[G.R. No. 110097.

December 22, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNULFO

ASTORGA, accused-appellant.

DECISION
PANGANIBAN, J.:

Actual detention or locking up is the primary element of kidnapping. If the

evidence does not adequately prove this element, the accused cannot be held
liable for kidnapping. In the present case, the prosecution merely proved that
appellant forcibly dragged the victim toward a place only he knew. There being
no actual detention or confinement, the appellant may be convicted only of
grave coercion.

The Case

The foregoing principle is used by this Court in resolving the appeal of

Arnulfo Astorga challenging the March 31, 1993 Decision of the Regional Trial
[1]

Court of Tagum, Davao convicting him of kidnapping.

In an Information dated March 24, 1992 and docketed as Criminal Case
[2]

No. 8243, Appellant Arnulfo Astorga was charged with violation of Article 267,
paragraph 4 of the Revised Penal Code, allegedly committed as follows:

That on or about December 29, 1991 in the Municipality of Tagum, Province of

Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, with deliberate intent and by means of force, did then and there
wilfully, unlawfully and feloniously kidnap Yvonne Traya, a minor, 8 years of age,
thereby depriving her of her liberty against her will, to the damage and prejudice of
said offended party.

Arraigned on February 24, 1993, Appellant Astorga, duly assisted by his

counsel, pleaded not guilty to the charge. Trial on the merits ensued. The
[3]

dispositive portion of the assailed Decision reads as follows:

[4] [5]
WHEREFORE, premises considered, the guilt of accused ARNULFO ASTORGA
having been proven beyond reasonable doubt, pursuant to Article 267 paragraph 4 of
the Revised Penal Code, [he] is hereby sentenced to Reclusion Perpetua to be served
at the National Penitentiary, [Muntinlupa].

This appeal was filed directly with this Court in view of the penalty imposed. [6]

The Facts

Evidence for the Prosecution

The evidence for the prosecution was narrated in the Decision of the trial
court, as follows:[7]

Prosecution witnesses extant from their testimonies categorically assert that around
6:30 P.M. children of neighbors were near the store of the grandparents of Yvonne
Traya.

Incidentally, there was a brown out that evening hence candle was used. The daughter
and nephew of her aunt Bebeth were quarelling [sic] about the possession of a
flashlight until the glass got lost. Accused or Boy Astorga, went near and asked her
daughter Jane what happened. Glenda or Bebeth grabbed her baby and went home.

Accused told Yvonne to go with him to buy candy. She did not answer and accused
immediately grabbed and hold [sic] her hand. Accused placed his hand on her
shoulder and covered his [sic] mouth.

Yvonne was only eight (8) years old on 29 December 1991 when she was brought by
the accused allegedly to buy candy. Some stores were closed; others were
opened. Accused never went inside the store to buy candy. Instead she [sic] held and
dragged Yvonne until they went inside the compound of Maco Elementary
School. They were walking inside the perimeter fence, [while the accused was]
holding closely the child. Later, there being no person around the gate, accused
brought her out to the highway and walked towards the direction of Tagum.

Yvonne stays with her grandparents and so with her parents at Sitio Binuangan,
Maco. She asked him where they were going and accused answered that they were
going home. She told him that they were already on the opposite direction because her
grandparents house is at Binuangan, while their route was going towards
Tagum. Indeed, it was an opposite direction. Notwithstanding the assertion of Yvonne
that they were on the wrong direction, accused placed his hands on her shoulder and
dragged her. She cried and protested that she must go home. Accused did not heed her
plea and while she was forced to walk she continued crying.

While accused and Yvonne were walking in the situation as described, somewhere
near the Luponlupon bridge they met some group of men. Having met on their
opposite direction, the two, were noticed by the group of youngsters. The group were
bound to Maco Catholic Church to see a drama. Having met the two and as noticed by
the group accused keep [sic] on looking back at them. The group were suspicious
about the man who was bringing a child. The group decided to follow them. Accused
hurriedly walked fast with Yvonne, and to prevent from being overtaken, he carried
the victim and ran. They were chased. After a distance of half a kilometer they were
overtaken.

Edwin Fabila declared that Jonathan, one of his companions with others in chasing,
asked the accused where they were bound. He answered towards Binuangan. The
group noticed something suspicious because their destination was already towards
Tagum which is an opposite direction to Binuangan.

When asked who is the child, accused answered Traya. Jonathan one of those who
chased knew the family. He got from the accused Yvonne who showed some
resistance. Nevertheless, the group brought her home at Binuangan. Likewise, accused
was also brought by them to Yvonnes home. The house of accused and Yvonne were
five (5) meters away. Accused wanted to talk to the parents of the victim, but he was
driven by her aunt and adviced [sic] to leave otherwise he will be stabbed by Yvonnes
father. He left and never talked with the family.

Evidence for the Defense

The facts as viewed by the defense are presented in the Appellants

Brief, dated December 10, 1993:
[8]

The defense consisted of the testimonies of Arbeth Nalcot and the accused-appellant
himself.

Arbeth Nalcot, a resident of Tagum, Davao, testified tht [sic] in the afternoon of
December 29, 1991, she was at the Municipal Hall of Maco, Davao. She saw Astorga
with two (2) companions. They were drinking Red Horse and were already
drunk. When they finished drinking, she went with Astorga to the latters house. (TSN,
pp. 7-8 and 18, March 23, 1993). The house of Astorga is about 5 meters away from
the house of the complainant[.] Yvonne came and asked money from the accused to
buy candy. The two went together and she was left behind. She told them to hurry
up. When they failed to return, she looked for them, but because it was already dark,
she did not find them. She went back to the house of the accused. (Ibid., pp. 10-11).

Arnulfo Astorga, a resident of Maco, Davao and a gold panner testified that at around
1:00 P.M. of December 29, 1991, he arrived at Maco from Tagum. Upon arrival his
two friends, Vicvic and Anding were already at his home. They decided to drink,
hence they proceeded to Adecor Cottage and drank two gallons of Tuba. At around
2:00 P.M., they were at the market place and drink beer grande. At 5:00 P.M. on the
same day, the three proceeded near the municipal hall and with some persons, they
again continued their drinking spree taking up Red Horse wine. (Decision, p. 3).

At about 6:00 P.M., he was already drunk and he went home. Yvonne approached him
and asked him money to buy candy. He told her that they will buy. They were not able
to buy because the two stores where they went were already closed. (TSN, pp. 12 and
13, March 24, 1993). He took her for a stroll for his drunkeness [sic] to subside. They
walked inside the school premises which was about 20 meters away from the second
store. They went out of the school compound going towards Lupon-lupon because due
to his drunkneness [sic], he thought it was the way towards their house. (Ibid, pp. 14-
15) They reached Lupon-lupon bridge, crossed it twice thinking that it was the bridge
near the municipal hall. After reaching Purok, they met several persons, he was asked
were (sic) they were heading, and he answered to Tagumpay, but he was told that they
[sic] way was already going to Tagum. He requested those persons to guide them to
Tagumpay. They asked him who was the child he was carrying. He answered that it
was Trayas child. (Ibid, pp. 16-17). He was carrying the child because he was already
crying as she already wanted to go home. The group of persons, men and women,
guided them. Yvonne was being held by the women. They arrived at Yvonnes
house. He talked to the auntie of the child and told her that he would converse with
her but he was advised to go away because the father of Yvonne might hack him. So
he went home. (Ibid, pp. 18-19)

The Trial Courts Ruling

The trial court justified its finding of guilt with the following discussion: [9]

Accused insisted [that] he was already drunk hence when he took Yvonne to buy
candy, he strolled with her so that his drunkenness be subsided.
All these defense version was rebutted by Yvonne when she categorically declared
that she did not smell liquor on the accused.

His defense of intoxication has no leg to stand [on].

Consider these facts.

Never did he present Vicvic and Anding to corroborate that he was intoxicated that
afternoon and at dusk because of their drinking spree from 1:00 P.M. until 5:00 P.M.

He did not rebut the testimonies of Fabila that when they noticed his actions
suspicious bringing with him a child, he walked fast dragging Yvonne. When he
noticed that the group of youngsters were chasing him, he carried Yvonne and ran
until they covered a distance of half a kilometer in chasing them, until they had
overtaken him.

If he was that intoxicated, being under stupor and weakened by liquor, he could not
ran that fast carrying Yvonne for half a kilometer.

Moreover, Yvonne categorically in straight forward testimony asserted that she did
not smell liquor on the accused.

Accused, naivety [sic], that because of his intoxication, he got lost and was not able to
proceed with Yvonne to Binuangan was a shallow afterthought.

It must be recalled that Yvonne told him they were already going at opposite direction
from home. Instead they were heeding towards Tagum. Accused did not change
course.

xxx xxx xxx

Again, not only force was employed in having Yvonne as captive by dragging,
slapping her mouth and was holding her tight, but accused also used psychological
means of scaring her about a red eyed ghost.

Through this means and efforts, Yvonne was deprived of her liberty and was by force
prevented to go home to her parents.

On rebuttal, Yvonne denied that she asked money from accused to buy candy. She
also denied as testified by defense witness Arbeth Nalcot that she went to the house of
the accused on 29 December 1991 or on any other dates to ask money from Astorga
for candy.
Defense evidence are [sic] punctured with unbelievability in his off tangent and
incredible theory of drunkardness. His alleged being lost in the direction of Binuangan
in spite of Yvonnes insistence and that of the person they met that he was on the
wrong way considering that there are no criss crossing roads except the highway, is
preposterous.

The Issues

Appellant imputes the following errors to the trial court: [10]

The trial court erred in giving credence to the testimonies of the prosecutions
witnesses which were replete with inconsistencies and contradictions.

II

The trial court erred in convicting the appellant despite the fact that Yvonne Traya
was not detained, locked-up or deprived of her liberty.

III

The trial court erred in convicting the appellant despite the fact that appellant had no
motive to kidnap Yvonne Traya.

In the main, appellant challenges the credibility of the prosecution witnesses

and the legal characterization of the acts imputed to him.

The Courts Ruling

The appeal is partly meritorious. Appellant should be convicted only of

grave coercion, not kidnapping.

First Issue: Credibility of Prosecution Witnesses

Appellant contends that the testimonies of the prosecution witnesses are

not worthy of credence because they were inconsistent and improbable. He
cites the following:
Glenda Chavez testified that she was present when the accused told Yvonne that they
will buy candy. She sensed that the accused was drunk. (TSN, pp. 10-11, March 10,
1993). These testimonies were contradicted by Yvonne Traya when she declared that
Glenda Chavez had already went [sic] inside their house when [the] accused told her
that they will buy candy (TSN, pp. 10, March 16, 1993). She testified that she did not
smell liquor on the accused. (Decision, pp. 3-4)

Edwin Fabila testified that their group was able to overtake the accused at a distance
of 2 fathoms and they [sic] him about 15 to 20 meters (TSN, p. 35, March 10,
1993). Arnel Fabila, on the other hand, testified that they overtook the accused after
chasing him at a distance of half kilometer (TSN, p. 10, March 11, 1993).

Yvonne Traya testified that the accused could not ran fast carrying her because she
was heavy. (TSN, p. 19, March 16, 1993). However, Arnel Fabila declared that they
were able to overtake the accused only after chasing him at a distance of half
kilometer (TSN, p. 10, March 11, 1993) meaning accused was running fast. [11]

We hold, however, that inconsistencies in the testimonies of witnesses

concerning minor details and collateral matters, like the examples cited by
appellant, do not affect the substance, veracity or weight of their
declarations. These inconsistencies reinforce, rather than weaken, their
credibility, for different witnesses of startling events usually perceive things
differently. Indeed, the testimonies of the prosecution witnesses cannot be
[12]

expected to be uniform to the last detail.

The testimony of Glenda Chavez that the accused was drunk at that time
allegedly contradicted Yvonnes statement that the accused did not smell of
liquor. This does not detract from the credibility of either witness. Yvonne, then
an eight-year-old child, and her Aunt Glenda, then twenty-seven years
[13]

old, do not have the same experiences or level of maturity; hence, their
[14]

perceptions of events differ. More important, whether the accused was drunk or
not is an insignificant detail that does not substantially affect the testimonies of
these witnesses.
Further, the discrepancy in the witnesses estimate of the distance covered
by the men who chased appellant does not render their testimonies
incredible. Quite the contrary, such discrepancy shows their candor and
[15]

sincerity, demonstrating that their testimonies were unrehearsed. Yvonne [16]

testified that when appellant noticed the group of men following them, he carried
her and ran. Yvonnes testimony is in accord with that of Arnel Fabila -- a
member of the group who chased appellant -- that they were able to overtake
appellant after chasing him half a kilometer. [17]
 Appellants challenge to the credibility of the prosecution account is also
premised on the alleged failure of the trial court to consider the following
points:[18]

a) that the alleged victim admitted that she and the accused casually moved around the
school premises, as if they were strolling; That when they were already in the
highway, they were also walking openly and casually until they were met by a group
of youngster[s].

Edwin Fabila, one of the prosecutions witnesses, corroborated the fact that the two
were walking casually along the highway when he first saw them;

b) That it is highly incredible that accused and the alleged victim will not be seen or
noticed by the people travelling or those persons residing along the highway if it was
true that the accused was dragging her and she was continuously crying from her
residence up to a distance of more than one kilometer;

c) That the accused and the alleged victim were travelling at a very slow pace; a
distance of barely a kilometer for a period of more than two hours;

d) That the accused was very drunk, having been drinking different kinds of
intoxicating liquors from 1:00 p.m. to 5:00 p.m., causing him to be confused on which
way they should take in going home.

e) That the accused was not hurt by the group of youngsters who allegedly rescued the
child, nor was immediately brought to the municipal hall which was just near the
house of the victim for the filing of the necessary charge; this [sic] actuations only
confirm the fact that the accused merely sought their help in guiding them home, and

f) That it took more than one week for the complainant and her parents to file the case
at the Fiscals Office.

We cannot sustain these contentions. The charge is not belied by the one-
week delay in the filing of the complaint. It has been held that delay or vacillation
in making a criminal accusation does not necessarily weaken the credibility of
a witness where such delay is satisfactorily explained. In the present case,
[19]

one week was reasonable, considering that the victim was a resident of
Binuangan and that the case was filed in Tagum, Davao.
Furthermore, the group whom appellant met did not hurt or bring him to the
municipal hall, because they deemed it more urgent at the time to rescue
Yvonne and to bring her home, which they actually did. There is no settled
[20]

rule on how a group of young men should react upon seeing a young girl
snatched by an older man. Verily, violence is not the only normal reaction of
young men who see a girl being forcibly taken.
Appellants claim that he and Yvonne were merely strolling and walking
casually does not negate the fact that Yvonne was deprived of her will. As noted
by the trial court, appellant used physical force and psychological means in
restraining her. Despite her young age, Yvonne was able to clearly recount
[21]

the events that transpired on that fateful night.

Moreover, there is no merit in the argument that the people travelling or
living along the highway should have noticed appellant and Yvonne. The fact is
that a group of men actually noticed and ultimately chased them.
All in all, appellant utterly fails to justify a departure from the long settled rule
that the trial courts assessment of the credibility of witnesses should be
accorded great respect on appeal. [22]

Second Issue: No Motive to Kidnap

Petitioner contends that [t]here was no evidence presented to prove why

the accused should kidnap Yvonne Traya. He submits that the prosecution had
failed to prove [any] motive to support the alleged kidnapping incident, thus,
making the theory of the defense more credible and believable. [23]

The contention is insignificant. Motive is not an element of the

crime. Furthermore, motive becomes material only when the evidence is
circumstantial or inconclusive, and there is some doubt on whether a crime has
been committed or whether the accused has committed it. Indeed, motive is
totally irrelevant when ample direct evidence sustains the culpability of the
accused beyond reasonable doubt. In this case, the identity of appellant is not
[24]

in question. He himself admitted having taken Yvonne to Maco Central

Elementary School.

Third Issue: Kidnapping or Coercion?

Appellant contends that the prosecution failed to prove one essential

element of kidnapping -- the fact of detention or the deprivation of liberty. The
solicitor general counters that deprivation of liberty is not limited to imprisoning
or placing the victim in an enclosure. Citing People vs. Crisostomo, he argues:
[25]
(T)he act proven in the record constitutes (kidnapping). It is no argument against this
conclusion that the accused deprived the offended party of her liberty without placing
her in an inclosure; because illegal detention, as defined and punished in our Code,
may consist not only in imprisoning a person but also in detaining her or depriving her
in any manner of her liberty. [26]

We agree with appellants contention this time.

Under Article 267 of the Revised Penal Code, the elements of kidnapping
[27]

are as follows:

1. That the offender is a private individual.

2. That he kidnaps or detains another, or in any other manner deprives the latter of
his liberty.

3. That the act of detention or kidnapping must be illegal.

4. That in the commission of the offense, any of the following circumstances is

present:

(a) That the kidnapping or detention lasts for more than five (5) days; or

(b) That it is committed simulating public authority; or

(c) That any serious physical injuries are inflicted upon the person kidnapped or
detained or threats to kill him are made; or

(d) That the person kidnapped or detained is a minor, female, or a public officer.

