THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARCIANO CORPIN and HONORIO GAYRAMA, defendantsappellants.

DIZON, J : Appeal taken by Marciano Corpin and Honorio Gayrama from the decision of the Court of First Instance of Leyte finding them guilty of the crime of robbery with rape committed in the municipality of Naval, Leyte on November 28, 1964, and sentencing each of them to suffer the penalty of reclusion perpetua, with all the accessories provided for by law; to indemnify, jointly and severally, Lydia Layon in the sum of P6,000.00 and Pilar Mondelo in the sum of P1,000.00, and to pay the costs. They now urge us to reverse said decision claiming that the trial court committed the following errors:
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"I.THE COURT A QUO ERRED IN FINDING THE ACCUSED SUFFICIENTLY IDENTIFIED AND DISREGARDING ALTOGETHER THE EVIDENCE FOR THE DEFENSE; "II.THE COURT A QUO ERRED IN FINDING THE ACCUSED GUILTY OF THE CHARGE BEYOND REASONABLE DOUBT AND SENTENCING THEM ACCORDINGLY.'

The prosecution evidence has conclusively established the following facts: At about 10:30 in the evening of November 28, 1964, while Pilar Mondelo and her granddaughter Lydia Layon were asleep in the former's house located in sitio Panimbangan, Catmon, Naval, Leyte, Lydia was awakened by the noise produced by the opening of a window. Frightened, she covered her face with her blanket, but when she heard footsteps inside the house she uncovered her face and then saw the appellants approaching her grandmother. Corpin awakened the latter by kicking her and once she had been awakened, he demanded money from her. When she told him that she had no money, she was boxed, and thereafter appellants tied her hands and made her lie face downward. Appellant Gayrama then ransacked the house and found P25.00 in a small cardboard box, took a guitar worth P9.00, a pair of pants valued at P8.00, a mat worth P4.00 and a chicken, all of which he handed to a companion who had remained downstairs. Thereafter, Gayrama also tied the hands of Lydia with a rope and, having thus rendered her helpless, started mashing her. She was later brought downstairs by both appellants and once there Corpin, through force, succeeded in felling her to the ground. He then grabbed and pulled out her panty and, in spite of Lydia's resistance, succeeded in having sexual intercourse with her. Thereafter, Gayrama and their other companions took turns in raping her. After thus satisfying their lust, appellants took Lydia upstairs and then left their loot not without first warning her and her grandmother not to tell anybody of what had happened. Shortly after the events just stated, Avelino Liquiran. son-in-law of the old woman Pilar Mondelo, arrived and after being told of what had happened, he took both women to his house, one and one-half kilometers away, and early the following morning, he accompanied them to file the corresponding complaint with the authorities. In the

afternoon of the same day (November 29) Pilar Mondelo was examined at the Naval General Hospital and was found to have been suffering from a 2 by 1 centimeter Hematoma in the scapular region. Two days later Lydia was also examined at the same hospital and was found suffering from, and was treated for the following injuries
"1.Fading linear petechiae both wrist on lateral medial & dorsal surface, I cm. maximum width. "2.INTERNAL EXAMINATION: Bleeding from vaginal orifice moderate in amount with fleshy smell. Laceration of the hymen & vagina lip at 6:00 o'clock 2 cm. in length at posterior end. (Exh. A, B; pp. 87, 88 t.s.n., Aug. 10, 1965)."

Appellants rely on an alibi claiming that on November 28, 1964 they attended the barrio fiesta of Villacaneja, within the same municipality of Naval, having stayed there until they went home to barrio Caray-Caray between five and six o'clock in the afternoon; that both of them remained in their respective houses the whole night of November 28. The only issues before us are, on the one hand, the sufficiency of the prosecution evidence identifying appellants herein as the men who committed the acts mentioned heretofore, and, on the other, the sufficiency of the defense evidence to prove the defense of alibi. After going over the record, We are fully convinced that the identity of the two appellants as the perpetrators of the crime charged has been established beyond question. Lydia Layon saw them from the moment they succeeded in entering the house of her grandmother through the window. She could not have been mistaken as to their identity because at that time there was a big petroleum lamp inside the house. Her grandmother likewise recognized them and she, as well as her granddaughter, informed her son-in-law of what had happened when the latter arrived in the house shortly after the departure of the malefactors. Moreover, Pilar Mondelo and her granddaughter gave the authorities the names of both appellants herein as the perpetrators of the crime charged the very day following the commission of the crime, and lodged the complaint on the same day. On December 2, 1964 Lydia made a sworn statement before the P.C. Detachment, pointing to the two appellants herein as the ones who had committed the robbery and that they were the first to rape her on that tragic evening. Upon the other hand, there is absolutely no evidence showing bias or malice on the part of the old woman Pilar Mondelo and her granddaughter, nor on the part of the former's son-in-law, sufficient to have impelled them to falsely charge appellants with such a grave crime as that of robbery with rape. In connection with their defense, appellants claim that they had gone to barrio Villacaneja to attend the fiesta on board a passenger jeep, but the truth is that they could not even give the name of the driver of the vehicle. Moreover, the barrio of their residence, Caray-Caray, was only one and one-half kilometers away from the scene of the crime and it is obvious that this circumstance does not make it physically

impossible for them to have committed the crime after they had reached home. Besides, their testimony is not supported by any other solid and credible evidence. The information filed against appellants charges them only with robbery with rape. The lower court, however, found them guilty of the crime of robbery with rape, and slight physical injuries. We agree with the office of the Solicitor General that the conviction for slight physical injuries should be disregarded. Likewise, the indemnity awarded to the offended parties should be reduced to the sum of P58.00 which, according to the evidence, is the total value of the cash and articles of which the victims were robbed. In accordance with the provisions of Article 335 of the Revised Penal Code, as amended by Republic Act No. 4111, whenever the crime of rape is committed by two or more persons as in the present case the penalty shall be reclusion perpetua to death. As the record does not show conclusively the existence of any aggravating circumstance attending the commission of the offense charged, We are of the opinion that the penalty of reclusion perpetua imposed by the trial court is in accordance with law. WHEREFORE, modified as above indicated, the appealed decision is affirmed in all other respects.

THE UNITED STATES, plaintiff-appellee, vs. GIL GAMAO ET AL., defendants-appellants. TRENT, J : On August 17, 1909, the appellants, Mauricio and Gil Gamao, were sentenced by the Honorable Albert E. McCabe, judge of the Court of First Instance of Occidental Negros, to life imprisonment for the crime of murder. They appealed. From October, 1907, to May 15, 1909, Father Victor Baltanas was the parish priest of the Roman Catholic Church in the municipality of Escalante, Province of Occidental Negros. Baltanas was a person of peaceful disposition, devoting his attention to his religious duties, and taking no part in the political and factional troubles of his town. He had created no enemies by any personal action or omission on his part. About 8 o'clock on the night of May 15, 1909, Father Baltanas was in the house of Gregorio Pudanca, a friend of his. The house of Pudanca was situated a short distance diagonally across the plaza from the convent in which Baltanas lived. As was the custom, the church bell rang at 8 o'clock and the priest left the house of Pudanca and returned to the convent. He entered the main door to the lower portion of the convent, and while in the space between that door and the stairs leading to the upper portion of the building, someone struck him a blow with a bolo or sharp cutting instrument, which cut through his priestly cap and inflicted a wound on his head 8 inches in length, extending from the left eye to beyond the ear on the same side, the skull being fractured the entire length of the cut. After receiving this severe blow, the priest managed to make his way upstairs to his room. His clerk and a servant, who were in the convent at the time, gave the alarm by calling for the police. This alarm was given about fifteen or twenty minutes after the priest had left the house of Pudanca. Several persons went to the convent and remained with the priest until his death, which occurred as a direct result of said wound at about 5 o'clock on the next morning, May 16. The foregoing facts stand undisputed. In 1904, litigation arose between the Roman Catholic Church and the municipality of Escalante relative to certain properties in that town. Gil Gamao, one of the appellants, then a member of the Aglipayan Church and a councilman, took a prominent part in having the municipality contest the claim of the Catholic Church to this property. He acquired a hatred toward this church, its priest, representatives, and the members of the friar orders. The litigation over the property in question came before this Supreme Court's, where it was held that the property belonged to the Catholic Church. The judgment thus rendered was returned to the municipality of Escalante for execution, and on the forenoon of May 15, 1909, said judgment was read at a session of the municipal council. These facts are not seriously disputed. The record before us clearly shows that the killing of Father Baltanas was brought about through hatred of and in a spirit of revenge against that which he
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represented in nationality and profession; that is, because he was a Spaniard, a member of a friar order, and a priest of the Roman Catholic Church. On May 20, five days after the murder of Baltanas, the Constabulary officer detailed to investigate the murder, finding that certain circumstances pointed to the appellant Mauricio Gamao as its author, but not having sufficient evidence, in his opinion, to justify charging Mauricio with its commission, caused his arrest on a charge of carrying concealed weapons. On May 24, Mauricio was bound over to, he was transferred from the municipal jail at Escalante to the custody of the Constabulary. On the next day, May 27, Mauricio made a formal statement implicating in the murder of the priest his uncle, Gil Gamao, and others of the defendants named in the information, but exculpating himself, which statement constituted the basis of a complaint, duly attested and sworn to by him, upon which his codefendants were arrested and remanded on the 31st of that month to the Court of First Instance for trial. After Mauricio had been transferred to Bacolod, a complaint was filed by the provincial fiscal before the justice of the peace of the capital, charging him also with the murder, upon which latter complaint he was bound over to answer the same charge that he had made against his codefendants. The claim of the prosecution, as alleged in the information, is that the blow that caused the death of Father Baltanas was struck by the appellant Mauricio Gamao, and that in committing the deed he was instigated by his codefendants and was carrying out the directions given to him by them in pursuance of an agreement entered into by all of the defendants jointly at the house of Gil Gamao a few hours prior to the commission of the deed. The defense in the court below was an alibi on the part of all the defendants save Gil Gamao, who admitted that he was at home on the afternoon in question, but claimed that he was confined to his bed by paralysis, and that no meeting was held as alleged by the prosecution. The lower court found that the deed was committed by the defendant Mauricio Gamao upon the procurement of his uncle Gil. Also that five of their codefendants were present in the house of Gil Gamao on the afternoon of May 15th when Gil Gamao persuaded his nephew Mauricio to do the deed. All of the defendants except Gil and Mauricio Gamao, were acquitted on the ground that Gil Gamao was the only one who actually influenced Mauricio to murder the priest. The trial court was not convinced that the other five defendants, though present when the murder was agreed upon and consenting thereto, were factors in persuading the murdered to commit the crime. It is strongly urged that the prosecution has failed to establish the guilt of the appellants with such a degree of certainty as to justify a conviction. The authors of the murder of the priest were unknown from the 15th to the 27th of May, when, on this latter date, Mauricio Gamao made certain disclosures which caused the arrest of his codefendants. On that morning, the lieutenant of Constabulary received word from his guard that Mauricio wanted to make a

statement. On ascertaining that his proposed statement had nothing to do with the charge under which he was then detained, but related to the murder of the priest, the Constabulary officer sent for the justice of the peace, Pedro Amante, with whom Mauricio said he desired a conference. Pending the arrival of the justice of the peace, Francisco Ferrer, a Spanish resident of Escalante, had an interview with Mauricio in which Mauricio told him that he did not want to suffer the fate of Pedro Gil (an Escalante man hanged for an assassination committed by the procurement of others 3 Phil. Rep., 414), and that he wished to tell everything he knew. Ferrer testified:
"He told me that a meeting he was offered money to kill the padre and that he would not accept it, but Jose Patpat did, and that they when the padre passed he (Jose) delivered a blow to the padre."

Upon his arrival at the convent, the justice of the peace asked Mauricio if he desired to make a statement to him and was answered in the affirmative. After having heard his statement, Mr. Amante requested Mauricio to repeat it, which was done, the justice of the peace meanwhile transcribing it in the form of a complaint. The complaint being thus prepared, the justice of the peace read it to Mauricio in Visayan, whereupon the latter made oath to and signed the same with a cross attested by his thumbmark. These proceedings were had in the presence of the witnesses Lieutenant Lough of the Constabulary, Francisco Ferrer, and Vicente Olmedo, each of whom, as well as the justice of the peace, testified to the fact that the statement was voluntary and upon the initiative of Mauricio himself. Olmedo also testified that he heard Mauricio say to one of the soldiers who had charge of him, "If I am going to be taken alone to Bacolod, I might as well state everything." In this complaint, Mauricio implicated all of the seven defendants in the murder of the priest except himself and Rufino Pineda. In place of himself and Pineda he substituted the names of Domingo Jaime and Jose Ilongo (Jose Patpat). Two days later, May 29, the justice of the peace again examined Mauricio as to the fa,.cts sworn to by him on May 27th, and the latter ratified his previous statements. At the trial in the Court of First Instance, Mauricio, on testifying in behalf of himself and his codefendants, sought to explain away his action in thus making the original complaint against his codefendants. He admits, however, the genuineness of his thumbmark attached to the complaint of May 27, but claims that the document to which he affixed his thumbmark was never read to him and that he supposed it was an order for his release. Dolores Labida [Labadia], a widow, and who, as querida of Mauricio Gamao, resided with him, after having given an account of what she claims to have accidentally overheard at the house of Gil Gamao on the afternoon of May 15th, testified that upon the return of Mauricio to their house the next morning he admitted to her that the crime which she had heard Gil Gamao direct him to commit was already done, and in response to her question as to why he did it, answered: "What am I going to do? Manong [referring to his uncle Gil Gamao]

ordered me to do it." This witness (Labida) [Labadia] further testified that after Mauricio's codefendants had been arrested, she visited Mauricio at the convent where he was confined under a Constabulary guard, as she had previously done at the municipal jail; and that he there said to her:
"If they make you testify to the truth, you testify to the whole truth, as I have done already; so, regarding the killing of the priest, two of us killed the priest, and Jose was my companion."

Also that Mauricio had stated to her that he had told the whole truth because he was the first one to be made to suffer, and he would tell the whole truth so that all the rest would suffer with him those who ordered him and directed him to commit the crime. This witness further says:
"Mauricio stated that the one who waited for the arrival of the priest at the stairway was Jose and he was the one who killed the priest, and that he (Mauricio) waited at the doorway at the side of the convent."

Again, this witness testified that after the accused Pineda had been arrested and placed in confinement with Mauricio and as her testimony was about to be taken on the charge sworn to by Mauricio, the latter asked her not to testify to what he had previously told her, and that Pineda then stated to her: "Yes, Dolores, do not testify to that. Would not you pity your husband if he should be placed in sorrow?" Felicidad Mijares, a fifteen-year old daughter of Dolores Labida [Labadia] testified that between five and six o'clock on the afternoon of Saturday, May 15th, while her mother was absent, Mauricio came to the house and immediately proceeded to sharpen a long bolo which he was accustomed to carry when he went fishing; that after sharpening the bolo Mauricio left the house, taking the bolo with him; and that on leaving the house Mauricio wore gray knee trousers, a white undershirt, and a salacot (native hat). The bolo referred to by Felicidad Mijares was subsequently found in Mauricio's house and specifically identified. Domingo Jaime was one of six buzos in the employ of Gil Gamao, who, between eight and nine o'clock on the night of the murder, transferred a load of corn from the seashore where they had landed from a boat, to the camarin in the rear of Gil Gamao's house. This witness carried the last load of corn from the art cart to the camarin. As he passed near the steps at the side of Gil Gamao's house he testified that he recognized the voice of captain Gil as the latter said: "What of you, Mauricio?" and then the voice of Mauricio in reply: "The thing is done. The padre is dead. Juan Batolinao, a former employee of Gil Gamao, stated that he began to work for Gil in the year 1904 and left him in March, 1907, and that the cause of his leaving was that Gil Gamao had endeavored to induce him to kill the then priest of Escalante. Carlos Cabus, brother-in-law of Gil Gamao, testified that in March, 1909, two months prior to the murder, Rufino Pineda approached him with the proposition that he (Cabus) contribute one hundred pesos to a fund to be used in

hiring Mauricio to kill Father Baltanas, and that Pineda claimed that he made this proposition on behalf of Gil Gamao. Jose Patpat testified that in the month of March, 1909, while he was employed by Gil Gamao, the latter offered him P50 if he would kill the priest; that the offer was made at the house of Gil Gamao while he was stopping there for the night on his return from a trip to Iloilo in company with Luis Garcia, Gil's son-in-law; and that during this private conversation between himself and Gil, the latter displayed his anger because the witness and Domingo Jaime had called upon the Roman Catholic priest to perform the burial ceremonies on the occasion of the death of Domingo's brother. Miguel Gamao, nephew of Gil Gamao, and president of Escalante at the time of the murder, testified that:
"On a day in the month of May, I do not remember the date, I heard captain Gil say that an anarchistic society had been formed with the object of killing the friars. If the municipal authorities should take part in the prosecution of these anarchists they would also be assassinated."

Pedro Amante, the justice of the peace, testified that the suit of the municipality of Escalante against the church was begun in the year 1904 or 1905, upon the motion of Gil Gamao, who was then a member of the municipal council; that at the meeting of the council on May 15, 1909, the secretary (Pineda) read part of the decree of the Supreme Court, and then threw three document on the table and at once left the room; that shortly afterwards about 12 o'clock, he went to his house, which adjoined that of Gil Gamao, and from his window noticed Pineda in the kitchen of Gil's house; that on the way from the tribunal to his house he was preceded by Luis Garcia, son-in-law of Gil, who lived in Gil's house; that Luis entered Gil's house as he (the witness) entered his own; and that at about 3 o'clock that afternoon he saw Padre Sotero Cuenca, Aglipayan priest of Escalante, coming out of Gil Gamao's house. With reference to the meeting which the prosecution claims took place in the house of Gil Gamao on the afternoon of May 15, Dolores Labida [Labadia] testified in substance as follows:
"About noon on Saturday, May 15, Mauricio came home and told me that he was going to town as Manong (Gil Gamao) had some work for him to do. Being out of corn, which we were accustomed to get from Manong, I insisted on accompanying Mauricio. When we arrived at captain Gil's house, I noticed that Pineda entered just before us. On entering the house from the side door of the kitchen, I saw the defendants in this case sitting at a long table in the kitchen. After I had spoken to Gil about getting one thousand ears of corn I went to the camarin, accompanied by a servant of Gil's named Soria, who counted out the corn for me. After the corn was placed on the ground in a separate heap, a helper of mine proceeded to transfer it in lots of two hundred ears to our house, and during the interval between each load I seated myself on the doorstep on the side of the house next to the camarin, from whence I could watch the corn. In this way I heard from time to time certain portions of

conversation which was taking place between Gil Gamao and the six defendants sitting with him at the table, one of the six being Mauricio. I heard captain Gil say to the meeting that the way things were going they would never escape from the Romans, on whose account the revolution had started; to which Pineda and the Aglipayan padre responded that whatever captain Gil desired to do they would conform to. I heard captain Gil propose that Mauricio make away with the priest. In consideration therefor, he offered to release Mauricio from all of his indebtedness and give him 'fifty more.' Upon hearing this proposition, Mauricio expressed his fear of undertaking such work, but Gil reassured him by saying: 'I am here to answer for you.'"

Apolinaria Bayhonan testified that on the afternoon of May 15th she administered massage to Gil Gamao and that both on entering and leaving the house she saw Mauricio Gamao there, together with the other five defendants. Serapia Fuente stated that she saw three of the defendants at Gil's house that afternoon. Asuncion Alfan testified that on the afternoon of Saturday, May 15th, the Aglipayan priest and Segundo Canizares, the latter a brother-in-law of Gil Gamao, called at her house. Narciso Salgal, chief of police of Escalante and nephew of Gil Gamao, was there at the time, and after a brief private interview with the chief of police, the two left the house, going toward Gil's house. As a witness in his own defense, Mauricio Gamao attempted to establish an alibi by claiming that he spent the afternoon of Saturday, May 15th, at the beach helping one Rufino Caporas repair fish-nets, and that he did not get home that evening, but remained at the camarin all night. Rufino Caporas, on behalf of Mauricio admitted that he had previously stated to the fiscal that he had gone to the house of one Carlos Cabus at four o'clock on Saturday afternoon and remained there until time to go out in the boat Sunday morning. Caporas also admitted on cross-examination that he was examined before the justice of the peace of Escalante, but denied that he there testified that he did not see Mauricio Gamao on the Saturday night of the murder. The justice of the peace, Mr. Amante, testified that he transcribed the questions and answers that were put to Rufino Caporas and that the latter stated before him that he spent the fifteenth of May at the beach, but that he did not see Mauricio Gamao there that day nor that night. The wife of Caporas testified that on the night of the murder she and her husband slept together in their house at the beach, and that no one else was there, and that she had since separated from her husband because he insisted upon her testifying as Gil Gamao wanted her to do. In surrebuttal, Rufino Caporas stated that his wife left him a week prior to the death of the priest. The prosecution then showed by the notes of the stenographer that his same witness had testified before the prosecuting attorney that his wife had not left him until after the priest had been murdered. The evidence of the defense in support of the claim that no meeting was held in the house of Gil Gamao on the day of the murder and that Captain Gil himself was

confined in his bed with paralysis consists of that of Mauricio Gamao and the following witnesses: Inez Bais stated that she massaged Captain Gil on Saturday, the day of the murder, and that half of his body was paralyzed so that he was unable to leave his house. On cross-examination this witness denied that she had previously testified at Escalante that she had spent that Saturday. On rebuttal it was shown by the stenographer's notes of this witness' testimony that she did testify in the preliminary investigation conducted by Mr. Adams at Escalante, that she was not at the house of Gil on that Saturday. Patricia Tenebroso, a 14-year old servant in the house of Gil Gamao, testified that he was unable to get out of his knees admitted having testified at Escalante before the justice of the peace, but denied having there declared that she had spent the day in question away from home. The justice of the peace testified that this witness did swear before him that she had spent that Saturday away from Gil's house. Francisco Flores, a tailor, whose shop was in the lower part of Gil's house, testified that he had spent the entire day in question cutting cloth for garments for a boy, and thus came to know that Gil was sick in his room all day. He claimed that he did this work upstairs because he had no table in his shop, but it was shown that there was a table downstairs in the shop of this witness at that time. Pelagia Majinay testified that on the day of the murder Gil was so ill that he did not go out of his room all day, and that a few days after the arrest of Gil she met Ferrer at the house of Asuncion Alfan, where Ferrer tried to induce her by bribery and threats to testify that there had been a meeting in Gil's house; but Alfan stated that it was she who had the conversation with Majinay and that although Ferrer was present, he said nothing whatever to Majinay. If the testimony for the witnesses for the prosecution is to be believed, Mauricio Gamao admitted his guilt to Dolores Labida [Labadia] on the morning after the murder occurred. He likewise admitted his guilt in the confessions made before the justice of the peace and other witnesses. If Mauricio were innocent, it is almost inconceivable that he should have involved himself and his uncle, upon whom he was dependent for maintenance, in a crime which, prior to his confessions, remained a mystery. If, on the other hand, Mauricio is guilty, the circumstances under which he was about to be removed from his home to Bacolod were such as would induce him to seek to free himself from the impending danger by implicating those who had involved him in this crime. He must have known that the real cause of his arrest and transfer to Bacolod was to procure his detention until evidence could be obtained against him for the murder of the priest. The fact that those against whom he made complaint refrained from furnishing the bond of one hundred pesos (the amount fixed by the justice of the peace for Mauricio's provisional liberty on the charge of carrying concealed weapons) that would have secured him his liberty, must have indicated to him that they intended to leave him to suffer the fate of Pedro Gil, themselves seeking to avoid all suspicion

by not interfering in his behalf. Mauricio went to the house of Gil and reported to the latter that: "The thing is done. The padre is dead." The defense of Gil Gamao was directed almost solely to the proposition that his codefendants were not at his house on the day of the murder, and that on that day he himself was so ill that he did not leave his bed; consequently, that he did not conspire with his codefendants to induced Mauricio to kill the priest. In summing up the case, the trial court, in determining the weight to be given to the testimony presented, after a very careful study and analysis of all the evidence, said:
"In weighing this testimony in the endeavor to sift the false from the true and to ascertain what is the fact, the court has sought to be careful in considering the surrounding circumstances, the probabilities and improbabilities, the intelligence or lack of intelligence and personal status of each witness, whether through enmity or for any other reason a witness might have a motive for giving false testimony against any of the accused or whether through a personal obligation, friendship, relationship, menial condition or dependency a witness should have a motive or might be induced to give false testimony in favor of any of them. And in trying to ascertain further the credibility that should be given each witness, the court has endeavored to consider carefully prior statements made, and former testimony given by these witnesses upon this same matter and when the former statements and testimony given differs from that made by the same witness here, all of the surrounding circumstances of this case and preliminary to its commencement have been considered in the effort to ascertain whether the first was forced and false, and the last is true, or whether the last is false and the first was voluntary and true."

