would have hidden his movements from Corazons sight, not to
discount the fact that Primos right hand was allegedly holding his penis
thereby blocking it from Corazons view. It is the burden of the
prosecution to establish how Corazon could have seen the sexual
contact and to shove her account into the permissive sphere of
credibility. It is not enough that she claims that she saw what was done
to her daughter. It is required that her claim be properly demonstrated
to inspire belief. The prosecution failed in this respect, thus we cannot
conclude without any taint of serious doubt that inter-genital contact was
at all achieved. To hold otherwise would be to resolve the doubt in favor
of the prosecution but to run roughshod over the constitutional right of
the accused to be presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his
wicked intention despite her timely appearance, thus giving her the
opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with mans instinct of self-
preservation to remain where he is and persist in satisfying his lust even
when he knows fully well that his dastardly acts have already been
discovered or witnessed by no less than the mother of his victim. For,
the normal behavior or reaction of Primo upon learning of Corazons
presence would have been to pull his pants up to avoid being caught
literally with his pants down. The interval, although relatively short,
provided more than enough opportunity for Primo not only to desist from
but even to conceal his evil design.
What appears to be the basis of the conviction of the accused was
Crysthel's answer to the question of the court -
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she
readily said, "No." Thus -
Q: But did his penis penetrate your organ?
A: No, sir.[20]
This testimony alone should dissipate the mist of confusion that
enshrouds the question of whether rape in this case was consummated.
It has foreclosed the possibility of Primos penis penetrating her vagina,
however slight. Crysthel made a categorical statement denying
penetration,[21] obviously induced by a question propounded to her who
could not have been aware of the finer distinctions
between touching and penetration. Consequently, it is improper and
unfair to attach to this reply of a four (4)-year old child, whose vocabulary
is yet as underdeveloped as her sex and whose language is bereft of
worldly sophistication, an adult interpretation that because the penis of
the accused touched her organ there was sexual entry. Nor can it be
deduced that in trying to penetrate the victim's organ the penis of the
accused touched the middle portion of her vagina and entered
the labia of her pudendum as the prosecution failed to establish
sufficiently that Primo made efforts to penetrate Crysthel.[22] Corazon did
not say, nay, not even hint that Primo's penis was erect or that he
responded with an erection.[23] On the contrary, Corazon even narrated
that Primo had to hold his penis with his right hand, thus showing that
he had yet to attain an erection to be able to penetrate his victim.
Antithetically, the possibility of Primos penis having breached Crysthels
vagina is belied by the child's own assertion that she resisted Primos
advances by putting her legs close together; [24] consequently, she did
not feel any intense pain but just felt "not happy" about what Primo did
to her.[25] Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray
ko!" In cases where penetration was not fully established, the Court had
anchored its conclusion that rape nevertheless was consummated on
the victim's testimony that she felt pain, or the medico-legal finding
of discoloration in the inner lips of the vagina, or the labia minora was
already gaping with redness, or the hymenal tags were no longer
[26]
visible. None was shown in this case. Although a child's testimony
must be received with due consideration on account of her tender age,
the Court endeavors at the same time to harness only what in her story
appears to be true, acutely aware of the equally guaranteed rights of the
accused. Thus, we have to conclude that even on the basis of the
testimony of Crysthel alone the accused cannot be held liable for
consummated rape; worse, be sentenced to death.
from the medium period of reclusion temporal, the range of which is
fourteen (14) years, eight (8) months and (1) day to seventeen (17)
years and four (4) months, while the minimum shall be taken from the
penalty next lower in degree, which is prision mayor, the range of which
is from six (6) years and one (1) day to twelve (12) years, in any of its
periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO
"SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing
him to death and to pay damages is MODIFIED. He is instead found
guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison
term of eight (8) years four (4) months and ten (10) days of prision
mayor medium as minimum, to fourteen (14) years ten (10) months and
twenty (20) days of reclusion temporal medium as maximum. Costs de
oficio.
SO ORDERED.

Lastly, it is pertinent to mention the medico legal officer's finding in this Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing,
case that there were no external signs of physical injuries on Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De
complaining witness body to conclude from a medical perspective that Leon, Jr., JJ., concur.
penetration had taken place. As Dr. Aurea P. Villena explained, although
the absence of complete penetration of the hymen does not negate the Panganiban, J., in the result.
possibility of contact, she clarified that there was no medical basis to
hold that there was sexual contact between the accused and the
victim.[27]

In cases of rape where there is a positive testimony and a medical

certificate, both should in all respects complement each other;
otherwise, to rely on the testimonial evidence alone, in utter disregard of
the manifest variance in the medical certificate, would be productive of
unwarranted or even mischievous results. It is necessary to carefully
ascertain whether the penis of the accused in reality entered the
labialthreshold of the female organ to accurately conclude that rape was
consummated. Failing in this, the thin line that separates attempted rape
from consummated rape will significantly disappear.

Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is
attempted when the offender commences the commission of rape
directly by overt acts, and does not perform all the acts of execution
which should produce the crime of rape by reason of some cause or
accident other than his own spontaneous desistance. All the elements
of attempted rape - and only of attempted rape - are present in the
instant case, hence, the accused should be punished only for it.

The penalty for attempted rape is two (2) degrees lower than the
imposable penalty of death for the offense charged, which is statutory
rape of a minor below seven (7) years. Two (2) degrees lower
is reclusion temporal, the range of which is twelve (12) years and one
(1) day to twenty (20) years. Applying the Indeterminate Sentence Law,
and in the absence of any mitigating or aggravating circumstance, the
maximum of the penalty to be imposed upon the accused shall be taken
 Guilgan was sentenced to six years and one day of presidio mayor and
to pay one-half of the costs. From this judgment this defendant
appealed. With respect to Hugo Labarro or Navarro, the proceedings
were dismissed with the other half of the costs de officio.

Between 8 and 9 o'clock in the morning of April 28th of this year, when
M. D. Lewin was absent from the house in which he was living his family,
at No. 328, San Rafael Street, San Miguel, Mrs. Auckback, who appears
to have been a resident of the neighborhood, called Mrs. Lewin and told
her that much smoke was issuing from the lower floor of the latter's
house, for until then Mrs. Lewin had not noticed it, and as soon as her
attention was brought to the fact she ordered the servant Paulino Banal
to look for the fire, as he did and he found, so asked with kerosene oil
and placed between a post of the house and a partition of the entresol,
a piece of a jute sack and a rag which were burning. At that moment the
defendant Valdes was in the entresol, engaged in his work of cleaning,
while, the other defendant Hugo Labarro was cleaning the horses kept
at the place.

On the same morning of the occurrence, the police arrested the

defendants, having been called for the purpose by telephone. Severino
Valdes, after his arrest, according to the statement, Exhibit C, drawn up
in the police station, admitted before several policemen that it was he
who had set the fire to the sack and the rag, which had been noticed on
the date mentioned. and he also who had started the several other fires
which had occurred in said house on previous days; that he had
performed such acts through the inducement of the other prisoner, Hugo
Labarro, for they felt resentment against, or had trouble with, their
masters, and that, as he and his coaccused were friends, he acted as
he did under the promise on Labarro's part to give him a peso for each
such fire that he should start. lawphi1.net

The defendant Severino Valdes admitted, in an affidavit, that he made

declarations in the police station, although he denied having placed the

G.R. No. L-14128 December 10, 1918 rag and piece of jute sack, soaked with kerosene, in the place where
they were found, and stated, that it was the servant Paulino who had

THE UNITED STATES, plaintiff-appellee, done so. He alleged that, on being arraigned, he stated that he had set

vs. fire to a pile of dry mango leaves that he had gathered together, which

SEVERINO VALDES Y GUILGAN, defendant-appellant. is contrary to the statement he made in the police station, to wit, that he
had set the fire to the said rag and piece of sack under the house.

Ariston Estrada for appellant.

Attorney-General Paredes for appellee. For lack of evidence and on his counsel's petition, the case was
dismissed with respect to the other defendant Hugo Labarro.

Owing to the repeated attempts made for about a month past, since

TORRES, J.: Severino Valdes Began to serve the Lewin family, to burn the house
above mentioned. occupied by the latter and in which this defendant was

This cause was instituted by a complaint filed by the prosecuting employed, some policemen were watching the building and one of them,

attorney before the Court of First Instance of this city, charging Severino Antonio Garcia del Cid., one morning prior to the commission of the

Valdes y Guilgan and Hugo Labarro y Bunaladi, alias Hugo Navarro y crime, according to his testimony, saw the defendant Valdes climbing up

Bunadia, with the crime of arson, and, on the 20th of May of the present the wall of the warehouse behind the dwelling house, in which

year, judgment was rendered whereby Severino or Faustino Valdes u warehouse there was some straw that had previously been burned, and
that, when the defendant noticed the presence of the policeman, he
desisted from climbing the wall and entering the warehouse.