The Spanish version of Article 267 of the Revised Penal Code uses the
terms lockup (encerrar) rather than kidnap (secuestrar or raptar). Lockup is
included in the broader term of detention, which refers not only to the placing of
a person in an enclosure which he cannot leave, but also to any other
deprivation of liberty which does not necessarily involve locking up. Likewise,[28]

the Revised Penal Code was originally approved and enacted in Spanish.
Consequently, the Spanish text is controlling in cases of conflict with the English
version, as provided in Section 15 of the Revised Administrative Code. [29]

A review of the events as narrated by the prosecution witnesses ineluctably

shows the absence of locking up. Victim Yvonne Traya testified: [30]

Q. And after that what happened next?

A. When Auntie Bebeth went inside her house she was already bringing her child and
bringing with her candle. And Arnulfo Astorga told me that we will buy candy, sir.
Q. And after that?
A. And while I was not answering the question he immediately grabbed me.

xxx xxx xxx

Q. And after that, after he held your hand, what did he do next?
A. He placed his hands on my shoulder and also covering [sic] my mouth.

xxx xxx xxx

Q. And after that what did he do next?
A. He brought me to the school.
Q. What school did Boy Astorga bring you? What is the name of the school?
A. Maco Central Elementary School.
Q. How far is Maco Central Elementary School from your house?
A. A little bit near.
Q. When Boy Astorga brought you to school, was it dark?
A. Yes, sir.
Q. Exactly where in Maco Elementary School did Boy Astorga bring you?
A. Inside the gate, sir.
Q. And once inside the gate what did he do to you?
A. We were going around the school?

xxx xxx xxx

Q. Do you know why you were going around the school?
A. Yes, sir.
Q. Why, what did he do?
A. We were going around and when he saw that there is no person in the gate we passed
at that gate.
Q. And where did he go after passing that gate?
A. Towards Lupon-lupon, sir.
xxx xxx xxx
Q. What about you, did you talk to him?
A. I asked him where we were going and he told me that we are going home and I told
him that this is not the way to our house, and we did not pass this way. (Witness
gesturing a certain direction).
Q. And so when you said that that is not the way, when you said that is not the way
because our house is towards Binuangan...
By the way, you said you were going to Lupon-lupon, do you know to what direction
is going to Lupon-lupon, to what place is Lupon-lupon going to?
A. Yes, sir.
Q. Where?
A. Going to my place.
Q. Do you know the place where it was going? What is that place?
A. On the road going to Tagum.
Q. Now, what about your house, where is it going?
A. To Binuangan.
Q. And so when you ... what did he do next when you said that is not the place going to
your house?
A. We continued walking and he also placed his hands on my shoulder and dragged me,
sir.
Q. What about you, what did you do when he was dragging you?
A. I was crying, sir.
Q. Did you say any word to him when you were crying?
A. Yes, I told him that we are going home.
Q. And what did Boy Astorga say?
A. He told me that we will be going home, and told me not to make any noise because if
I will make any noise we will be lost on our way.
Q. And so, what did you do?
A. I continued crying, sir.
Q. And after that, what happened?
A. We continued walking and we met a person and he asked Boy Astorga where we are
going, sir.
Q. What did that man ask Boy Astorga?
A. The man asked Boy Astorga where are you going, and Boy Astorga answered, to
Binuangan, but the man continued to say that this way is going to Tagum and not to
Binuangan any more.
Q. What else did the man ask, if any?
A. I further said that we will already leave, and we will be the ones to go to Binuangan,
and after that, Boy Astorga put me down because he urinated. So, at that instance,
I ran, but, after he urinated, he already took hold of me not to run any more because
there is a ghost.
Q. When you said you ran away after Boy Astorga left you when he urinated, where did
you run?
A. Towards Binuangan, sir.
Q. Towards the direction of your house?
A. Yes, sir.
Q. And you were overtaken again by Boy Astorga?
A. Yes, sir.
Q. What did he do to you when you were overtaken by Boy Astorga?
A. He took hold of me again and he told me, he threatened me that there is [sic] a red
eyes but I answered him that is [sic] not a red eyes of the ghost but that is a light
coming from the vehicle.
Q. Now, what happened next?
A. He placed a necklace on me, sir.

xxx xxx xxx

A. He was dragging me and I was crying when he was dragging me.
Q. While you were being dragged did you make any plea to him?
A. Yes, I told him that I will go home.
Q. And what did he say?
A. He said that we will go home but I know [sic] that that place we are [sic] heading to is
[sic] not a way to our home but it is [sic] the opposite.
Q. So, what happened next?
A. He continued dragging me and after that we met plenty of persons and I shouted for
help and at that instance, he slapped my mouth and after a few steps he already
carried me.

xxx xxx xxx

A. He continued walking and I also continued crying and I told him that I want to go home
and he told me that we are heading towards home, but I told him that the way we
are going to is not the way to our house.
Q. By the way, when you shouted [for] help, was it loud?
A. Yes, sir.
Q. So, what happened next?
A. He continued running and he stopped several vehicles but they did not stop, so, we
just continued walking.
Q. After that, what happened next?
A. He moved closer to the banana plants. He looked back and he saw that persons were
already chasing him and after that he carried me and ran.
 From the foregoing, it is clear that the appellant and the victim were
constantly on the move. They went to Maco Elementary School and strolled on
the school grounds. When nobody was at the Luponlupon bridge, appellant took
the victim to the highway leading to Tagum, Davao. At that time, Yvonne
pleaded with appellant that she really wanted to go home to Binuangan, but
appellant ignored her pleas and continued walking her toward the wrong
direction. Later on, the group of Witness Arnel Fabila spotted them. Appellant
Astorga carried the victim and ran, but Fabilas group chased and caught up
with them.
This narration does not adequately establish actual confinement or restraint
of the victim, which is the primary element of kidnapping. Appellants apparent
[31]

intention was to take Yvonne against her will towards the direction of
Tagum. Appellants plan did not materialize, however, because Fabilas group
chanced upon them. The evidence does not show that appellant wanted to
detain Yvonne; much less, that he actually detained her. Appellants forcible
dragging of Yvonne to a place only he knew cannot be said to be an actual
confinement or restriction on the person of Yvonne. There was no
lockup. Accordingly, appellant cannot be convicted of kidnapping under Article
267 of the Revised Penal Code.
Rather, the felony committed in this case is grave coercion under Article 286
of the same code. Grave coercion or coaccion grave has three elements: (a)
that any person is prevented by another from doing something not prohibited
by law, or compelled to do something against his or her will, be it right or wrong;
(b) that the prevention or compulsion is effected by violence, either by material
force or such a display of it as would produce intimidation and, consequently,
control over the will of the offended party; and (c) that the person who restrains
the will and liberty of another has no right to do so or, in other words, that the
restraint is not made under authority of a law or in the exercise of any lawful
right. When appellant forcibly dragged and slapped Yvonne, he took away her
[32]

right to go home to Binuangan. Appellant presented no justification for

preventing Yvonne from going home, and we cannot find any.
The present case should be distinguished from People vs. Rosemarie de la
Cruz. Here, Appellant Astorga tricked Yvonne to go with him by telling her
[33]

that they were going to buy candy. When Yvonne recognized the deception,
she demanded that she be brought home, but appellant refused and instead
dragged her toward the opposite direction against her will.While it is unclear
whether Appellant Astorga intended to detain or lock up Yvonne, there is no
question that he forced her to go with him against her will.
In Rosemarie de la Cruz, Victim Whiazel voluntarily went with accused.
Furthermore, the accused in that case failed to consummate the crime of
kidnapping because of the timely intervention of the victims neighbor. Thus, the
Court held in that case: [34]

In a prosecution for kidnapping, the intent of the accused to deprive the victim of the
latters liberty, in any manner, needs to be established by indubitable proof (People vs.
Puno, 219 SCRA 85 [1993]). The acts held by the trial court, and maintained by the
People, as consummating the crime of kidnapping in this case are those when
accused-appellant held the victims hand and refused to let go when the victim asked to
go over to her neighbor, who by then already saw what was happening. This happened
for only a very brief span of time and the evidentiary record shows that there were a
good number of people present at that time, that a guard was stationed at the gate, and
that there was at least a teacher nearby. The child could have just as easily shouted for
help. While it does not take much to scare the wits out of a small child like Whiazel,
under the attendant circumstances, we cannot say with certainty that she was indeed
deprived of her liberty. It must further be noted that up to that brief moment when
Cecilia saw them, and the child asked to be let go, the victim had gone with accused-
appellant voluntarily. Without any further act reinforcing the inference that the victim
may have been denied her liberty, even taking cognizance of her minority, the Court
hesitates to find that kidnapping in the case at bar was consummated. While it is a
well-entrenched rule that factual findings of trial courts, especially when they concern
the appreciation of testimony of witnesses, are accorded great respect, by exception,
when the judgment is based on a misapprehension of facts, as we perceive in the case
at bar, the Court may choose to substitute its own findings (People vs. Padua, 215
SCRA 266 [1992]).

The Information, dated March 24, 1992, filed against Astorga

contains sufficient allegations constituting grave coercion, the elements of
which were sufficiently proved by the prosecution. Hence, a conviction for said
crime is appropriate under Section 4, Rule 120 of the 1988 Rules on Criminal
Procedure:

Section 4. Judgment in case of variance between allegation and proof. -- When there
is variance between the offense charged in the complaint or information, and that
proved or established by the evidence, and the offenses as charged is included in or
necessarily includes the offense proved, the accused shall be convicted of the offense
proved included in that which is charged, or of the offense charged included in that
which is proved.

At the time the felony was committed on December 29, 1991, the penalty
imposed by law for grave coercion was arresto mayor and a fine not exceeding
five hundred pesos. The Indeterminate Sentence Law does not apply here
[35]

because the maximum penalty does not exceed one year. However, appellant
[36]
has been imprisoned for more than six (6) months. He has more than served
the penalty imposable for such an offense. [37]

WHEREFORE, the appeal is hereby PARTIALLY GRANTED. Appellant is

CONVICTED only of grave coercion and is sentenced to six (6) months
of arresto mayor. Unless he is being detained for any other valid cause, his
IMMEDIATE RELEASE is herewith ordered, considering that he has more than
served the maximum penalty imposable upon him. The director of prisons is
DIRECTED to inform this Court, within five days from receipt of this Decision,
of the actual date the appellant is released. No costs.
SO ORDERED.

G.R. No. 180919 January 9, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
MELBA L. ESPIRITU, PRIMITIVA M. SERASPE, SIMPRESUETA M. SERASPE, a.k.a.
"Aileen," Accused.
SIMPRESUETA M. SERASPE, a.k.a. "Aileen," Accused-Appellant.

DECISION

DEL CASTILLO, J.:

Appellant Simpresueta M. Seraspe (appellant) assails the July 25, 2007 Decision1 of the Court of
Appeals (CA) in CA-G.R. CR-H.C. No. 02045 which affirmed her conviction for illegal sale of
dangerous drugs by the Regional Trial Court (RTC) of Las Piñas City, Branch 275 in Criminal Case
No. 99-1127.2

Factual Antecedents

Appellant, together with her mother, Primitiva M. Seraspe (Seraspe), and Melba L. Espiritu (Espiritu)
were charged with violation of Section 15, Article II of Republic Act (R.A.) No. 6425 (The Dangerous
Drugs Act of 1972), as amended, in an Amended Information,3 the accusatory portion of which reads
as follows:

That on or about June 1, 1999 in Las Piñas City and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, conniving, confederating, and helping one another, did, then
and there willfully, unlawfully, feloniously and knowingly sell, dispense, transport, deal in, administer,
deliver, negotiate and distribute 983.5 grams of methamphetamine hydrochloride (shabu), a
regulated drug, to Ms. Criselda Manila, who acted as poseur buyer, said accused, selling,
dispensing, transporting, administering and distributing the aforementioned regulated drug without
any license, permit or authority from the government to do so, in consideration of an amount of
money which accused demanded and received from the poseur buyer.

CONTRARY TO LAW.4

The three entered separate pleas of "not guilty" to the crime charged during their arraignment on
December 1, 1999.5 Thereafter, trial ensued.

Version of the Prosecution

The key witnesses presented by the prosecution were Police Chief Inspector Ricardo Dandan
(P/Chief Insp. Dandan), a member of the now defunct Presidential Anti-Organized Crime Task Force
(PAOCTF), and Criselda Manila, a.k.a., Carla (Carla), liaison officer of PAOCTF. From their
testimonies,6 the following facts emerge:

On May 15, 1999, P/Chief Insp. Dandan received a telephone call from a confidential informant who
told him about the drug trafficking activities of Espiritu in Cainta and in the Cities of Las Piñas,
Muntinlupa, Taguig and Parañaque. He immediately reported this information to Senior Police
Superintendent Cesar Mancao, who, in turn, instructed him to create a police team to conduct an
operation relative thereto. P/Chief Insp. Dandan thus formed Team Golf composed of SPO4 Bahadi
(also referred to as SPO4 Bajade), SPO4 Tuanggang, SPO2 Roberto O. Agbalog, PO3 Osmundo B.
Cariño (PO3 Cariño), SPO1 Leopoldo Platilla, SPO2 Laroga (also referred to as SPO2 Laruga), PO3
Olaya and Carla. Carla was to act as the poseur-buyer and PO3 Cariño as her husband.

On the same day, Team Golf proceeded to SM Southmall in Las Piñas City and met the confidential
informant. Thereafter Carla, PO3 Cariño and the civilian informant headed to Espiritu’s house and
presented themselves to Espiritu. After the introductions, negotiation for the sale of shabu followed.
Carla ordered two kilos of shabu for a discounted price of ₱750,000.00. Espiritu, in turn, took Carla’s
cellphone number and promised to call once the shabu becomes available.

On May 27, 1999, Espiritu called Carla and asked the latter to wait. She again called two days later
and arranged for a meeting at noon of the next day in SM Bacoor. Hence, on May 30, 1999, Carla
proceeded to the agreed place while Espiritu arrived thereat together with appellant. Espiritu directed
appellant to give a sample of the shabu to Carla inside the rest room so the latter could examine it.
Appellant obliged. After they parted ways, Carla gave the sample to P/Chief Insp. Dandan, who
readily knew that the same was shabu because of his familiarity with the drug.

At around 7:00 p.m. of the same day, Espiritu again called Carla and told her that she already has
two kilos of shabu but would deliver only one kilo. She would deliver the rest after receipt of the
payment for the first. The two then agreed to meet in the food court of RFC Manuela (RFC Food
Court), Las Piñas City for the delivery of the drugs.

Upon learning this, P/Chief Insp. Dandan immediately gathered the buy-bust team, gave them
instructions and prepared four marked 500 peso bills and boodle money. The team then repaired to
the meeting place on June 1, 1999. At about 3:00 p.m., Carla and PO3 Cariño occupied one of the
tables in the RFC Food Court while the rest of the team positioned themselves nearby. Espiritu and
appellant arrived at around 5:00 p.m. After ascertaining from Carla if she brought the money, Espiritu
ordered appellant to get the shabu. Appellant left and returned 30 minutes later with her mother,
Seraspe, who was then carrying a bag. Appellant took the said bag and handed it to Espiritu, who,
together with Carla, proceeded to the restroom to examine the contents thereof. When Carla
emerged from the restroom, she made the pre-arranged signal by scratching her head. Whereupon,
the buy-bust team arrested Espiritu, Seraspe and appellant. The marked money was recovered from
Espiritu while the plastic bag containing the substance subject of the buy-bust operation was marked
by PO3 Cariño with the Visayan word "tigulang." Upon laboratory examination, the seized specimen
weighing 983.5 grams was found positive for methamphetamine hydrochloride or shabu.7

Version of the Defense

Espiritu, Seraspe and appellant claimed that they were merely induced by the PAOCTF operatives
to sell the dangerous drug. Their testimonies8 revealed the following circumstances:

Espiritu first met Carla when the latter went to her house together with the civilian informant in the
second week of April 1999. Carla wanted to talk to Espiritu’s husband, who is a lawyer and a casino
financier, in the hope of getting his help in purchasing shabu from his Chinese clients. When Espiritu
told Carla that her husband does not want to get involved in that kind of business, Carla instead
sought her help. Carla promised to pay ₱750,00.00 for a kilo of shabu. Fearing that her husband
would get mad about it, Espiritu declined the offer.

After a couple of days, Carla returned to Espiritu’s house, this time with PO3 Cariño whom she
introduced as her husband. Again, they sought her assistance in purchasing shabu and showed her
an attaché case containing ₱1.5 million. Espiritu again declined. But as Carla and PO3 Cariño
returned four more times with the same request and showing her the money each time, Espiritu
finally told them that she would see what she can do. At that time, she was in need of money for the
tuition fees of her grandchildren and the medicines of her son. Espiritu thus introduced Carla and
PO3 Cariño to appellant, an employee of her husband in the casino.

Appellant claimed that during her first meeting with Carla and PO3 Cariño, the two asked her to help
them look for shabu and showed her money in an attaché case. She initially refused but changed
her mind when the couple kept on returning to her place to convince her. Thinking that she would be
able to pay her debts and provide for the needs of her children with the money being offered by
Carla and PO3 Cariño, she acceded and told them that she would try to look for shabu.

On May 30, 1999, appellant and Espiritu went to the house of a certain Aida Go (Aida) to get the
shabu. Appellant then kept the shabu in her house as instructed by Espiritu. On June 1, 1999, she
and Espiritu went to RFC Food Court to meet with Carla and PO3 Cariño. Appellant handed the
shabu to Espiritu, who entered the restroom with Carla. However, when they came out, they were
already surrounded by policemen and were arrested.

Seraspe, for her part, claimed that she had no knowledge of the transaction as she just
accompanied her daughter, appellant, to the RFC Food Court.

Ruling of the Regional Trial Court

In its Decision9 of July 29, 2002, the trial court found that all the accused conspired to deliver and sell
shabu10And contrary to accused’s claim that they were merely instigated by the authorities to commit
the crime charged, it found that their arrest was the result of a valid entrapment operation.11 It thus
disposed:

WHEREFORE, judgment is hereby rendered finding accused MELBA L. ESPIRITU, PRIMITIVA M.