The record in this case, which is voluminous, shows that the trial judge gave the appellants every opportunity to present their defense. He allowed the defense great latitude in the cross-examination of witnesses. He had an opportunity to see the witnesses, hear them testify, and note their demeanor on the stand. He finally reached the conclusion, after a thorough study of the whole case, that the testimony of record established beyond a reasonable doubt that it was the appellant Mauricio Gamao who murdered Father Victor Baltanas on the night of May 15, and that the said Mauricio was directly induced to commit this crime by the other appellant, Gil Gamao. We think these conclusions or findings of fact are fully sustained by the record. The trial court classified the crime as that of assassination, there being present as to Mauricio Gamao the qualifying circumstance of alevosia, and as to Gil Gamao that of known premeditation. the court also found that there were not present in the commission of this crime any aggravating or extenuating circumstances, except the aggravating circumstance of known premeditation on the part of Mauricio Gamao.

Counsel for the appellants insists, among other things, that the court erred in finding that Gil Gamao was guilty as a principal by induction. Article 13 of the Penal Code provides:
"ART. 13.The following are considered as principals: "1.Those who take a direct part in the commission of the act. "2.Those who directly force or induce others to commit it."

Viada, in his Commentaries, in discussing this No. 2, says:

"But it must be borne in mind that these acts of inducement must not consist of simple counsel before the perpetration of the crime, nor of simple words at the moment of its execution. Such counsel or such words constitute without doubt wrongful acts and a reprehensible incentive before the moral law. But in order that they may be considered as a direct inducement according to the code it is necessary that he who gives such counsel or says such words must who is to act and is necessary that this should be so direct, so efficacious, so powerful, as to make it a physical or moral coercion as powerful as the violence itself." (Vol. 1, p. 354.)

Mauricio Gamao, nephew of Gil Gamao, was a poor, ignorant fisherman, and more or less dependent upon his uncle for subsistence. On the other hand, Captain Gil Gamao was, when this crime was committed, a man of great influence in Escalante. He had a great number of people working for him, one of whom was his nephew Mauricio. He was the local political leader of his party. One of his nephews was president of the town. He had two brothers-in-law in the municipal council. Of his nephews, one was chief of police and two others were members of the police force. He had acquired, as we have said, a bitter hatred toward the Roman Catholic Church and the Spanish friars and priest. He called a meeting in his own house on the afternoon of May 15th, where the question of murdering the priest was discussed. He was the prime mover in this meeting. He dominated all who were present. He selected his nephew Mauricio to commit the crime and directed him to do it. Mauricio, immediately after murdering the priest, returned to the house of his uncle Gil and reported the fact. The influence exercised by Gil Gamao over his nephew was great and powerful that the latter, through fear, could not resist it. That Mauricio was directly induced to murder the priest by his uncle Gil we think there can be no question. Counsel also insist that the court erred in classifying the crime as assassination. On the other hand, the Attorney-General insists that as to Mauricio Gamao, there are present, not only the qualifying circumstance of alevosia, but also the aggravating circumstances of known premeditation and hire or reward, and that as to Gil Gamao, there was present, aside from the qualifying circumstance of known premeditation, the aggravating circumstance of having induced the commission of this crime by hire or reward. The deceased received the fatal blow while he was in the dark space between the door and the stairs leading to the upper portion of the convent. He was unable to see by whom the blow was struck. He had no opportunity to offer any resistance whatever. The murdered taking advantage of the darkness was

lying in wait for his victim, thereby employing means or methods in the execution of this crime which tended directly and specially to insure its execution without risk to himself, arising from the defense which the priest might make. These facts clearly establish the qualifying circumstance of alevosia in so far as Mauricio Gamao is concerned. It is true that the circumstance of alevosia cannot be used either as a qualifying or modifying circumstance, as to Gil Gamao, for the reason that there is nothing in the record to show that Gil Gamao directed or induced Mauricio to adopt the means or methods actually used by the latter in accomplishing the murder. He only directed and induced Mauricio to commit the murder, leaving the details as to how it was to be accomplished to Mauricio. But as to Gil Gamao there was present the qualifying circumstance of known premeditation, which raises his offense to that of assassination, inasmuch as it has been shown that as far back as March, 1907, he attempted to induced Batolinao to kill the priest who was then at Escalante. In March, 1909, two months prior to the murder, Gil offered Jose Patpat fifty pesos to kill the deceased. Some days prior to the murder, Miguel Gamao heard his uncle Gil say that an anarchistic society had been formed with the object of killing the friars. Again, Gil, on the afternoon of May 15th presided at the meeting held in his own house, where it was agreed that the priest should be killed, and he there deliberately selected his nephew to commit this crime, and directly induced him to do it. The determination to have the deceased murmured originated in his mind long before the crime was actually committed. This determination was constantly persisted in until he was successful. He had full opportunity for meditation and reflection, and ample time to allow his conscience to overcome the determination of his will had he so desired. All of these facts were certainly sufficient to justify the trial court in holding that the crime, in so far as Gill Gamao was concerned, was committed with known premeditation. (U.S. vs. Ricafor, 1 Phil. Rep., 173; U.S. vs. Gil, 13 Phil. Rep., 530.) If there were present, as to Mauricio Gamoa, one, two, or more aggravating circumstances, the penalty would be the same in this case, as, owing to his extreme ignorance, this court would be compelled to give him the benefits of article 11. We are unable to agree with the Attorney-General in his contention that the aggravating circumstance that Gil Gamao forced or induced his nephew to murder the priest by hire or reward should be applied, for the reason that the record does not show beyond a reasonable doubt that Mauricio Gamao was forced or induced to commit this crime in this manner. The only testimony upon this point is: (1) That of the witness Ferrer, who stated that Mauricio told him that he had been offered money to kill the priest but that he had refused to accept it. (2) That of Carlos Cabus, wherein he stated that Rufino Pineda approached him on behalf of Gil Gamao and asked for a contribution of one hundred pesos to be used in hiring Mauricio to kill the deceased. (3) That of Jose Patpat who testified that Gil Gamao offered him fifty pesos to kill Baltanas. (4) That of Dolores Labida [Labadia], who

testified that during the meeting held at Gil's house on May 15th she overheard Gil propose that Mauricio murder the priest, which is the only direct testimony upon this point. Labida here states that Gil Gamao offered to release Mauricio of all his indebtedness and give him "fifty more" if he would kill the priest. Mauricio stated, according to the testimony of Ferrer, that it was true that he had been offered money to kill the padre but that he would not accept it. Accepting as true the testimony of Labida [Labadia] and the statement of Mauricio upon this point, it has been shown that Gil offered Mauricio a reward if he would dispose of the priest, but that Mauricio refused to accept it. The testimony of Cabus and Patpat shows that Gil had been attempting for a long time to hire someone to kill the priest. This strongly tends to establish the fact that Mauricio was actually offered a reward to commit this crime by his uncle, but Mauricio flatly denies that he received any money or other reward for committing the murder. This statement of Mauricio was made at the time he made his confessions, which were accepted by the court as true. If it was a fact that Mauricio Gamao owed his uncle a sum of money, the latter could have used these obligations as a club in forcing his nephew to commit the crime. For Mauricio, knowing his uncle's power and influence in the community, and his own insignificance, could well anticipate what would happen to one who incurred his displeasure in a more serious form than if he had never received such favors from his uncle. It would also appear that if he had received a reward to commit the crime, he would have admitted it, as such an admission would no doubt, in his opinion, have had great weight with the authorities in securing his release. After an examination of the whole record upon this point, we agree with the trial court that it has not been shown beyond a reasonable doubt that Gil Gamao actually hired Mauricio to kill the deceased by giving him money or promising to release him from all his indebtedness. While this case was pending on appeal, a motion was made on the 18th of December, 1909, for a new trial. This motion complied with the provisions of the statute on the subject and was accompanied by various affidavits. Before the question of a new trial was passed upon by this court, counsel presented another motion on October 9, 1910, in which it was alleged that one Crispulo Pavilona had been sentenced to life imprisonment subsequent to the sentence which was rendered against the appellants in this case, for the same crime that of killing Father Baltanas and that the said Pavilona is now serving the sentence imposed upon him. In view of the allegations made in these two motions and the affidavits accompanying the first, this court, on December 17, 1910, granted a new trial as prayed for, and the record was returned to the court from whence it came for this purpose. Upon the second trial, which took place in Bacolod about the first of April, 1911, in the presence of the appellants and their counsel, the entire record in the former trial was introduced in due form, and the only further testimony presented was by the defense, who place Miguel Gamao, the nephew of Gil Gamao, upon the stand, a witness for the prosecution in the former trial. In this last trial this witness testified that the testimony given by him on the first trial was under compulsion. The trial court again sentenced these two appellants to the same penalty, holding that the new testimony was not sufficient

to cause a reasonable doubt in his mind as to the guilt of either Mauricio or Gil Gamao. The two condemned men again appealed, and it is now insisted that the guilt of both Crispulo Pavilona and the appellants in the case at bar is incompatible, for the reason that if Pavilona murdered the priest, Mauricio Gamao did not. While it has been suggested that the said Crispulo Pavilona was arrested, arraigned, pleaded guilty, and was sentenced to life imprisonment for the murder of Father Baltanas, yet, Notwithstanding the fact that this court granted the appellants a new trial, they never introduced nor attempted to introduce the decision of the court in the case against Pavilona, nor did they attempt to make any showing upon this question whatsoever. On the other hand, it was suggested by means of an affidavit that Crispulo Pavilona stated that in killing the priest he operated with both these appellants and received from Gil Gamao money for committing this crime. These suggestions, however, not having been established nor even an attempt made to establish them on the second trial, we cannot take them into consideration. For all of the foregoing reasons, the judgment condemning these appellants to life imprisonment, to indemnify the heirs of the deceased in the sum of one thousand pesos, and to the payment of the costs of the cause, is hereby affirmed, with costs of this instance against the appellants. Arellano, C.J., Torres, Johnson, and Carson, JJ., concur.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, FLORENCIO ORDIALES, defendant-appellant.

p

vs.

REYES, J.B.L., J : Direct appeal to this Court in view of the capital punishment imposed against accusedappellant, Florencio Ordiales, by the Court of First Instance of Rizal, Branch VII, Pasay City, in its Criminal Case No. 8114-P. The dispositive portion of the said court's decision follows:
"WHEREFORE, this Court after having thus considered very carefully the evidence of the prosecution and the defense, both testimonial and documentary, and the exhaustive Memorandum of the Defense, finds accused FLORENCIO ORDIALES guilty beyond reasonable doubt of the crime of murder, punishable under Art. 248 of the Revised Penal Code, committed with the aggravating and the mitigating circumstances above mentioned, and hereby sentences him to suffer the penalty of death in the manner provided by law, to indemnify the heirs of the deceased Vicente Bayona in the amount of TWELVE THOUSAND PESOS (P12,000.00) and to pay the costs."

The Amended Information charged accused-appellant Florencio Ordiales of the crime of murder committed as follows:
"That on or about the 4th day of November, 1968, in Pasay City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, Florencio Ordiales y Abaro, being then a Confidential Agent of the City Mayor, Pasay City, duly appointed and qualified as such, taking advantage of his public position, with deliberate intent to kill, and with evident premeditation, and treachery aforethought suddenly and unexpectedly, did then and there wilfully, unlawfully and feloniously attack, assault and shoot for several times on the vital parts of the body, unarmed, Vicente Bayona, with a carbine the herein accused was then provided with, which treacherous acts, tended to directly and specially insure its execution, without risk to himself, from the defense that Vicente Bayona may make, thereby inflicting upon the latter several mortal wounds, which caused his instantaneous death. That at the time of the commission of this offense the accused-Florencio Ordiales y Abaro was provided with a motor vehicle, which he took advantage of, to facilitate his escape from the scene of the crime. All contrary to law, with qualifying circumstance of alevosia, and the aggravating circumstances of (1) his public position, (2) evident premeditation, and (3) the use of a motor vehicle."

The evidence for the prosecution shows that on 4 November 1968, at 5:30 in the afternoon, Vicente Bayona, with two companions, Daniel Brown, Jr., and Rolando Cruz, were at the airconditioned room of Nad's restaurant, Libertad Street, Pasay City. While they were starting to drink pepsi-cola and gin, accused-appellant Florencio Ordiales entered, asking Vicente Bayona, "Sino ba ang minumura mo?" immediately firing at the latter a U.S. carbine, caliber .30, in rapid succession. The victim was unable to answer because he was hit. Accused-appellant then put down his

firearm to look at Bayona, after which he left the restaurant and boarded a yellow jeep parked outside. Two other persons were in the said jeep by the names of Bayani and Masakay. Daniel Brown, Jr., ran away after the first shot, while the victim's other companion, Rolando Cruz, was literally frozen with fear in his seat. Vicente Bayona died of multiple gunshot wounds at 6:10 that same afternoon upon arrival at San Juan de Dios Hospital, Pasay City. 1 The assailant shot him at a distance of two and a half (2 1/2) yards, more or less. 2 The slaying is admitted by the accused. The defense's own version of the incident was that accused-appellant saw Lt. Delfin Hernandez at the lobby of the Pasay City Hall in the morning of 4 November 1968. The former asked the latter if he could have his carbine M-1 converted to an automatic one or M-2. Since the accused-appellant did not have the carbine with him at the time, they agreed to meet at Nad's restaurant at 5:30 that afternoon so he could deliver the carbine. At past five of the said afternoon, accused-appellant went to the Nad's restaurant to keep the appointment. While accused-appellant was looking for a place to sit in the airconditioned room, Vicente Bayona whistled at him, motioning him to come near. As soon as accused-appellant approached Bayona, the latter said, "Tell the mayor that next year he will lose." Accused-appellant answered, "Huwag naman ganon. Bakit hindi kayo magkasundo. Dati kayo magkasama." Vicente Bayona, however, shouted, "Bastat sabihin mo talo na siya sa isang taon!" Accused-appellant shouted back, saying, "Why don't you tell him? You are sending me to tell him!" Vicente Bayona suddenly stood up with hands on waist and was able to approach accused-appellant, holding the barrel of the latter's carbine. The victim's two companions also rushed at accused-appellant whereupon, the latter stepped backward and fired at Bayona. The said companions ran away after Bayona was fired upon. Accused-appellant left the restaurant after Bayona fell and took a taxi at Taft Avenue near Pasay Commercial Center with the intention of surrendering to the mayor. In the corner of Malibay, accused-appellant met Francisco Villa (who was going to be appointed Chief of Police of Pasay City later), so he stopped and told him that he shot somebody and that he was going to surrender. Villa, however, advised him to surrender instead to the NBI. Accused-appellant, accompanied by Mr. Villa, then proceeded to Bankal to see NBI agent Mr. Aragon. Mr. Aragon, who arrived in his house later was told what happened. He, in turn, accompanied accused-appellant to the NBI where the latter surrendered to one Mr. Bayani with the carbine used in the shooting. The Court a quo found the aggravating circumstances of (a) abuse of official position, (b) evident premeditation, and (c) use of superior force. However, it considered the use of superior force as absorbed by the qualifying circumstance of treachery. The saidcourt also found the mitigating circumstance of voluntary surrender, offsetting one of the two remaining aggravating circumstances. Hence, the death penalty was imposed. The use of motor vehicle which was likewise alleged in the Amended

Information was not appreciated by the court a quo for the reason that the jeep was not used as a means to commit the murder. The following are assigned as errors in accused-appellants brief: The lower court erred in
1.Convicting accused-appellant of the crime of murder qualified by treachery; 2.Giving full credence to the testimonies of the witnesses for the prosecution which are full of serious and material contradictions, inconsistencies and manifestly false assertions; 3.Sentencing accused-appellant to suffer the penalty of death; 4.Finding that the aggravating circumstances of (1) abuse of official position and (2) evident premeditation are present in the commission of the offense; 5.Not acquitting accused-appellant of the crime charged on the ground of selfdefense; and 6.Not acquitting accused-appellant on the ground of reasonable doubt.

There is nothing on record to warrant a reversal of the court a quo's finding that treachery attended the killing of the deceased. The sudden and unexpected shooting of the victim with a carbine constituted treachery. Authorities are clear that even when an attack or aggression is made face to face, treachery or alevosia is nevertheless present when the attack is sudden and unexpected to the point of incapacitating the victim to repel or escape it. 3 Accused-appellant's account as to what precipitated the shooting could not be believed. The Statement, "Tell the mayor that next year he will lose," or "Basta sabihin mo talo na siya sa isang taon", could not be attributed to the deceased, who, being an avid campaigner of local mayoralty candidates, at least from Mayor Cuneta's time up to the election of Mayor Jovito Claudio, certainly could not have ignored that 1969 was not a mayoralty election year. On the other hand, it is admitted by the prosecution that the deceased and his twin brother, Reynaldo, had repeatedly slandered the incumbent mayor, since the latter disregarded the promise to make Reynaldo the chief of his confidential agents stating that the promise was merely a joke. In fact, on the afternoon before the shooting and when the brothers met at Shanghai restaurant, Pasay City, the victim told Reynaldo that he slandered the mayor again because the mayor refused to sign something which the victim asked him to sign. The version of the prosecution that it was accused-appellant who first confronted the victim with, "Sino ba ang minumura mo?" becomes more believably in the light of what happened, and specially since it is not disputed that accusedappellant was present at least in one of those occasions when the mayor was slandered. Defense witness Pedrito Caballes impliedly so admitted by quoting Vicente Bayona as saying to accused-appellant before he was shot, "huwag mo akong pakialaman." Finally, prosecution witnesses Daniel Brown, Jr., and Rolando Cruz corroborated each other in quoting accused-appellant as having said, "Sino ba ang minumura mo?" as against the lone denial of accused-appellant. It is true that the deceased had two companions while accused-appellant was alone, but superiority in number does not necessarily mean superiority in strength. 4 These three men were all seated and unarmed, and their movement was impeded by the table at

which they sat. Their positions even gave accused-appellant more advantage especially since he carried two firearms, a carbine and a revolver. However, as correctly held by the lower court, abuse of superior strength is absorbed in treachery and is inherent in the same. 5 It is accused-appellant's contention, and error was assigned in this regard, that the testimonies of the prosecution witnesses should not be given full credence because of alleged serious and material contradictions, inconsistencies and manifestly false assertions. Our review of the evidence demonstrates that the contractions were not on material points. The rule is settled in third jurisdiction that appellate courts seldom disturb a trial court's appreciation of the credibility of witnesses, in view of its opportunity to observe the demeanor and conduct of the witnesses while testifying on the witness stand; and that said appreciation of the court below will generally be accepted and acted upon favorably by the appellate courts, unless there is a material circumstance which consequently might affect the result of the case. 6 As already noted earlier, the exception does not obtain this case, hence, the finding of treachery is sustained. We come next to the question of whether the aggravating circumstances of abuse of public position and evident pre-meditation really attended the commission of the crime as found by the court a quo. For abuse of public position under Article 14, paragraph 1, Revised Penal Code, 7 to be appreciated, it is not only necessary that the person committing the crime be a public official; he must also use the influence, prestige or ascendency which such office gives him as a means by which he realized his purpose. The essence of the matter is presented in the inquiry, "Did the accused abuse his office in order to commit the crime?" 8 It is not shown that accused-appellant took advantage of his position as confidential agent of Mayor Claudio in shooting the victim, or that he used his "influence, prestige or ascendency" in killing the deceased. Accused-appellant could have shot by Bayona without having occupied the said position. Thus, in the absence of proof that advantage was taken by accusedappellant of his being a confidential agent, the aggravating circumstance of abuse of public position could not be properly appreciated against him. The Solicitor General also concedes this. 9 The court a quo's finding that the said aggravating circumstance is present can not, therefore, be sustained. The aggravating circumstance of evident premeditation has not likewise been proven beyond reasonable doubt. The mere fact that accused-appellant killed Bayona does not necessarily prove in itself that the former hatched a plan to kill the latter. As there was no direct evidence of the planning or preparation, the court's conclusion may not be endorsed, since it is not enough that premeditation be suspected or surmised, but the criminal intent must be evidenced by notorious outward acts evincing the determination to commit the crime. 10 Much less is there a showing of opportunity for reflection and the persistence in the criminal intent that characterize the aggravating circumstance of evident premeditation 11 The court a quo therefore erred in appreciating the said aggravating circumstance against accused-appellant. The Solicitor General likewise concedes this finding. 12

As regards the plea of self-defense under Article 11, paragraph 1, of the Revised Penal Code, the rule is that the same must be proved by clear and convincing evidence. 13 The three concurring requisites should be present, namely, (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed to repel the aggression; and (c) lack of sufficient provocation on the part of the accused. 14 We find no proof of unlawful aggression on the part of the victim. He was seated and unarmed. This Court finds it hard to believe that he suddenly stood up with hands at his waist, which allegedly led accused-appellant to think that the former would draw a gun. The victim, fully aware that he was not armed, and knowing that his adversary carried a carbine, would not bluff at so great a risk. We find it still harder to believe that the victim arose and approached or rushed at accused-appellant, and suddenly held the barrel of the latter's carbine without first being shot at, for the reasons that (a) a table obstructed his way; 15 (b) accused-appellant was at least 2 1/2 yards away from the victim, 16 which distance could not have been easily and quickly traversed from where the alleged aggressor was seated, considering the obstruction; and (c) according to his own version, accused-appellant already warned that he would shoot if the victim approached him. It would have been foolhardy and suicidal for the victim to act in the manner that accused-appellant would like this Court to believe, knowing that the accused-appellant was poised to shoot if the victim should make a move to approach him, and this holds likewise of the victim's companions, who were not themselves armed. Yet, accused-appellant would like Us to believe that he shot the victim only after the latter held the barrel of the gun and only after he had first stepped backward. The statement of Daniel Brown, Jr., 17 that the victim fell from his seat to the cement floor like "a burning candle", belies further the claim of accused-appellant that the deceased was shot only after he approached accused-appellant. Under the circumstances, accused-appellant's plea of self-defense can not be sustained, since he was himself the aggressor. We are convinced that the guilt of accused-appellant has been proven beyond reasonable doubt. However. the death penalty should be reduced in the absence of the aggravating circumstances of abuse of public position and evident premeditation which were erroneously found by the court a quo. Under Article 248 of the Revised Penal Code, 18 the penalty for murder is reclusion temporal in its maximum period to death. There being only one mitigating circumstance, that of voluntary surrender, and no aggravating circumstance to offset the same, the imposable penalty is the minimum pursuant to Article 64, paragraph 2, of the same Code, which is the maximum period of reclusion temporal under Article 248, supra. The Indeterminate Sentence Law (Act 4103, as amended by Act 4225) applies in view of the nature of the penalty. Under this law, the judgment sentencing the accused to a prison term provides for a minimum within the range of the penalty next lower in degree to be fixed in any of its periods in the discretion of the court. 19 Under Article 61, paragraph 3, of the Revised Penal Code when the penalty prescribed for the crime is composed of one or two indivisible penalties and the maximum period of another divisible penalty, as in this case, the penalty next lower in degree shall be composed of the medium and minimum

periods of the proper divisible penalty and the maximum of that immediately following in said respective scale. The penalty next lower in degree in the instant case therefore ranges from the maximum of prision mayor to the medium degree of reclusion temporal. FOR THE FOREGOING REASONS, the decision appealed from is accordingly modified, sentencing accused-appellant to suffer an imprisonment of 14 years, 8 months and 1 day of reclusion temporal as minimum to 20 years of reclusion temporal as maximum. Said decision is affirmed in all other respects. Costs against appellant.

