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Basic Principles

G.R. No. 96132 June 26, 1992

ORIEL MAGNO, petitioner,

This is an appeal by certiorari under Rule 45 of the Revised Rules of Court, from the decision* of
the respondent Court of Appeals which affirmed in toto the decision of the Regional Trial Court of
Quezon City, Branch 104 finding the accused petitioner, guilty of violations of Batas Pambansa
Blg. 22, in Criminal Cases Q-35693 to 35696 before they were elevated on appeal to the
respondent appellate Court under CA-G.R. CR No. 04889.
The antecedent facts and circumstances of the four (4) counts of the offense charged, have been
clearly illustrated, in the Comment of the Office of the Solicitor General as official counsel for the
public respondent, thus:
Petitioner was in the process of putting up a car repair shop sometime in April 1983, but a did not
have complete equipment that could make his venture workable. He also had another problem,
and that while he was going into this entrepreneurship, he lacked funds with which to purchase
the necessary equipment to make such business operational. Thus, petitioner, representing Ultra
Sources International Corporation, approached Corazon Teng, (private complainant) Vice
President of Mancor Industries (hereinafter referred to as Mancor) for his needed car repair
service equipment of which Mancor was a distributor, (Rollo, pp. 40-41)
Having been approached by petitioner on his predicament, who fully bared that he had no
sufficient funds to buy the equipment needed, the former (Corazon Teng) referred Magno to LS
Finance and Management Corporation (LB Finance for brevity) advising its Vice-President, Joey
Gomez, that Mancor was willing and able to supply the pieces of equipment needed if LS Finance
could accommodate petitioner and provide him credit facilities. (Ibid., P. 41)
The arrangement went through on condition that petitioner has to put up a warranty deposit
equivalent to thirty per centum (30%) of the total value of the pieces of equipment to be
purchased, amounting to P29,790.00. Since petitioner could not come up with such amount, he
requested Joey Gomez on a personal level to look for a third party who could lend him the
equivalent amount of the warranty deposit, however, unknown to petitioner, it was Corazon Teng
who advanced the deposit in question, on condition that the same would be paid as a short term
loan at 3% interest (Ibid., P. 41)
The specific provision in the Leasing Agreement, reads:
1.1. WARRANTY DEPOSIT — Before or upon delivery of each item of Equipment, the Lessee
shall deposit with the Lessor such sum or sums specified in Schedule A to serve as security for
the faithful performance of its obligations.
This deposit shall be refunded to the Lessee upon the satisfactory completion of the entire period
of Lease, subject to the conditions of clause 1.12 of this Article. (Ibid., p. 17)
As part of the arrangement, petitioner and LS Finance entered into a leasing agreement whereby
LS Finance would lease the garage equipments and petitioner would pay the corresponding rent
with the option to buy the same. After the documentation was completed, the equipment were
delivered to petitioner who in turn issued a postdated check and gave it to Joey Gomez who,
unknown to the petitioner, delivered the same to Corazon Teng. When the check matured,
Petitioner requested through Joey Gomez not to deposit the check as he (Magno) was no longer
banking with Pacific Bank.
To replace the first check issued, petitioner issued another set of six (6) postdated checks. Two
(2) checks dated July 29, 1983 were deposited and cleared while the four (4) others, which were
the subject of the four counts of the aforestated charges subject of the petition, were held
momentarily by Corazon Teng, on the request of Magno as they were not covered with sufficient
funds. These checks were a) Piso Bank Check Nos. 006858, dated August 15, 1983, 006859
dated August 28, 1983 and 006860 dated September 15, 1983, all in the amount of P5,038.43
and No. 006861 dated September 28, 1983, in the amount of P10,076.87. (Ibid., pp. 42 & 43).
Subsequently, petitioner could not pay LS Finance the monthly rentals, thus it pulled out the
garage equipments. It was then on this occasion that petitioner became aware that Corazon Teng
was the one who advanced the warranty deposit. Petitioner with his wife went to see Corazon
Teng and promised to pay the latter but the payment never came and when the four (4) checks
were deposited they were returned for the reason "account closed." (Ibid., p. 43)
After joint trial before the Regional Trial Court of Quezon City, Branch 104, the accused-petitioner
was convicted for violations of BP Blg. 22 on the four (4) cases, as follows:
. . . finding the accused-appellant guilty beyond reasonable doubt of the offense of violations of
B.P. Blg. 22 and sentencing the accused to imprisonment for one year in each Criminal Case
Nos. Q-35693, Q-35695 and Q-35696 and to pay to complainant the respective amounts
reflected in subject checks. (Ibid., pp. 25, 27)
Reviewing the above and the affirmation of the above-stated decision of the court a quo, this
Court is intrigued about the outcome of the checks subject of the cases which were intended by
the parties, the petitioner on the one hand and the private complainant on the other, to cover the
"warranty deposit" equivalent to the 30% requirement of the financing company. Corazon Teng is
one of the officers of Mancor, the supplier of the equipment subject of the Leasing Agreement
subject of the high financing scheme undertaken by the petitioner as lessee of the repair service
equipment, which was arranged at the instance of Mrs. Teng from the very beginning of the
By the nature of the "warranty deposit" amounting to P29,790.00 corresponding to 30% of the

"purchase/lease" value of the equipments subject of the transaction, it is obvious that the "cash
out" made by Mrs. Teng was not used by petitioner who was just paying rentals for the
equipment. It would have been different if petitioner opted to purchase the pieces of equipment
on or about the termination of the lease-purchase agreement in which case he had to pay the
additional amount of the warranty deposit which should have formed part of the purchase price.
As the transaction did not ripen into a purchase, but remained a lease with rentals being paid for
the loaned equipment, which were pulled out by the Lessor (Mancor) when the petitioner failed to
continue paying possibly due to economic constraints or business failure, then it is lawful and just
that the warranty deposit should not be charged against the petitioner.
To charge the petitioner for the refund of a "warranty deposit" which he did not withdraw as it was
not his own account, it having remained with LS Finance, is to even make him pay an unjust
"debt", to say the least, since petitioner did not receive the amount in question. All the while, said
amount was in the safekeeping of the financing company, which is managed, supervised and
operated by the corporation officials and employees of LS Finance. Petitioner did not even know
that the checks he issued were turned over by Joey Gomez to Mrs. Teng, whose operation was
kept from his knowledge on her instruction. This fact alone evoke suspicion that the transaction is
irregular and immoral per se, hence, she specifically requested Gomez not to divulge the source
of the "warranty deposit".
It is intriguing to realize that Mrs. Teng did not want the petitioner to know that it was she who
"accommodated" petitioner's request for Joey Gomez, to source out the needed funds for the
"warranty deposit". Thus it unfolds the kind of transaction that is shrouded with mystery,
gimmickry and doubtful legality. It is in simple language, a scheme whereby Mrs. Teng as the
supplier of the equipment in the name of her corporation, Mancor, would be able to "sell or lease"
its goods as in this case, and at the same time, privately financing those who desperately need
petty accommodations as this one. This modus operandi has in so many instances victimized
unsuspecting businessmen, who likewise need protection from the law, by availing of the
deceptively called "warranty deposit" not realizing that they also fall prey to leasing equipment
under the guise of a lease-purchase agreement when it is a scheme designed to skim off
business clients.
This maneuvering has serious implications especially with respect to the threat of the penal
sanction of the law in issue, as in this case. And, with a willing court system to apply the full
harshness of the special law in question, using the "mala prohibitia" doctrine, the noble objective
of the law is tainted with materialism and opportunism in the highest, degree.
This angle is bolstered by the fact that since the petitioner or lessee referred to above in the lease
agreement knew that the amount of P29,790.00 subject of the cases, were mere accommodation-
arrangements with somebody thru Joey Gomez, petitioner did not even attempt to secure the
refund of said amount from LS Finance, notwithstanding the agreement provision to the contrary.
To argue that after the termination of the lease agreement, the warranty deposit should be
refundable in full to Mrs. Teng by petitioner when he did not cash out the "warranty deposit" for
his official or personal use, is to stretch the nicety of the alleged law (B.P. No, 22) violated.
For all intents and purposes, the law was devised to safeguard the interest of the banking system
and the legitimate public checking account user. It did not intend to shelter or favor nor encourage
users of the system to enrich themselves through manipulations and circumvention of the noble
purpose and objective of the law. Least should it be used also as a means of jeopardizing honest-
to-goodness transactions with some color of "get-rich" scheme to the prejudice of well-meaning
businessmen who are the pillars of society.
Under the utilitarian theory, the "protective theory" in criminal law, "affirms that the primary
function of punishment is the protective (sic) of society against actual and potential wrongdoers."
It is not clear whether petitioner could be considered as having actually committed the wrong
sought to be punished in the offense charged, but on the other hand, it can be safely said that the
actuations of Mrs. Carolina Teng amount to that of potential wrongdoers whose operations should
also be clipped at some point in time in order that the unwary public will not be failing prey to such
a vicious transaction (Aquino, The Revised Penal Code, 1987 Edition, Vol. I, P. 11)
Corollary to the above view, is the application of the theory that "criminal law is founded upon that
moral disapprobation . . . of actions which are immoral, i.e., which are detrimental (or dangerous)
to those conditions upon which depend the existence and progress of human society. This
disappropriation is inevitable to the extent that morality is generally founded and built upon a
certain concurrence in the moral opinions of all. . . . That which we call punishment is only an
external means of emphasizing moral disapprobation the method of punishment is in reality the
amount of punishment," (Ibid., P. 11, citing People v. Roldan Zaballero, CA 54 O.G. 6904, Note
also Justice Pablo's view in People v. Piosca and Peremne, 86 Phil. 31).
Thus, it behooves upon a court of law that in applying the punishment imposed upon the
accused, the objective of retribution of a wronged society, should be directed against the "actual
and potential wrongdoers." In the instant case, there is no doubt that petitioner's four (4) checks
were used to collateralize an accommodation, and not to cover the receipt of an actual "account
or credit for value" as this was absent, and therefore petitioner should not be punished for mere
issuance of the checks in question. Following the aforecited theory, in petitioner's stead the
"potential wrongdoer", whose operation could be a menace to society, should not be glorified by
convicting the petitioner.
While in case of doubt, the case should have been resolved in favor of the accused, however, by
the open admission of the appellate court below, oven when the ultimate beneficiary of the
"warranty deposit" is of doubtful certainty, the accused was convicted, as shown below:
Nor do We see any merit in appellant's claim that the obligation of the accused to complainant
had been extinguished by the termination of the leasing agreement — by the terms of which the
warranty deposit advanced by complainant was refundable to the accused as lessee — and that

