RUJJERIC Z. PALAGANAS, [1] Petitioner, - versus -
248 in
PEOPLE OF THE PHILIPPINES, Respondent.
G.R. No. 165483, September 12, 2006
DECISION
CHICO-NAZARIO, J.:
For what is a man, what has he got?
If not himself, then he has naught.
To say the things he truly feels;
And not the words of one who kneels.
The record shows I took the blows -
And did it my way!
The song evokes the bitterest passions. This is not
the first time the song My Way [2] has triggered violent
behavior resulting in people coming to blows. In the case
at bar, the few lines of the song depicted what came to
pass when the victims and the aggressors tried to outdo
each other in their rendition of the song.
In this Petition for Review on Certiorari [3]
under Rule 45 of the Revised Rules of Court, petitioner
Rujjeric Z. Palaganas prays for the reversal of the
Decision of the Court of Appeals in CA-G.R. CR No.
22689 dated 30 September 2004, [4] affirming with
modification the Decision of the Regional Trial Court
(RTC), Branch 46, of Urdaneta, Pangasinan, in Criminal
Cases No. U-9608, U-9609, and U-9610 and U-9634,
dated 28 October 1998, [5] finding petitioner guilty
beyond reasonable doubt of the crime of Homicide under
Article 249 of the Revised Penal Code, and two (2) counts
of Frustrated Homicide under Article 249 in relation to
Articles 6 and 50 of the same Code.
On 21 April 1998, petitioner and his older
brother, Ferdinand Z. Palaganas (Ferdinand), were
charged under four (4) separate Informations [6] for two
(2) counts of Frustrated Murder, one (1) count of Murder,
and one (1) count for Violation of COMELEC Resolution
No. 2958 [7] relative to Article 22, Section 261, of the
Omnibus Election Code, [8] allegedly committed as
follows:
CRIMINAL CASE NO. U-9608
That on or about January 16, 1998, in the evening at
Poblacion, Manaoag, Pangasinan and within the
jurisdiction of this Honorable Court, the above-named
accused armed with an unlicensed firearm, with intent to
kill, treachery and evident premeditation, conspiring
together, did then and there willfully, unlawfully and
feloniously shoot SERVILLANO FERRER, JR. y
Juanatas, inflicting upon him gunshot wound penetrating
perforating abdomen, urinary bladder, rectum bullet
sacral region, the accused having thus performed all the
acts of execution which would have produced the crime
of Murder as a consequence, but which nevertheless, did
not produce it by reason of the causes independent of the
will of the accused and that is due to the timely medical
assistance rendered to said Servillano J. Ferrer, Jr. which
prevented his death, to his damage and prejudice.
CONTRARY to Art.
relation with Arts. 6 and 50, all of the
Revised Penal Code, as amended.
CRIMINAL CASE NO. U-9609
That on or about January 16, 1998, in the evening at
Poblacion, Manaoag, Pangasinan and within the
jurisdiction of this Honorable Court, the above-named
accused armed with an unlicensed firearm, with intent to
kill, treachery and evident premeditation, conspiring
together, did then and there willfully, unlawfully and
feloniously shoot MICHAEL FERRER alias Boying
Ferrer, inflicting upon him gunshot wound on the right
shoulder, the accused having thus performed all the acts
of execution which would have produced the crime of
murder as a consequence, but which nevertheless, did
not produce it by reason of the causes independent of the
will of the accused and that is due to the medical
assistance rendered to said Michael Boying Ferrer which
prevented his death, to his damage and prejudice.
CONTRARY to Art. 248 in
relation with Arts. 6 and 50, all of the
Revised Penal Code, as amended.
CRIMINAL CASE NO. U-9610
That on or about January 16, 1998, in the evening at
Poblacion, Manaoag, Pangasinan and within the
jurisdiction of this Honorable Court, the above-named
accused armed with an unlicensed firearm, with intent to
kill, treachery and evident premeditation, conspiring
together, did then and there willfully, unlawfully and
feloniously shoot MELTON FERRER alias TONY
FERRER, inflicting upon him mortal gunshot wounds in
the head and right thigh which caused the instantaneous
death of said Melton Tony Ferrer, to the damage and
prejudice of his heirs.
CONTRARY to Art. 248 of the
Revised Penal Code, as amended by R.A.
7659.
CRIMINAL CASE NO. U-9634
That on or about January 16, 1998 which
is within the election period at Poblacion,
Manaoag, Pangasinan, and within the jurisdiction
of this Honorable Court, the above-named
accused did then and there willfully, unlawfully
and feloniously bear and carry one (1) caliber .38
without first securing the necessary permit/license
to do the same.
CONTRARY to COMELEC RES. 2958
in relation with SEC. 261 of the OMNIBUS
ELECTION CODE, as amended. [9]
(Underscoring supplied.)
When arraigned on separate dates, [10] petitioner
and Ferdinand entered separate pleas of Not Guilty. Upon
motion of Ferdinand, [11] the four cases were
consolidated and were assigned to Branch 46 of the RTC
in Urdaneta, Pangasinan. [12]
 The factual antecedents as viewed by the
prosecution, are summarized in the Comment dated 18
April 2005 of the Office of the Solicitor General, [13] to
wit:
On January 16, 1998, around 8:00 in the
evening, brothers Servillano, [Melton] and
Michael, all surnamed Ferrer were having a
drinking spree in their house because [Melton],
who was already living in San Fernando, La
Union, visited his three brothers and mother at
their house in Sitio Baloking, Poblacion,
Manaoag, Pangasinan. At 9:45 in the evening, the
three brothers decided to proceed to Tidbits
Videoke bar located at the corner of Malvar and
Rizal Streets, Poblacion, Manaoag to continue
their drinking spree and to sing. Inside the karaoke
bar, they were having a good time, singing and
drinking beer.
Thereafter, at 10:30 in the evening, Jaime
Palaganas arrived together with Ferdinand
Palaganas and Virgilio Bautista. At that time, only
the Ferrer brothers were the customers in the bar.
The two groups occupied separate tables. Later,
when Jaime Palaganas was singing, [Melton]
Ferrer sang along with him as he was familiar with
the song [My Way]. Jaime however, resented this
and went near the table of the Ferrer brothers and
said in Pangasinan dialect As if you are tough
guys. Jaime further said You are already insulting
me in that way. Then, Jaime struck Servillano
Ferrer with the microphone, hitting the back of his
head. A rumble ensued between the Ferrer
brothers on the one hand, and the Palaganases, on
the other hand. Virgilio Bautista did not join the
fray as he left the place. During the rumble,
Ferdinand went out of the bar. He was however
pursued by Michael. When Servillano saw
Michael, he also went out and told the latter not to
follow Ferdinand. Servillano and Michael then
went back inside the bar and continued their fight
with Jaime.
Meantime, Edith Palaganas, sister of
Jaime and the owner of the bar, arrived and
pacified them. Servillano noticed that his
wristwatch was missing. Unable to locate the
watch inside the bar, the Ferrer brothers went
outside. They saw Ferdinand about eight (8)
meters away standing at Rizal Street. Ferdinand
was pointing at them and said to his companion,
later identified as petitioner [Rujjeric] Palaganas,
Oraratan paltog mo lara, meaning They are the
ones, shoot them. Petitioner then shot them hitting
Servillano first at the left side of the abdomen,
causing him to fall on the ground, and followed by
[Melton] who also fell to the ground. When
Servillano noticed that [Melton] was no longer
moving, he told Michael Bato, bato. Michael
picked up some stones and threw them at
petitioner and Ferdinand. The latter then left the
place. Afterwards, the police officers came and
the Ferrer brothers were brought to the Manaoag
Hospital and later to Villaflor Hospital in
Dagupan. Servillano later discovered that
[Melton] was fatally hit in the head while Michael
was hit in the right shoulder.
On the other hand, the defense, in its Appellants Brief
dated 3 December 1999, [14] asserted the following set of
facts:
On January 16, 1998, at around 11:00 in the
evening, after a drinking session at their house,
the brothers Melton (Tony), Servillano (Junior)
and Michael (Boying), all surnamed Ferrer,
occupied a table inside the Tidbits Caf and
Videoke Bar and started drinking and singing.
About thirty minutes later, Jaime Palaganas
along with his nephew Ferdinand (Apo) and
friend Virgilio Bautista arrived at the bar and
occupied a table near that of the Ferrers.
After the Ferrers turn in singing, the
microphone was handed over to Jaime Palaganas,
who then started to sing. On his third song [My
Way], Jaime was joined in his singing by Tony
Ferrer, who sang loudly and in an obviously
mocking manner. This infuriated Jaime, who
then accosted Tony, saying, You are already
insulting us. The statement resulted in a free for
all fight between the Ferrers, on one hand, and
the Palaganases on the other. Jaime was mauled
and Ferdinand, was hit on the face and was
chased outside of the bar by Junior and Boying
Ferrer.
Ferdinand then ran towards the house of
the appellant Rujjeric Palaganas, his brother, and
sought the help of the latter. Rujjeric, stirred from
his sleep by his brothers shouts, went out of his
house and, noticing that the van of his uncle was
in front of the Tidbits Videoke Bar, proceeded to
that place. Before reaching the bar, however, he
was suddenly stoned by the Ferrer brothers and
was hit on different parts of his body, so he
turned around and struggled to run towards his
house. He then met his brother, Ferdinand, going
towards the bar, so he tugged him and urged him
to run towards the opposite direction as the Ferrer
brothers continued pelting them with large
stones. Rujjeric then noticed that Ferdinand was
carrying a gun, and, on instinct, grabbed the gun
from the latter, faced the Ferrer brothers and fired
one shot in the air to force the brothers to retreat.
Much to his surprise, however, the Ferrer
brothers continued throwing stones and when
(sic) the appellant was again hit several times.
Unable to bear the pain, he closed his eyes and
pulled the trigger.
On 28 October 1998, the trial court rendered its
Decision finding petitioner guilty only of the crime of
Homicide and two (2) counts of Frustrated Homicide.
[15] He was, however, acquitted of the charge of
Violation of COMELEC Resolution No. 2958 in relation
to Section 261 of the Omnibus Election Code. [16] On the
other hand, Ferdinand was acquitted of all the charges
against him. [17]
 In holding that petitioner is liable for the crimes WHEREFORE, JUDGMENT is hereby
of Homicide and Frustrated Homicide but not for Murder rendered as follows:
and Frustrated Murder, the trial court explained that there
was no conspiracy between petitioner and Ferdinand in 1. Under CRIM. CASE NO. U-9610,
killing Melton and wounding Servillano and Michael. [Rujjeric] PALAGANAS is hereby
[18] According to the trial court, the mere fact that CONVICTED beyond reasonable
Ferdinand pointed to where the Ferrer brothers were and doubt of the crime of HOMICIDE (Not
uttered to petitioner Araratan, paltog mo lara! (They are Murder) with the use of an unlicensed
the ones, shoot them!), does not in itself connote common firearm. The penalty imposable is in its
design or unity of purpose to kill. It also took note of the maximum period which is 20 years.
fact that petitioner was never a participant in the rumble The Court sentences [Rujjeric]
inside the Tidbits Cafe Videoke Bar (videoke bar) on the Palaganas to suffer the penalty of
night of 16 January 1998. He was merely called by Reclusion Temporal in its maximum
Ferdinand to rescue their uncle, Jaime, who was being period or 20 years of imprisonment;
assaulted by the Ferrer brothers. It further stated that the and to pay the heirs of [MELTON]
shooting was instantaneous and without any prior plan or Ferrer the sum of P7,791.50 as actual
agreement with Ferdinand to execute the same. It found medical expenses of [MELTON]
that petitioner is solely liable for killing Melton and for Ferrer; P500,000.00 as moral damages
wounding Servillano and Michael, and that Ferdinand is representing unearned income of
not criminally responsible for the act of petitioner. [MELTON]; P50,000.00 for the death
of [MELTON]; P50,000.00 for
Further, it declared that there was no treachery exemplary damages and P100,000.00
that will qualify the crimes as murder and frustrated for burial and funeral expenses.
murder since the Ferrer brothers were given the chance to Ferdinand Palaganas is hereby
defend themselves during the shooting incident by ACQUITTED for failure of the
stoning the petitioner and Ferdinand. [19] It reasoned that prosecution to prove conspiracy and
the sudden and unexpected attack, without the slightest likewise, for failure to prove the guilt
provocation on the part of the victims, was absent. In of Ferdinand Palaganas beyond
addition, it ratiocinated that there was no evident reasonable doubt.
premeditation as there was no sufficient period of time
that lapsed from the point where Ferdinand called the 2. Under CRIM. CASE NO. U-9608,
petitioner for help up to the point of the shooting of the [Rujjeric] PALAGANAS is hereby
Ferrer brothers. [20] Petitioner was sleeping at his house CONVICTED beyond reasonable
at the time he heard Ferdinand calling him for help. doubt of the crime of FRUSTRATED
Immediately, petitioner, still clad in pajama and HOMICIDE (Not Frustrated Murder),
sleeveless shirt, went out of his room to meet Ferdinand. with the use of an unlicensed firearm,
Thereafter, both petitioner and Ferdinand went to the the Court sentences him to suffer the
videoke bar where they met the Ferrer brothers and, penalty of Prision Mayor in its
shortly afterwards, the shooting ensued. In other words, maximum period or 12 years of
according to the trial court, the sequence of the events are imprisonment and to pay Servillano
so fast that it is improbable for the petitioner to have Ferrer the sum of P163,569.90 for his
ample time and opportunity to then plan and organize the medical expenses and P50,000.00 for
shooting. exemplary damages;
Ferdinand Palaganas is
Corollarily, it also stated that petitioner cannot ACQUITTED for failure of the
successfully invoke self-defense since there was no actual prosecution to prove conspiracy and
or imminent danger to his life at the time he and likewise, for failure to prove the guilt
Ferdinand saw the Ferrer brothers outside the videoke of Ferdinand Palaganas beyond
bar. [21] It noted that when petitioner and Ferdinand saw reasonable doubt.
the Ferrer brothers outside the videoke bar, the latter were
not carrying any weapon. Petitioner then was free to run
3. Under CRIM. CASE NO. U-9609,
or take cover when the Ferrer brothers started pelting
[Rujjeric] PALAGANAS is hereby
them with stones. Petitioner, however, opted to shoot the
CONVICTED beyond reasonable
Ferrer brothers. It also stated that the use by petitioner of
doubt of the crime of FRUSTRATED
a gun was not a reasonable means to prevent the attack of
HOMICIDE (Not Frustrated Murder),
the Ferrer brothers since the latter were only equipped
with the use of an unlicensed firearm,
with stones, and that the gun was deadlier compared to
the Court sentences him to suffer the
stones. Moreover, it also found that petitioner used an
penalty of Prision Mayor in its
unlicensed firearm in shooting the Ferrer brothers. [22]
maximum period or 12 years of
imprisonment; and to pay Michael
As regards the Violation of COMELEC
Ferrer the sum of P2,259.35 for his
Resolution No. 2958, in relation to Section 261 of the
medical expenses and P50,000.00 for
Omnibus Election Code, the trial court acquitted the
exemplary damages;
petitioner of the offense as his use and possession of a gun
was not for the purpose of disrupting election activities.
[23] In conclusion, the trial court held:
 Ferdinand Palaganas is ACQUITTED
for failure of the prosecution to prove
conspiracy and likewise, for failure to
prove the guilt of Ferdinand Palaganas
beyond reasonable doubt.
Ordering accused [Rujjeric]
Palaganas to pay Mrs. Elena Ferrer, the
mother of the Ferrer brothers, the
amount of P100,000.00 as attorneys
fees in CRIM. CASES NOS. U-9608,
U-9609, U-9610.
4. Under CRIM. CASE NO. U-9634,
for failure of the prosecution to prove
the guilt of [Rujjeric] Palaganas beyond
reasonable doubt of the crime of
Violation of COMELEC Resolution
No. 2958 in relation with Section 261
of the Omnibus Election Code, the
Court ACQUITS [RUJJERIC]
PALAGANAS. [24]
Aggrieved, the petitioner appealed the foregoing
Decision of the RTC dated 28 October 1998, before the
Court of Appeals. In its Decision dated 30 September
2004, the Court of Appeals affirmed with modifications
the assailed RTC Decision. In modifying the Decision of
the trial court, the appellate court held that the mitigating
circumstance of voluntary surrender under Article 13,
No. 7, of the Revised Penal Code should be appreciated
in favor of petitioner since the latter, accompanied by his
counsel, voluntarily appeared before the trial court, even
prior to its issuance of a warrant of arrest against him.
[25] It also stated that the Indeterminate Sentence Law
should be applied in imposing the penalty upon the
petitioner. [26] The dispositive portion of the Court of
Appeals Decision reads:
WHEREFORE, the judgment of conviction is
hereby AFFIRMED, subject to the
MODIFICATION that the penalty to be imposed
for the crimes which the appellant committed are
as follows:
(1) For Homicide (under Criminal Case No. U-
9610), the appellant is ordered to suffer
imprisonment of ten (10) years of prision mayor
as minimum to seventeen (17) years and four (4)
months of reclusion temporal as maximum.
Appellant is also ordered to pay the heirs of
Melton Ferrer civil indemnity in the amount of
P50,000.00, moral damages in the amount of
P50,000.00 without need of proof and actual
damages in the amount of P43,556.00.
(2) For Frustrated Homicide (under Criminal
Case No. U-9609), the appellant is hereby
ordered to suffer imprisonment of four (4) years
and two (2) months of prision correcional as
minimum to ten (10) years of prision mayor as
maximum. Appellant is also ordered to pay
Michael Ferrer actual damages in the amount of
P2,259.35 and moral damages in the amount of
P30,000.00.
(3) For Frustrated Homicide (under Criminal
Case No. U-9608), the appellant is hereby
penalized with imprisonment of four (4) years
and two (2) months of prision correcional as
minimum to ten (10) years of prision mayor as
maximum. Appellant is also ordered to pay
Servillano Ferrer actual damages in the amount
of P163,569.90 and moral damages in the
amount of P30,000.00. [27]
On 16 November 2004, petitioner lodged the
instant Petition for Review before this Court on the basis
of the following arguments:
I.
THE HONORABLE COURT OF
APPEALS ERRED IN AFFIRMING
THE JUDGMENT OF CONVICTION
OF THE TRIAL COURT.
II.
THE HONORABLE COURT OF
APPEALS ERRED IN NOT
ACQUITTING ACCUSED-
APPELLANT ON THE GROUND OF
LAWFUL SELF-DEFENSE. [28]
Anent the first issue, petitioner argued that all
the elements of a valid self-defense are present in the
instant case and, thus, his acquittal on all the charges is
proper; that when he fired his gun on that fateful night,
he was then a victim of an unlawful aggression
perpetrated by the Ferrer brothers; that he, in fact,
sustained an injury in his left leg and left shoulder
caused by the stones thrown by the Ferrer brothers; that
the appellate court failed to consider a material evidence
described as Exhibit O; that Exhibit O should have been
given due weight since it shows that there was slug
embedded on the sawali wall near the sign Tidbits Caf
and Videoke Bar; that the height from which the slug
was taken was about seven feet from the ground; that if
it was true that petitioner and Ferdinand were waiting
for the Ferrer brothers outside the videoke bar in order to
shoot them, then the trajectory of the bullets would have
been either straight or downward and not upward
considering that the petitioner and the Ferrer brothers
were about the same height (56-58); that the slug found
on the wall was, in fact, the warning shot fired by the
petitioner; and, that if this exhibit was properly
appreciated by the trial court, petitioner would be
acquitted of all the charges. [29]
Moreover, petitioner contended that the warning
shot proved that that the Ferrer brothers were the
unlawful aggressors since there would have been no
occasion for the petitioner to fire a warning shot if the
Ferrer brothers did not stone him; that the testimony of
Michael in the trial court proved that it was the Ferrer
brothers who provoked petitioner to shoot them; and that
the Ferrer brothers pelted them with stones even after
the warning shot. [30]
Petitioners contention must fail.
 Article 11, paragraph (1), of the Revised Penal
Code provides for the elements and/or requisites in order
that a plea of self-defense may be validly considered in
absolving a person from criminal liability, viz:
ART. 11. Justifying circumstances. The
following do not incur any criminal liability:
1. Anyone who acts in defense of
his person or rights, provided that the
following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means
employed to prevent or repel it;
Third. Lack of sufficient provocation on the
part of the person defending himself. x x x.
As an element of self-defense, unlawful
aggression refers to an assault or attack, or a threat
thereof in an imminent and immediate manner, which
places the defendants life in actual peril. [31] It is an act
positively strong showing the wrongful intent of the
aggressor and not merely a threatening or intimidating
attitude. [32] It is also described as a sudden and
unprovoked attack of immediate and imminent kind to
the life, safety or rights of the person attacked. [33]
There is an unlawful aggression on the part of
the victim when he puts in actual or imminent peril the
life, limb, or right of the person invoking self-defense.
There must be actual physical force or actual use of
weapon. [34] In order to constitute unlawful aggression,
the person attacked must be confronted by a real threat
on his life and limb; and the peril sought to be avoided is
imminent and actual, not merely imaginary. [35]
In the case at bar, it is clear that there was no
unlawful aggression on the part of the Ferrer brothers
that justified the act of petitioner in shooting them.
There were no actual or imminent danger to the lives of
petitioner and Ferdinand when they proceeded and
arrived at the videoke bar and saw thereat the Ferrer
brothers. It appears that the Ferrer brothers then were
merely standing outside the videoke bar and were not
carrying any weapon when the petitioner arrived with
his brother Ferdinand and started firing his gun. [36]
Assuming, arguendo, that the Ferrer brothers
had provoked the petitioner to shoot them by pelting the
latter with stones, the shooting of the Ferrer brothers is
still unjustified. When the Ferrer brothers started
throwing stones, petitioner was not in a state of actual or
imminent danger considering the wide distance (4-5
meters) of the latter from the location of the former. [37]
Petitioner was not cornered nor trapped in a specific area
such that he had no way out, nor was his back against
the wall. He was still capable of avoiding the stones by
running away or by taking cover. He could have also
called or proceeded to the proper authorities for help.
Indeed, petitioner had several options in avoiding
dangers to his life other than confronting the Ferrer
brothers with a gun.
The fact that petitioner sustained injuries in his
left leg and left shoulder, allegedly caused by the stones
thrown by the Ferrer brothers, does not signify that he
was a victim of unlawful aggression or that he acted in
self-defense. [38] There is no evidence to show that his
wounds were so serious and severe. The superficiality of
the injuries sustained by the petitioner is no indication
that his life and limb were in actual peril. [39]
Petitioners assertion that, despite the fact that he
fired a warning shot, the Ferrer brothers continued to
pelt him with stones, [40] will not matter exonerate him
from criminal liability. Firing a warning shot was not the
last and only option he had in order to avoid the stones
thrown by the Ferrer brothers. As stated earlier, he could
have run away, or taken cover, or proceeded to the
proper authorities for help. Petitioner, however, opted to
shoot the Ferrer brothers.
It is significant to note that the shooting resulted
in the death of Melton, and wounding of Servillano and
Michael. With regard to Melton, a bullet hit his right
thigh, and another bullet hit his head which caused his
instant death. [41] As regards Servillano, a bullet
penetrated two of his vital organs, namely, the large
intestine and urinary bladder. [42] He underwent two (2)
surgeries in order to survive and fully recover. [43]
Michael, on the other hand, sustained a gunshot wound
on the right shoulder. [44] It must also be noted that the
Ferrer brothers were shot near the videoke bar, which
contradict petitioners claim he was chased by the Ferrer
brothers. Given the foregoing circumstances, it is
difficult to believe that the Ferrer brothers were the
unlawful aggressors. As correctly observed by the
prosecution, if the petitioner shot the Ferrer brothers just
to defend himself, it defies reason why he had to shoot
the victims at the vital portions of their body, which
even led to the death of Melton who was shot at his
head. [45] It is an oft-repeated rule that the nature and
number of wounds inflicted by the accused are
constantly and unremittingly considered important
indicia to disprove a plea of self-defense. [46]
Let it not be forgotten that unlawful aggression
is a primordial element in self-defense. [47] It is an
essential and indispensable requisite, for without
unlawful aggression on the part of the victim, there can
be, in a jural sense, no complete or incomplete self-
defense. [48] Without unlawful aggression, self-defense
will not have a leg to stand on and this justifying
circumstance cannot and will not be appreciated, even if
the other elements are present. [49] To our mind,
unlawful aggression, as an element of self-defense, is
wanting in the instant case.
The second element of self-defense requires that
the means employed by the person defending himself
must be reasonably necessary to prevent or repel the
unlawful aggression of the victim. The reasonableness of
the means employed may take into account the weapons,
the physical condition of the parties and other
circumstances showing that there is a rational
equivalence between the means of attack and the
defense. [50] In the case at bar, the petitioners act of
shooting the Ferrer brothers was not a reasonable and
necessary means of repelling the aggression allegedly
initiated by the Ferrer brothers. As aptly stated by the
trial court, petitioners gun was far deadlier compared to
the stones thrown by the Ferrer brothers. [51]
 Moreover, we stated earlier that when the Ferrer
brothers allegedly threw stones at the petitioner, the
latter had other less harmful options than to shoot the
Ferrer brothers. Such act failed to pass the test of
reasonableness of the means employed in preventing or
repelling an unlawful aggression.
With regard to the second issue, petitioner
asserts that the Court of Appeals erred in not acquitting
him on the ground of lawful self-defense.
Petitioners argument is bereft of merit.
In resolving criminal cases where the accused
invokes self-defense to escape criminal liability, this
Court consistently held that where an accused admits
killing the victim but invokes self-defense, it is
incumbent upon the accused to prove by clear and
convincing evidence that he acted in self-defense. [52]
As the burden of evidence is shifted on the accused to
prove all the elements of self-defense, he must rely on
the strength of his own evidence and not on the
weakness of the prosecution. [53]
As we have already found, there was no
unlawful aggression on the part of the Ferrer brothers
which justified the act of petitioner in shooting them.
We also ruled that even if the Ferrer brothers provoked
the petitioner to shoot them, the latters use of a gun was
not a reasonable means of repelling the act of the Ferrer
brothers in throwing stones. It must also be emphasized
at this point that both the trial court and the appellate
court found that petitioner failed to established by clear
and convincing evidence his plea of self-defense. In this
regard, it is settled that when the trial courts findings
have been affirmed by the appellate court, said findings
are generally conclusive and binding upon this Court.
[54] In the present case, we find no compelling reason to
deviate from their findings. Verily, petitioner failed to
prove by clear and convincing evidence that he is
entitled to an acquittal on the ground of lawful self-
defense.
On another point, while we agree with the trial
court and the Court of Appeals that petitioner is guilty of
the crime of Homicide for the death of Melton in
Criminal Case No. U-9610, and Frustrated Homicide for
the serious injuries sustained by Servillano in Criminal
Case No. U-9608, we do not, however, concur in their
ruling that petitioner is guilty of the crime of Frustrated
Homicide as regards to Michael in Criminal Case No. U-
9609. We hold that petitioner therein is guilty only of
the crime of Attempted Homicide.
Article 6 of the Revised Penal Code states and
defines the stages of a felony in the following manner:
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 the 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 or 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 (italics
supplied).
Based on the foregoing provision, the
distinctions between frustrated and attempted felony are
summarized as follows:
1.) In frustrated felony, the offender has
performed all the acts of execution
which should produce the felony as a
consequence; whereas in attempted
felony, the offender merely commences
the commission of a felony directly by
overt acts and does not perform all the
acts of execution.
2.) In frustrated felony, the reason for
the non-accomplishment of the crime is
some cause independent of the will of
the perpetrator; on the other hand, in
attempted felony, the reason for the non-
fulfillment of the crime is a cause or
accident other than the offenders own
spontaneous desistance.
In addition to these distinctions, we have ruled
in several cases that when the accused intended to kill
his victim, as manifested by his use of a deadly weapon
in his assault, and his victim sustained fatal or mortal
wound/s but did not die because of timely medical
assistance, the crime committed is frustrated murder or
frustrated homicide depending on whether or not any of
the qualifying circumstances under Article 249 of the
Revised Penal Code are present. [55] However, if the
wound/s sustained by the victim in such a case were not
fatal or mortal, then the crime committed is only
attempted murder or attempted homicide. [56] If there
was no intent to kill on the part of the accused and the
wound/s sustained by the victim were not fatal, the
crime committed may be serious, less serious or slight
physical injury. [57]
Based on the medical certificate of Michael, as
well as the testimony of the physician who diagnosed
and treated Michael, the latter was admitted and treated
at the Dagupan Doctors-Villaflor Memorial Hospital for
a single gunshot wound in his right shoulder caused by
the shooting of petitioner. [58] It was also stated in his
medical certificate that he was discharged on the same
day he was admitted and that the treatment duration for
such wound would be for six to eight days only. [59]
Given these set of undisputed facts, it is clear that the
gunshot wound sustained by Michael in his right
shoulder was not fatal or mortal since the treatment
period for his wound was short and he was discharged
from the hospital on the same day he was admitted
therein. Therefore, petitioner is liable only for the crime
of attempted homicide as regards Michael in Criminal
Case No. U-9609.
 With regard to the appreciation of the
aggravating circumstance of use of an unlicensed
firearm, we agree with the trial court and the appellate
court that the same must be applied against petitioner in
the instant case since the same was alleged in the
informations filed against him before the RTC and
proven during the trial. However, such must be
considered as a special aggravating circumstance, and
not a generic aggravating circumstance.
Generic aggravating circumstances are those that
generally apply to all crimes such as those mentioned in
Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18,
19 and 20, of the Revised Penal Code. It has the effect of
increasing the penalty for the crime to its maximum
period, but it cannot increase the same to the next higher
degree. It must always be alleged and charged in the
information, and must be proven during the trial in order
to be appreciated. [60] Moreover, it can be offset by an
ordinary mitigating circumstance.
On the other hand, special aggravating
circumstances are those which arise under special
conditions to increase the penalty for the offense to its
maximum period, but the same cannot increase the
penalty to the next higher degree. Examples are quasi-
recidivism under Article 160 and complex crimes under
Article 48 of the Revised Penal Code. It does not change
the character of the offense charged. [61] It must always
be alleged and charged in the information, and must be
proven during the trial in order to be appreciated. [62]
Moreover, it cannot be offset by an ordinary mitigating
circumstance.
It is clear from the foregoing that the meaning
and effect of generic and special aggravating
circumstances are exactly the same except that in case of
generic aggravating, the same CAN be offset by an
ordinary mitigating circumstance whereas in the case of
special aggravating circumstance, it CANNOT be offset
by an ordinary mitigating circumstance.
Aside from the aggravating circumstances
abovementioned, there is also an aggravating
circumstance provided for under Presidential Decree No.
1866, [63] as amended by Republic Act No. 8294, [64]
which is a special law. Its pertinent
If homicide or murder is committed with the use
of an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating
circumstance.
In interpreting the same provision, the trial
court reasoned that such provision is silent as to whether
it is generic or qualifying. [65] Thus, it ruled that when
the law is silent, the same must be interpreted in favor of
the accused. [66] Since a generic aggravating
circumstance is more favorable to petitioner compared
to a qualifying aggravating circumstance, as the latter
changes the nature of the crime and increase the penalty
thereof by degrees, the trial court proceeded to declare
that the use of an unlicensed firearm by the petitioner is
to be considered only as a generic aggravating
circumstance. [67] This interpretation is erroneous since
we already held in several cases that with the passage of
Republic Act. No. 8294 on 6 June 1997, the use of an
unlicensed firearm in murder or homicide is now
considered as a SPECIAL aggravating circumstance and
not a generic aggravating circumstance. [68] Republic
Act No. 8294 applies to the instant case since it took
effect before the commission of the crimes in 21 April
1998. Therefore, the use of an unlicensed firearm by the
petitioner in the instant case should be designated and
appreciated as a SPECIAL aggravating circumstance
and not merely a generic aggravating circumstance.
As was previously established, a special
aggravating circumstance cannot be offset by an
ordinary mitigating circumstance. Voluntary surrender
of petitioner in this case is merely an ordinary
mitigating circumstance. Thus, it cannot offset the
special aggravating circumstance of use of unlicensed
firearm. In accordance with Article 64, paragraph 3 of
the Revised Penal Code, the penalty imposable on
petitioner should be in its maximum period. [69]
As regards the civil liability of petitioner, we
deem it necessary to modify the award of damages
given by both courts.
In Criminal Case No. U-9610 for Homicide, we
agree with both courts that the proper amount of civil
indemnity is P50,000.00, and that the proper amount for
moral damages is P50,000.00 pursuant to prevailing
jurisprudence. [70] However, based on the receipts for
hospital, medicine, funeral and burial expenses on
record, and upon computation of the same, the proper
amount of actual damages should be P42,374.18,
instead of P43,556.00. Actual damages for loss of
earning capacity cannot be awarded in this case since
there was no documentary evidence to substantiate the
same. [71] Although there may be exceptions to this
rule, [72] none is availing in the present case.
Nevertheless, since loss was actually established in this
case, temperate damages in the amount of P25,000.00
may be awarded to the heirs of Melton Ferrer. Under
Article 2224 of the New Civil Code, temperate or
moderate damages may be recovered when the court
finds that some pecuniary loss was suffered but its
amount cannot be proved with certainty. Moreover,
exemplary damages should be awarded in this case
since the presence of special aggravating circumstance
of use of unlicensed firearm was already established.
[73] Based on prevailing jurisprudence, the award of
exemplary damages for homicide is P25,000.00. [74]
In Criminal Cases No. U-9608 and U-9609, we
agree with both courts as to the award of actual
damages and its corresponding amount since the same
is supported by documentary proof therein. The award
of moral damages is also consistent with prevailing
jurisprudence. However, exemplary damages should be
awarded in this case since the presence of special
aggravating circumstance of use of unlicensed firearm
was already established. Based on prevailing
jurisprudence, the award of exemplary damages for
both the attempted and frustrated homicide shall be
P25,000.00 for each.
 WHEREFORE, premises considered, the
decision of the Court of Appeals dated 30 September
2004 is hereby AFFIRMED with the following
MODIFICATIONS:

(1) In Criminal Case No. U-9609, the petitioner

is found guilty of the crime of attempted homicide. The
penalty imposable on the petitioner is prision
correccional under Article 51 of the Revised Penal
Code. [75] There being a special aggravating
circumstance of the use of an unlicensed firearm and
applying the Indeterminate Sentence of Law, the penalty
now becomes four (4) years and two (2) months of
arresto mayor as minimum period to six (6) years of
prision correccional as maximum period. As regards the
civil liability of petitioner, the latter is hereby ordered to
pay Michael Ferrer exemplary damages in the amount of
P25,000.00 in addition to the actual damages and moral
damages awarded by the Court of Appeals.