SERASPE and SIMPRESUETA M. SERASPE guilty beyond reasonable doubt and sentenced to
suffer each the penalty of Reclusion Perpetua and pay a fine of ₱500,000.00 and costs.

SO ORDERED.12
Espiritu, Seraspe and appellant filed a Notice of Appeal,13 which was given due course by the trial
court in an Order dated August 5, 2002.14 Pursuant thereto, the records of the case were elevated to
this Court.

However, on October 15, 2004, Espiritu filed a Manifestation with Motion to Withdraw
Appeal15 because she intends to apply for executive clemency in view of her old age and illness. The
Court granted the motion in a Resolution16 dated December 1, 2004 and the case was declared
closed and terminated with respect to her. An Entry of Judgment17 relative thereto was accordingly
issued and entered in the Book of Entries of Judgment.

In the Court’s Resolution18 dated November 9, 2005, the case was transferred to the CA for
appropriate action and disposition in view of the ruling in People v. Mateo19 allowing an intermediate
review by the said court of cases where the penalty imposed is death, life imprisonment or reclusion
perpetua, as in this case.

Subsequently, Seraspe likewise filed a Manifestation with Motion to Withdraw Appeal20 since she
also intends to apply for executive clemency in view of her old age. The CA granted the same in a
Resolution21 dated August 7, 2006 and the case was likewise declared closed and terminated insofar
as she was concerned. A Partial Entry of Judgment22 was likewise issued and entered in the Book of
Entries of Judgment on even date.

Thus, appellant was the only one left pursuing the appeal.

Ruling of the Court of Appeals

In a Decision23 dated July 25, 2007, the CA upheld the RTC’s finding of a valid entrapment24 and
accorded respect and finality upon the trial court’s assessment of the credibility of witnesses.25 The
dispositive portion of its Decision reads:

WHEREFORE, the Decision appealed from is AFFIRMED.

SO ORDERED.26

Hence, this appeal.

Assignment of Errors

The errors raised in the Accused-Appellant’s Brief27 and Supplemental Brief28 are as follows:

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF VIOLATION OF

SECTION 15, ARTICLE II, IN RELATION TO SECTION 21, ARTICLE IV, AS AMENDED BY R.A.
7659, WHEN THE LATTER’S GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT. 29

THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT

DESPITE THE LAME EVIDENCE OF THE PROSECUTION TO WARRANT A FINDING OF
CONSPIRACY BEYOND REASONABLE DOUBT.30

Our Ruling

The petition has no merit.

The two essential elements of the crime

of illegal sale of dangerous drugs were

duly established by the prosecution;

appellant conspired with her co-accused

in the commission of the crime charged.

Appellant faults the trial court in convicting her of the crime of illegal sale of dangerous drugs.

In the prosecution of illegal sale of dangerous drugs, the two essential elements are: "(1) the identity
of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold
and the payment therefor."31 Hence, evidence that establishes both elements by the required
quantum of proof, i.e., guilt beyond reasonable doubt,32 must be presented. Here, the said elements
were duly proved by the prosecution. Carla and P/Chief Insp. Dandan positively identified appellant
and her co-accused as the sellers of the contraband who sold the same in exchange for the marked
money. The item was seized, marked and upon examination was identified as shabu, a dangerous
drug. The same was subsequently presented in evidence. Moreover, Carla provided a detailed
testimony as to the delivery and sale of shabu, viz:

Q What time did you reach the area?

A About 3:00 in the afternoon.

Q After reaching the area at Manuela Food Court, what happened next?

A And then the group positioned themselves inside the Food Court.

Q How about x x x you and Cariño?

A And we positioned ourselves at the next table.

Q What happened after you positioned yourselves at the table?

A And then Melba Espiritu and Aileen Seraspe arrived at around 5:00 in the afternoon.

Q And what happened after Melba Espiritu and Aileen Seraspe arrived?

A She asked me if I have already the money.

Q What was your answer if any?

A I answered yes.

Q What happened next after you answered yes that you have money?

A And she asked Aileen Seraspe to go out.

Q For what reason?

A To get the shabu.

Q So what happened after Melba Espiritu directed Aileen to go out and get the shabu?

A When Aileen returned she was with her mother Primitiva Seraspe.

Q And what happened after Aileen came back together with her mother Primitiva Seraspe?

A And Primitiva Seraspe is carrying a gray envelope clutch bag which looks like an envelope.

Q And what happened after Aileen came back together with Primitiva Seraspe who was then
carrying a gray clutch type bag?

A And then she left her mother in one of the tables and she took a gray bag and opened it and took
another plastic pink bag containing shabu and gave it to Melba.

Q So what happened after Aileen Seraspe took off the pink bag inside the gray bag and hand[ed] it
over to Melba Espiritu?

A And then I was invited by Melba Espiritu to the comfort room.

Q What happened after she [went with you inside] the comfort room?

A She showed me that sir and asked me to look at it.

Q She showed you what?

A Shabu sir.

Q What happened next?

A After looking inside the plastic bag containing shabu, I gave her the money.

Q And how did you [give] her the money?

A After I gave her the money, I went out of the C.R.

Q What happened to the shabu?

A It is still in my possession sir.

Q And what happened after you went out of the CR carrying the shabu?

A After getting out of the CR I made a signal.

Q And what was the signal?

A I scratched my hair using my right hand.

Q At this juncture Your Honor witness is demonstrating by scratching her hair. What happened next
after you scratched your hair?

A And they arrested Melba carrying the money.33

The Court has no reason to doubt the above testimony of Carla. Aside from the fundamental rule
that findings of the trial court regarding the credibility of prosecution witnesses are accorded respect
considering that it is the trial court that had the opportunity to observe their conduct and
demeanor,34 the Court notes that appellant herself corroborated the prosecution’s account of the
crime, viz.:

Q How many kilos did you sell to the buyer, if you sold anything?

A We first brought one (1) kilo.

Q When you say "we", you are referring to you and to Melba Espiritu, is that correct?

A Yes, Sir.

xxxx

Q And what happened while at RFC?

A While we were in RFC, I handed the shabu to Melba Espiritu and then they entered the CR and
when they went out of the CR there were already many policemen.35

Moreover, appellant questions the lower courts’ finding of conspiracy between her and her co-
accused. She claims that she merely accompanied Espiritu in going to the RFC Food Court and had
nothing to do with the transaction. As a matter of fact, the shabu was not even found in or recovered
from her possession. It just so happened that she was in the area during the delivery of the drugs.

The Court is not persuaded.

There is conspiracy if two or more persons agree to commit a felony and decide to commit
it.36 "Conspiracy must be proven on the same quantum of evidence as the felony subject of the
agreement of the parties. Conspiracy may be proved by direct or circumstantial evidence consisting
of acts, words, or conduct of the alleged conspirators before, during and after the commission of the
felony to achieve a common design or purpose."37

The existence of conspiracy in this case was clearly established not only by the prosecution’s
evidence but also by appellant’s very own testimony, viz:

Q So, it was your own decision to go with Melba Espiritu to get that shabu from Aida Go?

A Yes, sir.

Q And in going there, your intention was to earn money?

A Yes, sir.
Q And who entered into this transaction of getting shabu from Aida Go, was it you or Melba Espiritu?

A The two (2) of them. They were the ones who made the deal.

Q And what was your participation while Melba Espiritu and Aida Go were transacting about that
shabu?

A My only participation would only be to carry that shabu from where we will get it up to the buyer.

Q And did you pay any amount of money to Aida Go in order to get that two (2) kilos of shabu?

A No, sir. It was given to us on a consignment basis.

Q And do you know the meaning of "consignment basis"?

A It will be paid after the deal.

Q And you mentioned that your participation would be to bring that shabu from where?

A Get it from Baclaran then go to RFC.

FISCAL VILLANUEVA:

Q Where in Baclaran?

A I don’t know the exact address but I can go there. I mean, I will be able to go there. It is near 7-
Eleven.

Q Along Roxas Boulevard or Quirino Avenue?

A You can pass through Quirino Avenue and Baclaran.

Q And when did you get that shabu in Baclaran?

A I think it was at the end of May. End of May.

Q And from whom did you get the shabu in Baclaran?

A From the house of Aida Go.

Q And who handed the shabu to you?

A It was not handed to me only. They only instructed me to carry it. It was placed in a bag.

Q So, how were you able to know that that box contains that shabu if nobody handed it to you?

A Because I know that we will be getting shabu. So, when Melba Espiritu told me to carry it, that box,
I was thinking that it was already the shabu.

Q So, Melba Espiritu was with you when you went to Baclaran when you picked up that shabu?
A Yes, sir.

Q So, the two of you were together in picking [up] that shabu?

A Yes, sir.

Q When was that?

A May 30.

Q And what happened after you [picked up] that shabu in Baclaran together with Melba Espiritu?

A She instructed me to keep first the shabu in my house.

Q So, it was Melba Espiritu who was dealing … who was telling you what to do?

A Yes, sir.

Q So, what happened after you kept that shabu in your house?

A I don’t know what happened because it was Melba and the PAOCTFwho were the ones dealing.

Q So, you voluntarily and knowingly carried that shabu for Melba Espiritu?

A Yes. sir.38

"An accepted badge of conspiracy is when the accused by their acts aimed at the same object, one
performing one part and another performing another so as to complete it with a view to the
attainment of the same object, and their acts though apparently independent were in fact concerted
and cooperative, indicating closeness of personal association, concerted action and concurrence of
sentiments."39 As can be gleaned from appellant’s above-quoted testimony as well as from the
testimony of Carla as to what transpired during the actual buy-bust operation,appellant acted in
common concert with her co-accused in the illegal sale of shabu. She cannot therefore isolate her
act of merely accompanying Espiritu to the RFC Food Court or carrying the shabu since in
conspiracy the act of one is the act of all.40 "To be a conspirator, one need not participate in every
detail of the execution; he need not even take part in every act or need not even know the exact part
to be performed by the others in the execution of the conspiracy."41

Appellant’s defense of instigation is unworthy of belief.

Appellant raises the defense of instigation to gain her acquittal. She argues that the government,
through the PAOCTF operatives, induced her to commit the offense when they repeatedly
approached and asked her to sell them shabu.

The Court is unswayed.

"Instigation means luring the accused into a crime that he, otherwise, had no intention to commit, in
order to prosecute him."42 It differs from entrapment which is the employment of ways and means in
order to trap or capture a criminal.43 In instigation, the criminal intent to commit an offense originates
from the inducer and not from the accused who had no intention to commit and would not have
committed it were it not for the prodding of the inducer.44 In entrapment, the criminal intent or design
originates from the accused and the law enforcers merely facilitate the apprehension of the criminal
by using ruses and schemes.45 Instigation results in the acquittal of the accused, while entrapment
may lead to prosecution and conviction.46

Here, the evidence clearly established that the police operatives employed entrapment, not
instigation, to capture appellant and her cohorts in the act of selling shabu. It must be recalled that it
was only upon receipt of a report of the drug trafficking activities of Espiritu from the confidential
informant that a buy-bust team was formed and negotiations for the sale of shabu were made. Also,
appellant testified that she agreed to the transaction of her own free will when she saw the same as
an opportunity to earn money. Notably too, appellant was able to quickly produce a sample. This
confirms that she had a ready supply of the illegal drugs. Clearly, she was never forced, coerced or
induced through incessant entreaties to source the prohibited drug for Carla and PO3 Cariño and
this she even categorically admitted during her testimony.47

Moreover, a police officer’s act of soliciting drugs from appellant during the buy-bust operation, or
what is known as the "decoy solicitation," is not prohibited by law and does not invalidate the buy-
bust operation.48 In People v. Legaspi,49 this Court pronounced that in a prosecution for sale of illicit
drugs, any of the following will not exculpate the accused: "(1) that facilities for the commission of the
crime were intentionally placed in his way; or (2) that the criminal act was done at the solicitation of
the decoy or poseur-buyer seeking to expose his criminal act; or (3) that the police authorities
feigning complicity in the act were present and apparently assisted in its commission."50 Hence, even
assuming that the PAOCTF operatives repeatedly asked her to sell them shabu, appellant’s defense
of instigation will not prosper. This is "especially true in that class of cases where the offense is the
kind that is habitually committed, and the solicitation merely furnished evidence of a course of
conduct. Mere deception by the police officer will not shield the perpetrator, if the offense was
committed by him free from the influence or instigation of the police officer."51

All told, we find no reason to disturb the findings of the trial court as affirmed by the appellate court,
and thus sustain the conviction of appellant for illegal sale of dangerous drugs.

The Penalty

Under Section 15, Article III, in relation to Section 20, Article IV, of the Dangerous Drugs Act of 1972,
as amended by R.A. No. 7659, the unauthorized sale of 200 grams or more of shabu or
methamphetamine hydrochloride is punishable by reclusion perpetua to death and a fine ranging
from five hundred thousand pesos to ten million pesos.52

The total weight of the shabu confiscated in this case is 983.5 grams. Hence, the proper penalty
1âwphi1

should be reclusion perpetua to death. But since the penalty of reclusion perpetua to death consists
of two indivisible penalties, appellant was correctly meted the lesser penalty of reclusion perpetua,
conformably with Article 63(2) of the Revised Penal Code which provides that when there are no
mitigating or aggravating circumstances in the commission of the deed, the lesser penalty shall be
applied. Considering the quantity of shabu sold, we likewise find reasonable the fine of ₱500,000.00
imposed by the trial court.53

WHEREFORE, the assailed Decision dated July 25, 2007 of the Court of Appeals in CA-G.R. CR-
H.C. No. 02045 is AFFIRMED.

SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice

WE CONCUR:

PEOPLE OF G.R. No. 177302

THE PHILIPPINES,
Appellee, Present:

QUISUMBING, J., Chairperson,

CARPIO MORALES,
TINGA,
- versus - VELASCO, JR., and
BRION, JJ.

Promulgated:
April 16, 2009
JAIME LOPEZ, ROGELIO
REGALADO, AND ROMEO
ARAGON,
Appellants.
x--------------------------------------------------x

DECISION

CARPIO MORALES, J.:

Jaime Lopez, Rogelio Regalado and Romeo Aragon (appellants) were charged
of Murder by an Information filed before the Regional Trial Court (RTC) of Surigao
del Sur, the accusatory portion of which reads:

That on or about 3:30 oclock in the afternoon of April 25,

1996 at Bandola Street, Pob. Municipality of Hinatuan, Province of
 Surigao del Sur, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused conspiring, confederating
and mutually helping one another for a common purpose, with
treachery and evident premeditation and with deliberate intent to kill,
and armed with sharp bladed instruments (knives and Tare), did then
and there willfully, unlawfully and feloniously attack, assault, box and
stab to death EDENCITO CHU Y VILLAHERMOSA, thereby
inflicting upon the latter fatal multiple stab wounds as certified to by a
doctor, which caused his instantaneous death, to the damage and
prejudice of the heirs of the said CHU.

CONTRARY TO LAW: (In violation of Article 248 of the

Revised Penal Code of the Philippines, with the aggravating
circumstances of superior strength).[1]

From the evidence for the prosecution, the following version of events is
culled:[2]

At around 3:30 P.M. of April 25, 1996, appellant Rogelio Regalado

(Regalado), who was outside Bantogan[3] Tailoring, a tailoring shop at Bandola street
corner Villaluz, Hinaruan, Surigao del Sur, called out: You let Bonjong come out so
we could measure his courage!, referring to Edencito Chu (Chu) whose nickname is
Bonjong. Chu thereupon emerged from his mothers bakery, Purity Bakery, fronting
the tailor shop, put his arms around Regalados shoulders and asked for
forgiveness. Regalado, however, pushed Chus arms aside, drew a curved four to five
inches long knife as he uttered Putang Ina, ka Jong! and stabbed Chu below the left
nipple.

As Chu ran towards Villaluz street, Regalado chased him and picked up two
pieces of firewood along the way with which he hit Chu.

Appellant Jaime Lopez (Lopez) in the meantime surfaced from a house beside
the tailoring shop and, armed with a hunting knife, joined the chase.

Soon appellant Romeo Aragon (Aragon) also surfaced from the back of the
tailoring shop and also joined the chase.
 The three appellants caught up with Chu at the corner of Lindo and Bandola
streets at which Aragon boxed Chu, causing the latter to
fall. Aragon kicked Chu. Lopez then stabbed Chu several times as Regalado looked
on. When Chu was no longer moving, the three appellants left. Chu expired before
reaching the hospital.

Post-mortem examination of Chus body yielded the following findings:

STAB WOUND LEFT DELTOID 4CM MUSCLE DEEP

PENETRATING STAB WOUND LEFT POSTERIOR AXILLARY

LINE AT THE LEVEL OF T10, 3CM

PENETRATING STAB WOUND RIGHT POSTERIOR AXILLARY

LINE AT THE LEVEL OF T8, 1.5 CM

PENETRATING STAB WOUND RIGHT ANTERIOR TRUNK AT

THE LEVEL OF T10, 1 CM

PENETRATING STAB WOUND LEFT ANTERIOR AXILLARY

LINE 1 CM

STAB WOUND LEFT NIPPLE 1 CM SUBCUTANEOUS DEEP

2 LACERATED WOUNDS LEFT ELBOWS SKIN DEEP 0.5 CM

EACH[4]

Autopsy of Chus body yielded results which coincided with those of the post-
mortem examination, thus:
Body, embalmed, well-preserved.

Embalming incisions, sutured: neck, antero-lateral aspect, right,

3.5 cm.; supra-umbilibical region, right, 1.0 cm.

Contused-abrasions, patellar region, bilateral right, 5.0 x 11.

5cm; left, 11.0 x 12.0cm.