as the lessor L.S. Finance neither made any liquidation of said amount nor returned the same to
the accused, it may he assumed that the amount was already returned to the complainant. For
these allegations, even if true, do not change the fact, admitted by appellant and established by
the evidence, that the four checks were originally issued on account or for value. And as We have
already observed, in order that there may be a conviction under the from paragraph of Section 2
of B.P. Blg 22 — with respect to the element of said offense that the check should have been
made and issued on account or for value — it is sufficient, all the other elements of the offense
being present, that the check must have been drawn and issued in payment of an obligation.
Moreover, even granting, arguendo, that the extinguishment, after the issuance of the checks, of
the obligation in consideration of which the checks were issued, would have resulted in placing
the case at bar beyond the purview of the prohibition in Section 1 of BP Blg. 22, there is no
satisfactory proof that there was such an extinguishment in the present case. Appellee aptly
points out that appellant had not adduced any direct evidence to prove that the amount advanced
by the complainant to cover the warranty deposit must already have been returned to her. (Rollo,
p. 30)
It is indubitable that the respondent Court of Appeals even disregarded the cardinal rule that the
accused is presumed innocent until proven guilty beyond reasonable doubt. On the contrary, the
same court even expected the petitioner-appellant to adduce evidence to show that he was not
guilty of the crime charged. But how can be produce documents showing that the warranty
deposit has already been taken back by Mrs. Teng when she is an officer of Mancor which has
interest in the transaction, besides being personally interested in the profit of her side-line. Thus,
even if she may have gotten back the value of the accommodation, she would still pursue
collecting from the petitioner since she had in her possession the checks that "bounced".
That the court a quo merely relied on the law, without looking into the real nature of the warranty
deposit is evident from the following pronouncement:
And the trail court concluded that there is no question that the accused violated BP Blg. 22, which
is a special statutory law, violations of which are mala prohibita. The court relied on the rule that
in cases of mala prohibita, the only inquiry is whether or not the law had been violated, proof of
criminal intent not being necessary for the conviction of the accused, the acts being prohibited for
reasons of public policy and the defenses of good faith and absence of criminal intent being
unavailing in prosecutions for said offenses." (Ibid., p. 26)
The crux of the matter rests upon the reason for the drawing of the postdated checks by the
petitioner, i.e., whether they were drawn or issued "to apply on account or for value", as required
under Section 1 of B.P. Blg, 22. When viewed against the following definitions of the catch-terms
"warranty" and "deposit", for which the postdated checks were issued or drawn, all the more, the
alleged crime could not have been committed by petitioner:
a) Warranty — A promise that a proposition of fact is true. A promise that certain facts are truly as
they are represented to be and that they will remain so: . . . (Black's Law Dictionary, Fifth Edition,
(1979) p. 1423)
A cross-reference to the following term shows:
Fitness for Particular Purpose: —
Where the seller at the time of contracting has reason to know any particular purpose for which
the goods are required and that the buyer is relying on the seller's skill or judgment to select or
furnish suitable goods, there is, unless excluded or modified, an implied warranty that the goods
shall be fit for such purpose, (Ibid., p. 573)
b) Deposit: — Money lodged with a person as an earnest or security for the performance of some
contract, to be forfeited if the depositor fails in his undertaking. It may be deemed to be part
payment and to that extent may constitute the purchaser the actual owner of the estate.
To commit to custody, or to lay down; to place; to put. To lodge for safe- keeping or as a pledge
to intrust to the care of another.
The act of placing money in the custody of a bank or banker, for safety or convenience, to be
withdrawn at the will of the depositor or under rules and regulations agreed on. Also, the money
so deposited, or the credit which the depositor receives for it. Deposit, according to its commonly
accepted and generally understood among bankers and by the public, includes not only deposits
payable on demand and for which certificates, whether interest-bearing or not, may be issued,
payable on demand, or on certain notice or at a fixed future time. (Ibid., pp. 394-395)
Furthermore, the element of "knowing at the time of issue that he does not have sufficient funds
in or credit with the drawee bank for the payment of such check in full upon its presentment,
which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or
would have been dishonored for the same reason . . . is inversely applied in this case. From the
very beginning, petitioner never hid the fact that he did not have the funds with which to put up
the warranty deposit and as a matter of fact, he openly intimated this to the vital conduit of the
transaction, Joey Gomez, to whom petitioner was introduced by Mrs. Teng. It would have been
different if this predicament was not communicated to all the parties he dealt with regarding the
lease agreement the financing of which was covered by L.S. Finance Management.
WHEREFORE, the appealed decision is REVERSED and the accused-petitioner is hereby
ACQUITTED of the crime charged.



Petitioner Rogelio Roque (petitioner) was charged with the crime of frustrated homicide in an

Information that reads as follows:

That on or about the 22nd day of November, 2001, in the municipality of Pandi, province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused did then and there willfully, unlawfully, and feloniously, with intent to kill[,] attack, assault
and shoot with a gun complain[an]t Reynaldo Marquez, hitting the latter on his right ear and nape,
and kick[ing] him on the face and back, causing serious physical injuries which ordinarily would
have caused the death of the said Reynaldo Marquez, thus, performing all the acts of execution
which should have produced the crime of homicide as a consequence, but nevertheless did not
produce it by reason of causes independent of his will, that is[,] by the timely and able medical
attendance rendered to said Reynaldo Marquez which prevented his death.


When arraigned on March 23, 2003, petitioner pleaded "not guilty." During the pre-trial
conference, the defense admitted the identity of petitioner; that he is a Kagawad of Barangay
Masagana, Pandi, Bulacan; and that the day of the incident, November 22, 2001 was the
Thanksgiving Day of the said barangay. Trial thereafter ensued where the parties presented their
respective versions of the incident.

The prosecution averred that on November 22, 2001, while brothers Reynaldo Marquez
(Reynaldo) and Rodolfo Marquez (Rodolfo) were in the house of Bella Salvador-Santos (Bella) in
Pandi, Bulacan, Rodolfo spotted Rogelio dela Cruz (dela Cruz) and shouted to him to join
them. At that instant, petitioner and his wife were passing-by on board a tricycle. Believing that
Rodolfo's shout was directed at him, petitioner stopped the vehicle and cursed the
former. Reynaldo apologized for the misunderstanding but petitioner was unyielding. Before
leaving, he warned the Marquez brothers that something bad would happen to them if they
continue to perturb him.

Bothered, Rodolfo went to the house of Barangay Chairman Pablo Tayao (Tayao) to ask for
assistance in settling the misunderstanding. Because of this, Reynaldo, who had already gone
home, was fetched by dela Cruz and brought to the house of Tayao. But since Tayao was then
no longer around, Reynaldo just proceeded to petitioner's house to follow Tayao and Rodolfo who
had already gone ahead. Upon arriving at petitioner's residence, Reynaldo again apologized to
petitioner but the latter did not reply. Instead, petitioner entered the house and when he came
out, he was already holding a gun which he suddenly fired at Reynaldo who was hit in his right
ear. Petitioner then shot Reynaldo who fell to the ground after being hit in the nape. Unsatisfied,
petitioner kicked Reynaldo on the face and back. Reynaldo pleaded Tayao for help but to no
avail since petitioner warned those around not to get involved. Fortunately, Reynaldo's parents
arrived and took him to a local hospital for emergency medical treatment. He was later
transferred to Jose Reyes Memorial Hospital in Manila where he was operated on and confined
for three weeks. Dr. Renato Raymundo attended to him and issued a medical certificate stating
that a bullet entered the base of Reynaldo's skull and exited at the back of his right ear.

Presenting a totally different version, the defense claimed that on November 22, 2001, petitioner
went to the house of Bella on board a tricycle to fetch his child. While driving, he was cursed by
brothers Reynaldo and Rodolfo who were visibly intoxicated. Petitioner ignored the two and just
went home. Later, however, the brothers appeared in front of his house still shouting invectives
against him. Petitioner's brother tried to pacify Rodolfo and Reynaldo who agreed to leave but
not without threatening that they would return to kill him. Petitioner thus asked someone to call
Tayao. Not long after, the brothers came back, entered petitioner's yard, and challenged him to a
gun duel. Petitioner requested Tayao to stop and pacify them but Reynaldo refused to calm
down and instead fired his gun. Hence, as an act of self-defense, petitioner fired back twice.

On March 12, 2007, the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 84, rendered its
Decision[2] finding petitioner guilty as charged, viz:

WHEREFORE, finding the accused GUILTY beyond reasonable doubt of the crime charged in
the information, he is hereby sentenced to suffer the penalty of imprisonment of six (6) years [of]
prision correccional, as minimum[;] to ten (10) years of prision mayor in its medium [period], as


Petitioner filed a motion for reconsideration which was denied in an Order[4] dated August 16,

Undaunted, petitioner appealed to the Court of Appeals (CA). In its Decision[5] dated February
27, 2009, the CA affirmed in full the RTC's Decision, thus:

WHEREFORE, in the light of the foregoing premises, the decision appealed from is hereby
AFFIRMED in its entirety.


Petitioner's Motion for Reconsideration[7] thereto was likewise denied in a Resolution[8] dated
July 30, 2010.

Hence, this Petition for Review on Certiorari[9] under Rule 45 of the Rules of Court where
petitioner imputes upon the CA the following errors:



Our Ruling

The Petition must be denied.

The errors petitioner imputes upon the CA all pertain to "appreciation of evidence" or factual
errors which are not within the province of a petition for review on certiorari under Rule 45. The
Court had already explained in Batistis v. People[11] that:

Pursuant to Section 3, Rule 122, and Section 9, Rule 45, of the Rules of Court, the review on
appeal of a decision in a criminal case, wherein the CA imposes a penalty other than death,
reclusion perpetua, or life imprisonment, is by petition for review on certiorari.