(2) In Criminal Case No. U-9608, the penalty

imposable on the petitioner for the frustrated homicide is
prision mayor under Article 50 of the Revised Penal
Code. [76] There being a special aggravating
circumstance of the use of an unlicensed firearm and
applying the Indeterminate Sentence Law, the penalty
now becomes six (6) years of prision correccional as
minimum period to twelve (12) years of prision mayor
as maximum period. As regards the civil liability of
petitioner, the latter is hereby ordered to pay Servillano
Ferrer exemplary damages in the amount of P25,000.00
in addition to the actual damages and moral damages
awarded by the Court of Appeals.

(3) In Criminal Case No. U-9610, the penalty

imposable on petitioner for the homicide is reclusion
temporal under Article 249 of the Revised Penal Code.
[77] There being a special aggravating circumstance of
the use of an unlicensed firearm and applying the
Indeterminate Sentence Law, the penalty now is twelve
(12) years of prision mayor as minimum period to
twenty (20) years of reclusion temporal as maximum
period. As regards the civil liability of petitioner, the
latter is hereby ordered to pay Melton Ferrer exemplary
damages in the amount of P25,000.00 in addition to the
actual damages and moral damages awarded by the
Court of Appeals. The actual damages likewise awarded
by the Court of Appeals is hereby reduced to
P42,374.18.

SO ORDERED.
G.R. No. 178512 November 26, 2014
ALFREDO DE GUZMAN, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
Frustrated homicide requires intent to kill on the part of
the offender. Without proof of such intent, the felony
may only be serious physical injuries. Intent to kill may
be established through the overt and external acts and
conduct of the offender before, during and after the
assault, or by the nature, location and number of the
wounds inflicted on the victim.
The Case
Under review at the instance of the petitioner is the
decision promulgated on September 27, 2006,1 whereby
the Court of Appeals (CA) affirmed his conviction for
frustrated homicide committed against Alexander Flojo
under the judgment rendered on September 10, 2003 by
the Regional Trial Court (RTC), Branch 213, in
Mandaluyong City in Criminal Case No. 191-MD.2
Antecedents
The CA summarized the versions of the parties as
follows:
x x x [O]n December 24, 1997, at aboutten o’clock in
the evening, Alexander Flojo (hereafter "Alexander")
was fetching water below his rented house at 443
Aglipay Street, Old Zaniga St., Mandaluyong City when
suddenly Alfredo De Guzman (hereafter "Alfredo"), the
brother of his land lady, Lucila Bautista (hereafter
"Lucila"), hit him on the nape. Alexander informed
Lucila about what Alfredo did to him. Lucila apologized
to Alexander by saying, "Pasensya ka na Mang Alex"
and told the latter to just go up. Alexander obliged and
went upstairs. He took a rest for about two hours.
Thereafter, at around 12:00 to 12:15 A.M., Alexander
went down and continued to fetch water. While pouring
water into a container, Alfredo suddenly appeared in
front of Alexander and stabbed him on his left face and
chest.
Cirilino Bantaya, a son-in-law of Alexander, saw the
latter bleeding on the left portion of his body and
begging for help. Alexander then told Cirilino that
Alfredo stabbed him. Cirilino immediately loaded
Alexander into his motorcycle (backride) and brought
him to the Mandaluyong City Medical Center. Upon
arrival at the hospital, the doctors immediately rendered
medical assistance to Alexander. Alexander stayed in the
emergency room of said hospital for about 30 to 40
minutes. Then, he was brought to the second floor of the
said hospital where he was confined for two days.
Thereafter, Alexander was transferred to the Polymedic
General Hospital where he was subjected for (sic)
further medical examination.
Alexander sustained two stabbed (sic) wounds. (sic) One
of which was on the zygoma, left side, and aboutone (1)
cm. long. The other is on his upper left chest which
penetrated the fourth intercostal space at the proximal
clavicular line measuring about two (2) cm. The second
stabbed (sic) wound penetrated the thoracic wall and left
lung of the victim which resulted to blood air (sic) in the
thoracic cavity thus necessitating the insertion of a
thoracostomy tube toremove the blood. According to Dr.
Francisco Obmerga, the physician who treated the victim
at the Mandaluyong City Medical Center, the second
wound was fatal and could have caused Alexander’s
death without timely medical intervention. (Tsn, July 8,
1998, p.8).
On the other hand, Alfredo denied having stabbed
Alexander. According to him, on December 25,1997 at
around midnight, he passed by Alexander who was,
then, fixing a motorcycle. At that point, he accidentally
hit Alexander’s back, causing the latter to throw
invective words against him. He felt insulted, thus, a
fistfight ensued between them. They even rolled on the
ground. Alfredo hit Alexander on the cheek causing
blood to ooze from the latter’s face.3
The RTC convicted the petitioner, decreeing thusly:
PRESCINDING (sic) FROM THE FOREGOING
CONSIDERATIONS, the court finds accused Alfredo
De Guzman y Agkis a.k.a., "JUNIOR," guilty beyond
reasonable doubt for (sic) the crime of FRUSTRATED
HOMICIDE defined and penalized in Article 250 of the
Revised Penal Code and in the absence of any modifying
circumstance, he is hereby sentenced to suffer the
indeterminate penalty of Six (6) Months and One (1) day
of PRISION CORR[R]ECCIONAL as MINIMUM to
Six (6) Years and One (1) day of PRISION MAYOR as
MAXIMUM.
The accused is further ordered topay the private
complainant compensatory damages in the amount of
₱14,170.35 representing the actual pecuniary loss
suffered by him as he has duly proven.
SO ORDERED.4
On appeal, the petitioner contended that his guilt had not
been proved beyond reasonable doubt; that intent to kill,
the critical element of the crime charged, was not
established; that the injuries sustained by Alexander
were mere scuffmarks inflicted in the heatof anger
during the fist fight between them; that he did not inflict
the stabwounds, insisting that another person could have
inflicted such wounds; and that he had caused only slight
physical injuries on Alexander, for which he should be
accordingly found guilty.
Nonetheless, the CA affirmedthe petitioner’s conviction,
viz:
WHEREFORE, premises considered, the instant appeal
is DISMISSED. The September 10, 2003 Decision of the
Regional Trial Court of Mandaluyong City, Branch 213,
is hereby AFFIRMED in toto. SO ORDERED.5
The CA denied the petitioner’s motion for
reconsideration on May 2, 2007.6
 Issue
Was the petitioner properly found guilty beyond
reasonable doubt of frustrated homicide?
Ruling
The appeal lacks merit.
The elements of frustrated homicide are: (1) the accused
intended to kill his victim, as manifested by his use of a
deadly weapon in his assault; (2) the victim sustained
fatal or mortal wound but did not die because of timely
medical assistance; and (3) noneof the qualifying
circumstances for murder under Article 248 of the
Revised Penal Code, as amended, is present.7 Inasmuch
as the trial and appellate courts found none of the
qualifying circumstances in murder under Article 248 to
be present, we immediately proceed to ascertain the
presence of the two other elements.
The petitioner adamantly denies that intent to kill was
present during the fistfight between him and
Alexander.1âwphi1 He claims that the heightened
emotions during the fistfight naturally emboldened both
of them, but he maintains that he only inflicted minor
abrasions on Alexander, not the stab wounds that he
appeared to have sustained. Hence, he should be held
liable only for serious physical injuries because the
intent to kill, the necessary element to characterize the
crime as homicide, was not sufficiently established. He
avers that such intentto kill is the main element that
distinguishes the crime of physical injuries from the
crime of homicide; and that the crime is homicide only if
the intent to kill is competently shown.
The essential element in frustrated or attempted
homicide is the intent of the offender to kill the victim
immediately before or simultaneously with the infliction
of injuries. Intent to kill is a specific intent that the State
must allege in the information, and then prove by either
direct or circumstantial evidence, as differentiated from
a general criminal intent, which is presumed from the
commission of a felony by dolo.8 Intent to kill, being a
state of mind, is discerned by the courts only through
external manifestations, i.e., the acts and conduct of the
accused at the time of the assault and immediately
thereafter. In Rivera v. People,9 we considered the
following factors to determine the presence of intent to
kill, namely: (1) the means used by the malefactors; (2)
the nature, location, and number of wounds sustained by
the victim; (3) the conduct of the malefactors before,
during, or immediately after the killing of the victim;
and (4) the circumstances under which the crime was
committed and the motives of the accused. We have also
considered as determinative factors the motive of the
offender and the words he uttered at the time of
inflicting the injuries on the victim.10
Here, both the trial and the appellate court agreed that
intent to kill was present. We concur with them.
Contrary to the petitioner’s submission, the wounds
sustained by Alexander were not mere scuffmarks
inflicted in the heat of anger or as the result ofa fistfight
between them. The petitioner wielded and used a knife
in his assault on Alexander. The medical records
indicate, indeed, that Alexander sustained two stab
wounds, specifically, one on his upper left chest and the
other on the left side of his face. The petitioner’s attack
was unprovoked with the knife used therein causing such
wounds, thereby belying his submission, and firmly
proving the presence of intent to kill. There is also to
beno doubt about the wound on Alexander’s chest being
sufficient to result into his death were it not for the
timely medical intervention.
With the State having thereby shown that the petitioner
already performed all the acts of execution that should
produce the felony of homicide as a consequence, but
did not produce it by reason of causes independent of his
will, i.e., the timely medical attention accorded to
Alexander, he was properly found guilty of frustrated
homicide.
We have no cogent reason to deviate from or to
disregard the findings of the trial and appellate courts on
the credibility of Alexander’s testimony. It is not
disputed that the testimony of a single but credible and
trustworthy witness sufficed to support the conviction of
the petitioner. This guideline finds more compelling
application when the lone witness is the victim himself
whose direct and positive identification of his assailant is
almost always regarded with indubitable credibility,
owing to the natural tendency of the victim to seek
justice for himself, and thus strive to remember the face
of his assailant and to recall the manner in which the
latter committed the crime.11 Moreover, it is significant
that the petitioner’s mere denial of the deadly manner of
his attack was contradicted by the credible physical
evidence corroborating Alexander’s statements. Under
the circumstances, we can only affirm the petitioner’s
conviction for frustrated homicide. The affirmance of the
conviction notwithstanding, we find the indeterminate
penalty of "Six (6) Months and One (1) day of PRISION
CORR[R]ECCIONAL as MINIMUM to Six (6) Years
and One (1) day of PRISION MAYOR as
MAXIMUM"12 fixed by the RTC erroneous despite the
CA concurring with the trial court thereon. Under
Section 1 of the Indeterminate Sentence Law, an
indeterminate sentence is imposed on the offender
consisting of a maximum term and a minimum term.13
The maximum term is the penaltyproperly imposed
under the Revised Penal Code after considering any
attending modifying circumstances; while the minimum
term is within the range of the penalty next lower than
that prescribed by the Revised Penal Codefor the offense
committed. Conformably with Article 50 of the Revised
Penal Code,14 frustrated homicide is punished by
prision mayor, which is next lower to reclusion
temporal, the penalty for homicide under Article 249 of
the Revised Penal Code. There being no aggravating or
mitigating circumstances present, however, prision
mayorin its medium period – from eight years and one
day to 10 years – is proper. As can be seen, the
maximum of six years and one day of prision mayor as
fixed by the RTC and affirmed by the CA was not within
the medium period of prision mayor. Accordingly, the
correct indeterminate sentence is four years of prision
correccional, as the minimum, to eight years and one day
of prision mayor, as the maximum.
The RTC and the CA also agreed on limiting the civil
liability to the sum of ₱14,170.35 as compensatory
damages "representing the actual pecuniary loss suffered
by [Alexander] as he has duly proven."15 We need to
revise such civil liability in order to conform to the law,
the Rules of Court and relevant jurisprudence. In
Bacolod v. People,16 we emphatically declared to be
"imperative that the courts prescribe the proper penalties
when convicting the accused, and determine the civil
liability to be imposed on the accused, unless there has
been a reservation of the action to recover civil liability
or a waiver of its recovery." We explained why in the
following manner:
It is not amiss to stress that both the RTC and the CA
disregarded their express mandate under Section 2, Rule
120 of the Rules of Courtto have the judgment, if it was
of conviction, state: "(1) the legal qualification of the
offense constituted by the acts committed by the accused
and the aggravating or mitigating circumstances which
attended its commission; (2) the participation of the
accused in the offense, whether as principal, accomplice,
or accessory after the fact; (3) the penalty imposed upon
the accused; and (4) the civil liability or damages caused
by his wrongful act or omission to be recovered from the
accused by the offended party, if there is any, unless the
enforcement of the civil liability by a separate civil
action has been reserved or waived." Their disregard
compels us to actas we now do lest the Court be
unreasonably seen as tolerant of their omission. That the
Spouses Cogtas did not themselves seek the correction
of the omission by an appeal is no hindrance to this
action because the Court, as the final reviewing tribunal,
has not only the authority but also the duty to correct at
any time a matter of law and justice.
proximate result of the defendant's wrongful act for
omission."18 Indeed, Article 2219, (1), of the Civil Code
expressly recognizes the right of the victim in crimes
resulting in physical injuries.19 Towards that end, the
Court, upon its appreciation of the records, decrees that
₱30,000.00 is a reasonable award of moral damages.20
In addition, AAA was entitled to recover civil indemnity
of ₱30,000.00.21 Both of these awards did not require
allegation and proof.
In addition, the amounts awarded ascivil liability of the
petitioner shall earn interest of 6% per annumreckoned
from the finality of this decision until full payment by
the accused. WHEREFORE, the Court AFFIRMS the
decision promulgated on September 27, 2006 finding
petitioner Alfredo De Guzman, Jr. GUILTY beyond
reasonable doubt of FRUSTRATED HOMICIDE, and
SENTENCES him to suffer the indeterminate penalty of
four years of prision correccional, as the minimum, to
eight years and one day of prision mayor, as the
maximum; ORDERS the petitioner to pay to Alexander
Flojo civil indemnity of ₱30,000.00; moral damages of
₱30,000.00; and compensatory damages of Pl4,170.35,
plus interest of 6% per annum on all such awards from
the finality of this decision until full payment; and
DIRECTS the petitioner to pay the costs of suit.
SO ORDERED.

We also pointedly remind all trial and appellate courts to

avoid omitting reliefs that the parties are properly
entitled to by law or in equity under the established
facts. Their judgments will not be worthy of the name
unless they thereby fully determine the rights and
obligations of the litigants. It cannot be otherwise, for
only by a full determination of such rights and
obligations would they be true to the judicial office of
administering justice and equity for all. Courts should
then be alert and cautious in their rendition of judgments
of conviction in criminal cases. They should prescribe
the legal penalties, which is what the Constitution and
the law require and expect them to do. Their prescription
of the wrong penalties will be invalid and ineffectual for
being done without jurisdiction or in manifest grave
abuse of discretion amounting to lack of jurisdiction.
They should also determine and set the civil liability ex
delicto of the accused, in order to do justice to the
complaining victims who are always entitled to them.
The Rules of Court mandates them to do so unless the
enforcement of the civil liability by separate actions has
been reserved or waived.17