The fact of setting fire to a jute sack and a rag, soaked with kerosene oil
and placed beside an upright of the house and a partition of the entresol
of the building, thus endangering the burning of the latter, constitutes the
crime of frustrated arson of an inhabited house, on an occasion when
some of its inmates were inside of it.. This crime of provided for and
punished by article 549, in connection with articles 3, paragraph 2, and
65 of the Penal Code, and the sole proven perpetrator of the same by
direct participation is the defendant Severino Valdes, for,
notwithstanding his denial and unsubstantiated exculpations, the record
discloses conclusive proof that it was he who committed the said
unlawful act, as it was also he who was guilty of having set the other
fires that occurred in said house. In an affidavit the defendant admitted
having made declarations in the police station, and though at the trial he
denied that he set fire to the sacks and the rag which were found soaked
in kerosene and burning, and, without proof whatever, laid the blame
unto his codefendant, the fact is that confessed to having set fire to a
pile of dry leaves whereby much smoke arose from the lower part of the
house, but which, however, did not forewarn his mistress, Mrs. Lewin,
though she should have noticed it, and he allowed the sack and the rag
to continue burning until Mrs. Auckback noticing a large volume of
smoke in the house, gave the alarm. No proof was submitted to
substantiate the accusation he made against the servant Paulino, who
apparently is the same persons as the driver Hugo Labarro.

The crime is classified only as frustrated arson, inasmuch as the

defendant performed all the acts conceive to the burning of said house,
but nevertheless., owing to causes independent of his will, the criminal
act which he intended was not produced. The offense committed cannot
be classified as consummated arson by the burning of said inhabited
house, for the reason that no part of the building had yet commenced to
burn, although, as the piece of sack and the rag, soaked in kerosene oil,
had been placed near partition of the entresol, the partition might have
started to burn, had the fire not been put out on time.

There is no extenuating or aggravating circumstance to be considered

in a connection with the commission of the crime, and therefore the
penalty of presidio mayor immediately inferior in degree to that specified
in article 549 of the Penal Code, should be imposed in its medium
degree.

For the foregoing reasons the judgment appealed from should be

affirmed, with the modification however, that the penalty imposed upon
the defendant shall be given eight years and one day of presidio mayor,
with the accessory penalties prescribed in article 57 of the Code. The
defendant shall also pay the costs of both instances. So ordered.

Arellano, C.J., Johnson, Araullo, Street, Malcolm and Avancea, JJ.,

concur.

SECOND DIVISION
[G.R. No. 121828. June 27, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs. EDMAR AGUILOS,
ODILON LAGLIBA Y ABREGON and RENE GAYOT
PILOLA, accused, RENE GAYOT PILOLA, appellant.
DECISION
CALLEJO, SR., J.:
Before us is the appeal of appellant Rene Gayot Pilola for the
reversal of the Decision[1] of the Regional Trial Court (RTC) of Pasig City,
Branch 164, convicting him of murder, sentencing him to suffer reclusion
perpetua and ordering him to indemnify the heirs of the victim Joselito
Capa y Rulloda in the amount of P50,000 for the latters death.
The Indictment
On June 7, 1998, Edmar Aguilos, Odilon Lagliba y Abregon and
appellant Rene Gayot Pilola were charged with murder in an Information
which reads:
That on or about the 5th day of February, 1988 in the Municipality of
Mandaluyong, Metro Manila, Philippines, a place within the jurisdiction
of this Honorable Court, the above-named accused, conspiring and
confederating together with one Ronnie Diamante who is still at-large
and no fixed address and mutually helping and aiding with one another,
armed with double-bladed knives and a bolo and with intent to kill,
treachery and taking advantage of superior strength, did then and there
willfully, unlawfully and feloniously attack, assault hack and stab one
Joselito Capa y Rulloda, as a result of which the latter sustained hack
and stab wounds on the different parts of his body, which directly caused
his death.
CONTRARY TO LAW.[2]
Of the three accused, Odilon Lagliba was the first to be
arrested[3] and tried, and subsequently convicted of murder. [4] The
decision of the trial court became final and executory. Accused Edmar
Aguilos remains at large while accused Ronnie Diamante reportedly
died a month after the incident. Meanwhile, herein appellant Rene Gayot
Pilola was arrested. He was arraigned on March 9, 1994, assisted by
counsel, and pleaded not guilty to the charge.[5] Thereafter, trial of the
case ensued.
The Evidence of the Prosecution[6]
On February 5, 1988, at around 11:30 p.m., Elisa Rolan was
inside their store at 613 Nueve de Pebrero Street, Mandaluyong City,
waiting for her husband to arrive. Joselito Capa and Julian Azul, Jr. were
drinking beer. Edmar Aguilos and Odilon Lagliba arrived at the
store. Joselito and Julian invited them to join their drinking spree, and
although already inebriated, the two newcomers obliged. In the course
of their drinking, the conversation turned into a heated argument. Edmar
nettled Julian, and the latter was peeved. An altercation between the two
ensued. Elisa pacified the protagonists and advised them to go home as
she was already going to close up. Edmar and Odilon left the
store. Joselito and Julian were also about to leave, when Edmar and
Odilon returned, blocking their way. Edmar took off his eyeglasses and
punched Julian in the face. Elisa shouted: Tama na. Tama na. Edmar
and Julian ignored her and traded fist blows until they reached Aling
Soteras store at the end of the street, about twelve to fifteen meters
away from Elisas store. For his part, Odilon positioned himself on top of
a pile of hollow blocks and watched as Edmar and Julian swapped
punches. Joselito tried to placate the protagonists to no avail. Joselitos
intervention apparently did not sit well with Odilon. He pulled out his
knife with his right hand and stepped down from his perch. He placed
his left arm around Joselitos neck, and stabbed the latter. Ronnie and
the appellant, who were across the street, saw their gangmate Odilon
stabbing the victim and decided to join the fray. They pulled out their
knives, rushed to the scene and stabbed Joselito.Elisa could not tell how
many times the victim was stabbed or what parts of his body were hit by
whom. The victim fell in the canal. Odilon and the appellant fled, while
Ronnie went after Julian and tried to stab him. Julian ran for dear
life. When he noticed that Ronnie was no longer running after him, Julian
stopped at E. Rodriguez Road and looked back. He saw Ronnie pick up
a piece of hollow block and with it bashed Joselitos head. Not content,
Ronnie got a piece of broken bottle and struck Joselito once
more. Ronnie then fled from the scene.Joselito died on the spot. Elisa
rushed to Joselitos house and informed his wife and brother of the
[7]
incident.
5. Elliptical, 1.3 cm., oriented almost horizontally, edges are clean-cut,
one extremity is sharp and the other is blunt; located at the lateral chest
wall, level of 7th intercostal space, left, 16.0 cm. from anterior median
line; directed backward, upward and medially, into the left thoracic cavity
and then penetrating the lower lobe of left lung with an approximately
depth of 10.0 cm.;