A petition for review on certiorari raises only questions of law. Sec. 1, Rule 45, Rules of Court,
explicitly so provides, viz:
Section 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may include an application
for a writ of preliminary injunction or other provisional remedies and shall raise only questions
of law, which must be distinctly set forth. The petitioner may seek the same provisional
remedies by verified motion filed in the same action or proceeding at any time during its

Petitioner's assigned errors, requiring as they do a re-appreciation and re-examination of the

evidence, are evidentiary and factual in nature.[12] The Petition must therefore be denied on this
basis because "one, the petition for review thereby violates the limitation of the issues to only
legal questions, and, two, the Court, not being a trier of facts, will not disturb the factual findings
of the CA, unless they were mistaken, absurd, speculative, conflicting, tainted with grave abuse of
discretion, or contrary to the findings reached by the court of origin,"[13] which was not shown to
be the case here.

Besides, findings of facts of the RTC, its calibration of the testimonial evidence, its assessment of
the probative weight thereof, as well as its conclusions anchored on the said findings, are
accorded high respect if not conclusive effect when affirmed by the CA,[14] as in this case. After
all, the RTC "had the opportunity to observe the witnesses on the stand and detect if they were
telling the truth."[15] "To [thus] accord with the established doctrine of finality and bindingness of
the trial court's findings of fact, [the Court shall] not disturb [the] findings of fact of the RTC,
particularly after their affirmance by the CA"[16] as petitioner was not able to sufficiently establish
any extraordinary circumstance which merits a departure from the said doctrine.[17]

In any event, the Court observes that the CA correctly affirmed the RTC's ruling that petitioner is
guilty of frustrated homicide and not merely of less serious physical injuries as the latter
insists. As aptly stated by the CA:

In attempted or frustrated homicide, the offender must have the intent to kill the victim. If there is
no intent to kill on the part of the offender, he is liable for physical injuries only. Vice-versa,
regardless of whether the victim only suffered injuries that would have healed in nine to thirty
days, if intent to kill is sufficiently borne out, the crime committed is frustrated homicide (Arts. 263-

Usually, the intent to kill is shown by the kind of weapon used by the offender and the parts of the
victim's body at which the weapon was aimed, as shown by the wounds inflicted. Hence, when a
deadly weapon, like a bolo, is used to stab the victim in the latter's abdomen, the intent to kill can
be presumed (Reyes, The Revised Penal Code, 13TH ED., P. 431).

It is worth highlighting that the victim received two gunshot wounds in the head. Indeed the
location of the wounds plus the nature of the weapon used are ready indications that the
accused-appellant's objective is not merely to warn or incapacitate a supposed aggressor. Verily,
had the accused-appellant been slightly better with his aim, any of the two bullets surely would
have killed him outright. Also, the intent to kill is further exhibited by the fact that the accused-
appellant even prevented barangay officials from intervening and helping x x x the bleeding
victim. Indeed, the fact that Reynaldo Marquez was miraculously able to live through the ordeal
and sustain only modicum injuries does not mean that the crime ought to be downgraded from
frustrated homicide to less serious physical injuries. After all, as was mentioned above, what
should be determinative of the crime is not the gravity of the resulting injury but the criminal intent
that animated the hand that pulled the trigger.[18]

The Court, however, notes that while the penalty imposed upon appellant is also proper, there is
a need to modify the assailed CA Decision in that awards of damages must be made in favor of
the victim Reynaldo.

The RTC and the CA correctly held that actual damages cannot be awarded to Reynaldo due to
the absence of receipts to prove the medical expenses he incurred from the incident.
"Nonetheless, absent competent proof on the actual damages suffered, a party still has the option
of claiming temperate damages, which may be allowed in cases where, from the nature of the
case, definite proof of pecuniary loss cannot be adduced although the court is convinced that the
aggrieved party suffered some pecuniary loss."[19] Since it was undisputed that Reynaldo was
hospitalized due to the gunshot wounds inflicted by petitioner, albeit as observed by the RTC
there was no evidence offered as to the expenses he incurred by reason thereof, Reynaldo is
entitled to temperate damages in the amount of P25,000.00. Aside from this, he is also entitled to
moral damages of P25,000.00. These awards of damages are in accordance with settled
jurisprudence.[20] An interest at the legal rate of 6% per annum must also be imposed on the
awarded damages to commence from the date of finality of this Resolution until fully paid.[21]

WHEREFORE, the Petition is DENIED. The Decision dated February 27, 2009 of the Court of
Appeals in CA-G.R. CR No. 31084 affirming in its entirety the March 12, 2007 Decision of the
Regional Trial Court of Malolos, Bulacan, Branch 84 in Criminal Case No. 3486-M-2002
convicting petitioner Rogelio Roque of the crime of frustrated homicide, is AFFIRMED with the
MODIFICATION that the petitioner is ordered to pay the victim Reynaldo Marquez moral
damages and temperate damages in the amount of P25,000,00 each, with interest at the legal
rate of 6% per annum from the date of finality of this Resolution until fully paid.


G.R. No. 178512 November 26, 2014

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, 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.
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.
The RTC convicted the petitioner, decreeing thusly:
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
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
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
The CA denied the petitioner’s motion for reconsideration on May 2, 2007.
Was the petitioner properly found guilty beyond reasonable doubt of frustrated homicide?
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. 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. 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, 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.
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. 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" 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, 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." 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, 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
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.
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.
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 proximate result of the defendant's wrongful act for
omission." Indeed, Article 2219, (1), of the Civil Code expressly recognizes the right of the
victim in crimes resulting in physical injuries. Towards that end, the Court, upon its appreciation
of the records, decrees that ₱30,000.00 is a reasonable award of moral damages. In addition,

AAA was entitled to recover civil indemnity of ₱30,000.00. 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.


Petitioners, Present:

PANGANIBAN, C.J., Chairperson,

- versus - CALLEJO, SR., and

Respondent. January 25, 2006




This is a petition for review of the Decision of the Court of Appeals (CA) in CA-G.R.
CR No. 27215 affirming, with modification, the Decision of the Regional Trial Court (RTC) of
Cavite, Branch 90, in Criminal Case No. 6962-99, entitled People of the Philippines. v. Esmeraldo
Rivera, et al.

On April 12, 1999, an Information was filed in the RTC of Imus, Cavite, charging
Esmeraldo, Ismael and Edgardo, all surnamed Rivera, of attempted murder. The accusatory
portion of the Information reads:

That on or about the 3rd day of May 1998, in the Municipality of Dasmarias, Province
of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another, with intent to kill, with
treachery and evident premeditation, did then and there, wilfully, unlawfully, and feloniously
attack, assault and hit with a piece of hollow block, one RUBEN RODIL who thereby sustained a
non-mortal injury on his head and on the different parts of his body, the accused thus
commenced the commission of the felony directly by overt acts, but failed to perform all the acts
of execution which would produce the crime of Murder by reason of some causes other than their
own spontaneous desistance, that is, the said Ruben Rodil was able to ran (sic) away and the
timely response of the policemen, to his damage and prejudice.

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

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

At about 7:30 p.m. the next day, a Sunday, Ruben went to the store to buy food and to
look for his wife. His three-year-old daughter was with him. Momentarily, Esmeraldo and his two
brothers, Ismael and Edgardo, emerged from their house and ganged up on Ruben. Esmeraldo
and Ismael mauled Ruben with fist blows and he fell to the ground. In that helpless position,
Edgardo hit Ruben three times with a hollow block on the parietal area. Esmeraldo and Ismael

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

Ruben was brought to the hospital. His attending physician, Dr. Lamberto Cagingin,
Jr., signed a medical certificate in which he declared that Ruben sustained lacerated wounds on
the parietal area, cerebral concussion or contusion, hematoma on the left upper buttocks, multiple
abrasions on the left shoulder and hematoma periorbital left. The doctor declared that the
lacerated wound in the parietal area was slight and superficial and would heal from one to seven
days. The doctor prescribed medicine for Rubens back pain, which he had to take for one

Esmeraldo testified that at around 1:00 p.m. on May 3, 1998, Ruben arrived at his
house and banged the gate. Ruben challenged him and his brothers to come out and fight. When
he went out of the house and talked to Ruben, the latter punched him. They wrestled with each
other. He fell to the ground. Edgardo arrived and pushed Ruben aside. His wife arrived, and he
was pulled away and brought to their house.

For his part, Ismael testified that he tried to pacify Ruben and his brother Esmeraldo,
but Ruben grabbed him by the hair. He managed to free himself from Ruben and the latter fled.
He went home afterwards. He did not see his brother Edgardo at the scene.

Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was throwing garbage in
front of their house. Ruben arrived and he went inside the house to avoid a confrontation. Ruben
banged the gate and ordered him to get out of their house and even threatened to shoot him. His
brother Esmeraldo went out of their house and asked Ruben what the problem was. A fist fight
ensued. Edgardo rushed out of the house and pushed Ruben aside. Ruben fell to the ground.
When he stood up, he pulled at Edgardos shirt and hair, and, in the process, Rubens head hit the
lamp post.

On August 30, 2002, the trial court rendered judgment finding all the accused guilty beyond
reasonable doubt of frustrated murder. The dispositive portion of the decision reads:

WHEREFORE, premises considered, all the accused are found GUILTY beyond reasonable
doubt and are sentenced to an imprisonment of six (6) years and one (1) day to eight (8) years of
prision mayor as the prosecution has proved beyond reasonable doubt the culpability of the
accused. Likewise, the accused are to pay, jointly and severally, civil indemnity to the private
complainant in the amount of P30,000.00.

The trial court gave no credence to the collective testimonies of the accused and their witnesses.
The accused appealed to the CA, which rendered judgment on June 8, 2004 affirming, with
modification, the appealed decision. The dispositive portion of the CA decision reads:

WHEREFORE, the Decision of the Regional Trial Court of Imus, Cavite, Branch 90, is MODIFIED
in that the appellants are convicted of ATTEMPTED MURDER and sentenced to an
indeterminate penalty of 2 years of prision correccional as minimum to 6 years and 1 day of
prision mayor as maximum. In all other respects, the decision appealed from is AFFIRMED.