Alexander as the victim in frustrated homicide suffered

moral injuries because the offender committed violence
that nearly took away the victim’s life. "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
G. R. No. 160188, June 21, 2007
ARISTOTEL VALENZUELA y NATIVIDAD,
Petitioner, - versus - PEOPLE OF THE PHILIPPINES,
Respondents.
DECISION
TINGA, J.:
This case aims for prime space in the firmament
of our criminal law jurisprudence. Petitioner effectively
concedes having performed the felonious acts imputed
against him, but instead insists that as a result, he should
be adjudged guilty of frustrated theft only, not the felony
in its consummated stage of which he was convicted. The
proposition rests on a common theory expounded in two
well-known decisions [1] rendered decades ago by the
Court of Appeals, upholding the existence of frustrated
theft of which the accused in both cases were found guilty.
However, the rationale behind the rulings has never been
affirmed by this Court.
As far as can be told, [2] the last time this Court
extensively considered whether an accused was guilty of
frustrated or consummated theft was in 1918, in People v.
Adiao. [3] A more cursory treatment of the question was
followed in 1929, in People v. Sobrevilla, [4] and in 1984,
in Empelis v. IAC. [5] This petition now gives occasion
for us to finally and fully measure if or how frustrated
theft is susceptible to commission under the Revised
Penal Code.
I.
The basic facts are no longer disputed before us.
The case stems from an 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
the gunshot fired by Lago, leading them to head out of the
building to check what was transpiring. As they were
outside, they were suddenly grabbed by a security guard,
thus commencing their detention. [12] Meanwhile,
petitioner testified during trial that he and his cousin, a
Gregorio Valenzuela, [13] had been at the parking lot,
walking beside the nearby BLISS complex and headed to
ride a tricycle going to Pag-asa, when they saw the
security guard Lago fire a shot. The gunshot caused him
and the other people at the scene to start running, at which
point he was apprehended by Lago and brought to the
security office. Petitioner claimed he was detained at the
security office until around 9:00 p.m., at which time he
and the others were brought to the Baler Police Station.
At the station, petitioner denied having stolen the cartons
of detergent, but he was detained overnight, and
eventually brought to the prosecutors office where he was
charged with theft. [14] During petitioners cross-
examination, he admitted that he had been employed as a
bundler of GMS Marketing, assigned at the supermarket
though not at SM. [15]
In a 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.
In contrast, the determination of whether a crime
is frustrated or consummated necessitates an initial
concession that all of the acts of execution have been
performed by the offender. The critical distinction instead
is whether the felony itself was actually produced by the
acts of execution. The determination of whether the
felony was produced after all the acts of execution had
been performed hinges on the particular statutory
definition of the felony. It is the statutory definition that
generally furnishes the elements of each crime under the
Revised Penal Code, while the elements in turn unravel
the particular requisite acts of execution and
accompanying criminal intent.
 The long-standing Latin maxim actus non facit
reum, nisi mens sit rea supplies an important
characteristic of a crime, that ordinarily, evil intent must
unite with an unlawful act for there to be a crime, and
accordingly, there can be no crime when the criminal
mind is wanting. [35] Accepted in this jurisdiction as
material in crimes mala in se, [36] mens rea has been
defined before as a guilty mind, a guilty or wrongful
purpose or criminal intent, [37] and essential for criminal
liability. [38] It follows that the statutory definition of our
mala in se crimes must be able to supply what the mens
rea of the crime is, and indeed the U.S. Supreme Court
has comfortably held that a criminal law that contains no
mens rea requirement infringes on constitutionally
protected rights. [39] The criminal statute must also
provide for the overt acts that constitute the crime. For a
crime to exist in our legal law, it is not enough that mens
rea be shown; there must also be an actus reus. [40]
It is from the actus reus and the mens rea, as they
find expression in the criminal statute, that the felony is
produced. As a postulate in the craftsmanship of
constitutionally sound laws, it is extremely preferable that
the language of the law expressly provide when the felony
is produced. Without such provision, disputes would
inevitably ensue on the elemental question whether or not
a crime was committed, thereby presaging the undesirable
and legally dubious set-up under which the judiciary is
assigned the legislative role of defining crimes.
Fortunately, our Revised Penal Code does not suffer from
such infirmity. From the statutory definition of any
felony, a decisive passage or term is embedded which
attests when the felony is produced by the acts of
execution. For example, the statutory definition of murder
or homicide expressly uses the phrase shall kill another,
thus making it clear that the felony is produced by the
death of the victim, and conversely, it is not produced if
the victim survives.
We next turn to the statutory definition of theft.
Under Article 308 of the Revised Penal Code, its elements
are spelled out as follows:
Art. 308. Who are liable for theft. Theft
is committed by any person who, with intent to
gain but without violence against or intimidation
of persons nor force upon things, shall take
personal property of another without the latters
consent.
Theft is likewise committed by:
1. Any person who, having found lost
property, shall fail to deliver the
same to the local authorities or to its
owner;
2. Any person who, after having
maliciously damaged the property of
another, shall remove or make use of
the fruits or object of the damage
caused by him; and
3. Any person who shall enter an
inclosed estate or a field where
trespass is forbidden or which
belongs to another and without the
consent of its owner, shall hunt or
fish upon the same or shall gather
cereals, or other forest or farm
products.
Article 308 provides for a general definition of
theft, and three alternative and highly idiosyncratic means
by which theft may be committed. [41] In the present
discussion, we need to concern ourselves only with the
general definition since it was under it that the prosecution
of the accused was undertaken and sustained. On the face
of the definition, there is only one operative act of
execution by the actor involved in theft ─ the taking of
personal property of another. It is also clear from the
provision that in order that such taking may be qualified
as theft, there must further be present the descriptive
circumstances that the taking was with intent to gain;
without force upon things or violence against or
intimidation of persons; and it was without the consent of
the owner of the property.
Indeed, we have long recognized the following elements
of theft as provided for in Article 308 of the Revised Penal
Code, namely: (1) that there be taking of personal
property; (2) that said property belongs to another; (3) that
the taking be done with intent to gain; (4) that the taking
be done without the consent of the owner; and (5) that the
taking be accomplished without the use of violence
against or intimidation of persons or force upon things.
[42]
In his commentaries, Judge Guevarra traces the
history of the definition of theft, which under early
Roman law as defined by Gaius, was so broad enough as
to encompass any kind of physical handling of property
belonging to another against the will of the owner, [43] a
definition similar to that by Paulus that a thief handles
(touches, moves) the property of another. [44] However,
with the Institutes of Justinian, the idea had taken hold
that more than mere physical handling, there must further
be an intent of acquiring gain from the object, thus:
[f]urtum est contrectatio rei fraudulosa, lucri faciendi
causa vel ipsius rei, vel etiam usus ejus possessinisve. [45]
This requirement of animo lucrandi, or intent to gain, was
maintained in both the Spanish and Filipino penal laws,
even as it has since been abandoned in Great Britain. [46]
In Spanish law, animo lucrandi was compounded
with apoderamiento, or unlawful taking, to characterize
theft. Justice Regalado notes that the concept of
apoderamiento once had a controversial interpretation
and application. Spanish law had already discounted the
belief that mere physical taking was constitutive of
apoderamiento, finding that it had to be coupled with the
intent to appropriate the object in order to constitute
apoderamiento; and to appropriate means to deprive the
lawful owner of the thing. [47] However, a conflicting
line of cases decided by the Court of Appeals ruled,
alternatively, that there must be permanency in the 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:
There is a ruling of the Court of Appeals
that theft is consummated when the thief is able
to freely dispose of the stolen articles even if it
were more or less momentary. Or as stated in
another case[ [69]], theft is consummated upon
the voluntary and malicious taking of property
belonging to another which is realized by the
material occupation of the thing whereby the thief
places it under his control and in such a situation
that he could dispose of it at once. This ruling
seems to have been based on Viadas opinion that
in order the theft may be consummated, es
preciso que se haga en circumstancias x x x [
[70]] [71]
In the same commentaries, Chief Justice Aquino,
concluding from Adiao and other cases, also states that
[i]n theft or robbery the crime is consummated after the
accused had material possession of the thing with intent
to appropriate the same, although his act of making use of
the thing was frustrated. [72]
There are at least two other Court of Appeals
rulings that are at seeming variance with the Dio and
Flores rulings. People v. 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]
In People v. Espiritu, [75] the accused had
removed nine pieces of hospital linen from a supply depot
and loaded them onto a truck. However, as the truck
passed through the checkpoint, the stolen items were
discovered by the Military Police running the checkpoint.
Even though those facts clearly admit to similarity with
those in Dio, the Court of Appeals held that the accused
were guilty of consummated theft, as the accused were
able to take or get hold of the hospital linen and that the
only thing that was frustrated, which does not constitute
any element of theft, is the use or benefit that the thieves
expected from the commission of the offense. [76]
In pointing out the distinction between Dio and
Espiritu, Reyes wryly observes that [w]hen the meaning
of an element of a felony is controversial, there is bound
to arise different rulings as to the stage of execution of
that felony. [77] Indeed, we can discern from this survey
of jurisprudence that the state of the law insofar as
frustrated theft is concerned is muddled. It fact, given the
disputed foundational basis of the concept of frustrated
theft itself, the question can even be asked whether there
is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an
accused was guilty of frustrated, and not consummated,
theft. As we undertake this inquiry, we have to reckon
with the import of this Courts 1984 decision in Empelis v.
IAC. [78]
As narrated in Empelis, the owner of a coconut
plantation had espied four (4) persons in the premises of
his plantation, in the act of gathering and tying some
coconuts. The accused were surprised by the owner
within the plantation as they were carrying with them the
coconuts they had gathered. The accused fled the scene,
dropping the coconuts they had seized, and were
subsequently arrested after the owner reported the
incident to the police. After trial, the accused were
convicted of qualified theft, and the issue they raised on
appeal was that they were guilty only of simple theft. The
Court affirmed that the theft was qualified, following
Article 310 of the Revised Penal Code, [79] but further
held that the accused were guilty only of frustrated
qualified theft.
 It does not appear from the Empelis decision that
the issue of whether the theft was consummated or
frustrated was raised by any of the parties. What does
appear, though, is that the disposition of that issue was
contained in only two sentences, which we reproduce in
full:
However, the crime committed is only
frustrated qualified theft because petitioners were not
able to perform all the acts of execution which should
have produced the felony as a consequence. They
were not able to carry the coconuts away from the
plantation due to the timely arrival of the owner. [80]
No legal reference or citation was offered for this
averment, whether Dio, Flores or the Spanish authorities
who may have bolstered the conclusion. There are indeed
evident problems with this formulation in Empelis.
Empelis held that the crime was only frustrated
because the actors were not able to perform all the acts
of execution which should have produced the felon as a
consequence. [81] However, per Article 6 of the Revised
Penal Code, the crime is frustrated when the offender
performs all the acts of execution, though not producing
the felony as a result. If the offender was not able to
perform all the acts of execution, the crime is attempted,
provided that the non-performance was by reason of some
cause or accident other than spontaneous desistance.
Empelis concludes that the crime was frustrated because
not all of the acts of execution were performed due to the
timely arrival of the owner. However, following Article 6
of the Revised Penal Code, these facts should elicit the
conclusion that the crime was only attempted, especially
given that the acts were not performed because of the
timely arrival of the owner, and not because of
spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to
Empelis as we consider the present petition. Even if the
two sentences we had cited actually aligned with the
definitions provided in Article 6 of the Revised Penal
Code, such passage bears no reflection that it is the
product of the considered evaluation of the relevant legal
or jurisprudential thought. Instead, the passage is offered
as if it were sourced from an indubitable legal premise so
settled it required no further explication.
Notably, Empelis has not since been reaffirmed
by the Court, or even cited as authority on theft. Indeed,
we cannot see how Empelis can contribute to our present
debate, except for the bare fact that it proves that the Court
had once deliberately found an accused guilty of
frustrated theft. Even if Empelis were considered as a
precedent for frustrated theft, its doctrinal value is
extremely compromised by the erroneous legal premises
that inform it, and also by the fact that it has not been
entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an
insurmountable given that frustrated theft is viable in this
jurisdiction. Considering the flawed reasoning behind its
conclusion of frustrated theft, it cannot present any
efficacious argument to persuade us in this case. Insofar
as Empelis may imply that convictions for frustrated theft
are beyond cavil in this jurisdiction, that decision is
subject to reassessment.
V.
At the time our Revised Penal Code was enacted
in 1930, the 1870 Codigo Penal de Espaa was then in
place. The definition of the crime of theft, as provided
then, read as follows:
Son reos de hurto:
1. Los que con nimo de lucrarse, y sin volencia o intimidacin
en las personas ni fuerza en las cosas, toman las cosas
muebles ajenas sin la voluntad de su dueo.
2. Los que encontrndose una cosa perdida y sabiendo quin
es su dueo se la apropriaren co intencin de lucro.
3. Los daadores que sustrajeren o utilizaren los frutos u
objeto del dao causado, salvo los casos previstos en los
artίculos 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 del agente. Con este criterio coincide la doctrina
sentada ltimamente porla jurisprudencia espaola que
generalmente considera consumado el hurto cuando el
culpable coge o aprehende la cosa y sta quede por tiempo ms o
menos duradero bajo su poder. El hecho de que ste pueda
aprovecharse o no de lo hurtado es indiferente. El delito no
pierde su carcter de consumado aunque la cosa hurtada sea
devuelta por el culpable o fuere recuperada. No se concibe la
frustracin, pues es muy dificil que el que hace cuanto es
necesario para la consumacin del hurto no lo consume
efectivamente, los raros casos que nuestra jurisprudencia,
muy vacilante, declara hurtos frustrados son verdaderos
delitos consumados. [87] (Emphasis supplied)
Cuello Calns submissions cannot be lightly
ignored. Unlike Viada, who was content with replicating
the Spanish Supreme Court decisions on the matter,
Cuello Caln actually set forth his own thought that
questioned whether theft could truly be frustrated, since
pues es muy dificil que el que hace cuanto es necesario
para la consumacin del hurto no lo consume
efectivamente. Otherwise put, it would be difficult to
foresee how the execution of all the acts necessary for the
completion of the crime would not produce the effect of
theft.
This divergence of opinion convinces us, at least,
that there is no weighted force in scholarly thought that
obliges us to accept frustrated theft, as proposed in Dio
and Flores. A final ruling by the Court that there is no
crime of frustrated theft in this jurisdiction will not lead
to scholastic pariah, for such a submission is hardly
heretical in light of Cuello Calns position.
Accordingly, it would not be intellectually
disingenuous for the Court to look at the question from a
fresh perspective, as we are not bound by the opinions of
the respected Spanish commentators, conflicting as they
are, to accept that theft is capable of commission in its
frustrated stage. Further, if we ask the question whether
there is a mandate of statute or precedent that must
compel us to adopt the Dio and Flores doctrines, the
answer has to be in the negative. If we did so, it would
arise not out of obeisance to an inexorably higher
command, but from the exercise of the function of
statutory interpretation that comes as part and parcel of
judicial review, and a function that allows breathing room
for a variety of theorems in competition until one is
ultimately adopted by this Court.
V.
The foremost predicate that guides us as we
explore the matter is that it lies in the province of the
legislature, through statute, to define what constitutes a
particular crime in this jurisdiction. It is the legislature, as
representatives of the sovereign people, which determines
which acts or combination of acts are criminal in nature.
Judicial interpretation of penal laws should be aligned
with what was the evident legislative intent, as expressed
primarily in the language of the law as it defines the
crime. It is Congress, not the courts, which is to define a
crime, and ordain its punishment. [88] The courts cannot
arrogate the power to introduce a new element of a crime
which was unintended by the legislature, or redefine a
crime in a manner that does not hew to the statutory
language. Due respect for the prerogative of Congress in
defining crimes/felonies constrains the Court to refrain
from a broad interpretation of penal laws where a narrow
interpretation is appropriate. The Court must take heed of
language, legislative history and purpose, in order to
strictly determine the wrath and breath of the conduct the
law forbids. [89]
With that in mind, a problem clearly emerges
with the Dio/Flores dictum. The ability of the offender to
freely dispose of the property stolen is not a constitutive
element of the crime of theft. It finds no support or
extension in Article 308, whether as a descriptive or
operative element of theft or as the mens rea or actus reus
of the felony. To restate what this Court has repeatedly
held: the elements of the crime of theft as provided for in
Article 308 of the Revised Penal Code are: (1) that there
be taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with intent
to gain; (4) that the taking be done without the consent of
the owner; and (5) that the taking be accomplished
without the use of violence against or intimidation of
persons or force upon things. [90]
Such factor runs immaterial to the statutory
definition of theft, which is the taking, with intent to gain,
of personal property of another without the latters
consent. While the Dio/Flores dictum is considerate to the
mindset of the offender, the statutory definition of theft
considers only the perspective of intent to gain on the part
of the offender, compounded by the deprivation of
property on the part of the victim.
For the purpose of ascertaining whether theft is
susceptible of commission in the frustrated stage, the
question is again, when is the crime of theft produced?
There would be all but certain unanimity in the position
that theft is produced when there is deprivation of
personal property due to its taking by one with intent to
gain. Viewed from that perspective, it is immaterial to the
product of the felony that the offender, once having
committed all the acts of execution for theft, is able or
unable to freely dispose of the property stolen since the
deprivation from the owner alone has already ensued from
such acts of execution. This conclusion is reflected in
Chief Justice Aquinos commentaries, as earlier cited, that
[i]n theft or robbery the crime is consummated after the
accused had material possession of the thing with intent
to appropriate the same, although his act of making use of
the thing was frustrated. [91]
It might be argued, that the ability of the offender
to freely dispose of the property stolen delves into the
concept of taking itself, in that there could be no true
taking until the actor obtains such degree of control over
the stolen item. But even if this were correct, the effect
would be to downgrade the crime to its attempted, and not
frustrated stage, for it would mean that not all the acts of
execution have not been completed, the taking not having
been accomplished. Perhaps this point could serve as
fertile ground for future discussion, but our concern now
is whether there is indeed a crime of frustrated theft, and
such consideration proves ultimately immaterial to that
question. Moreover, such issue will not apply to the facts
of this particular case. We are satisfied beyond reasonable
doubt that the taking by the petitioner was completed in
this case. With intent to gain, he acquired physical
possession of the stolen cases of detergent for a
considerable period of time that he was able to drop these
off at a spot in the parking lot, and long enough to load
these onto a taxicab.
Indeed, we have, after all, held that unlawful
taking, or apoderamiento, is deemed complete from the
moment the offender gains possession of the thing, even
if he has no opportunity to dispose of the same. [92] And
long ago, we asserted in People v. Avila: [93]
x x x [T]he most fundamental notion in the crime
of theft is the taking of the thing to be
appropriated into the physical power of the thief,
which idea is qualified by other conditions, such
as that the taking must be effected animo lucrandi
and without the consent of the owner; and it will
be here noted that the definition does not require
that the taking should be effected against the will
of the owner but merely that it should be without
his consent, a distinction of no slight importance.
[94]
Insofar as we consider the present question,
unlawful taking is most material in this respect. Unlawful
taking, which is the deprivation of ones personal property,
is the element which produces the felony in its
consummated stage. At the same time, without unlawful
taking as an act of execution, the offense could only be
attempted theft, if at all.
With these considerations, we can only conclude
that under Article 308 of the Revised Penal Code, theft
cannot have a frustrated stage. Theft can only be
attempted or consummated.
Neither Dio nor Flores can convince us
otherwise. Both fail to consider that once the offenders
therein obtained possession over the stolen items, the
effect of the felony has been produced as there has been
deprivation of property. The presumed inability of the
offenders to freely dispose of the stolen property does not
negate the fact that the owners have already been deprived
of their right to possession upon the completion of the
taking.
Moreover, as is evident in this case, the adoption
of the rule that the inability of the offender to freely
dispose of the stolen property frustrates the theft would
introduce a convenient defense for the accused which
does not reflect any legislated intent, [95] since the Court
would have carved a viable means for offenders to seek a
mitigated penalty under applied circumstances that do not
admit of easy classification. It is difficult to formulate
definite standards as to when a stolen item is susceptible
to free disposal by the thief. Would this depend on the
psychological belief of the offender at the time of the
commission of the crime, as implied in Dio?
Or, more likely, the appreciation of several
classes of factual circumstances such as the size and
weight of the property, the location of the property, the
number and identity of people present at the scene of the
crime, the number and identity of people whom the
offender is expected to encounter upon fleeing with the
stolen property, the manner in which the stolen item had
been housed or stored; and quite frankly, a whole lot
more. Even the fungibility or edibility of the stolen item
would come into account, relevant as that would be on
whether such property is capable of free disposal at any
stage, even after the taking has been consummated.
All these complications will make us lose sight of
the fact that beneath all the colorful detail, the owner was
indeed deprived of property by one who intended to
produce such deprivation for reasons of gain. For such
will remain the presumed fact if frustrated theft were
recognized, for therein, all of the acts of execution,
including the taking, have been completed. If the facts
establish the non-completion of the taking due to these
peculiar circumstances, the effect could be to downgrade
the crime to the attempted stage, as not all of the acts of
execution have been performed. But once all these acts
have been executed, the taking has been completed,
causing the unlawful deprivation of property, and
ultimately the consummation of the theft.
Maybe the Dio/Flores rulings are, in some
degree, grounded in common sense. Yet they do not align
with the legislated framework of the crime of theft. The
Revised Penal Code provisions on theft have not been
designed in such fashion as to accommodate said rulings.
Again, there is no language in Article 308 that expressly
or impliedly allows that the free disposition of the items
stolen is in any way determinative of whether the crime
of theft has been produced. Dio itself did not rely on
Philippine laws or jurisprudence to bolster its conclusion,
and the later Flores was ultimately content in relying on
Dio alone for legal support. These cases do not enjoy the
weight of stare decisis, and even if they did, their
erroneous appreciation of our law on theft leave them
susceptible to reversal. The same holds true of Empilis, a
regrettably stray decision which has not since found favor
from this Court.
We thus conclude that under the Revised Penal
Code, there is no crime of frustrated theft. As petitioner
has latched the success of his appeal on our acceptance of
the Dio and Flores rulings, his petition must be denied,
for we decline to adopt said rulings in our jurisdiction.
That it has taken all these years for us to recognize that
there can be no frustrated theft under the Revised Penal
Code does not detract from the correctness of this
conclusion. It will take considerable amendments to our
Revised Penal Code in order that frustrated theft may be
recognized. Our deference to Viada yields to the higher
reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs
against petitioner.
SO ORDERED.
G.R. No. 180425, July 31, 2008
FELIX RAIT, Petitioner, - versus - THE PEOPLE OF
THE PHILIPPINES, Respondent
RESOLUTION
NACHURA, J.:
Before this Court is a Petition for Review on
Certiorari under Rule 45 of the Rules of Court seeking
the reversal of the Court of Appeals (CA) Decision [1] in
CA-G.R. CR No. 23276 dated January 26, 2006 and its
Resolution [2] dated October 10, 2007. The Court of
Appeals upheld the Decision [3] of the Regional Trial
Court (RTC) of Cagayan de Oro City, Branch 20, wherein
petitioner Felix Rait was convicted of attempted rape.
On November 18, 2003, AAA [4] asked
permission from her parents to go to her brothers house in
Nazareth Street to get her athletic pants. When she was
there, her brother requested her to buy cigarettes from a
nearby store. While in the store, petitioner Rait and one
Janiter Pitago arrived. The two ordered beer and invited
AAA to join them. She initially refused. However, when
Aurora Raez, another neighbor, joined them, AAA was
forced to drink beer. After drinking a glass of beer, she
became drunk. When she was feeling weak, petitioner and
his co-accused brought her out to 20th and 21st Streets
where the petitioner and his co-accused brought her to the
side of the street and forcibly removed her pants and
underwear. Petitioner then forcibly inserted his finger into
her vagina. AAA tried to shout for help but petitioner
covered her mouth while Pitago held her feet. Petitioner
was on top of her and about to insert his penis into her
vagina but she was able to kick both men and run away.
[5]
AAA then went to her brothers house and related
the incident to him. Her brother went out to find
petitioner. When AAAs brother did find petitioner, he
tried to beat petitioner with a stick but the latter ran away.
AAA and her brother then went home to their parents
house in Tambo, Macasandig, Cagayan de Oro City and
told them what happened. At about 3:00 a.m. of
November 19, AAA was accompanied by her brother and
stepmother to Operation Kahusay ug Kalinaw to report
the incident. They also went to Bombo Radyo to appeal
for help in apprehending petitioner. From there, they went
to the Provincial Hospital for AAA to undergo medical
examination. [6] They then proceeded to the police station
where the incident was recorded on the police blotter
under Entry No. 8085. [7]
On May 26, 1994, Rait and Pitago were charged
in an Information, which reads:
That on or about November 19, 1993, at
2:00 oclock in the morning, more or less (sic) at
Nazareth, Cagayan de Oro City, Philippines and
within the jurisdiction of this Honorable Court,
the above-named accused, conspiring,
confederating together and mutually helping one
another, did then and there, wilfully (sic),
unlawfully and feloniously commence the
commission of the crime of Rape, directly by
overt acts, on the person of a [17-year-old]
minor, [AAA], by then and there (sic), with
force and against the latters will while she was
in a state of intoxication, touching her breasts,
removing her panty, holding her feet (by Janiter
Pitago) and lying on top of her (by Felix Rait),
but did not perform all the acts of execution
which would produce the crime of Rape, by
reason of some cause other than his own
spontaneous desistance, that in when (sic)
offended party was able to kick them and the two
ran away.
Contrary to and in violation of Article
335 in relation to Article 6, of the Revised Penal
Code.
After trial, the RTC rendered a Decision, the
dispositive portion of which reads:
WHEREFORE, premises considered,
this court hereby finds the accused Felix Rait
guilty beyond reasonable doubt of the crime of
Attempted Rape.
The basic penalty for Attempted Rape
under Article 335 is two degrees lower than
Reclusion Perpetua or Prision Mayor in its full
extent. Applying the Indeterminate Sentence
Law, the accused is entitled to a penalty lower to
(sic) Prision Mayor or that of Prision
Correccional in its full extent, (sic) hence,
accused FELIX RAIT is sentenced to an
Indeterminate Sentence of PRISION
CORRECCIONAL in its medium period as the
minimum to PRISION MAYOR in its medium
period as the maximum under the same law.
The accused is entitled to his credit in full
(sic) in his favor the period during which he was
under preventive imprisonment pending
litigation.
Accused herein is further ordered to pay
the complainant the sum of P20,000.00 pesos
(sic) as indemnity for Attempted rape to the
complainant (sic); P5,000.00 pesos (sic) for
actual damages and expenses and to pay the costs.
SO ORDERED. [8]
Petitioner appealed the judgment to the CA-
Cagayan de Oro. Petitioner alleged that the RTC erred in:
(1) giving credence to the prosecution witnesses despite
their inconsistent, contradictory and incredible
testimonies; (2) in not finding that petitioner was
implicated in the case by reason of spite and vengeance;
and (3) in finding petitioner guilty beyond reasonable
doubt of the crime of attempted rape despite the failure of
the prosecution to prove his guilt. [9]
The CA denied the appeal and affirmed the trial
courts ruling in all respects. [10] Petitioners motion for
reconsideration was likewise denied.
Petitioner now comes before this Court on the
following grounds:
 THE HONORABLE COURT OF
APPEALS IN AFFIRMING THE DECISION
OF THE TRIAL COURT CONVICTING THE
PETITIONER FOR THE CRIME OF
ATTEMPTED RAPE, DECIDED A QUESTION
OF SUBSTANCE NOT IN ACCORD WITH
THE LAW ON RAPE AND JURISPRUDENCE
ON THE MATTER.
THAT THE HONORABLE COURT OF
APPEALS COMMITTED SERIOUS ERROR
IN [NOT DOWNGRADING] THE CRIME OF
ATTEMPTED RAPE TO ACTS OF
LASCIVIOUSNESS IF NOT THAT OF
UNJUST VEXATION. [11]
Petitioner argues that he should be acquitted of
the crime of attempted rape. If he is to be found guilty of
any offense, he puts forward the theory that based on this
Courts ruling in Baleros, Jr. v. People, [12] he should be
convicted only of unjust vexation.
The petition is bereft of merit. We deny the
Petition for Review.
First, the findings of fact of the trial court,
especially when affirmed by the CA, are conclusive upon
this Court. In this case, the trial court found the acts
imputed to petitioner to have been duly proven by the
evidence beyond reasonable doubt. We are bound by such
finding.
On the strength of those proven facts, the next
question is: what was the offense committed?
Petitioner argues that this Courts ruling in
Baleros is applicable to his case.
In Baleros, accused was convicted of attempted
rape. The CA sustained the conviction. Upon review, this
Court reversed the conviction and found accused guilty of
light coercion. The Court declared:
Expounding on the nature of an
attempted felony, the Court, speaking thru Justice
Claro M. Recto in People vs. Lamahang, stated
that the attempt which the Penal Code punishes is
that which has a logical connection to a
particular, concrete offense; that which is the
beginning of the execution of the offense by overt
acts of the perpetrator, leading directly to its
realization and consummation. Absent the
unavoidable connection, like the logical and
natural relation of the cause and its effect, as
where the purpose of the offender in performing
an act is not certain, meaning the nature of the act
in relation to its objective is ambiguous, then
what obtains is an attempt to commit an
indeterminate offense, which is not a juridical
fact from the standpoint of the Penal Code.
There is absolutely no dispute about the
absence of sexual intercourse or carnal
knowledge in the present case. The next question
that thus comes to the fore is whether or not the
act of the petitioner, i.e., the pressing of a
chemical-soaked cloth while on top of Malou,
constitutes an overt act of rape.
Overt or external act has been defined as
some physical activity or deed, indicating the
intention to commit a particular crime, more than
a mere planning or preparation, which if carried
out to its complete termination following its
natural course, without being frustrated by
external obstacles nor by the voluntary desistance
of the perpetrator, will logically and necessarily
ripen into a concrete offense.
Harmonizing the above definition to the
facts of this case, it would be too strained to
construe petitioner's act of pressing a chemical-
soaked cloth in the mouth of Malou which would
induce her to sleep as an overt act that will
logically and necessarily ripen into rape. As it
were, petitioner did not commence at all the
performance of any act indicative of an intent or
attempt to rape Malou. It cannot be
overemphasized that petitioner was fully clothed
and that there was no attempt on his part to
undress Malou, let alone touch her private part.
For what reason petitioner wanted the
complainant unconscious, if that was really his
immediate intention, is anybodys guess. The CA
maintained that if the petitioner had no intention
to rape, he would not have lain on top of the
complainant. Plodding on, the appellate court
even anticipated the next step that the petitioner
would have taken if the victim had been rendered
unconscious. Wrote the CA:
The shedding of the clothes, both
of the attacker and his victim, will have
to come later. His sexual organ is not yet
exposed because his intended victim is
still struggling. Where the intended
victim is an educated woman already
mature in age, it is very unlikely that a
rapist would be in his naked glory before
even starting his attack on her. He has to
make her lose her guard first, or as in this
case, her unconsciousness.
At bottom then, the appellate court
indulges in plain speculation, a practice
disfavored under the rule on evidence in criminal
cases. For, mere speculations and probabilities
cannot substitute for proof required to establish
the guilt of an accused beyond reasonable doubt.
xxxx
Lest it be misunderstood, the Court is not
saying that petitioner is innocent, under the
premises, of any wrongdoing whatsoever. The
information filed against petitioner contained an
allegation that he forcefully covered the face of
Malou with a piece of cloth soaked in
chemical. And during the trial, Malou testified
about the pressing against her face of the
chemical-soaked cloth and having struggled after
petitioner held her tightly and pinned her down.
Verily, while the series of acts committed by the
petitioner do not determine attempted rape, as
 earlier discussed, they constitute unjust vexation
punishable as light coercion under the second
paragraph of Article 287 of the Revised Penal
Code. In the context of the constitutional
provision assuring an accused of a crime the right
to be informed of the nature and cause of the
accusation, it cannot be said that petitioner was
kept in the dark of the inculpatory acts for which
he was proceeded against. To be sure, the
information against petitioner contains sufficient
details to enable him to make his defense. As
aptly observed by then Justice Ramon C. Aquino,
there is no need to allege malice, restraint or
compulsion in information for unjust vexation.
As it were, unjust vexation exists even without
the element of restraint or compulsion for the
reason that this term is broad enough to include
any human conduct which, although not
productive of some physical or material harm,
would unjustly annoy or irritate an innocent
person. The paramount question is whether the
offenders act causes annoyance, irritation,
torment, distress or disturbance to the mind of the
person to whom it is directed. That Malou, after
the incident in question, cried while relating to
her classmates what she perceived to be a sexual
attack and the fact that she filed a case for
attempted rape proved beyond cavil that she was
disturbed, if not distressed by the acts of
petitioner. [13]
We are not persuaded by petitioners argument.
Several facts attendant to this case distinguish it from
Baleros, enough to convince us to arrive at a different
conclusion.
Unlike in Baleros, the acts of petitioner clearly
establish his intention to commence the act of rape.
Petitioner had already successfully removed the victims
clothing and had inserted his finger into her vagina. It is
not empty speculation to conclude that these acts were
preparatory to the act of raping her. Had it not been for
the victims strong physical resistance, petitioners next
step would, logically, be having carnal knowledge of the
victim. The acts are clearly the first or some subsequent
step in a direct movement towards the commission of the
offense after the preparations are made. [14]
Under Article 6, in relation to Article 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.
[15]
This Court has held that 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]
Thus, we find that petitioner was correctly
convicted of attempted rape.
A final observation. We note that the trial courts
Decision sentenced petitioner to a prison term without
specifying the period this sentence covers. We will rectify
this error even as we affirm petitioners conviction.
The penalty for attempted rape is prision mayor,
or two degrees lower than reclusion perpetua, the penalty
for consummated rape. Petitioner should be sentenced to
an indeterminate sentence the minimum of which is in the
range of prision correccional, or within six months and
one day to six years, and the maximum of which is prision
mayor medium, or within eight years and one day to ten
years. In this case, the trial court sentenced petitioner to
an Indeterminate Sentence of PRISION
CORRECCIONAL in its medium period, as the minimum,
to PRISION MAYOR in its medium period, as the
maximum.
WHEREFORE, the foregoing premises
considered, the Court of Appeals Decision in CA-G.R.
CR No. 23276 dated January 26, 2006 and its Resolution
dated October 10, 2007 affirming petitioners conviction
for ATTEMPTED RAPE are AFFIRMED WITH
MODIFICATION. The petitioner is sentenced to an
indeterminate sentence of two (2) years, four (4)
months, and one (1) day of prision correccional
medium, as minimum, to ten (10) years of prision mayor
medium, as its maximum. In all other respects, the trial
courts Decision is AFFIRMED.
SO ORDERED.
[G.R. Nos. 141724-27. November 12, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs.
ARNULFO ORANDE y CHAVEZ, appellant.
DECISION
CORONA, J.:
This is an appeal from the decision [1] of the Regional
Trial Court of Manila, Branch 18, in Criminal Case Nos.
97-159184, 97-159185, 97-159186 and 97-159187,
convicting appellant for two counts of simple rape, one
count of statutory rape and one count of frustrated rape,
and sentencing him to suffer three counts of reclusion
perpetua for the simple and statutory rapes, and an
indeterminate penalty of 8 years to 14 years and 8
months of imprisonment for the frustrated rape.
Complainant Jessica Castro charged appellant with
raping her four times between January 1994 and
November 1996. The informations filed against
appellant by the City Prosecutor read:
In Criminal Case No. 97-159184 -
That on or about January 14, 1996, in the City of Manila,
Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and
intimidation, that is, by threatening to kill said Jessica
Castro, had carnal knowledge of the latter against her
will.
CONTRARY TO LAW.
In Criminal Case No. 97-159185-
That on or about April 15, 1994, in the City of Manila,
Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and
intimidation, that is, by threatening JESSICA CASTRO
Y DE LA CRUZ of death should she resist or report the
matter to anybody, had carnal knowledge of said Jessica
C. Castro, a minor, under 12 years of age, against her
will.
CONTRARY TO LAW.
In Criminal Case No. 97-159186 -
That on or about March 12, 1995, in the City of Manila,
Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and
intimidation, that is, by threatening Jessica Castro y de la
Cruz of death should she resist or report the matter to
anybody, had carnal knowledge of said Jessica C.
Castro, a minor, under 12 years of age, against her will.
CONTRARY TO LAW.
In Criminal Case No. 97-159187-
That on or about November 17, 1996, in the City of
Manila, Philippines, the said accused did then and there
willfully, unlawfully and feloniously, by means of force
and intimidation, that is, by threatening to kill said
Jessica Castro, had carnal knowledge of the latter against
her will.
CONTRARY TO LAW. [2]
Arraigned on September 5, 1997, appellant pleaded not
guilty. [3] Thereafter, trial on the merits ensued.
However, the trial was subsequently postponed for eight
months as Jessica was suffering from psychological and
emotional trauma from her horrifying ordeal. [4] The
lower court ordered the suspension of the trial to enable
her to undergo psychological therapy at the Child
Protection Unit of the Philippine General Hospital. Trial
resumed in November 1998 with the prosecution
presenting Jessica as its first witness.
Incidentally, prior to the filing of the aforementioned
cases, Jessica also filed a criminal case against her
mother, Girlie de la Cruz Castro, and the appellant for
child abuse.
The evidence of the prosecution showed that appellant
was the common law husband of Jessicas mother Girlie.
Appellant, a pedicab driver, started living with Girlie
and her three children sometime in 1993 in a two-storey
house in Paco, Manila owned by Girlies mother. They
occupied a room on the ground floor which served as
their bedroom, kitchen and living room. The adjacent
room was occupied by Girlies brother and his family
while the room on the second floor was occupied by
Girlies sister and her family.
Girlie gave birth to two more children by appellant. To
earn a living, Girlie sold fish at the Paco Market, buying
her stock from the Navotas fish market late at night and
sometimes in the early hours of the morning.
The first incident of rape, subject of Criminal Case No.
97-159185, happened sometime in April 1994 when
Girlie was at the fish market. Appellant was left in the
house with Jessica, her siblings and appellants two
children with Girlie. Jessica was then watching
television while her brothers and sisters were sleeping
beside her. Appellant grabbed Jessicas right hand and
lasciviously jabbed her palm with his finger. He ordered
her to undress which she obeyed out of fear as appellant
was armed with a knife. Appellant then removed his
pants, placed himself on top of complainant and
succeeded in partially penetrating her. Jessica felt pain in
her vagina and saw it smeared with blood and semen.
She tried to leave the room but appellant locked the door
and threatened to kill her if she told her mother what
happened. Jessica was then only nine years and four
months old, having been born on December 19, 1983.
[5]
The second rape, subject of Criminal Case No. 97-
159186, occurred on March 14, 1995 at around 11:00
a.m. when Jessica was 11 years and 3 months old. Girlie
was in the market while Jessica and her siblings were
left in the house watching television. Soon after,
appellant arrived and sent the children, except Jessica, to
play outside. Left alone with Jessica, appellant removed
his clothes, pulled out a balisong and ordered Jessica to
undress. He then held her by the shoulder and made her
lie down. Then he mounted her. Appellant reached his
orgasm shortly after penetrating her slightly. He stood
up with semen still dripping from his penis. Apparently
still not satisfied, he knelt down, kissed and fingered
Jessicas vagina, then mashed her breasts. He only
stopped what he was doing when someone knocked at
the door. Appellant and Jessica hurriedly put on their
clothes and, as appellant opened the door, Jessica went
to the bathroom to wash herself.
The third rape, subject of Criminal Case No. 97-159184,
occurred on January 14, 1996, when Jessica was 12
years and 6 months old. She arrived from school at
around 11:00 a.m. While she was changing her clothes,
appellant ordered Jessicas brother and sister to visit their
mother at the Paco Market and sent his children to play
outside the house. When appellant and Jessica were
alone, he removed his pants, got his knife and ordered
her to undress. Since she was afraid, Jessica was forced
to remove her clothes. Appellant then told her they
would do what they did before, pulled her towards him
and made her lie down on the floor. While holding the
knife, he kissed and fingered her vagina, then mashed
her breasts. Thereafter, he placed himself on top of her,
partially penetrated her until he ejaculated. When
Jessicas brother and sister arrived, appellant hurriedly
put on his clothes. Jessica did the same. She then went to
the bathroom to wash herself and change her
bloodstained underwear.
The last rape, subject of Criminal Case No. 97-159187,
occurred sometime in November 1996, at around 11:00
p.m. Girlie was again in the public market while Jessica
was at home with her siblings who were all asleep.
Appellant told Jessica that they would again do what
they did before but she refused, saying that she might get
pregnant. Appellant brandished his balisong and
threatened to kill her. He then covered himself and
Jessica with a blanket, removed his pants and her shorts,
and placed himself on top of her. His penis slightly
penetrated her vagina. He mashed her breasts, inserted
his finger into her vagina and kissed it. Jessica pushed
him away and told him she wanted to sleep. Then she
put on her shorts. Appellant also put on his pants and
told Jessica not to tell her mother what he did to her. He
assured her that she would not get pregnant because she
was not yet menstruating.
Sometime in March 1997, a teacher of Jessica, Mrs.
Adoracion Mojica, noticed the unusual treatment of
Jessica by appellant. When confronted by Mrs. Mojica,
Jessica admitted that appellant had raped her several
times. Mrs. Mojica called up Jessicas aunt, Mrs.
Antonina de la Cruz, and narrated to her what Jessica
had confessed. Mrs. De la Cruz then accompanied
Jessica to the police station to file a complaint and to the
Philippine General Hospital (PGH), Child Protection
Unit, to be examined. Dr. Bernadette J. Madrid, Director
of the Child Protection Unit, examined Jessica and the
findings revealed the following:
Genital Examination:
Hymen: Estrogenized,
Attenuated from 1 oclock
position to 4 o clock position
and from 6 o clock to 12 o clock
position
Notch at 5 oclock
Healed hymenal tear at the 6 o