Incised wounds, modified by suturing and embalming: chest,

infra-mammary region, right, 1.5 cm.; inguinal region, right, 1.5 cm.;
forearm, proximal third, postero-lateral aspect, left, 1.6 cm.
Stab wounds, modified by suturing and embalming:

1. Roughly curved-shaped, 4.5cm., edges are clean-cut,

oriented vertically, superior extremity is blunt, inferior
extremity is sharp. Located at the left arm, proximal third,
antero-lateral aspect, 23.0cm. above the left elbow, directed
backward, downward, and laterally, involving the soft
tissue, cutting the major blood vessels with an approximate
depth of 7.5cm.

2. Roughly spindle-shaped, 2.3cm., edges are clean-cut,

oriented vertically, superior extremity is sharp, inferior
extremity is blunt. Located at infra-mammary region,
between sixth (6th) and seventh (7th) intercostal space,
lateral aspect, left, 16.0cm. from anterior median line,
directed, backward, downward, and medially, involving the
soft tissues, into the thoracic cavity, into the pericardial sac,
penetrating the left ventricle of the heart with an
approximate depth of 10.0cm.

3. Roughly spindle-shaped, 1.8cm., edges are clean-cut

oriented vertically, superior extremity is sharp, inferior
extremity is blunt. Located at supra-mammary region; left,
1.0cm.from anterior median line, directed backward,
sideward, and medially involving the soft tissues, cutting
the sternum superficially, with an approximate depth of
5.0cm.

4. Roughly spindle-shaped, 2.0cm., edges are clean-cut,

oriented vertically, superior extremity is blunt, inferior
extremity is sharp. Located at the infra-scapular region,
right, 20.0cm. from posterior median line, directed forward,
downward, and laterally, involving the soft tissues only,
with an approximate depth of 5.0cm.

5. Roughly curved-shaped, 3.5 edges are clean-cut, oriented

horizontally, lateral extremity is blunt, medial extremity is
sharp. Located at the infra-scapular region, 11.0cm. from
posterior medial line, directed forward, downward and
medially, involving the soft tissues only with an
approximate depth of 5.2cm.

Hemopericardium, residual clotted blood 250cc.

 Brain & other visceral organs, pale, embalmed.

Stomach small amount of grayish food particles.[5]

Dr. Ricardo M. Rodaje, who conducted the autopsy, explained that wounds 1
and 5 were caused by a curve-shaped weapon.[6]

At the witness stand,[7] Regalado claimed as follows:

At 3:00 P.M. on April 25, 1996, after he bought a hotcake from the hotcake
stand of Angelina Aragon (Angelina), wife of appellant Aragon and daughter of
appellant Regalado, at the corner of Bandola and Villaluz streets, Chu approached
and choked him.

He elbowed Chu and extricated himself. He then left but Chu pursued him as
he (Regalado) proceeded to Angelinas house at the corner of Espaa and Villaluz
streets where he hid for around two minutes.

When he returned to the hotcake stand, his son-in-law appellant Lopez

summoned him, telling him I have done something, you accompany me in going to
the police station because I am going to surrender.

He and Lopez thereupon boarded a tricycad and repaired to the police station
where Lopez surrendered, handed a knife to the police, and was detained. As he
(Regalado) was about to go home, he was restrained as he might be waylaid
by Chu. The following morning, he was detained because the police found him to
have participated in the killing of Chu.

As for appellant Lopez, he interposed defense of relative and self-defense.[8]

His version goes as follows:

At 3:00 P.M. of April 25, 1996, while he was at one Lily

Balbuenas mahjong house along Villaluz street, he heard a womans voice shouting.
Police, police, police! He thus stepped out and saw Chu chasing Regalado, his father-
in-law, prompting him to go to Regalados nearby house to get a knife, and to
thereafter follow Chu as he was chasing Regalado. Lopez soon

intercepted Chu who boxed him as he (Chu) posed Are you going to defend your
father-in-law? He thereupon stabbed Chu several times and surrendered to the police
station in the company of Regalado.

Appellant Aragon invoked alibi,[9] claiming that at 3:00 P.M. of April 25,
1996, he went to the wharf which is 40 meters away from Angelinas hotcake stand
to buy fish.He waited for 30 minutes for fishermen but no one came, so he went
home. Before reaching his house he was surprised to see many people at the corners
of Villaluz and Bandola streets. Angelina soon met him and told him that Lopez had
stabbed Chu because he choked Regalado.

He later learned that police investigator Pedic Mangin was looking for him,
hence, he visited the latter who told him that they would talk things over at the
municipal hall.When he reached the municipal hall, he was immediately detained.

The defense presented evidence of Chus supposed reputation as a bully who

picked fights for no reason and who had an existing criminal record.[10]

Branch 29 of the Bislig City RTC found the three appellants to have
killed Chu, qualified by treachery which absorbed abuse of superior strength. The
trial court thus disposed:

WHEREFORE, finding the accused JAIME LOPEZ alias

DODONG, ROGELIO REGALADO alias ROGER, and ROMEO
ARAGON, all co-principals by direct participation, guilty beyond
reasonable doubt of the crime of MURDER defined and penalized
under Article 248 of the Revised Penal Code, as amended by Republic
Act No. 7659, this Court hereby sentences them to suffer the penalty of
Reclusion Perpetua with all the accessory penalties provided by law.

To pay the heirs of the victim the sum of one hundred nine
thousand six hundred seventy five pesos and forty (P109,675.40)
 centavos as interment and burial expenses, fifty thousand (P50,000.00)
pesos as life indemnity twenty-three thousand (P23,000.00) pesos as
attorneys fees, and ten thousand (P10,000) pesos as exemplary
damages.

To pay the cost.

SO ORDERED.[11]

On appeal, appellants faulted the trial court for

x x x FINDING THAT CONSPIRACY ATTENDED THE KILLING

OF THE VICTIM.

II

x x x NOT CONSIDERING THE DEFENSES INTERPOSED BY

THE ACCUSED-APPELLANTS.[12]

III

x x x CONVICTING THE ACCUSED APPELLANTS OF

MURDER.[13]

The Court of Appeals affirmed the trial courts decision,[14] hence, the present
appeal.[15]

The appeal is bereft of merit.

This Court finds no reason to overturn the factual findings of the trial court,
especially since the prosecutions version is culled from the testimony of
eyewitnesses.
 Appellants disclaimer of the presence of conspiracy fails. The evidence shows
that they cooperated in a common design to kill Chu. Regalado initiated the killing
when he stabbed Chu on the chest, and the two other appellants joined Regalado in
chasing Chu, with Regalado hitting Chu with firewood along the way. Then, when
the three of them had cornered Chu, Aragon boxed and kicked Chu, enabling Lopez
to stab him several times. These indicate a conspiracy.

Aragons alibi does not persuade. As the trial court held:

x x x From the ocular inspection of the wharf conducted in

Hinatuan, Surigao del Sur on February 26, 2000,[16] it was established
that the wharf was located at the dead-end portion of Villaluz
Street. Aragon was at the wharf at about the same date and time of the
stabbing incident, allegedly to buy fish. He was seated at the last step
of the wharf. He stayed there for thirty (30) minutes to wait for a pump
boat bringing in fish but there was none. At about the time of the
incident, the water level was supposed to be low tide[17] so that no pump
boat, if there was any, can dock on the wharf. Applying common sense,
nobody in his right mind would wait for about thirty (30) minutes just
to buy fish where no pump boat is in sight. x x x Aragon was positively
identified by prosecution witnesses, hence his defense of being at the
wharf does not hold water. For alibi to prosper, accused must prove not
only (1) that he was somewhere else when the crime was committed;
but (2) it must likewise be demonstrated that he was so far away that he
could not have been physically present at the place of the crime or its
immediate vicinity at the time of its commission. In this case, the wharf
was only a few meters from the scene of the
incident. Ergo, Aragon could have been physically present at the place
or its immediate vicinity at the time of the commission of the
crime. (Citations omitted)[18]

Neither does Lopezs defense of relative. As the Court of Appeals held:

 Under [Paragaraph 2 of Article 11 of the Revised Penal Code],
the elements of the justifying circumstance of defense of relatives are
as follows:

1. Unlawful aggression;
2. Reasonable necessity of the means employed to prevent or
repel it;
3. In case provocation was given by the person attacked, that
the one making the defense had no part therein.

Even if We adopt accused-appellants version of the incident, We

still find the foregoing elements absent in the case at bar.

As alleged by Lopez, he merely heard someone shouting police,

police, police! and when he looked out he allegedly saw his father-in-
law being chased by Chu. He then went to Regalados house to get a
knife and when he caught up with Chu, he no longer saw accused-
appellant Regalado and it was only Chu who was there. He allegedly
stabbed Chu because of the latters threatening words, Are you going to
defend your father-in-law?

We cannot, by any stretch of imagination, consider said remarks

threatening as to consider it unlawful aggression. It bears stressing that
unlawful aggression, as defined under the Revised Penal Code,
contemplates assault or at least threatened assault of an immediate and
imminent kind. There is unlawful aggression when the peril to ones life,
limb or right is either actual or imminent. To constitute unlawful
aggression, it is necessary that an attack or material aggression, an
offensive act positively determining the intent of the aggressor to cause
injury shall have been made. A mere threatening or intimidating
attitude is not sufficientthere must be a real danger to life and personal
safety.

Even assuming ex gratia argumenti, that there was unlawful

aggression on Chus part when he chased Regalado, Lopez was not
justified in stabbing Chu since as admitted by him, he did not see
accused-appellant Regalado anymore when he was able to catch up
with Chu. The unlawful aggression of Chu, had it indeed been present,
had already ceased when upon reaching Chu, as Regalado, whom
Lopez allegedly wanted to protect, was no longer there. When an
unlawful aggression that has begun no longer exists, the one who
 resorts to self-defense has no right to kill or even to wound the former
aggressor.

We further do not find any reasonable necessity in the means

employed by Lopez to repel Chus alleged aggression.

Nowhere in the records is it shown that when Chu allegedly

chased Regalado, the former was wielding a weapon. Thus, the
intention of Lopez to get a knife for his protection and that of his father-
in-law was unwarranted.

The fact that Chu allegedly boxed and taunted him prompting
him to stab the victim several times in retaliation negates the
reasonableness of the means employed to repel Chus aggression
assuming that indeed, Chu started the aggression. x x x

xxxx

The wounds sustained by Chu xxx indicate that the assailant

who inflicted the same was more in a killing rage than one who was
merely acting in defense of a relative.[19](Underscoring supplied)

Finally, appellants denial of the existence of treachery in this wise does not
convince:

x x x Based on the prosecution witnesses testimony, the victim

was allegedly asking forgiveness from accused-appellant Rogelio
Regalado and placed his hands on his shoulder when the latter stabbed
the former. Based from the foregoing, it is apparent that the victim
committed a wrongful act against herein accused-appellant, which was
so grave that there was a need for him to ask for forgiveness. Thus, x x
x the victim was expecting a retaliation from herein accused-
appellant.[20] (Underscoring supplied)

The essence of treachery is a deliberate and sudden attack that renders the
victim unable and unprepared to defend himself by reason of the suddenness and
severity of the attack.[21]
 In the case at bar, Chu was caught off-guard when, after he was asking
forgiveness from Regalado, the latter suddenly drew a curved knife and stabbed and
pursued the following victim. And once Regalado and his co-appellants
cornered Chu, Aragon kicked and punched him while Lopez stabbed him several
times to thus preclude Chua from defending himself.

WHEREFORE, the appeal is DENIED. The September 22, 2008 Decision

of the Court of Appeals is AFFIRMED.

Costs against appellant.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

CONRADO CANO y SAMPANG, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION
YNARES-SANTIAGO, J.:

The primordial issue to be resolved in this petition for certiorari is whether

or not petitioner killed his brother in self-defense.
 Petitioner Conrado Cano y Sampang and his deceased brother Orlando
Cano were rivals in the Rush ID Photo business and had booths along the
sidewalk of Rizal Avenue, Sta. Cruz, Manila fronting the Philippine Trust Bank
and Uniwide Sales Department Store. The fateful altercation which culminated
in the fatal stabbing of Orlando Cano stemmed out of this rivalry, particularly
the incident where Conrado took the business permit from the booth of Orlando
without his permission thus incurring the latters ire.
The prosecutions version of what transpired as summarized in the Peoples
brief shows that in the morning of May 31, 1993, at about 7:00 oclock, the
[1]

victim Orlando Cano arrived at the Rush ID Booth of petitioner located below
the LRT line in Rizal Avenue, Sta. Cruz, Manila. The victim asked David
Olivario, an employee of petitioner, where the latter was. The victim angrily said
that petitioner was pakialamero. He also said, Putang ina niya! Why did he
Xerox our permit. Since petitioner had not yet arrived, the victim returned to his
own Rush ID booth located several meters away. [2]

Later, at about 9:30 a.m., petitioner arrived at his Rush ID booth. After giving
supplies to Olivario, petitioner said he was going to the City Hall. He faced the
mirror and started to comb his hair. The victim suddenly arrived and held
petitioner on the shoulders and turned him around. The victim asked
him, Anong gusto mong mangyari? Accused did not answer. [3]

The victim tried to stab petitioner with a balisong but the latter was able to
run and lock himself inside the dark room inside his booth. The victim followed
him and tried to open the door of the dark room and shouted, Lumabas ka diyan!
Putang ina mo, papatayin kita! Petitioner did not come out. The victim tried to
force the door open by kicking it and stabbed the door with his balisong. The
door of the dark room suddenly opened and petitioner emerged carrying a pair
of scissors. The victim and petitioner struck at each other. During the scuffle,
the scissors fell from petitioners hand. He then grabbed the knife of the victim
who, in turn, picked up the scissors. They again attacked each other. [4]

The victim fell and his wife rushed to his side. Petitioner fled from the scene.
The victims wife asked for assistance from the people in the vicinity. The victim
was then loaded on a jeep and was rushed to a hospital, but he was dead on
arrival. [5]

The autopsy report submitted by the medico-legal officer of the Western

Police District, Dr. Manuel Lagonera, shows that the victim sustained at least
thirty (30) stab wounds, six (6) of which were fatal. On the other hand,
[6]

petitioner suffered only an incised wound on the right hand measuring six (6)
cm., which required less than nine (9) days of treatment.
 Petitioner had a different account of what transpired. He testified that on
May 31, 1993 at around 9:30 a.m. he went to his Rush ID booth in front of the
Philtrust Bank to deliver supplies to his photographer, David Olivario. After [7]

handing over said supplies to Olivario, petitioner intended to go to the Manila

City Hall to apply for a business permit.[8]

Petitioners earlier application for a permit was denied. He sought a [9]

reconsideration from the city officials and argued that his brother was issued a
similar permit. In order to prove his point, he borrowed the permit of his brother
from his nephew, Wilson Reyes, to have it machine copied. After doing so,
[10]

petitioner returned it. The victim apparently resented this because petitioner
[11]

was informed by David Olivario that Gloria Cano later went to petitioners stall
angrily inquiring why they got the permit. [12]

As petitioner was combing his hair and preparing to leave for the Manila City
Hall, the victim, Orlando, suddenly appeared from behind, grabbed him by the
left shoulder and jerked him around so that they were face to face. As they [13]

stood face to face, Orlando menacingly said, Anong gusto mong

mangyari? Petitioner noticed Orlando holding a balisong, and he ran to the
[14]

dark room of his stall. [15]

The victim pursued him and tried to force open the locked dark room door
by kicking it and stabbing it with the fan knife. He kept shouting, Get out of
[16]

there! Pakialamero ka! Get out of there and I will kill you! The door suddenly
[17]

gave way and, as it opened, the victim charged at petitioner, but he was able to
evade the attack. Snatching a pair of scissors nearby, petitioner retaliated but
the scissors fell from his grasp because it was parried by the victim. Petitioner [18]

then grabbed the hand of the victim holding the balisong and they grappled to
gain possession thereof. He eventually wrested control of the knife and as he
stood momentarily, the victim picked up the scissors and again lunged at him. [19]

With nowhere to go, petitioner was forced to defend himself from the
onslaught of the victim who was armed with the nine-inch long pair of pointed
scissors. No bystanders tried to pacify them as they engaged in their deadly
[20]

struggle for almost two (2) minutes. Suddenly, the victim collapsed and fell
bloodied to the floor. [21]

Petitioner stooped to lift his brother up, intending to bring him to the
hospital. However, he was hit by the victims wife with a chair. Then, she started
shouting, Holdupper! Petitioner was forced to flee from the scene for fear of
[22]

being lynched by the people who had gathered around armed with clubs. The
people pursued him but when he saw a policeman coming in his direction, he
threw the balisong away and raised his hands in surrender. He was then [23]
brought to the police precinct and later to the hospital for treatment of his
injuries. [24]

Petitioner was charged with Homicide in an Information which alleges

[25]

That on or about May 31, 1993, in the City of Manila, Philippines, the said accused,
with intent to kill, did then and there willfully, unlawfully and feloniously attack,
assault and use personal violence upon one ORLANDO CANO y SAMPANG, by
then and there stabbing the latter on the different parts of his body, thereby inflicting
upon the said ORLANDO CANO Y SAMPANG mortal and fatal wounds which were
the direct and immediate cause of his death thereafter.

Contrary to law.