The accused, now petitioners, filed the instant petition for review on certiorari, alleging that the
CA erred in affirming the RTC decision. They insist that the prosecution failed to prove that they
had the intention to kill Ruben when they mauled and hit him with a hollow block. Petitioners aver
that, based on the testimony of Dr. Cagingin, Ruben sustained only a superficial wound in the
parietal area; hence, they should be held criminally liable for physical injuries only. Even if
petitioners had the intent to kill Ruben, the prosecution failed to prove treachery; hence, they
should be held guilty only of attempted homicide.

On the other hand, the CA held that the prosecution was able to prove petitioners intent to kill

On the first assigned error, intent to kill may be deduced from the nature of the wound inflicted
and the kind of weapon used. Intent to kill was established by victim Ruben Rodil in his testimony
as follows:

Q: And while you were being boxed by Esmeraldo and Bong, what happened next?
A: When I was already lying [down] xxx, Dagol Rivera showed up with a piece of hollow block xxx
and hit me thrice on the head, Sir.

Q: And what about the two (2), what were they doing when you were hit with a hollow block by
A: I was already lying on the ground and they kept on boxing me while Dagol was hitting, Sir.

As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow block
directly hit his head, and had the police not promptly intervened so that the brothers scampered
away. When a wound is not sufficient to cause death, but intent to kill is evident, the crime is
attempted. Intent to kill was shown by the fact that the (3) brothers helped each other maul the
defenseless victim, and even after he had already fallen to the ground; that one of them even
picked up a cement hollow block and proceeded to hit the victim on the head with it three times;
and that it was only the arrival of the policemen that made the appellants desist from their
concerted act of trying to kill Ruben Rodil.

The Office of the Solicitor General (OSG), for its part, asserts that the decision of the CA is
correct, thus:

The evidence and testimonies of the prosecution witnesses defeat the presumption of innocence
raised by petitioners. The crime has been clearly established with petitioners as the perpetrators.
Their intent to kill is very evident and was established beyond reasonable doubt.

Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly and categorically declared
that the victim Ruben Rodil was walking along St. Peter Avenue when he was suddenly boxed by
Esmeraldo Baby Rivera. They further narrated that, soon thereafter, his two brothers Ismael and
Edgardo Dagul Rivera, coming from St. Peter
II, ganged up on the victim. Both Alicia Vera Cruz and Lucita Villejo recounted that they saw
Edgardo Dagul Rivera pick up a hollow block and hit Ruben Rodil with it three (3) times. A careful
review of their testimonies revealed the suddenness and unexpectedness of the attack of
petitioners. In this case, the victim did not even have the slightest warning of the danger that lay
ahead as he was carrying his three-year old daughter. He was caught off-guard by the assault of
Esmeraldo Baby Rivera and the simultaneous attack of the two other petitioners. It was also
established that the victim was hit by Edgardo Dagul Rivera, while he was lying on the ground
and being mauled by the other petitioners. Petitioners could have killed the victim had he not
managed to escape and had the police not promptly intervened.

Petitioners also draw attention to the fact that the injury sustained by the victim was superficial
and, thus, not life threatening. The nature of the injury does not negate the intent to kill. The Court
of Appeals held:

As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow block
directly hit his head, and had the police not promptly intervened so that the brothers scampered
away. When a wound is not sufficient to cause death, but intent to kill is evident, the crime is
attempted. Intent to kill was shown by the fact that the three (3) brothers helped each other maul
the defenseless victim, and even after he had already fallen to the ground; that one of them
picked up a cement hollow block and proceeded to hit the victim on the head with it three times;
and that it was only the arrival of the policemen that made the appellants desist from their
concerted act of trying to kill Ruben Rodil.

The petition is denied for lack of merit.

An essential element of murder and homicide, whether in their consummated, frustrated or

attempted stage, is intent of the offenders to kill the victim immediately before or simultaneously
with the infliction of injuries. Intent to kill is a specific intent which the prosecution must prove by
direct or circumstantial evidence, while general criminal intent is presumed from the commission
of a felony by dolo.
In People v. Delim, the Court declared that evidence to prove intent to kill in crimes
against persons may consist, inter alia, in the means used by the malefactors, the nature, location
and number of wounds sustained by the victim, the conduct of the malefactors before, at the
time, or immediately after the killing of the victim, the circumstances under which the crime was
committed and the motives of the accused. If the victim dies as a result of a deliberate act of the
malefactors, intent to kill is presumed.

In the present case, the prosecution mustered the requisite quantum of evidence to prove the
intent of petitioners to kill Ruben. Esmeraldo and Ismael pummeled the victim with fist blows.
Even as Ruben fell to the ground, unable to defend himself against the sudden and sustained
assault of petitioners, Edgardo hit him three times with a hollow block. Edgardo tried to hit Ruben
on the head, missed, but still managed to hit the victim only in the parietal area, resulting in a
lacerated wound and cerebral contusions.

That the head wounds sustained by the victim were merely superficial and could not have
produced his death does not negate petitioners criminal liability for attempted murder. Even if
Edgardo did not hit the victim squarely on the head, petitioners are still criminally liable for
attempted murder.

The last paragraph of Article 6 of the Revised Penal Code defines an attempt to commit a felony,

There is an attempt when the offender commences the commission of a felony directly by overt
acts, and does not perform all the acts of execution which should produce the felony by reason of

some cause or accident other than his own spontaneous desistance.

The essential elements of an attempted felony are as follows:

1. The offender commences the commission of the felony directly by overt acts;

2. He does not perform all the acts of execution which should produce the felony;

3. The offenders act be not stopped by his own spontaneous desistance;

4. The non-performance of all acts of execution was due to cause or accident other than his
spontaneous desistance.

The first requisite of an attempted felony consists of two elements, namely:

(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended to be committed.
The Court in People v. Lizada elaborated on the concept of an overt or external act, thus:

An overt or external act is defined as some physical activity or deed, indicating the intention to
commit a particular crime, more than a mere planning or preparation, which if carried out to its
complete termination following its natural course, without being frustrated by external obstacles
nor by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a
concrete offense. The raison detre for the law requiring a direct overt act is that, in a majority of
cases, the conduct of the accused consisting merely of acts of preparation has never ceased to
be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of
being equivocal that must be lacking before the act becomes one which may be said to be a
commencement of the commission of the crime, or an overt act or before any fragment of the
crime itself has been committed, and this is so for the reason that so long as the equivocal quality
remains, no one can say with certainty what the intent of the accused is. It is necessary that the
overt act should have been the ultimate step towards the consummation of the design. It is
sufficient if it was the first or some subsequent step in a direct movement towards the commission
of the offense after the preparations are made. The act done need not constitute the last
proximate one for completion. It is necessary, however, that the attempt must have a causal
relation to the intended crime. In the words of Viada, the overt acts must have an immediate and
necessary relation to the offense.

In the case at bar, petitioners, who acted in concert, commenced the felony of murder by mauling
the victim and hitting him three times with a hollow block; they narrowly missed hitting the middle
portion of his head. If Edgardo had done so, Ruben would surely have died.

We reject petitioners contention that the prosecution failed to prove treachery in the commission
of the felony. Petitioners attacked the victim in a sudden and unexpected manner as Ruben was
walking with his three-year-old daughter, impervious of the imminent peril to his life. He had no
chance to defend himself and retaliate. He was overwhelmed by the synchronized assault of the
three siblings. The essence of treachery is the sudden and unexpected attack on the victim.
Even if the attack is frontal but is sudden and unexpected, giving no opportunity for the victim to
repel it or defend himself, there would be treachery. Obviously, petitioners assaulted the victim
because of the altercation between him and petitioner Edgardo Rivera a day before. There being
conspiracy by and among petitioners, treachery is considered against all of them.

The appellate court sentenced petitioners to suffer an indeterminate penalty of two (2) years of
prision correccional in its minimum period, as minimum, to six years and one day of prision mayor
in its maximum period, as maximum. This is erroneous. Under Article 248 of the Revised Penal
Code, as amended by Republic Act No. 7659, the penalty for murder is reclusion perpetua to
death. Since petitioners are guilty only of attempted murder, the penalty should be reduced by
two degrees, conformably to Article 51 of the Revised Penal Code. Under paragraph 2 of Article
61, in relation to Article 71 of the Revised Penal Code, such a penalty is prision mayor. In the
absence of any modifying circumstance in the commission of the felony (other than the qualifying
circumstance of treachery), the maximum of the indeterminate penalty shall be taken from the
medium period of prision mayor which has a range of from eight (8) years and one (1) day to ten
(10) years. To determine the minimum of the indeterminate penalty, the penalty of prision mayor
should be reduced by one degree, prision correccional, which has a range of six (6) months and
one (1) day to six (6) years.

Hence, petitioners should be sentenced to suffer an indeterminate penalty of from two (2) years
of prision correccional in its minimum period, as minimum, to nine (9) years and four (4) months
of prision mayor in its medium period, as maximum.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The Decision of
the Court of Appeals is AFFIRMED WITH THE MODIFICATION that petitioners are sentenced to

suffer an indeterminate penalty of from two (2) years of prision correccional in its minimum period,
as minimum, to nine (9) years and four (4) months of prision mayor in its medium period, as
maximum. No costs.