clock position
Anus: Normal rectal tone, no
pigmentation, no scars, normal rugae [6]
For his defense, appellant advanced denial and alibi. He
denied ever raping Jessica and testified that, during the
alleged second rape incident, he was driving his pedicab.
His live-in partner Girlie testified that, during the
purported first and second incidents of rape, appellant
was with her to buy fish in Navotas and sell them in
Paco market. Appellant argued that since Jessica
disapproved of his relationship with her mother, she had
the motive to falsely accuse him of raping her. Further,
he pointed out the improbability of the alleged first and
fourth incidents of rape inasmuch as the make-up of the
room made it impossible for Jessicas siblings not to
wake up during the commission of the crime. Appellant
further contended that Jessicas failure to cry out for help,
knowing that her mothers relatives were in the same
house, made her story of rape unbelievable.
The trial court gave credence to the testimony of Jessica
and convicted the appellant:
WHEREFORE, in Criminal Case No. 97-159184,
Accused Arnulfo Orande y Chavez is convicted of
simple rape under Article 335 of the Revised Penal Code
and sentenced to suffer the penalty of reclusion perpetua
with all the accessory penalties provided by law.
In Criminal Case No. 97-159185, the accused is also
convicted of simple rape under Article 335 of the
Revised Penal Code and sentenced to suffer the penalty
of reclusion perpetua with all the accessory penalties
provided by law.
In Criminal Case No. 97-159186, the accused is likewise
convicted of statutory rape under Article 335 of the
Revised Penal Code and sentenced to suffer the penalty
of reclusion perpetua with all the accessory penalties
provided by law.
In Criminal Case No. 97-159187, the accused is
convicted of frustrated rape under Article 335 of the
Revised Penal Code and sentenced to suffer the
indeterminate penalty of 8 years of prision mayor as
minimum to 14 years and 8 months of reclusion
temporal as maximum, and to pay the costs.
On the civil liability of the accused in the four cases, he
is ordered to pay the victim, Jessica Castro, moral,
nominal and exemplary damages in the respective sums
of P400,000.00, P200,000.00 and P100,000.00.
SO ORDERED. [7]
In this appeal, appellant assigns the following errors:
I. THE COURT A QUO GRAVELY ERRED IN
FINDING THE ACCUSED-APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF ONE COUNT
OF STATUTORY RAPE, ONE COUNT OF
FRUSTRATED RAPE AND TWO COUNTS OF
SIMPLE RAPE.
II. THE COURT A QUO GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT OF
FRUSTRATED RAPE DESPITE THE FACT THAT
UNDER PREVAILING JURISPRUDENCE THERE IS
NO SUCH CRIME. [8]
The Office of the Solicitor General argues that
appellants convictions should be upheld as the
prosecution was able to prove his guilt beyond
reasonable doubt.
The appeal is partly meritorious. This Court finds that
the prosecution was able to prove beyond reasonable
doubt appellants guilt for two counts of statutory rape
and two counts of simple rape, there being no such crime
as frustrated rape in this jurisdiction.
After a thorough review of the records, we find no
reason to deviate from the well-established rule that the
credibility of witnesses is a matter best assessed by the
trial court because of its unique opportunity to observe
them firsthand and to note their demeanor, conduct and
attitude. [9] In the present case, the trial court found
Jessicas testimony convincing, logical and credible.
Moreover, the court a quo:
xxx discerned from her demeanor the intense mental
torture, embarrassment, emotional pain and bitterness
she suffered whenever she was asked to recall and
narrate the humiliating sexual ordeals she had gone
through, and her ... desire for justice and the punishment
of her defiler. She was continually in tears while
testifying and the proceeding was interrupted several
times to calm her down. [10]
No young woman would allow an examination of her
private part and subject herself to the humiliation and
rigor of a public trial if the accusations were not true, or
if her motive were other than a fervent desire to seek
justice. [11]
We do not subscribe to appellants theory that the filing
of the rape charges was motivated by Jessicas dislike for
him. To charge appellant with rape for the sole purpose
of exacting revenge, as appellant implies in his brief,
takes a certain kind of psychiatric depravity which this
Court does not see in Jessica. The fact that Jessica had to
undergo psychological treatment [12] after her first
testimony in February 1998 belies appellants defense.
The need for such counseling came about after the
defilement she suffered in the hands of appellant. In fact,
it was the incidents of rape that caused her psychological
and emotional imbalance which required therapy at the
Child Protection Unit of the Philippine General Hospital.
The alleged inconsistencies and improbabilities in
Jessicas testimony did not discredit her nor reveal any
fabrication. Inconsistencies regarding minor details were
attributable to the fact that she was recalling details of
incidents that happened three years before, not to
mention the fact that these details pertained to something
she had very little knowledge of, being then only nine
years and three months old when the first rape was
committed. We have consistently ruled that errorless
recollection of a harrowing experience cannot be
expected of a witness (a very young one at that)
specially when she is recounting details of an occurrence
so humiliating, so painful and, in this case, so alien as
rape. [13]
Appellant makes much of the fact that two incidents of
rape happened inside the room where the other children
were sleeping. This Court has repeatedly held that rape
can be committed in the same room where other
members of the family are also sleeping, in a house
where there are other occupants or even in places which
to many might appear unlikely and high-risk venues for
its commission. [14]
Also, the failure of Jessica to cry out for help during the
incidents in question, inspite of the physical proximity of
her relatives, or to report to them what happened, did not
at all make her testimony improbable inasmuch as it is
not uncommon for a young girl of tender age to be easily
intimidated into silence and conceal for sometime the
violation of her honor, even by the mildest threat to her
life. [15] Besides, Girlie, Jessicas mother, had a rift with
her siblings who lived in the same house and forbade
Jessica to socialize with them. It was likewise highly
probable that the strained relations between Jessicas
mother, uncle and aunt prevented Jessica from confiding
in them.
In a number of cases, this Court has likewise ruled that
delay, even of three years, in reporting the crime does
not necessarily detract from the witness credibility as
long as it is satisfactorily explained. [16] Jessica was
threatened by appellant that he would kill her mother
and relatives if she reported the rape. A young girl like
Jessica can easily be mesmerized by fear of bodily harm
and, unlike a mature woman, cannot be expected to have
the courage or confidence to immediately report a sexual
assault on her, specially when a death threat hangs over
her head. [17]
In view of the credible testimony of Jessica, appellants
defenses of denial and alibi deserve no consideration.
These weak defenses cannot stand against the positive
identification and categorical testimony of a rape victim.
[18]
The court a quo convicted appellant of one count of
frustrated rape in Criminal Case No. 97-151987, the
dispositive portion of which read:
xxx xxx xxx.
In Criminal Case No. 97-159187, the accused is
convicted of frustrated rape under Article 335 of the
Revised Penal Code and sentenced to suffer the
indeterminate penalty of 8 years of prision mayor as
minimum, and to pay the costs.
xxx xxx xxx.
SO ORDERED. [19]
However, we agree with the observation of the Solicitor
General that the court a quo was referring to Criminal
Case No. 97-159185, and not Criminal Case No. 97-
159187, in convicting appellant of frustrated rape:
The trial court convicted appellant of simple rape in
Criminal Case No. 97-159185. However, the factual
basis thereof in the body of the decision reads:
With regard to Criminal Case No. 97-159185, the Court
has gathered that sometime in April, 1994, at around
11:00 p.m., Jessica and her two siblings together with
the accused were in their house, while their mother,
Girlie, was in Navotas buying fish. Jessica was watching
TV in a lying position beside her two sleeping siblings,
when the accused held Jessicas right hand and jabbed her
palm with his finger. Then he told her to remove her
short pants, panty and T-shirt, after which the accused
removed his pants and with a balisong in his hand, he
began kissing the sensitive parts of her body. Then he
placed himself on top of her and tried to have sexual
intercourse with her. He succeeded in nudging her sex
organ with the tip of his penis, but was unable to
accomplish penetration, due to the resistance offered by
her by struggling and kicking him. Nonetheless, the
accused had orgasm and Jessicas sex organ was smeared
with his semen. (emphasis supplied, p. 2, Decision)
Such was the only rape incident where the trial court
concluded there was no penetration.
On the other hand, the factual basis for the conviction in
Criminal Case No. 97-159187 in the body of the trial
courts decision reads:
Anent Criminal Case No. 97-159187, the records further
show that in November, 1996, at around 11:00 p.m.,
Jessica was watching TV while the other siblings were
asleep and her mother was away, when accused again
made sexual advances to her. She resisted and told
accused she might become pregnant, but the accused
persisted and threatened to kill her at that very moment
if she would not submit to his lust. As in the previous
occasions, he again succeeded in having carnal
knowledge of the helpless and scared victim. After her
defilement, the victim continually cried and the accused
tried to calm her down by assuring her that she would
not be impregnated, because she has not yet began to
have menstruation (p. 3, Decision)
Consequently the conviction for frustrated rape should
pertain to the incident in April 1994 described in
Criminal Case No. 97-159185 and not Criminal Case
No. 97-159187 since this case refers to the November
1996 rape incident where the findings of the trial court
was that there was carnal knowledge. [20]
Moreover, the oversight of the court a quo in
interchanging Criminal Case Nos. 97-159185 and 97-
159187 is further evidenced by the following paragraph
found in page four of the trial court decision:
In Criminal Case 97-159185 and 97-159184, the acts of
the accused in having carnal knowledge of the victim by
intimidation on two separate occasions in [the] early or
middle part [of] 1996, and in November of the same
year, constitute two separate crimes of qualified rape
under R.A. 7659 and the penalty prescribed therefore is
death by lethal injection. [21] (Emphasis Ours)
The rape incidents which occurred in 1996 were
designated as Criminal Case Nos. 97-159184 and 97-
159187, as borne out by the informations filed by the
City Prosecutor. [22] Thus, the conviction for frustrated
rape should pertain to Criminal Case No. 97-159185 and
not Criminal Case No. 97-159187.
Regarding Criminal Case No. 97-159185 (the April 1994
rape incident), the Court sustains appellants contention
that there is no such crime as frustrated rape, as we have
ruled in a long line of cases. [23] Recently, in People vs.
Quinanola, [24] we again reiterated the rule:
Let it be said once again that, as the Revised Penal Code
presently so stands, there is no such crime as frustrated
rape. In People vs. Orita, the Court has explicitly
pronounced:
Clearly, in the crime of rape, from the moment the
offender has carnal knowledge of his victim, he actually
attains his purpose and, from that moment also all the
essential elements of the offense have been
accomplished. Nothing more is left to be done by the
offender, because he has performed the last act necessary
to produce the crime. Thus, the felony is consummated.
In a long line of cases (People vs. Oscar, 48 Phil. 527;
People vs. Hernandez, 49 Phil. 980; People vs. Royeras,
G.R. No. L-31886, April 29, 1974, 56 SCRA 666;
People vs. Amores, G.R. No. L-32996, August 21, 1974,
58 SCRA 505), We have set the uniform rule that for the
consummation of rape, perfect penetration is not
essential. Any penetration of the female organ by the
male organ is sufficient. Entry of the labia or lips of the
female organ, without rupture of the hymen or laceration
of the vagina is sufficient to warrant conviction.
Necessarily, rape is attempted if there is no penetration
of the female organ (People vs. Tayaba, 62 Phil. 559;
People vs. Rabadan, et al., 53 Phil. 694; United States
vs. Garcia, 9 Phil. 434) because not all acts of execution
was performed. The offender merely commenced the
commission of a felony directly by overt acts. Taking
into account the nature, elements and manner of
execution of the crime of rape and jurisprudence on the
matter, it is hardly conceivable how the frustrated stage
in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in
the case of People vs. Eriia, 50 Phil. 998 [1927] where
We found the offender guilty of frustrated rape there
being no conclusive evidence of penetration of the
genital organ of the offended party. However, it appears
that this is a stray decision inasmuch as it has not been
reiterated in Our subsequent decisions. Likewise, We are
aware of Article 335 of the Revised Penal Code, as
amended by Republic Act No. 2632 (dated September
12, 1960) and Republic Act No. 4111 (dated March 29,
1965) which provides, in its penultimate paragraph, for
the penalty of death when the rape is attempted or
frustrated and a homicide is committed by reason or on
the occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead
provision. The Eriia case, supra, might have prompted
the law-making body to include the crime of frustrated
rape in the amendments introduced by said laws.
The Court is not unaware that Republic Act No. 7659,
amending Article 335 of the Revised Penal Code, has
retained the provision penalizing with reclusion perpetua
to death an accused who commits homicide by reason or
on the occasion of an attempted or frustrated rape. Until
Congress sees it fit to define the term frustrated rape and
thereby penalize it, the Court will see its continued
usage in the statute book as being merely a persistent
lapse in language. (emphasis ours)
Thus, it was error for the trial court to convict appellant
of frustrated rape. Besides, after a careful review of the
records, we find that the rape was in fact consummated.
Jessica initially testified that, although appellant did not
succeed in inserting his penis in her vagina, she felt his
sex organ touch hers and she saw and felt semen come
out of his penis and smear her vagina. [25] In response
to the clarificatory questions asked by the prosecutor,
Jessica testified that the appellant was able to slightly
penetrate her because she felt pain and her vagina bled.
[26] It has been held that, to be convicted of rape, there
must be convincing and sufficient proof that the penis
indeed touched the labia or slid into the female organ,
and not merely stroked the external surface thereof. [27]
Nevertheless, we have also ruled in cases where
penetration is not established that the rape is deemed
consummated if the victim felt pain, or the medico-legal
examination finds discoloration in the inner lips of the
vagina, or the labia minora is already gaping with
redness, or the hymenal tags are no longer visible. [28]
In the present case, the victim testified that she felt pain
and her vagina bled, indisputable indications of slight
penetration or, at the very least, that the penis indeed
touched the labia and not merely stroked the external
surface thereof. Thus, the appellant should be found
guilty of (consummated) rape and not merely frustrated
or attempted rape.
Pursuant to Section 11 of RA 7659 or the Heinous
Crimes Law, the penalty of death is imposed if rape is
committed when the victim is under 18 years of age and
the offender is the common-law spouse of the parent of
the victim. However, the trial court was correct in not
imposing the death penalty in Criminal Case Nos. 97-
159184 and 97-159187 because the qualifying
circumstances of age and relationship of the victim to
the appellant were not alleged in the information. [29]
Thus, appellant can only be convicted of simple rape
punishable by reclusion perpetua under Article 335 of
the Revised Penal Code. However, in Criminal Case
Nos. 97-159185 and 97-159186, the appellant can be
convicted of statutory rape also punishable by reclusion
perpetua under Article 335 of the Revised Penal Code
inasmuch as the age of Jessica was alleged in the
information [30] and duly proven during the trial by the
presentation of her birth certificate. [31]
We award moral damages of P50,000 for each count of
rape as moral damages are automatically awarded to
rape victims without need of pleading or proof. [32] We
also award civil indemnity ex delicto of P50,000 for each
count of rape in the light of the ruling that civil
indemnity, which is distinct from moral damages, is
mandatory upon the finding of the fact of rape. [33] We
likewise award exemplary damages of P25,000 for each
count of rape consistent with the prevailing
jurisprudence on the matter. [34]
WHEREFORE, the decision of the Regional Trial
Court of Manila, Branch 18, in Criminal Case Nos. 97-
159 184 to 87 is AFFIRMED with the following
MODIFICATIONS:
1. In Criminal Case No. 97-159 184, appellant is
convicted of simple rape under Article 335 of the
Revised Penal Code and sentenced to suffer the penalty
of reclusion perpetua.
2. In Criminal Case No. 97-159 185, appellant is
convicted of statutory rape under Article 335 of the
Revised Penal Code and sentenced to suffer the penalty
of reclusion perpetua.
3. In Criminal Case No. 97-159186, appellant is
convicted of statutory rape under Article 335 of the
Revised Penal Code and sentenced to suffer the penalty
of reclusion perpetua.
4. In Criminal Case No. 97-159187, appellant is
convicted of simple rape under Article 335 of the
Revised Penal Code and sentenced to suffer the penalty
of reclusion perpetua.
For each count of rape, appellant is ordered to pay
complainant Jessica Castro P50,000 as moral damages,
P50,000 as civil indemnity and P25,000 as exemplary
damages, or a total of P500,000. Costs against appellant.
SO ORDERED.
 [G.R. No. 129433. March 30, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff, vs.
PRIMO CAMPUHAN Y BELLO, accused.
DECISION
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita [1] finally
did away with frustrated rape [2] 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 refusal to
run an errand for her. [9] 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 majora or
the labia minora of the pudendum constitutes
consummated rape.
The pudendum or vulva is the collective term for the
female genital organs that are visible in the perineal area,
e.g., mons pubis, labia majora, labia minora, the hymen,
the clitoris, the vaginal orifice, etc. The mons pubis is
the rounded eminence that becomes hairy after puberty,
and is instantly visible within the surface. The next layer
is the labia majora or the outer lips of the female organ
composed of the outer convex surface and the inner
surface. The skin of the outer convex surface is covered
with hair follicles and is pigmented, while the inner
surface is a thin skin which does not have any hair but
has many sebaceous glands. Directly beneath the labia
majora is the labia minora. [15] Jurisprudence dictates
that the labia majora must be entered for rape to be
consummated, [16] 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
drawbridge." [19] 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
visible. [26] 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.
Lastly, it is pertinent to mention the medico legal
officer's finding in this case that there were no external
signs of physical injuries on complaining witness body
to conclude from a medical perspective that penetration
had taken place. As Dr. Aurea P. Villena explained,
although the absence of complete penetration of the
hymen does not negate the 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 labial threshold 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 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.
 G.R. No. 166441, October 08, 2014
NORBERTO CRUZ Y BARTOLOME, Petitioner, v.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
The intent of the offender to lie with the female defines
the distinction between attempted rape and acts of
lasciviousness. The felony of attempted rape requires
such intent; the felony of acts of lasciviousness does not.
Only the direct overt acts of the offender establish the
intent to lie with the female. However, merely climbing
on top of a naked female does not constitute attempted
rape without proof of his erectile penis being in a
position to penetrate the female's vagina.
The Case
This appeal examines the decision promulgated on July
26, 2004,1 whereby the Court of Appeals (CA) affirmed
the conviction for attempted rape of the petitioner by the
Regional Trial Court, Branch 34, in Balaoan, La Union
(RTC), and imposing on him the indeterminate penalty
of imprisonment of four (4) years and two (2) months of
prision correccional, as minimum, to ten (10) years of
prision mayor, as maximum, and ordering him to pay
moral damages of P20,000.00 to AAA,2 the victim.
Antecedents
The petitioner was charged in the RTC with attempted
rape and acts of lasciviousness involving different
victims. At arraignment, he pleaded not guilty to the
respective informations, to wit:
Criminal Case No. 2388
Attempted Rape
That on or about the 21st day of December 1993, at about
2:00 o'clock in the morning, along the Bangar-Luna
Road, Barangay Central West No. 2, Municipality of
Bangar, Province of La Union, Philippines and within
the jurisdiction of this Honorable Court, said accused,
did then and there willfully, unlawfully and feloniously
and by means of force and intimidation commenced the
commission of rape directly by overt acts, to wit: While
private complainant AAA, an unmarried woman, fifteen
(15) years old, was sleeping inside the tent along
Bangar-Luna Road, the said accused remove her panty
and underwear and lay on top of said AAA embracing
and touching her vagina and breast with intent of having
carnal knowledge of her by means of force, and if the
accused did not accomplish his purpose that is to have
carnal knowledge of the said AAA it was not because of
his voluntary desistance but because the said offended
party succeeded in resisting the criminal attempt of said
accused to the damage and prejudice of said offended
party.
CONTRARY TO LAW. 3 incident that took place that early morning. Later still,
Criminal Case No. 2389
Acts of Lasciviousness
That on or about the 21st day of December 1993, at about
3:00 o'clock in the morning, along the Bangar-Luna
Road, Barangay Central West No. 2, Municipality of
Bangar, Province of La Union, Philippines and within
the jurisdiction of this Honorable Court, the above-
named accused with lewd design, did then and there
willfully, unlawfully and feloniously touch the vagina of
[BBB]4 against the latter's will and with no other
purpose but to satisfy his lascivious desire to the damage
and prejudice of said offended party.
CONTRARY TO LAW.5
Version of the Prosecution
The CA summarized the version of the Prosecution as
follows:6
xxx [Petitioner] Norberto Bartolome and [his wife]
Belinda Cruz were engaged in the selling of plastic
wares and glass wares in different municipalities around
the country. On December 20, 1993, Norberto and
Belinda employed AAA and BBB to help them in selling
their wares in Bangar, La Union which was then
celebrating its fiesta. From Libsong East, Lingayen,
Pangasinan to Bangar, La Union, AAA and BBB
boarded a passenger jeepney owned by Norberto. The
young girls were accompanied by Norberto, Belinda,
Ruben Rodriguez (driver) and a sales boy by the name of
"Jess".
Upon reaching Bangar, La Union, at around 8:00 in the
evening of December 20, 1993, they parked in front of
Maroon enterprises. They brought out all the goods and
wares for display. Two tents were fixed in order that
they will have a place to sleep. Belinda and the driver
proceeded to Manila in order to get more goods to be
sold.
On December 21, 1993, at around 1:00 o'clock in the
morning, AAA and BBB went to sleep. Less than an
hour later, AAA was awakened when she felt that
somebody was on top of her. Norberto was mashing her
breast and touching her private part. AAA realized that
she was divested of her clothing and that she was totally
naked. Norberto ordered her not to scream or she'll be
killed. AAA tried to push Norberto away and pleaded to
have pity on her but her pleas fell on deaf ears. She
fought back and kicked Norberto twice.
Norberto was not able to pursue his lustful desires.
Norberto offered her money and told her not to tell the
incident to her mother otherwise, she will be killed.
AAA went out of the tent to seek help from Jess (the
house boy) but she failed to wake him up.
Thirty minutes later, when AAA returned to their tent,
she saw Norberto touching the private parts of BBB.
AAA saw her companion awake but her hands were
shaking. When she finally entered the tent, Norberto left
and went outside.
Later that day, AAA and BBB narrated to Jess the
while they were on their way to fetch water, AAA and
BBB asked the people around where they can find the
municipal building. An old woman pointed to them the
place.
In the evening of December 21, 1993, AAA and BBB
went straight to the municipal hall where they met a
policeman by the name of "Sabas".
They told Sabas the sexual advances made to them by
Norberto. Norberto was summoned to the police station
where he personally confronted his accusers. When
Norberto's wife, Belinda, arrived at the police station, an
argument ensued between them.
On December 22, 1993, at around 2:20 o'clock in the
morning, the police investigator ordered the
complainants to return at 6:00 o'clock in the morning.
Norberto and Belinda were still able to bring AAA and
BBB home with them and worked for them until
December 30, 1994, after which they were sent back to
Lingayen, Pangasinan.
On January 10, 1994, AAA and BBB went back to La
Union and executed their respective sworn statements
against Norberto.
Version of the Defense
The petitioner denied the criminal acts imputed to him.
His version was presented in the assailed decision of the
CA,7 as follows:ChanRoblesVirtualawlibrary
In a bid to exculpate himself, accused-appellant presents
a totally different version of the story. The accused
maintains that it was not possible for him to commit the
crimes hurled against him. On the date of the alleged
incident, there were many people around who were
preparing for the "simbang gabi". Considering the
location of the tents, which were near the road and the
municipal hall, he could not possibly do the dastardly
acts out in the open, not to mention the fact that once
AAA and BBB would scream, the policemen in the
municipal hall could hear them. He believes that the
reason why the complainants filed these cases against
him was solely for the purpose of extorting money from
him.
Judgment of the RTC
After the joint trial of the two criminal cases, the RTC
rendered its judgment on April 6, 2000 finding the
petitioner guilty beyond reasonable doubt of attempted
rape in Criminal Case No. 2388 and acts of
lasciviousness in Criminal Case No. 2389,8 to
wit:ChanRoblesVirtualawlibrary
WHEREFORE, in the light of the foregoing, the Court
hereby renders judgment declaring the accused
NORBERTO CRUZ Y BARTOLOME guilty beyond
reasonable doubt of the crimes of ATTEMPTED RAPE
and ACTS OF LASCIVIOUSNESS as defined and
penalized in Article 335 in relation with (sic) Article 6,
par. 3 and Article 336 of the Revised Penal Code
respectively.
With respect to the crime of ATTEMPTED RAPE, the
Court hereby sentences the accused to suffer an
indeterminate penalty of imprisonment from FOUR (4)
YEARS and TWO (2) MONTHS PRISION
CORRECCIONAL as Minimum to TEN (10) YEARS
PRISION MAYOR as Maximum and the accessory
penalties provided for by law and to pay the victim AAA
the amount of P20,000.00 as moral damages.
With regard to the crime of ACTS OF
LASCIVIOUSNESS, the Court hereby sentences the
accused to suffer an indeterminate penalty of
imprisonment from FOUR (4) MONTHS ARRESTO
MAYOR as Minimum to FOUR (4) YEARS and TWO
(2) MONTHS PRISION CORRECCIONAL as
Maximum and the accessory penalties provided for by
law, and to pay the victim BBB the amount of
P10,000.00 as moral damages.
The preventive imprisonment suffered by the accused by
reason of the two cases is counted in his favor.
SO ORDERED.9
Decision of the CA
On appeal, the petitioner contended that the RTC
gravely erred in convicting him of attempted rape
despite the dubious credibility of AAA, and of acts of
lasciviousness despite the fact that BBB did not testify.
On July 26, 2004, the CA promulgated its decision
affirming the conviction of the petitioner for attempted
rape in Criminal Case No. 2388, but acquitting him of
the acts of lasciviousness charged in Criminal Case No.
2389 due to the insufficiency of the evidence,10 holding
thusly:ChanRoblesVirtualawlibrary
In sum, the arguments of the accused-appellant are too
puerile and inconsequential as to dent, even slightly, the
overall integrity and probative value of the prosecution's
evidence insofar as AAA is concerned.
Under Article 51 of the Revised Penal Code, the penalty
for an attempted felony is the "penalty lower by two (2)
degrees" prescribed by law for the consummated felony.
In this case, the penalty for rape if it had been
consummated would have been reclusion perpetua
pursuant to Article 335 of the Revised Penalty Code, as
amended by Republic Act No. 7659. The penalty two
degrees lower than reclusion perpetua is prision mayor.
Applying the Indeterminate Sentence Law, the
maximum term of the penalty shall be the medium
period of prision mayor in the absence of any mitigating
or aggravating circumstance and the minimum shall be
within the range of the penalty next lower to that
prescribed for the offense which in this case is prision
correctional in any of its periods.
We also find that the trial court correctly assessed the
amount of P20,000.00 by way of moral damages against
the accused-appellant. In a rape case, moral damages
may be awarded without the need of proof or pleading
since it is assumed that the private complainant suffered
moral injuries, more so, when the victim is aged 13 to
19.
Insofar as the crime of acts of lasciviousness committed
against BBB, the accused argues that there is not enough
evidence to support such accusation. BBB did not testify
and neither her sworn statement was formally offered in
evidence to support the charge for acts of lasciviousness.
In this case, the evidence adduced by the prosecution is
insufficient to substantiate the charge of acts of
lasciviousness against the accused-appellant. The basis
of the complaint for acts of lasciviousness is the sworn
statement of BBB to the effect that the accused-appellant
likewise molested her by mashing her breast and
touching her private part. However, she was not
presented to testify. While AAA claims that she
personally saw the accused touching the private parts of
BBB, there was no testimony to the effect that such
lascivious acts were without the consent or against the
will of BBB.11
Issues
In this appeal, the petitioner posits that the CA's decision
was not in accord with law or with jurisprudence,
particularly:ChanRoblesVirtualawlibrary
I.
In giving credence to the incredulous and unbelievable
testimony of the alleged victim; and
II.
In convicting the accused notwithstanding the failure of
the prosecution to prove the guilt of the petitioner
beyond reasonable doubt.
Anent the first issue, the petitioner assails the behavior
and credibility of AAA. He argues that AAA still
continued working for him and his wife until December
30, 1994 despite the alleged attempted rape in the early
morning of December 21, 1994, thereby belying his
commission of the crime against her; that he could not
have undressed her without rousing her if she had gone
to sleep only an hour before, because her bra was locked
at her back; that her testimony about his having been on
top of her for nearly an hour while they struggled was
also inconceivable unless she either consented to his act
and yielded to his lust, or the incident did not happen at
all, being the product only of her fertile imagination; that
the record does not indicate if he himself was also
naked, or that his penis was poised to penetrate her; and
that she and her mother demanded from him P80,000.00
as settlement, under threat that she would file a case
against him.12
On the second issue, the petitioner assails the glaring
inconsistencies in the testimony of AAA that cast doubt
on her veracity.
Ruling of the Court
The appeal is partly meritorious.
In an appeal under Rule 45 of the Rules of Court,13 the
Court reviews only questions of law. No review of the
findings of fact by the CA is involved. As a consequence
of this rule, the Court accords the highest respect for the
factual findings of the trial court, its assessment of the
credibility of witnesses and the probative weight of their
testimonies and the conclusions drawn from its factual
findings, particularly when they are affirmed by the CA.
Judicial experience has shown, indeed, that the trial
courts are in the best position to decide issues of
credibility of witnesses, having themselves heard and
seen the witnesses and observed firsthand their
demeanor and deportment and the manner of testifying
under exacting examination. As such, the contentions of
the petitioner on the credibility of AAA as a witness for
the State cannot be entertained. He thereby raises
questions of fact that are outside the scope of this appeal.
Moreover, he thereby proposes to have the Court, which
is not a trier of facts, review the entire evidence adduced
by the Prosecution and the Defense.
Conformably with this limitation, our review focuses
only on determining the question of law of whether or
not the petitioner's climbing on top of the undressed
AAA such that they faced each other, with him mashing
her breasts and touching her genitalia with his hands,
constituted attempted rape, the crime for which the RTC
and the CA convicted and punished him. Based on the
information, supra, he committed such acts "with intent
of having carnal knowledge of her by means of force,
and if the accused did not accomplish his purpose that is
to have carnal knowledge of the said AAA it was not
because of his voluntary desistance but because the said
offended party succeeded in resisting the criminal
attempt of said accused to the damage and prejudice of
said offended party."
There is an attempt, according to Article 6 of the Revised
Penal Code, when the offender commences the
commission of a felony directly by overt acts, and does
not perform all the acts of execution which should
produce the felony by reason of some cause or accident
other than this own spontaneous desistance. In People v.
Lamahang,14 the Court, speaking through the eminent
Justice Claro M. Recto, eruditely expounded on what
overt acts would constitute an attempted felony, to
wit:ChanRoblesVirtualawlibrary
It is our opinion that the attempt to commit an offense
which the Penal Code punishes is that which has a
logical relation to a particular, concrete offense; that,
which is the beginning of the execution of the offense by
overt acts of the perpetrator, leading directly to its
realization and consummation. The attempt to commit an
indeterminate offense, inasmuch as its nature in relation
to its objective is ambiguous, is not a juridical fact from
the standpoint of the Penal Code, xxxx But it is not
sufficient, for the purpose of imposing penal sanction,
that an act objectively performed constitute a mere
beginning of execution; it is necessary to establish its
unavoidable connection, like the logical and natural
relation of the cause and its effect, with the deed which,
upon its consummation, will develop into one of the
offenses defined and punished by the Code; it is
necessary to prove that said beginning of execution, if
carried to its complete termination following its natural
course, without being frustrated by external obstacles
nor by the voluntary desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense, x
x x x.
"It must be borne in mind (I Groizard, p. 99) that in
offenses not consummated, as the material damage is
wanting, the nature of the action intended (action fin)
cannot exactly be ascertained, but the same must be
inferred from the nature of the acts of execution (action
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 cannot furnish grounds by
themselves for attempted or frustrated crimes. The
relation existing between the facts submitted for
appreciation and the offense of which said facts are
supposed to produce must be direct; the intention must
be ascertained from the facts and therefore it is
necessary, in order to avoid regrettable instance of
injustice, that the mind be able to directly infer from
them the intention of the perpetrator to cause a particular
injury. This must have been the intention of the
legislator in requiring that in order for an attempt to
exist, the offender must commence the commission of
the felony directly by overt acts, that is to say, that the
acts performed must be such that, without the intent to
commit an offense, they would be meaningless."15
To ascertain whether the acts performed by the petitioner
constituted attempted rape, we have to determine the law
on rape in effect on December 21, 1993, when the
petitioner committed the crime he was convicted of. That
law was Article 335 of the Revised Penal Code, which
pertinently provided as follows:
Article 335. When and how rape is committed. — Rape
is committed by having carnal knowledge of a woman
under any of the following
circumstances:ChanRoblesVirtualawlibrary
1. By using force or intimidation;chanrobleslaw
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.
xxxx
The basic element of rape then and now is carnal
knowledge of a female. Carnal knowledge is defined
simply as "the act of a man having sexual bodily
connections with a woman,"16 which explains why the
slightest penetration of the female genitalia
consummates the rape. In other words, rape is
consummated once the penis capable of consummating
the sexual act touches the external genitalia of the
female.17 In People v. Campuhan,18 the Court has
defined the extent of "touching" by the penis in rape in
the following terms:ChanRoblesVirtualawlibrary
[T]ouching when applied to rape cases docs not
simply mean mere epidermal contact, stroking or
grazing of organs, a slight brush or a scrape of the
penis on the external layer of the victim's vagina, or
the mons pubis, as in this case. There must be
sufficient and convincing proof that the penis indeed
touched the labias or slid into the female organ, and
not merely stroked the external surface thereof, for
an accused to be convicted of consummated rape. As
the labias, which are required to be "touched" by the
penis, are by their natural situs or location beneath
the mons pubis or the vaginal surface, to touch them
with the penis is to attain some degree of penetration
beneath the surface, hence, the conclusion that
touching the labia majora or the labia minora of the
pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the
female genital organs that are visible in the perineal area,
e.g., mons pubis, labia majora, labia minora, the hymen,
the clitoris, the vaginal orifice, etc. The mons pubis is
the rounded eminence that becomes hairy after puberty,
and is instantly visible within the surface. The next layer
is the labia majora or the outer lips of the female organ
composed of the outer convex surface and the inner
surface. The skin of the outer convex surface is covered
with hair follicles and is pigmented, while the inner
surface is a thin skin which does not have any hair but
has many sebaceous glands. Directly beneath the labia
majora is the labia minora. Jurisprudence dictates that
the labia majora must be entered for rape to be
consummated, and not merely for the penis to stroke the
surface of the female organ, xxxx 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.
[Bold emphasis supplied]
It is noteworthy that in People v. Orita,19 the Court
clarified that the ruling in People v. Erihia20 whereby the
offender was declared guilty of frustrated rape because
of lack of conclusive evidence of penetration of the
genital organ of the offended party, was a stray decision
for not having been reiterated in subsequent cases. As
the evolving case law on rape stands, therefore, rape in
its frustrated stage is a physical impossibility,
considering that the requisites of a frustrated felony
under Article 6 of the Revised Penal Code are that: (1)
the offender has performed all the acts of execution
which would produce the felony; and (2) that the felony
is not produced due to causes independent of the
perpetrator's will. Obviously, the offender attains his
purpose from the moment he has carnal knowledge of
his victim, because from that moment all the essential
elements of the offense have been accomplished, leaving
nothing more to be done by him.21
Nonetheless, rape admits of an attempted stage. In this
connection, the character of the overt acts for purposes
of the attempted stage has been explained in People v.
Lizada:22
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
d'etre for the law requiring a direct overt act is that,
in a majority of cases, the conduct of the accused
consisting merely of acts of preparation has never
ceased to be equivocal; and this is necessarily so,
irrespective of his declared intent. It is that quality of
being equivocal that must be lacking before the act
becomes one which may be said to be a
commencement of the commission of the crime, or an
overt act or before any fragment of the crime itself
has been committed, and this is so for the reason that
so long as the equivocal quality remains, no one can
say with certainty what the intent of the accused is. It
is necessary that the overt act should have been the
ultimate step towards the consummation of the design. It
is sufficient if it was the "first or some subsequent step
in a direct movement towards the commission of the
offense after the preparations are made." The act done
need not constitute the last proximate one for
completion. It is necessary, however, that the attempt
must have a causal relation to the intended crime. In
the words of Viada, the overt acts must have an
immediate and necessary relation to the offense.
(Bold emphasis supplied)chanroblesvirtuallawlibrary
In attempted rape, therefore, the concrete felony is rape,
but the offender does not perform all the acts of
execution of having carnal knowledge. If the slightest
penetration of the female genitalia consummates rape,
and rape in its attempted stage requires the
commencement of the commission of the felony directly
by overt acts without the offender performing all the acts
of execution that should produce the felony, the only
means by which the overt acts performed by the accused
can be shown to have a causal relation to rape as the
intended crime is to make a clear showing of his intent
to lie with the female. Accepting that intent, being a
mental act, is beyond the sphere of criminal law,23 that
showing must be through his overt acts directly
connected with rape. He cannot be held liable for
attempted rape without such overt acts demonstrating the
intent to lie with the female. In short, the State, to
establish attempted rape, must show that his overt acts,
should his criminal intent be carried to its complete
termination without being thwarted by extraneous
matters, would ripen into rape,24 for, as succinctly put in
People v. Dominguez, Jr.:25 "The gauge in determining
whether the crime of attempted rape had been committed
is the commencement of the act of sexual intercourse,
i.e., penetration of the penis into the vagina, before the
interruption."
The petitioner climbed on top of the naked victim, and
was already touching her genitalia with his hands and
mashing her breasts when she freed herself from his
clutches and effectively ended his designs on her. Yet,
inferring from such circumstances that rape, and no
other, was his intended felony would be highly
unwarranted. This was so, despite his lust for and lewd
designs towards her being fully manifest. Such
circumstances remained equivocal, or "susceptible of
double interpretation," as Justice Recto put in People v.
Lamahang, supra, such that it was not permissible to
directly infer from them the intention to cause rape as
the particular injury. Verily, his felony would not
exclusively be rape had he been allowed by her to
continue, and to have sexual congress with her, for some
other felony like simple seduction (if he should employ
deceit to have her yield to him)26 could also be ultimate
felony.
We clarify that the direct overt acts of the petitioner that
would have produced attempted rape did not include
equivocal preparatory acts. The former would have
related to his acts directly connected to rape as the
intended crime, but the latter, whether external or
internal, had no connection with rape as the intended
crime. Perforce, his perpetration of the preparatory acts
would not render him guilty of an attempt to commit
such felony.27 His preparatory acts could include his
putting up of the separate tents, with one being for the
use of AAA and BBB, and the other for himself and his
assistant, and his allowing his wife to leave for Manila
earlier that evening to buy more wares. Such acts, being
equivocal, had no direct connection to rape. As a rule,
preparatory acts are not punishable under the Revised
Penal Code for as long as they remained equivocal or of
uncertain significance, because by their equivocality no
one could determine with certainty what the perpetrator's
intent really was.28
If the acts of the petitioner did not constitute attempted
rape, did they constitute acts of lasciviousness?
It is obvious that the fundamental difference between
attempted rape and acts of lasciviousness is the
offender's intent to lie with the female. In rape, intent to
lie with the female is indispensable, but this element is
not required in acts of lasciviousness.29 Attempted rape
is committed, therefore, when the "touching" of the
vagina by the penis is coupled with the intent to
penetrate. The intent to penetrate is manifest only
through the showing of the penis capable of
consummating the sexual act touching the external
genitalia of the female.30 Without such showing, only the
felony of acts of lasciviousness is committed.31
Based on Article 336 of the Revised Penal Code, the
felony of acts of lasciviousness is consummated when
the following essential elements concur, namely: (a) the
offender commits any act of lasciviousness or lewdness
upon another person of either sex; and (b) the act of
lasciviousness or lewdness is committed either (i) by
using force or intimidation; or (ii) when the offended
party is deprived of reason or is otherwise unconscious;
or (iii) when the offended party is under 12 years of
age.32 In that regard, lewd is defined as obscene, lustful,
indecent, lecherous; it signifies that form of immorality
that has relation to moral impurity; or that which is
carried on a wanton manner.33
The information charged that the petitioner "remove[d] Under Article 2211 of the Civil Code, the courts are
her panty and underwear and la[id] on top of said AAA vested with the discretion to impose interest as a part of
embracing and touching her vagina and breast." With the damages in crimes and quasi-delicts. In that regard,
such allegation of the information being competently the moral damages of P20,000.00 shall earn interest of
and satisfactorily proven beyond a reasonable doubt, he 6% per annum reckoned from the finality of this
was guilty only of acts of lasciviousness, not attempted decision until full payment.40
rape. His embracing her and touching her vagina and
breasts did not directly manifest his intent to lie with her. WHEREFORE, the Court FINDS and
The lack of evidence showing his erectile penis being in PRONOUNCES petitioner NORBERTO CRUZ y
the position to penetrate her when he was on top of her BARTOLOME guilty of ACTS OF
deterred any inference about his intent to lie with her. At LASCIVIOUSNESS, and, ACCORDINGLY,
most, his acts reflected lewdness and lust for her. PENALIZES him with the indeterminate sentence of
three (3) months of arresto mayor, as the minimum, to
The intent to commit rape should not easily be inferred two (2) years, four (4) months and one day of prision
against the petitioner, even from his own declaration of correccional, as the maximum; ORDERS him to pay
it, if any, unless he committed overt acts directly leading moral damages of P30,000.00 and civil indemnity of
to rape. A good illustration of this can be seen in People P20,000.00 to the complainant, with interest of 6% per
v. Bugarin,34 where the accused was charged with annum on such awards reckoned from the finality of this
attempted rape through an information alleging that he, decision until full payment; and DIRECTS him to pay
by means of force and intimidation, "did then and there the costs of suit.
willfully, unlawfully and feloniously commence the
commission of the crime of Rape directly by overt acts, SO ORDERED.cralawlawlibrary
by then and there kissing the nipples and the vagina of
the undersigned [complainant], a minor, and about to
lay on top of her, all against her will, however, [he] did
not perform all the acts of execution which would have
produced the crime of Rape by reason of some causes
other than his own spontaneous desistance, that is,
undersigned complainant push[ed] him away." The
accused was held liable only for acts of lasciviousness
because the intent to commit rape "is not apparent from
the act described," and the intent to have sexual
intercourse with her was not inferable from the act of
licking her genitalia. The Court also pointed out that the
"act imputed to him cannot be considered a preparatory
act to sexual intercourse."35