CLEMENCIO C. RAMIREZ, petitioner, vs. HON. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. DECISION AQUINO, J : This is a plea of the accused for the reduction of his penalty for the malversation of P68,057.97. Clemencio C. Ramirez, a collection agent of the Bureau of Internal Revenue at Bauang, La Union, was convicted by the Sandiganbayan in a decision dated February 23, 1981 for having malversed P68,057.97. He had pleaded guilty. The penalty for the offense is reclusion temporal maximum to reclusion perpetua (Par. 4, Art. 217 of the Revised Penal Code as amended by Republic Act No. 1060). That penalty should be lowered by one degree because of the presence of two mitigating circumstances: plea of guilty and voluntary surrender to the authorities. So, the maximum of the indeterminate penalty should be taken from prision mayor maximum to reclusion temporal medium, or ten years and one day to seventeen years and four months (Par. 5, Art. 64, Revised Penal Code). And the minimum penalty should be taken from prision correccional maximum to prision mayor medium, or four years, two months and one day to ten years. Ramirez was sentenced to an indeterminate penalty of five (5) years, five (5) months and eleven (11) days of prision correccional, as minimum, to twelve (12) years and one day of reclusion temporal, as maximum, and to pay a fine of P68,057.97 and a similar indemnity with the additional penalty of perpetual special disqualification. Section 1 of the Indeterminate Sentence Law provides that "the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and to a minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense." The Sandiganbayan took the maximum of the indeterminate penalty from reclusion temporal minimum, or from the medium period,on the theory that, since the two extenuating circumstances were already taken into account in lowering the penalty by one degree, they should not again be taken into account in determining the maximum of the penalty. It applied the provision of rule 1 of article 64 that "when there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period." Using its discretion, the Sandiganbayan took the minimum of the indeterminate penalty from the minimum period of the penalty next lower in degree, or from prision correccional maximum. The accused in his motions for reconsideration in the Sandiganbayan and in this Court insists that, out of compassion t o a first offender and to a lawyer, he should be sentenced to an indeterminate penalty of four years, two months and one day to six years (pp. 13 and 31, Rollo).
p cdrep

However, in this petition for review he prays that he be sentenced to four years, two months and one day to ten years and one day. We hold that he may be given as minimum penalty four (4) years, two (2) months and one (1) day of prision correccional maximum. That is allowed by law. But the maximum penalty cannot be reduced to sir years. That is not authorized by law. As prayed in his basic petition, the maximum of his penalty may be ten (10) years and one (1) day of prision mayor maximum. This matter rests in the discretion of the court according to paragraph 5 of article 64 itself. (People vs. Oraza, 83 Phil. 633.) Parenthetically, it should be noted that the extensions sought by the accused from September 13, 1981 to August 5, 1983 constitute an abuse of the legal process. His last extension, which will serve no purpose, is denied. WHEREFORE, the judgment of the Sandiganbayan is affirmed with the modification that the accused is sentenced to an indeterminate penalty of four years, two months and one day of prision correccional as minimum to ten years and one day of prision mayor as maximum. No costs. SO ORDERED. Fernando, C.J., Concepcion, Jr., Guerrero, Abad Santos, De Castro, Melencio-Herrera, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur. Teehankee, J., took no part.
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Separate Opinions
Makasiar, J., dissenting: I dissent. The decision should be affirmed. The penalty is within the minimum and maximum ranges allowed by law. The lower court did not commit any error nor abuse of discretion. The majority opinion tends to pauper grafters.

LUCIO DULPO, petitioner, vs. HON. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. YAP, J : Petitioner Lucio Dulpo was an employee of the Post Office at Bacoor, Cavite, holding a temporary appointment as letter-carrier from August 26, 1983, until the termination of his employment on April 26, 1985. Upon the complaint of Mrs. Lorna Lacorte (formerly Mrs. Lorna Abelon) of Zapote, Bacoor, the accused letter-carrier was charged on July 10, 1985 before the Sandiganbayan in two separate informations for having feloniously taken and carried away two airmail letters allegedly containing international money orders for $150 and $100, received at the Bacoor Post Office on January 8 and January 21, 1985, respectively, and entrusted to him for delivery to the addressee. After trial, the respondent Sandiganbayan, while absolving Dulpo as to the alleged asportation of the international money orders on the ground that it was not sufficiently proven that the letters contained said money orders, found him guilty of the crime of infidelity in the custody of documents under Article 226 of the Revised Penal Code for the loss of the two airmail letters and sentenced him in each of the cases "to suffer an indeterminate penalty ranging from two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum; to pay a fine of P500.00, plus costs; and to suffer the additional penalty of temporary special disqualification for a period ranging from ten (10) years, eight (8) months and one (1) day, as minimum, to sixteen (16) years, eight (8) months and one (1) day, as maximum." (1) the Sandiganbayan erred in finding the accused guilty beyond reasonable doubt of infidelity in the custody of documents: devoid of merit. The finding of the Sandiganbayan as to the guilt of petitioner is amply supported by the evidence. The fact that the two letters in question were entrusted to, and received by, the accused letter-carrier, Lucio Dulpo, for delivery to the addressee is admitted by him. It is also a fact admitted by him that those letters were never delivered to the addressee. Dulpo's defense is that he could not deliver the letters because the addressee was unknown at the given address, hence, in accordance with standard procedure, he returned the said letter to the sender by putting them in the dispatch box in the post office. However, the burden of proof to establish such defense lies on the accused. He cannot rely simply on the presumption that official duty has been regularly performed, since there was evidence presented by the prosecution which negated such presumption. The complainant testified that upon verification from her son, she learned that the letters were not returned to, and received by, him. In fact, it was shown that the money orders which were intended for the complainant apparently went to someone else as they were encashed by a certain Adela Bonavie, and someone had apparently signed complainant's name on the money order, putting her address as 1221 P. Sevilla Street, Caloocan City. The accused claimed, in his defense, that he recorded in a logbook which he kept for the purpose the fact that he returned the letters to the sender. However, he could not produce said logbook, saying that they were kept in the post
p

office. The incumbent postmaster of Bacoor Post Office, who was subpoenaed at the request of the accused to bring the logbook in question to the court at the hearing on the petitioner's motion for reconsideration, brought only two logbooks, one bearing the date October 18, 1982, and the other with the date June 23, 1983, and stated to the court that these were the only books of the accused which he found in the post office and that he could not find any logbook of the accused for the year 1980. The court a quo accordingly did not give credence to the defense of the accused. We find no reason for disturbing the court's findings in this regard (2) it erred in imposing too severe a penalty considering that what were involved were ordinary airmail letters: well-taken. Article 226 of the Revised Penal Code provides for two ranges of penalty for infidelity in the custody of documents: prision mayor and a fine not exceeding P1,000 if the damage to a third party or to the public interest is serious, and prision correccional in its minimum and medium periods and a fine not exceeding P1,000 if such damage is not so serious. Considering the facts and circumstances of the case, we find that the proper penalty to be imposed on the accused should be that which is prescribed by paragraph 2 of Article 226, which is the lesser penalty. xxx Accordingly, the appealed decision should be modified and the accused sentenced to an indeterminate penalty of six (6) months of arresto mayor, as minimum, to two (2) years, eleven (11) months and ten (10) days of prision correccional, as maximum, in each of the cases. The petitioner's motion, dated January 7, 1987, praying that the "threefold rule" should be applied by the Court in sentencing him, is denied. Conviction for multiple felonies requires the imposition of multiple penalties. The so-called threefold rule can only be taken into account in connection with the service of the sentence imposed, not in the imposition of the penalty. WHEREFORE, with the modification above-mentioned, i.e. reducing the penalty of imprisonment imposed upon the petitioner Lucio Dulpo, the judgment of the Sandiganbayan is affirmed in other respects. SO ORDERED. Teehankee, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur. Fernan, J., is on leave.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME JOSE Y GOMEZ, ET AL., defendants. JAIME JOSE Y GOMEZ, BASILIO PINEDA, JR., alias "BOY," EDGARDO AQUINO Y PAYUMO and ROGELIO CAAL Y SEVILLA, defendantsappellants. PER CURIAM : The amended complaint filed in this case in the court below, reads as follows:
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"The undersigned complainant accuses JAIME JOSE Y GOMEZ, BASILIO PINEDA, JR. alias "BOY," EDUARDO AQUINO Y PAYUMO alias "EDDIE" and ROGELIO CAAL Y SEVILLA alias "ROGER," as principals, WONG LAY PUENG, SILVERIO GUANZON Y ROMERO and JESSIE GUION Y ENVOLTARIO as accomplices, of the crime of Forcible Abduction with rape, committed as follows: "That on or about the 26th day of June, 1967, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named principal accused, conspiring together, confederating with and mutually helping one another, did, then and there, wilfully, unlawfully and feloniously, with lewd design, forcibly abduct the undersigned complainant against her will, and did, then and there take her, pursuant to their common criminal design, to the Swanky Hotel in Pasay City, where each of the four (4) accused, by means of force and intimidation, and with the use of a deadly weapon, have carnal knowledge of the undersigned complainant against her will, to her damage and prejudice in such amount as may be awarded to her under the provisions of the civil code. "That WONG LAY PUENG, SILVERIO GUANZON y ROMERO, and JESSIE GUION y ENVOLTARIO, without taking a direct part in the execution of the offense either by forcing, inducing the principal accused to execute, or cooperating in its execution by an indispensable act, did, then and there cooperate in the execution of the offense by previous or simultaneous acts, that is, by cooperating, aiding, abetting and permitting the principal accused in sequestering the undersigned complainant in one of the rooms of the Swanky Hotel then under the control of the accused Wong Lay Pueng, Silverio Guanzon y Romero and Jessie Guion y Envoltario, thus supplying material and moral aid in the consummation of the offense. "That the aforestated offense has been attended by the following aggravating circumstances: 1.Use of a motor vehicle. 2.Night time sought purposely to facilitate the commission of the crime and to make its discovery difficult; 3.Abuse of superior strength; 4.That means were employed or circumstances brought about which added ignominy to the natural effects of the act; and 5.That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for the commission.

xxx

What kind of rape was committed? Undoubtedly, it is that which is punishable by the penalty of reclusion perpetua to death, under paragraph 3, Article 335, as amended by Republic Act No. 4111 which took effect on June 20, 1964, and which provides as follows:
"ART. 335.When and how rape committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: "1.By using force or intimidation; "2.When the woman is deprived of reason or otherwise unconscious; and "3.When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. "The crime of rape shall be punished by reclusion perpetua. "Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. "When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. "When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be likewise death. "When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death."

As regards, therefore, the complex crime of forcible abduction with rape, the first of the crimes committed, the latter is definitely the more serious; hence, pursuant to the provision of Art. 48 of the Revised Penal Code, the penalty prescribed shall be imposed in its maximum period. Consequently, the appellants should suffer the extreme penalty of death. In this regard, there is hardly any necessity to consider the attendance of aggravating circumstances, for the same would not alter the nature of the penalty to be imposed. Nevertheless, to put matters in their proper perspective and for the purpose of determining the proper penalty to be imposed in each of the other three crimes of simple rape, it behooves Us to make a definite finding in this connection to the effect that the commission of said crimes was attended with the following aggravating circumstances: (a) nighttime, appellants having purposely sought such circumstance to facilitate the commission of these crimes; (b) abuse of superior strength, the crime having been committed by the four appellants in conspiracy with one another (Cf. People vs. De Guzman, et al., 51 Phil., 105, 113); (c) ignominy, since the appellants in ordering the complainant to exhibit to them her complete nakedness for about ten minutes, before raping her, brought about a circumstance which tended to make the effects of the crime more humiliating; and (d) use of a motor vehicle. With respect to appellants Jose, Aquino and Caal, none of these aggravating circumstances has been offset by any mitigating circumstance. Appellant Pineda should, however, be credited with the mitigating circumstance of voluntary plea of guilty, a factor which does not in the least affect the nature of the proper penalties to be imposed, for the reason that there would still be three aggravating circumstances remaining. As a result, appellants should likewise be made to suffer the extreme, penalty of death in each of these three simple crimes of rape. (Art. 63, par. 2, Revised Penal Code.).

In refusing to impose as many death penalties as there are offenses committed, the trial court applied by analogy Article 70 of the Revised Penal Code, which provides that "the maximum duration of all the penalties therein imposed upon the appellant shall not be more than three-fold the length of time corresponding to the most severe of the penalties imposed upon the appellant, which should not exceed forty years." The said court is of the opinion that since a man has only one life to pay for a wrong, the ends of justice would be served, and society and the victim would be vindicated just as well, if only one death penalty were imposed on each of the appellants. We cannot agree with the trial court. Article 70 of the Revised Penal Code can only be taken into account in connection with the service of the sentence imposed, not in the imposition of the penalty (People vs. Escares, 55 Off. Gaz., 623). In holding that only one death penalty should be imposed because man has only one life, the trial court ignored the principle enunciated in the very case it cited, namely, U.S. vs. Balaba, 37 Phil., 260, where this Court, in affirming the judgment of the trial court, found the accused guilty of two murders and one homicide and imposed upon him two death sentences for the murders and a prison term for the homicide. In not applying the said principle, the court a quo said that the case of Balaba is different from the present case, for while in the former case the accused was found to have committed three distinct offenses, here only one offense is charged, even if complex. As we have explained earlier herein, four crimes were committed, charged and proved. There is, therefore, no substantial difference between the two cases insofar as the basic philosophy involved is concerned, for the fact remains that in the case of Balaba this Court did not hesitate to affirm the two death sentences imposed on the accused by the trial court. In People vs. Peralta, et al., L-19060, October 29, 1968, in which this Court imposed on each of the six accused three death penalties for three distinct and separate crimes of murder, We said that "since it is the settled rule that once conspiracy is established, the act of one conspirator is attributable to all, then each conspirator must be held liable for each of the felonious acts committed as a result of the conspiracy, regardless of the nature and severity of the appropriate penalties prescribed by law." In the said case (which was promulgated after the decision of the court a quo had been handed down) We had occasion to discuss at length the legality and practicality of imposing multiple death penalties, thus:
"The imposition of multiple death penalties is decried by some as a useless formality, an exercise in futility. It is contended, undeniably enough, that a death convict, like all mortals, has only one life to forfeit. And because of this physiological and biological attribute of man, it is reasoned that the imposition of multiple death penalties is impractical and futile because after the service of one capital penalty, the execution of the rest of the death penalties will naturally be rendered impossible. The foregoing opposition to the multiple imposition of death penalties suffers from four basic flaws: (1) it fails to consider the legality of imposing multiple capital penalties; (2) it fails to distinguish between imposition of penalty and service of sentence; (3) it ignores the fact that multiple death sentences could be served

simultaneously; and (4) it overlooks the practical merits of imposing multiple death penalties. "The imposition of a penalty and the service of a sentence are two distinct, though related, concepts. The imposition of the proper penalty or penalties is determined by the nature, gravity and number of offenses charged and proved, whereas service of sentence is determined by the severity and character of the penalty or penalties imposed. In the imposition of the proper penalty or penalties, the court does not concern itself with the possibility or practicality of the service of the sentence, since actual service is a contingency subject to varied factors like the successful escape of the convict, grant of executive clemency or natural death of the prisoner. All that go into the imposition of the proper penalty or penalties, to reiterate, are the nature, gravity and number of the offenses charged and proved and the corresponding penalties prescribed by law. "Multiple death penalties are not impossible to serve because they will have to be executed simultaneously. A cursory reading of article 70 will show that there are only two moves of serving two or more (multiple) penalties: simultaneously or successively. The first rule is that two or more penalties shall be served simultaneously if the nature of the penalties will so permit. In the case of multiple capital penalties, the nature of said penal sanctions does not only permit but actually necessitates simultaneous service. "The imposition of multiple death penalties, far from being a useless formality, has practical importance. The sentencing of an accused to several capital penalties is an indelible badge of his extreme criminal perversity, which may not be accurately projected by the imposition of only one death sentence irrespective of the number of capital felonies for which he is liable. Showing thus the reprehensible character of the convict in its real dimensions, the possibility of a grant of executive clemency is justifiably reduced in no small measure. Hence, the imposition of multiple death penalties could effectively serve as a deterrent to an improvident grant of pardon or commutation. Faced with the utter delinquency of such a convict, the proper penitentiary authorities would exercise judicious restraint in recommending clemency or leniency in his behalf. "Granting, however, that the Chief Executive, in the exercise of his constitutional power to pardon (one of the presidential prerogatives which is almost absolute) deems it proper to commute the multiple death penalties to multiple life imprisonments, then the practical effect is that the convict has to serve the maximum forty (40) years of multiple life sentences. If only one death penalty is imposed, and then is commuted to life imprisonment, the convict will have to serve a maximum of only thirty years corresponding to a single life sentence."

We are, therefore, of the opinion that in view of the existence of conspiracy among them and of our finding as regards the nature and number of the crimes committed, as well as of the presence of aggravating circumstances, four death penalties should be imposed in the premises. xxx xxx xxx

Before the actual promulgation of this decision, this Court received a formal manifestation on the part of the Solicitor General to the effect that Rogelio Caal, one of the herein appellants, died in prison on December 28, 1970. As a result of this development, this case is hereby dismissed as to him alone, and only insofar as his criminal liability is concerned, with one-fourth (1/4) of the costs declared de oficio. WHEREFORE, the judgment under review is hereby modified as follows: appellants Jaime G. Jose, Basilio Pineda, Jr., and Edgardo P. Aquino are pronounced guilty of the complex crime of forcible abduction with rape, and each and every one of them is likewise convicted of three (3) other crimes of rape. As a consequence thereof, each of them is hereby sentenced to four (4) death penalties; all of them shall, jointly and severally, indemnify the complainant in the sum of P10,000.00 in each of the four crimes, or a total of P40,000; and each shall pay one-fourth (1/4) of the costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Villamor and Makasiar, JJ., concur.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUCRECIA GABRES, also known as MONA GABRES, accusedappellant. VITUG, J : Five counts of estafa were filed against the spouses Perlito (Lito) and Lucrecia (Mona) Gabres and, except for the names of the private complainants and the amounts involved, the text in each of the corresponding informations is substantially the same in all; viz.: 1
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"The undersigned accuses SPOUSES LITO and LUCRECIA GABRES also known as MONA GABRES of the crime of Estafa, defined and penalized under Article 315, paragraph 2(a) of the Revised Penal Code, committed as follows: "That on or about the months of April, 1992 up to July, 1992 and sometime subsequent thereto, at Acop, Municipality of Tublay, Province of Benguet, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to defraud and by means of deceit through false representations and pretenses made by them prior to or simultaneous with the commission of the fraud, did then and there willfully, unlawfully and feloniously defraud JOEL PANIDA, by then and there representing themselves as a duly authorized or licensed recruiters for overseas employment, when in truth and in fact they were not, thereby inducing the said person to give to them the sum of FORTY-FIVE THOUSAND PESOS (P45,000), Philippine Currency, for placement abroad, which amount they misappropriated for their own use and benefit and then either fail or refuse and continue to fail or refuse to return the same despite repeated demands, all to the damage and prejudice of said person in the total sum aforesaid and other consequential damages. "Contrary to Law." 2

In addition, the spouses were charged with having engaged in large scale illegal recruitment; thus:
"The undersigned accuses Lito Gabres and Lucrecia Gabres also known as Mona Gabres of Illegal Recruitment, defined under par. 1, Art. 38 of P.D. 442, as amended, otherwise known as The Labor Code of the Philippines, and penalized under Art. 39(b) of the same Code, as amended by P.D. 2018, committed as follows: "That on or about the month of April, 1992 up to July, 1992 and sometime subsequent thereto, at the Municipality of Tublay, Province of Benguet, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and mutually aiding each other, did then and there willfully, unlawfully and knowingly recruit ORETA NISPEROS, TARCISO DACSIG, JULIUS AOAY, JOEL PANIDA and RONALD MIRABUENO for overseas employment, by then and there misrepresenting themselves as a duly authorized or licensed recruiters when in truth and in fact they were not and by reason of said misrepresentations, they were able to obtain from the said complainants the aggregate sum of ONE HUNDRED EIGHTY FIVE THOUSAND PESOS

(P185,000.00) Philippine Currency, all to the damage and prejudice of the above-named complainants in the total sum aforesaid sum and other consequential damages. "That such illegal recruitment having been committed by in large scale, it constitutes economic sabotage.

The six cases were tried, preceded by the arraignment of the accused, jointly. The following version of the case is culled from the evidence given by the prosecution. Some time in March of 1992, Oreta Nisperos heard that the accused couple were recruiting factory workers for abroad. With great anticipation, Nisperos, accompanied by her son, Ramil, and her neighbors, Joel Panida and Julius Aoay, 4 went to the residence of the Gabreses in Bauang, La Union. After the group was introduced by Nisperos' cousin, Rosario Zapanta, the spouses confirmed their being engaged in the recruitment of factory workers for Korea. A "package deal" was reached. Each applicant was to be charged a placement fee of P45,000.00. The parties agreed to meet again on 12 April 1992 at the Dr. Yares Clinic in Baguio City. On the appointed date and time, Mona Gabres alone showed up to meet with the applicants. The latter were joined, in this meeting, by Tarciso Dacsig, Jr., Jonard Dulay and Ronaldo Mirabueno, who all promised to also come up with the required "placement fees." At the respective dates stated below, the accused spouses received the following amounts from each of the applicants; thus:
cda

"DATE OF PAYMENT NAME OF PAYORAMOUNT 1. April 26, 1992Oreta NisperosP 5,000.00 (for Ramil Nisperos)(No receipt) Joel PanidaP 5,000.00 (Exh. 'A' - CR No. 1800) Tarciso Dacsig, Jr.P 5,000.00 (Exh. 'A' - CR No. 1803) 2. May 1, 1992Julius AoayP 5,000.00 (Exh. 'A' - CR No. 1802) 3. May 5, 1992Tarciso Dacsig, Jr.P 5,000.00 (Exh. 'B' - CR No. 1803) Oreta NisperosP 5,000.00 (for Ramil Nisperos)(No receipt) 4. June 7, 1992Oreta NisperosP 5,000.00 (for Ramil Nisperos)(Exh. 'B' - CR No. 1800) Joel PanidaP 5,000.00 (Exh. 'B' - CR No.