THE UNITED STATES, plaintiff-appellee,

AH CHONG, defendant-appellant.
Gibb & Gale, for appellant. Attorney-General Villamor, for appellee.
The evidence as to many of the essential and vital facts in this case is limited to the testimony of
the accused himself, because from the very nature of these facts and from the circumstances
surrounding the incident upon which these proceedings rest, no other evidence as to these facts
was available either to the prosecution or to the defense. We think, however, that, giving the
accused the benefit of the doubt as to the weight of the evidence touching those details of the
incident as to which there can be said to be any doubt, the following statement of the material
facts disclose by the record may be taken to be substantially correct:
The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc
Kinley, Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a
house boy or muchacho. "Officers' quarters No. 27" as a detached house situates some 40
meters from the nearest building, and in August, 19087, was occupied solely as an officers' mess
or club. No one slept in the house except the two servants, who jointly occupied a small room
toward the rear of the building, the door of which opened upon a narrow porch running along the
side of the building, by which communication was had with the other part of the house. This porch
was covered by a heavy growth of vines for its entire length and height. The door of the room was
not furnished with a permanent bolt or lock, and occupants, as a measure of security, had
attached a small hook or catch on the inside of the door, and were in the habit of reinforcing this
somewhat insecure means of fastening the door by placing against it a chair. In the room there
was but one small window, which, like the door, opened on the porch. Aside from the door and
window, there were no other openings of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the
night, was suddenly awakened by some trying to force open the door of the room. He sat up in
bed and called out twice, "Who is there?" He heard no answer and was convinced by the noise at
the door that it was being pushed open by someone bent upon forcing his way into the room. Due
to the heavy growth of vines along the front of the porch, the room was very dark, and the
defendant, fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If
you enter the room, I will kill you." At that moment he was struck just above the knee by the edge
of the chair which had been placed against the door. In the darkness and confusion the defendant
thought that the blow had been inflicted by the person who had forced the door open, whom he
supposed to be a burglar, though in the light of after events, it is probable that the chair was
merely thrown back into the room by the sudden opening of the door against which it rested.
Seizing a common kitchen knife which he kept under his pillow, the defendant struck out wildly at
the intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran out upon the
porch and fell down on the steps in a desperately wounded condition, followed by the defendant,
who immediately recognized him in the moonlight. Seeing that Pascual was wounded, he called
to his employers who slept in the next house, No. 28, and ran back to his room to secure
bandages to bind up Pascual's wounds.
There had been several robberies in Fort McKinley not long prior to the date of the incident just
described, one of which took place in a house in which the defendant was employed as cook; and
as defendant alleges, it was because of these repeated robberies he kept a knife under his pillow
for his personal protection.
The deceased and the accused, who roomed together and who appear to have on friendly and
amicable terms prior to the fatal incident, had an understanding that when either returned at night,
he should knock at the door and acquiant his companion with his identity. Pascual had left the
house early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano
Ibañez, servants employed at officers' quarters No. 28, the nearest house to the mess hall. The
three returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their
room at No. 28, Pascual going on to his room at No. 27. A few moments after the party
separated, Celestino and Mariano heard cries for assistance and upon returning to No. 27 found
Pascual sitting on the back steps fatally wounded in the stomach, whereupon one of them ran
back to No. 28 and called Liuetenants Jacobs and Healy, who immediately went to the aid of the
wounded man.
The defendant then and there admitted that he had stabbed his roommate, but said that he did it
under the impression that Pascual was "a ladron" because he forced open the door of their
sleeping room, despite defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself,
unless it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and
sought to frightened him by forcing his way into the room, refusing to give his name or say who
he was, in order to make Ah Chong believe that he was being attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital,
where he died from the effects of the wound on the following day.
The defendant was charged with the crime of assassination, tried, and found guilty by the trial
court of simple homicide, with extenuating circumstances, and sentenced to six years and one

day presidio mayor, the minimum penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed his roommate, Pascual
Gualberto, but insisted that he struck the fatal blow without any intent to do a wrongful act, in the
exercise of his lawful right of self-defense.
Article 8 of the Penal Code provides that —
The following are not delinquent and are therefore exempt from criminal liability:
xxx xxx xxx
4 He who acts in defense of his person or rights, provided there are the following attendant
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent or repel it.
(3) Lack of sufficient provocation on the part of the person defending himself.
Under these provisions we think that there can be no doubt that defendant would be entitle to
complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder
who forced open the door of his room had been in fact a dangerous thief or "ladron," as the
defendant believed him to be. No one, under such circumstances, would doubt the right of the
defendant to resist and repel such an intrusion, and the thief having forced open the door
notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill the
intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in
a small room, with no means of escape, with the thief advancing upon him despite his warnings
defendant would have been wholly justified in using any available weapon to defend himself from
such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts
and deliver the first blow.
But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the
defendant nor his property nor any of the property under his charge was in real danger at the time
when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief
or "ladron" as defendant believed he was repelling and resisting, and that there was no real
"necessity" for the use of the knife to defend his person or his property or the property under his
The question then squarely presents it self, whether in this jurisdiction one can be held criminally
responsible who, by reason of a mistake as to the facts, does an act for which he would be
exempt from criminal liability if the facts were as he supposed them to be, but which would
constitute the crime of homicide or assassination if the actor had known the true state of the facts
at the time when he committed the act. To this question we think there can be but one answer,
and we hold that under such circumstances there is no criminal liability, provided always that the
alleged ignorance or mistake or fact was not due to negligence or bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to
negative a particular intent which under the law is a necessary ingredient of the offense charged
(e.g., in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of
intent," and works an acquittal; except in those cases where the circumstances demand a
conviction under the penal provisions touching criminal negligence; and in cases where, under
the provisions of article 1 of the Penal Code one voluntarily committing a crime or misdeamor
incurs criminal liability for any wrongful act committed by him, even though it be different from that
which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim.
Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met.,
596; Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7
Met., 500.)
The general proposition thus stated hardly admits of discussion, and the only question worthy of
consideration is whether malice or criminal intent is an essential element or ingredient of the
crimes of homicide and assassination as defined and penalized in the Penal Code. It has been
said that since the definitions there given of these as well as most other crimes and offense
therein defined, do not specifically and expressly declare that the acts constituting the crime or
offense must be committed with malice or with criminal intent in order that the actor may be held
criminally liable, the commission of the acts set out in the various definitions subjects the actor to
the penalties described therein, unless it appears that he is exempted from liability under one or
other of the express provisions of article 8 of the code, which treats of exemption. But while it is
true that contrary to the general rule of legislative enactment in the United States, the definitions
of crimes and offenses as set out in the Penal Code rarely contain provisions expressly declaring
that malice or criminal intent is an essential ingredient of the crime, nevertheless, the general
provisions of article 1 of the code clearly indicate that malice, or criminal intent in some form, is
an essential requisite of all crimes and offense therein defined, in the absence of express
provisions modifying the general rule, such as are those touching liability resulting from acts
negligently or imprudently committed, and acts done by one voluntarily committing a crime or
misdemeanor, where the act committed is different from that which he intended to commit. And it
is to be observed that even these exceptions are more apparent than real, for "There is little
distinction, except in degree, between a will to do a wrongful thing and indifference whether it is
done or not. Therefore carelessness is criminal, and within limits supplies the place of the
affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again, "There is so
little difference between a disposition to do a great harm and a disposition to do harm that one of
them may very well be looked upon as the measure of the other. Since, therefore, the guilt of a
crime consists in the disposition to do harm, which the criminal shows by committing it, and since
this disposition is greater or less in proportion to the harm which is done by the crime, the
consequence is that the guilt of the crime follows the same proportion; it is greater or less
according as the crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or,
as it has been otherwise stated, the thing done, having proceeded from a corrupt mid, is to be

viewed the same whether the corruption was of one particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions punished by law.
Acts and omissions punished by law are always presumed to be voluntarily unless the contrary
shall appear.
An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even
though the wrongful act committed be different from that which he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used
in this article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts
that without intention (intention to do wrong or criminal intention) there can be no crime; and that
the word "voluntary" implies and includes the words "con malicia," which were expressly set out in
the definition of the word "crime" in the code of 1822, but omitted from the code of 1870,
because, as Pacheco insists, their use in the former code was redundant, being implied and
included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime can only be said to
exempt from criminal responsibility when the act which was actually intended to be done was in
itself a lawful one, and in the absence of negligence or imprudence, nevertheless admits and
recognizes in his discussion of the provisions of this article of the code that in general without
intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the
exceptions insisted upon by Viada are more apparent than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared that where there is no intention
there is no crime . . . in order to affirm, without fear of mistake, that under our code there can be
no crime if there is no act, an act which must fall within the sphere of ethics if there is no moral
injury. (Vol. 2, the Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court of Spain, as, for example in its
sentence of May 31, 1882, in which it made use of the following language:
It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed
from the operation of the will and an intent to cause the injury which may be the object of the
And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may
be the civil effects of the inscription of his three sons, made by the appellant in the civil registry
and in the parochial church, there can be no crime because of the lack of the necessary element
or criminal intention, which characterizes every action or ommission punished by law; nor is he
guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it made use of the following
. . . Considering that the moral element of the crime, that is, intent or malice or their absence in
the commission of an act defined and punished by law as criminal, is not a necessary question of
fact submitted to the exclusive judgment and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice to be an essential element of
the various crimes and misdemeanors therein defined becomes clear also from an examination of
the provisions of article 568, which are as follows:
He who shall execute through reckless negligence an act that, if done with malice, would
constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum
degree, to prision correccional in its minimum degrees if it shall constitute a less grave crime.
He who in violation of the regulations shall commit a crime through simple imprudence or
negligence shall incur the penalty of arresto mayor in its medium and maximum degrees.
In the application of these penalties the courts shall proceed according to their discretion, without
being subject to the rules prescribed in article 81.
The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal
to or less than those contained in the first paragraph thereof, in which case the courts shall apply
the next one thereto in the degree which they may consider proper.
The word "malice" in this article is manifestly substantially equivalent to the words "criminal
intent," and the direct inference from its provisions is that the commission of the acts
contemplated therein, in the absence of malice (criminal intent), negligence, and imprudence,
does not impose any criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in
meaning the word "willful" as used in English and American statute to designate a form of criminal
intent. It has been said that while the word "willful" sometimes means little more than intentionally
or designedly, yet it is more frequently understood to extent a little further and approximate the
idea of the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse.
In one case it was said to mean, as employed in a statute in contemplation, "wantonly" or
"causelessly;" in another, "without reasonable grounds to believe the thing lawful." And Shaw, C.
J., once said that ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose;
in other words, corruptly." In English and the American statutes defining crimes "malice,"
"malicious," "maliciously," and "malice aforethought" are words indicating intent, more purely
technical than "willful" or willfully," but "the difference between them is not great;" the word
"malice" not often being understood to require general malevolence toward a particular individual,
and signifying rather the intent from our legal justification. (Bishop's New Criminal Law, vol. 1,
secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting out a condition in the definition of a
crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in
one of the various modes generally construed to imply a criminal intent, we think that reasoning
from general principles it will always be found that with the rare exceptions hereinafter mentioned,

to constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position
with numerous citations from the decided cases, thus forcely present this doctrine:
In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent.
In controversies between private parties the quo animo with which a thing was done is sometimes
important, not always; but crime proceeds only from a criminal mind. So that —
There can be no crime, large or small, without an evil mind. In other words, punishment is the
sentence of wickedness, without which it can not be. And neither in philosophical speculation nor
in religious or mortal sentiment would any people in any age allow that a man should be deemed
guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is of
every other, that the essence of an offense is the wrongful intent, without which it can not exists.
We find this doctrine confirmed by —
Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this
subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit
rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito factus
non est meus actus, "an act done by me against my will is not my act;" and others of the like sort.
In this, as just said, criminal jurisprudence differs from civil. So also —
Moral science and moral sentiment teach the same thing. "By reference to the intention, we
inculpate or exculpate others or ourselves without any respect to the happiness or misery actually
produced. Let the result of an action be what it may, we hold a man guilty simply on the ground of
intention; or, on the dame ground, we hold him innocent." The calm judgment of mankind keeps
this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice,
every guard around the innocent is cast down. But with the return of reason comes the public
voice that where the mind is pure, he who differs in act from his neighbors does not offend. And