The next day, Dr. Bienvenido Muoz, Supervising Medico-Legal

6. Elliptical, 4.0 cm., oriented almost horizontally, edges are clean-cut,
Officer of the National Bureau of Investigation, conducted an autopsy on
one extremity is sharp and the other is blunt; located at the lumbar
the cadaver of Joselito and prepared Autopsy Report No. N-88-
region, left, 14.0 cm. from anterior median line; directed backward,
375,[8] with the following findings:
upward and medially, into the abdominal cavity and then penetrating
ileum;
POSTMORTEM FINDINGS

7. Elliptical, 1.5 cm., oriented almost vertically, edges are clean-cut,

Pallor, conjunctivae and integument, marked and generalized.
upper extremity is sharp, lower extremity is blunt; located at the chest,
lateral, level of 9th intercostal space, left; 14.0 cm. from posterior median
Contused abrasions: temple, right, 3.0 x 3.0 cm.; mandibular region,
line; directed forward, upward and medially, non-penetrating with an
right, 2.0 x 8.0 cm.; back, suprascapular region, left, 3.0 x 4.0 cm.;
approximate depth of 4.0 cm.;
deltoid region, right, 1.0 x 3.0 cm.

8. Elliptical, 2.0 cm., oriented almost vertically, edges are clean-cut,

Lacerated wound, scalp, occipital region, 4.0 cm.
upper extremity is blunt, lower extremity is sharp; located at the
abdomen, postero-lateral aspect, 15.0 cm. from posterior median line;
Incised wounds: forehead, right side, 5.5 cm.; arm, left, upper third,
directed forward, upward and laterally, into the abdominal cavity and
posterior aspect, 1.5 cm.
then perforating the spleen and pancreas with an approximate depth of
13.0 cm.;
Stab wounds:

9. Elliptical, 5.0 cm., oriented almost vertically, edges are clean-cut,

1. Elliptical, 1.8 cm., oriented almost horizontally, edges are clean-cut,
upper extremity is blunt, lower extremity is sharp; located at the left arm,
medial extremity is sharp, lateral extremity is blunt; located at the
upper third, anterior; directed backward, downward and medially,
anterior chest wall, level of 3rd intercostal space, right, 5.0 cm. from
involving skin and underlying soft tissues with an approximate depth of
anterior median line; directed backward, upward and medially, non-
6.0 cm.;
penetrating, with an approximate depth of 3.0 cm.;

10. Elliptical, 2.3 cm., oriented almost vertically, edges are clean-cut,
2. Elliptical, 1.5 cm., oriented almost horizontally, edges are clean-cut,
upper extremity is sharp, lower extremity is blunt; located at the left
one extremity is sharp and the other is blunt; located at the antero-lateral
forearm, upper third, anterior; directed backward, upward and medially
aspect of chest, level of 3rd intercostal space, left, 3.0 cm. from anterior
and communicating with another wound, arm, left, medial aspect, 2.0
median line; directed backward, downward and medially, into the left
cm.;
thoracic cavity, penetrating the left ventricle of the heart with an
approximate depth of 10.0 cm.;
11. Elliptical, 2.0 cm., oriented almost vertically, edges are clean-cut,
upper extremity blunt, lower extremity, sharp; located at the left arm,
3. Elliptical, 3.0 cm., oriented almost horizontally, edges are clean-cut,
lower third, posterior aspect, directed forward, downward and medially,
one extremity is sharp and the other is blunt; located at the antero-lateral
communicating with another wound, arm, left, lower third, posterior
aspect of chest, level of 4th intercostal space, 12.0 cm. from anterior
aspect, 1.5 cm.
median line; directed backward, downward and medially, penetrating
upper lobe of left lung with an approximate depth of 9.0 cm.;
Hemothorax, left 900 c.c.