The case was docketed as Criminal Case No. 93-121668 and filed with the
Regional Trial Court of Manila, Branch 31.
Upon arraignment, petitioner pleaded not guilty to the offense charged. The
case thereupon proceeded to trial. After trial, the court a quo rendered
judgment finding petitioner guilty beyond reasonable doubt of the crime and
[26]

sentencing him to serve an imprisonment of seventeen (17) years, four (4)

months and one (1) day of reclusion temporal and to indemnify the heirs of the
deceased P50,000.00 plus costs.
Petitioner interposed an appeal to the Court of Appeals, where it was
docketed as CA-G.R. CR No. 19254.
During the pendency of the appeal, Gloria Cano, the widow of the victim,
[27]

executed a Sinumpaang Salaysay stating, among others, that petitioner

[28]

merely acted in self-defense and that she was withdrawing the charge against
him. This sworn statement became the basis of an Urgent Motion for New
Trial on the ground of newly discovered evidence filed by counsel for
[29]

petitioner.
This motion for new trial was, however, denied by the Court of Appeals in a
Resolution dated March 19, 1998. [30]

The appellate court subsequently rendered judgment affirming petitioners

conviction but modifying the penalty to an indeterminate sentence of
imprisonment ranging from nine (9) years and one (1) day of prision mayor, as
minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as
maximum. Petitioner was likewise ordered to pay the heirs of the victim actual
damages of P24,605.75; P50,000.00 as moral damages and another
P50,000.00 as civil indemnity ex delicto plus costs. [31]
 Preliminarily, the Solicitor General argues that the petition raises merely
factual issues, such as whether or not petitioner is entitled to the justifying
circumstance of self-defense and the mitigating circumstance of provocation or
threat and voluntary surrender. These issues, says the Solicitor, are not proper
for a petition for review under Rule 45 of the Rules of Civil Procedure.
Concededly, those who seek to avail of the remedies provided by the rules
must adhere to the requirements thereof, failure of which the right to do so is
lost. It is, however, equally settled that rules of procedure are not to be applied
in a very rigid, technical sense and are used only to help secure substantial
justice. If a technical and rigid enforcement of the rules is made, their aim would
be defeated. They should be liberally construed so that litigants can have
[32]

ample opportunity to prove their claims and thus prevent a denial of justice due
to technicalities. [33]

Therefore, we shall proceed to resolve the issue of whether or not petitioner

is entitled to invoke the justifying circumstance of self-defense, considering that
what is at stake is not merely his liberty, but also the distinct possibility that he
will bear the stigma of a convicted felon and be consigned to the fate of being
a social pariah for the rest of his life.
As can be seen from the foregoing, the prosecution and the defense have
diametrically opposed factual versions of what transpired immediately
preceding the killing. Our task is to determine which of them is the truth. In
resolving such conflict, dealing as it does with the credibility of witnesses, the
usual rule is for us to respect the findings of the trial court considering that it
was in a better position to decide the question, having heard the witnesses
themselves and having observed their deportment and manner of testifying
during trial. Nonetheless, this rule is circumscribed by well-established
[34]

exceptions. [35]

In the case at bar, the record shows circumstances of weight and influence
which have been overlooked, or the significance of which has been
misinterpreted, that if considered would affect the result of the case. [36]

For self-defense to prosper, petitioner must prove by clear and convincing

evidence the following elements: (1) unlawful aggression on the part of the
victim; (2) reasonable necessity of the means employed to prevent or repel it;
and (3) lack of sufficient provocation on the part of the person defending
himself. Although all the three elements must concur, self-defense must rest
[37]

firstly on proof of unlawful aggression on the part of the victim. If no unlawful

aggression has been proved, no self-defense may be successfully pleaded,
whether complete or incomplete. In other words in self-defense, unlawful
[38]

aggression is a primordial element. It presupposes an actual, sudden and

unexpected attack or imminent danger on the life and limb of a person not a
mere threatening or intimidating attitude but most importantly, at the time the
defensive action was taken against the aggressor. [39]

In the case at bar, there are several material circumstances which were
ignored by both the court a quo and the appellate tribunal.
First, contrary to the findings of both the appellate and trial courts, there are
facts extant on record which clearly shows that it was an armed victim who
initially attacked the petitioner with a balisong. Petitioner testified on the assault
thus:
Atty. Ferrer:
What happened after that when Orlando Cano grabbed you and came face to face with
him?
A. I answered him none but he was in a menacing position with his hands around
something and I suddenly ran away.
Q. What was that something in the hands of Orlando Cano that made you run away?
A. Balisong 29, Sir.
Atty. Ferrer:
And where did you run to?
A. I went inside my booth because that is the only place I can run to.
Q. And what happened inside your booth, if any?
A. He also ran after me and then when I was inside we were having a tug of war of the
doorknob which I tried to close and which he tried to open.
Q. What happened after that?
A. But I was able to close the door but he kept on kicking the door that I turned deaf.
Q. What else happened, if any?
A. While he was kicking, he was also stabbing the door with the 29 (balisong) he was
holding.
Q. And you said you heard the thudding of the door making noise, what happened if
any?
A. He kept on shouting, Get out of there! Pakialamero ka! Get out of there and I will kill
you.
Q. What did you do did you go out?
A. While he was shouting I did not notice that the door was not completely closed
because the lock went on and the door suddenly opened.
Q. What happened after the door got open?
A. When the door opened he again rushed me, stabbed and I was able to evade it.
 Atty. Ferrer:
What else happened?
Witness:
A. I was able to grab a scissors and that was the time I retaliated.
Q. Who owned this scissors?
A. That scissors was mine because it is used in cutting paper.
Q. Now, you said you retaliated after grabbing a pair of scissors where did you
retaliate?
A. I was about to retaliate in the door of the room because the room was very small.
Q. Where you able to retaliate?
A. No, sir, I was not able to retaliate because the scissors fell when he was able to
parry it.
Q. What happened after that, after that piece of scissors fell from your hold?
A. I took hold of his hand holding the balisong and we had a scuffle to get hold or
possession of the balisong.
Q. What happened after the scuffling for the balisong?
A. After one (1) minute I was able to grab possession of the balisong.
Q. What happened after that?
A. When I was able to get hold of the balisong I just remained standing and I just . . .
Q. What else happened?
A. He was able to pick up the scissors that I dropped and he again launched [himself]
at me [with] the scissors.
Q. What did you do, if any?
A. That was the time when my mind was confused and I dont have any place to go and
I tried to defend myself and we fought each other.
Atty. Ferrer :
And at the time when you said you fought each other, Orlando Cano was holding the
scissors and you were holding the balisong, correct?
A. Yes, sir.[40]

David Olivario, who was five meters away and saw what transpired,
corroborated petitioners account. He remained steadfast and unwavering on
[41]

cross-examination despite intense grilling by the prosecution and further [42]

clarificatory questioning from the trial court itself. [43]

Second, the physical evidence is more in accord with petitioners version of

what transpired, specifically his assertion that it was the victim who was armed
and persisted in his attack on the petitioner even though the latter locked
himself inside the dark room of his stall to protect himself. The findings of Police
Investigator SPO3 Julian Z. Bustamante contained in his Advance Information
Report discloses that [H]oles were observed at the door near the door lock of
[44]

suspects rush ID photo booth apparently made by a hard pointed

instrument Aside from stating that a fan knife and a pair of scissors which both
[45]

yielded positive results for traces of human blood were recovered, the report
went further to note that the bloodied scissor were (sic) recovered in front of
suspects rush ID photo booth door. [46]

The foregoing entries of the Advance Information Report, particularly that

referring to the location of the bloodied scissors, supports petitioners claim that
when he could no longer avoid the unlawful aggression of the victim, he was
compelled to grab at the instrument inside the booth to defend
himself. However, the scissors fell from his grasp, thus forcing him to
desperately grapple for possession of the fan knife.
Third, circumstances prior to the fatal incident shows that it was the victim
who purposely sought to confront the petitioner because the latter had his
business permit machine copied without his permission. Maria Cano, an aunt
of the victim and petitioner, testified thus:
Q: And Orlando Cano, did he tell you any reason why he was waiting for Conrado
Cano [at] that particular morning?
A: Because he was very angry and said that there will be an encounter between them.
Atty. Ferrer:
What did you do, if any?
Witness:
A: You brothers you should calm down because you are brothers.
Q: By the way what was the reason why, if you know why, Orlando told you that silay
magtutuos, quoting your own words?
A: Orlando Cano is mad because Conrado Cano got Orlandos business permit and
had it xeroxed and after xeroxing it and he returned the permit of Orlando Cano.
Q: Could you tell us how Orlando Cano uttered those words magtutuos?
A: Orlando Cano told me this is the day when we will have a confrontation and at this
juncture, I even tapped [his] right pocket, I did not see what was there but I saw
the handle.
xxxxxxxxx
Q: As the aunt of the two (2) what was your reaction when Orlando told you that?
A: I told, Orlando, calm down because you are brothers and if something bad that will
happen (sic) your mother will suffer because of the incident.
 Atty. Ferrrer:
And what was the reaction of Orlando, if any, after you said those words of advice?
A: Orlando Cano answered me, well, shall I remain silent and will not utter any word at
all?
Q: And was that that (sic) word confined to Orlando?
A: No, Sir, because I also advised Gloria.
Q And what was the advise you gave Gloria?
A: I told Gloria because the only one who can prevent this incident is you because
Orlando is your husband.
Q: And what was the reaction, if any of Gloria Cano?
A: Gloria told me, there is nothing I can do because they are brothers and they are
responsible for their own lives.
Q: What else happened, if any?
A: That was the time I bid goodbye.[47]
(emphasis and italics supplied)
Fourth, the record reveals that while indeed numerous wounds were
sustained by the victim, the Medico-Legal Officer who conducted the autopsy
admitted that of the thirty-five (35) wounds supposedly inflicted, thirty-three
(33) were scratches and contusions while only six (6) were penetrating or stab
wounds. As regards the finding that petitioner suffered only one hand wound,
[48]

it should be stressed that the superficiality of the nature of the wounds inflicted
on the accused does not, per se, negate self-defense. Indeed, to prove self-
defense, the actual wounding of the person defending himself
is not necessary. It is sufficient that the aggression be attempted so as to give
rise to the right to prevent it. The act of a person armed with a bladed weapon
[49]

pursuing another constitutes unlawful aggression because it signifies the

pursuers intent to commit an assault with this weapon. [50]

The particular circumstances which confronted the petitioner at the time of

the incident condoned the means he employed to protect his life. It must be
remembered that the measure of rational necessity is to be found in the
situation as it appeared to petitioner at the time when the blow was struck. The
law does not require that he should mete out his blows in such manner that
upon a calm and deliberate review of the incident it will not appear that he
exceeded the precise limits of what was absolutely necessary to put his
antagonist hors de combat, or that he struck one blow more than was absolutely
necessary to save his own life; or that he failed to hold his hand so as to avoid
inflicting a fatal wound where a less severe stroke might have served the
purpose. Under such conditions, an accused cannot be expected to reflect
coolly nor wait after each blow to determine the effects thereof. [51]

. . . the reasonableness of the means employed to repel an actual and positive

aggression should not be gauged by the standards that the mind of a judge, seated in
a swivel chair in a comfortable office, free from care and unperturbed in his
security, may coolly and dispassionately set down. The judge must place himself in
the position of the object of the aggression or his defender and consider his feelings,
his reactions to the events or circumstances. It is easy for one to state that the object
of the aggression or his defender could have taken such action, adopted such remedy,
or resorted to other means. But the defendant has no time for cool deliberation, no
equanimity of mind to find the most reasonable action, remedy or means to. He must
act from impulse, without time for deliberation. The reasonableness of the means
employed must be gauged by the defenders hopes and sincere beliefs, not by the
judges.[52]

Fifth, there was lack of sufficient provocation on the part of petitioner. When
the law speaks of provocation either as a mitigating circumstance or as an
essential element of self-defense, it requires that the same be sufficient or
proportionate to the act committed and that it be adequate to arouse one to its
commission. It is not enough that the provocative act be unreasonable or
annoying. This third requisite of self-defense is present: (1) when no
[53]

provocation at all was given to the aggressor; (2) when, even if provocation was
given, it was not sufficient; (3) when even if the provocation was sufficient, it
was not given by the person defending himself; or (4) when even if a
provocation was given by the person defending himself, it was not proximate
and immediate to the act of aggression. [54]

Petitioner borrowed the permit of the victim and had it photocopied without
the latters permission two (2) days before the incident. The victim and his wife
[55]

resented this. However, this can hardly be considered a provocation sufficient

to merit so deadly an assault with a bladed weapon. Moreover, the act was
neither immediate nor proximate. What, in fact, appears on record is the
[56]

bellicose temperament of the victim and his spouse who, despite the advice of
their Aunt Maria Cano to calm down, still persisted in confronting petitioner.
When the question is raised who between the accused and the offended party
gave provocation, the circumstances of subjective, objective and social
character may be considered in reaching a definite conclusion. Thus an [57]

accused, to prove provocation in connection with his plea of self-defense, may

show that the victim, as in this case, had a quarrelsome and irascible
disposition. [58]
 Sixth, two other notable circumstances on record tend to show that
petitioner was impelled by the instinct of self-preservation rather than the
murderous urge of one bent on killing. The first is when petitioner was able to
wrest the balisong from the victim, he never took advantage of the opportunity
to attack his already weaponless brother. Rather, he stood still and was forced
to act only when the victim picked up the scissors and lunged at him
again. The second instance is when the victim fell. Had petitioner been
[59]

actuated by homicidal intentions, he would have persisted in his attack on his

prostrate brother. He did nothing of the sort. He, in fact, intended to lift the victim
up and bring him to the hospital but the sudden appearance of the victims wife
who hit him with a chair forced him to flee. Moreover, armed people were
attracted by the shouts of the victims wife and had gathered and started
pursuing him. [60]

Seventh, while the general policy is for the courts not to attach any
persuasive evidentiary value to the affidavit of retraction of the victims widow,
such sworn statement acquires a weightier and more decisive evidentiary
consideration when taken in conjunction with the other prevailing facts in this
case. Thus, it has oft been said that where inculpatory facts and circumstances
are susceptible of two or more interpretations, one of which is consistent with
the innocence of the accused while the others may be compatible with a finding
of guilt, the Court must acquit the accused because the evidence does not fulfill
the test of moral certainty required for conviction. [61]

All told, evidence shows that petitioner acted in lawful self-defense. Hence,
his act of killing the victim was attended by a justifying circumstance, for which
no criminal and civil liability can attach. Article 11 (1) of the Revised Penal
[62]

Code expressly provides that anyone who acts in lawful self-defense does not
incur any criminal liability. Likewise, petitioner is not civilly liable for his lawful
act. The only instance when a person who commits a crime with the attendance
of a justifying circumstance incurs civil liability is when he, in order to avoid an
evil or injury, does an act which causes damage to another, pursuant to
subdivision 4 of Article 11 of the Revised Penal Code. Otherwise stated, if a
[63]

person charged with homicide successfully pleads self-defense, his acquittal by

reason thereof will extinguish his civil liability.[64]

WHEREFORE, in view of all the foregoing, the judgment appealed from is

REVERSED and SET ASIDE. Petitioner Conrado Cano y Sampang is
ACQUITTED of the crime charged against him and his immediate release from
custody is ordered unless there is another cause for his continued detention.
Costs de oficio.
SO ORDERED.
 PEOPLE OF THE PHILIPPINES, G.R. No. 179943
Appellee,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
-versus- CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

MARLON ALBERT Promulgated:

DE LEON yHOMO,
Appellant. June 26, 2009

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

DECISION
PERALTA, J.:

This is an appeal from the Decision[1] of the Court of Appeals (CA), affirming
with modification the Decision[2] of the Regional Trial Court (RTC), Branch 76, San
Mateo, Rizal, finding appellant Marlon Lambert De Leon y Homo guilty beyond
reasonable doubt of the crime of robbery with homicide.