In the spontaneous judgment which springs from the nature given by God to man, no one deems
another to deserve punishment for what he did from an upright mind, destitute of every form of
evil. And whenever a person is made to suffer a punishment which the community deems not his
due, so far from its placing an evil mark upon him, it elevates him to the seat of the martyr. Even
infancy itself spontaneously pleads the want of bad intent in justification of what has the
appearance of wrong, with the utmost confidence that the plea, if its truth is credited, will be
accepted as good. Now these facts are only the voice of nature uttering one of her immutable
truths. It is, then, the doctrine of the law, superior to all other doctrines, because first in nature
from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is
wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent departure from this doctrine
of abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non excusat
("Ignorance of the law excuses no man"), without which justice could not be administered in our
tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the
power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to
make their commission criminal without regard to the intent of the doer. Without discussing these
exceptional cases at length, it is sufficient here to say that the courts have always held that
unless the intention of the lawmaker to make the commission of certain acts criminal without
regard to the intent of the doer is clear and beyond question the statute will not be so construed
(cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law
excuses no man has been said not to be a real departure from the law's fundamental principle
that crime exists only where the mind is at fault, because "the evil purpose need not be to break
the law, and if suffices if it is simply to do the thing which the law in fact forbids." (Bishop's New
Criminal Law, sec. 300, and cases cited.)
But, however this may be, there is no technical rule, and no pressing necessity therefore,
requiring mistake in fact to be dealt with otherwise that in strict accord with the principles of
abstract justice. On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or
mistake in point of fact is, in all cases of supposed offense, a sufficient excuse"). (Brown's Leg.
Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every crime, any such mistake of fact as
shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves
the actor from criminal liability provided always there is no fault or negligence on his part; and as
laid down by Baron Parke, "The guilt of the accused must depend on the circumstances as they
appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54
Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C.
C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the
question as to whether he honestly, in good faith, and without fault or negligence fell into the
mistake is to be determined by the circumstances as they appeared to him at the time when the
mistake was made, and the effect which the surrounding circumstances might reasonably be
expected to have on his mind, in forming the intent, criminal or other wise, upon which he acted.
If, in language not uncommon in the cases, one has reasonable cause to believe the existence of
facts which will justify a killing — or, in terms more nicely in accord with the principles on which
the rule is founded, if without fault or carelessness he does believe them — he is legally guiltless
of the homicide; though he mistook the facts, and so the life of an innocent person is
unfortunately extinguished. In other words, and with reference to the right of self-defense and the
not quite harmonious authorities, it is the doctrine of reason and sufficiently sustained in
adjudication, that notwithstanding some decisions apparently adverse, whenever a man
undertakes self-defense, he is justified in acting on the facts as they appear to him. If, without
fault or carelessness, he is misled concerning them, and defends himself correctly according to
what he thus supposes the facts to be the law will not punish him though they are in truth
otherwise, and he was really no occassion for the extreme measures. (Bishop's New Criminal

Law, sec. 305, and large array of cases there cited.)
The common illustration in the American and English textbooks of the application of this rule is
the case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds
up" his friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is
killed by his friend under the mistaken belief that the attack is a real one, that the pistol leveled at
his head is loaded, and that his life and property are in imminent danger at the hands of the
aggressor. No one will doubt that if the facts were such as the slayer believed them to be he
would be innocent of the commission of any crime and wholly exempt from criminal liability,
although if he knew the real state of the facts when he took the life of his friend he would
undoubtedly be guilty of the crime of homicide or assassination. Under such circumstances, proof
of his innocent mistake of the facts overcomes the presumption of malice or criminal intent, and
(since malice or criminal intent is a necessary ingredient of the "act punished by law" in cases of
homicide or assassination) overcomes at the same time the presumption established in article 1
of the code, that the "act punished by law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the person slain had a felonious
design against him, and under that supposition killed him, although it should afterwards appear
that there was no such design, it will not be murder, but it will be either manslaughter or
excusable homicide, according to the degree of caution used and the probable grounds of such
belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the
case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched
arms and a pistol in his hand, and using violent menaces against his life as he advances. Having
approached near enough in the same attitude, A, who has a club in his hand, strikes B over the
head before or at the instant the pistol is discharged; and of the wound B dies. It turns out the
pistol was loaded with powder only, and that the real design of B was only to terrify A. Will any
reasonable man say that A is more criminal that he would have been if there had been a bullet in
the pistol? Those who hold such doctrine must require that a man so attacked must, before he
strikes the assailant, stop and ascertain how the pistol is loaded — a doctrine which would
entirely take away the essential right of self-defense. And when it is considered that the jury who
try the cause, and not the party killing, are to judge of the reasonable grounds of his
apprehension, no danger can be supposed to flow from this principle. (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of
which are here set out in full because the facts are somewhat analogous to those in the case at
QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company
only of his wife, without other light than reflected from the fire, and that the man with his back to
the door was attending to the fire, there suddenly entered a person whom he did not see or know,
who struck him one or two blows, producing a contusion on the shoulder, because of which he
turned, seized the person and took from his the stick with which he had undoubtedly been struck,
and gave the unknown person a blow, knocking him to the floor, and afterwards striking him
another blow on the head, leaving the unknown lying on the floor, and left the house. It turned out
the unknown person was his father-in-law, to whom he rendered assistance as soon as he
learned his identity, and who died in about six days in consequence of cerebral congestion
resulting from the blow. The accused, who confessed the facts, had always sustained pleasant
relations with his father-in-law, whom he visited during his sickness, demonstrating great grief
over the occurrence. Shall he be considered free from criminal responsibility, as having acted in
self-defense, with all the circumstances related in paragraph 4, article 8, of the Penal Code? The
criminal branch of the Audiencia of Valladolid found that he was an illegal aggressor, without
sufficient provocation, and that there did not exists rational necessity for the employment of the
force used, and in accordance with articles 419 and 87 of the Penal Code condemned him to
twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the accused,
he was acquitted by the supreme court, under the following sentence: "Considering, from the
facts found by the sentence to have been proven, that the accused was surprised from behind, at
night, in his house beside his wife who was nursing her child, was attacked, struck, and beaten,
without being able to distinguish with which they might have executed their criminal intent,
because of the there was no other than fire light in the room, and considering that in such a
situation and when the acts executed demonstrated that they might endanger his existence, and
possibly that of his wife and child, more especially because his assailant was unknown, he should
have defended himself, and in doing so with the same stick with which he was attacked, he did
not exceed the limits of self-defense, nor did he use means which were not rationally necessary,
particularly because the instrument with which he killed was the one which he took from his
assailant, and was capable of producing death, and in the darkness of the house and the
consteration which naturally resulted from such strong aggression, it was not given him to known
or distinguish whether there was one or more assailants, nor the arms which they might bear, not
that which they might accomplish, and considering that the lower court did not find from the
accepted facts that there existed rational necessity for the means employed, and that it did not
apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme court of
Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of
the city, upon arriving at a point where there was no light, heard the voice of a man, at a distance
of some 8 paces, saying: "Face down, hand over you money!" because of which, and almost at
the same money, he fired two shots from his pistol, distinguishing immediately the voice of one of
his friends (who had before simulated a different voice) saying, "Oh! they have killed me," and

hastening to his assistance, finding the body lying upon the ground, he cried, "Miguel, Miguel,
speak, for God's sake, or I am ruined," realizing that he had been the victim of a joke, and not
receiving a reply, and observing that his friend was a corpse, he retired from the place. Shall he
be declared exempt in toto from responsibility as the author of this homicide, as having acted in
just self-defense under the circumstances defined in paragraph 4, article 8, Penal Code? The
criminal branch of the Audiencia of Malaga did not so find, but only found in favor of the accused
two of the requisites of said article, but not that of the reasonableness of the means employed to
repel the attack, and, therefore, condemned the accused to eight years and one day of prison
mayor, etc. The supreme court acquitted the accused on his appeal from this sentence, holding
that the accused was acting under a justifiable and excusable mistake of fact as to the identity of
the person calling to him, and that under the circumstances, the darkness and remoteness, etc.,
the means employed were rational and the shooting justifiable. (Sentence supreme court, March
17, 1885.) (Viada, Vol. I, p. 136.)
QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large
stone thrown against his window — at this, he puts his head out of the window and inquires what
is wanted, and is answered "the delivery of all of his money, otherwise his house would be
burned" — because of which, and observing in an alley adjacent to the mill four individuals, one
of whom addressed him with blasphemy, he fired his pistol at one the men, who, on the next
morning was found dead on the same spot. Shall this man be declared exempt from criminal
responsibility as having acted in just self-defense with all of the requisites of law? The criminal
branch of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds that there
existed in favor of the accused a majority of the requisites to exempt him from criminal
responsibility, but not that of reasonable necessity for the means, employed, and condemned the
accused to twelve months of prision correctional for the homicide committed. Upon appeal, the
supreme court acquitted the condemned, finding that the accused, in firing at the malefactors,
who attack his mill at night in a remote spot by threatening robbery and incendiarism, was acting
in just self-defense of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p.
A careful examination of the facts as disclosed in the case at bar convinces us that the defendant
Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who
forced open the door of his sleeping room was a thief, from whose assault he was in imminent
peril, both of his life and of his property and of the property committed to his charge; that in view
of all the circumstances, as they must have presented themselves to the defendant at the time,
he acted in good faith, without malice, or criminal intent, in the belief that he was doing no more
than exercising his legitimate right of self-defense; that had the facts been as he believed them to
be he would have been wholly exempt from criminal liability on account of his act; and that he can
not be said to have been guilty of negligence or recklessness or even carelessness in falling into
his mistake as to the facts, or in the means adopted by him to defend himself from the imminent
danger which he believe threatened his person and his property and the property under his
The judgment of conviction and the sentence imposed by the trial court should be reversed, and
the defendant acquitted of the crime with which he is charged and his bail bond exonerated, with
the costs of both instance de oficio. So ordered.