4. Elliptical, 2.0 cm., oriented almost horizontally, edges are clean-cut,

Hemopericardium 300 c.c.
one extremity is sharp and the other is blunt; located at the antero-lateral
aspect of chest, level of 5th intercostal space, left, 15.0 cm. from anterior
Hemoperitoneum 750 c.c.
median line; directed backward, downward and medially, penetrating the
left thoracic cavity and then lower lobe of left lung and then penetrating
Brain and other visceral organs, pale.
the left ventricle of the heart with an approximate depth of 11.0 cm.;
Stomach-filled with rice and other food particles.
CAUSE OF DEATH: Multiple stab wounds.
The Evidence of the Appellant
The appellant denied stabbing the victim and interposed the
defense of alibi. He testified that at around 11:00 p.m. of February 5,
1988, he was in the house of his cousin, Julian Cadion, at 606 Nueve
de Pebrero Street, Mandaluyong City. He suddenly heard a commotion
coming from outside. Julian rushed out of the house to find out what was
going on. The appellant remained inside the house because he was
suffering from ulcer and was experiencing excessive pain in his
stomach. The following morning, the appellant learned from their
neighbor, Elisa Rolan, that Joselito had been stabbed to death. The
appellant did not bother to ask who was responsible for the stabbing. [9]
Julian alias Buboy Cadion corroborated the appellants
testimony. He testified that the appellant was in their house on the night
of February 5, 1988, and was suffering from ulcer. The appellant stayed
home on the night of the incident.[10]
Agripina Gloria, a female security guard residing at Block 30,
Nueve de Pebrero, 612, Int. 4, Allison St., Mandaluyong City, testified
that on February 5, 1988 at around 11:00 p.m., she heard a commotion
outside. Momentarily, she saw Ronnie rush into the kitchen of the house
of her niece Teresita; he took a knife and run towards Nueve de Pebrero
Street where Edmar and Julian were fighting. She then followed Ronnie
and saw Joselito trying to pacify the protagonists. Ronnie grabbed
Joselito and instantly stabbed the latter, who for a while retreated and
fell down the canal. Not content, Ronnie repeatedly stabbed
Joselito. Thereafter, Ronnie ran towards the direction of the mental
hospital. Agripina did not see Odilon or the appellant anywhere within
the vicinity of the incident.[11]
On May 3, 1995, the trial court rendered its assailed decision, the
dispositive portion of which reads, to wit:
WHEREFORE, this Court finds RENE GAYOT PILOLA of 606 Nueve de
Febrero Street, Mandaluyong City, GUILTY beyond reasonable doubt of
Murder punished under Article 248 of the Revised Penal Code, and
there being no mitigating nor aggravating circumstances, he is hereby
sentenced to reclusion perpetua. Pilola is hereby ordered to indemnify
the heirs of deceased Joselito Capa alias Jessie in the amount of FIFTY
THOUSAND PESOS (P50,000.00) as indemnity for his death jointly and
solidarily with Odilon Lagliba who was earlier convicted herein. With cost
[12]
against the accused.
In the case at bar, the appellant assails the decision of the trial
court contending that:
I
THE TRIAL COURT ERRED IN CONCLUDING THAT THERE WAS
CONSPIRACY ANENT THE ASSAILED INCIDENT.
II
THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE
UNRELIABLE AND INCONSISTENT TESTIMONY OF PROSECUTION
WITNESS ELISA ROLAN AND IN SETTING ASIDE THE EVIDENCE
PROFFERED BY ACCUSED-APPELLANT.
III
THE TRIAL COURT MANIFESTLY ERRED IN CONVICTING
ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE THE
FACT THAT HIS GUILT WAS NOT PROVED BEYOND REASONABLE
DOUBT.[13]
The appellant avers that Elisa is not a credible witness and her
testimony is barren of probative weight. This is so because she
contradicted herself when she testified on direct examination that
Ronnie struck the head of the victim with a hollow block. However, on
cross-examination, she stated that it was Edmar who struck the
victim. The inconsistency in Elisas testimony impaired her credibility.
The contention of the appellant does not hold water.
First. The identity of the person who hit the victim with a hollow
block is of de minimis importance. The victim died because of multiple
wounds. The appellant is charged with murder for the killing of the victim
with a knife, in conspiracy with the other accused.
Second. The perceived inconsistency in Elisas account of events
is a minor and collateral detail that does not affect the substance of her
testimony, as it even serves to strengthen rather than destroy her
credibility.[14]
Third. Elisa has been consistent in her testimony that the
appellant was one of the men who stabbed the victim, the others being
Ronnie and Odilon. Elisas testimony is corroborated by the autopsy
report of Dr. Bienvenido Muoz and his testimony that the victim
sustained eleven stab wounds. The doctor testified that there were two
or more assailants:
Q Could you tell the court what instrument could have been
used by the perpetrator in inflicting those two incise
wounds?
A Those incise wounds were caused by a sharp instrument
like a knife or any similar instrument.
Q Now you also found out from the body of the victim eleven
stab wounds?
A Yes, sir.
 Q Now, tell the court in which part of the body of the victim
where these eleven stab wounds [are] located?
A Shall I go one by one, all the eleven stab wounds?
Q All the eleven stab wounds?
A One stab wound was located at the front portion of the
chest, right side. Another stab wound was located
also on the chest left side, another stab wound was
located at the antero lateral aspect, its the front of the
chest almost to the side. And also another one, also
at the chest, another stab wound was at the left side
of the chest and another one was at the lumbar region
of the abdomen left side or where the left kidney is
located, lumbar area. Another one at the side of the
chest, left side of the chest. Another stab wound in
the abdomen, another stab wound at the left
arm. Another one at the left forearm and the last one
in the autopsy report is located at the left arm. These
are all the eleven stab wounds sustained by the