The factual and procedural antecedents are as follows:

According to the prosecution, in the early morning, around 2 o'clock of

January 7, 2000, Eduardo Zulueta and Fortunato Lacambra III, both gasoline
boys; Julieta Amistoso, cashier; and Edralin Macahis, security guard; all employees
of Energex Gasoline Station, located at Barangay Guinayan, San Mateo, Rizal, were
on duty when a mint green-colored Tamaraw FX arrived for service at the said
gasoline station.[3]

Eduardo Zulueta was the one who attended to the said vehicle. He went to the
drivers side in order to take the key of the vehicle from the driver so that he could
open the gas tank. He saw through the lowered window shield that there were about
six to seven persons aboard the vehicle. He proceeded to fill up P50.00 worth of
diesel in the gas tank.After doing this, he returned the key to the driver. While
returning the key, the driver told him that the engine of the vehicle would not
start.[4] Eduardo Zulueta offered to give the vehicle a push. While Eduardo Zulueta
and fellow gasoline boy Fortunato Lacambra III were positioned at the back of the
vehicle, ready to push the same, the six male passengers of the same vehicle, except
the driver, alighted and announced a hold-up. They were armed with a shotgun and
.38 caliber pistol.[5]

Fortunato Lacambra III was ordered to lie down,[6] while Eduardo Zulueta was
directed to go near the Car Wash Section.[7] At that instance, guns were poked at
them.[8]
 Appellant, who guarded Eduardo Zulueta, poked a gun at the latter and took
the latter's wallet containing a pawnshop ticket and P50.00, while the companion of
the former, hit the latter on his nape with a gun.[9]

Meanwhile, four members of the group went to the cashier's office and took
the money worth P3,000.00.[10] Those four robbers were also the ones who shot
Edralin Macahis in the stomach.[11] Thereafter, the same robbers took Edralin
Macahis' service firearm.[12]

After he heard successive gunshots, Eduardo Zulueta saw appellant and his
companions immediately leave the place.[13] The robbers boarded the same vehicle
and proceeded toward San Mateo, Rizal.[14] When the robbers left, Eduardo Zulueta
stood up and found Julieta Amistoso, who told him that the robbers took her bag and
jewelry. He also saw that Edralin Macahis had a gunshot wound in the stomach. He
immediately hailed a vehicle which transported the injured Edralin Macahis to the
hospital.[15] Later on, Edralin Macahis died at the hospital due to the gunshot
wound.[16]

The following day, Eduardo Zulueta identified appellant as one of the robbers
who poked a gun at him.[17]

However, according to appellant, from January 4 to 6, 2000, he stayed at the

house of his Tita Emma at Pantok, Binangonan, Rizal, helping the latter in her
canteen. On the evening of January 6, at approximately 9 o'clock, appellant asked
permission from his Tita Emma to go to Antipolo. Catherine Homo, appellant's
cousin and the latter's younger brother, accompanied appellant to the terminal. While
waiting for a ride, the vehicle, a Tamaraw FX, of a certain Christian Gersalia, a
relative of appellant and Catherine Homo, passed by. Catherine Homo asked
Christian Gersalia if he would allow appellant to hitch a ride on his vehicle. Christian
Gersalia agreed. Aside from Christian Gersalia, there were other passengers in the
said vehicle.[18]

When the vehicle reached Masinag, where appellant was supposed to alight,
he was not allowed to do so; instead, he was asked by the other passengers to join
them in their destination. While on the road, appellant fell asleep. When he woke up,
they were in a gasoline station. He then saw Christian Gersalia and the other
passengers conducting a hold-up. He never left the vehicle and was not able to do
anything because he was overwhelmed with fear. After he heard the gunshots,
Christian Gersalia and the other passengers went to the vehicle and proceeded
towards Marikina. On their way, they were followed by policemen who fired at
them. The other passengers fired back at the policemen. It was then that the vehicle
hit a wall prompting the other passengers to scamper in different directions leaving
him behind. When the policemen arrived, he was immediately arrested.[19]

As a result of the above incident, four Informations for Robbery with

Homicide were filed against appellant, Rudy Gersalia, Christian Gersalia, Dondon
Brenvuela, Jonathan Brenvuela, Pantoy Servantes, an alias Rey, an alias Jonard, an
alias Precie, and an alias Renato, which read as:

Criminal Case No. 4747

That on or about the 7th day of January 2000, in the Municipality of

San Mateo, Province of Rizal, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring and
confederating together with Rudy Gersalia, Christian Gersalia, Dondon
Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias
Jonard, Alias Precie and Alias Renato whose true names, identities and
present whereabouts are still unknown and still at-large, and conspiring
and mutually helping and assisting one another, while armed with
unlicensed firearms and acting as a band, with intent of gain with
aggravating circumstances of treachery, abuse of superior strength and
using disguise, fraud or craft and taking advantage of nighttime, and by
means of motor vehicle and by means of force, violence and intimidation,
employed upon ENERGEX GASOLINE STATION, owned by Regino C.
Natividad, and represented by Macario C. Natividad, did then and there
willfully, unlawfully and feloniously rob, steal and carry away its cash
earnings worth P3,000.00, to the damage and prejudice of said Energex
Gasoline Station in the aforesaid amount of P3,000.00 and on the occasion
of the said robbery, the above-named accused, while armed with
unlicensed firearms with intent to kill, conspiring and confederating
together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela,
Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias
Precie and Alias Renato, whose true names, identities and present
whereabouts are still unknown and still at-large, did then and there
willfully, unlawfully and feloniously attack, assault and shoot one
EDRALIN MACAHIS, a Security Guard of Energex Gasoline Station,
thereby inflicting upon him gunshot wound on his trunk which directly
caused his death.

Contrary to law.

Criminal Case No. 4748

That on or about the 7th day of January 2000 in the Municipality of

San Mateo, Province of Rizal, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring and
confederating , together with Rudy Gersalia, Christian Gersalia, Dondon
Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias
Jonard, Alias Precie and Alias Renato, whose true names, identities and
present whereabouts are still unknown and still at-large and conspiring
and mutually helping and assisting one another, while armed with
unlicensed firearms and acting as a band, with intent of gain, with
aggravating circumstances of treachery, abuse of superior strength and
using disguise, fraud or craft and taking advantage of nighttime, and by
means of a motor vehicle and by means of force, violence and
intimidation, employed upon the person of JULIETA A. AMISTOSO, the
Cashier of Energex Gasoline Station, did then and there willfully,
unlawfully and feloniously rob, steal and carry away the following, to wit:

a) One (1) ladies ring with sapphire stone valued at P1,500.00

b) One (1) Omac ladies wristwatch valued at P2,000.00
c) Guess black bag valued at P500.00
d) Leather wallet valued at P150.00
e) White T-Shirt valued at P175.00

to her damage and prejudice in the total amount of P4,325.00 and on the
occasion of the said robbery, the above-named accused while armed with
unlicensed firearms with intent to kill, conspiring and confederating
together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela,
Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias
Precie and Alias Renato, whose true names, identities and present
whereabouts are still unknown and still at-large, did then and there
willfully, unlawfully and feloniously attack, assault and shoot one
EDRALIN MACAHIS, a Security Guard of Energex Gasoline Station,
thereby inflicting upon him gunshot wound on his trunk which directly
caused his death.
 Contrary to law.

Criminal Case No. 4749

That on or about the 7th day of January 2000, in the Municipality of

San Mateo, Province of Rizal, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring and
confederating together with Rudy Gersalia, Christian Gersalia, Dondon
Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias
Jonard, Alias Precie and Alias Renato, whose true names, identities and
present whereabouts are still unknown and still at-large, and conspiring
and mutually helping and assisting one another, while armed with
unlicensed firearms and acting as a band, with intent of gain, with
aggravating circumstances of treachery, abuse of superior strength and
using disguise, fraud or craft and taking advantage of nighttime, and by
means of a motor vehicle and by means of force, violence and
intimidation, employed upon EDRALIN MACAHIS, a Security Guard of
Energex Gasoline Station, did then and there willfully, unlawfully and
feloniously rob, steal, and carry away his service firearm .12 gauge
shotgun with serial number 13265 valued at P12,000.00 owned by Alert
and Quick (A-Q) Security Services Incorporated represented by its
General Manager Alberto T. Quintos to the damage and prejudice of said
Alert and Quick (A-Q) Security Services Incorporated in the aforesaid
amount of P12,000.00 and on the occasion of the said robbery the above-
named accused, while armed with unlicensed firearms, with intent to kill
conspiring and confederating together with Rudy Gersalia, Christian
Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes,
Alias Rey, Alias Jonard, Alias Precie and Alias Renato, whose true names,
identities and present whereabouts are still unknown and still at-large, did
then and there willfully, unlawfully and feloniously attack, assault and
shoot one EDRALIN MACAHIS, thereby inflicting upon him gunshot
wound on his trunk which directly caused his death.

Contrary to law.

Criminal Case No. 4750

 That on or about the 7th day of January 2000, in the Municipality of
San Mateo, Province of Rizal, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring and
confederating together with Rudy Gersalia, Christian Gersalia, Dondon
Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias
Jonard, Alias Precie and Alias Renato, whose true names, identities and
present whereabouts are still unknown and still at-large and conspiring
and mutually helping and assisting one another, while armed with
unlicensed firearms and acting as a band, with intent of gain, with
aggravating circumstances of treachery, abuse of superior strength and
using disguise, fraud or craft and taking advantage of nighttime, and by
means of a motor vehicle and by means of force, violence and
intimidation, employed upon the person of EDUARDO ZULUETA, a
gasoline boy of Energex Gasoline Station, did then and there willfully,
unlawfully and feloniously rob, steal and carry away the following to wit:

a) Pawnshop Ticket from M. Lhuiller Pawnshop for

one (1) black Citizen men's watch (automatic) valued
at P2,000.00

b) Cash money worth P50.00

to his damage and prejudice in the total amount of P2,050.00 and on the
occasion of the said robbery, the above-named accused, while armed with
unlicensed firearms with intent to kill, conspiring and confederating
together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela,
Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias
Precie and Alias Renato, whose true names, identities and present
whereabouts are still unknown and still at-large, did then and there
willfully, unlawfully and feloniously attack, assault and shoot one
EDRALIN MACAHIS, a Security Guard of Energex Gasoline Station,
thereby inflicting upon him gunshot wound on his trunk which directly
caused his death.

Contrary to law.

Upon arraignment on March 23, 2000, appellant, with the assistance of

counsel de parte, entered a plea of not guilty on all the charges. Thereafter, trial on
the merits ensued.
 The prosecution presented five witnesses, namely: Macario C.
Natividad,[20] then officer-in-charge of Energex Gasoline Station where the incident
took place; Edito Macahis,[21] a cousin of the deceased security guard Edralin
Macahis; Fortunato Lacambra III,[22] a gasoline boy of the same gas station; Eduardo
Zulueta,[23] also a gasoline boy of the same gas station, and Alberto
Quintos,[24] general manager of Alert and Quick Security Services, Inc., where the
deceased security guard was employed.

The defense, on the other hand, presented two witnesses, namely: Catherine
Homo,[25] a cousin of appellant and the appellant[26] himself.

On December 20, 2001, the RTC rendered its Decision[27] convicting

appellant beyond reasonable doubt of all the charges against him, the dispositive
portion of which reads:

1. In Criminal Case No. 4747, finding accused Marlon Albert de

Leon y Homo guilty beyond reasonable doubt of the crime of Robbery
with Homicide, as defined and penalized under No. 1 of Art. 294 of the
Revised Penal Code, as amended by Sec. 9 of R.A. 7659, in relation to
Sec. 1 of P.D. 1866, as further amended by Sec. 1 of R.A. 8294, having
acted in conspiracy with other malefactors who have, to date, remained at-
large, and sentencing the said Marlon Albert de Leon y Homo to the
penalty of Death, taking into consideration the use of an unlicensed
firearm in the commission of the crime as an aggravating circumstance; to
pay Energex Gasoline Station owned by Regino Natividad and
represented by Macario C. Natividad the amount of P3,000.00 as
compensatory damages and to pay the costs;

2. In Crim. Case No. 4748, finding accused Marlon Albert de Leon

y Homo guilty beyond reasonable doubt of the crime of Robbery with
Homicide, as defined and penalized under No. 1 of Art. 294 of the Revised
Penal Code, as amended by Sec. 9 of R.A. 7659, in relation to Sec. 1 of
P.D. 1866, as further amended by Sec. 1 of R.A. 8294, having acted in
conspiracy with other malefactors who have, to date, remained at-large,
and sentencing the said Marlon Albert de Leon y Homo to the penalty of
Death, taking into consideration the use of an unlicensed firearm in the
commission of the crime as an aggravating circumstance, and to pay the
costs;
 3. In Crim. Case No. 4749, finding accused Marlon Albert de Leon
y Homo guilty beyond reasonable ground of the crime of Robbery with
Homicide, as defined and penalized under No. 1 of Art. 294 of the Revised
Penal Code, as amended by Sec. 9 of R.A. 7659, in relation to Sec. 1
of P.D. 1866, as further amended by Sec. 1 of R.A. 8294, having acted in
conspiracy with other malefactors who have, to date, remained at-large,
and sentencing the said Marlon Albert de Leon y Homo to the penalty of
Death, taking into consideration the use of an unlicensed firearm in the
commission of the crime as an aggravating circumstance; to indemnify the
heirs of Edralin Macahis in the amount of P50,000.00 as death indemnity;
to pay P12,000.00 as compensatory damages for the stolen service firearm
if restitution is no longer possible and P50,000.00 as moral damages, and
to pay the costs;
4. In Crim. Case No. 4750, finding accused Marlon Albert de Leon
y Homo guilty beyond reasonable doubt of the crime of Robbery with
Homicide, as defined and penalized under No. 1 of Art. 294 of the Revised
Penal Code, as amended by Sec. 9 of R.A 7659, in relation to Sec. 1
of P.D. 1866, as further amended by Sec. 1 of R.A. 8294, having acted in
conspiracy with other malefactors who have, to date, remained at-large,
and sentencing the said Marlon Albert de Leon y Homo to the penalty of
Death, taking into consideration the use of an unlicensed firearm in the
commission of the crime as an aggravating circumstance and to pay
Eduardo Zulueta, victim of the robbery, in the amount of P2,050.00 as
compensatory damages for the stolen properties if restitution is no longer
possible and to pay the costs.

As against accused Rudy Gersalia and Christian Gersalia, who

have, to date, remained at-large, let a warrant of arrest be issued against
them and let these cases be, in the meantime, sent to the archives without
prejudice to their reinstatement upon apprehension of the said accused.

As against accused Dondon Brenvuela, Jonathan Brenvuela, Pantoy

Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato, whose
true names, identities and present whereabouts are still unknown and are
still at-large, let these cases be, in the meantime, sent to the archives
without prejudice to their reinstatement upon the identification and
apprehension of the said accused.

SO ORDERED.
 The cases were appealed to this Court, however, on September, 21, 2004, [28] in
conformity with the Decision dated July 7, 2004 in G.R. Nos. 147678-87
entitled The People of the Philippines v. Efren Mateo y Garcia, modifying the
pertinent provisions of the Revised Rules of Criminal Procedure, more particularly
Sections 3 and 10 of Rule 125 and any other rule insofar as they provide for direct
appeals from the RTCs to this Court in cases where the penalty imposed is
death, reclusion perpetua or life imprisonment, as well as the Resolution of this
Court, en banc dated September 19, 1995, in Internal Rules of the Supreme Court in
cases similarly involving the death penalty, pursuant to the Court's power to
promulgate rules of procedure in all courts under Article VII, Section 5 of the
Constitution, and allowing an intermediate review by the CA before such cases are
elevated to this Court. This Court transferred the cases to the CA for appropriate
action and disposition.
The CA, on June 29, 2007,[29] affirmed with modification, the Decision of the
RTC, with the dispositive portion reading:

WHEREFORE, the appealed decision is AFFIRMED with

MODIFICATION. Accused Marlon Albert de Leon y Homo is hereby
found guilty beyond reasonable doubt of the crime of Robbery with
Homicide of only one count.

Given the passage of Republic Act 9346 which took effect on 24

June 2006, the penalty imposed upon Marlon de Leon y Homo is hereby
reduced or commuted to reclusion perpetua.

SO ORDERED.

On December 10, 2007, this Court accepted the appeal,[30] the penalty
imposed being reclusion perpetua.

The Office of the Solicitor General (OSG), on February 8, 2008, filed its
Manifestation and Motion In Lieu of the Supplemental Brief[31] dated February 4,
2008 stating that it will no longer file a supplemental brief, considering that appellant
has not raised any new issue that would require the filing of a supplemental brief.
 Appellant filed a Manifestation[32] on February 22, 2008 stating that he re-
pleads and adopts his Appellant's Brief and Reply Brief as Supplemental Brief.

Appellant, in his Brief,[33] assigned the following errors:

I
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-
APPELLANT A CO-CONSPIRATOR IN THE COMMISSION OF THE
CRIME CHARGED DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE THE SAME AND GUILT BEYOND
REASONABLE DOUBT.

II

ON THE ASSUMPTION THAT ACCUSED-APPELLANT IS GUILTY

OF ROBBERY WITH HOMICIDE, THE TRIAL COURT GRAVELY
ERRED IN IMPOSING FOUR (4) DEATH PENALTIES DESPITE
THAT THE CRIME CHARGED WAS PRODUCED BY ONE SINGLE
ACT WHICH SHOULD BE METED WITH A SINGLE PENALTY.

The OSG, in its Appellee's Brief,[34] insisted that all the elements of the crime
and the appellant's participation in the crime had been established.

Appellant, in his Reply Brief,[35] argued that the penalty should not be
death, but only reclusion perpetua, because the aggravating circumstance of use of
unlicensed firearm, although alleged in the Information, was not alleged with
specificity.

Article 294, paragraph 1 of the Revised Penal Code provides:

Art. 294. Robbery with violence against or intimidation of persons

Penalties. - Any person guilty of robbery with the use of violence against
or any person shall suffer:

1. The penalty of reclusion perpetua to death, when by reason or on

occasion of the robbery, the crime of homicide shall have been committed,
or when the robbery shall have been accompanied by rape or intentional
mutilation or arson.
 In People v. De Jesus,[36] this Court had exhaustively discussed the crime of
robbery with homicide, thus:

For the accused to be convicted of the said crime, the prosecution

is burdened to prove the confluence of the following elements:

(1) the taking of personal property is committed with violence or

intimidation against persons;
(2) the property taken belongs to another;
(3) the taking is animo lucrandi; and
(4) by reason of the robbery or on the occasion thereof, homicide is
committed.[37]
In robbery with homicide, the original criminal design of the
malefactor is to commit robbery, with homicide perpetrated on the
occasion or by reason of the robbery.[38] The intent to commit robbery
must precede the taking of human life.[39] The homicide may take place
before, during or after the robbery. It is only the result obtained, without
reference or distinction as to the circumstances, causes or modes or
persons intervening in the commission of the crime that has to be taken
into consideration.[40] There is no such felony of robbery with homicide
through reckless imprudence or simple negligence. The constitutive
elements of the crime, namely, robbery with homicide, must be
consummated.

It is immaterial that the death would supervene by mere accident;

or that the victim of homicide is other than the victim of robbery, or that
two or more persons are killed, or that aside from the homicide, rape,
intentional mutilation, or usurpation of authority, is committed by reason
or on the occasion of the crime. Likewise immaterial is the fact that the
victim of homicide is one of the robbers; the felony would still be robbery
with homicide. Once a homicide is committed by or on the occasion of the
robbery, the felony committed is robbery with homicide. All the felonies
committed by reason of or on the occasion of the robbery are integrated
into one and indivisible felony of robbery with homicide. The word
homicide is used in its generic sense. Homicide, thus, includes murder,
parricide, and infanticide.