Yapyuco case

JOHN ERIC LONEY, G.R. No. 152644

Petitioners, Present:

QUISUMBING, J., Chairperson,

- versus - CARPIO MORALES, and


Respondent. February 10, 2006




The Case

[if !supportFootnotes][1][endif] [if !supportFootnotes][2][endif]

This is a petition for review of the Decision dated 5
November 2001 and the Resolution dated 14 March 2002 of the Court of Appeals. The 5
November 2001 Decision affirmed the ruling of the Regional Trial Court, Boac, Marinduque,
Branch 94, in a suit to quash Informations filed against petitioners John Eric Loney, Steven Paul

Reid, and Pedro B. Hernandez (petitioners). The 14 March 2002 Resolution denied petitioners
motion for reconsideration.

The Facts

Petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez are the President and
Chief Executive Officer, Senior Manager, and Resident Manager for Mining Operations,
respectively, of Marcopper Mining Corporation (Marcopper), a corporation engaged in mining in
the province of Marinduque.
[if !supportFootnotes][3][endif]
Marcopper had been storing tailings from its operations in a pit in Mt. Tapian,
Marinduque. At the base of the pit ran a drainage tunnel leading to the Boac and Makalupnit
rivers. It appears that Marcopper had placed a concrete plug at the tunnels end. On 24 March
1994, tailings gushed out of or near the tunnels end. In a few days, the Mt. Tapian pit had
discharged millions of tons of tailings into the Boac and Makalupnit rivers.

In August 1996, the Department of Justice separately charged petitioners in the Municipal Trial
[if !supportFootnotes][4][endif]
Court of Boac, Marinduque (MTC) with violation of Article 91(B), sub-
paragraphs 5 and 6 of Presidential Decree No. 1067 or the Water Code of the Philippines (PD
[if !supportFootnotes][5][endif] [if !supportFootnotes][6][endif]
1067), Section 8 of Presidential Decree No. 984 or the
[if !supportFootnotes][7][endif] [if
National Pollution Control Decree of 1976 (PD 984), Section 108
!supportFootnotes][8][endif] [if
of Republic Act No. 7942 or the Philippine Mining Act of 1995 (RA 7942),
!supportFootnotes][9][endif] [if !supportFootnotes][10][endif]
and Article 365 of the Revised Penal Code (RPC) for
[if !supportFootnotes][11][endif]
Reckless Imprudence Resulting in Damage to Property.
Petitioners moved to quash the Informations on the following grounds: (1) the Informations were
duplicitous as the Department of Justice charged more than one offense for a single act; (2)
petitioners John Eric Loney and Steven Paul Reid were not yet officers of Marcopper when the
incident subject of the Informations took place; and (3) the Informations contain allegations which
constitute legal excuse or justification.

The Ruling of the MTC

[if !supportFootnotes][12][endif]
In its Joint Order of 16 January 1997 (Joint Order), the MTC initially deferred
ruling on petitioners motion for lack of indubitable ground for the quashing of the [I]nformations x
x x. The MTC scheduled petitioners arraignment in February 1997. However, on petitioners
motion, the MTC issued a Consolidated Order on 28 April 1997 (Consolidated Order), granting
partial reconsideration to its Joint Order and quashing the Informations for violation of PD 1067
and PD 984. The MTC maintained the Informations for violation of RA 7942 and Article 365 of the
RPC. The MTC held:

[T]he 12 Informations have common allegations of pollutants pointing to mine tailings

which were precipitately discharged into the Makulapnit and Boac Rivers
due to breach caused on the Tapian drainage/tunnel due to negligence or
failure to institute adequate measures to prevent pollution and siltation of
the Makulapnit and Boac River systems, the very term and condition
required to be undertaken under the Environmental Compliance Certificate
issued on April 1, 1990.

The allegations in the informations point to same set [sic] of evidence required to
prove the single fact of pollution constituting violation of the Water Code
and the Pollution Law which are the same set of evidence necessary to
prove the same single fact of pollution, in proving the elements constituting
violation of the conditions of ECC, issued pursuant to the Philippine Mining
Act. In both instances, the terms and conditions of the Environmental
Compliance Certificate were allegedly violated. In other words, the same
set of evidence is required in proving violations of the three (3) special laws.

After carefully analyzing and weighing the contending arguments of the parties and
after taking into consideration the applicable laws and jurisprudence, the
Court is convinced that as far as the three (3) aforesaid laws are
concerned, only the Information for [v]iolation of Philippine Mining Act

should be maintained. In other words, the Informations for [v]iolation of Anti-
Pollution Law (PD 984) and the Water Code (PD 1067) should be
dismissed/quashed because the elements constituting the aforesaid
violations are absorbed by the same elements which constitute violation of
the Philippine Mining Act (RA 7942).

Therefore, x x x Criminal Case[] Nos. 96-44, 96-45 and 96-46 for [v]iolation of the
Water Code; and Criminal Case[] Nos. 96-47, 96-48 and 96-49 for
[v]iolation of the Anti-Pollution Law x x x are hereby DISMISSED or
QUASHED and Criminal Case[] Nos. 96-50, 96-51 and 96-52 for [v]iolation
of the Philippine Mining Act are hereby retained to be tried on the merits.

The Information for [v]iolation of Article 365 of the Revised Penal Code should also be
maintained and heard in a full blown trial because the common accusation
therein is reckless imprudence resulting to [sic] damage to property. It is
the damage to property which the law punishes not the negligent act of
polluting the water system. The prosecution for the [v]iolation of Philippine
Mining Act is not a bar to the prosecution for reckless imprudence resulting
[if !supportFootnotes][13][endif]
to [sic] damage to property.

The MTC re-scheduled petitioners arraignment on the remaining charges on 28 and 29 May
1997. In the hearing of 28 May 1997, petitioners manifested that they were willing to be arraigned
on the charge for violation of Article 365 of the RPC but not on the charge for violation of RA 7942
as they intended to appeal the Consolidated Order in so far as it maintained the Informations for
that offense. After making of record petitioners manifestation, the MTC proceeded with the
arraignment and ordered the entry of not guilty pleas on the charges for violation of RA 7942 and
Article 365 of the RPC.

Petitioners subsequently filed a petition for certiorari with the Regional Trial Court, Boac,
Marinduque, assailing that portion of the Consolidated Order maintaining the Informations for
violation of RA 7942. Petitioners petition was raffled to Branch 94. For its part, public respondent
filed an ordinary appeal with the same court assailing that portion of the Consolidated Order
quashing the Informations for violation of PD 1067 and PD 984. Public respondents appeal was
raffled to Branch 38. On public respondents motion, Branch 38 ordered public respondents
appeal consolidated with petitioners petition in Branch 94.

The Ruling of Branch 94

[if !supportFootnotes][14][endif]
In its Resolution of 20 March 1998, Branch 94 granted public respondents
appeal but denied petitioners petition. Branch 94 set aside the Consolidated Order in so far as it
quashed the Informations for violation of PD 1067 and PD 984 and ordered those charges
reinstated. Branch 94 affirmed the Consolidated Order in all other respects. Branch 94 held:

After a careful perusal of the laws concerned, this court is of the opinion
that there can be no absorption by one offense of the three other offenses,
as [the] acts penalized by these laws are separate and distinct from each
other. The elements of proving each violation are not the same with each
other. Concededly, the single act of dumping mine tailings which resulted in
the pollution of the Makulapnit and Boac rivers was the basis for the
information[s] filed against the accused each charging a distinct offense.
But it is also a well-established rule in this jurisdiction that

A single act may offend against two or more entirely distinct and unrelated
provisions of law, and if one provision requires proof of
an additional fact or element which the other does not,

an acquittal or conviction or a dismissal of the
information under one does not bar prosecution under
the other. x x x.


[T]he different laws involve cannot absorb one another as the elements of each crime
are different from one another. Each of these laws require [sic] proof of an
additional fact or element which the other does not although they stemmed
[if !supportFootnotes][15][endif]
from a single act.

Petitioners filed a petition for certiorari with the Court of Appeals alleging that Branch 94 acted
with grave abuse of discretion because (1) the Informations for violation of PD 1067, PD 984, RA
7942 and the Article 365 of the RPC proceed from and are based on a single act or incident of
polluting the Boac and Makalupnit rivers thru dumping of mine tailings and (2) the duplicitous
[if !supportFootnotes][16][endif]
nature of the Informations contravenes the ruling in People v. Relova.
Petitioners further contended that since the acts complained of in the charges for violation of PD
1067, PD 984, and RA 7942 are the very same acts complained of in the charge for violation of
Article 365 of the RPC, the latter absorbs the former. Hence, petitioners should only be
[if !supportFootnotes][17][endif]
prosecuted for violation of Article 365 of the RPC.

The Ruling of the Court of Appeals

In its Decision of 5 November 2001, the Court of Appeals affirmed Branch 94s ruling. The
appellate court held:

The records of the case disclose that petitioners filed a motion to quash the
aforementioned Informations for being duplicitous in nature. Section 3 of
Rule 117 of the Revised Rules of Court specifically provides the grounds
upon which an information may be quashed. x x x


[D]uplicity of Informations is not among those included in x x x [Section 3, Rule 117].