victim.
A The instrument used was a sharp pointed edge or a single
bladed instrument like a knife, kitchen knife, balisong
or any similar instrument.
Q Considering the number of stab wounds, doctor, will you
tell us whether there were several assailants?
A In my opinion, there were more than one assailants (sic)
here because of the presence of different types of
stab wounds and lacerated wounds. This lacerated
wound could not have been inflicted by the one
holding the one which inflicted the instrument . .
(discontinued) which inflicted the stab wounds.
Q So there could have been two or three assailants?
A More than one.[15]
The physical evidence is a mute but eloquent manifestation of the
veracity of Elisas testimony.[16]
Fourth. Even the appellant himself declared on the witness stand
that he could not think of any reason why Elisa pointed to him as one of
the assailants. In a litany of cases, we have ruled that when there is no
showing of any improper motive on the part of a witness to testify falsely
against the accused or to falsely implicate the latter in the commission
of the crime, as in the case at bar, the logical conclusion is that no such
improper motive exists, and that the testimony is worthy of full faith and
credence. [17]
Fifth. The trial court gave credence and full probative weight to
Elisas testimony. Case law has it that the trial courts calibration of the
testimonial evidence of the parties, its assessment of the credibility of
witnesses and the probative weight thereof is given high respect, if not
conclusive effect, by the appellate court.
The appellant argues that the prosecution failed to prove that he
conspired with Ronnie and Odilon in stabbing the victim to death. He
contends that for one to be a conspirator, his participation in the criminal
resolution of another must either precede or be concurrent with the
criminal acts. He asserts that even if it were true that he was present at
the situs criminis and that he stabbed the victim, it was Odilon who had
already decided, and in fact fatally stabbed the victim. He could not have
conspired with Odilon as the incident was only a chance encounter
between the victim, the appellant and his co-accused. In the absence of
a conspiracy, the appellant cannot be held liable as a principal by direct
participation. Elisa could not categorically and positively assert as to
what part of the victims body was hit by whom, and how many times the
victim was stabbed by the appellant. He asserts that he is merely an
accomplice and not a principal by direct participation.
We are not persuaded by the ruminations of the appellant.
There is conspiracy when two or more persons agree to commit a
felony and decide to commit it.[18] Conspiracy as a mode of incurring
criminal liability must be proved separately from and with the same
quantum of proof as the crime itself. Conspiracy need not be proven by
direct evidence. After all, secrecy and concealment are essential
features of a successful conspiracy. It may be inferred from the conduct
of the accused before, during and after the commission of the crime,
showing that they had acted with a common purpose and
design.[19]Conspiracy may be implied if it is proved that two or more
persons aimed by their acts towards the accomplishment of the same
unlawful object, each doing a part so that their combined acts, though
apparently independent of each other, were, in fact, connected and
cooperative, indicating a closeness of personal association and a
concurrence of sentiment.[20] There may be conspiracy even if an
offender does not know the identities of the other offenders,[21] and even
though he is not aware of all the details of the plan of operation or was
not in on the scheme from the beginning.[22] One need only to knowingly
contribute his efforts in furtherance of it.[23] One who joins a criminal
conspiracy in effect adopts as his own the criminal designs of his co-
conspirators. If conspiracy is established, all the conspirators are liable
as co-principals regardless of the manner and extent of their
participation since in contemplation of law, the act of one would be the
act of all.[24] Each of the conspirators is the agent of all the others.[25]
To hold an accused guilty as a co-principal by reason of
conspiracy, he must be shown to have performed an overt act in
pursuance or furtherance of the conspiracy.[26] The mere presence of an
accused at the situs of the crime will not suffice; mere knowledge,
acquiescence or approval of the act without cooperation or agreement
to cooperate on the part of the accused is not enough to make him a
party to a conspiracy. There must be intentional participation in the
transaction with a view to the furtherance of the common design and
purpose.[27]Conspiracy to exist does not require an agreement for an
appreciable period prior to the occurrence. From the legal standpoint,
conspiracy exists if, at the time of the commission of the offense, the
accused had the same purpose and were united in its execution.
a rule, the concurrence of wills, which is the essence of conspiracy, may
be deduced from the evidence of facts and circumstances, which taken
together, indicate that the parties cooperated and labored to the same
[29]
end.
Even if two or more offenders do not conspire to commit homicide
or murder, they may be held criminally liable as principals by direct
participation if they perform overt acts which mediately or immediately
cause or accelerate the death of the victim, applying Article 4, paragraph
1 of the Revised Penal Code:
Art. 4. Criminal liability. Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act
done be different from that which he intended.
In such a case, it is not necessary that each of the separate
injuries is fatal in itself. It is sufficient if the injuries cooperated in bringing
about the victims death. Both the offenders are criminally liable for the
same crime by reason of their individual and separate overt criminal
acts.[30] Absent conspiracy between two or more offenders, they may be
guilty of homicide or murder for the death of the victim, one as a principal