Intent to rob is an internal act, but may be inferred from proof of

violent unlawful taking of personal property. When the fact of asportation
has been established beyond reasonable doubt, conviction of the accused
 is justified even if the property subject of the robbery is not presented in
court. After all, the property stolen may have been abandoned or thrown
away and destroyed by the robber or recovered by the owner. [41] The
prosecution is not burdened to prove the actual value of the property stolen
or amount stolen from the victim. Whether the robber knew the actual
amount in the possession of the victim is of no moment, because the
motive for robbery can exist regardless of the exact amount or value
involved.[42]

When homicide is committed by reason or on the occasion of

robbery, all those who took part as principals in the robbery would also be
held liable as principals of the single and indivisible felony of robbery
with homicide, although they did not actually take part in the killing,
unless it clearly appears that they endeavored to prevent the same.[43]

If a robber tries to prevent the commission of homicide after the

commission of the robbery, he is guilty only of robbery and not
of robbery with homicide. All those who conspire to commit robbery with
homicide are guilty as principals of such crime, although not all profited
and gained from the robbery. One who joins a criminal conspiracy adopts
the criminal designs of his co-conspirators and can no longer repudiate the
conspiracy once it has materialized.[44]

Homicide is said to have been committed by reason or on the

occasion of robbery if, for instance, it was committed (a) to facilitate the
robbery or the escape of the culprit; (b) to preserve the possession by the
culprit of the loot; (c) to prevent discovery of the commission of the
robbery; or, (d) to eliminate witnesses in the commission of the crime. As
long as there is a nexus between the robbery and the homicide, the latter
crime may be committed in a place other than the situs of the robbery.

From the above disquisition, the testimonies of the witnesses, and pieces of
evidence presented by the prosecution, the crime of robbery with homicide was
indeed committed. There was no mistaking from the actions of all the accused that
their main intention was to rob the gasoline station and that on occasion of such
robbery, a homicide was committed. The question now is whether there was
conspiracy in the commission of the crime. According to appellant, the prosecution
failed to prove that he was a co-conspirator. However, this Court finds no merit to
appellant's argument.
 If it is proved that two or more persons aimed by their acts towards the
accomplishment of the same unlawful object, each doing a part so that their
combined acts, though apparently independent, were in fact connected and
cooperative, indicating a closeness of personal association and a concurrence of
sentiment, a conspiracy may be inferred though no actual meeting among them to
concert means is proved. That would be termed an implied conspiracy.[45] The
prosecution was able to prove the presence of an implied conspiracy. The witnesses
were able to narrate in a convincing manner, the circumstances surrounding the
commission of the robbery and positively identified appellant as one of the
robbers. Witness Eduardo Zulueta testified that appellant was one of the robbers who
poked a gun at him, thus:

Q. Were you able to identify those two armed male persons who poked
their guns at you?

A: Yes, sir.

Q: Kindly look around inside this courtroom and inform the Hon.
Court whether those two (2) persons who poked their guns at you were
(sic) present now?

A: Only one, sir, and there he is.

(At this juncture, witness pointing to a certain person who answered by

the name of MARLON ALBERT DE LEON when asked.)

Q: This Marlon De Leon was he the one who guarded you in the carwash
or not?

A: Yes, sir.

Q: Now, what happened to you at the carwash where this Marlon De Leon
was guarding you?

A: His gun was poked at me, sir.

Q: What else transpired, Mr. Witness, or what else happened to you aside
from that?
 A: He hit me with his gun on my nape, sir.

Q: What else, Mr. Witness?

A: He got my wallet from my pocket, sir.

Q: Who hit you with a gun?

A: His other companion, sir.[46]

Appellant was also identified by witness Fortunato Lacambra III, thus:

Q: What about that person who ordered Zulueta to go to the carwash

section and hit him, was he also armed?

A: Yes, sir.

Q: What kind of firearm was he carrying then?

A: Also .38 caliber, sir.

Q: Were you able to identify or recognize that person who approached and
ordered Zulueta to go to the carwash section?

A: Yes, sir.

Q: If that person is inside the courtroom, will you be able to identify him?

A: Yes, sir.

Q: Kindly point to him?

A: That man, sir. (Witness pointed to a person who answered by the name
of Marlon Albert de Leon).[47]

Therefore, it can be inferred from the role appellant played in the commission
of the robbery, that a conspiracy existed and he was part of it. To be a conspirator,
one need not participate in every detail of the execution; he need not even take part
in every act or need not even know the exact part to be performed by the others in
the execution of the conspiracy. Each conspirator may be assigned separate and
different tasks which may appear unrelated to one another but, in fact, constitute a
whole collective effort to achieve their common criminal objective.[48] Once
conspiracy is shown, the act of one is the act of all the conspirators. The precise
extent or modality of participation of each of them becomes secondary,[49] since all
the conspirators are principals.

As to the credibility of the witnesses, the RTC's findings must not be

disturbed. The well-settled rule in this jurisdiction is that the trial courts findings on
the credibility of witnesses are entitled to the highest degree of respect and will not
be disturbed on appeal without any clear showing that it overlooked, misunderstood
or misapplied some facts or circumstances of weight or substance which could affect
the result of the case.[50]

For his defense, appellant merely denied participating in the

robbery. However, his presence during the commission of the crime was well-
established as appellant himself testified as to the matter. Granting that he was
merely present during the robbery, his inaction does not exculpate him. To exempt
himself from criminal liability, a conspirator must have performed an overt act to
dissociate or detach himself from the conspiracy to commit the felony and prevent
the commission thereof.[51] Appellant offered no evidence that he performed an overt
act neither to escape from the company of the robbers nor to prevent the robbery
from taking place. His denial, therefore, is of no value.Courts generally view the
defenses of denial and alibi with disfavor on account of the facility with which an
accused can concoct them to suit his defense. As both evidence are negative and self-
serving, they cannot attain more credibility than the testimonies of prosecution
witnesses who testify clearly, providing thereby positive evidence on the various
aspects of the crime committed.[52]

Consequently, the CA was correct in ruling that appellant was guilty only of
one count of robbery with homicide. In the crime of robbery with homicide, there
are series of acts, borne from one criminal resolution, which is to rob. As
decided[53] by the Court of Appeals:
 A continued (continuous or continuing) crime is defined as a single
crime, consisting of a series of acts but all arising from one criminal
resolution.[54] Although there is a series of acts, there is only one crime
committed; hence, only one penalty shall be imposed.[55]

In the case before Us, [appellant] and his companions intended only
to rob one place; and that is the Energex gasoline station. That they did;
and in the process, also took away by force the money and valuables of
the employees working in said gasoline station. Clearly inferred from
these circumstances are the series of acts which were borne from one
criminal resolution. A continuing offense is a continuous, unlawful act or
series of acts set on foot by a single impulse and operated by
an unintermittent force, however long a time it may occupy.[56] This can be
said of the case at hand.

Akin to the extant case is that of People v. De la Cruz,[57] wherein

the robbery that took place in several houses belonging to different
persons, when not absolutely unconnected, was held not to be taken as
separate and distinct offenses. They formed instead, component parts of
the general plan to despoil all those within the vicinity. In this case, the
Solicitor General argued that the [appellant] had committed eight different
robberies, because the evidence shows distinct and different acts of
spoilation in different houses, with several victimized persons. [58] The
Highest Tribunal, however, ruled that the perpetrated acts were not
entirely distinct and unconnected from one another.[59] Thus, the single
offense or crime.

Now, this Court comes to the penalty imposed by the CA. The
decision[60] merely states that, in view of the enactment of R.A. 9346, the sentence
of Death Penalty, imposed upon appellant, is automatically commuted to reclusion
perpetua, but is silent as to how it had arrived into such a conclusion.

Under Article 294 of the Revised Penal Code, as amended by R.A. No. 7659,
robbery with homicide is punishable by reclusion perpetua to death, which are both
indivisible penalties. Article 63 of the same Code provides that, in all cases in which
the law prescribes a penalty composed of two indivisible penalties, the greater
penalty shall be applied when the commission of the deed is attended by one
aggravating circumstance.[61] It must be remembered that the Informations filed with
the RTC alleged the aggravating circumstance of the use of unlicensed firearm.
Pursuant to the third paragraph of Section 1 of P.D. No. 1866, as amended by R.A.
No. 8294, such use of an unlicensed firearm is a special and not a generic
aggravating circumstance in the homicide or murder committed. As explained by
this Court in Palaganas v. People:[62]

Generic aggravating circumstances are those that generally apply

to all crimes such as those mentioned in Article 14, paragraphs No. 1, 2,
3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has the
effect of increasing the penalty for the crime to its maximum period, but
it cannot increase the same to the next higher degree. It must always be
alleged and charged in the information, and must be proven during the trial
in order to be appreciated.[63] Moreover, it can be offset by an ordinary
mitigating circumstance.

On the other hand, special aggravating circumstances are those

which arise under special conditions to increase the penalty for the offense
to its maximum period, but the same cannot increase the penalty to the
next higher degree. Examples are quasi-recidivism under Article 160 and
complex crimes under Article 48 of the Revised Penal Code. It does not
change the character of the offense charged.[64] It must always be alleged
and charged in the information, and must be proven during the trial in
order to be appreciated.[65] Moreover, it cannot be offset by an ordinary
mitigating circumstance.

It is clear from the foregoing that the meaning and effect of generic
and special aggravating circumstances are exactly the same except that in
case of generic aggravating, the same CAN be offset by an ordinary
mitigating circumstance whereas in the case of special aggravating
circumstance, it CANNOT be offset by an ordinary mitigating
circumstance.

Aside from the aggravating circumstances abovementioned, there

is also an aggravating circumstance provided for under Presidential Decree
No. 1866,[66] as amended by Republic Act No. 8294,[67] which is a special
law. Its pertinent provision states:

If homicide or murder is committed with the use of

an unlicensed firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance.
 In interpreting the same provision, the trial court reasoned that such
provision is silent as to whether it is generic or qualifying.[68] Thus, it ruled
that when the law is silent, the same must be interpreted in favor of the
accused.[69] Since a generic aggravating circumstance is more favorable to
petitioner compared to a qualifying aggravating circumstance, as the latter
changes the nature of the crime and increase the penalty thereof by
degrees, the trial court proceeded to declare that the use of an unlicensed
firearm by the petitioner is to be considered only as a generic aggravating
circumstance.[70] This interpretation is erroneous, since we already held in
several cases that with the passage of Republic Act No. 8294 on 6 June
1997, the use of an unlicensed firearm in murder or homicide is now
considered as a SPECIAL aggravating circumstance and not a generic
aggravating circumstance.[71] Republic Act No. 8294 applies to the instant
case since it took effect before the commission of the crimes in 21 April
1998. Therefore, the use of an unlicensed firearm by the petitioner in the
instant case should be designated and appreciated as a SPECIAL
aggravating circumstance and not merely a generic aggravating
circumstance.

In another case,[72] this Court ruled that, the existence of the firearm can be
established by testimony, even without the presentation of the firearm.[73] In the said
case, it was established that Elmer and Marcelina Hidalgo died of, and Pedro
Hidalgo sustained, gunshot wounds. The ballistic examination of the slugs recovered
from the place of the incident showed that they were fired from a .30 carbine rifle
and a .38 caliber firearm. The prosecution witnesses positively identified appellant
therein as one of those who were holding a long firearm. It was also established that
the same appellant was not a licensed firearm holder. Hence, this Court ruled that
the trial court and the CA correctly appreciated the use of unlicensed firearm as an
aggravating circumstance.

After a careful study of the records of the present case, this Court found that
the use of unlicensed firearm was not duly proven by the prosecution. Although
jurisprudence dictates that the existence of the firearm can be established by mere
testimony, the fact that appellant was not a licensed firearm holder must still be
established. The prosecution failed to present written or testimonial evidence to
prove that appellant did not have a license to carry or own a firearm, hence, the use
of unlicensed firearm as an aggravating circumstance cannot be appreciated.

Finally, it is worth noting that the RTC ordered appellant to indemnify the
heirs of Edralin Macahis the amount of P50,000.00 as death indemnity, P12,000.00
as compensatory damages for the stolen service firearm if restitution is no longer
possible and P50,000.00 as moral damages. Actual damages were never proven
during the trial. Hence, this Court's rulings[74] on temperate damages apply, thus:

In People vs. Abrazaldo,[75] we laid down the doctrine that where

the amount of actual damages for funeral expenses cannot be determined
because of the absence of receipts to prove them, temperate damages may
be awarded in the amount of P25,000[76] This doctrine specifically refers
to a situation where no evidence at all of funeral expenses was presented
in the trial court. However, in instances where actual expenses amounting
to less than P25,000 are proved during the trial, as in the case at bar, we
apply the ruling in the more recent case of People vs. Villanueva[77] which
modified the Abrazaldo doctrine. In Villanueva, we held that when actual
damages proven by receipts during the trial amount to less than P25,000,
the award of temperate damages for P25,000 is justified in lieu of the
actual damages of a lesser amount. To rule otherwise would be anomalous
and unfair because the victims heirs who tried but succeeded in proving
actual damages of an amount less than P25,000 would be in a worse
situation than those who might have presented no receipts at all but would
now be entitled to P25,000 temperate damages.[78]

WHEREFORE, the Decision dated June 29, 2007 of the Court of Appeals is
hereby AFFIRMED with MODIFICATION. Appellant Marlon Albert de Leon y
Homo is hereby found guilty beyond reasonable doubt of the crime of Robbery with
Homicide, the penalty of which, is reclusion perpetua in view of the absence of any
mitigating or aggravating circumstance. Appellant is also liable to pay the heirs of
the victim, P25,000.00 as temperate damages, in addition to the other civil
indemnities and damages adjudged by the Regional Trial Court, Branch 76, San
Mateo, Rizal.

SO ORDERED.
G.R. No. 107383 December 7, 1994

FELIX NIZURTADO, petitioner,

vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

Melquiades P. De Leon for petitioner.

Eugene C. Paras collaborating counsel for the petitioner.

VITUG, J.:

An information, accusing Felix Nizurtado of having committed the complex crime of malversation of
public funds through falsification of public document, reads:

That on or about August 25, 1983, and for sometime prior or subsequent thereto, in
the City of Caloocan, Philippines and within the jurisdiction of this Honorable Court,
the abovenamed accused, a public officer, being then the Barangay Captain of
Panghulo, Malabon, Metro Manila, did then and there, willfully, unlawfully and
feloniously falsify and attest Resolution No. 17 Series of 1983 by making it appear
that on August 25, 1983 the Barangay council of Panghulo met and identified T-shirt
manufacturing as its livelihood project, when in truth and in fact, as the accused fully
well knew, no such meeting was held, where T-shirt manufacturing was identified
and approved by the Barangay Council as its livelihood project, and thereafter,
accused submitted the falsified resolution to the MHS-MMC-KKK Secretariat which
endorsed the same to the Land Bank of the Philippines, which on the basis of said
endorsement and the falsified resolution, encashed LBP check No. 184792 in the
amount of TEN THOUSAND PESOS (P10,000.00), which check was earlier received
by him as Barangay Captain of Panghulo in trust for the Barangay for its livelihood
project and for which fund accused became accountable, and upon receipt thereof
herein accused, with deliberate intent and grave abuse of confidence did then and
there willfully, unlawfully and feloniously misappropriate, misapply and convert to his
own personal use and benefit the amount of TEN THOUSAND PESOS (P10,000.00)
out of the funds for which he was accountable, to the damage and prejudice of the
government in the said amount.

CONTRARY TO LAW. 1

When arraigned by the Sandiganbayan, Nizurtado pleaded "not guilty" to the charge. During the pre-
trial, held on 17 July 1989, the prosecution and the defense stipulated thusly:

1. That sometime in 1983 and 1984, accused Felix Nizurtado was the Barangay
Captain of Barangay Panghulo of Malabon, Metro Manila and discharged his
functions as such;
 2. That sometime in 1983, the Ministry of Human Settlements, the Metro Manila
Commission and Kilusang Kabuhayan at Kaunlaran (KKK) undertook a Livelihood
Program for Barangays in Metro Manila consisting of loans in the amount of P10,
000.00 per barangay.

3. That as Barangay Captain of Barangay Panghulo, accused received a check in the

amount of P10,000.00 for said barangay's livelihood program;

4. That the check, to be encashed, had to be supported by a project proposal to be

approved by the KKK;

5. That the accused encashed the check received by him in the amount of
P10,000.00 with the Land Bank of the Philippines; and

6. That the accused distributed the amount of P10,000.00 in the form of loans of
P1,000.00 each to members of the barangay council. 2

After evaluating the evidence adduced, the Sandiganbayan came out with its factual findings and
conclusions, hereunder detailed:

It appears from the evidence, testimonial and documentary, as well as from the
stipulations of the parties that accused Felix V. Nizurtado was the Barangay Captain
of Barangay Panghulo, Malabon, Metro Manila from 1983 to 1988.

In April or May 1983, Nizurtado and Manuel P. Romero, Barangay Treasurer of

Panghulo, attended a seminar at the University of Life, Pasig, Metro Manila. The
seminar was about the Barangay Livelihood Program of the Ministry of Human
Settlements (MHS), the Metro Manila Commission (MMC), and the Kilusang
Kabuhayan at Kaunlaran (KKK). Under the program, the barangays in Metro Manila
could avail of loans of P10,000.00 per barangay to finance viable livelihood projects
which the Barangay Councils would identify from the modules developed by the KKK
Secretariat or which, in the absence of such modules, the Councils would choose
subject to the evaluation/validation of the Secretariat.

After the seminar, Nizurtado received a check for P10,000.00 intended for Barangay
Panghulo and issued in his name. The check, however, could be encashed only
upon submission to the Secretariat of a resolution approved by the Barangay Council
identifying the livelihood project in which the loan would be invested. He entrusted
the check to Romero for safekeeping.