Pursuant to Article 336 of the Revised Penal Code, the

petitioner, being guilty of acts of lasciviousness, is
punished with prision correccional. In the absence of
modifying circumstances, prision correccional is
imposed in its medium period, which ranges from two
(2) years, four (4) months and one day to four (4) years
and two (2) months. Applying the Indeterminate
Sentence Law, the minimum of the penalty should come
from arresto mayor, the penalty next lower than prision
correccional which ranges from one (1) month to six (6)
months. Accordingly, the Court fixes the indeterminate
sentence of three (3) months of arresto mayor, as the
minimum, to two (2) years, four (4) months and one day
of prision correccional, as the maximum.

In acts of lasciviousness, the victim suffers moral

injuries because the offender violates her chastity by his
lewdness. "Moral damages include physical suffering,
mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social
humiliation, and similar injury. Though incapable of
pecuniary computation, moral damages may be
recovered if they are the proximate result of the
defendant's wrongful act for omission."36 Indeed, Article
2219, (3), of the Civil Code expressly recognizes the
right of the victim in acts of lasciviousness to recover
moral damages.37 Towards that end, the Court, upon its
appreciation of the record, decrees that P30,000.00 is a
reasonable award of moral damages.38 In addition, AAA
was entitled to recover civil indemnity of P20,000.00.39
 January 12, 2016
G.R. No. 174471
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
JERRY PEPINO y RUERAS and PRECIOSA
GOMEZ y CAMPOS, Accused-Appellants.
DECISION
BRION, J.:
This is an appeal filed by Jerry Pepino (Pepino) and
Preciosa Gomez (Gomez) assailing the June 16, 2006
decision1 of the Court of Appeals (CA) in CA-G.R. CR-
HC No. 02026.
ANTECEDENTS
The prosecution evidence showed that at 1:00 p.m., on
June 28, 1997, two men and a woman entered the office
of Edward Tan at Kilton Motors Corporation in Sucat,
Parafiaque City, and pretended to be customers. When
Edward was about to receive them, one of the men,
eventually identified as Pepino pulled out a gun.
Thinking that it was a holdup, Edward told Pepino that
the money was inside the cashier's box. Pepino and the
other man looted the "'cashier's box, handcuffed Edward,
and forced him to go with them.2 From the hallway,
Jocelyn Tan (mentioned as "Joselyn" in some parts of
the record), Edward's wife, saw Pepino take her
husband. She went to the adjoining room upon Edward's
instructions.3
Pepino brought Edward to a metallic green Toyota
Corolla where three other men were waiting inside. The
woman (later identified as Gomez) sat on the front
passenger seat.4 The abductors then placed surgical tape
over Edward's eyes and made him wear sunglasses.
After travelling for two and a half hours, they arrived at
an apartment in Quezon City. The abductors removed
the tape from Edward's eyes, placed him in a room, and
then chained his legs. Pepino approached Edward and
asked for the phone number of his father so that he could
ask for ransom for his (Edward's) liberty. Edward told
Pepino to negotiate with his wife, but the latter insisted
on talking to his father.5
At around 5:00 p.m. of the same day, the kidnappers
called Edward's father and demanded a P40 million
ransom for his release. Edward's father told the
kidnappers that he did not have that amount. The
abductors negotiated with Jocelyn who eventually
agreed to a P700,000.00 ransom. The kidnappers told
Jocelyn to pack the money into two packages and to
drop these at a convenience store in front of McDonald's
at Mindanao Avenue. They further demanded that
Edward's vehicle be used to bring the money.6
After four days, or on July 1, 1997, Antonio Gepiga (the
family driver) brought the agreed amount to the 7-
Eleven convenience store at Mindanao A venue as
instructed.7 That evening, three men and Gomez
blindfolded Edward, made him board a car, and drove
around for 30 minutes. Upon stopping, they told Edward
that he could remove his blindfold after five minutes.
When Edward removed his blindfold, he found himself
inside his own car parked at the UP Diliman Campus.
He drove home and reported his kidnapping to Teresita
Ang See, a known anti-crime crusader.8
After five months, the National Bureau of Investigation
(NBI!) informed Edward that they had apprehended
some suspects, and invited him to identify them from a
lineup consisting of seven persons: five males and two
females. Edward positively identified Pepino, Gomez,
and one Mario Galgo.9 Jocelyn likewise identified
Pepino.10
Pepino and Gomez did not testify for their defense. The
defense instead presented Zeny Pepino, Reynaldo
Pepino, NBI Special Investigator Marcelo Jadloc and
P/Sr. Insp. Narciso Quano (mentioned as "Qano" in
some parts of the record).
Zeny testified that she and her husband, Jerry Pepino,
were inside their house in Cebu City on December 7,
1997, when about 20 heavily armed men entered their
house looking for Jerry. When Jerry asked them if they
had a warrant of arrest, one of the men pointed a gun at
him and handcuffed him; the armed men then hit him
with the butt of an armalite and punched him. The men
also took Pepino' s wristwatch and wallet, as well as
Zeny's bag and watch. Some of the armed men searched
the second floor of the house, and found a .45 caliber
gun. The armed men brought Zeny and Pepino outside
their house where Zeny saw Renato Pepino and Larex
Pepino already handcuffed. The armed men brought
them to the Cebu City Police Headquarters before
bringing them to the NBI Headquarters in Manila. The
following day, Jerry, Renato, and Larex were brought to
the Department of Justice (DO.I). Zeny, on the other
hand, was released after being detained at the NBI for
three (3) days.11
Reynaldo's testimony was summarized by the CA as
follows:
x x x On December 6, 1997, he accompanied accused-
appellant Gomez to his brother's sister-in-law who
happens to work in a recruitment agency. While they
were inside the latter's house at Lot 2, Block 15,
Marikina Heights, Marikina City, they heard a noise at
the gate. When he peeped through the window, he saw
two (2) motorcycles and two (2) Vannette vans. Shortly
thereafter, someone kicked the back door and several
armed men emerged therefrom and announced their
arrest. When he asked them if they had any warrant, they
replied: "Walang warrant, warrant. Walang search,
search." They were then hogtied and made to lie face
down. Five (5) of them then went upstairs and seized his
personal belongings together with his briefcase which
contained P45,000.00, documents of accused-appellant
Gomez, and his .45 caliber pistol as well as his license
and permit to carry the same. No receipts were issued for
their personal effects which were confiscated. They were
subsequently brought to Camp Crame and subjected to
torture. The following day, they were brought to the
Department of Justice and a case for kidnapping was
filed against him. Upon reinvestigation, however, he was
discharged from the Information and the court dismissed
the case against him.12
SI Jadloc and Police Senior Inspector Quano, Jr. were
presented as hostile witnesses.
Jadloc declared on the witness stand that NBI Assistant
Director Edmundo Arugay dispatched a team to Cebu
City to investigate a kidnap-for-ransom case. The team
immediately conducted surveillance operations when
they arrived at Calle Rojo, Lahug, Cebu City. One of the
team members saw Renato and Larex Pepino with guns
tucked in their waists. When the team approached them,
the two men ran inside their house. The team went after
them and on entering the house, they saw Jerry in
possession of a .45 caliber gun. The team arrested Jerry,
Renato and Larex, and then brought them to the NBI
Headquarters in Manila.13
Quano testified that he was designated as the leader of a
team tasked to arrest members of a kidnap-for-ransom
group at their safe house in Lot 2, Block 50, Marikina
Heights, Marikina City. When they arrived there, they
introduced themselves as police officers. The police
forcibly opened the door after the occupants of the house
refused to open the ground floor door. During their
search at the second floor, the operatives found an
armalite and a .45 caliber gun. The members of the team
handcuffed Gomez and Reynaldo, and then brought
them to Camp Crame.14
The prosecution charged Preciosa Gomez, Jerry Pepino,
Reynaldo Pepino, Jessie Pepino, George Curvera, Boy
Lanyujan, Luisito "Tata" Adulfo, Henriso Batijon (a.k.a.
Dodoy Batijon), Nerio Alameda, and an alias Wilan Tan
with kidnapping for ransom and serious illegal detention
before the Regional Trial Court (RTC), Branch 259,
Paranaque City.15 Reynaldo was subsequently
discharged after reinvestigation. Only Pepino, Gomez,
and Batijon were arraigned; their other co-accused
remained at large.
In its May 15, 2000 decision, the RTC convicted Pepino
and Gomez of kidnapping and serious illegal detention
under Article 267 of the Revised Penal Code (as
amended) and sentenced them to suffer the death
penalty. The RTC also ordered them to pay Edward
P700,000.00 representing the amount extorted from him;
P50,000.00 as moral damages; and P50,000 as
exemplary damages. The trial court acquitted Batijon for
insufficiency of evidence.
The R TC held that Edward positively identified Pepino
and Gomez as two of the persons who forcibly abducted
him at gunpoint inside Kilton Motors, and who
consequently detained him somewhere in Quezon City
for four (4) days until he was released inside the UP
Diliman Campus after the payment of ransom. The RTC
added that Jocelyn corroborated Edward's testimony on
material points. It also pointed out that Edward
identified both Pepino and Gomez at the lineup
conducted inside the NBI compound, although Jocelyn
only recognized Gomez.
The R TC further ruled that the accused were already
estopped from questioning the validity of their arrest
after they entered their respective pleas.
The case was automatically elevated to this Court in
view of the death penalty that the R TC imposed. We
referred the case to the CA for intermediate review
pursuant to our ruling in People v. Mateo.16
In its decision dated June 16, 2006, the Court of Appeals
affirmed the RTC decision with the modification that the
amounts of moral and exemplary damages were
increased from P300,000.00 and Pl00,000.00,
respectively.
The CA held that Pepino and Gomez were deemed to
have waived any objection to the illegality of their
arrests when they did not move to quash the information
before entering their plea, and when they participated at
the trial.
The CA further ruled that Pepino and Gomez conspired
with each other to attain a common objective, i.e., to
kidnap Edward in exchange for ransom.
While the case was under review by the Supreme Court,
Pepino filed an urgent motion to withdraw his appeal,
which the Court granted.17 Only Gomez's appeal is now
pending before us.
In her brief18 and supplemental brief,19 Gomez
maintained that it was impossible for Edward to have
seen her in the front seat of the getaway car because he
(Edward) was blindfolded. She also alleged that the
prosecution failed to prove that she had conspired with
the other accused.
Gomez further claimed that Edward's identification of
her during trial "may have been preconditioned x x x by
suggestive identification"20 made at the police lineup.
She further argued that the death penalty imposed on her
is no longer proper due to the enactment of Republic Act
No. 9346.
THE COURT'S ·RULING
We affirm Gomez's conviction, but we modify the
penalty imposed and the awarded indemnities.
Illegality of the Arrest
We point out at the outset that Gomez did not question
before arraignment the legality of her warrantless arrest
or the acquisition of RTC's jurisdiction over her person.
Thus, Gomez is deemed to have waived any objection to
her warrantless arrest.
It is settled that [a]ny objection to the procedure
followed in the matter of the acquisition by a court of
jurisdiction over the person of the accused must be
opportunely raised before he enters his plea; otherwise,
the objection is deemed waived.21 As we held in People
v. Samson:22
[A ]ppellant is now estopped from questioning any
defect in the manner of his arrest as he failed to move for
the quashing of the information before the trial court.
Consequently, any irregularity attendant to his arrest was
cured when he voluntarily submitted himself to the
jurisdiction of the trial court by entering a plea of "not
guilty" and by participating in the trial.23
At any rate, the illegal arrest of an accused is not
sufficient cause for setting aside a valid judgment
rendered upon a sufficient complaint after a trial free
from error. Simply put, the illegality of the warrantless
arrest cannot deprive the State of its right to prosecute
the guilty when all other facts on record point to their
culpability. It is much too late in the day to complain
about the warrantless arrest after a valid information had
been filed, the accused had been arraigned, the trial had
commenced and had been completed, and a judgment of
conviction had been rendered against her.24
Sufficiency of the Prosecution Evidence
a. Elements of kidnapping proved
The elements of kidnapping and serious illegal detention
under Article 267 of the Revised Penal Code, as
amended, are: (1) the offender is a private individual; (2)
he kidnaps or detains another or in any other manner
deprives the latter of his liberty; (3) the act of detention
or kidnapping must be illegal; and (4) in the commission
of the offense, any of the following circumstances is
present: (a) the kidnapping or detention lasts for more
than three (3) days; or (b) it is committed by simulating
public authority; or (c) serious physical injuries are
inflicted upon the person kidnapped or detained or
threats to kill him are made; or (d) the person kidnapped
or detained is a minor, female, or a public officer. If the
victim of kidnapping and serious illegal detention is a
minor, the duration of his detention is immaterial.
Likewise, if the victim is kidnapped and illegally
detained for the purpose of extorting ransom, the
duration of his detention is also of no moment and the
crime is qualified and becomes punishable by death even
if none of the circumstances mentioned in paragraphs 1
to 4 of Article 267 is present.25
All these elements have been established by the
prosecution. Edward positively identified Gomez and
Pepino - both private individuals - as among the three
persons who entered his office and pretended to be
Kilton Motors'customers. He further declared that
Pepino pointed a gun at him, and forcibly took him
against his will. To directly quote from the records:
ATTY. WILLIAM CHUA:
Q: Can you tell us if anything unusual happened to you on
June 28, 1997?
EDWARD TAN:
A: I was kidnapped.
xxxx
Q: Can you tell this Court how the kidnapping was initiated?
A: At around 1:00 o'clock in the afternoon, there were three
persons who entered the office of Kilton Motors and pretended
to be customers.
Q: What was the gender of these three persons that you are
referring to?
A: Two men and a woman.
Q: After they pretended to be customers, tell us what
happened?
A: · They told me they were going to pay but instead of
pulling out money, they pulled out a gun.
Q: How many people pulled out guns as you said?
A: Only one, sir.
Q: Will you look around this courtroom now and tell us if the
person who pulled out a gun is in court?
A: (WITNESS POINTED TO A PERSON AT THE
RIGHT SECTION, SECOND ROW WHO, WHEN
ASKED HIS NAME, ANSWERED JERRY
PEPINO)
Q: Now, you said that there were two men and a woman
who went up the Kilton Motors Office and you pointed
to one of the men as Jerry Pepino, can you look around
the courtroom and tell us if any of the two others are in
court?
A: (WITNESS POINTED TO A WOMAN INSIDE
THE COURTROOM WHO, WHEN ASKED HER
NAME, ANSWERED AS PRECIOSA GOMEZ)
xxxx
Q: You said Mr. Pepino pulled out his gun, what happened
after he pulled out his gun?
A: He told me just to be quiet and go with him.
Q: What was your reaction when he pointed a gun to you and
he stated those words?
A: I thought it was only a holdup and so I told him there was
money with the cashier and told him to get it.
Q: What happened after you told him the money was in the
cashier's box?
A: His companion took the money and told me to still go with
them.
Q: When they told you to go with them, what happened next?
A: I told them why should I still go with them and then, I was
handcuffed and was forced to go down.
xxxx
Q: As they were bringing you down, what happened next, Mr.
Witness?
A: When we went down nearing his car, I was boarded on [in]
his car.
xxxx
Q: When they boarded you inside that car, what did they do to
you, Mr. Witness?
A: They put surgical tape on my eyes and also sunglasses.
xxxx
Q: Who was at the passenger's front seat of the car?
A: It was Preciosa Gomez.26 x x x x
Edward further declared on the witness stand that
Pepino, Gomez, and their other co-accused brought him
to a safe house in Quezon City; detained him there for
four (4) days; and demanded ransom from his
(Edward's) family.
It is settled that the crime of serious illegal detention
consists not only of placing a person in an enclosure, but
also in detaining him or depriving him of his liberty in
any manner. For there to be kidnapping, it is enough that
the victim is restrained from going home. Its essence is
the actual deprivation of the victim's liberty, coupled
with indubitable proof of the intent of the accused to
effect such deprivation.27
Notably, Jocelyn corroborated Edward's testimony on
the following points: Pepino poked a handgun at Edward
while they were on the second floor of Kilton; Pepino
and his companion brought him downstairs and out of
the building, and made him board a car; and the
kidnappers demanded ransom in exchange for Edward's
release.
Both the RTC and the CA found the respective
testimonies of Edward and Jocelyn credible and
convincing. We affirm the credibility accorded by the
trial court (and affirmed by the CA) to these prosecution
witnesses, in the absence of any showing that this factual
finding had been arbitrarily arrived at. There is nothing
in the records that would put the testimonies of Edward
and Jocelyn under suspicion. We recall that Edward had
close contacts with Pepino at Kilton Motors and at the
safe house. He also saw Gomez (a) seated at the front
seat of the getaway Toyota Corolla vehicle; (b) at the
safe house in Quezon City; and (c) inside the car before
the kidnappers released him.
Jocelyn, for her part, stated that she was very near
Pepino while he was taking away her husband.
In People v. Pavillare,28 the Court found the testimonies
of the private complainant Sukhjinder Singh and his
cousin, Lakhvir Singh, to be credible and convincing,
and reasoned out as follows:
Both witnesses had ample opportunity to observe the
kidnappers and to remember their faces. The
complainant had close contact with the kidnappers when
he was abducted and beaten up, and later when the
kidnappers haggled on the amount of the ransom money.
His cousin met Pavillare face to face and actually dealt
with him when he paid the ransom money. The two-hour
period that the complainant was in close contact with his
abductors was sufficient for him to have a recollection of
their physical appearance. Complainant admitted in court
that he would recognize his abductors if he sees them
again and upon seeing Pavillare he immediately
recognized him as one of the malefactors as he
remembers him as the one who blocked his way, beat
him up, haggled with the complainant's cousin and
received the ransom money. x x x It bears repeating that
the finding of the trial court as to the credibility of
witnesses is given utmost respect and as a rule will not
be disturbed on appeal because it had the opportunity to
closely observe the demeanor of the witness in court.29
b. Admissibility of Identification
We find no merit in Gomez's claim that Edward's
identification of her during trial might have been
preconditioned by the "suggestive identification" made
during the police lineup.
In People v. Teehankee, Jr.,30 the Court explained the
procedure for out-of-court identification and the test to
determine the admissibility of such identifications in this
manner:
Out-of-court identification is conducted by the police in
various ways. It is done thru show-ups where the
suspect alone is brought face to face with the witness for
identification. It is done thru mug shots where
photographs are shown to the witness to identify the
suspect. It is also done thru lineups where a witness
identifies the suspect from a group of persons lined up
for the purpose x x x In resolving the admissibility of
and relying on out-of-court identification of suspects,
courts have adopted the totality of circumstances test
where they consider the following factors, viz: (1) the
witness' opportunity to view the criminal at the time of
the crime; (2) the witness' degree of attention at that
time; (3) the accuracy of any prior description given by
the witness; (4) the level of certainty demonstrated by
the witness at the identification; (5) the length of time
between the crime and the identification; and (6) the
suggestiveness of the identification procedure.31
Applying the totality-of-circumstances test, we find
Edward's out-of-court identification to be reliable and
thus admissible. To recall, when the three individuals
entered Edward's office, they initially pretended to be
customers,32 and even asked about the products that
were for sale.33 The three had told Edward that they
were going to pay, but Pepino "pulled out a gun"
instead.34 After Pepino' s companion had taken the
money from the cashier's box, the malefactors
handcuffed Edward and forced him to go down to the
parked car. From this sequence of events, there was thus
ample opportunity for Edward - before and after the gun
had been pointed at him - to view the faces of the three
persons who entered his office. In addition, Edward
stated that Pepino had talked to him "[a]t least once a
day"35 during the four days that he was detained.
Edward also saw Gomez seated at the front seat of the
getaway metallic green Toyota Corolla vehicle. In
addition, the abductors removed the tape from Edward's
eyes when they arrived at the apartment, and among
those whom he saw there was Gomez. According to
Edward, he was able to take a good look at the occupants
of the car when he was about to be released.
On the part of Jocelyn, she was firm and unyielding in
her identification of Pepino as the person who pointed a
gun at her husband while going down the stairs, and who
brought him outside the premises of Kilton Motors. She
maintained that she was very near when Pepino was
taking away her husband; and that she could not forget
Pepino's face. For accuracy, we quote from the records:
ATTY. CORONEL:
Q: You stated that you were able to see one of the persons
who kidnapped your husband, if you see this person again,
would you be able to identify him?
JOCELYN SY TAN:
A: Yes, sir.
Q: Can you look around the courtroom and see if the person
you are referring to is here today?
A: Yes, sir.
Q: Can you point to him?
A: (WITNESS POINTED TO A MALE PERSON INSIDE
THE COURTROOM WHO WHEN ASKED HIS NAME
ANSWERED AS JERRY PEPINO).
Q: Ms. Witness, what role did this person whom you
identified and gave his name as Jerry Pepino, what role did he
play in the kidnapping of your husband?
A: Siya po bale 'yang nakayakap sa husband ko tapos
nakatutok ng baril.
xxxx
A TTY. ESTRUCO:
Q: When Jerry Pepino was at Kilton Motors, he embraced
your husband?
JOCELYN SY TAN:
A: Yes, sir. And pointed a gun at my husband.
Q: And he was not blindfolded at that time?
A: No, he was not blindfolded, he was only wearing a cap.
Q: You are very sure that he is Jerry Pepino?
A: Yes, I am very, very sure. I could not forget his face.
Q: You are very sure?
A: Yes, sir. Kahit sa nightmare ko, kasama siya.
xx x x36
We add that no competing event took place to draw
Edward's and Jocelyn's attention from the incident.
Nothing in the records shows the presence of any
distraction that could have disrupted the witnesses'
attention at the time of the incident.37
Jurisprudence holds that the natural reaction of victims
of criminal violence is to strive to see the appearance of
their assailants and observe the manner the crime was
committed. As the Court held in People v. Esoy:38
It is known that the most natural reaction of a witness to
a crime is to strive to look at the appearance of the
perpetrator and to observe the manner in which the
offense is perpetrated. Most often the face of the
assailant and body movements thereof, create a lasting
impression which cannot be easily erased from a
witness's memory. Experience dictates that precisely
because of the unusual acts of violence committed right
before their eyes, eyewitnesses can remember with a
high degree of reliability the identity of criminals at any
given time.39
While this pronouncement should be applied with great
caution, there is no compelling circumstance in this case
that would warrant its non-application.
Contrary to what Gomez claimed, the police lineup
conducted at the NBI was not suggestive. We note that
there were seven people in the lineup; Edward was not
compelled to focus his attention on any specific person
or persons. While it might have been ideal if there had
been more women included in the lineup instead of only
two, or if there had been a separate lineup for Pepino and
for Gomez, the fact alone that there were five males and
two females in the lineup did not render the procedure
irregular. There was no evidence that the police had
supplied or even suggested to Edward that the appellants
were the suspected perpetrators.
The following exchanges at the trial during Edward's
cross-examination prove this point:
ATTY. ESTURCO:
Q: When they were lined up at the NBI, where were they
placed, in a certain room?
EDWARD TAN:
A: Yes, sir.
Q: With a glass window? One way?
A: No, sir.
Q: You mean to say you were face to face with the alleged
kidnappers?
A: Yes, sir.
Q: And before you were asked to pinpoint the persons who
allegedly kidnapped you, you conferred with the NBI agents?
A: The NBI agents told me not to be afraid.
Q: No, my question is, you conferred with the NBI agents?
A: Yes, sir.
Q: What is the name of the NBI agent?
A: I cannot remember, sir.
Q: And how many were lined up?
A: Seven, sir.
Q: And the NBI agent gave the names of each of the seven?
A: No, sir.40
We also note that Jocelyn's and Edward's out-of-court
identifications were made on the same day. While
Jocelyn only identified Pepino, the circumstances
surrounding this out-of-court identification showed that
the whole identification process at the NBI was not
suggestive. To directly quote from the records:
ATTY. ESTURCO:
Q: How about the alleged kidnappers, where were they placed
during that time?
JOCELYN TAN:
A: They were in front of us.
Q: Without any cover?
A: None, sir.
Q: Without any glass cover?
A: See-through glass window.
Q: One-way mirror?
A: Not one way, see-through.
Q: And before you were asked to pinpoint the alleged
kidnappers, you were already instructed by the NBI what
to do and was told who are the persons to be lined up?
A: No, sir.
xxxx
Q: And between the alleged length of time, you were still
very positive that it was Gerry (sic) Pepino inside the NBI
cell?
A: At first, I did not know that he was Jerry Pepino but we
know his face.
Q: At first, you did not know that it was Jerry Pepino?
A: Yes, sir.
xxxx
Q: It was the NBI officer who told you that the person is
Jerry Pepino, am I correct?
A: They identified that the person we identified was Jerry
Pepino. We first pinpointed na heto ang mukha at saka
sinabi na 'yan si Jerry Pepino.
xx x x41
These exchanges show that the lineup had not been
attended by any suggestiveness on the part of the police
or the NBI agents; there was no evidence that they had
supplied or even suggested to either Edward or Jocelyn
that the appellants were the kidnappers.
We are not unaware that the Court, in several instances,
has acquitted an accused when the out-of-court
identification is fatally flawed. In these cases, however,
it had been clearly shown that the identification
procedure was suggestive.
In People v. Pineda,42 the Court acquitted Rolando
Pineda because the police suggested the identity of the
accused by showing only the photographs of Pineda and
his co-accused Celso Sison to witnesses Canilo Ferrer
and Jimmy Ramos. According to the Court, "there was
impermissible suggestion because the photographs were
only of appellant and Sison, focusing attention on the
two accused."43
Similarly, the Court in People v. Rodrigo44 acquitted
appellant Lee Rodrigo since only a lone photograph was
shown to the witness at the police station. We thus held
that the appellant's in-court identification proceeded
from, and was influenced by, impermissible suggestions
in the earlier photographic identification.
The lack of a prior description of the kidnappers in the
present case should not lead to a conclusion that
witnesses' identification was erroneous. The lack of a
prior description of the kidnappers was due to the fact
that Jocelyn (together with other members of Edward's
family), for reasons not made known in the records,
opted to negotiate with the kidnappers, instead of
immediately seeking police assistance. If members of
Edward's family had refused to cooperate with the
police, their refusal could have been due to their desire
not to compromise Edward's safety.45 In the same
manner, Edward, after he was freed, chose to report the
matter to Teresita Ang See, and not to the police.
Given these circumstances, the lack of prior description
of the malefactors in this case should not in any way
taint the identification that Edward and Jocelyn made.
c. The Right to Counsel
The right to counsel is a fundamental right and is
intended to preclude the slightest coercion that would
lead the accused to admit something false. The right to
counsel attaches upon the start of the investigation, i.e.,
when the investigating officer starts to ask questions to
elicit information and/or confessions or admissions from
the accused.46
Custodial investigation commences when a person is
taken into custody and is singled out as a suspect in the
commission of the crime under investigation.47 As a
rule, a police lineup is not part of the custodial
investigation; hence, the right to counsel guaranteed by
the Constitution cannot yet be invoked at this stage. The
right to be assisted by counsel attaches only during
custodial investigation and cannot be claimed by the
accused during identification in a police lineup.
Our ruling on this point in People v. Lara48 is
instructive:
x x x The guarantees of Sec. 12(1 ), Art. III of the 1987
Constitution, or the so-called Miranda rights, may be
invoked only by a person while he is under custodial
investigation. Custodial investigation starts when the
police investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular
suspect taken into custody by the police who starts the
inte1Togation and propounds questions to the person to
elicit incriminating statements. Police line-up is not part
of the custodial investigation; hence, the right to counsel
guaranteed by the Constitution cannot yet be invoked at
this stage.49
Defense witness Reynaldo, however, maintained that
Pepino and Gomez were among those already presented
to the media as kidnapping suspects by the DOJ a day
before the police lineup was made. In this sense, the
appellants were already the focus of the police and were
thus deemed to be already under custodial investigation
when the out-of-court identification was conducted.
Nonetheless, the defense did not object to the in-court
identification for having been tainted by an irregular
out-of-court identification in a police lineup. They
focused, instead, on the legality of the appellants' arrests.
Whether Edward and Jocelyn could have seen Pepino
and Gomez in various media fora that reported the
presentation of the kidnapping suspects to the media is
not for the Court to speculate on. The records merely
show that when defense counsel, Atty. Caesar Esturco,
asked Jocelyn during cross-examination whether she was
aware that there were several kidnap-for-ransom
incidents in Metro Manila, the latter answered that she
"can read in the newspapers."50 At no time did Jocelyn
or Edward ever mention that they saw the appellants
from the news reports in print or on television.
At any rate, the appellants' respective convictions in this
case were based on an independent in-court
identification made by Edward and Jocelyn, and not
on the out-of-court identification during the police
lineup. We reiterate that the RTC and the CA found the
court testimonies of these witnesses to be positive and
credible, and that there was no showing that their factual
findings had been arrived at .arbitrarily. The in-court
identification thus cured whatever irregularity might
have attended the police lineup.
As the Court ruled in People v. Algarme:51
Even assuming arguendo the appellants' out-of-court
identification was defective, their subsequent
identification in court cured any flaw that may have
initially attended it. We emphasize that the
"inadmissibility of a police lineup identification x x x
should not necessarily foreclose the admissibility of an
independent in-court identification." We also stress that
all the accused-appellants were positively identified by
the prosecution eyewitnesses during the trial.
It is also significant to note that despite the
overwhelming evidence adduced by the prosecution,
Pepino and Gomez did not even testify for their
respective defenses.1âwphi1
d. The Presence of Conspiracy
Conspiracy exists when two or more persons come to an
agreement concerning the commission of a crime and
decide to commit it. It may be proved by direct or
circumstantial evidence consisting of acts, words, or
conduct of the alleged conspirators before, during and
after the commission of the felony to achieve a common
design or purpose.
Proof of the agreement does not need to rest on direct
evidence, as the agreement may be inferred from the
conduct of the parties indicating a common
understanding among them with respect to the
commission of the offense. Corollarily, it is not
necessary to show that two or more persons met together
and entered into an explicit agreement setting out the
details of an unlawful scheme or the details by which an
illegal objective is to be carried out.52
In the present case, the records establish the following
facts: Pepino, Gomez, and another man entered Edward's
office, and initially pretended to be customers; the three
told Edward that they were going to pay, but Pepino
pulled out a gun. After Pepino' s companion took the
money from the cashier's box, the malefactors
handcuffed him and forced him to go down to the parked
car; Gomez sat at the front passenger seat of the car
which brought Edward to a safe house in Quezon City;
the abductors removed the tape from Edward's eyes,
placed him in a room, and then chained his legs upon
arrival at the safe house; the abductors negotiated with
Edward's family who eventually agreed to a P700,000.00
ransom to be delivered by the family driver using
Edward's own car; and after four days, three men and
Gomez blindfolded Edward, made him board a car,
drove around for 30 minutes, and left him inside his own
car at the UP Diliman campus.
The collective, concerted, and synchronized acts of the
accused before, during, and after the kidnapping
constitute undoubted proof that Gomez and her co-
accused conspired with each other to attain a common
objective, i.e., to kidnap Edward and detain him illegally
in order to demand ransom for his release.
The Proper Penalty:
Article 267 of the Revised Penal Code, as amended,
mandates the imposition of the death penalty when the
kidnapping or detention is committed for the purpose of
extorting ransom from the victim or any other person.
Ransom, as employed in the Jaw, is so used in its
common or ordinary sense; meaning, a sum of money or
other thing of value, price, or consideration paid or
demanded for redemption of a kidnapped or detained
person, a payment that releases one from captivity.53
In the present case, the malefactors not only demanded
but received ransom for Edward's release. The CA thus
correctly affirmed the RTC's imposition of the death
penalty on Pepino and Gomez.
With the passage of Republic Act No. 9346, entitled ''An
Act Prohibiting the Imposition of Death Penalty in the
Philippines" (signed into law on June 24, 2006), the
death penalty may no longer be imposed. We thus
sentence Gomez to the penalty of reclusion perpetua
without eligibility for parole pursuant to A.M. No. 15-
08-02-SC.54

The reduced penalty shall likewise apply to the non-

appealing party, Pepino, since it is more favorable to
him.