by direct participation, and the other as an accomplice, under Article 18
of the Revised Penal Code:
Art. 18. Accomplices. Accomplices are the persons who, not being
included in Article 17, cooperate in the execution of the offense by
previous or simultaneous acts.
To hold a person liable as an accomplice, two elements must
concur: (a) the community of criminal design; that is, knowing the
criminal design of the principal by direct participation, he concurs with
the latter in his purpose; (b) the performance of previous or
simultaneous acts that are not indispensable to the commission of the
crime.[31] Accomplices come to know about the criminal resolution of the
principal by direct participation after the principal has reached the
decision to commit the felony and only then does the accomplice agree
to cooperate in its execution. Accomplices do not decide whether the
crime should be committed; they merely assent to the plan of the
principal by direct participation and cooperate
accomplishment.[32] However, where one cooperates in the commission
of the crime by performing overt acts which by themselves are acts of
execution, he is a principal by direct participation, and not merely an
accomplice.[33]
In this case, Odilon all by himself initially decided to stab the
victim. The appellant and Ronnie were on the side of the
street. However, while Odilon was stabbing the victim, the appellant and
Ronnie agreed to join in; they rushed to the scene and also stabbed the
victim with their respective knives. The three men simultaneously
stabbed the hapless victim. Odilon and the appellant fled from the scene
together, while Ronnie went after Julian. When he failed to overtake and
[28]
As collar Julian, Ronnie returned to where Joselito fell and hit him with a
hollow block and a broken bottle. Ronnie then hurriedly left. All the overt
acts of Odilon, Ronnie and the appellant before, during, and after the
stabbing incident indubitably show that they conspired to kill the victim.
The victim died because of multiple stab wounds inflicted by two
or more persons. There is no evidence that before the arrival of Ronnie
and the appellant at the situs criminis, the victim was already dead. It
cannot thus be argued that by the time the appellant and Ronnie joined
Odilon in stabbing the victim, the crime was already consummated.
All things considered, we rule that Ronnie and the appellant
conspired with Odilon to kill the victim; hence, all of them are criminally
liable for the latters death. The appellant is not merely an accomplice
but is a principal by direct participation.
Even assuming that the appellant did not conspire with Ronnie
and Odilon to kill the victim, the appellant is nevertheless criminally liable
as a principal by direct participation. The stab wounds inflicted by him
cooperated in bringing about and accelerated the death of the victim or
contributed materially thereto.[34]
The trial court correctly overruled the appellants defense of
alibi. Alibi is a weak, if not the weakest of defenses in a criminal
prosecution, because it is easy to concoct but hard to disprove. To serve
as basis for acquittal, it must be established by clear and convincing
evidence. For it to prosper, the accused must prove not only that he was
absent from the scene of the crime at the time of its commission, but
also that it was physically impossible for him to have been present
then.[35] In this case, the appellant avers that at the time of the stabbing
incident, he was resting in the house of his cousin at 606 Nueve de
Pebrero Street as he was suffering from stomach pain due to his
ulcer.[36] But the appellant failed to adduce any medical certificate that
he was suffering from the ailment. Moreover, Elisa positively identified
the appellant as one of the men who repeatedly stabbed the victim. The
appellants defense of alibi cannot prevail over the positive and
straightforward identification of the appellant as one of the victims
assailants. The appellant himself admitted that his cousins house, the
place where he was allegedly resting when the victim was stabbed, was
merely ten to fifteen meters away from the scene of the
stabbing. Indeed, the appellants defense of denial and alibi,
unsubstantiated by clear and convincing evidence, are negative and
in its
self-serving and cannot be given greater evidentiary weight than the
positive testimony of prosecution eyewitness Elisa Rolan. [37]
The appellants defenses must crumble in the face of evidence that
he fled from the situs criminis and later left his house. The records show
that despite being informed that he was sought after by the authorities
as a suspect for the killing of the victim, the appellant suddenly and
inscrutably disappeared from his residence at Nueve de Pebrero. As
early as May 5, 1988, a subpoena for the appellant was returned
unserved because he was out of town.[38] The appellants own witness,
Julian Cadion, testified that the appellant had left and was no longer
seen at Nueve de Pebrero after the incident, thus:
Q So, how long did you stay at 606 Nueve de Pebrero after
February 5, 1988?
A One week only, sir, and then three weeks after, I returned
to Nueve de Pebrero.
Q The whole week after February 5, 1988, was Rene Pilola
still living at 606 Nueve de Pebrero?
A I did not see him anymore, sir.
Q And then three weeks thereafter, you went back to Nueve
de Pebrero. Is that what you were then saying?
A Yes, sir.
Bienvenido Muoz, the victim was stabbed, not just once, but eleven
times mostly on the chest and the abdominal area. Six of the stab
wounds were fatal, causing damage to the victims vital internal
organs.[42]
The aggravating circumstance of abuse of superior strength is
absorbed by treachery.[43] There is no mitigating circumstance that
attended the commission of the felony. The penalty for murder under
Article 248 of the Revised Penal Code is reclusion perpetua to
death.Since no aggravating and mitigating circumstances attended the
commission of the crime, the proper penalty is reclusion perpetua,
conformably to Article 63 of the Revised Penal Code.
Civil Liabilities of the Appellant