1800) Tarciso Dacsig, Jr.P 5,000.00 (Exh. 'B' - CR No. 1800) Julius AoayP 5,000.00 (Exh. 'B' - CR No. 1800) 5. June 10, 1992Oreta NisperosP30,000.00 (for Ramil Nisperos)(Exh. 'B' - CR No. 1801) 6. June 17, 1992Oreta NisperosP 5,000.00 (for Joan Nisperos)(Exh. 'C' - CR No. 1801) 7. June 18, 1992Oreta NisperosP 5,000.00 (for Jonard Dulay)(Exh. 'D' - CR No. 1801) 8. July 3, 1992Joel PanidaP35,000.00 (Exh. 'C' - CR No. 1800) Tarciso Dacsig, Jr.P25,000.00 (Exh. 'D' - CR No. 1803) Julius AoayP30,000.00 (Exh. 'C' - CR No. 1802)" 5

On 03 July 1992, the accused spouses assured Ramil Nisperos, Joan Nisperos, Joel Panida, Tarciso Dacsig, Jr., Julius Aoay, Jonard Dulay and Ronaldo Mirabueno that they could expect within a few days their departure for abroad. The promise was not fulfilled. Then, in order to appease the applicants, the spouses explained that it was only the call of the Korean employer, Mr. Kim, that was being awaited so as to firm up the flight schedule. The call never came. After a series of follow-ups, the applicants were directed by the spouses to confer with the latter's supposed associate in Manila, one Rebecca (Vicky) Naval, who was said to be managing the Bachs and Cochs Travel Agency. Naval initially denied any association with the Gabreses; she later, however, told the group that she had been engaged by the spouses to process the travel documents, plane tickets and flight bookings of the applicants, and that the required visas were already being applied for. After several more months of waiting and still getting nowhere, the applicants finally demanded the return of their money from the spouses. Each applicant was issued four checks, each for P10,000.00, but which, when presented for payment, all bounced. The would-be overseas workers sought the assistance of the Philippine Overseas Employment Administration-Cordillera Administrative Region ("POEA-CAR")

which certified, through Atty. Justinian O. Lichnachan, that the accused spouses were "not licensed or authorized to recruit workers for overseas employment within the City of Baguio or any part of the region." 7 Forthwith, a joint affidavit-complaint was filed with the Benguet Provincial Prosecutor's Office that became the basis of the criminal informations, aforesaid, against the Gabreses. Lito Gabres managed to elude arrest, and the trial proceeded only against his wife. Mona Gabres pleaded "not guilty" to each of the accusations. She denied any involvement in her husband's activities. The defense sought to establish that Mona was a mere fish vendor in Bauang, La Union, and that this work demanded her full attention. Her husband used to be an overseas contract worker himself and, thereafter, a liaison officer for Caro Fran Recruitment Agency, whose job included the processing and following-up of travel papers with the Department of Foreign Affairs. In July, 1992, her husband introduced her to Vicky Naval who requested Mona to safekeep the collection of placement fees from the applicants. She admitted having joined her husband, but only once, in collecting the payments made by private complainants on 03 July 1992 at Acop, Tublay, Benguet, which was duly remitted to Naval. In a decision, dated 14 December 1994, Judge Romeo A. Brawner 9 (now Associate Justice of the Court of Appeals) rendered judgment that concluded:
"WHEREFORE, all premises considered, judgment is hereby rendered as follows: "1.In Criminal Case No. 93-CR-1800, this Court finds accused Lucrecia 'Mona' Gabres GUILTY beyond reasonable doubt of the offense charged and hereby sentences her to suffer an indeterminate sentence of imprisonment of four (4) years, two (2) months and one (1) day of prision correccional as MINIMUM to eight (8) years and ten (10) months of prision mayor as MAXIMUM; "2.In Criminal Case No. 93-CR-1801, this Court finds accused Lucrecia 'Mona' Gabres GUILTY beyond reasonable doubt of the offense charged and hereby sentences her to suffer an indeterminate sentence of imprisonment of five (5) years, two (2) months and one (1) day of prision correccional as MINIMUM to nine (9) years and ten (10) months of prision mayor as MAXIMUM; "3.In Criminal Case No. 93-CR-1802, this Court finds accused Lucrecia 'Mona' Gabres GUILTY beyond reasonable doubt of the offense charged and hereby sentences her to suffer an indeterminate sentence of imprisonment of two (2) years, eight (8) months and one (1) day of prision correccional as MINIMUM to seven (7) years of prision mayor as MAXIMUM; "4.In Criminal Case No. 93-CR-1803, this Court finds accused Lucrecia 'Mona' Gabres GUILTY beyond reasonable doubt of the offense charged and hereby sentences her to suffer an indeterminate sentence of imprisonment of two (2) years, eight (8) months and one (1) day of Prision correccional as MINIMUM to seven (7) years of prision mayor as MAXIMUM; "5.In Criminal Case No. 93-CR-1804, this Court finds accused Lucrecia 'Mona' Gabres NOT GUILTY of the offense charged due to insufficiency of evidence and hereby acquits her with proportionate costs de oficio;

"6.In Criminal Case No. 93-CR-1805, this Court finds accused Lucrecia 'Mona' Gabres GUILTY beyond reasonable doubt of the crime charged and hereby sentences her to suffer the penalty of life imprisonment and to pay a fine of ONE HUNDRED THOUSAND PESOS (P100,000.00). "On the civil liability in the estafa cases, accused Lucrecia 'Mona' Gabres is hereby ordered to pay to Joel Panida, Oreta Nisperos, Julius Aoay and Tarciso Dacsig, Jr. the amounts of P45,000.00, P55,000.00, P40,000.00 and P40,000.00, respectively, as actual damages. "Proportionate costs against the accused Lucrecia 'Mona' Gabres. "In the service of her sentence, the accused shall be credited to the full term of her preventive imprisonment as provided for by Article 29 of the Revised Penal Code, provided the conditions set forth therein for the enjoyment of the same have been met. "With respect to accused Perlito 'Lito' Gabres, let these cases be sent to the files without prejudice to their revival as soon as he shall have been arrested and brought to the jurisdiction of this Court. "In order that he may not escape the clutches of the law, let Warrants of Arrest issue addressed to the PNP Station Commander, Bauang, La Union and the National Bureau of Investigation (NBI), Manila. Further, the Commission of Immigration and Deportation (CID), Manila is ordered to include the name of accused Perlito 'Lito' Gabres in its Hold Departure List. "SO ORDERED." 10

Mona Gabres appealed the decision to this Court. Appellant, in main, would wish to sway the Court into thinking that the real culprit was Lito Gabres and that the complaining witnesses gave stress over her participation only because her husband could not be apprehended. The Court, regrettably, must sustain the conviction. The testimony given by each of the private complainants unquestionably would point to both the spouses to be the culprits in an elaborate scheme to defraud the hopeful applicants for overseas work. The Court quotes from the transcript of the proceedings. Testimony of Oreta Nisperos:
"ATTY. PAOAD: "Now, Madam witness, you said a while ago that it was the later part of March, 1992 that you and your cousin went to see the two accused in Bauang, what transpired then? "AThey told us that they were recruiting factory workers for Korea. "QWhat else happened? "AThey told us that if my children are interested we will see each other in Baguio City on April 12. "QWhat was your agreement as to where shall you meet each other and the date. "AI suggested that we will see each other at the clinic of Dr. Yares. "QWhere is the clinic of Dr. Yares located? "AIt is located at Harrison Road, Baguio City. "QOn that particular of April 12, 1992 were you able to meet each other? "AYes, ma'am. "QWho were your companions?

"AMy companions were Julius Aoay, Joel Panida and my son Ramil Nisperos. "QWho from the side of the accused came to see you on April 12, 1992. "AMrs. Mona Gabres, ma'am. "QHow about the other accused, Lito Gabres. "AHe was not there, ma'am. "QNow, what transpired on April 12, 1992? "AThey told us that if we are interested we will pay an advance payment of P5,000.00 each. "QFor each applicant? "AYes, ma'am. "QWhat else did you talk about? "AThey told us that if we have money we will see each other on April 26. "QWhere will you see each other on April 26? "AI told her that we will see at Acop, Tublay because they knew where we are. "QWhat particular place in Acop? "AAt our residence, sir. "ATTY. PAOAD: "Now, how much all in all are the two accused asking you to pay in consideration of the same in Korea? "AThey were asking P45,000.00. "QNow, you said that you agreed to meet each other again on April 26, 1992, what happened on that date? "AThey came at our residence, both of them. "QThe two accused? "AYes, ma'am. "QNow, when the two accused came to your residence on April 26, what happened? "AMy son paid an amount of P5,000.00. "QWho particularly paid for your son? "AI paid for my son, ma'am. "QAside from you and your son who else were present? "AAlso present were Joel Panida, Tarciso Dacsig. "QHow about Julius Aoay? "AHe was also present, ma'am. "QYou said a while ago, Madam witness, that on April 26 you paid P5,000.00 for your son, what is your basis in saying that you paid P5,000.00 on that day? "AThey issued us a receipt, ma'am. "QWho received the payment? "AIt was Mona Gabres, ma'am. "QWho issued the receipt? "AIt was Lito Gabres who was making the receipt, ma'am. "xxx xxx xxx "QNow, after April 26, 1992 what happened?

"AThey told us that they will go back at our residence on May 1 and if the other applicants will have their money at that time they will process their papers. "QWho paid on May 1, 1992? "AJulius Aoay, ma'am. "ATTY. PAOAD: "Who received the payment? "ABoth the two accused, ma'am. One will receive the amount and the other will issue the receipt." 11

Testimony of Tarciso Dacsig, Jr.:

"QNow, to whom did you give this P5,000.00? "AI handed it to Aunt Oreta who gave it to Mona Gabres, Ma'am. "QNow, who issued you a receipt? "AMona Gabres. "QWhat about her husband Lito Gabres? "AAunt Oreta gave the P5,000.00 to Mona Gabres who counted the money, after counting the money Lito Gabres gave it to Mona Gabres. "xxx xxx xxx "QI would like to show to you this receipt dated July 31, 1992 previously marked as Exhibit 'B-1' for Crim. Case No. 92-CR-1803 and Exhibit '11' in Crim. Case No. 92-CR-1805, is this the receipt you are referring to? "AYes, Ma'am. "QNow, who issued you this receipt? "ALito Gabres, Ma'am. "QNow, if this receipt was issued by Lito Gabres what was the participation of Mona Gabres? "AI handed this P25,000.00 to Lito Gabres, he counted it and then handed it to Mona Gabres, Ma'am." 12

Testimony of Julius Aoay:

"QI would like to show you a receipt dated June 7, 1992 which has been previously marked as Exhibit 'A' in Criminal Case 1801, as Exhibit 'B' in Criminal Case 1805, as Exhibit 'B' in Criminal Case 1800, as Exhibit 'C' in Criminal Case 1803 and as Exhibit 'B' in Criminal Case 1802, is this the receipt issued to you? "AYes, it is. "QCould you tell us who wrote this receipt? "AIt was Mona Gabres, ma'am. "QHow about Lito Gabres what was his participation? "AHe was the one counting the money." 13

In the scheduled meeting on 12 April 1992, it was only accused-appellant who, in fact, showed up to meet with the applicants for overseas work. Joel Panida testified:
"QOn April 12, 1992 were you present in that meeting? "AYes, I was also there, ma'am. "QWho else were present on that day, April 12, 1992? "AMrs. Nisperos, Tarciso Dacsig, Ramil Nisperos and Julius Aoay. "QWho from the side of the accused came to see you?

"AIt was Mona Gabres only, ma'am. "QHow about Lito Gabres, was he also present? "AHe was not there, ma'am. "QOn April 12, 1992 what transpired in that meeting? "AShe introduced herself as a recruiter for workers going to Korea. She also asked us that if we are interested then we will give P5,000.00 each as down payment." 14

The Court finds it hard to accept the claim that private complainants have prevaricated the evidence to implicate Mona Gabres only because the authorities have yet to succeed in arresting her husband. It is, of course, unfortunate that the husband, at least momentarily, is able to ward off the long arm of the law; nevertheless, it should, in the end, still catch up with him. Accused-appellant has indeed committed estafa by means of deceit punishable under Article 315 (2)(a) of the Revised Penal Code. The trial court's brief ratiocination is well taken; viz:
"There is no dispute that damages have been incurred by the complainants. They parted with their money in consideration of deployment for work in a foreign country, but which unfortunately remains unrestituted despite the failure in that regard of the person or persons who promised that they will be sent off to work abroad."

Accused-appellant is likewise guilty of illegal recruitment in large scale, an offense under Article 38(b), in relation to Article 39, of the Labor Code which provides:
"ART. 38.Illegal Recruitment. (a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this Code. The Ministry of Labor and Employment or any law enforcement officer may initiate complaints under this Article. "(b)Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. "Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group." "xxx xxx xxx "ART. 39.Penalties. (a) The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P100,000) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein."
cdtai

Quite appropriately, the trial court has observed:

"(T)here are two elements of the crime (of illegal recruitment), namely: (1) that the offender is a non-licensee or non-holder of authority to lawfully engage in

the recruitment and placement of workers; and (2) that the offender undertakes any of the recruitment activities defined under Article 13 (b) of the Labor Code, as amended, or any prohibited practices enumerated under Article 34 of the same code. PEOPLE vs. CORAL, G.R. Nos. 97849-54, March 1, 1994, 230 SCRA 499). Without any doubt, this Court finds the two elements of the crime present in the case at bar. That the accused are non-licensees or non-holders of authority to lawfully recruit is evident in the certification issued by Atty. Justinian Lichnachan of the POEA-CAR Regional Extension Office of Baguio City (Exhibit 'D,' 93-CR-1800). Article 13(b) of the Labor Code defines recruitment and placement as 'any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement.' The act of the accused in holding out a placement fee of P45,000.00 per applicant in exchange for an employment abroad; the several collections made by them; and their promise to send off the applicants for work in Korea were just some of the circumstances that would qualify the acts of the accused under the definition of recruitment and placement." 17

The Court, however, would have to reduce the award of actual damages to Oreta Nisperos from P55,000.00 to P50,000.00. Oreta concededly could not present any receipt for the supposed payments she allegedly made on 26 April 1992 and on 05 May 1992, for P5,000.00 each, on behalf of Ramil Nisperos. Joel Panida, in his testimony, attested to the payment made on 26 April 1992 but no similar evidence was presented to prove the payment made on 05 May 1992. Article 315 of the Revised Penal Code provides:
"ART 315.Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by: "1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos; and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be; "2nd. The penalty of prision correccional in its minimum and medium periods, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos; "3rd. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if such amount is over 200 pesos but does not exceed 6,000 pesos; and "4th. By arresto mayor in its medium and maximum periods, if such amount does not exceed 200 pesos, provided that in the four cases mentioned, the fraud be committed by any of the following means."

Under the Indeterminate Sentence Law, the maximum term of the penalty shall be "that which, in view of the attending circumstances, could be properly imposed" under the Revised Penal Code, and the minimum shall be "within the range of the penalty next lower to that prescribed" for the offense. The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. The fact that the amounts involved in the instant case exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead, the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months while the maximum term of the indeterminate sentence should at least be six (6) years and one (1) day because the amounts involved exceeded P22,000.00, plus an additional one (1) year for each additional P10,000.00. Accordingly, the Court thus finds some need to modify in part the penalties imposed by the trial Court; viz: In Criminal Case No. 93-CR-1800, the amount involved is P45,000.00. Hence, the minimum penalty should be reduced to four (4) years and two (2) months of prision correccional, which is the maximum of the allowable minimum penalty of the indeterminate sentence. The maximum penalty imposed by the court a quo is within lawful range. In Criminal Case No. 93-CR-1801, the amount involved, as so modified by this Court, is P50,000.00. The minimum penalty should then be reduced to four (4) years and two (2) months of prision correccional (the maximum of the minimum of the indeterminate sentence). The maximum penalty should at least be six (6) years and one (1) day of prision mayor plus a period of two (2) years (one [1] year for each additional P10,000.00) for a total maximum period of eight (8) years and one (1) day of prision mayor. In Criminal Case No. 93-CR-1802 and No. 93-CR-1803, the amounts involved in each total P40,000.00. The minimum penalty of the indeterminate sentence imposed by the court a quo of two (2) years, eight (8) months and one (1) day of prision correccional is within lawful range. The maximum penalty, however, should at least be six (6) years and one (1) day of prision mayor plus a period of one (1) year for a total maximum period of seven (7) years and one (1) day of prison mayor.

WHEREFORE, the decision appealed from is AFFIRMED with modification only insofar as the penalties therein imposed are concerned; thus (1)In Criminal Case No. 93-CR-1800, accused-appellant is sentenced to an indeterminate sentence of imprisonment of from four (4) years and two (2) months of prision correccional as MINIMUM, to eight (8) years and ten (10) months of prision mayor as MAXIMUM. (2)In Criminal Case No. 93-CR-1801, accused-appellant is sentenced to an indeterminate sentence of imprisonment of from four (4) years and two (2) months of prision correccional as MINIMUM, to eight (8) years and one (1) day of prision mayor MAXIMUM, the actual damages being reduced to P50,000.00. (3)In Criminal Case No. 93-CR-1802, accused-appellant is sentenced to an indeterminate sentence of imprisonment of from two (2) years, eight (8) months and one (1) day of prision correccional as MINIMUM, to seven (7) years and one (1) day of prision mayor as MAXIMUM. (4)Criminal Case No. 93-CR-1803, accused-appellant is sentenced to an indeterminate sentence of from two (2) years, eight (8) months and one (1) day of prision correccional as MINIMUM, to seven (7) years and one (1) day of prision mayor as MAXIMUM. All other aspects of the dispositive portion of the decision appealed from are AFFIRMED. Costs against accused-appellant. SO ORDERED.

PEOPLE OF THE PHILIPPINES, appellee, vs. ALFREDO BON, appellant. DECISION TINGA, J : Two critical issues emerge in this case. The first relates to whether the Court should affirm the conviction of appellant Alfredo Bon (appellant) for six counts of rape and two counts of attempted rape, the victims being his then-minor nieces. On that score, we affirm. As a consequence though, we are ultimately impelled to confront a question much broader in both scope and import. While the Court had previously declined to acknowledge the constitutional abolition of the death penalty through the 1987 Constitution, 1 we now find it necessary to determine whether the enactment of Republic Act No. 9346 resulted in the statutory interdiction of the death penalty. The second issue arises as we are compelled to review the maximum term of reclusion temporal in the sentence imposed on appellant by the Court of Appeals for the two counts of attempted rape. The sentence was prescribed by the appellate court prior to the enactment of Republic Act No. 9346 which ended the imposition of the death penalty in the Philippines. The proximate concern as to appellant is whether his penalty for attempted qualified rape, which under the penal law should be two degrees lower than that of consummated qualified rape, should be computed from death or reclusion perpetua. First, the antecedent facts. I. Eight (8) Informations were filed within the period from 21 August 2000 to 23 February 2001 by the Assistant Provincial Prosecutor of Gumaca, Quezon against appellant, charging him with the rape of AAA and BBB, the daughters of his older brother. Appellant was accused of raping AAA in Criminal Case Nos. 6899-G, 6902-G, 6906-G, and 6908-G; while he was accused of raping BBB in Criminal Case Nos. 6689-G, 6903G, 6905-G, and 6907-G. All these cases were consolidated for trial. The rapes were alleged to have been committed in several instances over a span of six (6) years. Both AAA and BBB testified against appellant, their uncle, and both identified him as the man who had raped them. During trial, their respective birth certificates and the medical certificates executed by the doctor who physically examined them were entered as documentary evidence. AAA testified that she was only six (6) years old when she was first molested in 1994 in the house appellant had shared with her grandmother. 6 She recounted that the incident took place when she and appellant were alone in the house. Appellant touched her thighs and vagina, removed her clothes and inserted his penis into her vagina. Appellant threatened that she and her parents would be killed should she disclose the incident to anyone. She thereafter stopped sleeping in the house of her grandmother. It was only three (3) years after, in 1997, that she slept in the said house, yet again she was sexually abused by appellant. She was then nine (9) years old. 7
p

AAA recounted that at age eleven (11) in 1999, she was raped by appellant for the third time, again at the house of her grandmother. 8 The following year, when she was twelve (12), she was abused for the fourth time by appellant. This time, she was raped in an outdoor clearing 9 after having been invited there by appellant to get some vegetables. While at the clearing, appellant forced her to lie down on a grassy spot and tried to insert his penis in her vagina. As she cried in pain, appellant allegedly stopped. 10 It was only on 12 June 2000 that she decided to reveal to her mother, CCC, 11 the brutish acts appellant had done to her. 12 Her mother thus filed a complaint against her uncle. AAA identified appellant in open court and presented as documentary evidence her birth certificate to prove that she was born on 3 September 1988. 13 BBB, on the other hand, testified that she was first raped by appellant in 1997 when she was ten (10) years old, also at the house appellant shared with her grandmother. While alone in the house, appellant poked a knife at her, removed her clothes and inserted his penis in her vagina. Despite the pain she felt, she could not resist appellant as he was holding a knife. She did not report the rape to her parents out of fear of appellant's threat that he would kill her. 14 BBB further testified that in 1998 and 1999, she was raped again by appellant on several occasions, the rapes occurring under threat of a bladed weapon, and regardless of the time of day. 15 BBB stated that she was last raped by appellant on 15 January 2000. 16 On that night, she was sleeping beside her sister AAA in the house of her grandmother when she felt appellant touching her body. She pushed him away but appellant pulled her three (3) meters away from AAA towards the door. As appellant was holding a knife, BBB could not make any noise to alert her sister. Appellant ordered her to remove her clothes and forced her to lie down. After he took off his clothes, appellant placed himself on top of BBB and stayed there for three (3) minutes "moving up and down." Thereafter, she put on her clothes and returned to where her sister was. She added that although it was dark, she knew it was appellant who had molested her as she was familiar with his smell. Since then, she never slept in her grandmother's house again. 17 It was on 14 June 2000 that BBB disclosed her harrowing experience to her mother. Prior to that, however, she had already revealed the sexual abuses she had underwent to her sister AAA. Upon learning of the same, her mother brought her to the police station and her statement was taken. Thereafter, she was brought to the hospital to be examined. Furthermore, BBB explained that she only reported the abuses done to her on 14 June 2000 or five (5) months after the last rape because she was afraid of appellant's threat of killing her and her family. 18 The third witness for the prosecution was the mother, CCC. She testified that she only knew of the abuses done on her daughters on 15 June 2000. Five months earlier, CCC became concerned after observing that BBB, on the pretext of preparing clothes for a game, was packing more than enough clothes. She asked her other daughter, DDD, to dig into the matter and the latter told her that BBB was planning to leave their house. Upon learning this, she sent somebody to retrieve BBB. However, it was only five months after that incident that BBB confided to her mother that she was raped by appellant. CCC lost

no time in reporting the matter to the authorities and had BBB and AAA examined in the hospital. After examination, it was confirmed that BBB was indeed sexually molested. 19 CCC initially did not tell her husband about what had happened to their daughters because she was afraid that her husband might kill appellant. It was only after appellant was arrested that she disclosed such fact to her husband. After the arrest of appellant, his relatives became angry at CCC, and her mother-in-law avoided talking to her since then. 20 The physician who examined BBB and AAA also testified for the prosecution. Dr. Purita T. Tullas (Dr. Tullas), medical officer of Gumaca District Hospital, testified that she was the one who examined BBB and AAA, and thereafter, issued medical certificates for each child. These medical certificates were presented in court. 21 The medical certificate of BBB revealed that at the time of examination, there were no external sign of physical injury found on her body. However, Dr. Tullas found that the labia majora and minora of BBB was slightly gaping, her vaginal orifice was admitting two fingers without resistance and there were hymenal lacerations at "three (3) o'clock" and "eight (8) o'clock" which might have happened a long time before her examination. Dr. Tullas concluded that there might have been sexual penetration caused by a male sex organ for several times. 22 AAA's medical certificate stated that at the time of examination, there were no external physical injuries apparent on her body. AAA's labia majora and minora were well coaptated and the hymen was still intact. On direct examination, Dr. Tullas said that it could happen that the hymen would still be intact despite sexual penetration with a person having an elastic hymen. On the other hand, when asked on cross-examination, she stated that there was also the possibility that no foreign body touched the labia of the pudendum of AAA. 23 Only appellant testified for his defense, offering denial and alibi as his defense. He averred in court that from 1994 to 2000, he lived in the house of his parents which was about "thirty (30) arm stretches" away from the house of BBB and AAA. He denied having raped BBB on 15 January 2000 because on said date he was at the house of his sister, two (2) kilometers away from the house of his parents where the rape occurred, from 11:30 in the morning and stayed there until early morning of the following day. 24 He offered a general denial of the other charges against him by BBB and AAA. He claimed that he seldom saw the two minors. He further asserted that prior to the institution of the criminal case against him he had a smooth relationship with his nieces and the only reason the case was filed against him was that CCC, his sister-in-law and the mother of his nieces, harbored ill-feelings towards his deceased father, who would call CCC "lazy" within earshot of other family members. 25 The RTC convicted appellant on all eight (8) counts of rape. 26 The RTC pronounced appellant's defense of denial and alibi as unconvincing, citing jurisprudence declaring denial and alibi as intrinsically weak defenses. The RTC concluded that appellant failed to controvert the clear, candid and straightforward testimonies of his nieces. It further considered the qualifying circumstances of minority of the victims and the relationship of

the victims and appellant, the latter being the former's relative by consanguinity within the third degree.
CSAcTa

As the penalty imposed consisted of eight (8) death sentences, the records of the case were automatically elevated to this Court for review. However, in the aftermath of the pronouncement of the Court in People v. Mateo 27 the present case was transferred to the Court of Appeals for appropriate action and disposition. On 29 December 2004, the Court of Appeals agreed with the rulings of the RTC in regard to six (6) of the eight (8) death sentences imposed on appellant. 28 The appellate court ratiocinated, thus:
We have painstakingly gone over the record of these cases and find no cogent reason to deviate from the findings of the trial court except in at least two (2) cases. The prosecution's case which was anchored mainly on the testimonies of private complainants [BBB] and [AAA], deserve full faith and credit for being clear, precise and straightforward. Like the trial court, We find no reason to disbelieve the private complainants. It was established with certitude that the accused on several occasions sexually assaulted his nieces. The perpetration of the crimes and its authorship were proved by the victims' candid and unwavering testimonies both of whom had the misfortune of sharing the same fate in the hands of their own uncle. The sincerity of [AAA] was made more evident when she cried on the witness stand in obvious distress over what their uncle had done to her and her sister. 29