The Awarded Indemnities:

In the case of People v. Gambao55 (also for kidnapping

for ransom), the Court set the minimum indemnity and
damages where facts warranted the imposition of the
death penalty if not for prohibition thereof by R.A. No.
9346, as follows: (1) Pl00,000.00 as civil indemnity; (2)
Pl00,000.00 as moral damages which the victim is
assumed to have suffered and thus needs no proof; and
(3) Pl00,000.00 as exemplary damages to set an example
for the public good. These amounts shall earn interest at
the rate of six percent (6%) per annum from the date of
the finality of the Court's Resolution until fully paid.

We thus reduce the moral damages imposed by the CA

from P300,000.00 to Pl00,000.00 to conform to
prevailing jurisprudence on kidnapping cases. This
reduced penalty shall apply to Pepino for being more
favorable to him. However, the additional monetary
award (i.e., P100,000.00 civil indemnity) imposed on
Gomez shall not be applied to Pepino.56

We affirm the P700,000.00 imposed by the courts below

as restitution of the amount of ransom demanded and
received by the kidnappers. We also affirm the CA's
award of Pl00,000.00 as exemplary damages based on
Gambao.

WHEREFORE, in the light of all the foregoing, we

AFFIRM the challenged June 16, 2006 decision of the
Court of Appeals in CA-G.R. CR-HC No. 02026 with
the following MODIFICATIONS:

(1) the penalty imposed on Gomez and Pepino shall be

reduced from death to reclusion perpetua without
eligibility for parole;

(2) they are jointly and severally ordered to pay

the reduced amount of PI00,000.00 as moral
damages;

(3) Gomez is further ordered to pay the victim

Pl00,000.00 as civil indemnity; and

(4) the awarded amounts shall earn interest at

the rate of six percent (6%) per annum from the
date of the finality of the Court's Decision until
fully paid.