In one of its regular sessions, which was on the second Saturday of each month, the
Barangay Council of Panghulo discussed the project in which to invest the
P10,000.00. Among the proposals was that of Romero that a barangay service
center be established. But the meeting ended without the Councilmen agreeing on
any livelihood project.

A few days after the meeting, Nizurtado got back the check from Romero, saying that
he would return it because, as admitted by Nizurtado during the trial, the Councilmen
could not agree on any livelihood project. Nizurtado signed a receipt dated August 4,
1983, for the check "to be returned to the Metro Manila Commission."
After a few more days, Nizurtado asked Romero to sign an unaccomplished
resolution in mimeograph form. All the blank spaces in the form were unfilled-up,
except those at the bottom which were intended for the names of the Barangay
Councilmen, Secretary, and Captain, which were already filled-up and signed by
Councilmen Marcelo Sandel, Jose Bautista, Alfredo Aguilar, Alfredo Dalmacio, F.A.
Manalang (the alleged Barangay Secretary), and Nizurtado. In asking Romero to
sign, Nizurtado said that the MMC was hurrying up the matter and that the livelihood
project to be stated in the resolution was that proposed by Romero — barangay
service center. Trusting Nizurtado, Romero affixed his signature above his
typewritten name. When he did so, the blank resolution did not yet bear the
signatures of Councilmen Santos Gomez and Ceferino Roldan.

The blank resolution having already been signed by Romero, Nizurtado asked him to
talk with Gomez and secure the latter's signature. Romero obliged and upon his
pleading that his proposed barangay service center would be the one written in the
blank resolution, Gomez signed. But before he returned the resolution, he had it
machine copied. The machine copy is now marked Exhibit J.

Unknown to Romero and Gomez, the blank but signed resolution was later on
accomplished by writing in the blank space below the paragraph reading:

WHEREAS, the Barangay Council now in this session had already

identified one livelihood project with the following title and description:

the following:

Title : T-shirt Manufacturing

Description : Manufacture of round neck T-shirts of
various sizes and colors.

The other blank spaces in the resolution were also filled-up. Thus "Panghulo," "Brgy.
Hall," and "August 25, 1983" were typewritten in the spaces for the name of the
Barangay, the place where and the date when the council meeting took place,
respectively. In the blank spaces for the names of the members of the Council who
attended the meeting were typewritten the names of

Felix Nizurtado Barangay Captain

Marcelo Sandel Barangay Councilman
Alfredo Aguilar Barangay Councilman
Santos Gomez Barangay Councilman
Jose Bautista Barangay Councilman
Alfredo Dalmacio Barangay Councilman
Ceferino Roldan Barangay Councilman

The word "none" was inserted in the space intended for the names of the
Councilmen who did not attend. The resolution was given the number "17" series of
"1983." Finally, the last line before the names and signatures of the Councilmen was
completed by typewriting the date so that it now reads:

UNANIMOUSLY APPROVED this 25th day of August, 1983.

The resolution as fully accomplished is now marked Exhibit D.

Other supporting documents for the encashment of the check of P10,000.00 were
also prepared, signed, and filed by Nizurtado. They were: Project Identification
(Exhibit B), Project Application in which the borrower was stated to be Samahang
Kabuhayan ng Panghulo (Exhibit C and C-1), Project Location Map (Exhibit E), and
Promissory Note
(Exhibit F).

The application for loan having been approved, the Promissory Note (Exhibit F) was
re-dated from August to October 18, 1983, placed in the name of the Samahang
Kabuhayan ng Panghulo represented by Nizurtado, and made payable in two equal
yearly amortizations of P5,000.00 each from its date. The purpose of the loan was
stated to be
T-Shirt Manufacturing of round neck shirts of various sizes and colors.

Nizurtado encashed the check on the same day, October 18, 1983, and re-lent the
cash proceeds to himself, Sandel, Aguilar, Bautista, Dalmacio, and Roldan at
P1,000.00, and to Manalang and Oro Soledad, Barangay Court Secretary and
Barangay Secretary, respectively, at P500.00 each.

On April 25, 1984, Nizurtado who was then on leave wrote Sandel, then acting
Barangay Captain, informing him that per record, he, Romero, and Gomez had not
made any remittance for the account of their P1,000.00 loans from the barangay
livelihood fund of P10,000.00 and advising him to collect, through the Secretary or
Treasurer.

Since Romero and Gomez had not borrowed any amount from the said fund, they
told Sandel to ask Nizurtado if he had any proof of their alleged loans. So Sandel
wrote Nizurtado on May 2, 1984, but the latter did not answer.

This attempt to collect from Romero and Gomez prompted them to make inquiries.
They learned that the check for P10,000.00 was indeed encashed by Nizurtado and
that the blank resolution which they had signed was filled-up to make it appear that in
a Council meeting where all councilmen were present on August 25, 1983, T-shirt
manufacturing was adopted as the livelihood project of Panghulo. But no such
meeting occurred on that day or on any other day. Neither was Nizurtado authorized
by the Council to submit T-shirt Manufacturing as the livelihood project of Panghulo.

On August 9, 1984, Romero and Gomez lodged their complaint against Nizurtado
with the Office of the Tanodbayan. After due preliminary investigation, this case was
filed.

As of September 7, 1984, the members of the Council who had received P1,000.00
each, as well as Bacani (also referred to as Manalang) and Soledad who had
received P500.00 each had paid their respective loans to Nizurtado who, in turn,
remitted the payments to the MMC on these dates:

April 16, 1984 P1,450.00

August 14, 1984 3,550.00
September 7, 1984 3,000.00
————

Total P8,000.00
 In June 1987, after demands for payment, Dalmacio remitted the balance of
P2,000.00 from his pocket because, as acting Barangay Captain, he did not want to
leave the Barangay with an indebtedness.3

On the basis of its above findings, the Sandiganbayan convicted the accused of the offense
charged. The dispositive portions of its decision, promulgated on 18 September 1992, read:

WHEREFORE, the Court finds Felix Nizurtado y Victa guilty beyond reasonable
doubt of the complex crime of malversation of public funds committed through
falsification of public document and, appreciating in his favor . . . two mitigating
circumstances and applying the Indeterminate Sentence Law, imposes upon him the
penalties of imprisonment ranging from FOUR (4) YEARS, NINE (9) MONTHS, and
ELEVEN (11) DAYS of prision correccional as minimum to EIGHT (8) YEARS,
EIGHT (8) MONTHS, and ONE (1) DAY of prision mayor as maximum; perpetual
special disqualification; and a fine of P10,000.00.

No pronouncement is made as to civil liability, there having been complete restitution

of the amount malversed.

With costs.

SO ORDERED.4

His motion for reconsideration having been denied, Nizurtado has filed the instant petition for review
on certiorari. Petitioner faults the Sandiganbayan in that —

1. It has committed grave abuse of discretion in finding that Resolution No. 17, dated
August 25, 1983, of the Barangay Council of Panghulo, Malabon, Metro Manila (Exh.
"D") is a falsified document and that the petitioner is the forger thereof; and

2. It has committed serious error of law and gravely abused its discretion in finding
petitioner guilty of malversation of the amount of P10,000.00 which he had received
as a loan from the then Metro Manila Commission in his capacity as representative of
the Samahang Kabuhayan ng Barangay Panghulo, Malabon, Metro Manila. 5

The Solicitor General Agrees in all respects with the Sandiganbayan in its findings and judgment
except insofar as it has found petitioner to have likewise committed the crime of falsification of a
public document.

Article 217 of the Revised Penal Code provides:

Art. 217. Malversation of public funds or property. — Presumption of malversation. —

Any public officer who, by reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same, or shall take or misappropriate or shall
consent, or through abandonment or negligence, shall permit any other person to
take such public funds or property, wholly or partially, or shall otherwise be guilty the
misappropriation or malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the
amount involved in the misappropriation or malversation does not exceed two
hundreds pesos.
 2. The penalty of prision mayor in its minimum and medium periods, if the amount
involved is more than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its
minimum period, if the amount involved is more than six thousand pesos but is less
than twelve thousand pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if the
amount involved is more than twelve thousand pesos but is less than twenty-two
thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion
temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual
special disqualification and a fine equal to the amount of the funds malversed or
equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property
with which he is chargeable, upon demand by any duly authorized officer, shall
be prima facie evidence that he has put such missing funds or property to personal
use.

The elements of malversation, essential for the conviction of an accused, under the above penal
provisions are that —

(a) the offender is a public officer;

(b) he has the custody or control of funds or property by reason of the duties of his
office;

(c) the funds or property involved are public funds or property for which he is
accountable; and

(d) he has appropriated, taken or misappropriated, or has consented to, or through

abandonment or negligence permitted, the taking by another person of, such funds
or property.

Nizurtado was a public officer, having been the Barangay Captain of Panghulo, Malabon, Metro
Manila, from 1983 to 1988; in that capacity, he received and later encashed a check for P10,000.00,
specifically intended by way of a loan to the barangay for its livelihood program; and the funds had
come from the Ministry of Human Settlements, the Metro Manila Commission and "Kilusang
Kabuhayan at Kaunlaran."

The only point of controversy is whether or not Nizurtado has indeed misappropriated the funds.

Petitioner was able to encash the check on 18 October 1988 on the basis of a resolution of the
Barangay Council, submitted to the KKK Secretariat, to the effect that a livelihood project, i.e., "T-
shirt manufacturing," had already been identified by the council. The money, however, instead of its
being used for the project, was later lent to, along with petitioner, the members of the Barangay
Council. Undoubtedly, the act constituted "misappropriation" within the meaning of the law.6
Accused-appellant sought to justify the questioned act in that it was only when the members of the
Barangay Council had realized that P10,000.00 was not enough to support the T-shirt manufacturing
project, that they decided to distribute the money in the form of loans to themselves. He submitted,
in support thereof, a belated 7certification issued by Rodolfo B. Banquicio, Chief of District IV of the
Support Staff and Malabon Sub-District Officer of KKK, to the effect that Barangay Captains were
given discretionary authority to invest the money in any viable project not falling within the list of
project modules provided by the MHS-NCR Management. Lending the unutilized funds to the
members of the Barangay council could have hardly been meant to be the viable project
contemplated under that certification. Furthermore, it would appear that only Regional Action Officer
Ismael Mathay, Jr., and Deputy Regional Action Officer Lilia S. Ledesma were the officials duly
authorized to approve such projects upon the recommendation of the KKK Secretariat.8 We could
see no flaw in the ratiocination of the Sandiganbayan, when, in rejecting this defense, it said:

The defense evidence that the Barangay Council changed the T-shirt Manufacturing
to whatever business ventures each members of the Council would select for
investment of his P1,000.00 has, as already stated, little, if any, probative value.

But assuming there was such a change, the same is of no avail. The Resolution
marked Exhibit D expressly stated that the P10,000.00 "shall only be appropriated for
the purpose/s as provided in the issued policies and guidelines of the program." The
guidelines, in turn, prescribed that the livelihood project shall be identified from the
modules developed by the KKK Secretariat or, as stipulated in the Resolution itself,
in the absence of such modules, shall be chosen by the Samahang Kabuhayan
"subject to the evaluation/validation of the KKK Secretariat." There is absolutely no
showing that the alleged substitute projects which each lendee of P1,000.00 would
select were among those of the developed modules or were submitted to the KKK
Secretariat for evaluation/validation.9

Accused-appellant criticizes the Sandiganbayan for its having failed to consider the fact that no valid
demand has been made, or could have been made, for the repayment of the loaned sum. Demand
merely raises a prima facie presumption that missing funds have been put to personal use. The
demand itself, however, is not an element of, and not indispensable to constitute, malversation.
Even without a demand, malversation can still be committed when enough facts, such as here, are
extant to prove it. 10

Accused-appellant was charged with having committed the crime through the falsification of a public
document punishable under paragraph 2 of Article 171 of the Revised Penal Code.

The pertinent provisions read:

Art. 171. Falsification by public officer, employee or notary or ecclesiastic minister. —

The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed
upon any public officer, employee, or notary who, taking advantage of his official
position, shall falsify a document by committing any of the following acts:

xxx xxx xxx

2. Causing it to appear that persons have participated in any act or proceeding when
they did not in fact so participate;
 In falsification under the above-quoted paragraph, the document need not be an authentic
official paper since its simulation, in fact, is the essence of falsification. So, also, the
signatures appearing thereon need not necessarily be forged. 11

In concluding that the Barangay Council resolution, Exhibit "D," 12 was a falsified document for which
petitioner should be held responsible, the Sandiganbayan gave credence to the testimonies of
Barangay Councilman Santos A. Gomez and Barangay Treasurer Manuel P. Romero. The two
testified that no meeting had actually taken place on 25 August 1983, the date when
"T-shirt manufacturing" was allegedly decided to be the barangay livelihood project. The
Sandiganbayan concluded that Nizurtado had induced Romero and Gomez to sign the blank
resolution, Exhibit "J" 13 on the representation that Romero's proposal to build a barangay service
center would so later be indicated in that resolution as the barangay livelihood project.

The established rule is that unless the findings of fact of the Sandiganbayan are bereft of substantial
evidence to support it, those findings are binding on this court.

The Sandiganbayan has considered the mitigating circumstances of voluntary surrender and
restitution in favor of Nizurtado. Deputy Clerk of Court Luisabel Alfonso Cortez, on 17 January 1989,
has certified to the voluntary surrender of the accused thusly:

CERTIFICATION

THIS CERTIFIES that accused FELIX NIZURTADO in criminal Case No:

13304 voluntarily surrendered before this court on JANUARY 17, 1989 and posted
his bail bond in said case.

Manila, Philippines, JANUARY 17, 1989

(sgd.)

LUISA
BEL
ALFON
SO
CORT
EZ
Deputy
Clerk
of
Court 14

Voluntary surrender (Art. 13, par. 7, Revised Penal Code), therefore, may thus be treated as a
modifying circumstance independent and apart from restitution of the questioned funds by petitioner
(Art. 13, par. 10, Revised Penal Code). We are convinced, furthermore, that petitioner had no
intention to commit so grave a wrong as that committed. (Art. 13, par. 3, Revised Penal Code),
entitling him to three distinct mitigating circumstances.

Under Article 48 of the Revised Penal Code, when a single act constitutes two or more grave or less
grave felonies, or when an offense is a necessary means for committing the other, the penalty for
the most serious crime shall be imposed, the same (the penalty) to be applied in the maximum
period. The penalty prescribed for the offense of malversation of public funds, when the amount
involved exceeds six thousand pesos but does not exceed twelve thousand pesos, is prision
mayor in its maximum period to reclusion temporal in its minimum period; in addition, the offender
shall be sentenced to suffer perpetual special disqualification and to pay a fine equal to the amount
malversed (Art. 217[3], Revised Penal Code). The penalty of prision mayor and a fine of five
thousand pesos is prescribed for the crime of falsification under Article 171 of the Revised Penal
Code. The former (that imposed for the malversation), being more severe than the latter (that
imposed for the falsification), is then the applicable prescribed penalty to be imposed in its maximum
period. The actual attendance of two separate mitigating circumstances of voluntary surrender and
restitution, also found by the Sandiganbayan and uncontested by the Solicitor General, entitles the
accused to the penalty next lower in degree. For purposes of determining that next lower degree, the
full range of the penalty prescribed by law for the offense, not merely the imposable penalty because
of its complex nature, should, a priori, be considered. It is our considered view that the ruling
in People vs. Gonzales, 73 Phil. 549, as opposed to that of People vs. Fulgencio, 92 Phil. 1069, is
the correct rule and it is thus here reiterated. In fine, the one degree lower than prision
mayor maximum to reclusion temporal minimum is prision mayor minimum to prision mayor medium
(being the next two periods in the scale of penalties [see Art. 64, par 5, in relation to Art. 61, par 5,
Revised Penal Code]) the full range of which is six years and one day to ten years. This one degree
lower penalty should, conformably with Article 48 of the Code (the penalty for complex crimes), be
imposed in its maximum period or from eight years, eight months and one day to ten years. The
presence of the third mitigating circumstance of praeter intentionem (lack of intention to commit so
grave a wrong as that committed) would result in imposing a period the court may deem
applicable. 15Considering, however, that the penalty has to be imposed in the maximum period, the
only effect of this additional mitigating circumstance is to impose only the minimum portion of that
maximum period, 16 that is, from eight years, eight months and one day to nine years, six months and
ten days, from which range the maximum of the indeterminate sentence shall be taken.

Under the Indeterminate Sentence Law (which can apply since the maximum term of imprisonment
would exceed one year), the court is to impose an indeterminate sentence, the minimum of which
shall be anywhere within the range of the penalty next lower in degree (i.e., prision correccional in its
medium period to prision correccional in its maximum period or anywhere from two years, four
months and one day to six years) and the maximum of which is that which the law prescribes after
considering the attendant modifying circumstances. In view of the mitigating circumstances present
in this case, the fine of P10,000.00 may also be reduced (Art. 66, Revised Penal Code) and, since
the principal penalty is higher than prision correccional, subsidiary imprisonment would not be
warranted. (Art. 39, par. 3, Revised Penal Code).

The law and the evidence no doubt sustains Nizurtado's conviction. Given all the attendant
circumstances, it is, nevertheless, the personal and humble opinion of the assigned writer of
this ponencia that appellant deserves an executive commutation of the statutory minimum sentence
pronounced by this Court.

WHEREFORE, the decision of the Sandiganbayan convicting Nizurtado for malversation of public
funds through falsification of public document is AFFIRMED but the sentence, given the
circumstances here obtaining, is MODIFIED by imposing on petitioner a reduced indeterminate
sentence of from two years, four months and one day to eight years, eight months and one day,
perpetual special disqualification and a fine of P2,000.00.

SO ORDERED.