The Court of Appeals downgraded the convictions in Criminal Case Nos. 6906 and 6908 to attempted rape. In these two (2) cases, it was alleged that appellant had raped AAA in 1999 and on 11 June 2000, respectively. According to the appellate court, it could not find evidence beyond reasonable doubt in those two (2) cases that appellant had accomplished the slightest penetration of AAA's vagina to make him liable for consummated rape. It stressed that there was not even moral certainty that appellant's penis ever touched the labia of the pudendum, quoting portions of the transcript of the stenographic notes where AAA was asked if appellant was then successful in inserting his penis into her vagina and she answered in the negative. 30 Accordingly, the Court of Appeals reduced the penalties attached to the two (2) counts of rape from death for consummated qualified rape to an indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, for attempted rape. Appellant, in his Supplemental Brief 31 before this Court, assails the findings of the Court of Appeals. He cites inconsistencies in the testimony of BBB as to what really transpired on 15 January 2000. Particularly, appellant observes that BBB testified on 6 June 2001 as to her rape on 15 January 2000. BBB, her sister and appellant had been sleeping side by side. However, when BBB again testified on 3 July 2002, this time she stated that on that night, as she and her sister AAA were sleeping in their room at their parents' house (and not at her grandmother's), the accused passed through a window, entered their room and raped her again. 32 Appellant also latches on the inconsistencies in BBB's testimony as to the length of the duration of her rape on that day. In BBB's

testimony on 6 June 2001, she said that appellant was atop her for three (3) minutes while in the 3 July 2002 hearing, BBB stated that the rape lasted for only half a minute. It must be observed though that BBB was at a tender age when she was raped in 2001. Moreover, these inconsistencies, which the RTC and the Court of Appeals did not consider material, were elicited while BBB was testifying in open court. Our observations in People v. Perez 33 on the appreciation of alleged inconsistencies in the testimony of rape victims who happen to be minors are instructive, thus:
We note that these alleged inconsistencies refer, at best, only to trivial, minor, and insignificant details. They bear no materiality to the commission of the crime of rape of which accused-appellant was convicted.[ 34 ] As pointed out by the Solicitor General in the Appellee's Brief, the seeming inconsistencies were brought about by confusion and merely represent minor lapses during the rape victim's direct examination and cannot possibly affect her credibility. Minor lapses are to be expected when a person is recounting details of a traumatic experience too painful to recall. The rape victim was testifying in open court, in the presence of strangers, on an extremely intimate matter, which, more often than not, is talked about in hushed tones. Under such circumstances, it is not surprising that her narration was less than letter-perfect.[ 35 ] "Moreover, the inconsistency may be attributed to the well-known fact that a courtroom atmosphere can affect the accuracy of testimony and the manner in which a witness answers questions."[ 36 ] 37

Further, the public prosecutor offered a convincing explanation on why BBB was confused on some points of her two testimonies. Particularly in the Memorandum for the People 38 filed with the RTC, the public prosecutor creditably explained the inconsistencies, thus:
[BBB]'s testimony on July 3, 2002 might be contradictory to her first testimony on June 6, 2001, with respect to the last rape on January 15, 2000, as regards the place of commission house of her parents or house of accused; and the length of time he stayed on her top 3 minutes or half-minute. But she remained consistent in her declaration that on January 15, 2000, her uncle inserted his penis into her vagina, and he was moving while on her top then she felt something came out from him. He was able to rape her because he threatened her with a knife or bladed weapon. Further, the first she took the witness stand on June 6, 2001, she was made to recall the last rape, the first rape and many acts of sexual abuses [sic] against her. She was even confused about her age when she was first raped by her uncle. After she testified on November 14, 2001, for the separate charges of rapes in 1997, 1998 and 1999, she was able to recall more clearly the last rape on January 15, 2000, which happened in her own house. These noted discrepancies as to the exact place of commission accused's house or victim's house is not an essential element of the crime of rape and both houses are situated in Brgy. Villa Padua Ilaya, Gumaca, Quezon, which is within the territorial jurisdiction of this Honorable Court. . . . 39

In addition, we share the lower court's disbelief of appellant's proffered defenses of denial and alibi. These two defenses are inherently the weakest as they are negative defenses. Mere denials of involvement in a crime cannot take precedence over the positive

testimony of the offended party. For alibi to prosper, it is not enough for the defendant to prove that he was somewhere else when the crime was committed; he must likewise demonstrate that it is physically impossible for him to have been at the scene of the crime at the time. 40 In the case at bar, appellant's alibi that he was at his sister's house barely two (2) kilometers away when the rape took place on 15 January 2000 cannot be given credence by this Court. If we are to thread this line of reasoning, appellant could have easily left his sister's house in the middle of the night, raped BBB, and then returned to his sister's house without much difficulty and without anybody noticing his absence. Well-settled is the rule that a categorical and positive identification of an accused, without any showing of ill-motive on the part of the eyewitness testifying on the matter, prevails over alibi and denial. 41 The defenses of denial and alibi deserve scant consideration when the prosecution has strong, clear and convincing evidence identifying appellant as the perpetrator. 42 In this case, both BBB and AAA, minors and relatives of appellant, positively identified him as their rapist in open court. The lower courts found no issue detracting from the credibility of such identification. It is worthy to note that the alibi presented by appellant is limited to the 15 January 2000 rape of BBB. He offers nothing to counteract the accusations against him involving the seven (7) other specific acts of rape other than the averment that he did not know anything about the allegations propounded on him, an infinitesimal defense considering the evidence against him. Appellant does claim that the present case was merely instituted because of the grudge of CCC towards his deceased father. It is outrageous to even suggest that a mother will subject her daughters to the humiliating experience of coming before the court and narrating their harrowing experience just because she was tagged by her father-in-law as lazy. In addition, CCC's father-in-law had died several years before the criminal charges against appellant were ever instituted. If CCC truly wanted to retaliate and damage the reputation of her father-in-law, she could have done so when the latter was still alive. No member of a rape victim's family would dare encourage the victim to publicly expose the dishonor of the family, more specifically if such accusation is against a member of the family, unless the crime was in fact committed. 43 Besides, no sane woman, least of all a child, would concoct a story of defloration, allow an examination of her private parts and subject herself to public trial or ridicule if she has not in truth, been a victim of rape and impelled to seek justice for the wrong done to her. Testimonies of child-victims are normally given full weight and credit, since when a woman, more so if she is a minor, says that she has been raped, she says in effect all that is necessary to show that rape has been committed. Youth and immaturity are generally badges of truth and sincerity. 44 The weight of such testimonies may be countered by physical evidence to the contrary, or indubitable proof that the accused could not have committed the rape, but in the absence of such countervailing proof, these testimonies shall be accorded utmost value.
ADTEaI

The twin aggravating circumstances of minority and relationship were properly appreciated in this case. The minority of the victims and their relationship with appellant were aptly established in the lower court proceedings. Not only did the prosecution allege in the Informations the ages of the victims when they were raped but the prosecution also presented the birth certificates of BBB and AAA in court as documentary evidence to prove that they were both minors when appellant raped them. Appellant, in open court, also admitted that that he was the uncle of both victims being the brother of the victims' father, and thus, a relative of the victims within the third degree of consanguinity. Furthermore, the delay in reporting the repulsive acts of appellant to BBB and AAA is understandably justified, considering that appellant repeatedly threatened to kill them and their family should they disclose the incidents to anyone. It has been held time and again that delay in revealing the commission of rape is not an indication of a fabricated charge. 45 Such intimidation must be viewed in light of the victim's perception and judgment at the time of the commission of the crime and not by any hard and fast rule. It is enough that the intimidation produces a fear that if the victim does not yield to the perverse impulses of the accused, something would happen to her at the moment, or even thereafter, as when she is threatened with death if she would report the incident. 46 At the same time, we agree with the Court of Appeals that the two counts of rape in Criminal Case Nos. 6906-G and 6908-G were not proven beyond reasonable doubt, but only the two separate incidents of attempted rape. It is to be noted that there is an attempt to commit rape when the offender commences its commission directly by overt acts but does not perform all acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. 47 In Criminal Case No. 6906-G, the records show that there was no penetration or any indication that the penis of appellant touched the labia of the pudendum of AAA. This was evident in AAA's testimony at the hearing on 17 October 2001, to wit:
QDo you remember of any unusual incident that happened to you when you were eleven years old? AYes, Mam. [sic] QWhat was that? AHe also touched my vagina and my other private parts and he inserted also his penis (into) my vagina. [sic] QWas he able to insert his penis into your vagina? ANo, Mam. [sic] QWhy? AIt was painful, Mam. [sic] xxx xxx xxx QHow many times did he try to insert his penis into your vagina? AMany times, Mam. 48 [sic]

AAA also testified in the same vein in Criminal Case No. 6908-G.
QI am now through with Criminal Case No. 6906-G. In Criminal Case No. 6908-G, also for Rape. When was the last time that this sexual abuse was committed by your Uncle?

AJune 11, Mam. [sic] QWhat year? AJune 11, 2000, Mam. [sic] xxx xxx xxx QWhat did your Uncle do to you on June 11, 2000? AHe also removed my clothes, Mam. [sic] QAnd after removing your clothes, what did he do to you? AHe was trying to insert his penis into my vagina, Mam. [sic] xxx xxx xxx QAnd what did you feel when he was trying to insert his penis in your vagina? APainful, Mam. [sic] QAnd what did you do when you feel painful? AI cried, Mam. [sic] QWhen you cried, what did your Uncle do, if any? AHe did not pursue what he was doing, Mam. [sic] xxx xxx xxx QAnd your Uncle was not able to penetrate his penis to your vagina? ANo, Mam. 49 [sic]
TCDHIc

In downgrading the offense committed and consequently decreasing the penalty, the CA declared:
It is carnal knowledge, not pain, that is the element to consummate rape. Indeed pain may be deduced from the sexual act but accused cannot be convicted of rape by presuming carnal knowledge out of pain. It is well-settled that complete penetration of the penis into the vagina is not necessary to convict for consummated rape since the slightest penetration of one into the other will suffice. However, in People v. Campuhan, the term "slightest penetration" was clarified to mean that there must be sufficient and convincing proof of the penis indeed touching at the very least the labias of the female organ. Mere epidermal contact between the penis and the external layer of the victim's vagina (the stroking and the grazing of the male organ upon the female organ or the mons pubis) categorizes the crime as attempted rape or acts of lasciviousness. There must be positive proof of even the slightest penetration, more accurately, the touching of the labias by the penis, before rape could be deemed consummated. We, therefore, take exception to the finding of the trial court that when the accused was trying to insert his penis into the child's vagina, the act proved painful to [AAA,] which made the accused stop from further executing the act. From the testimony of private complainant, [AAA] in the afore-numbered cases, the prosecution failed to demonstrate beyond any shadow of doubt that accusedappellant's penis reached the labia of the pudendum of AAA's vagina. There is no basis then to apply the rule that the introduction of the penis into the aperture of the female organ (thereby touching the labia of the pudendum) already consummates the case of rape. . . . 50

It should be added that under Article 6 of the Revised Penal Code, there is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. In the crime of rape,

penetration is an essential act of execution to produce the felony. Thus, for there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than his own spontaneous desistance, the penetration, however slight, is not completed. 51 The Court thus affirms the conclusions of the Court of Appeals that it has been established beyond reasonable doubt that appellant is guilty of six (6) counts of rape and two (2) counts of attempted rape. However, in light of Rep. Act No. 9346, the appropriate penalties for both crimes should be amended. II. We shall not dwell at length on the proper penalty imposable on appellant for the six (6) counts of rape. The sentence of death imposed by the RTC and affirmed by the Court of Appeals can no longer be affirmed in view of Rep. Act No. 9346, titled "An Act Prohibiting the Imposition of Death Penalty in the Philippines." Section 2 of the law mandates that in lieu of the death penalty, the penalty of reclusion perpetua shall be imposed. Correspondingly, the Court can no longer uphold the death sentences imposed by lower courts, but must, if the guilt of the accused is affirmed, impose instead the penalty of reclusion perpetua, or life imprisonment when appropriate. Since the passage of Rep. Act No. 9346, the Court has had occasion to effectuate such reduction in recent cases such as People v. Tubongbanua 52 and People v. Cabalquinto. 53 III. The question of what should be the appropriate penalty for the two (2) counts of attempted rape proves to be the more challenging but interesting question facing the Court. The Court of Appeals had sentenced appellant, for the attempted rape of AAA, to "an indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal as maximum," for each count of attempted rape. There is no doubt as to the validity of this sentence at the time it was meted prior to the enactment of Rep. Act No. 9346. Article 51 of the Revised Penal Code establishes the penalty to be imposed upon the principals of an attempted felony:
ART. 51.. . . A penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the principals in an attempt to commit a felony. 54

What is the penalty "lower by two degrees than that prescribed by law" for attempted rape? Article 266-B of the Revised Penal Code, which incorporates the amendments introduced by Rep. Act No. 8353, prescribes:
The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: 1.When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim. . . . 55

The prescribed penalty for the consummated rape of a victim duly proven to have been under eighteen years of age and to have been raped by her uncle, is death under Article

266-B of the Revised Penal Code. The determination of the penalty two degrees lower than the death penalty entails the application of Articles 61 and 71 of the Revised Penal Code:
Art. 61.Rules of graduating penalties. For the purpose of graduating the penalties which, according to the provisions of Articles 50 to 57, inclusive, of this Code, are to be imposed upon persons guilty as principals of any frustrated or attempted felony, or as accomplices or accessories, the following rules shall be observed: 1.When the penalty prescribed for the felony is single and indivisible, the penalty next lower in degree shall be that immediately following that indivisible penalty in the respective graduated scale prescribed in Article 71 of this Code.

56
xxx xxx xxx

Article 71 of the Revised Penal Code (Article 71) warrants special attention, crucial as it is to our disposition of this question. The provision reads:
Art. 71.Graduated scales. In the case in which the law prescribes a penalty lower or higher by one or more degrees than another given penalty, the rules prescribed in Article 61 shall be observed in graduating such penalty. The lower or higher penalty shall be taken from the graduated scale in which is comprised the given penalty: The courts, in applying such lower or higher penalty, shall observe the following graduated scales: SCALE NO. 1 1.Death 2.Reclusion perpetua 3.Reclusion temporal 4.Prision mayor 5.Prision correctional 6.Arresto mayor 7.Destierro 8.Arresto menor 9.Public censure 10.Fine 57 xxx xxx xxx

Following the scale prescribed in Article 71, the penalty two degrees lower than death is reclusion temporal, which was the maximum penalty imposed by the Court of Appeals on appellant for attempted rape. Reclusion temporal is a penalty comprised of three divisible periods, a minimum, a medium and a maximum. At the same time, the Indeterminate Sentence Law prescribes that "the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense." The purpose of the prescription of minimum and maximum periods under the Indeterminate Sentence Law is

to effect the privilege granted under the same law, for prisoners who have served the minimum penalty to be eligible for parole per the discretion of the Board of Indiscriminate Sentence. 58 Thus, convicts sentenced to suffer death penalty or lifeimprisonment are ineligible under that law, as are persons sentenced to reclusion perpetua, an indivisible penalty without minimum or maximum periods. 59 Hence, the Court of Appeals sentenced appellant to suffer the penalty for attempted rape, with a maximum penalty within the range of reclusion temporal, and a minimum penalty within the range of the penalty next lower, or prision mayor. If Rep. Act No. 9346 had not been enacted, the Court would have affirmed such sentence without complication. However, the enactment of the law has given rise to the problem concerning the imposable penalty. Appellant was sentenced to a maximum term within reclusion temporal since that is the penalty two degrees lower than death. With the elimination of death as a penalty, does it follow that appellant should now be sentenced to a penalty two degrees lower than reclusion perpetua, the highest remaining penalty with the enactment of Rep. Act No. 9346? If it so followed, appellant would be sentenced to prision mayor in lieu of reclusion temporal. IV. Obviously, our ruling on the appropriate penalty on appellant for attempted rape will affect not only appellant, but several classes of convicts as well. Before we proceed with the discussion, the Court finds it necessary to make the following qualification. Prior to the enactment of Rep. Act No. 9346, the death penalty was imposable under two different frames of reference. This was especially made clear with the 1993 amendments to the Revised Penal Code through Rep. Act No. 7659, or the Death Penalty Law. Under the Revised Penal Code, as amended, the death penalty was provided for in two ways, namely: as the maximum penalty for "reclusion perpetua to death," and death itself as an automatic and exclusive penalty. Death as the automatic penalty was mandated for the crimes of qualified bribery "if it is the public officer who asks or demands such gift or present;" 60 kidnapping or detention "for the purpose of extorting ransom from the victim or any other person;" 61 destructive arson wherein "death results;" 62 and rape qualified by any of the several circumstances enumerated under the law. On the other hand, the penalty of "reclusion perpetua to death" was imposable on several crimes, including murder, 63 qualified piracy, 64 and treason. 65 The imposition of the death penalty for crimes punishable by "reclusion perpetua to death" depended on the appreciation of the aggravating and mitigating circumstances generally outlined in Articles 13 and 14 of the Revised Penal Code. Reference to those two provisions was unnecessary if the penalty imposed was death, as opposed to "reclusion perpetua to death." There is no need for now to discuss the effects of Rep. Act No. 9346 on the penalties for frustrated and attempted felonies which were punishable by "reclusion perpetua to death" if consummated, or on accomplices and accessories to such felonies. Such situations do not relate to the case of appellant, who was convicted of two (2) counts of attempted rape, which, if consummated, of course would have carried prior to the enactment of Rep. Act 9346 the penalty of death, and not "reclusion perpetua to death."
DITEAc

The Court also recognizes that the graduation of penalties reckoned from "reclusion perpetua to death" differs from that based on the exclusive penalty of death. For example, it has been held that the penalty two degrees lower than "reclusion perpetua to death" is prision mayor. 66 In contrast, the Court has likewise held that for qualified rape in the attempted stage, "the penalty . . . two (2) degrees lower than the imposable penalty of death for the offense charged . . . is reclusion temporal." 67 In People v. Tolentino, 68 we ruled that the accused, who had been sentenced to die for the rape of his nine (9)-year old stepdaughter, was guilty only of attempted rape. In explaining that "reclusion temporal" was the proper penalty, the Court, through then Chief Justice Davide, explained:
Under Article 51 of the Revised Penal Code, the penalty for an attempted felony is the "penalty lower by two degrees than that prescribed by law for the consummated felony." In this case, the penalty for the rape if it had been consummated would have been death, pursuant to Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, since [RT 69 ] was eight years old and TOLENTINO was the common-law spouse of [RT's] mother. The last paragraph thereof provides: The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1.When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. xxx xxx xxx The penalty in this case should have been reclusion temporal, which is the penalty lower by two degrees than death. However, with the application of the Indeterminate Sentence Law, TOLENTINO may be sentenced to an indeterminate imprisonment penalty whose minimum shall be within the range of prision mayor and whose maximum shall be within the range of reclusion temporal in its medium period pursuant to Article 64 (1) of the Revised Penal Code. 70

This dichotomy results from the application of Article 61 of the Revised Penal Code. Both reclusion perpetua and death are indivisible penalties. Under Article 61 (2) of the Revised Penal Code, "[w]hen the penalty prescribed for the crime is composed of two indivisible penalties . . . the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale." Hence, in passing sentence on those convicted of attempted felonies which warranted the penalty of "reclusion perpetua to death" if consummated, the Court has consistently held that penalty two degrees lower than "reclusion perpetua to death" is prision mayor. In contrast, if the penalty for the consummated crime is the single indivisible penalty of death, as was prescribed for several crimes under Rep. Act No. 7659, Article 61(1) of the Revised Penal Code provides that "the penalty prescribed for the felony is single and indivisible, the penalty next lower in degree shall be that immediately following that indivisible penalty in the respective graduated scale prescribed in Article 71". Thus, the proper penalty two degrees lower than death is reclusion temporal.

It is also for this reason that the controversy we are now addressing did not similarly arise after the enactment of the 1987 Constitution, which prohibits the imposition of the death penalty subject to its subsequent readoption at the choice of Congress. Generally, the highest penalty imposed under the Revised Penal Code was "reclusion perpetua to death," a penalty composed of two indivisible penalties. As a result, the Court had no occasion, after the passage of the 1987 Constitution, to consider the effect of the charter on penalties downgraded from a single indivisible penalty. It was under Rep. Act No. 7659, passed in 1993, that some commonly occurring crimes, such as qualified rape and kidnapping for ransom, were penalized with the single indivisible penalty of death. The discussion for purposes of this decision will only center on crimes, such as qualified rape as defined in the Revised Penal Code, as amended, for which the imposable penalty was death alone. Thus, our ruling will bear no direct effect on the sentencing of accomplices and accessories or persons guilty of the attempted or frustrated stage of felonies for which the imposable penalty was "reclusion perpetua to death." Hence, it should be understood that any reference forthwith to the penalty of death does not refer to the penalty of "reclusion perpetua to death." V. If there was a clear intent in Rep. Act No. 9346 to downgrade the penalties for convicts whose sentences had been graduated beginning from death pursuant to Article 71, the Court would not hesitate to enforce such downgrading based on clear statutory intent. However, nothing in Rep. Act No. 9346 expressly refers to those penalties imposed on frustrated or attempted felonies, or on accessories and accomplices.
DHcSIT

Section 1 of Rep. Act No. 9346 bears examination:

Section 1.The imposition of the penalty of death is hereby prohibited. Accordingly, Republic Act No. Eight Thousand One Hundred Seventy-Seven (R.A. No. 8177), otherwise known as the Act Designating Death by Lethal Injection, is hereby repealed. Republic Act No. Seven Thousand Six Hundred Fifty-Nine (R.A. No. 7659), otherwise known as the Death Penalty Law, and all other laws, executive orders and decrees, insofar as they impose the death penalty are hereby repealed or amended accordingly.