SO ORDERED.
G.R. No. 196735 May 5, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-appellee,
vs.
DANILO FELICIANO, JR., JULIUS VICTOR
MEDALLA, CHRISTOPHER SOLIVA, WARREN
L. ZINGAPAN, and ROBERT MICHAEL
BELTRAN ALVIR, Accused-appellants.
DECISION
LEONEN, J.:
It is in the hallowed grounds of a university where
students, faculty, and research personnel should feel
safest. After all, this is where ideas that could probably
solve the sordid realities in this world are peacefully
nurtured and debated. Universities produce hope. They
incubate all our youthful dreams.
Yet, there are elements within this academic milieu that
trade misplaced concepts of perverse brotherhood for
these hopes. Fraternity rumbles exist because of past
impunity. This has resulted in a senseless death whose
justice is now the subject matter of this case. It is rare
that these cases are prosecuted. It is even more
extraordinary that there are credible witnesses who
present themselves courageously before an able and
experienced trial court judge.
This culture of impunity must stop. There is no space in
this society for hooliganism disguised as fraternity
rumbles. The perpetrators must stand and suffer the legal
consequences of their actions. They must do so for there
is an individual who now lies dead, robbed of his dreams
and the dreams of his family. Excruciating grief for them
will never be enough.
It is undisputed that on December 8, 1994, at around
12:30 to 1:00 in the afternoon, seven (7) members of the
Sigma Rho fraternity were eating lunch at the Beach
House Canteen, near the Main Library of the University
of the Philippines, Diliman, when they were attacked by
several masked men carrying baseball bats and lead
pipes. Some of them sustained injuries that required
hospitalization. One of them, Dennis Venturina, died
from his injuries.
An information1 for murder, docketed as Criminal Case
No. Q95-6113 3, was filed against several members of
the Scintilla Juris fraternity, namely, Danilo Feliciano,
Jr., Julius Victor L. Medalla, Warren L. Zingapan,
Robert Michael Beltran Alvir, Christopher L. Soliva,
Reynaldo G. Ablanida, Carlo Jolette Fajardo, George
Morano, Raymund E. Narag, Gilbert Merle Magpantay,
Benedict Guerrero, and Rodolfo Penalosa, Jr. with the
Regional Trial Court of Quezon City, Branch 219. The
information reads:
That on or about the 8th day of December 1994, in
Quezon City, Philippines, the above-named accused,
wearing masks and/or other forms of disguise,
conspiring, confederating with other persons whose true
names, identities and whereabouts have not as yet been
ascertained, and mutually helping one another, with
intent to kill, qualified with treachery, and with evident
premeditation, taking advantage of superior strength,
armed with baseball bats, lead pipes, and cutters, did
then and there willfully, unlawfully and feloniously
attack, assault and employ personal violence upon the
person of DENNIS F. VENTURINA, by then and there
hitting him on the head and clubbing him on different
parts of his body thereby inflicting upon him serious and
mortal injuries which were the direct and immediate
cause of his death, to the damage and prejudice of the
heirs of said DENNIS F. VENTURINA. (Emphasis
supplied)
Separate informations were also filed against them for
the attempted murder of Sigma Rho fraternity members
Cesar Mangrobang, Jr.,2 Cristobal Gaston, Jr.,3 and
Leandro Lachica,4 and the frustrated murder of Sigma
Rho fraternity members Mervin Natalicio5 and Amel
Fortes.6 Only 11 of the accused stood trial since one of
the accused, Benedict Guerrero, remained at large.
A trial on the merits ensued.
The facts, according to the prosecution, are as follows:
Leandro Lachica, Amel Fortes, Derinis Venturina,
Mervin Natalicio, Cristobal Gaston, Jr., Felix
Tumaneng,7 and Cesar Magrobang, Jr. are all members
of the Sigma Rho Fraternity. On December 8, 1994, at
around 12:30 to 1 :00 p.m., they were having lunch at
Beach House Canteen, located at the back of the Main
Library of the University of the Philippines, Diliman,
Quezon City.8 Suddenly, Dennis Venturina shouted,
"Brads, brods!"9
According to Leandro Lachica, Grand Archon of Sigma
Rho Fraternity, he looked around when Venturina
shouted, and he saw about ten (10) men charging toward
them.10 The men were armed with baseball bats and
lead pipes, and their heads were covered with either
handkerchiefs or shirts.11 Within a few seconds, five (5)
of the men started attacking him, hitting him with their
lead pipes.12 During the attack, he recognized one of the
attackers as Robert Michael Beltran Alvir because his
mask fell off.13
Lachica tried to parry the blows of.his attackers,
suffering scratches and contusions.14
He was, however, able to run to the nearby College of
Education.15 Just before reaching it, he looked back and
saw Warren Zingapan and Julius Victor L. Medalla
holding lead pipes and standing where the commotion
was.16 Both of them did not have their masks on.17 He
was familiar with Alvir, Zingapan, and Medalla because
he often saw them in the College of Social Sciences and
Philosophy (CSSP) and Zingapan used to be his
friend.18 The attack lasted about thirty (30) to forty-five
(45) seconds.19
According to Mervin Natalicio, the Vice Grand Archon
of Sigma Rho, he looked to his left when Venturina
shouted.20 He saw about fifteen (15) to twenty (20)
men, most of who were wearing masks, running toward
them.21 He was stunned, and he started running.22 He
stumbled over the protruding roots of a tree.23 He got
up, but the attackers came after him and beat him up
with lead pipes and baseball bats until he fell down.24
While he was parrying the blows, he recognized two (2)
of the attackers as Warren Zingapan and Christopher L.
Soliva since they were not wearing any masks.25 After
about thirty (30) seconds, they stopped hitting him.26
He was lying on his back and when he looked up, he saw
another group of four (4) to five (5) men coming toward
him, led by Benedict Guerrero.27 This group also beat
him up.28 He did not move until another group of
masked men beat him up for about five (5) to eight (8)
seconds.29
When the attacks ceased, he was found lying on the
ground.30 Several bystanders brought him to the U.P.
Infirmary where he stayed for more than a week for the
treatment of his wounds and fractures.31
According to Cesar Mangrobang, Jr., member of Sigma
Rho, he also looked back when Venturina shouted and
saw a group of men with baseball bats and lead pipes.
Some of them wore pieces of cloth around their heads.32
He ran when they attacked, but two (2) men, whose
faces were covered with pieces of cloth, blocked his way
and hit him with lead pipes.33 While running and
parrying the blows, he recognized them as Gilbert Merle
Magpantay and Carlo Jolette Fajardo because their
masks fell off.34 He successfully evaded his attackers
and ran to the Main Library.35 He then decided that he
needed to help his fraternity brothers and turned back
toward Beach House.36 There, he saw Venturina lying
on the ground.37 Danilo Feliciano, Jr. was beating
Venturina up with a lead pipe while Raymund E. Narag
was aiming to hit Venturina.38 When they saw him, they
went toward his direction.39 They were about to hit him
when somebody shouted that policemen were coming.
Feliciano and Narag then ran away.40
Cesar Mangrobang, Jr. then saw Amel Fortes. Fortes
accompanied him to his car so they could bring
Venturina to the U.P. Infirmary.41 When they brought
the car over, other people, presumably bystanders, were
already loading Venturina into another vehicle.42 They
followed that vehicle to the U.P. Infirmary where they
saw Natalicio.43 He stayed at the infirmary until the
following morning.44
According to Cristobal Gaston, Jr., member of Sigma
Rho, he immediately stood up when he heard someone
shout, "Brods!"45 He saw a group of men charging
toward them carrying lead pipes and baseball bats.46
Most of them had pieces of cloth covering their faces.47
He was about to run when two (2) of the attackers
approached him.48 One struck him with a heavy pipe
while the other stabbed him with a bladed instrument.49
He was able to parry most of the blows from the lead
pipe, but he sustained stab wounds on the chest and on
his left forearm.50
He was able to run away.51 When he sensed that no one
was chasing him, he looked back to Beach House
Canteen and saw Danilo Feliciano, Jr., Warren
Zingapan, and George Morano.52 He decided to go back
to the canteen to help his fraternity brothers.53 When he
arrived, he did not see any of his fraternity brothers but
only saw the ones who attacked them.54 He ended up
going to their hang-out instead to meet with his other
fraternity brothers.55 They then proceeded to the
College of Law where the rest of the fraternity was
already discussing the incident.56
According to Amel Fortes, member of Sigma Rho, he
also ran when he saw the group of attackers coming
toward them.57 When he looked back, he saw Danilo
Feliciano, Jr. hitting Venturina.58 He was also able to
see Warren Zingapan and George Morano at the
scene.59
Leandro Lachica, in the meantime, upon reaching the
College of Education, boarded a jeepney to the College
of Law to wait for their other fraternity brothers.60 One
of his fraternity brothers, Peter Corvera, told him that he
received information that members of Scintilla Juris
were seen in the west wing of the Main Library and were
regrouping in SM North.61 Lachica and his group then
set off for SM North to confront Scintilla Juris and
identify their attackers.62
When they arrived in SM North, pillboxes and stones
were thrown at them.63 Lachica saw Robert Michael
Beltran Alvir and Warren Zingapan and a certain Carlo
Taparan.64 They had no choice but to get away from the
mall and proceed instead to U.P. where the Sigma Rho
Fraternity members held a meeting.65
On the night of December 8, 1994, the officers of Sigma
Rho advised the victims to lodge their complaints with
the National Bureau of Investigation.66 Their counsel,
Atty. Frank Chavez, told the U.P. Police that the victims
would be giving their statements before the National
Bureau of Investigation, promising to give the U.P.
Police copies of their statements. In the meantime,
Venturina was transferred from the U.P. Infirmary to St.
Luke's Hospital on December 8, 1994. He died on
December 10, 1994.67 On December 11, 1994, an
autopsy was conducted on the cadaver of Dennis
Venturina.68 Dr. Rolando Victoria, a medico-legal
officer of the National Bureau of Investigation, found
that Venturina had "several contusions located at the
back of the upper left arm and hematoma on the back of
both hands,"69 "two (2) lacerated wounds at the back of
the head,70 generalized hematoma on the skull,"71
"several fractures on the head,"72 and "inter-cranial
hemorrhage."73 The injuries, according to Dr. Victoria,
could have been caused by a hard blunt object.74 Dr.
Victoria concluded that Venturina died of traumatic head
injuries.75
On December 12, 1994, Lachica, Natalicio,
Mangrobang, Fortes, and Gaston executed their
respective affidavits76 before the National Bureau of
Investigation and underwent medico-legal
examinations77 with their medicolegal officer, Dr.
Aurelio Villena. According to Dr. Villena, he found that
Mervin Natalicio had "lacerated wounds on the top of
the head, above the left ear, and on the fingers; contused
abrasions on both knees; contusion on the left leg and
thigh,"78 all of which could have been caused by any
hard, blunt object. These injuries required medical
attendance for a period of ten (10) days to thirty (30)
days from the date of infliction.79
Dr. Villena found on Amel Fortes "lacerated wounds on
the head and on the right leg which could have been
caused by a blunt instrument."80 These injuries required
hospitalization for a period of ten (10) days to thirty (30)
days from date of infliction.81 He also found on Cesar
Mangrobang, Jr. a "healed abrasion on the left forearm
which could possibly be caused by contact with [a]
rough hard surface and would require one (1) to nine (9)
days of medical attention."82 He found on Leandro
Lachica "contusions on the mid auxiliary left side, left
forearm and lacerated wound on the infra scapular area,
left side."83 On Christopher Gaston, Jr. he found
"lacerated wounds on the anterior chest, left side, left
forearm; swollen knuckles of both hands; contusions on
the mid auxiliary left side, left forearm and lacerated
wound on the infra scapular area, left side."84
On September 18, 1997, after the prosecution presented
its evidence-in-chief, the court granted the demurrer to
evidence filed by Rodolfo Penalosa, Jr. on the ground
that he was not identified by the prosecution's witnesses
and that he was not mentioned in any of the
documentary evidence of the prosecution.85
Upon the presentation of their evidence, the defense
introduced their own statement of the facts, as follows:
According to Romeo Cabrera,86 a member of the U.P.
Police, he was on foot patrol with another member of the
U.P. Police, Oscar Salvador, at the time of the incident.
They were near the College of Arts and Sciences (Palma
Hall) when he vaguely heard somebody shouting,
"Rumble!" They went to the place where the alleged
rumble was happening and saw injured men being
helped by bystanders. They helped an injured person
board the service vehicle of the Beach House Canteen.
They asked what his name was, and he replied that he
was Mervin Natalicio. When he asked Natalicio who hit
him, the latter was not able to reply but instead told him
that his attackers were wearing masks. Oscar Salvador87
corroborated his testimony.
Benjamin Lato,88 a utility worker of the Beach House
Canteen, likewise testified that the identities of the
attackers were unrecognizable because of their masks.
He, however, admitted that he did not see the attack; he
just saw a man sprawled on the ground at the time of the
incident.
Frisco Capilo,89 a utility worker of U.P. assigned to the
Main Library, was buying a cigarette at a vendor located
nearby. From there, he allegedly saw the whole incident.
He testified that ten (10) men, wearing either masks of
red and black bonnets or with shirts covering their faces,
came from a red car parked nearby. He also saw three
(3) men being hit with lead pipes by the masked men.
Two (2) of the men fell after being hit. One of the
victims was lifting the other to help him, but the
attackers overtook him. Afterwards, the attackers ran
away. He then saw students helping those who were
injured. He likewise helped in carrying one of the
injured victims, which he later found out to be Amel
Fortes.
A U.P. student and member of the Sigma Alpha Nu
Sorority, Eda Panganiban,90 testified that she and her
friends were in line to order lunch at the Beach House
Canteen when a commotion happened. She saw around
fifteen (15) to eighteen (18) masked men attack a group
of Sigma Rhoans. She did not see any mask fall off. Her
sorority sister and another U.P. student, Luz Perez,91
corroborated her story that the masked men were
unrecognizable because of their masks. Perez, however,
admitted that a member of Scintilla Juris approached her
to make a statement.
Another sorority sister, Bathalani Tiamzon,92 testified
on substantially the same matters as Panganiban and
Perez. She also stated that she saw a person lying on the
ground who was being beaten up by about three (3) to
five (5) masked men. She also stated that some of the
men were wearing black masks while some were
wearing white t-shirts as masks. She did not see any
mask fall off the faces of the attackers.
According to Feliciana Feliciano,93 accused-appellant
Danilo Feliciano, Jr.'s motlier, her son was in Pampanga
to visit his sick grandfather at the time of the incident.
She alleged that her son went to Pampanga before lunch
that day and visited the school where she teaches to get
their house key from her.
According to Robert Michael Beltran Alvir,94 he had
not been feeling well since December 5, 1994. He said
that he could not have possibly been in U.P. on
December 8, 1994 since he was absent even from work.
He also testified that he wore glasses and, thus, could not
have possibly been the person identified by Leandro
Lachica. He also stated that he was not enrolled in U.P.
at the time since he was working to support himself.
According to Julius Victor Medalla,95 he and another
classmate, Michael Vibas, were working on a school
project on December 8, 1994. He also claimed that he
could not have participated in the rumble as he had an
injury affecting his balance. The injury was caused by an
incident in August 1994 when he was struck in the head
by an unknown assailant. His testimony was
corroborated by Jose Victor Santos96 who stated that
after lunch that day, Medalla played darts with him and,
afterwards, they went to Jollibee.
Christopher Soliva,97 on the other hand, testified that he
was eating lunch with his girlfriend and another friend in
Jollibee, Philcoa, on December 8, 1994. They went back
to U.P. before 1:00 p.m. and went straight to their
fraternity hang-out where he was told that there had been
a rumble at the Main Library. He also met several Sigma
Rhoans acting suspiciously as they passed by the hang-
out. They were also told by their head, Carlo Taparan,
not to react to the Sigma Rhoans and just go home. Anna
Cabahug,98 his girlfriend, corroborated his story.
Warren Zingapan99 also testified that he was not in U.P.
at the time of the incident. He claimed to have gone to
SM North to buy a gift for a friend's wedding but ran
into a fraternity brother. He also alleged that some
Sigma Rhoans attacked them in SM North that day.
On February 28, 2002, the trial court rendered its
decision100 with the finding that Robert Michael Alvir,
Danilo Feliciano, Jr., Christopher Soliva, Julius Victor
Medalla, and Warren Zingapan were guilty beyond
reasonable doubt of murder and attempted murder and
were sentenced to, among other penalties, the penalty of
reclusion perpetua.101 The trial court, however,
acquitted Reynaldo Ablanida, Carlo Jolette Fajardo,
Gilbert Magpantay, George Morano, and Raymund
Narag.102 The case against Benedict Guerrero was
ordered archived by the court until his apprehension.103
The trial court, m evaluating the voluminous evidence at
hand, concluded that:
After a judicious evaluation of the matter, the Court is of
the considered view that of the ten accused, some were
sufficiently identified and some were not. The Court
believes that out of the amorphous images during the
pandemonium, the beleaguered victims were able to
espy and identify some of the attackers etching an
indelible impression in their memory. In this regard, the
prosecution eyewitnesses were emphatic that they saw
the attackers rush towards them wielding deadly
weapons like baseball bats, lead pipes, pieces of wood
and bladed ones, and pounce on their hapless victims,
run after them, and being present with one another at the
scene of the crime during the assault. Although each
victim had a very strong motive to place his fraternity
rivals permanently behind bars, not one .of them testified
against all of them. If the prosecution eyewitnesses, who
were all Sigma Rhoans, were simply bent on convicting
Scintilla Juris members for that matter, they could have
easily tagged each and every single accused as a
participant in the atrocious and barbaric assault to make
sure that no one else would escape conviction. Instead,
each eyewitness named only one or two and some were
candid enough to say that they did not see who delivered
the blows against them.104
Because one of the penalties meted out was reclusion
perpetua, the case was brought to this court on automatic
appeal. However, due to the amendment of the Rules on
Appeal,105 the case was remanded to the Court of
Appeals.106 In the Court of Appeals, the case had to be
re-raffled several Times107 before it was eventually
assigned to Presiding Justice Andres B. Reyes, Jr. for the
writing of the decision.
On December 26, 2010, the Court of Appeals, in a
Special First Division of Five, affirmed108 the decision
of the Regional Trial Court, with three (3) members
concurring109 an one (1) dissenting.110
The decision of the Court of Appeals was then brought
to this court for review.
The issue before this court is whether the prosecution
was able to prove beyond reasonable doubt that accused-
appellants attacked private complainants and caused the
death of Dennis Venturina.
On the basis, however, of the arguments presented to
this court by both parties, the issue may be further
refined, thus:
1. Whether accused-appellants' constitutional
rights were violated when the information
against them contained the aggravating
circumstance of the use of masks despite the
prosecution presenting witnesses to prove that
the masks fell off; and
2. Whether the Regional Trial Court and the
Court of Appeals correctly ruled, on the basis of
the evidence, that accused-appellants were
sufficiently identified.
I
An information is sufficient
when the accused is fully
apprised of the charge against
him to enable him to prepare
his defense
It is the argument of appellants that the information filed
against them violates their constitutional right to be
informed of the nature and cause of the accusation
against them. They argue that the prosecution should not
have included the phrase "wearing masks and/or other
forms of disguise" in the information since they were
presenting testimonial evidence that not all the accused
were wearing masks or that their masks fell off.
It is enshrined in our Bill of Rights that "[n]o person
shall be held to answer for a criminal offense without
due process of law."111 This includes the right of the
accused to be presumed innocent until proven guilty and
"to be informed of the nature and accusation against
him."112
Upon a finding of probable cause, an information is filed
by the prosecutor against the accused, in compliance
with the due process of the law. Rule 110, Section 1,
paragraph 1 of the Rules of Criminal Procedure provides
that:
A complaint or information is sufficient if it states the
name of the accused; the designation of the offense
given by the statute; the acts or omissions complained of
as constituting the offense; the name of the offended
pary; the approximate date of the commission of the
offense; and the place where the offense was committed.
In People v. Wilson Lab-ea,113 this court has stated
that:
The test of sufficiency of Information is whether it
enables a person of common understanding to know the
charge against him, and the court to render judgment
properly. x x x The purpose is to allow the accused to
fully prepare for his defense, precluding surprises during
the trial.114
Contrary to the arguments of the appellants, the
inclusion of the phrase "wearing masks and/or other
forms of disguise" in the information does not violate
their constitutional rights.
It should be remembered that every aggravating
circumstance being alleged must be stated in the
information. Failure to state an aggravating
circumstance, even if duly proven at trial, will not be
appreciated as such.115 It was, therefore, incumbent on
the prosecution to state the aggravating circumstance of
"wearing masks and/or other forms of disguise" in the
information in order for all the evidence, introduced to
that effect, to be admissible by the trial court.
In criminal cases, disguise is an aggravating
circumstance because, like nighttime, it allows the
accused to remain anonymous and unidentifiable as he
carries out his crimes.
The introduction of the prosecution of testimonial
evidence that tends to prove that the accused were
masked but the masks fell off does not prevent them
from including disguise as an aggravating
circumstance.116 What is important in alleging disguise
as an aggravating circumstance is that there was a
concealment of identity by the accused. The inclusion of
disguise in the information was, therefore, enough to
sufficiently apprise the accused that in the commission
of the offense they were being charged with, they tried to
conceal their identity.
The introduction of evidence which shows that some of
the accused were not wearing masks is also not violative
of their right to be informed of their offenses.
The information charges conspiracy among the accused.
Conspiracy presupposes that "the act of one is the act of
all."117 This would mean all the accused had been one
in their plan to conceal their identity even if there was
evidence later on to prove that some of them might not
have done so.
In any case, the accused were being charged with the
crime of murder, frustrated murder, and attempted
murder. All that is needed for the information to be
sufficient is that the elements of the crime have been
alleged and that there are sufficient details as to the time,
place, and persons involved in the offense.
II
Findings of the trial court,
when affirmed by the
appellate court, are entitled
to great weight and credence
As a general rule, the findings of fact by the trial court,
when affirmed by the appellate court, are given great
weight and credence on review. The rationale for this
was explained in People v. Daniel Quijada,118 as
follows:
Settled is the rule that the factual findings of the trial
court, especially on the credibility of witnesses, are
accorded great weight and respect. For, the trial court
has the advantage of observing the witnesses through the
different indicators of truthfulness or falsehood, such as
the angry flush of an insisted assertion or the sudden
pallor of a discovered lie or the tremulous mutter of a
reluctant answer or the forthright tone of a ready reply;
or the furtive glance, the blush of conscious shame, the
hesitation, the sincere or the flippant or sneering tone,
the heat, the calmness, the yawn, the sigh, the candor or
lack of it, the scant or full realization of the solemnity of
an oath, the carriage and mien.119
There are, of course, recognized exceptions to this rule.
In People v. Leticia Labarias,120 this court stated that:
It is the policy of this Court to sustain the factual
findings of the trial court on the reasonable assumption
that it is in a better position to assess the evidence before
it, particularly the testimonies of the witnesses, who
reveal much of themselves by their deportment on the
stand. The exception that makes the rule is where such
findings arc clearly arbitrary or erroneous as when they
are tainted with bias or hostility or are so lacking in basis
as to suggest that they were reached without the careful
study and perceptiveness that should characterize a
judicial decision.121 (Emphasis supplied)
In criminal cases, the exception gains even more
importance since the presumption is always in favor of
innocence. It is only upon proof of guilt beyond
reasonable doubt that a conviction is sustained.
In this case, a total of eleven (11) witnesses for the
prosecution and forty-two (42) witnesses for the defense
were put on the stand from 1995 to 2001. In an eighty-
three (83)-page decision, the trial court acquitted six (6)
and convicted five (5) of the accused. On the basis of
these numbers alone, it cannot be said that the trial court
acted arbitrarily or that its decision was "so lacking in
basis" that it was arrived at without a judicious and
exhaustive study of all the evidence presented.
Inasmuch, however, as the trial court's findings hold
great persuasive value, there is also nothing that
precludes this court from coming to its own conclusions
based on an independent review of the facts and the
evidence on record.
The accused were sufficiently
identified by the witnesses for
the prosecution
The trial court, in weighing all the evidence on hand,
found the testimonies of the witnesses for the
prosecution to be credible. In its decision, the trial court
stated that:
x x x. Although each victim had a very strong motive to
place his fraternity rivals permanently behind bars, not
one testified against all of them. If the prosecution
eyewitnesses, who were all Sigma Rhoans, were simply
bent on convicting Scintilla Juris members for that
matter, they could have easily tagged each and every
accused as a participant in the atrocious and barbaric
assault to make sure no one would escape conviction.
Instead, each eyewitness named only one or two and
some were candid enough to say that they did not see
who delivered the blows against them.
Thus, the prosecution witnesses, Ernest Paulo Tan,
Dennis Gaio and Darwin Asuncion, testified to have
seen it all but they could not, and did not, disclose any
name. Lachica, on the other hand, said that he did not
have the opportunity to see and identify the person who
hit him in the back and inflicted a two-inch cut. His
forearm was also hit by a lead pipe but he did not see
who did it. Natalicio, one of the other three who were
hospitalized, was severely beaten by three waves of
attackers totalling more than 15 but he could only name
3 of them. He added, however, that he would be able to
recognize those he saw if he would see them again. Of
them, Mangrobang pointed to at least 5 but he stressed
that he did not see Zingapan, Soliva, Guerrero, Del
Rosario, Daraoay, Denoista, and Penalosa during the
onslaught. Gaston could have named any of the accused
as the one who repeatedly hit him with a heavy pipe and
stabbed him but he frankly said their faces were covered.
Like Natalicio, Fortes was repeatedly beaten by several
groups but did not name any of the accused as one of
those who attacked him. The persons he identified were
those leading the pack with one of them as the assailant
of Venturina, and the two others who he saw standing
while he was running away. He added that he saw some
of the accused during the attack but did not know then
their names.122 (Emphasis supplied)
We agree.
The trial court correctly held that "considering the
swiftness of the incident,"123 there would be slight
inconsistencies in their statements. In People v. Adriano
Cabrillas,124 it was previously observed that:
It is perfectly natural for different witnesses testifying on
the occurrence of a crime to give varying details as there
may be some details which one witness may notice
while the other may not observe or remember. In fact,
jurisprudence even warns against a perfect dovetailing of
narration by different witnesses as it could mean that
their testimonies were prefabricated and rehearsed.125
(Emphasis supplied)
According to their testimonies, Lachica was able to
identify Alvir, Zingapan, and Medalla;126
Natalicio was able to identify Medalla, Zingapan, and
Soliva;127 and Fortes was able to identify Feliciano,
Medalla, and Zingapan.128 Their positive identification
was due to the fact that they either wore no masks or that
their masks fell off.
It would be in line with human experience that a victim
or an eyewitness of a crime would endeavor to find ways
to identify the assailant so that in the event that he or she
survives, the criminal could be apprehended. It has also
been previously held that:
It is the most natural reaction for victims of criminal
violence to strive to see the looks and faces of their
assailants and observe the manner in which the crime
was committed. Most often the face of the assailant and
body movements thereof, creates a lasting impression
which cannot be easily erased from their memory.129
In the commotion, it was more than likely that the
masked assailants could have lost their masks. It had
been testified by the victims that some of the assailants
were wearing masks of either a piece of cloth or a
handkerchief and that Alvir,130 Zingapan,131
Soliva,132 and Feliciano133 had masks on at first but
their masks fell off and hung around their necks.
Equally telling was the testimony of defense witness
Frisco Capilo during cross-examination who observed
that some of the attackers were wearing masks and some
were not, thus:
Q Mr. Capilo, do you know this Scintilla Juris
Fraternity?
A No, sir.
Q During the incident of December 8, 1994, there were a
lot of people eating in the Beach House Canteen, and
then running towards different directions, is it not?
A Yes, sir.
Q And some people were wearing masks and some were
not?
A Yes, sir.134
While the attack was swift and sudden, the victims
would have had the presence of mind to take a look at
their assailants if they were identifiable. Their positive
identification, in the absence of evidence to the contrary,
must be upheld to be credible.
It has been argued that the trial court did not give
Mangrobang's testimony credence while Gaston's
testimony was found to be "hazy." This argument is
unmeritorious.
It should be noted that it was the trial court itself that
stated that the acquittal of the Scintilla Juris members
identified by Mangrobang "should not be. misinterpreted
to mean that the tt:'.stimony of Mangrobang was an
absolute fabrication."135 The court went on to state that
they "were exonerated merely because they were
accorded the benefit of the doubt as their identification
by Mangrobang, under tumultuous and chaotic
circumstances were [sic] not corroborated and their
alibis, not refuted."136 There was, therefore, no basis to
say that Mangrobang was not credible; it was only that
the evidence presented was not strong enough to
overcome the presumption of innocence.
Gaston's testimony, on the other hand, was considered
"hazy"137 by the trial court only with regard to his
identification of Zingapan's companion. Gaston testified
that he saw Zingapan with Morano, with Zingapan
moving and Morano staying in place. Fortes, however,
testified that both Zingapan and Morano were running
after him. Lachica also testified that it was Medalla, not
Morano, who was with Zingapan. Because of this
confusion, the trial court found that there was doubt as to
who was really beside Zingapan. The uncertainty
resulted into an acquittal for Morano. Despite this, the
court still did not" impute doubt in their testimonies that
Zingapan was present at the scene.
Be that as it may, the acquittals made by the trial court
further prove that its decision was brought about only
upon a thorough examination of the evidence presented:
It accepted that there were inconsistencies in the
testimonies of the victims but that these were minor and
did not affect their credibility. It ruled that "[s]uch
inconsistencies, and even probabilities, are not unusual
'for there is no person with perfect faculties or
senses."'138
Evidence as part of the res
gestae may be admissible but
have little persuasive value in
this case
According to the testimony of U.P. Police Officer
Salvador,139 when he arrived at the scene, he
interviewed the bystanders who all told him that they
could not recognize the attackers since they were all
masked. This, it is argued, could be evidence that could
be given as part of the res gestae.
As a general rule, "[a] witness can testify only to the
facts he knows of his personal knowledge; that is, which
are derived from his own perception, x x x."140 All
other kinds of testimony are hearsay and are
inadmissible as evidence. The Rules of Court, however,
provide several exceptions to the general rule, and one of
which is when the evidence is part of res gestae, thus:
Section 42. Part of res gestae. - Statements made by a
person while a starting occurrence is taking place or
immediately prior or subsequent thereto with respect to
the circumstances thereof, may be given in evidence as
part of res gestae. So, also, statements accompanying an
equivocal act material to the issue, and giving it a legal
significance, may be received as part of the res
gestae.141
In People v. Rodrigo Salafranca,142 this court has
previously discussed the admissibility of testimony taken
as part of res gestae, stating that:
A declaration or an utterance is deemed as part of the res
gestae and thus admissible in evidence as an exception
to the hearsay rule when the following requisites concur,
to wit: (a) the principal act, the res gestae, is a startling
occurrence; (b) the statements are made before the
declarant had time to contrive or devise; and (c) the
statements must concern the occurrence in question and
its immediately attending circumstances.
xxxx
The term res gestae has been defined as "those
circumstances which are the undersigned incidents of a
particular litigated act and which are admissible when
illustrative of such act." In a general way, res gestae
refers to the circumstances, facts, and declarations that
grow out of the main fact and serve to illustrate its
character and are so spontaneous and contemporaneous
with the main fact as to exclude the idea of deliberation
and fabrication. The rule on res gestae encompasses the
exclamations and statements made by either the
participants, victims, or spectators to a crime
immediately before, during, or immediately after the
commission of the crime when the circumstances are
such that the statements were made as a spontaneous
reaction or utterance inspired by the excitement of the
occasion and there was no opportunity for the declarant
to deliberate and to fabricate a false statement. The test
of admissibility of evidence as a part of the res gestae is,
therefore, whether the act, declaration, or exclamation is
so intimately interwoven or connected with the principal
fact or event that it characterizes as to be regarded as a
part of the transaction itself, and also whether it clearly
negatives any premeditation or purpose to manufacture
testimony.143
There is no doubt that a sudden attack on a group
peacefully eating lunch on a school campus is a startling
occurrence. Considering that the statements of the
bystanders were made immediately after the startling
occurrence, they are, in fact, admissible as evidence
given in res gestae.
In People v. Albarido,144 however, this court has stated
that "in accord to ordinary human experience:"
x x x persons who witness an event perceive the same
from their respective points of reference. Therefore,
almost always, they have different accounts of how it
happened. Certainly, we cannot expect the testimony of
witnesses to a crime to be consistent in all aspects
because different persons have different impressions and
recollections of the same incident. x x x145
(Emphasis supplied)
The statements made by the bystanders, although
admissible, have little persuasive value since the
bystanders could have seen the events transpiring at
different vantage points and at different points in time.
Even Frisco Capilo, one of the bystanders at the time of
the attack, testified that the attackers had their masks on
at first, but later on, some remained masked and some
were unmasked.
When the bystanders' testimonies are weighed against
those of the victims who witnessed the entirety of the
incident from beginning to end at close range, the former
become merely corroborative of the fact that an attack
occurred. Their account of the incident, therefore, must
be given considerably less weight than that of the
victims.
The belated identification by
the victims do not detract from
their positive identification of
the appellants
It is argued that the fact that the victims stayed silent
about the incident to the U.P. Police or the Quezon City
Police but instead executed affidavits with the National
Bureau of Investigation four (4) days after the incident
gives doubt as to the credibility of their testimonies.
U.P. Police Officer Romeo Cabrera146 testified that on
their way to the U.P. Infirmary, he interviewed the
victims who all told him they could not recognize the
attackers because they were all wearing masks.
Meanwhile, Dr. Mislang147 testified to the effect that
when she asked Natalicio who attacked them, Natalicio
answered that he did not know because they were
masked.
It must be remembered that the parties involved in this
case belong to rival fraternities. While this court does
not condone their archaic and oftentimes barbaric
traditions, it is conceded that there are certain practices
that are unique to fraternal organizations.
It is quite possible that at this point in time, they knew
the identities of their attackers but chose not to disclose
it without first conferring with their other fraternity
brothers. This probability is bolstered by the actions of
Sigma Rho after the incident, which showed that they
confronted the members of Scintilla Juris in SM North.
Because of the tenuous relationship of rival fraternities,
it would not have been prudent for Sigma Rho to
retaliate against the wrong fraternity.
Their act of not disclosing the correct information to the
U.P. Police or to Dr. Mislang does not make the police
officer or the doctor's testimonies more credible than that
of the victims. It should not be forgotten that the victims
actually witnessed the entire incident, while Officer
Salvador, Officer Cabrera, and Dr. Mislang were merely
relaying secondhand information.
The fact that they went to the National Bureau of
Investigation four (4) days after the incident also does
not affect their credibility since most of them had been
hospitalized from their injuries and needed to recover
first.
Since a fraternity moves as one unit, it would be
understandable that they decided to wait until all of them
were well enough to go to the National Bureau of
Investigation headquarters in order to give their
statements.
Seniority is also often the norm in fraternities. It was
upon the advice of their senior "brads" and their legal
counsel that they executed their sworn statements before
the National Bureau of Investigation four (4) days after
the incident.
The decision to report the incident to the National
Bureau of Investigation instead of to the U.P. Police was
the call of their legal counsel who might have deemed
the National Bureau of Investigation more equipped to
handle the investigation. This does not, however, affect
the credibility of the witnesses since they were merely
following the legal advice of their counsel.
Indeed, there is reason to believe that the National
Bureau of Investigation is better equipped than the U.P.
Police to handle the investigation of the case. As stated
in the U.P. College of Economics website:
The UP Diliman Police (UPDP) is tasked with
maintaining campus security. Their station is located in
front of the College of Architecture.
The primary missions of the UPDP are to maintain peace
and order, secure and protect lives and property, enforce
basic laws, applicable Quezon City Ordinances, and
University Rules and Regulations including policies and
standards; and to perform such other functions relative to
the general safety and security of the students,
employees, and residents in the U.P. Diliman Campus. x
x x.148 (Emphasis supplied)
It can be seen that the U.P. Police is employed by U.P.
primarily for campus security. They are by no means an
actual police force that is equipped to handle a full-
blown murder investigation. Fraternity-related violence
in U.P. has also increasingly become more frequent,
which might possibly have desensitized the U.P. Police
in such a way that would prevent their objectivity in the
conduct of their investigations. The victims' reliance on
the National Bureau of Investigation, therefore, is
understandable.
III
Alibi cannot prevail over the
positive identification of the
victim
It is settled that the defense of alibi cannot prevail over
the positive identification of the victim.149 In People v.
Benjamin Peteluna,150 this court stated that:
It is a time-honored principle that the positive
identification of the appellant by a witness destroys the
defense of alibi and denial. Thus:
x x x. It is well-entrenched that alibi and denial are
inherently weak and have always been viewed with
disfavor by the courts due to the facility with which they
can be concocted. They warrant the least credibility or
none at all and cannot prevail over the positive
identification of the appellant by the prosecution
witnesses. For alibi to prosper, it is not enough to prove
that appellant was somewhere else when the crime was
committed; he must also demonstrate that it was
physically impossible for him to have been at the scene
of the crime at the time of its commission. Unless
substantiated by clear and convincing proof, such
defense is negative, self-serving, and undeserving of any
weight in law. Denial, like alibi, as an exonerating
justification[,] is inherently weak and if uncorroborated
regresses to blatant impotence. Like alibi, it also
constitutes self-serving negative evidence which cannot
be accorded greater evidentiary weight than the
declaration of credible witnesses who testify on
affirmative matters.151
In this case, the victims were able to positively identify
their attackers while the accused-appellants merely
offered alibis and denials as their defense. The
credibility of the victims was upheld by both the trial
court and the appellate court while giving little credence
to the accused-appellants' alibis. There is, thus, no
reason to disturb their findings.
Accused-appellants were
correctly charged with
murder, and there was
treachery in the commission
of the crime
According to the provisions of Article 248 of the
Revised Penal Code, the accused-appellants were
correctly charged with murder. Article 248 states:
ART. 248. Murder.-Any person who, not falling within
the provisions of Article 246, shall kill another, shall be
guilty of murder and shall be punished by reclusion
perpetua, to death if committed with any of the
following attendant circumstances:
1. With treachery, taking advantage of superior strength,
with the aid of armed men, or employing means to
weaken the defense, or of means or persons to insure or
afford impunity;
xxxx
It is undisputed that on December 8, 1994, a group of
men armed with lead pipes and baseball bats attacked
Dennis Venturina and his companions, which resulted in
Venturina's death.
As correctly found by the trial court and the appellate
court, the offense committed against Dennis Venturina
was committed by a group that took advantage of its
superior strength and with the aid of armed men. The
appellate court, however, incorrectly ruled out the
presence of treachery in the commission of the offense.
It has been stated previously by this court that:
[T]reachery is present when the offender commits any of
the crimes against persons, employing means, methods,
or forms in the execution, which tend directly and
specially to insure its execution, without risk to the
offender arising from the defense which the offended
party might make.152
Similarly, in People v. Leozar Dela Cruz,153 this court
stated that:
There is treachery when the offender commits any of the
crimes against persons, employing means, methods, or
forms in the execution, which tend directly and specially
to insure its execution, without risk to the offender
arising from the defense which the offended party might
make. The essence of treachery is that the attack comes
without a warning and in a swift, deliberate, and
unexpected manner, affording the hapless, unarmed, and
unsuspecting victim no chance to resist or escape. For
treachery to be considered, two elements must concur:
(1) the employment of means of execution that gives the
persons attacked no opportunity to defend themselves or
retaliate; and (2) the means of execution were
deliberately or consciously adopted.154 (Emphasis
supplied)
The appellate court, in affirming the conviction of the
accused-appellants, ruled that contrary to the findings of
the trial court, there was no treachery involved. In
particular, they ruled that although the attack was sudden
and unexpected, "[i]t was done in broad daylight with a
lot of people who could see them"155 and that "there
was a possibility for the victims to have fought back or
that the people in the canteen could have helped the
victims."156
This reasoning is clearly erroneous. The victims in this
case were eating lunch on campus. They were not at a
place where they would be reasonably expected to be on
guard for any sudden attack by rival fraternity men.
The victims, who were unarmed, were also attacked with
lead pipes and baseball bats. The only way they could
parry the blows was with their arms. In a situation where
they were unnamed and outnumbered, it would be
impossible for them to fight back against the attackers.
The attack also happened in less than a minute, which
would preclude any possibility of the bystanders being
able to help them until after the incident.
The swiftness and the suddenness of the attack gave no
opportunity for the victims to retaliate or even to defend
themselves. Treachery, therefore, was present in this
case.
The presence of conspiracy
makes all of the accused-
appellants liable for murder
and attempted murder
In the decision of the trial court, all of the accused-
appellants were found guilty of the murder of Dennis
Venturina and the attempted murder of Mervin
Natalicio, Cesar Mangrobang, Jr. Leandro Lachica,
Arnel Fortes, and Cristobal Gaston, Jr. The appellate
court, however, modified their liabilities and found that
the accused-appellants were guilty of attempted murder
only against Natalicio and Fortes, and not against
Mangrobang, Lachica, and Gaston.
It is the appellate court's reasoning that because Lachica
and Mangrobang "were no longer chased by the
attackers,"157 it concluded that accused-appellants
"voluntary desisted from pursuing them and from
inflicting harm to them, which shows that they did not
have the intent to do more than to make them suffer pain
by slightly injuring them."158 It also pointed out that the
wound inflicted on Gaston "was too shallow to have
been done with an intent to kill."159
Thus, it concluded that the accused-appellants would
have been guilty only of slight physical injuries.
This is erroneous.
It should be remembered that the trial court found that
there was conspiracy among the accused-appellants160
and the appellate court sustainedthis finding.161
Conspiracy, once proven, has the effect of attaching
liability to all of the accused, regardless of their degree
of participation, thus: Once an express or implied
conspiracy is proved, all of the conspirators are liable as
co-principals regardless of the extent and character of
their respective active participation in the commission of
the crime or crimes perpetrated in furtherance of the
conspiracy because in contemplation of law the act of
one is the act of all. The foregoing rule is anchored on
the sound principle that "when two or more persons
unite to accomplish a criminal object, whether through
the physical volition of one, or all, proceeding severally
or collectively, each individual whose evil will actively
contributes to the wrong-doing is in law responsible for
the whole, the same as though performed by himself
alone." Although it is axiomatic that no one is liable for
acts other than his own, "when two or more persons
agree or conspire to commit a crime, each is responsible
for all the acts of the others, done in furtherance of the
agreement or conspiracy." The imposition of collective
liability upon the conspirators is clearly explained in one
case where this Court held that
... it is impossible to graduate the separate liability of
each (conspirator) without taking into consideration the
close and inseparable relation of each of them with the
criminal act, for the commission of which they all acted
by common agreement ... The crime must therefore in
view of the solidarity of the act and intent which existed
between the ... accused, be regarded as the act of the
band or party created by them, and they are all equally
responsible
Verily, the moment it is established that the malefactors
conspired and confederated in the commission of the
felony proved, collective liability of the accused
conspirators attaches by reason of the conspiracy, and
the court shall not speculate nor even investigate as to
the actual degree of participation of each of the
perpetrators present at the scene of the crime. x x x.162
(Emphasis supplied)
The liabilities of the accused-appellants m this case
arose from a single incident wherein the accused-
appellants were armed with baseball bats and lead pipes,
all in agreement to do the highest amount of damage
possible to the victims. Some were able to run away and
take cover, but the others would fall prey at the hands of
their attackers. The intent to kill was already present at
the moment of attack and that intent was shared by all of
the accused-appellants alike when the presence of
conspiracy was proven. It is, therefore, immaterial to
distinguish between the seriousness of the injuries
suffered by the victims to determine the respective
liabilities of their attackers. What is relevant is only as to
whether the death occurs as a result of that intent to kill
and whether there are qualifying, aggravating or
mitigating circumstances that can be appreciated.
The appellate court, therefore, erred in finding the
accused-appellants guilty only of slight physical injuries.
It would be illogical to presume that despite the
swiftness and suddenness of the attack, the attackers
intended to kill only Venturina, Natalicio, and Fortes,
and only intended to injure Lachica, Mangrobang, and
Gaston. Since the intent to kill was evident from the
moment the accused-appellants took their first swing, all
of them were liable for that intent to kill.1âwphi1
For this reason, the accused-appellants should be liable
for the murder of Dennis Venturina and the attempted
murder of Mervin Natalicio, Cesar Mangrobang, Jr.,
Leandro Lachica, Arnel Fortes, and Cristobal Gaston, Jr.
A Final Note
It is not only the loss of one promising young life; rather,
it is also the effect on the five other lives whose once
bright futures are now put in jeopardy because of one
senseless act of bravado. There is now more honor for
them to accept their responsibility and serve the
consequences of their actions. There is, however,
nothing that they can do to bring back Dennis Venturina
or fully compensate for his senseless and painful loss.
This is not the first fraternity-related case to come to this
court; neither will it be the last. Perhaps this case and
many cases like it can empower those who have a better
view of masculinity: one which valorizes courage,
sacrifice and honor in more life-saving pursuits.
"Giting at dangal" are words of the anthem of the
University of the Philippines. It colors the stories of
many who choose to expend their energy in order that
our people will have better lives. Fraternity rumbles are
an anathema, an immature and useless expenditure of
testosterone. It fosters a culture that retards manhood. It
is devoid of "giting at dangal."
This_ kind of shameful violence must stop.
WHEREFORE, the decision of the Court of Appeals in
CA-G.R. CR N). 01158 dated November 26, 2010 is