Q Now, at the time that you went back to 606 Nueve de

Pebrero, was Rene Pilola there?
A I did not see him anymore, sir.[39]
The records show that the appellant knew that he was charged for
the stabbing of the victim. However, instead of surrendering to the police
authorities, he adroitly evaded arrest. The appellants flight is evidence
of guilt and, from the factual circumstances obtaining in the case at bar,
no reason can be deduced from it other than that he was driven by a
strong sense of guilt and admission that he had no tenable defense.[40]
The Crime Committed by the Appellant
and the Proper Penalty Therefor
The trial court correctly directed the appellant to pay to the heirs
of the victim Joselita Capa the amount of P50,000 as civil indemnity ex
delicto, in accord with current jurisprudence.[44] The said heirs are
likewise entitled to moral damages in the amount of P50,000, also
conformably to current jurisprudence.[45] In addition, the heirs are
entitled to exemplary damages in the amount of P25,000.[46]
WHEREFORE, the Decision, dated May 3, 1995, of Branch 164
of the Regional Trial Court of Pasig City in Criminal Case No. 73615,
finding appellant Rene Gayot Pilola GUILTY beyond reasonable doubt
of the crime of murder is AFFIRMED WITH MODIFICATION. The
appellant is hereby directed to pay to the heirs of the victim Joselito
Capa the amount of P50,000 as civil indemnity; the amount of P50,000
as moral damages; and the amount of P25,000 as exemplary damages.

SO ORDERED.
The trial court correctly convicted the appellant of murder qualified
Bellosillo, (Chairman), and Quisumbing, JJ., concur.
by treachery. Abuse of superior strength likewise attended the
Austria-Martinez, J., on official leave.
commission of the crime. There is treachery when the offender commits
any of the crimes against persons, employing means, methods or forms
in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the
offended party might make. The essence of treachery is the swift and
unexpected attack on the unarmed victim without the slightest
provocation on his part.[41] In this case, the attack on the unarmed victim
was sudden. Odilon, without provocation, suddenly placed his arm
around the victims neck and forthwith stabbed the latter. The victim had
no inkling that he would be attacked as he was attempting to pacify
Edmar and Julian. Ronnie and the appellant, both also armed with
deadly weapons, rushed to the scene and stabbed the victim, giving no
real opportunity for the latter to defend himself. And even as the victim
was already sprawled on the canal, Ronnie bashed his head with a
hollow block. The peacemaker became the victim of violence.

Unquestionably, the nature and location of the wounds showed

that the killing was executed in a treacherous manner, preventing any
means of defense on the part of the victim. As testified to by Dr.