If the penalties for attempted rape of a minor, 71 among others, were deemed to have been amended by virtue of Rep. Act No. 9346, such amendment can be justified under the ambit of the repealing clause, which reads, "all other laws, executive orders and decrees, insofar as they impose the death penalty are hereby repealed or amended accordingly." While this clause may, given its breadth, initially impress as the nature of a general repealing clause, it is in actuality an express repealing clause. Section 1 specifically repeals all laws, executive orders and decrees insofar as they impose the death penalty, and not merely such enactments which are inconsistent with Rep. Act No. 9346. Section 1 arguably presents more problems in that regard with its utilization of the particular phrase "insofar as they impose the death penalty." We can entertain two schools of thought in construing this provision, both of them rooted in literalist interpretations. First, it can be claimed that the present application of the penalties for

attempted rape of a minor (among many examples) does not "impose the death penalty," since none of the convicts concerned would face execution through the application of the penalty for attempted rape. Hence, the statutory provisions enforced in determining the penalty for attempted rape, or other crimes not punishable by death, are not amended by Rep. Act No. 9346. On the other hand, the operation of the provisions imposing the penalty for attempted rape of a minor necessarily calls for the application, if not its literal imposition, of death as a penalty, in the context of applying the graduated scale of penalties under Article 71 of the Revised Penal Code. If we were to construe "impose" as to mean "apply," then it could be argued that Article 71 was indeed amended by Rep. Act No. 9346. After all, the application of Article 71 to crimes such as attempted rape of a minor call for the actual operation of the death penalty not only in theory, but as a means of determining the proper graduated penalty. On face value, the attractive worth of the firstly offered line of thinking is enhanced by its innate conservatism, limiting as it would the effects of Rep. Act No. 9346. It also can be understood if confronted with the option of employing either a liberal or a conservative construction, there is a natural tendency to employ the conservative mode. Further, the reasoning is seemingly consistent with that employed by the Court in People v. Muoz, 72 a decision which will be thoroughly analyzed in the course of this discussion. If the true intent of Rep. Act No. 9346 was to limit the extent of the "imposition" of the death penalty to actual executions, this could have been accomplished with more clarity. For example, had Section 1 read instead "insofar as they sentence an accused to death," there would have been no room for doubt that only those statutory provisions calling for actual executions would have been repealed or amended. The inability of Congress to shape the repealing clause in so specific a fashion does leave open the question whether Congress did actually intend to limit the operation of Rep. Act No. 9346 to actual executions only. But let us for now test that premise by assuming for the nonce that the legislative intent of Rep. Act No. 9346 was to limit the prohibition of the law to the physical imposition of the death penalty, without extending any effect to the graduated scale of penalties under Article 71 of the Revised Penal Code. VI. There are troubling results if we were to uphold, based on legislative intent, the interpretation of Rep. Act No. 9346 that limits its effects only to matters relating to the physical imposition of the death penalty. Illustrations are necessary. The easy demonstration of iniquitous results is in the case of accomplices. Under Article 267 of the Revised Penal Code, as amended, kidnapping for ransom was punishable by death. Let us say X and Y were tried for the crime. X was charged as a principal for having directly participated in the kidnapping. Y was charged as an accomplice for having allowed X to use his house to detain the victim, even though Y was abroad at the time of the crime and otherwise had no other participation therein. Both X and Y were convicted by final judgment. Since X could no longer be meted the death penalty, he is sentenced instead to reclusion perpetua. Ordinarily, Y as an

accomplice should receive the penalty next lower in degree, or reclusion temporal. Yet following the "conservative" interpretation of Rep. Act No. 9346, the graduation of penalties remains unaffected with the enactment of the new law. Thus, under Article 71, which would still take into account the death penalty within the graduated scale, Y, as an accomplice, would be sentenced to reclusion perpetua, the same penalty as the principal. It might be countered that part of the legislative intent of Rep. Act No. 9346, by retaining the graduated scale of penalties under Article 71, was to equalize the penalties of principals and accomplices for crimes previously punishable by death. We do not doubt that the legislature has the theoretical capability to amend the penal law in such fashion. Yet given the drastic effects of equalizing the penalties for principals and accomplices, a step that runs contrary to entrenched thought in criminal law, one could reasonably assume that a legislature truly oriented to enact such change would have been candid enough to have explicitly stated such intent in the law itself. Of course, nothing in Rep. Act No. 9346, either in the caption or in the provisions, explicates the intention to equalize the penalties for principals and accomplices in any crime at all. Moreover, it cannot be denied that it would, at bare minimum, seem strange that the penalties for principals and accomplices are equalized in some crimes, and not in others. Let us return to our previous example of X and Y, but this time, assume that they were charged for simple kidnapping, with no qualifying circumstance that would have resulted in the imposition of the death penalty. Since the crime is not punishable by death, Rep. Act No. 9346 would have no effect in the imposition of the penalty for simple kidnapping. Accordingly, X would have been sentenced to reclusion perpetua as the principal, while Y would have been sentenced to reclusion temporal as an accomplice. Since simple kidnapping is a comparatively lighter crime than kidnapping for ransom, the lesser penalties are justified. Since Y was merely an accomplice to the crime of simple kidnapping, the imposition on him of a lighter penalty than X is in accord with the Revised Penal Code and established juridical and legal thought. Less justifiable would be the notion that in kidnapping for ransom, the principal and the accomplice would receive the same penalty, while in simple kidnapping, the principal suffers a higher penalty than the accomplice. Frankly, there is no rational explanation for such a disparity, and no legal justification other than the recognition that Congress has the power to will it so. Admittedly, the impact of Rep. Act No. 9346 is less dramatic in relation to frustrated and attempted felonies which were punishable by death if consummated. The consummated felony previously punishable by death would now be punishable by reclusion perpetua. At the same time, the same felony in its frustrated stage would, under the foregoing premise in this section, be penalized one degree lower from death, or also reclusion perpetua. It does not seem right, of course, that the same penalty of reclusion perpetua would be imposed on both the consummated and frustrated felony. However, the anomaly would be mainly in theory, as we recognize that those felonies previously punishable by death are improbable of commission in their frustrated stage, unlike several felonies punishable by "reclusion perpetua to death," 73 such as murder, which may be frustrated.
TSacID

Still, it cannot be denied that these felonies previously punishable by death are capable of commission in their attempted stages and that the Revised Penal Code provides that the penalty for attempted felonies is "a penalty lower by two degrees than that prescribed by law for the consummated felony." The Court has thus consistently imposed reclusion temporal, the penalty two degrees lower than death, as the maximum term for attempted felonies which, if consummated, would have warranted the death penalty. 74 If it were to be insisted that Rep. Act No. 9346 did not affect at all the penalties for attempted felonies, then those found guilty of the subject attempted felonies would still be sentenced to reclusion temporal, even though the "penalty lower by two degrees than that prescribed by law for the consummated felony" would now be prision mayor. It should be pointed out that the interpretation of Rep. Act No. 9346 that would sanction a penalty for some attempted felonies that is only one degree lower than the consummated crime would, again, be disharmonious and inconsistent with the Revised Penal Code and established thought in criminal law. Conceding again that the legislature has the discretion to designate the criminal penalties it sees fit, a regime that foists a differential theoretical basis for the punishment of different attempted felonies resulting in discriminatory penalties is not only irrational but also, to say the least, highly suspect. Considering that physical liberties are at stake, it would be a most cruel joke if such discriminatory effects ensued not from deliberate legislative will, but from oversight. VII. The implementation of Rep. Act No. 9346 in a way that leaves extant the penalties for accomplices, accessories, frustrated and attempted felonies, clearly results in illogical, iniquitous and inconsistent effects. In contrast, no similar flaws ensue should we construe Rep. Act No. 9346 instead as not having barred the application of the death penalty even as a means of depreciating penalties other than death. In particular, the operative amendment that would assure the integrity of penalties for accomplices, accessories, frustrated and attempted felonies lies in Article 71, which ranks "death" at the top of the scale for graduated penalties. Simply put, the negation of the word "death" as previously inscribed in Article 71 will have the effect of appropriately downgrading the proper penalties attaching to accomplices, accessories, frustrated and attempted felonies to the level consistent with the rest of our penal laws. Returning to our previous examples, Y, the convicted accomplice in kidnapping for ransom, would now bear the penalty of reclusion temporal, the penalty one degree lower than that the principal X would bear (reclusion perpetua). Such sentence would be consistent with Article 52 of the Revised Penal Code, as well as Article 71, as amended, to remove the reference to "death." Moreover, the prospect of the accomplice receiving the same sentence as the principal, an anomalous notion within our penal laws, would be eliminated. Thus, the same standard would prevail in sentencing principals and accomplices to the crime of kidnapping in ransom, as that prescribed to the crime of simple kidnapping. The harmonization that would result if Rep. Act No. 9346 were construed as having eliminated the reference to "death" in Article 71 would run across the board in our penal

laws. Consistent with Article 51 of the Revised Penal Code, those convicted of attempted qualified rape would receive the penalty two degrees lower than that prescribed by law, now Rep. Act No. 9346, for qualified rape. There are principles in statutory construction that will sanction, even mandate, this "expansive" interpretation of Rep. Act No. 9346. The maxim interpretare et concordare legibus est optimus interpretandi embodies the principle that a statute should be so construed not only to be consistent with itself, but also to harmonize with other laws on the same subject matter, as to form a complete, coherent and intelligible system a uniform system of jurisprudence. 75 "Interpreting and harmonizing laws with laws is the best method of interpretation. . . . This manner of construction would provide a complete, consistent and intelligible system to secure the rights of all persons affected by different legislative and quasi-legislative acts." 76 There can be no harmony between Rep. Act No. 9346 and the Revised Penal Code unless the later statute is construed as having downgraded those penalties attached to death by reason of the graduated scale under Article 71. Only in that manner will a clear and consistent rule emerge as to the application of penalties for frustrated and attempted felonies, and for accessories and accomplices. It is also a well-known rule of legal hermeneutics that penal or criminal laws are strictly construed against the state and liberally in favor of the accused. 77 If the language of the law were ambiguous, the court will lean more strongly in favor of the defendant than it would if the statute were remedial, as a means of effecting substantial justice. 78 The law is tender in favor of the rights of an individual. 79 It is this philosophy of caution before the State may deprive a person of life or liberty that animates one of the most fundamental principles in our Bill of Rights, that every person is presumed innocent until proven guilty. Resort to the aforementioned principles in statutory construction would not have been necessary had Rep. Act No. 9346 ineluctably stated that the repeal of all laws imposing the death penalty did not engender the corresponding modification of penalties other than death, dependent as these are on "death" as a measure under the graduated scale of penalties under Article 71. Admittedly, if this were indeed the intent of Congress, and such intent were unequivocally expressed in Rep. Act No. 9346, the resulting inequities and inconsistencies we had earlier pointed out would have remained. If that were to be the case, we would have acknowledged, perhaps tacitly, that such inequities and inconsistencies fell part of the legislative intent. It does not speak well of a Congress to be deliberately inconsistent with, or ignorant of its own prior enactments. Yet ultimately, Section 1 of Rep. Act No. 9346 is not expressive of such rash or injudicious notions, as it is susceptible to a reading that would harmonize its effects with the precepts and practices that pervade our general penal laws, and in a manner that does not defy the clear will of Congress. VIII. One who would like to advocate that Rep. Act No. 9346 did not correspondingly amend any of the penalties other than death in our penal laws would most certainly invoke our ruling in People v. Muoz, 80 decided in 1989. Therein, a divided Court ruled in that the
ETaSDc

constitutional bar on the imposition of the death penalty did not enact "a corresponding modification in the other periods [in penalties]", there being no expression of "such a requirement . . . in Article III, Section 19(1) of the Constitution or indicat[ion] therein by at least clear and unmistakable implication." 81 In so concluding, the Court made the oftcited pronouncement that there was nothing in the 1987 Constitution "which expressly declares the abolition of the death penalty." 82 It is time to re-examine Muoz and its continued viability in light of Rep. Act No. 9346. More precisely, would Muozas precedent deter the Court from ruling that Rep. Act No. 9346 consequently downgraded penalties other than death? It can be recalled that the accused in Muoz were found guilty of murder, which under the Revised Penal Code, carried the penalty of reclusion temporal in its maximum period to death. The subject murders therein were not attended by any modifying circumstance, and thus penalized in the penalty's medium term. Jurisprudence previous to Muoz held that the proper penalty in such instances should be "the higher half of reclusion temporal maximum," with reclusion temporal maximum, divided into two halves for that purpose. Muoz rejected this formulation, holding instead that the penalty should be reclusion perpetua. Towards this conclusion, the Court made the above-cited conclusions relating to the constitutional abolition of the death penalty, and the charter's effects on the other periods. Six justices dissented from that ruling, and as recently as 1997, a member of the Court felt strongly enough to publish a view urging the reexamination of Muoz. 83 It would be disingenuous to consider Muoz as directly settling the question now befacing us, as the legal premises behind Muoz are different from those in this case. Most pertinently, Muoz inquired into the effects of the Constitution on the proper penalty for murder; while herein, we are ascertaining the effects of Rep. Act No. 9346 on the proper penalty for attempted qualified rape. Muoz may have pronounced that the Constitution did not abolish the death penalty, but that issue no longer falls into consideration herein, the correct query now being whether Congress has banned the death penalty through Rep. Act No. 9346. Otherwise framed, Muoz does not preclude the Court from concluding that with the express prohibition of the imposition of the death penalty Congress has unequivocally banned the same. Muoz made hay over the peculiar formulation of Section 19(1), Article III, which provided that "[n]either shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it." Muoz and its progenies, have interpreted that provision as prohibiting the actual imposition of the death penalty, as opposed to enacting an amendatory law that eliminates all references and applications of the death penalty in our statutes. It can also be understood and appreciated that at the time Muoz was decided, it would have been polemical to foster an unequivocal pronouncement that Section 19(1), Article III abolished the death penalty, since the very provision itself acknowledged that Congress may nonetheless subsequently provide for the penalty "for compelling reasons involving heinous crimes," as Congress very well did just four (4) years after Muoz. No such language exists in Rep. Act No. 9346. Of course, the legislature has the inherent and constitutional power to enact laws prescribing penalties for crimes, and the Constitution will not prohibit Congress from

reenacting the death penalty "for compelling reasons involving heinous crimes." Yet it was that express stipulation in the Constitution that dissuaded the Court from recognizing the constitutional abolition of the death penalty; and there is no similar statutory expression in Rep. Act No. 9346, which could be construed as evocative of intent similar to that of the Constitution. The doctrine in Muoz that the constitutional prohibition on the imposition of the death penalty did not enact a corresponding modification of other penalties is similarly irrelevant to this case, which calls for an examination as to whether such corresponding modifications of other penalties arose as a consequence of Rep. Act No. 9346, and not the Constitution. For purposes of legal hermeneutics, the critical question is whether Rep. Act No. 9346 intended to delete the word "death" as expressly provided for in the graduated scale of penalties under Article 71. Muoz did not engage in an analogous inquiry in relation to Article 71 and the Constitution, for what was relevant therein was not the general graduated scale of penalties, but the range of the penalties for murder. Herein, at bare minimum, no provision in Rep. Act No. 9346 provides a context within which the concept of "death penalty" bears retentive legal effect, especially in relation to Article 71. Unlike the Constitution, Rep. Act No. 9346 does expressly stipulate the amendment of all extant laws insofar as they called for the imposition of the penalty of death.
TAHIED

The impression left by Muoz was that the use of the word "imposition" in the Constitution evinced the framer's intent to retain the operation of penalties under the Revised Penal Code. In the same vein, one might try to construe the use of "imposition" in Rep. Act No. 9346 as a means employed by Congress to ensure that the "death penalty", as applied in Article 71, remain extant. If the use of "imposition" was implemented as a means of retaining "death" under Article 71, it would have been a most curious, roundabout means indeed. The Court can tolerate to a certain degree the deliberate vagueness sometimes employed in legislation, yet constitutional due process demands a higher degree of clarity when infringements on life or liberty are intended. We have ruled, on due process grounds, as arbitrary and oppressive a tax assessed on a standard characterized as "nothing but blather in search of meaning." 84 In the matter of statutes that deprive a person of physical liberty, the demand for a clear standard in sentencing is even more exacting. Yet in truth, there is no material difference between "imposition" and "application," for both terms embody the operation in law of the death penalty. Since Article 71 denominates "death" as an element in the graduated scale of penalties, there is no question that the operation of Article 71 involves the actual application of the death penalty as a means of determining the extent which a person's liberty is to be deprived. Since Rep. Act No. 9346 unequivocally bars the application of the death penalty, as well as expressly repeals all such statutory provisions requiring the application of the death penalty, such effect necessarily extends to its relevance to the graduated scale of penalties under Article 71.

We cannot find basis to conclude that Rep. Act No. 9346 intended to retain the operative effects of the death penalty in the graduation of the other penalties in our penal laws. Muoz cannot enjoin us to adopt such conclusion. Rep. Act No. 9346 is not swaddled in the same restraints appreciated by Muoz on Section 19(1), Article III. The very Congress empowered by the Constitution to reinstate the imposition of the death penalty once thought it best to do so, through Rep. Act No. 7650. Within the same realm of constitutional discretion, Congress has reversed itself. It must be asserted that today, the legal status of the suppression of the death penalty in the Philippines has never been more secure than at any time in our political history as a nation. Following Muoz, the sovereign people, through the 1987 Constitution, might not have willed the abolition of the death penalty and instead placed it under a suspensive condition. As such, we affirmed the characterization of the death penalty during the interregnum between the 1987 Constitution and its reimposition through law as being "in a state of hibernation." 85 No longer. It reawakened then it died; because the sovereign people, through Rep. Act No. 9346, banned the death penalty. Only by an Act of Congress can it be reborn. Before that day, the consideration of death as a penalty is bereft of legal effect, whether as a means of depriving life, or as a means of depriving liberty. Despite our present pronouncement on the ban against of the death penalty, we do not acknowledge that Muoz lacked legal justification when it was decided; that its application as precedent prior to Rep. Act No. 9346 was erroneous; or that previous sentences imposed on convicts on the basis of Muoz were wrong. Muoz properly stood as the governing precedent in the matter of sentences that passed finality prior to Rep. Act No. 9346; and the consistent reliance by the courts on its doctrines entrenched its footing in criminal law jurisprudence. IX. Rep. Act No. 7659, in the course of reintroducing the death penalty in the Philippines, also effectively classified the crimes listed therein as "heinous," within constitutional contemplation. Such reclassification under Rep. Act No. 7659 was accompanied by certain legal effects other than the imposition of the death penalty, such as the increase in imposable fines attached to certain heinous crimes. 86 The categorization of certain crimes as "heinous", constituting as it does official recognition that some crimes are more odious than others, has also influenced this Court in adjudging the proper pecuniary indemnities awarded to the victims of these crimes. Hence, a general inclination persists in levying a greater amount of damages on accused found guilty of heinous crimes. It should be understood that the debarring of the death penalty through Rep. Act No. 9346 did not correspondingly declassify those crimes previously catalogued as "heinous". The amendatory effects of Rep. Act No. 9346 extend only to the application of the death penalty but not to the definition or classification of crimes. True, the penalties for heinous crimes have been downgraded under the aegis of the new law. Still, what remains extant is the recognition by law that such crimes, by their abhorrent nature, constitute a special category by themselves. Accordingly, Rep. Act No. 9346 does not serve as basis for the reduction of civil indemnity and other damages that adhere to heinous crimes.
TcDIEH

X. Having pronounced the statutory disallowance of the death penalty through Rep. Act No. 9346 and the corresponding modification of penalties other than death through that statute, we now proceed to discuss the effects of these rulings. As to sentences not yet handed down, or affirmed with finality, the application is immediate. Henceforth, "death," as utilized in Article 71 of the Revised Penal Code, shall no longer form part of the equation in the graduation of penalties. For example, in the case of appellant, the determination of his penalty for attempted rape shall be reckoned not from two degrees lower than death, but two degrees lower than reclusion perpetua. Hence, the maximum term of his penalty shall no longer be reclusion temporal, as ruled by the Court of Appeals, but instead, prision mayor. There should be little complication if the crime committed was punishable by the freestanding penalty of "death," as utilized in Rep. Act No. 7659, as opposed to the ranged penalty of "reclusion perpetua to death," as often used in the Revised Penal Code and other penal laws. The facts of the present case do not concern the latter penalty, hence our reluctance to avail of an extended discussion thereof. However, we did earlier observe that both "reclusion perpetua" and death are indivisible penalties. Under Article 61 (2) of the Revised Penal Code, "[w]hen the penalty prescribed for the crime is composed of two indivisible penalties . . . the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale." Hence, as we earlier noted, our previous rulings that the penalty two degrees lower than "reclusion perpetua to death" is prision mayor. Then there is the matter of whether retroactive effect should be extended to this new ruling, favorable as it is to persons previously convicted of crimes which, if consummated or participated in as a principal, would have warranted the solitary penalty of death. We see no choice but to extend the retroactive benefit. Article 22 of the Revised Penal Code states that "[p]enal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal [ 87 ] . . . although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same." Given that we have ruled that Rep. Act No. 9346 downgraded the penalties for such crimes, the benefit of Article 22 has to apply, except as to those persons defined as "habitual criminal[s]." Indeed, Rep. Act No. 9346 expressly recognized that its enactment would have retroactive beneficial effects, referring as it did to "persons . . . whose sentences were reduced to reclusion perpetua by reason of this Act." 88 It cannot be discounted that by operation of Rep. Act No. 9346 and Article 22 of the Revised Penal Code, there may be convicts presently serving their original sentences whose actual served terms exceed their reduced sentences. It should be understood that this decision does not make operative the release of such convicts, especially as there may be other reasons that exist for their continued detention. There are remedies under law that could be employed to obtain the release of such prisoners, if warranted. Offices such as the Public Attorney's Office and non-governmental organizations that

frequently assist detainees possess the capacity and acumen to help implement the release of such prisoners who are so entitled by reason of this ruling. XI. We close by returning to the matter of appellant Alfredo Bon. By reason of Rep. Act No. 9346, he is spared the death sentence, and entitled to the corresponding reduction of his penalty as a consequence of the downgrading of his offense from two (2) counts consummated rape to two (2) counts of attempted rape. For the six (6) counts of rape, we downgrade the penalty of death to reclusion perpetua with no eligibility for parole, pursuant to Rep. Act No. 9346. For each of the two (2) counts of attempted rape, we downgrade by one degree lower the penalty imposed by the Court of Appeals. We hold that there being no mitigating or aggravating circumstances, the penalty of prision mayor should be imposed in it medium period. Consequently, we impose the new penalty of two (2) years, four (4) months and one (1) day of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor as maximum. Lastly, as to damages, the Court awards AAA P30,000.00 as civil indemnity, P25,000.00 as moral damages and P10,000.00 as exemplary damages for each count of attempted rape, it being the prevailing rate of indemnity as pronounced in the recent case of People v. Miranda. 89 Separately, the Court applies prevailing jurisprudence 90 in awarding to BBB and AAA P75,000.00 as civil indemnity, P75,000.00 as moral damages and P25,000.00 as exemplary damages, for each count of consummated rape. WHEREFORE, in light of the foregoing, the Decision of the Court of Appeals is hereby AFFIRMED WITH MODIFICATION. The Court sentences appellant Alfredo J. Bon to the penalty of reclusion perpetua with no possibility of parole for each of the six (6) counts of consummated rape committed against AAA in Criminal Case Nos. 6699, 6902, and against BBB in Criminal Case Nos. 6689, 6903, 6905, and 6907. Appellant is further ORDERED to indemnify AAA and BBB for the crime of consummated rape, in the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages for each of them. For the two (2) counts of attempted rape of AAA in Criminal Cases No. 6906 and 6908, appellant is hereby SENTENCED to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional as minimum, to eight (8) years and one (1) of prision mayor as maximum for each count of attempted rape. In addition, appellant is ORDERED to indemnify AAA for each of the two (2) counts of attempted rape in the amounts of P30,000.00 as civil indemnity, P25,000.00 as moral damages and P10,000.00 as exemplary damages. SO ORDERED.
cHCSDa

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILFORIANO CESAR alias JUNIOR, defendant-appellant. METHOD OF DETERMINING PENALTY. The proper method is to start from the penalty imposed by the Revised Penal Code, i.e., reclusion temporal; then apply the privileged mitigating circumstance of minority and determine the penalty immediately inferior in degree, i.e., prision mayor; and finally apply the same in its maximum degree but within the minimum range thereof because of the ordinary mitigating circumstance of plea of guilty. Prision mayorbeing the maximum of the indeterminate sentence, the minimum of the indeterminate penalty next lower to it as prescribed by the Revised Penal Code, i.e., prision correccional. Applying now the Indeterminate Sentence Law, accusedappellant should be sentenced to an indeterminate penalty of not less than six (6) years of prision correccional, to not more than ten (10) years and eight (8) months of prision mayor. BENGZON, J.P., J :
p

Accused was a student of St. Anthony's Academy in Carmen, Bohol. On March 9, 1966, during the first period in the afternoon, he went out to buy a notebook from the store of a certain Emil Andres and there he met his friend, Vidal Torrefranca, who offered him tuba. He drank two glasses and returned to his classes. He was able to attend all his classes and could remember the subjects he attended. After classes, he stood by the flagpole where he met and stabbed with a knife 1 Segundo Sarce, Jr., Acting Principal Teacher of St. Anthony's Academy. Accused fled after the stabbing. According to the autopsy report, 2 the victim died minutes after the wound was inflicted. Upon being informed of the incident, the Chief of Police and five policemen went to St. Anthony's Academy, where they were informed that the accused had escaped. From the Carmen Extension Hospital where they proceeded and saw the victim already dead, the policemen went to the house of the accused and found the latter's father who informed them that he was going to town to look for his son whom he would surrender. While accused's father was putting on his trousers in order to go with the policemen, a knife fell from his trousers' pocket. Replying to the query of the Chief of Police, accused's father stated that it was the knife (Exh. "A") that accused had used in stabbing his victim. The policemen and accused's father went to the house of Teodorico Cabanag, accused's grandfather, where the policemen found the accused in a room. The accused was brought to the municipal jail and locked therein. Charged with direct assault with murder in the Municipal Court of Carmen, Bohol, accused waived his right to preliminary investigation and moved that his case be remanded to the Court of First Instance of Bohol at Tagbilaran. This was granted and the accused was charged with the same complex crime in the latter court. Upon arraignment on April 12, 1966, the accused pleaded not guilty. However, on the date set for trial on the merits, he manifested thru counsel his intention to plead guilty to the lesser offense of direct assault with homicide and to pay damages. With the

Fiscal's conformity and upon petition of the accused, the latter was allowed to withdraw his former plea of not guilty, the information was amended accordingly, and the accused pleaded guilty to the charge of direct assault with homicide. With leave of court, and in order to mitigate his liability, accused proved that he was born in the Municipality of Carmen, province of Bohol, on May 27, 1948 (Exhibits 1 and 1-A), and therefore on the date of the commission of the crime, he was only 17 years, 9 months, and 12 days old. The trial court connected the accused of direct assault upon a person in authority with homicide in its decision dated April 30, 1966, the dispositive portion of which is as follows:
"IN VIEW OF THE FOREGOING, accused Wilforiano Cesar alias Junior is found guilty of the complex crime of direct assault upon a person in authority with homicide, as defined under Article 48 in relation with Articles 148 and 249 of the Revised Penal Code, with a special or privileged mitigating circumstance of minority (Article 68, paragraph 2) and spontaneous plea of guilty (Article 13, paragraph 7) and is hereby sentenced to an indeterminate penalty of from TWELVE (12) years and ONE (1) day of reclusion temporal, as minimum, to FOURTEEN (14) years, EIGHT (8) months and ONE (1) day of reclusion temporal, as maximum, (Article 27 in relation to Articles 76 and 77 of the Revised Penal Code; People vs. Pao, 58 Phil. 545; People vs. Gayrama, 60 Phil. 796) with all the accessory penalties provided by law, and to pay damages to the heirs of the deceased Segundo Sarce, Jr. in the amount of P7,500.00, including expenses for embalming, tomb, prayers, wick, but without subsidiary personal liability in case of insolvency in view of the nature of the penalty (Article 39, Revised Penal Code). The accused must pay the costs of this proceeding. He is, however, credited one-half of his preventive imprisonment from March 10, 1966, until this decision becomes final (Article 29, Revised Penal Code). "The lethal weapon, Exhibit 'A', is hereby confiscated in favor of the Government of the Philippines." 3

In this appeal, the accused raises as sole issue the correct penalty under the circumstances. Accused-appellant pleaded guilty to and was convicted of the crime of direct assault upon a person in authority with homicide. This being a complex crime, the penalty for the more serious crime should be imposed, the same to be applied in its maximum period. 4 The more serious crime is homicide punishable by reclusion temporal. Accused has to his credit two mitigating circumstances: the special or privileged mitigating circumstance of minority 5 and the ordinary mitigating circumstance of plea of guilty. 6 Therefore, under Art. 64, par. 5 of the Revised Penal Code, the penalty imposable is the penalty next lower to that prescribed by law. Under Art. 71, Revised Penal Code, the penalty next lower to reclusion temporal is prision mayor. Because of the complex nature of the crime committed by accused-appellant, the penalty of prision mayor is to be applied in its maximum period. However, having in his favor the ordinary mitigating circumstance of plea of guilty without any offsetting aggravating circumstance, applying Art. 64, par. 2 of the Revised Penal Code, the penalty of prision mayor maximum should be imposed in its minimum range.