AFFIRMED insofar as the accused-appellants Danilo
Feliciano, Jr., Julius Victor Medalla, Christopher Soliva,
Warren L. Zingapan, and Robert Michael Beltran Alvir
are found GUILTY beyond reasonable doubt of Murder
in. Criminal Case No. Q95-61133 with the
MODIFICATION that they be fouhd GUILTY beyond
reasonable doubt of Attempted Murder in Criminal Case
Nos. Q95-61136, Q95-61135, Q95-61134, Q95-61138,
and Q95-61137.
SO ORDERED.
G.R. No. L-10774 May 30, 1964
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
OSCAR CASTELO, AUGUSTO MELENCIO alias
AUGUST,
BIENVENIDO MENDOZA alias BEN ULO,
JOSE DE JESUS Y LINGAT alias PEPING,
HIPOLITO BONIFACIO Y DE GUZMAN alias
POL,
DOMINGO GONZALES Y SALVACION alias
DOMING &
JOCKEY SALVACION, FELIX MIRAY Y
GUTIERREZ alias PILE,
PEDRO ENRIQUEZ alias PEDRING PASIG alias
BUSOG, accused-appellants.
PER CURIAM:
This is an appeal from the decision of the Court of First
Instance of Rizal in its Criminal Case No. 3023, finding
appellants Oscar Castelo, Bienvenido Mendoza alias
Ben Ulo, Jose de Jesus y Lingat alias Peping, Hipolito
Bonifacio y de Guzman alias Pol, Domingo Gonzales y
Salvacion alias Doming & Jockey Salvacion, Felix
Miray y Gutierrez alias Pile, Pedro Enriquez alias
Pedring Pasig alias Busog, and Augusta Melencio alias
August, guilty of murder and sentencing them to death.
These eight defendants, together with eight others, were
charged with having murdered Manuel P. Monroy in the
night of June 15, 1953. During the course of the
proceedings, however, the case was dismissed for lack of
evidence, as against Adelaida Reyes, Dra. Herminia
Castelo-Sotto, Felix Tamayo and Leonardo Caparas.
Rogelio Robles turning state witness, was discharged.
The three others - Salvador Realista, Rading Doe and
John Doe — were still at large. A joint trial was held at
which about 150 witnesses testified and more than one
thousand documentary exhibits were introduced. The
Hon. Emilio Rilloraza, Judge, in a long and exhaustive
decision (186 printed pages) convicted the herein
mentioned appellants.
About a week after the promulgation of the decision,
state witness Rogelio Robles executed an affidavit dated
April 16, 1955 (Exh. 1-New Trial) wherein he
repudiated all he had testified to, branding it to be a
series of falsehoods. This prompted Castelo to move for
a new trial, which was granted by vacation judge Juan L.
Bocar, because Judge Rilloraza who had penned the
original decision was then on vacation. The Solicitor
General questioned the Bocar order by certiorari in G.R.
No. L-9050. However, we sustained His Honor's decree.
A new trial was had only with respect to Castelo, as the
seven other appellants had already perfected their
appeal. After the rehearing, again Castelo was found
guilty and sentenced as before; but he was in addition
required to indemnify the heirs of the deceased in the
amount of P3,000.00.
During the pendency of this trial, Castelo filed a motion
for bail and new trial on the ground of newly discovered
evidence; and the seven other appellants likewise filed a
motion for new trial on identical grounds. These two
motions were acted upon in our Resolution of July 15,
1957, to the effect that "action on the motions for bail
and for new trial filed by appellants' counsel is deferred
until the time when the appeal is considered upon the
merits." Thereafter, several motions for reconsideration
and for bail were one after another, filed by Castelo,
which were repeatedly denied.
Considering now the appeal on the merits, it appears that
the prosecution has established the following:
FACTS: In January 1953, appellant Oscar Castelo, then a
Judge of the Court of First Instance of Manila, became
Secretary of Justice; and on March 1st of that year, he
was designated to act as Secretary of National Defense
in addition to his duties in the Justice Department. He
held these twin positions until the end of the year 1953.
Sometime in April, 1953, Bienvenido Mendoza alias
Ben Ulo, a police character and an ex-convict, got
acquainted with Secretary Castelo at the Country Club in
Baguio through Capt. Alejo, his aide. Both being from
Nueva Ecija, the ex-convict apprised the Secretary of his
enemies (those he had sent to jail as judge) and this
aroused Castelos interest. So he invited Ben Ulo to "help
him" and the latter became his trusted bodyguard.
On April 29, 1953, Senator Claro M. Recto, now
deceased aired on the floor of the Senate charges against
Castelo for bribery and extortion, allegedly perpetrated
when Castelo was still Manila judge. The following
month and at the instance of Secretary Castelo, Senator
Recto found himself a defendant in a bigamy case in the
Court of First Instance of Bulacan. Recto countered with
a disbarment charge, and the feud between them gained
wide publicity, involving as it did two prominent public
officials. Recto's charges were investigated by the Senate
Blue Ribbon Committee, with Monroy as Recto's star
witness1 — to the charging or irritation of both Castelo
and Ben Ulo who had exerted efforts to prevent him
from so testifying. Moreover, Monroy was likely to be
again a witness in the disbarment proceedings —
instituted by Recto — before the Supreme Court, which
rested on the same charge of bribery.
With this background, and not long after Ben Ulo had
become the personal bodyguard of Secretary Castelo,
one early morning in the latter part of May, 1953, Ben
Ulo sent for his "boys" Rogelio Robles and Florentino
Suarez alias Scarface. When these arrived at his house at
the corner of Perla and Sande streets, Tondo, Ben Ulo
told them that Senator Recto and Secretary Castelo were
mutually suing each other (nagdedemandahan); and so
he wanted his said "boys" to kill Monroy; both agreed.
Ben Ulo then told them to wait downstairs. The trio left
in Ben Ulo's jeep driven by Felix Miray and headed for
Castelo's residence at Sampaloc Avenue, Quezon City,
arriving there after eight that same morning. Ben Ulo
introduced Robles and Scarface to Secretary Castelo in
the balcony or porch of the house saying, "These are my
boys." Castelo nodded and smiled. Forthwith, in the
presence of and within the hearing of Robles and
Scarface, Castelo told Ben Ulo "Kailangan mapatay si
Monroy" (Monroy must be killed), to which Ben Ulo
nodded in quiet assent. Thereupon, Castelo and Ben Ulo
went inside.
Five minutes later, Ben Ulo came out and told Robles
and Scarface to wait in the yard where Ben Ulo's "other
boys" were idling by, namely, Domingo Gonzales, Jose
de Jesus, Pedro Enriquez and Salvador Realista, all of
whom were confidential agents of the Department of
National Defense, appointed by Castelo — at the
recommendation of Ben Ulo. Later that same morning,
Ben Ulo, Robles and Scarface rode in a P.I. jeep driven
by Felix Miray and, together with the "other boys" riding
in another jeep, escorted Secretary Castelo to his office
at Camp Murphy Castelo and Ben Ulo entered the office
while Robles and Scarface remained outside. When Ben
Ulo came out, he told Robles to come back on June 1st
to get his appointment as special agent of the
Department of National Defense.
Came June 1st, Robles and Scarface went back to Camp
Murphy where Ben Ulo handed Robles the latter's
appointment as confidential agent, signed by Castelo. At
eleven o'clock that noon, Castelo went home to
Sampaloc Avenue riding in Car No. 6, followed by Ben
Ulo, Robles and Scarface in a jeep driven by Miray, and
by another jeep occupied by the "other boys" Peping de
Jesus, Domingo Gonzales, Salvador Realista and Pedro
Enriquez. Once in the house, Castelo and Ben Ulo had a
huddle inside, while Robles and Scarface remained at the
balcony. Later Ben Ulo came out and sat beside the two.
Shortly afterwards, Castelo joined the trio in the balcony
and told them, "Gusto kong mapatay si Monroy
pagkaalis ko" (I want Monroy killed after my departure),
to which Ben Ulo replied in Tagalog "I will take care of
it."
On June 8, 1953, Secretary Castelo left for Korea; but
before boarding the plane at the airfield, he called his
nephew Augusto Melencio (who was also agent of the
Defense Department) and Ben Ulo and told them,
"Huwag lang hindi ninyo mapatay si Monroy bago ako
dumating" (Don't fail to kill Monroy before my return)
to which Ben Ulo replied, "Huwag kang mag-alala, halos
patay na siya" (Don't you worry, he is as good as dead.)
About two days after Castelo had left, Ben Ulo gathered
his "boys" at his house in Tondo and discussed the
killing of Monroy. In the evening, the group headed by
Ben Ulo, went to Pasay looking for Monroy, but he
could not be found. They decided to postpone the killing
and agreed to watch Monroy's habitual movements,
taking turns in this observation day and night. In the
morning of June 13th, Robles and Scarface using Ben
Ulo's jeep, went to Pasay and again reconnoitered in the
vicinity of Monroy's place, but they did not see him.
They reported the negative results to Ben Ulo.
Then in the afternoon of June 15th, about two or three
hours before the actual killing, and in furtherance of
their conspiracy, Ben Ulo and his "boys" Enriquez,
Realista, Miray, Gonzales and Peping de Jesus, gathered
again, this time at the Happy Valley in Quezon City, and
there finalized their plans. They agreed to use three
motor vehicles: two cars and an AC jeep, Ben Ulo
enjoining them that should there be any opposition or
untoward incident, they should shoot it out. After
everything had been set, the group proceeded to Camp
Murphy to get car No. 6 and to fetch Caparas. They went
to Pasay in two cars, as follows: Ben Ulo, Enriquez,
Melencio, Caparas, Felix Tamayo in car No. 6, and Jose
de Jesus, Gonzales, Miray and Realista in a Plymouth
car bearing plate No. P.I. 1176. On the other hand, and
upon previous understanding, Robles, Scarface and
Hipolito Bonifacio went in an AC jeep directly from
Tondo to Camp Murphy where they were supposed to
meet Ben Ulo, but upon finding that he and the "boys"
were not there, they proceeded to Pasay and parked their
jeep near the corner of Harrison and David streets. It was
dark already. Car No. 6 and the Plymouth arrived later.
Ben Ulo briefly asked Scarface whether Monroy was
there, and the latter answered affirmatively. Ben Ulo
then gave hurried instructions to Gonzales, Enriquez, De
Jesus Scarface and Realista, after which he, attired in
coat and tie, went back to car No. 6 and sped towards
Manila.2
At least five men in the group were armed: Hipolito
Bonifacio had a Thompson sub-machine gun; Robles
and Enriquez had a .45 caliber gun each; Scarface had
another gun; and Jose de Jesus had a super .38 caliber
automatic pistol. In addition, there were spare guns in
the cars.
At the time Ben Ulo was giving last-minute instructions
to his "boys", Manuel P. Monroy was unconcernedly
playing "mahjong" with his wife, Mario Bautista and
Donato Baras at the ground floor of No. 18-C Gamboa
Apartments occupied by Paula Montes, Monroy's
neighbor. These apartments were located inside a
compound and consist of twin buildings facing each
other, separated by a wide blind alley or "pasillo", the
only entrance or exit being from David Street. The
Montes apartment was well lighted with fluorescent
bulbs and the game could be seen from the door. It was
then about 7:30 in the evening.
After Ben Ulo had left and pursuant to his instructions,
Scarface, De Jesus, Gonzales, Enriquez and Realista
walked along David Street. Scarface who was supposed
to be the triggerman, showed some hesitation, so De
Jesus3 entered the pasillo and went towards the
apartment where Monroy was playing. De Jesus tarried a
while pretending to watch the game from the door,
almost blocking the way, in such a manner that when
William Clemens, a neighbor, entered to deliver the
cigarettes he had bought for one of the players, he had to
ask De Jesus to allow him to got in. When Clemens was
already inside, De Jesus suddenly fired three successive
shots at Monroy who, clutching his belly; exclaimed,
"Pinatira ako" (Someone had me shot). Commotion
ensued and De Jesus, gun in hand, retraced his steps
towards David, thence to Harrison, and then boarded a
passing passenger jeep which was heading towards
Manila.
Alerted by the shots, Pablo Canlas and Jose Moratalla (a
Quezon City policeman off-duty) who were listening to
another neighbor strumming a guitar at the entrance of
the "pasillo", spotted and tried to chase De Jesus but lost
him.
Monroy was taken to the hospital where he soon died,
and upon autopsy performed by Dr. Pedro Solis of the
NBI the following day, he was found to have received
three gunshot wounds, one of which was fatal (Exh. A-
3).
Immediately after the shooting, Robles, Scarface and
Bonifacio boarded their AC jeep and returned to Tondo,
while those in car No. 6 and in the Plymouth No. PI-
1176 proceeded to the house of Adelaida Reyes,
Castelo's mistress, taking different routes. Meanwhile,
gunman De Jesus alighted from the passenger jeep at
Taft Avenue near La Salle College, took a taxi, and
headed also for Adelaida's place where he found the two
cars already there as well as Ben Ulo and the "boys".
Later that night, they disbanded and returned to their
respective homes.
The Pasay Police soon started its investigation and Chief
Antonio C. Amor requested the NBI (National Bureau of
Investigation) and the Manila Police to have a
conference with him so as to coordinate police work, as
it was believed that the culprits were from Manila; and
this request was confirmed by him in a letter to Mayor
Lacson (Exh. KK).
Castelo returned from Korea on June 26th. On hand to
greet him in the airport were Ben Ulo and Melencio, and
a picture was taken of the occasion (Exh. RRR). The
following morning, Ben Ulo and the "boys" were again
at Castelo's house. In a gay mood and fingering his bow
tie, Castelo tapped Ben Ulo's shoulder and said, "Mabuti
wala na tayong iintindihin ngayon; pero, Ben, natitiyak
mo kayang walang nakakita?" (Good, now we have
nothing to worry about; but, Ben, can you be sure
nobody saw?) Ben retorted, "Wala; malinis na malinis
ang trabajo" (Nobody; the job was very neatly done.)
Pursuant to the request of Chief Amor of Panay, the
Manila Police made its own investigation, and on June
26th, Scarface and Robles were arrested. At this, Ben
Ulo's "boys" became so apprehensive and jittery that he
had to calm them down saying, "Hindi ba sinabi ko sa
inyo na kaya ng matanda iyan, maski anong asunto.
Puede ba tayong iwanan ng matanda (Secretary Castelo)
ay kasama siya diyan." (Didn't I tell you already that the
old man [Castelo] can take care of any case? Can the old
man desert us when he is in it himself?)
Scarface and Robles were later set free, but were under
police surveillance.
Some days after, while Ben Ulo and the "boys" were
hanging around Castelo's office at Camp Murphy, Ben
Ulo told Melencio, "Tila merong masamang nangyari.
Babaliktad na si Scarface, pick apen natin. Kailangan
makausap ng matanda." (It seems that something went
wrong. Scarface is about to turn around. Let's pick him
up. Its important that the old man talk to him.)
Consequently, in the evening of July 13th, Scarface
found himself in the Shellborne Hotel with Ben Ulo,
Miray, Enriquez, Gonzales and De Jesus (Exh. JJJ).
Castelo, who had a suite in the fifth floor, was also there
and knew that Scarface was with the "boys" in the
second floor.
Mayor Lacson of Manila likewise knew that both
Castelo and Scarface were in the Hotel that night. The
Mayor, accompanied by armed policemen,
photographers and newspapermen (whom he had alerted
earlier in the afternoon promising them that something
"big" would be coming) went to the Shellborne Hotel at
about eight o'clock that evening and posted himself and
his men at the Ambassador Hotel nearby, presumably
waiting for some signal for them to rush to the
Shellborne Hotel and take pictures of Castelo and
Scarface while talking and, if possible, get a tape
recording of their conversation (Exhs. 57-A-Castelo to
57-U-Castelo). Informed that Lacson and some thirty
"armed hoodlums" were looking for him, Castelo
observed from his suite and noticed that really there
were armed men around the Shellborne. Alarmed,
Castelo directed that some constabulary soldiers be sent
to that hotel for his protection. (Remember, he was
Secretary of National Defense.) Inasmuch as the
constabulary was slow in coming, Castelo directed his
confidential assistant to telephone Capt. Alejo, the
Secretary's aide at Camp Murphy, to send Army troops.
Thirty enlisted men and two officers under Capt. Orestes
Montano, "in full combat gear," were dispatched
posthaste to the Shellborne Hotel, riding in two weapons
carriers, a scout car and a jeep. Capt. Montano found
Castelo in his suite "pale and jittery"; thereupon Castelo
ordered the Captain to arrest Mayor Lacson, but the
Captain failed to meet the latter after looking for him in
several places, including the Mayor's house. Meantime,
Col. Antonio Sayson, Deputy Chief of the Constabulary
(who was also called by Castelo), arrived with twelve
men and two officers at ten o'clock that evening. Sayson
was likewise ordered by Castelo to arrest Mayor Lacson
and to provide security for Scarface in the second floor
of the hotel. Col. Sayson went down, saw the Mayor and
informed the latter that he was being arrested upon
orders of the Secretary. Asked whether the Colonel had a
warrant of arrest, Sayson answered in the negative;
whereupon Mayor Lacson said that if the Colonel would
insist in arresting him, he would have to do it over
Lacson's dead body. Sensing that the situation was tense,
there being two opposing armed groups standing by,
Sayson desisted and reported back to Castelo. Then
Generals Vargas and Selga, Cols. Velarde and Cabal
arrived. Castelo at last lifted his order, and the incident
was closed. Upon suggestion of Capt. Gayares, Scarface
was taken to Camp Crame for better security instead of
leaving him in the hotel under the Captain's protection
(Exhs. BBBB, BBBB-2, BBBB-3, BBBB-4, BBBB-5,
BBBB-6, BBBB-7, BBBB-11).
One month after the Shellborne incident, Castelo went to
the United States, but before his departure, he told Ben
Ulo in the presence of Melencio, "Ben, ang mga bata,
ikaw ang bahala sa kanila. Siguruhin mo lang ni walang
magsasalita at delikado tayo" (Ben, take care of the boys
be sure nobody talks as we would be in danger).
On October 20, 1953, three months after the Shellborne
incident, Robles and Scarface were called to Ben Ulo's
house where the latter banded a super .38 caliber pistol
(Exh. G) and a magazine to Scarface, saying "Iyan daw
ang ginamit pagpatay kay Monroy " (That's said to be
the one used in killing Monroy). Scarface and Robles
left. Ten minutes later, both went to Robles' house and
there Scarface wondered where they could hide the gun
and the bullets. Scarface then dismantled the gun; the
handle and the bullets (Exhs. G-3 to G-2-L; G-3 to G-3-
14) were wrapped by Scarface. Both bundles were
hidden by them in two places: one was buried in the
grounds seven inches deep, under the "papag" bed in the
house of Robles' aunt, and the other (Exhs. H-6, H-7, H-
8, and H-9) in the house of Robles' sister.
Five days later, Scarface was found dead, with multiple
stab wounds. His death still remains a mystery.
It appears that the day after Monroy's murder, Francisco
Villa, an agent of the NBI, was assigned to make the
corresponding investigation. He contacted Clemens and
thru him, ascertained the identity of the killer Peping de
Jesus. Having known the latter's connection with Ben
Ulo and his "boys", the authorities cautious y proceeded;
and having been informed by Floring Cabanatuan that
Pile (Felix Miray) was probably the least tough of the
gang, they took the latter into custody of the (NBI) on
December 18th for questioning. He confessed, and his
narration was tape-recorded and later reduced to writing
in five pages (Exh. 2). He did not sign it until he
obtained the assurance from the NBI that he would be
given adequate protection. In this statement, Miray
named Ben Ulo, Peping de Jesus, Domingo Gonzales,
Robles, Pedro Enriquez, Salvador Realista and a certain
Rading as among the conspirators. This revelation
resulted in several apprehensions. Enriquez was arrested
on December 24, 1953. He confessed, and his statement
was tape-recorded and later written and subscribed to,
before Atty. Arturo Xavier of the NBI. .
Domingo Gonzales was arrested on the 28th, and his
narration was likewise tape-recorded, then reduced to
writing. During said tape-recording, Miray was listening
to it in another room, — unknown to Gonzales — and
Miray assured the NBI that what Gonzales had said was
all true. In his statement Exh. BB, Gonzales linked
Enriquez, De Jesus, Realista, Scarface, Tamayo and
Rading to the murder and conspiracy. Gonzales even
made corrections with his initials, on pages 2 and 4 of
his written statement.
The NBI on December 30th, picked up Ben Ulo; but he
denied everything, and refused to make any declaration.
The Manila Police, on its part arrested on December 29,
Peping de Jesus who executed statement Exhibit EE
describing how he shot Monroy, and the conspiracy with
Ben Ulo, Enriquez, Realista, Miray, Gonzales and
Melencio in the manner already stated.
Hipolito Bonifacio was likewise taken into custody by
the Manila Police; and he also made the confession Exh.
DD naming Ben Ulo, De Jesus, Domingo Gonzales,
Scarface and Robles.
Rogelio Robles was then apprehended and questioned.
He confessed too; and upon his indication, the police
recovered the gun parts hidden by him as well as the
bullets, which were turned over to the NBI and then to
Major Cabe, the ballistics expert of the Armed Forces.
The three slugs (Exhs. K, K-1 and K-2) as well as the
three empty shells (Exhs. J, J-1 and J-2) found on the
night of June 15th by Patrolman Matias Soriano of the
Pasay Police on duty at Harrison at the time of the
shooting, were likewise turned over to Major Cabe who,
upon laboratory tests, concluded that the three slugs
came from the three empty shells which, in turn, were
fired from that gun (Exh. G).
Miray, Gonzales, Enriquez and Ben Ulo were turned
over by the NBI to the Manila Police where, except Ben
Ulo, they again made confessions (Exhs. GG, CC and
FF).
Augusto Melencio voluntarily surrendered to the police.
Then on May 24th and 26th, 1954 (Exhs. JJ and HH-1)
while out on bail and when the case was already being
heard, he made the revelations later to be quoted herein.
All these statements or confessions 3a relate, with some
variations as to minor details, the story of the
assassination, the motives thereof and the names of the
raiding parties.
DEFENSES: Appellants set up the defense of alibi, even
as they claimed that the statements they gave to the NBI
and the Manila Police had been extorted from them by
means of violence, and that the contents thereof were not
true. Their alibi consisted in the following:
Jose de Jesus. — The night Monroy was killed (June 15,
1953), he was playing "cuajo" in the house of Rizalina
de la Rosa in Calle Asuncion, Manila; he started playing
from about two or three o'clock in the afternoon up to
five o'clock in the following morning, having taken his
supper at Rizalina's house.
Pedro Enriquez. — After receiving his salary at three
o'clock in the afternoon of June 15th, he went to La
Loma where he took a siesta with his common-law wife
Andrea Marifosque at about dusk, one Remedios Tagle
came and had supper with them; and thereafter, he went
to bed and never left the house that night.
Felix Miray. — He stayed the whole day, June 15th, at
home at 707 Pablo Carreon, Manila, nursing a toothache.
.
Domingo Gonzales. — After taking a siesta on June
15th, he trained his fighting cock with other roosters
until he was called for supper; then he read comics and
retired at about eight or nine o'clock.
Hipolito Bonifacio. — He was in his house at 1247
Interior 9, Juan Luna, on June 15th, because his wife had
a severe attack of asthma, which lasted up to June 17th;
and between six and eight o'clock on the night of June
15th, he was massaging his wife's back on account of her
ailment.
Ben Ulo. — He escorted Mrs. Castelo from six o'clock in
the evening of June 15th, to a party at the Jai-Alai with
friends, such as Mrs. Gianzon, Mrs. Leuterio, and others,
and stayed there until early hours in the morning when
he conducted Mrs. Castelo home.
He denied all the imputations of Robles, admitting,
however, that he was not forced to make a statement nor
subjected to any physical violence by the police,
although he was somehow threatened; and that Lacson
had offered to give him P10,000.00 ff he would turn
witness against Castelo, which offer he refused.
Augusto Melencio. — In the afternoon of June 15th, he
went to Cabanatuan City with Major Vina of the Quezon
City Police on a robbery case which they were
investigating; that they rode in a jeep driven by
Patrolman Maximo Francisco, arriving there at about
seven o'clock; that they returned from Cabanatuan the
following morning, June 16th. He further said that on
January 5, 1954, after learning from the newspapers that
he was included in the information, he voluntarily
surrendered to Mayor Lacson and that his statements
Exhs. JJ and HH-1 were not given by him voluntarily, as
the contents thereof were merely dictated by Fiscal
Andres Reyes to stenographer Miss Paredes; and that he
was merely cajoled into making said statements.
Oscar Castelo. — He was in Korea on June 15th, having
left Manila on the 8th and returned on the 26th.
He denies having told Ben Ulo, on the last week of May,
in the presence of Robles and Scarface, to kill Monroy
because, having been a fiscal and a judge, he could not
have committed the gross indiscretion of telling such
serious matter in the presence of strangers, as Scarface
and Robles, whom he did not know; adding that if he
really ever wanted to do away with anybody, he could
have just told his brother to shoot the victim without the
need of anybody else's help, because his brother is a
sharpshooter of note and is a worthy representative of
the Philippines in international shooting competitions;
besides, his catholicity does not permit him to entertain
such a wish to kill. He further said that it would have
been better for him to have Monroy alive because it was
Monroy who could precisely vindicate him from the
accusations of Senator Recto; because, after having
testified before the Blue Ribbon Committee, Monroy,
accompanied by his cousin, Atty. Cancio purposely
came to see him on May 21st, wept, embraced him, and
asked for forgiveness for having so testified; that be and
Monroy made up since then, Monroy promising that at
some subsequent time, he would retract what he had
testified before the Committee and would issue a
statement to that effect in the press.
Castelo likewise denied the imputation of Robles that on
June 1st, he instructed Ben Ulo, in the presence of
witnesses Robles and Scarface, that Monroy be killed
after he had left for Korea; he swore that this is a lie
because he did not go to his office that morning as he
had a cruise on board a navy vessel around Manila Bay
with prominent persons such as Commodore and Mrs.
Francisco, Clarita Tan Kiang, Fiscal Milagros German,
Mr. and Mrs. Gianzon and others, and that after the
cruise he attended a BZSCOM meeting then went to the
Philippine National Bank at the Escolta to act on some
important papers, after which he went to V. Luna
Hospital for dental treatment.
He similarly branded as false the insinuation in
Melencio's written statement that before he boarded the
plane for Korea he (Castelo) called Ben Ulo and
Melencio aside and reminded them that Monroy should
be killed before his return. He also denied another
Melencio's insinuation that after his arrival from Korea
he asked Ben Ulo in the presence of Melencio how was
the "job" done and if anybody saw it done; that it was
likewise false that before he left for the United States in
August, he told Ben Ulo to take care of the "boys" and
see to it that they do not talk.
DISCUSSION: We shall first take up the case of the six
defendants against whom the People recommends
conviction. Afterwards we shall consider that of both
Melencio and Castelo, whose acquittal the Solicitor
General recommends.
The defense of alibi set up by Miray, Gonzales,
Enriquez, Hipolito and De Jesus deserves little attention
for its flimsiness, bearing in mind that Manila is just 15
to 20 minutes drive to the scene of the crime. Besides, it
contradicts their individual confessions wherein each
mutually names one another as his partner in crime, each
describing his own participation therein, and each
corroboration or supplementing one another's narration
of material facts, and all mentioning Ben Ulo as their
leader. Those confessions unfurl a picture of conspiracy
amongst themselves and other persons to snuff out the
life of Monroy, De Jesus actually firing the fatal shots
and the others lending him support while posted at
strategic places. De Jesus was positively identified by
William Clemens, a disinterested witness, and by Canlas
who singled him out in a police line-up.
Their claim that their confessions were extorted by
means of force and violence may not be taken at its face
value. Ben Ulo himself refutes them on this score when
he testified that he was never subjected to any
indemnity; on the contrary, he stated that he was even
offered P10,000.00 by Mayor Lacson if he would testify
against Castelo — which he rejected. He even declined
to make any statement before the NBI and the Manila
Police — and was not bothered at all. If torture were the
standard police practice in obtaining statements, it surely
strikes us why Ben Ulo, the acknowledged leader of the
group, should have been spared from such ordeal. We
are, therefore, reluctant to believe that these five
appellants had no other choice but to make statements.
They could have refused, same as Ben Ulo. Moreover, it
is hard to believe that the NBI and the Manila Police
could have added incidental details to said confessions
without the declarants having furnished them
themselves. 4
With respect to Ben Ulo, the positive testimony of
Robles conclusively shows that this appellant was the
active leader of the plot, from its inception down to its
actual accomplishment. It was he who broached the
subject of killing Monroy to Robles and Scarface, and
introduced his "boys" to Castelo, who immediately
confirmed that "Monroy must be killed"; it was Ben Ulo
who planned the whole strategy of the rub-out; and it
was he who delivered the lethal gun Exh. G to Scarface
and Robles for them to hide. The testimony of Robles is
amply corroborated not only by the confessions of
Miray, De Jesus, Bonifacio, Enriquez, Gonzales and
Melencio — all of whom point to Ulo as the leader and
moving spirit but also by the mass of evidence on
record, that leaves no room for doubting his guilt. To cap
it all, his flight while under detention betrayed a guilty
conscience.5 Note further, that as proved by the
prosecution, he left the scene of the crime at about 6
p.m. already well-dressed. So he could have gone from
there directly to accompany Mrs. Castelo, as he claimed
to lay the basis for his alibi.
Elaborating on the contention that the interlocking
confessions of De Jesus, Enriquez, Gonzales, Miray and
Hipolito had been extracted thru violence, their attorney
de-officio calls attention to the several days they had
been under detention before they signed the
corresponding confessions (before the police). But it is
of record that Enriquez was arrested on December 24,
1953, by the National Bureau of Investigation and on the
same day, confessed his participation; and that Domingo
Gonzales was taken into custody by the NBI on
December 28, 1953, and on the same day, he too
confessed. This point, besides refuting the defense'
contention that it was Mayor Lacson and the Manila
Police who had framed up this prosecution and extracted
the confessions, lends special credence to the People's
theory, because the NBI operates under the Department
of Justice, and it is very unlikely that the officials of that
Bureau would lend themselves to any moves to frame up
their boss.6 In fact, and this is significant, the original
information did not include Castelo.
At this juncture, it may be stated that Mayor Lacson's
participation and interest was due to the request for help
from the Pasay Police, and partly perhaps, to his natural
apprehension that the police officers might be slow or
reluctant to pursue the "lead" implicating an official of
the highest level, a member of the Cabinet — holding
two pivotal portfolios at that.
But not all confessions are attacked as having been
obtained thru violence. Melencio never claimed that the
police laid violent hands on him.
Melencio. — He merely said he confessed because he
was afraid, yet he made his confession while he was at
liberty under bail. And many details could not have
appeared therein unless he had given them out himself
voluntarily.7 This confession has a very peculiar value,
because he is the nephew of Castelo and was his
confidential agent at the time. Here are pertinent parts
thereof:
Q. — Mr. Melencio, why are you here now before
me?
A. — To give information that I wish to be a state
witness in the case of "PPI vs. Castelo, et al."
wherein I am one of the accused.
Q. — Do you realize what you are doing?
A. — Yes, sir.
Q. — Have you studied this matter seriously?
A. — Yes, sir.
Q. — Have you consulted your father and mother?
A. — Yes, sir. They told me it is up to me.
Q. — Have you consulted your wife?
A. — She told me that if I knew something I should
tell it.
Q. — Have you been promised any reward, job or
money for you to testify in this case as state witness?
A. — No, sir.
Q. — Do you have any criminal record?
A. — None, sir. ... .
Q. — Where did you finish your high school?
A. — In a private college run by catholic priests.
Q. — If I am not mistaken Mr. Melencio, you are
related to Mr. Oscar Castelo, one of the accused in
this case, are you not?
A. — Yes, sir, he is the cousin of my father.
Q. — How do you call him?
A. — I call him Tio Oscar.
Q. — And in spite of that you are coming to me and
are willing to testify against him in the trial?
A. — Yes, sir.
Q. — What is your motive?
A. — Because I want to have a clear conscience.
Since the very beginning of this case I have been
thinking to testify in this case in favor of the
prosecution but thinking that Oscar Castelo is my
relative, I was ashamed to testify against him and I
feared Ben Ulo.
xxx xxx xxx
Q. — One of the reasons why you did not testify in
the very beginning is because you were afraid of Ben
Ulo. Who is this Ben Ulo?
A. — He is one of the accused in this case.
Q. — Why are you afraid of him?
A. — Because I have known him as a killer.
Q. — Did he threaten you or intimidate you?
A. — I think so, since the very beginning of my
assignment.
Q. — How did he threaten you?
A. — He was telling me that he will liquidate me and
my family if I testify against them.
xxx xxx xxx
Q. — At the time that Robles was testifying you were
one of the accused present were you not?
A. — Yes, sir.
Q. — After Robles testified, why did you not think of
testifying?
A. — I had been thinking of my uncle, ex-secretary
Oscar Castelo. 1äwphï1.ñët
Q. — I understand that you were working before in
the Office of the National Defense?
A. — In the office of the Secretary, in the National
Defense.
Q. — When was that?
A. — I started working in April, 1953.
Q. — What was your position in the office?
A. — Confidential Agent.
xxx xxx xxx
A. — Up to when did you stay in the National
Defense as confidential agent?
Q. — In the middle part of July, 1953.
A. — Who was the Secretary of the National Defense
at that time when you started as confidential agent?
Q. — Oscar Tombo Castelo.
A. — You stated that you chose to be an escort of
Oscar Castelo, what did you do?
Q. — We used to go everywhere he went.
Q. — When you say, we, were you accompanied by
other people?
A. — Yes, sir, Ben Mendoza, Pedro Enriquez, Jose
de Jesus, Domingo Gonzales, Salvador Realista,
Alfredo de Leon, Emeterio Espiritu, Felix Miray and
Totoy Reyes. Several times I have seen Rogelio
Robles join us.
xxx xxx xxx
Q. — You said that Ben Mendoza also escorted
Secretary Castelo, do you know what was the
relationship between Ben Mendoza and Oscar
Castelo.
A. — He is the personal bodyguard of the secretary.
Q. — How do you know that he was the personal
bodyguard?
A. — I know it because I have seen him day and
night with the secretary and he is the one who gives
order to some of the escorts.
xxx xxx xxx
Q. — Do you know Rogelio Robles?
A. — Yes, because I saw him with Ben Mendoza in
the residence of the Secretary of National Defense.
Q. — When was that you saw him for the first time?
A. — In the latter part of May?
xxx xxx xxx
Q. — What was Robles doing in the house of Castelo
during the latter part of May?
A. — When I saw Rogelio Robles there in the house
of Castelo, I can remember that I asked the guard in
the house. He told me that is the companion of Ben.
When I learned that, I asked Miray who is that small
fellow and Miray answered: "Matigas na bata ni Ben
yan" and since then I saw him once in a while going
with us to escort the secretary.
xxx xxx xxx
Q. — Did you hear about the name of Manuel
Monroy again?
A. — Yes, sir, the latter part of May.
Q. — On what occasion?
A. — When we were in Camp Murphy. Ben
Mendoza told me to go with him in company of
Gonzales and Felix Miray to survey the place where
Manuel Monroy lives.
Q. — Did you ask Ben Mendoza why be wanted to
survey the place?
A. — Certainly, sir, he told me that the Secretary
desired that Monroy be silenced.
Q. — What was your reaction when Ben Mendoza
told you that?
A. — I felt a little nervous.
xxx xxx xxx
Q. — Do you know the reason why Castelo wanted
to silence Monroy?
A. — Because Ben Ulo told me that Castelo was
double crossed by Monroy, they tried all their efforts
to prevent him from testifying and in spite of that he
testified.
Q. — Now, did you verify or later on did you find
out if it was really the desire of Castelo to silence
Monroy?
A. — I cannot call it verify because when Castelo
was leaving for Korea, when we escorted him on the
plane, he called Ben and me in a place where we will
not be heard by anybody and he told us in a hurried
manner, he told Ben in Tagalog in my presence:
"Huwag lang hindi ninyo mapatay si Monroy bago
ako dumating", and then the reply of Ben was,
"Huwag kang mag-alala, halos patay na siya".
Q. — What were you doing there near Castelo?
A. — We are leading the Secretary to the plane. I was
even carrying his portfolio.
Q. — Did you see him (Castelo) after he arrived from
Korea ?
A. — Yes, sir.
xxx xxx xxx
 Q. — Who was with you when you saw him?
A. — The gang but we left them outside and we went
inside.
Q. — Who was "we"?
A. — Ben Ulo and myself.
Q. — Why did you not bring the gang?
A. — They just stayed outside.
Q. — What did you do then?
A. — We waited for the Secretary to come because
he was dressing when we arrived. We were then in
the sala of the house when he came down. He was
very happy, and holding his bow tie he tapped the
shoulder of Ben and said Mabuti, wala na tayong
intindihin ngayon, pero Ben, natitiyak mo kaya
walang nakakita? and Ben said, "Wala, malinis na
malinis ang trabajo."
Q. — What was the reaction of Ben Ulo when he
learned that Scarface was arrested?
A. — Ben Ulo further stated: "Kaylangan maareglo
ito baka bumaglitad ito".
xxx xxx xxx
Q. — What happened?
A. — While we were conversing, Ben Ulo came out
excited from the Office, of the Secretary and he
called me personally and told me: "Tila merong
masamang nangyari. Babaligtad na si Scarface. Pick
apen natin. Kaylangan makausap ng matanda."
In connection with this confession, the Solicitor
General's Office appears to have taken a peculiar stand.
It says "we are not prepared to admit as true everything
stated" in it, because he was "wheedled" by the Police
Department to testify for the prosecution. Wheedled
means coaxed by soft words, flattery, etc. We do not
think such "wheedling" could invalidate a confession.
And then, that prosecuting arm of the Government
would seem to reject the confession in so far as it affects
Castelo and Melencio, but would apparently consider it
as against the other co-defendants. What is the
difference? At least, in so far as Melencio was
concerned, was it not a confession that interlocked with
the confessions of the other defendants and must
accordingly be considered with such confessions?
Specially because unlike the other defendants, Melencio
never claimed to have been physically harmed by the
Police, and, furthermore, was out on bail when he signed
it.
And there is one decisive consideration. Unlike the other
confessions of the accused (De Jesus, Gonzales, Miray,
Enriquez, and Bonifacio), which were merely
"subscribed and sworn to" before Fiscal Andres Reyes,
the confession of Melencio contains this certification
signed by two women-stenographers:8
We hereby certify that this is a true and correct
transcription of the stenographic notes taken during the
preliminary investigation conducted on May 26, 1954 by
Asst. Fiscal Andres Reyes.
(Sgd.) JULIETA HERRERA
Clk-Stenographer
(Sgd.) ESTER P. PAREDES
Clk-Stenographer
Which certification shows the answer given by Melencio
had been given before said two women — not the police
— and taken down stenographically by them, in an
ordinary investigation by the Fiscal.
All of which means: the confession of Melencio like
those of De Jesus, et al., must be accorded full
evidentiary value.
It must be observed that said confessions were presented
in a joint trial of all the accused.
Coming now to Castelo, the only direct evidence9
against him is the testimony of Robles, who swore: (1)
that when he and Scarface were introduced by Ben Ulo
one morning in May, 1953, Castelo told the latter in the
presence of both Robles and Scarface that there was
NEED to kill Monroy; and (2) that on June 1st Castelo
again suggested to Ben Ulo, Scarface and witness that
Monroy should be killed AFTER he had left for Korea.
In addition to this, Melencio mentions in his confession
(3) that before Castelo boarded the plane for Korea on
June 8th, called him and Ben Ulo aside, and urged that
Monroy be killed BEFORE his return; (4) that a day
after his return on June 26th, Castelo, in a gay mood
patted Ben Ulo's back to say, "Good, we have nothing to
worry about; but, Ben are you sure nobody saw?" to
which Ben Ulo replied, "Nobody; it was a clean job."
and (5) that before Castelo left for the United States in
August, Castelo admonished Ben Ulo in the presence of
Melencio, "Ben, take care of the boys; be sure nobody
otherwise, we would be in bad fix."
However, Castelo's counsel and the Solicitor General
strenuously insist that the lone testimony of Robles,
which should be received with caution, is insufficient to
warrant conviction; that Melencio's confession is utterly
incompetent as against Castelo, for being doubly
hearsay, to say nothing of Melencio's repudiation
thereof; and that considering Robles' recantation, no
proof remains in the record against Castelo who, a
fortiori must be acquitted. This, then, requires
examination of the testimony of Robles in both the
original and the new trials, to determine which of his
conflicting stories reflected the true facts.
We have carefully examined his lengthy testimony
during the original trial and have come to the conclusion
that the facts narrated therein, although quite unusual,
are not improbable considering the situation as a whole.
Noteworthy it is that when subjected for several weeks
to a searching and unrelenting cross-examination by
several defense lawyers, this witness stood firm and
steadfast in his assertions and answered his questioners
with straightforward alacrity, and apparent spontaneity.
9a
On the other hand, his recantation at the new trial,
alleging mistreatment and coercion, has been so
completely rebutted by Feliciano Lazaro, Francisco
Espiritu, Enrique A. Morales and Adolfo Arguelles of
the Manila Police, as well as by Mayor Lacson, Fiscal
Andres Reyes and newspaperman Primitive Mijares, that
we do not hesitate to hold it to be a mere afterthought,
designed to rescue his former co-defendants and to
deliver Castelo from the hands of the law. 9b This, apart
from our wariness and skepticism in matters of retraction
of prosecution witnesses made after a judgment of
conviction. (Cf. U.S. vs. Valdez, 30 Phil. 293; U.S. vs.
Cu Unjieng, 61 Phil. 906; U.S. vs. Dacir, 26 Phil. 503.)
Furthermore, the testimony of Robles linking Castelo
with the conspiracy does not stand alone, as claimed, for
it finds adequate support, and confirmation not only in
the collective confessions of Miray, De Jesus, Bonifacio,
Gonzales, Enriquez, and Melencio and the finding of the
gun parts in his possession, but in the totality of the
evidence. These confessions are so intimately
interwoven that it is hard, if not impossible, to draw a
line with a view to sifting the individually admitted
facts. In the absence of collusion among the declarants,
their confessions should be read together, in order to
form a complete picture of the whole situation, and to
consider them collectively merely as corroborative
and/or confirmatory of the evidence independent
therefrom. Thus, it is not improbable that Castelo and
Ben Ulo had previously discussed between themselves
the elimination of Monroy before Ben Ulo ever broached
the subject to Scarface and Robles one morning. Neither
is it improbable that when Ben Ulo introduced them later
that same morning as his "boys", Castelo must have
understood that they could be trusted; and so he was
outspoken in suggesting Monroy's destruction, either,
perhaps, to impress upon the "boys" that Ben Ulo was
not joking, or to show that he, Castelo, was backing
them up to the hilt with his double-barreled power as
head of both the Justice Department and the Armed
Forces of the country.
It is unbelievable, the defense contends, that Castelo
should be so imprudent as to speak out his liquidation
order to Mendoza in the presence of strangers. In the
light of the confessions and the testimony, there are at
least two additional reasons to explain this apparent
"imprudence". First, he was issuing orders to a loyal
subordinate or to would be subordinates; and the
Shellborne incident shows him to be capable of
carelessness — if not naughtiness — when he directed a
colonel to arrest the Mayor of the City of Manila without
any judicial warrant10; Second, having been a fiscal, he
assumed nobody would believe any witness who would
testify to such recklessness of a Cabinet member. And
third, his experience foresaw an airtight alibi should
Monroy be killed while he was in Korea.
At this point, this thought occurs to us: if this
prosecution was a mere concoction of Mayor Lacson and
his police — as defense insinuates — how did they
know that on June 1 (date when he made the order to kill
Monroy during his absence), he had already made up his
mind to proceed to Korea? (Castelo, himself, during the
trial admitted that before June, he had made plans to
travel abroad.) And why should the operatives of the
NBI — subordinates of Castelo — cooperate in getting
confessions reflecting against their boss. Not to mention
the three fiscals — also under Castelo — who
vigorously handled the prosecution. .
Castelo argued that if he had wished to eliminate
Monroy, he could have asked his brother who was a
sharpshooter— instead of employing so many
accomplices. Yet it is not certain that his brother would
be willing to expose his own neck. And this mode of
reasoning does Castelo no credit, because besides
assuming that his brother would do it, it reveals him as a
man who would not hesitate to endanger the life or
liberty of his own brother to further his ends.
The defense insists that contrary to the prosecution's
theory, Castelo did not want Monroy to die; because the
latter had voluntarily promised to retract his testimony
given before the Blue Ribbon Committee. But knowing
him as a "blackmailer" and double-crosser11, Castelo had
reasons to distrust such promise, supposing it was made;
and so, partly in revenge and partly to silence him
forever, Castelo chose violent death having as he had,
hardy henchmen to bring it about. The Blue Ribbon
investigation could only produce removal from office.
But disbarment will scuttle his means of support; and a
rap for bribery could lead to prison. So "kailangan
mapatay si Monroy," as he said.
The Solicitor General regards Ben Ulo as the central
figure in the conspiracy, sans Castelo, and suggests that
he killed Monroy merely to curry Castelo's favor. 11a
This view is highly speculative, for it is not likely that
one would take another man's life, place his head on a
silver platter and give it as a present to his master merely
for a pat in the back. The evidence shows that none of
Castelo's co-appellants had any motive for desiring
Monroy's demise. It was only Castelo, who had such
motive. Monroy, whom he knew as a man "without
scruples and capable of swindling his own mother," had
testified in the Senate imputing bribery to him. Castelo's
reputation and career, which were being trampled upon
by a mere "police character", had to be protected; so that
even though Monroy had already testified, there was still
time to avert any further harm, i.e., disbarment and jail.
And so, liquidation of Monroy appeared to be the only
solution. And his trip to Korea offered a favorable
coincidence.
His agents acted swiftly and surely. And as instructed,
they kept their mouths shut. Even the MPD which was in
the light track when it arrested Robles and Scarface ten
days after the crime failed in its efforts because of the
stubborn silence of both; and release them. Robles later
explained that he did not confess anything at that time
because he and Scarface enjoyed a certain degree of
immunity, Ben Ulo being still "strong" and Castelo
powerful. So the MPD had to release them. 12 This is an
indication that — contrary to defense's theory — the
police were not bent on obtaining confessions, by hook
or by crook.
But truth will always out. The Shellborne incident
occurring three weeks thereafter marked the beginning
of the revelation. It confirmed that Castelo and Scarface
were not, after all, strangers to each other. The MPD
watching Scarface's movements must have known when
he was actually "picked up" 13 and brought to the
Shellborne Hotel where Castelo had his suite. This
accounts for Mayor Lacson's leading the press,
photographers and policemen to the Shellborne in order
to take pictures of Castelo and Scarface together and/or
to tape-record their conversation. Given his guilty
connection with Scarface, Castelo's reaction to this could
not be other than fright. So he had to summon the
Constabulary and the Army to come to his aid, fearing
that his complicity with the Monroy murder would at
last be uncovered. He was "pale and jittery" (quoting
Captain Montano) and, brushing aside his knowledge of
the law and forgetting that he bad been a fiscal and a
judge, he ordered, without warrant, the arrest of Lacson,
only to be frustrated by the Mayor's presence of mind.
Melencio's Confession furnishes a very plausible
explanation why Scarface was in the hotel; he stated that
Ben Ulo had told him that they would pick up Scarface
for confrontation with the old man (Castelo) because
Scarface was about to spill the beans (babaligtad).
Castelo must have been apprised of this, and thus his
reaction and pronounced interest in keeping Scarface out
of the reach of the police 14 — conduct which is certainly
incompatible with his innocence. And a few weeks later,
the potential squealer was killed mysteriously; and, what
a coincidence — while Castelo was abroad again.
CONCLUSION: To summarize, the following
sufficiently show, beyond reasonable doubt, the guilt of
all the appellants:
linking him with the liquidation squad. The confessions
of his co-accused describing his participation. .
Oscar Castelo. — His desire and interest to eliminate
Monroy. The testimony of Robles as to his orders to kill.
The confession of Melencio as to such orders too. He
had subservient bodyguards or agents to do his bidding.
The confessions of such agents. On top of all this, his
conduct at the Shellborne hotel revealed his culpable
connection with the assassination plot. In fine, the case
of the People is so strong against him, that it would be
unjust to set him free and yet imprison his seven
subordinates who merely carried out his commands. .
Motion for New Trial. — There is pending here a motion
for new trial, for the purpose of proving that others
killed Monroy. The Solicitor General recommending
conviction of six appellants, impliedly disagrees with the
motion. So, given our findings, and our rulings in the
matter, such motion is denied. (Cf. People vs.
Hernandez, May 23, 1952, L-3391; People vs. Buluran,
May 24, 1954, L-5849; People vs. Manadi, 52 Off. Gaz.
2010.) .
JUDGMENT: WHEREFORE, the conviction for murder
— qualified by premeditation — all the herein accused-
appellants is affirmed. There are aggravating
circumstances, like nighttime, aid of armed men, etc.;
but for lack of sufficient votes, they are all sentenced to
life-imprisonment and to indemnify the heirs of Monroy,
jointly and severally, in the sum of six thousand pesos
(P6,000.00), and to pay the costs. So ordered.

Bienvenido Mendoza. — All the confessions point to

him as the mastermind, directing his "boys" in the
slaying expedition He in turn had received orders from
Castelo: Rogelio Robles so declared in court. There is no
doubt, he was the trusted bodyguard of Castelo-and a
known killer.

Pedro Enriquez, Hipolito Bonifacio, Jose de Jesus,

Domingo Gonzales and Felix Miray. — Their
confessions, wherein admitting their own participation in
the crime, they indicated the other members of the
liquidating squad. They were all pointed out at the trial
by Rogelio Robles. Jose de Jesus shot Monroy15, while
the others were located at strategic places nearby ready
to shoot it out if necessary and/or to furnish means of
retreat. Felix Miray drove one of the cars that carried the
group to David Street, Pasay. At that time, Gonzales,
Enriquez, Robles, Melencio and De Jesus were special
agents of the Department of National Defense
(recommended by Ben Ulo, his "boys"). And shortly
after the death of Monroy, Bonifacio was appointed
agent too — by Castelo naturally.

De Jesus as the triggerman, was seen by William

Clemens and by Canlas, both of whom identified him in
court. And Pedro Enriquez' confession, corroborated
their assertions.

Augusto Melencio. — His confession, parts of which

have been transcribed above. The testimony of Robles