We now go to petitioners claim that the resolution of the public

respondent contravened the doctrine laid down in People vs. Relova for
being violative of their right against multiple prosecutions.

In the said case, the Supreme Court found the Peoples argument with respect to the
variances in the mens rea of the two offenses being charged to be correct.
The Court, however, decided the case in the context of the second
sentence of Article IV (22) of the 1973 Constitution (now under Section 21
of Article III of the 1987 Constitution), rather than the first sentence of the
same section. x x x


[T]he doctrine laid down in the Relova case does not squarely apply to the case at
Bench since the Informations filed against the petitioners are for violation of
four separate and distinct laws which are national in character.


This Court firmly agrees in the public respondents understanding

that the laws by which the petitioners have been [charged] could not
possibly absorb one another as the elements of each crime are different.
Each of these laws require [sic] proof of an additional fact or element which
the other does not, although they stemmed from a single act. x x x


[T]his Court finds that there is not even the slightest indicia of evidence that would give
rise to any suspicion that public respondent acted with grave abuse of
discretion amounting to excess or lack of jurisdiction in reversing the
Municipal Trial Courts quashal of the Informations against the petitioners for
violation of P.D. 1067 and P.D. 984. This Court equally finds no error in the
trial courts denial of the petitioners motion to quash R.A. 7942 and Article

[if !supportFootnotes][18][endif]
365 of the Revised Penal Code.

Petitioners sought reconsideration but the Court of Appeals denied their motion in its Resolution
of 14 March 2002.

Petitioners raise the following alleged errors of the Court of Appeals:






148 SCRA 292 [1986] THAT AN ACCUSED

[if !supportFootnotes][19][endif]

The Issues

The petition raises these issues:

[if !supportLists](1) [endif]Whether all the charges filed against petitioners except one should be
quashed for duplicity of charges and only the charge for Reckless Imprudence Resulting in
Damage to Property should stand; and
[if !supportLists](2) [endif]Whether Branch 94s ruling, as affirmed by the Court of Appeals,
contravenes People v. Relova.

The Ruling of the Court

The petition has no merit.

No Duplicity of Charges in the Present Case

Duplicity of charges simply means a single complaint or information charges more than one
[if !supportFootnotes][20][endif]
offense, as Section 13 of Rule 110 of the 1985 Rules of Criminal Procedure
clearly states:
Duplicity of offense. A complaint or information must charge but one offense, except only in those
cases in which existing laws prescribe a single punishment for various offenses.

In short, there is duplicity (or multiplicity) of charges when a single Information charges more
[if !supportFootnotes][21][endif]
than one offense.
[if !supportFootnotes][22][endif]
Under Section 3(e), Rule 117 of the 1985 Rules of Criminal Procedure,
duplicity of offenses in a single information is a ground to quash the Information. The Rules
prohibit the filing of such Information to avoid confusing the accused in preparing his defense.
Here, however, the prosecution charged each petitioner with four offenses,
with each Information charging only one offense. Thus, petitioners erroneously invoke
duplicity of charges as a ground to quash the Informations. On this score alone, the petition
deserves outright denial.

The Filing of Several Charges is Proper

Petitioners contend that they should be charged with one offense only Reckless Imprudence
Resulting in Damage to Property because (1) all the charges filed against them proceed from and
are based on a single act or incident of polluting the Boac and Makalupnit rivers thru dumping of
mine tailings and (2) the charge for violation of Article 365 of the RPC absorbs the other charges
since the element of lack of necessary or adequate protection, negligence, recklessness and
imprudence is common among them.

The contention has no merit.

As early as the start of the last century, this Court had ruled that a single act or
incident might offend against two or more entirely distinct and unrelated provisions of law thus
[if !supportFootnotes][24][endif]
justifying the prosecution of the accused for more than one offense. The only
limit to this rule is the Constitutional prohibition that no person shall be twice put in jeopardy of
[if !supportFootnotes][25][endif] [if
punishment for the same offense. In People v. Doriquez,
we held that two (or more) offenses arising from the same act are not the

x x x if one provision [of law] requires proof of an additional fact or element

which the other does not, x x x. Phrased elsewise, where two different laws
(or articles of the same code) define two crimes, prior jeopardy as to one of
them is no obstacle to a prosecution of the other, although both offenses
arise from the same facts, if each crime involves some important act
[if !supportFootnotes][27][endif]
which is not an essential element of the other.
(Emphasis supplied)

Here, double jeopardy is not at issue because not all of its elements are present.
However, for the limited purpose of controverting petitioners claim that they
should be charged with one offense only, we quote with approval Branch 94s comparative
analysis of PD 1067, PD 984, RA 7942, and Article 365 of the RPC showing that in each of these
laws on which petitioners were charged, there is one essential element not required of the others,

In P.D. 1067 (Philippines Water Code), the additional element to be

established is the dumping of mine tailings into the Makulapnit River and
the entire Boac River System without prior permit from the authorities
concerned. The gravamen of the offense here is the absence of the proper
permit to dump said mine tailings. This element is not indispensable in the
prosecution for violation of PD 984 (Anti-Pollution Law), [RA] 7942
(Philippine Mining Act) and Art. 365 of the Revised Penal Code. One can be
validly prosecuted for violating the Water Code even in the absence of
actual pollution, or even [if] it has complied with the terms of its
Environmental Compliance Certificate, or further, even [if] it did take the
necessary precautions to prevent damage to property.

In P.D. 984 (Anti-Pollution Law), the additional fact that must be proved is the
existence of actual pollution. The gravamen is the pollution itself. In the
absence of any pollution, the accused must be exonerated under this law
although there was unauthorized dumping of mine tailings or lack of
precaution on its part to prevent damage to property.

In R.A. 7942 (Philippine Mining Act), the additional fact that must be established is the
willful violation and gross neglect on the part of the accused to abide by the
terms and conditions of the Environmental Compliance Certificate,
particularly that the Marcopper should ensure the containment of run-off and
silt materials from reaching the Mogpog and Boac Rivers. If there was no
violation or neglect, and that the accused satisfactorily proved [sic] that
Marcopper had done everything to ensure containment of the run-off and silt
materials, they will not be liable. It does not follow, however, that they cannot
be prosecuted under the Water Code, Anti-Pollution Law and the Revised
Penal Code because violation of the Environmental Compliance Certificate is
not an essential element of these laws.

On the other hand, the additional element that must be established in Art. 365 of the
Revised Penal Code is the lack of necessary or adequate precaution,
negligence, recklessness and imprudence on the part of the accused to
prevent damage to property. This element is not required under the previous
laws. Unquestionably, it is different from dumping of mine tailings without
permit, or causing pollution to the Boac river system, much more from
violation or neglect to abide by the terms of the Environmental Compliance
Certificate. Moreover, the offenses punished by special law are mal[a]
prohibita in contrast with those punished by the Revised Penal Code which
[if !supportFootnotes][29][endif]
are mala in se.

Consequently, the filing of the multiple charges against petitioners, although based on the same
incident, is consistent with settled doctrine.

On petitioners claim that the charge for violation of Article 365 of the RPC absorbs the charges
for violation of PD 1067, PD 984, and RA 7942, suffice it to say that a mala in se felony (such as
Reckless Imprudence Resulting in Damage to Property) cannot absorb mala prohibita crimes
(such as those violating PD 1067, PD 984, and RA 7942). What makes the former a felony is
criminal intent (dolo) or negligence (culpa); what makes the latter crimes are the special laws
enacting them.

People v. Relova not in Point

Petitioners reiterate their contention in the Court of Appeals that their prosecution contravenes
this Courts ruling in People v. Relova. In particular, petitioners cite the Courts statement in
Relova that the law seeks to prevent harassment of the accused by multiple prosecutions for
offenses which though different from one another are nonetheless each constituted by a common
set or overlapping sets of technical elements.

This contention is also without merit.

The issue in Relova is whether the act of the Batangas Acting City Fiscal in charging one Manuel
Opulencia (Opulencia) with theft of electric power under the RPC, after the latter had been
acquitted of violating a City Ordinance penalizing the unauthorized installation of electrical wiring,
violated Opulencias right against double jeopardy. We held that it did, not because the offenses
punished by those two laws were the same but because the act giving rise to the charges was
punished by an ordinance and a national statute, thus falling within the proscription against
multiple prosecutions for the same act under the second sentence in Section 22, Article IV of the
1973 Constitution, now Section 21, Article III of the 1987 Constitution. We held:

The petitioner concludes that:

The unauthorized installation punished by the ordinance [of Batangas City] is not the
same as theft of electricity [under the Revised Penal Code]; that the second offense is not an
attempt to commit the first or a frustration thereof and that the second offense is not necessarily
included in the offense charged in the first information.

The above argument[ ] made by the petitioner [is] of course correct. This is clear both from
the express terms of the constitutional provision involved which reads as follows:

No person shall be twice put in jeopardy of punishment for the

same offense. If an act is punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another prosecution for the
same act. x x x

and from our case law on this point. The basic difficulty with the petitioners
position is that it must be examined, not under the terms of the first
sentence of Article IV (22) of the 1973 Constitution, but rather under the
second sentence of the same section. The first sentence of Article IV (22)
sets forth the general rule: the constitutional protection against double
jeopardy is not available where the second prosecution is for an offense that
is different from the offense charged in the first or prior prosecution, although
both the first and second offenses may be based upon the same act or set of
acts. The second sentence of Article IV (22) embodies an exception to
the general proposition: the constitutional protection, against double
jeopardy is available although the prior offense charged under an
ordinance be different from the offense charged subsequently under a
national statute such as the Revised Penal Code, provided that both
offenses spring from the same act or set of acts. x x x
(Italicization in the original; boldfacing supplied)

Thus, Relova is no authority for petitioners claim against multiple prosecutions based on a single
act not only because the question of double jeopardy is not at issue here, but also because, as
the Court of Appeals held, petitioners are being prosecuted for an act or incident punished by four
national statutes and not by an ordinance and a national statute. In short, petitioners, if ever, fall
under the first sentence of Section 21, Article III which prohibits multiple prosecution for the same
offense, and not, as in Relova, for offenses arising from the same incident.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 5 November 2001 and the
Resolution dated 14 March 2002 of the Court of Appeals.