Parenthetically, We must state that the lower court erred in the imposition of the correct penalty despite its proper appreciation of the privileged mitigating circumstance of minority and the ordinary circumstance of plea of guilty in favor of the appellant because it applied first the imposable penalty to its maximum degree, i.e., reclusion temporal, maximum, and then imposed the penalty immediately inferior to it, i.e., reclusion temporal medium. This latter penalty it imposed as the maximum of the indeterminate sentence, but applied in the minimum range because of the ordinary mitigating circumstance of plea of guilty. As the minimum of the indeterminate sentence, it imposed the minimum of the penalty next lower, i.e., reclusion temporal minimum. The proper method is to start from the penalty imposed by the Revised Penal Code, i.e., reclusion temporal; then apply the privileged mitigating circumstance of minority and determine the penalty immediately inferior in degree, i.e., prision mayor; and finally apply the same in its maximum degree but within the minimum range thereof because of the ordinary mitigating circumstance of plea of guilty. Prision mayor being the maximum of the indeterminate sentence, the minimum of the indeterminate penalty is within the range of the penalty next lower to it as prescribed by the Revised Penal Code, i.e., prision correccional. All told, and applying now the Indeterminate Sentence Law, accused-appellant should be sentenced to an indeterminate penalty of not less than six (6) years of prision correccional, to not more than ten (10) years and eight (8) months of prision mayor. 9 WHEREFORE, the judgment appealed from is hereby modified as to the personal penalty so as to sentence the accused to an indeterminate penalty of not less than six (6) years of prision correccional to not more than ten (10) years and eight (8) months of prision mayor; in all other respects, the judgment is hereby affirmed. No costs. So ordered. Reyes, J.B.L., Actg. C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.

JUANITO S. AMANDY, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, AND THE HONORABLE REGIONAL TRIAL COURT, FOURTH JUDICIAL REGION, BRANCH LVI, LUCENA CITY, respondents.

PROBATION; APPLICATION FOR PROBATION; BASIS FOR GRANT OR DENIAL THEREOF. The grant or denial of the application for probation does not rest solely on the offender's potentiality to reform but also on the observance of demands of justice and public interest (Tolentino v. Alconcel, 121 SCRA 92). These are expressed in statutes enacted by the lawmaker. The arguments of the petitioner are more properly directed to a trial court's exercise of discretion in granting or denying probation to applicants who fall within the coverage of the law, and not to a court which refuses to apply the benefits of a law to persons excluded by that same law. PROBATION LAW; LEGISLATIVE ENACTMENTS OF THE PRESIDENT AND THE BATASANG PAMBANSA WHEN CONFLICTING THE LATTER ISSUANCE PREVAILS. It is apparent from the history of the provision in question that a disagreement on policy matters existed between the then President and the then legislature. In the two Presidential Decrees, the President was for denying probation to any one sentenced to imprisonment of more than six years. The Batasan, on the other hand, was for amending the applicable term of imprisonment to more than six years and one day. Since under the unusual situation then existing, both the Batasang Pambansa and the President could legislate on the same subject at the same time, the later issuance has to prevail. This is P.D. 1990. WHERE THE PROVISION OF LAW IS CLEAR AND UNAMBIGUOUS, THE LAW MUST BE TAKEN AS IT IS. According to the petitioner, B.P. 76 and P.D. 1990 must be harmonized to ascertain the legislative intent. There can be no harmonization where one law specifically amends another. Where the provision of law is clear and unambiguous, so that there is no occasion for the court's seeking legislative intent, the law must be taken as it is, devoid of judicial addition or subtraction (Insular Lumber Co. v. Court of Tax Appeals, et al., 192 Phil. 223). PROBATION; POLICY CONSIDERATION IN DISQUALIFYING OFFENDERS PENALIZED WITH MORE THAN 6 YEARS IMPRISONMENT. The policy consideration in disqualifying offenders penalized with more than 6 years imprisonment is the seriousness of the crime committed as would bring it outside the beneficent objective of the law. DENIAL OF PROBATION APPLICATION FURTHER JUSTIFIED BY GRAVITY OF DRUG MENACE AND BY THE INCREASE OF THE PENALTY FOR VIOLATION OF THE DANGEROUS DRUGS ACT. Denial of the probation application in this particular case is further justified by the gravity of the drug menace and by the increase of the penalty for violation of the Dangerous Drugs Act which bring it outside the range of probationable offenses. Again, the punishment of drug pushers and drug users is a matter of legislative policy. Judicial deference to this legislative policy is expressed in Tolentino v. Alconcel. APPLICATION FOR PROBATION; PROBATION IS A PRIVILEGE; GRANT RESTS UPON DISCRETION OF THE COURT. It may also be stated that even if a convicted person falls within the classes of those qualified for probation, the grant of probation is not automatic or ministerial. Probation is a privilege and its grant rests upon the discretion of the court (Baclayon v. Mutia, 129 SCRA 149). The discretion is exercised

primarily for the benefit of society as a whole and only second for the personal advantage of the accused. GUTIERREZ, JR., J : This is a petition for review of the order dated September 24, 1986 and the resolution dated October 9, 1986 of the Regional Trial Court of Lucena City, Branch LVI. The petitioner is the accused in Crim. Case No. 86-126, filed before the respondent trial court. The information filed by the Provincial Fiscal reads as follows:
p

'The undersigned accuses Juanito Amandy alias Dianak (on bail) of the violation of Section 8 of Republic Act No. 6425, otherwise known as "The Dangerous Drugs Act of 1972,' committed as follows: "That on or about the 3rd day of April 1983, at Barangay Burgos, Municipality of Padre Burgos, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and there willfully, unlawfully and feloniously have in his possession one point six grams (1.6) dried leaves of Indian Hemp or marijuana, a prohibited drug, and sixty (60) pieces of cigarette wrappers.

Petitioner Amandy initially entered a plea of not guilty but subsequently withdrew his former plea and substituted it with a plea of guilty, subject, however, to the reservation of proving the mitigating circumstance of drunkenness which was not habitual, in addition to the attenuating circumstance of his voluntary plea of guilty. Respondent lower court found him guilty of the crime charged and issued a decision on June 17, 1986 with the following dispositive portion:
"WHEREFORE, on his voluntary plea of guilty, the Court finds accused Juanito Amandy alias 'Dianak' guilty of the crime of 'Violation of Section 8 of Republic Act No. 6425 otherwise known as The Dangerous Drug Act of 1972' and, appreciating in his favor the mitigating circumstances of his voluntary plea of guilty, too (sic), drunkenness which was not habitual, hereby sentences him to a penal servitude of SIX (6) YEARS and ONE (1) DAY and to pay a fine of SIX THOUSAND PESOS (P6,000.00), with the accessories of the law and to pay the costs. With credit on his preventive imprisonment, if and when proper under the provisions of Republic Act No. 6127. "SO ORDERED." (pp. 19-20, Rollo)

The petitioner filed an application for probation with a petition for release on recognizance, alleging that he is entitled to the suspended sentence under P.D. 968. The petition, was however, denied by the respondent lower court for the reason that P.D. 1990 removed from the purview of the exceptions to the probation law those 'sentenced to serve a maximum of imprisonment of more than 6 years.' On October 8, 1986, the petitioner filed a motion for reconsideration but the lower court denied the motion in a resolution dated October 9, 1986 on the ground that it is the intention of the law to extend the beneficial effects of the Probation Law only to correctional penalties which have six (6) years as their ceiling and that penalties afflictive in scope and nature have to be excluded. Hence, this petition for review.

The only issue to be determined in this case is whether or not the respondent lower court committed reversible error in disallowing the petitioner's application for probation notwithstanding the favorable recommendation of the Probation Officer. The petitioner's counsel claims that his client is a good subject for probation and can still be reformed and rehabilitated as shown by the recommendation of the Probation Officer. Despite this, however, petitioner was denied the benefits of the Probation Law. To base the grant of probation on this contention alone would be erroneous because the law clearly declares who are entitled to probation and who are not. Moreover, the grant or denial of the application for probation does not rest solely on the offender's potentiality to reform but also on the observance of demands of justice and public interest (Tolentino v. Alconcel, 121 SCRA 92). These are expressed in statutes enacted by the lawmaker. The arguments of the petitioner are more properly directed to a trial court's exercise of discretion in granting or denying probation to applicants who fall within the coverage of the law, and not to a court which refuses to apply the benefits of a law to persons excluded by that same law. The trial court has merely complied with the express provision of an amendatory law The original Probation Law of 1976, Presidential Decree No. 968 provided in its Section 9 that "(t)he benefits of this Decree shall not be extended to those: (a) sentenced to serve a maximum term of imprisonment of more than six years. . . . In 1980, Batas Pambansa Blg. 76 amended Section 9 of P.D. 968 by stating that the benefits of the Decree shall not be extended to those "sentenced to serve a maximum term of imprisonment of more than six years and one day." Subsequently, in 1985 then President Marcos promulgated Presidential Decree No. 1990 which amended BP 76 and returned to the earlier formulation in P.D. No. 968. The latest decree on the matter excludes from the benefits of the Probation Law any applicant who has been "sentenced to serve a maximum term of imprisonment of more than six years." It is apparent from the history of the provision in question that a disagreement on policy matters existed between the then President and the then legislature. In the two Presidential Decrees, the President was for denying probation to any one sentenced to imprisonment of more than six years. The Batasan, on the other hand, was for amending the applicable term of imprisonment to more than six years and one day. Since under the unusual situation then existing, both the Batasang Pambansa and the President could legislate on the same subject at the same time, the later issuance has to prevail. This is P.D. 1990. The petitioner does not attack the validity of P.D. 1990. He limits himself to stating that P.D. 1990 did not intend to nullify B.P. 76. He states that the intent and purpose of P.D. 1990 is to deny applications for probation filed by those who still appeal the judgment of conviction, only to pursue the same when their appeal is eventually

dismissed. It is, according to him, not intended to deny probation benefits to those sentenced to 6 years and 1 day by a trial court. To sustain the petitioner's construction of P.D. 1990, Sec. 2 is to deny the very purpose of the amendatory decree. The removal of one day from the original six years and one day, is to benefit only those offenders convicted of less grave felonies as defined in Art. 9 of the Revised Penal Code. The questioned section on P.D. 1990 would not have struck out one day in unequivocal terms if the intention was not to exclude those convicted of the next higher felonies from its coverage. The contention, therefore, of the petitioner that B P. 76 and P.D. 1990 operate on different subjects, the latter allegedly referring to persons who appeal the judgment of conviction being disqualified from availing of the benefits of probation while B.P. 76 specifically dealing with the extension of benefits of probation to those sentenced to a maximum penalty of 6 years and 1 day, is devoid of merit. According to the petitioner, B.P. 76 and P.D. 1990 must be harmonized to ascertain the legislative intent. There can be no harmonization where one law specifically amends another. Where the provision of law is clear and unambiguous, so that there is no occasion for the court's seeking legislative intent, the law must be taken as it is, devoid of judicial addition or subtraction (Insular Lumber Co. v. Court of Tax Appeals, et al., 192 Phil. 223). As stated by the Solicitor General, P.D. 1990 realizes the need to correct B.P. 76 which extended to offenders penalized to suffer the penalty of 6 years and 1 day, the benefits of the Probation Law. Thus, it amended B.P. 76 by reverting to P.D. 968 such that only those sentenced to suffer correctional penalties shall be entitled to suspended sentences through probation. To sustain the petitioner's construction of Sec. 2, P.D. 1990 would defeat the very purpose of the amendment. The policy consideration in disqualifying offenders penalized with more than 6 years imprisonment is the seriousness of the crime committed as would bring it outside the beneficent objective of the law. Denial of the probation application in this particular case is further justified by the gravity of the drug menace and by the increase of the penalty for violation of the Dangerous Drugs Act which bring it outside the range of probationable offenses. Again, the punishment of drug pushers and drug users is a matter of legislative policy. Judicial deference to this legislative policy is expressed in Tolentino v. Alconcel (121 SCRA 92) where we stated:
"Proliferation of prohibited drugs in the country has remained a serious threat to the wellbeing of the people. It has necessitated an all-out intensified campaign on the part of the law-enforcers against users as well as pushers thereof. If only to emphasize the gravity of the drug menace, the Batasan Pambansa has seen fit to increase the penalty for violation of Section 8, Article II of Rep. Act 6425. Thus, while under Rep. Act 6425, as amended by P.D. 44, possession or use of marijuana was punishable by imprisonment of 6 months and 1 day to 2 years and 4 months and a fine ranging from P600.00 to P6,000.00 the penalty imposed upon petitioner herein possession and use thereof is now punishable by imprisonment ranging from 6 years and 1 day to 12 years and fine ranging from P6,000.00 to P12,000.00 under B.P. Blg. 179."

The other argument that the omission of "one day" from P.D. 1990 is the result of a misprint or inadvertence in the careless preparation of Presidential Decrees cannot be given serious consideration. P.D. 1990 merely went back to the P.D. 968 wording. The supposed misprint is at the exact dividing line between correctional penalties and afflictive penalties. It cannot be anything but deliberate It may also be stated that even if a convicted person falls within the classes of those qualified for probation, the grant of probation is not automatic of ministerial. Probation is a privilege and its grant rests upon the discretion of the court (Baclayon v. Mutia, 129 SCRA 149). The discretion is exercised primarily for the benefit of society as a whole and only secondarily for the personal advantage of the accused. The Probation Law has been with us for more than a decade now and, perhaps, it is time for Congress to evaluate the advantages and disadvantages of this innovative and farreaching program. Until Congress changes the law, however, we can only apply it as enacted. WHEREFORE, the petition is hereby DISMISSED for lack of merit. The questioned orders of the respondent court are AFFIRMED. SO ORDERED.

AGUSTIN SALGADO, petitioner, vs. THE HON. COURT OF APPEALS, (Fourteenth Division) and HON. ANTONIO SOLANO, in his capacity as Presiding Judge of the RTC-Quezon City (Branch 86) and FRANCISCO LUKBAN,respondents. MEDIALDEA, J : The facts are as follows:
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Petitioner was charged with the crime of serious physical injuries in Criminal Case No. 0-33798 entitled, "People of the Philippines v. Agustin Salgado," before the Regional Trial Court of Quezon City (Branch 86). After trial, judgment was rendered on October 16, 1986 finding him guilty beyond reasonable doubt of the crime charged. The dispositive portion of the decision, states:
"WHEREFORE, the court finds the accused AGUSTIN P. SALGADO, JR., guilty beyond reasonable doubt of the crime of serious physical injuries, defined and penalized under paragraph 3 Article 263 of the Revised Penal Code, and appreciating in his favor the following mitigating circumstances: 1)voluntary surrender; and 2)No intention to commit so grave a wrong hereby sentence (sic) said accused to suffer imprisonment for a period of four (4) months and twenty (20) days, with the accessories provided for by law, and to indemnify the victim, Francisco Lukban, Jr., in the sum of P126,633.50 as actual or compensatory damages, and the sum of P50,000.00 as damages for the incapacity of Francisco Lukban to pursue and engage in his poultry business. "SO ORDERED." (p. 19, Rollo).

On October 17, 1986, petitioner filed an application for probation with the trial court. The application was granted in an Order dated April 15, 1987. The order contained, among others, the following condition:
"xxx xxx xxx. "4.Indemnify the victim FRANCISCO LUKBAN, JR., in a monthly installment of P2,000.00 (TWO THOUSAND PESOS) every month during the entire period of his probation." (p. 15, Rollo).

For the months of May, June, July, August, September and October, 1987, petitioner complied with the above condition by paying in checks the said sum of P2,000.00 monthly, through the City Probation Officer, Perla Diaz Alonzo. Private respondent Francisco Lukban, Jr. voluntarily accepted the checks and subsequently encashed them (p. 19, Rollo). After the denial of his motion for reconsideration, the petitioner filed directly with this Court a petition for review of the trial court's order granting the motion for issuance of a writ of execution. We referred the petition to the Court of Appeals in a resolution dated April 13, 1988 (p. 18, Rollo). On March 16, 1989, respondent Court of Appeals rendered a decision affirming the order of the trial court granting the motion for the issuance of a writ of execution. A motion for reconsideration was filed by petitioner but respondent Court of Appeals denied the motion in a resolution dated August 3, 1989 (pp. 9-10, Rollo). The petitioner went to this Court via a petition for renew which was filed on September 26, 1989 There is no question that the decision of October 16, 1986 in Criminal Case No. Q33798 finding petitioner guilty beyond reasonable doubt of the crime of serious physical injuries had become final and executory because the filing by respondent of an application for probation is deemed a waiver of his right to appeal (See Section 4 of P.D. 968). Likewise, the judgment finding petitioner liable to private respondent for

P126,633.50 as actual damages and P50,000.00 as consequential damages had also become final because no appeal was taken therefrom. Hence, it is beyond the power of the trial court to alter or modify. We do not believe, however, that the order dated April 15, 1987 granting the application for probation and imposing some conditions therein altered or modified the decision dated October 16, 1986. The April 15, 1987 Order of the trial court granting the application for probation and providing as one of the conditions therein that petitioner indemnify private respondent P2,000.00 monthly during the period of probation did not increase or decrease the civil liability adjudged against petitioner but merely provided for the manner of payment by the accused of his civil liability during the period of probation. We already ruled that "(T)he 'conviction and sentence' clause of the statutory definition clearly signifies that probation affects only the criminal aspect of the case." The reason for ruling that the grant of probation does not extinguish the civil liability of the offender is clear," (T)he extinction or survival of civil liability are governed by Chapter III, Title V, Book I of the Revised Penal Code where under Article 113 thereof provides that: '. . ., the offender shall continue to be obliged to satisfy the civil liability resulting from the crime committed by him, notwithstanding the fact that he has served his sentence consisting of deprivation of liberty or other rights, or has not been required to serve the same by reason of amnesty, pardon, commutation of sentence, or any other reason.'" In the instant case, the issue is not the survival or extinction of the civil liability of a probationer but, whether or not the trial court may impose as a condition of probation the manner in which a probationer may settle his civil liability against the offended party during the period of probation. Respondent appellate court ruled that Section 10 of the Probation Law enumerates thirteen (13) conditions of probation not one of which relates to the civil liability of the offender (p. 22, Rollo). Section 4 of Presidential Decree No. 968 (Probation Law of 1976) provides:
'Sec. 4.Grant of Probation. Subject to the provisions of this Decree, the court may, after it shall have convicted and sentenced a defendant but before he begins to serve his sentence and upon his application, suspend the execution of said sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best.

In the case of Florentino L. Baclayon v. Hon. Pacito G. Mutia, et al., G.R. No. 59298, April 30, 1984, 129 SCRA 148, We ruled that the conditions listed under Section 10 of the Probation Law are not exclusive. Courts are allowed to impose practically any term it chooses, the only limitation being that it does not jeopardize the constitutional rights of the accused. Courts may impose conditions with the end that these conditions would help the probationer develop into a law-abiding individual. Thus,
"The conditions which trial courts may impose on a probationer may be classified into general or mandatory and special or discretionary. The mandatory conditions, enumerated

in Section 10 of the Probation Law, require that probationer should a) present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within 72 hours from receipt of said order, and b) report to the probation officer at least once a month at such time and place as specified by said officer. Special or discretionary conditions are those additional conditions, listed in the same Section 10 of the Probation Law, which the courts may additionally impose on the probationer towards his correction and rehabilitation outside of prison. The enumeration, however is not inclusive. Probation statutes are liberal in character and enable courts to designate practically any term it chooses as long as the probationer's constitutional rights are not jeopardized. There are innumerable conditions which may be relevant to the rehabilitation of the probationer when viewed in their specific individual context. It should, however, be borne in mind that the special or discretionary conditions of probation should be realistic, purposive and geared to help the probationer develop into a law-abiding and self-respecting individual. Conditions should be interpreted with flexibility in their application, and each case should be judged on its own merits on the basis of the problems, needs and capacity of the probationer. . . ."

The primary consideration in granting probation is the reformation of the probationer. That is why, under the law, a post sentence investigation, which is mandatory, has to be conducted before a person can be granted probation to help the court in determining whether the ends of justice and the best interest of the public as well as the defendant will be served by the granting of the probation The trial court is given the discretion to impose conditions in the order granting probation "as it may deem best." As already stated, it is not only limited to those listed under Section 10 of the Probation Law. Thus, under Section 26, paragraph (d) of the Rules on Probation Methods and Procedures, among the conditions which may be imposed in the order granting probation is:
"Sec. 26.Other conditions of Probation. The Probation Order may also require the probationer in appropriate cases, to: "xxx xxx xxx "(d)comply with a program of payment of civil liability to the victim or his heirs . . . ."

However, this is not to say that the manner by which the probationer should satisfy the payment of his civil liability in a criminal case during the probation period may be demanded at will by him. It is necessary that the condition which provides for a program of payment of his civil liability will address the offender's needs and capacity. Such need may be ascertained from the findings and recommendations in the post-sentence investigation report submitted by the Probation Officer after investigation of the financial capacity of the offender and that such condition is to the end that the interest of the state and the reformation of the probationer is best served. In the instant case, in the absence of any showing to the contrary, it is presumed that when the trial court issued the order of April 15, 1987, the condition that the petitioner has to pay private respondent P2,000.00 a month for the satisfaction of the civil liability adjudged against him was recommended by the probation officer who prepared the postsentence investigation and that such condition is, in the judgment of the trial court, "deemed best" under the circumstances.

Counting from April 15, 1987, the date of issuance of the order granting probation which under the law is also the date of its effectivity (Sec. 11, P.D. 968), the probation period must have lapsed by now. Hence, the order for petitioner to indemnify the private respondent in the amount of P2,000.00 monthly during the period of probation must have also lapsed. If such were the case, there would therefore, be no more obstacle for the private respondent to enforce the execution of the balance of the civil liability of the petitioner. However, the records are bereft of allegations to this effect. ACCORDINGLY, the petition is GRANTED. The decision dated March 16, 1989 of respondent Court of Appeals affirming the order of the trial court granting the motion for the issuance of a writ of execution as well as the resolution dated August 3, 1989 of the same court are hereby REVERSED and SET ASIDE. SO ORDERED. Narvasa, Gancayco and Grio-Aquino, JJ., concur.

Separate Opinions
CRUZ, J., concurring and dissenting: I concur in the result, the issue having become moot and academic. At the same time, however, I must express my reservation on the holding that the condition imposed on the probation was a valid requirement and within the sound discretion of the trial court. I am not certain that the award of civil damages, having become final and executory, could still be amended by the trial court by providing for its payment in installments during the period of probation. It seems to me that the said award was already a vested property right of the victim and that it could be enforced by him immediately and in full as in ordinary money judgments where there is no indication of a different mode and period of payment. There is none in the decision in question. That decision was never appealed. Consequently, I submit that the trial judge had no authority to in effect defer the immediate enforcement of the civil award of P176,633.50 by requiring the probationer to pay it at the rate of only P2,000.00 a month, a paltry amount, indeed, considering the total obligation. The fact that the victim accepted the payments did not validate the condition, which was void ab initio as far as he was concerned. At any time he saw fit, he could have disregarded that condition as an invalid amendment of the decision and demanded the immediate issuance of a writ of execution for the full amount of the civil award. I believe that was his vested right. FLORENTINA L. BACLAYON, petitioner, vs. HON. PACITO G. MUTIA, as Presiding Judge of the Municipal Court of Plaridel, Misamis Occidental and PEOPLE OF THE PHILIPPINES, respondents. 1.CRIMINAL LAW; PENALTY; PROBATION; CONDITIONS WHICH THE COURT MAY IMPOSE, CLASSIFIED. The conditions which trial courts may impose on a probationer may be classified into general or mandatory and special or discretionary. The mandatory conditions, enumerated in Section 10 of the Probation Law, require that the probationer should (a) present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within 72 hours from receipt of said order, and (b) report to the probation officer at least once a month at such time and

place as specified by said officer. Special or discretionary conditions are those additional conditions, listed in the same Section 10 of the Probation Law, which the courts may additionally impose on the probationer towards his correction and rehabilitation outside of prison. 2.ID.; ID.; ID.; ID.; DISCRETIONARY CONDITIONS IMPOSED SHOULD BE REALISTIC AND PURPOSIVE. The enumeration of conditions contained in Section 10 of the Probation Law is not inclusive. Probation statutes are liberal in character and enable courts to designate practically any term it chooses as long as the probationers constitutional rights are not jeopardized. There are innumerable conditions which may be relevant to the rehabilitation of the probationer when viewed in their specific individual context. It should, however, be borne in mind that the special or discretionary conditions of probation should be realistic, purposive and geared to help the probationer develop into a law-abiding and self-respecting individual. Conditions should be interpreted with flexibility in their application and each case should be judged on its own merits on the basis of the problems, needs and capacity of the probationer. The very liberality of the probation should not be made a tool by trial courts to stipulate instead unrealistic terms. 3.ID.; ID.; ID.; ID.; ID.; CONDITION IN CASE AT BAR PRACTICALLY PREVENTS COMPLIANCE WITH TERMS OF PROBATION. Petitioner is a teacher and teaching is the only profession she knows as such she possesses special skills and qualifications. To order petitioner to refrain from teaching would deprive the students and the school in general the benefits that may be derived from her training and expertise. While it is true that probation is a mere privilege and its grant rests solely upon the discretion of the court, this discretion is to be exercised primarily for the benefit of organized society and only incidental for the benefit of the accused (Tolentino vs. Alconcel, 121 SCRA 92). Equal regard to the demands of justice and public interest must be observed (Ibid.). In this case, teaching has been the lifetime and only calling and profession of petitioner. The law requires that she devote herself to a lawful calling and occupation during probation. Yet, to prohibit her from engaging in teaching would practically prevent her from complying with the terms of the probation. 4.ID.; ID.; ID.; ORDER PLACING DEFENDANT ON PROBATION IN EFFECT SUSPENDS IMPOSITION OF A SENTENCE. An order placing defendant on "probation" is not a "sentence" but is rather in effect a suspension of the imposition of sentence (Commonwealth ex rel. Paige vs. Smith, 198 A. 812, 815, 130 Pa. Super. 536). It is not a final judgment but is rather an "interlocutory judgment" in the nature of a conditional order placing the convicted defendant under the supervision of the court for his reformation, to be followed by a final judgment of discharge, if the conditions of the probation are complied with, or by a final judgment of sentence if the conditions are violated (Ibid.). 5.ID.; ID.; ID.; ID.; CASE AT BAR. Because petitioner was granted probation, the imposition of her sentence of imprisonment was thereby suspended and necessarily, the imposition of the accessory penalties was likewise thereby suspended. DECISION TEEHANKEE, J :
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This is a petition to review by certiorari the order dated, December 21, 1981 of respondent Pacito G. Mutia, 1 then Presiding Judge of the Municipal Court (now Municipal Trial Court) of Plaridel, Misamis Occidental, which imposed as a condition in granting probation to petitioner Florentina L. Baclayon that she refrain from continuing with her teaching profession. Petitioner, a school teacher, was convicted of the crime of Serious Oral Defamation by the then Municipal Court of Plaridel, Misamis Occidental, then presided by respondent Pacito G. Mutia for having quarrelled with and uttered insulting and defamatory words against Remedios Estillore, principal of the Plaridel Central School. Her conviction was affirmed by the Court of Appeals (now Intermediate Appellate Court) and the appellate court, taking into account the aggravating circumstance of disregard of the respect due the offended party on account of her rank and age and the fact that the crime was committed in the office of the complainant in the public school building of Plaridel, Misamis Occidental where public authorities are engaged in the discharge of their duties during office hours, increased the penalty imposed by respondent judge and sentenced petitioner to one year, 8 months, 21 days of arresto mayor in its maximum period to 2 years and 4 months of prision correccional in its minimum period. The sentence was promulgated on September 9, 1981. On the same date petitioner applied for probation with respondent judge who referred the application to a Probation Officer. The Post-Sentence Investigation Report favorably recommended the granting of petitioner's probation for a period of three (3) years. On December 21, 1981, respondent Judge issued an order granting petitioner's probation, but modified the Probation Officer's recommendation by increasing the period of probation to five (5) years and by imposing the following conditions:
LibLex

"(a)To present herself to the probation officer designated to undertake her supervision at such place as may be specified in the order within seventy-two hours from receipt of said order; (b)To report to the Probation Office or any specified place designated by the Probation Officer at least once a month in person; (c)To reside at the premise approved by the Probation Officer and not change her residence without prior written approval; (d)To permit the Probation Officer to visit her house and place of work or an authorized Social Worker; (e)To refrain from drinking intoxicating liquor to excess; (f)To pay the cost; (g)To satisfy any other condition related to the rehabilitation of the defendant and not unduly restrictive of her liberty or incompatible with her freedom of conscience; and (h)To refrain from continuing her teaching profession."

Petitioner's plea for deletion of the last condition was rejected by respondent judge. Hence, the petition at bar alleging grave abuse of discretion in the imposition of the said condition that petitioner should "refrain from continuing her teaching profession." The petitioner submits that said condition is not only detrimental and prejudicial to her rights but is also not in accordance with the purposes, objectives

and benefits of the probation law and prays that the said condition be deleted from the order granting her probation. On petitioner's motion, the Court issued a temporary restraining order enjoining respondent judge from enforcing the said questioned condition. The Court finds merit in the petition. The conditions which trial courts may impose on a probationer may be classified into general or mandatory and special or discretionary. The mandatory conditions, enumerated in Section 10 of the Probation Law, require that the probationer should (a) present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within 72 hours from receipt of said order, and (b) report to the probation officer at least once a month at such time and place as specified by said officer. Special or discretionary conditions are those additional conditions, listed in the same Section 10 of the Probation Law, which the courts may additionally impose on the probationer towards his correction and rehabilitation outside of prison. The enumeration, however, is not inclusive. Probation statutes are liberal in character 2 and enable courts to designate practically any term it chooses as long as the probationer's constitutional rights are not jeopardized. 3 There are innumerable conditions which may be relevant to the rehabilitation of the probationer when viewed in their specific individual context. It should, however, be borne in mind that the special or discretionary conditions of probation should be realistic, purposive and geared to help the probationer develop into a law-abiding and self-respecting individual. Conditions should be interpreted with flexibility in their application and each case should be judged on its own merits on the basis of the problems, needs and capacity of the probationer. 4 The very liberality of the probation should not be made a tool by trial courts to stipulate instead unrealistic terms Petitioner is a teacher and teaching is the only profession she knows and as such she possesses special skills and qualifications. Thus, she was designated as District Guidance Coordinator and always designated as District-in-Charge whenever the District Supervisor is out of town. She is usually selected to represent her district in seminars, meetings and conferences. She also excelled in her study of Child Study and Development. It also appears that she is an outstanding member of the Misamis Occidental Girl Scout Council, having served as Physical Education & Girl Scout Field Advisor of the District, Adviser of the District Girl Scout Leaders Association, Adviser of the District Federated Girl Scout Barangay Troop Committee, acts as resource person in District and Division Level Girl Scout encampments and reelected Board Member of the Misamis Occidental Girl Scout Council. To order the petitioner to refrain from teaching would deprive the students and the school in general the benefits that may be derived from her training and expertise. While it is true that probation is a mere privilege and its grant rests solely upon the discretion of the court, this discretion is to be exercised primarily for the benefit of organized society and only incidentally for the benefit of the accused. 5 Equal regard to the demands of justice and public interest must be observed. 6 In this case, teaching has been the lifetime and only calling and profession of petitioner. The law requires that

she devote herself to a lawful calling and occupation during probation. Yet, to prohibit her from engaging in teaching would practically prevent her from complying with the terms of the probation. Respondents contend that petitioner's final conviction carries with it the accessory penalties in addition to the principal penalty of imprisonment; and since petitioner was sentenced to arresto mayor in its maximum period to prision correccional in its minimum period, she must likewise suffer the accessory penalties of suspension from public office and from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage. This cannot apply to petitioner, however, because she was granted probation. The imposition of her sentence of imprisonment was thereby suspended and necessarily, the imposition of the accessory penalties was likewise thereby suspended. An order placing defendant on "probation" is not a "sentence" but is rather in effect a suspension of the imposition of sentence. 7 It is not a final judgment but is rather an "interlocutory judgment" in the nature of a conditional order placing the convicted defendant under the supervision of the court for his reformation, to be followed by a final judgment of discharge, if the conditions of the probation are complied with, or by a final judgment of sentence if the conditions are violated. 8 In view of all the foregoing, the Court grants the petition and hereby orders that paragraph (h) of the questioned order granting probation which requires that petitioner refrain from continuing with her teaching profession be deleted. The temporary restraining order is hereby made permanent. No costs. Melencio-Herrera, Plana, Relova, Gutierrez, Jr. and De la Fuente, JJ ., concur.
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ARNEL COLINARES, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION ABAD, J : The Facts and the Case The public prosecutor of Camarines Sur charged the accused Arnel Colinares (Arnel) with frustrated homicide before the Regional Trial Court (RTC) of San Jose, Camarines Sur, in Criminal Case T-2213. 1 Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the evening on June 25, 2000, he and Jesus Paulite (Jesus) went out to buy cigarettes at a nearby store. On their way, Jesus took a leak by the roadside with Rufino waiting nearby. From nowhere, Arnel sneaked behind and struck Rufino twice on the head with a huge stone, about 15 1/2 inches in diameter. Rufino fell unconscious as Jesus fled.
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Ananias Jallores (Ananias) testified that he was walking home when he saw Rufino lying by the roadside. Ananias tried to help but someone struck him with something hard on the right temple, knocking him out. He later learned that Arnel had hit him. Paciano Alano (Paciano) testified that he saw the whole incident since he happened to be smoking outside his house. He sought the help of a barangay tanod and they brought Rufino to the hospital. Dr. Albert Belleza issued a Medico-Legal Certificate showing that Rufino suffered two lacerated wounds on the forehead, along the hairline area. The doctor testified that these injuries were serious and potentially fatal but Rufino chose to go home after initial treatment. The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel claimed selfdefense. He testified that he was on his way home that evening when he met Rufino, Jesus, and Ananias who were all quite drunk. Arnel asked Rufino where he supposed the Mayor of Tigaon was but, rather than reply, Rufino pushed him, causing his fall. Jesus and Ananias then boxed Arnel several times on the back. Rufino tried to stab Arnel but missed. The latter picked up a stone and, defending himself, struck Rufino on the head with it. When Ananias saw this, he charged towards Arnel and tried to stab him with a gaff. Arnel was able to avoid the attack and hit Ananias with the same stone. Arnel then fled and hid in his sister's house. On September 4, 2000, he voluntarily surrendered at the Tigaon Municipal Police Station. Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre-wedding party on the night of the incident. His three companions were all drunk. On his way home, Diomedes saw the three engaged in heated argument with Arnel. On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond reasonable doubt of frustrated homicide and sentenced him to suffer imprisonment from two years and four months of prision correccional, as minimum, to six years and one day of prision mayor, as maximum. Since the maximum probationable imprisonment under the law was only up to six years, Arnel did not qualify for probation. Arnel appealed to the Court of Appeals (CA), invoking self-defense and, alternatively, seeking conviction for the lesser crime of attempted homicide with the consequent reduction of the penalty imposed on him. The CA entirely affirmed the RTC decision but deleted the award for lost income in the absence of evidence to support it. 3 Not satisfied, Arnel comes to this Court on petition for review. In the course of its deliberation on the case, the Court required Arnel and the Solicitor General to submit their respective positions on whether or not, assuming Arnel committed only the lesser crime of attempted homicide with its imposable penalty of imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum, he could still apply for probation upon remand of the case to the trial court. Both complied with Arnel taking the position that he should be entitled to apply for probation in case the Court metes out a new penalty on him that makes his offense probationable. The language and spirit of the probation law warrants such a stand. The
aHICDc TEAICc

Solicitor General, on the other hand, argues that under the Probation Law no application for probation can be entertained once the accused has perfected his appeal from the judgment of conviction. The Issues Presented The case essentially presents three issues: 1.Whether or not Arnel acted in self-defense when he struck Rufino on the head with a stone; 2.Assuming he did not act in self-defense, whether or not Arnel is guilty of frustrated homicide; and 3.Given a finding that Arnel is entitled to conviction for a lower offense and a reduced probationable penalty, whether or not he may still apply for probation on remand of the case to the trial court. The Court's Rulings One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and that he merely acted in self-defense when he hit Rufino back with a stone. When the accused invokes self-defense, he bears the burden of showing that he was legally justified in killing the victim or inflicting injury to him. The accused must establish the elements of self-defense by clear and convincing evidence. When successful, the otherwise felonious deed would be excused, mainly predicated on the lack of criminal intent of the accused. 4 In homicide, whether consummated, frustrated, or attempted, self-defense requires (1) that the person whom the offender killed or injured committed unlawful aggression; (2) that the offender employed means that is reasonably necessary to prevent or repel the unlawful aggression; and (3) that the person defending himself did not act with sufficient provocation. 5 If the victim did not commit unlawful aggression against the accused, the latter has nothing to prevent or repel and the other two requisites of self-defense would have no basis for being appreciated. Unlawful aggression contemplates an actual, sudden, and unexpected attack or an imminent danger of such attack. A mere threatening or intimidating attitude is not enough. The victim must attack the accused with actual physical force or with a weapon. 6 Here, the lower courts found that Arnel failed to prove the element of unlawful aggression. He alone testified that Jesus and Ananias rained fist blows on him and that Rufino and Ananias tried to stab him. No one corroborated Arnel's testimony that it was Rufino who started it. Arnel's only other witness, Diomedes, merely testified that he saw those involved having a heated argument in the middle of the street. Arnel did not submit any medical certificate to prove his point that he suffered injuries in the hands of Rufino and his companions. 7 In contrast, the three witnesses Jesus, Paciano, and Ananias testified that Arnel was the aggressor. Although their versions were mottled with inconsistencies, these do not detract from their core story. The witnesses were one in what Arnel did and when and how he did it. Compared to Arnel's testimony, the prosecution's version is more believable and consistent with reality, hence deserving credence. 8
ADCETI

Two. But given that Arnel, the accused, was indeed the aggressor, would he be liable for frustrated homicide when the wounds he inflicted on Rufino, his victim, were not fatal and could not have resulted in death as in fact it did not? The main element of attempted or frustrated homicide is the accused's intent to take his victim's life. The prosecution has to prove this clearly and convincingly to exclude every possible doubt regarding homicidal intent. 9 And the intent to kill is often inferred from, among other things, the means the offender used and the nature, location, and number of wounds he inflicted on his victim. 10 Here, Arnel struck Rufino on the head with a huge stone. The blow was so forceful that it knocked Rufino out. Considering the great size of his weapon, the impact it produced, and the location of the wounds that Arnel inflicted on his victim, the Court is convinced that he intended to kill him. The Court is inclined, however, to hold Arnel guilty only of attempted, not frustrated, homicide. In Palaganas v. People, 11 we ruled that when the accused intended to kill his victim, as shown by his use of a deadly weapon and the wounds he inflicted, but the victim did not die because of timely medical assistance, the crime is frustrated murder or frustrated homicide. If the victim's wounds are not fatal, the crime is only attempted murder or attempted homicide. Thus, the prosecution must establish with certainty the nature, extent, depth, and severity of the victim's wounds. While Dr. Belleza testified that "head injuries are always very serious," 12 he could not categorically say that Rufino's wounds in this case were "fatal." Thus:
cEaCAH

Q:Doctor, all the injuries in the head are fatal? A:No, all traumatic injuries are potentially treated. Q:But in the case of the victim when you treated him the wounds actually are not fatal on that very day? A:I could not say, with the treatment we did, prevent from becoming fatal. But on that case the patient preferred to go home at that time. Q:The findings also indicated in the medical certificate only refers to the length of the wound not the depth of the wound? A:When you say lacerated wound, the entire length of the layer of scalp. Q:So you could not find out any abrasion? A:It is different laceration and abrasion so once the skin is broken up the label of the frontal lo[b]e, we always call it lacerated wound, but in that kind of wound, we did not measure the depth. 13
ADCTac

Indeed, Rufino had two lacerations on his forehead but there was no indication that his skull incurred fracture or that he bled internally as a result of the pounding of his head. The wounds were not so deep, they merely required suturing, and were estimated to heal in seven or eight days. Dr. Belleza further testified:
Q:So, in the medical certificate the wounds will not require surgery? A:Yes, Madam. Q:The injuries are slight? A:7 to 8 days long, what we are looking is not much, we give antibiotics and antit[e]tanus the problem the contusion that occurred in the brain.

xxx xxx xxx Q:What medical intervention that you undertake? A:We give antibiotics, Your Honor, antit[e]tanus and suturing the wounds. Q:For how many days did he stay in the hospital? A:Head injury at least be observed within 24 hours, but some of them would rather go home and then come back. Q:So the patient did not stay 24 hours in the hospital? A:No, Your Honor. Q:Did he come back to you after 24 hours? A:I am not sure when he came back for follow-up. 14

Taken in its entirety, there is a dearth of medical evidence on record to support the prosecution's claim that Rufino would have died without timely medical intervention. Thus, the Court finds Arnel liable only for attempted homicide and entitled to the mitigating circumstance of voluntary surrender. Three. Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed from the judgment of the RTC convicting him for frustrated homicide. But, the Court finds Arnel guilty only of the lesser crime of attempted homicide and holds that the maximum of the penalty imposed on him should be lowered to imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum. With this new penalty, it would be but fair to allow him the right to apply for probation upon remand of the case to the RTC. Some in the Court disagrees. They contend that probation is a mere privilege granted by the state only to qualified convicted offenders. Section 4 of the probation law (PD 968) provides: "That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." 15 Since Arnel appealed his conviction for frustrated homicide, he should be deemed permanently disqualified from applying for probation. But, firstly, while it is true that probation is a mere privilege, the point is not that Arnel has the right to such privilege; he certainly does not have. What he has is the right to apply for that privilege. The Court finds that his maximum jail term should only be 2 years and 4 months. If the Court allows him to apply for probation because of the lowered penalty, it is still up to the trial judge to decide whether or not to grant him the privilege of probation, taking into account the full circumstances of his case. Secondly, it is true that under the probation law the accused who appeals "from the judgment of conviction" is disqualified from availing himself of the benefits of probation. But, as it happens, two judgments of conviction have been meted out to Arnel: one, a conviction for frustrated homicide by the regional trial court, now set aside; and, two, a conviction for attempted homicide by the Supreme Court. If the Court chooses to go by the dissenting opinion's hard position, it will apply the probation law on Arnel based on the trial court's annulled judgment against him. He will not be entitled to probation because of the severe penalty that such judgment imposed on him. More, the Supreme Court's judgment of conviction for a lesser offense and a lighter
ESaITA

penalty will also have to bend over to the trial court's judgment even if this has been found in error. And, worse, Arnel will now also be made to pay for the trial court's erroneous judgment with the forfeiture of his right to apply for probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the horse errs, the carabao gets the whip). Where is justice there? The dissenting opinion also expresses apprehension that allowing Arnel to apply for probation would dilute the ruling of this Court in Francisco v. Court of Appeals 16 that the probation law requires that an accused must not have appealed his conviction before he can avail himself of probation. But there is a huge difference between Francisco and this case. In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the accused guilty of grave oral defamation and sentenced him to a prison term of one year and one day to one year and eight months of prision correccional, a clearly probationable penalty. Probation was his to ask! Still, he chose to appeal, seeking an acquittal, hence clearly waiving his right to apply for probation. When the acquittal did not come, he wanted probation. The Court would not of course let him. It served him right that he wanted to save his cake and eat it too. He certainly could not have both appeal and probation. The Probation Law, said the Court in Francisco, requires that an accused must not have appealed his conviction before he can avail himself of probation. This requirement "outlaws the element of speculation on the part of the accused to wager on the result of his appeal that when his conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his sentence inevitable, he now applies for probation as an 'escape hatch' thus rendering nugatory the appellate court's affirmance of his conviction." 17 Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for probation. He did not have a choice between appeal and probation. He was not in a position to say, "By taking this appeal, I choose not to apply for probation." The stiff penalty that the trial court imposed on him denied him that choice. Thus, a ruling that would allow Arnel to now seek probation under this Court's greatly diminished penalty will not dilute the sound ruling in Francisco. It remains that those who will appeal from judgments of conviction, when they have the option to try for probation, forfeit their right to apply for that privilege. Besides, in appealing his case, Arnel raised the issue of correctness of the penalty imposed on him. He claimed that the evidence at best warranted his conviction only for attempted, not frustrated, homicide, which crime called for a probationable penalty. In a way, therefore, Arnel sought from the beginning to bring down the penalty to the level where the law would allow him to apply for probation. In a real sense, the Court's finding that Arnel was guilty, not of frustrated homicide, but only of attempted homicide, is an original conviction that for the first time imposes on him a probationable penalty. Had the RTC done him right from the start, it would have found him guilty of the correct offense and imposed on him the right penalty of two years and four months maximum. This would have afforded Arnel the right to apply for probation.
AEDCHc aTEADI

The Probation Law never intended to deny an accused his right to probation through no fault of his. The underlying philosophy of probation is one of liberality towards the accused. Such philosophy is not served by a harsh and stringent interpretation of the statutory provisions. As Justice Vicente V. Mendoza said in his dissent in Francisco, the Probation Law must not be regarded as a mere privilege to be given to the accused only where it clearly appears he comes within its letter; to do so would be to disregard the teaching in many cases that the Probation Law should be applied in favor of the accused not because it is a criminal law but to achieve its beneficent purpose. One of those who dissent from this decision points out that allowing Arnel to apply for probation after he appealed from the trial court's judgment of conviction would not be consistent with the provision of Section 2 that the probation law should be interpreted to "provide an opportunity for the reformation of a penitent offender." An accused like Arnel who appeals from a judgment convicting him, it is claimed, shows no penitence. This may be true if the trial court meted out to Arnel a correct judgment of conviction. Here, however, it convicted Arnel of the wrong crime, frustrated homicide, that carried a penalty in excess of 6 years. How can the Court expect him to feel penitent over a crime, which as the Court now finds, he did not commit? He only committed attempted homicide with its maximum penalty of 2 years and 4 months. Ironically, if the Court denies Arnel the right to apply for probation under the reduced penalty, it would be sending him straight behind bars. It would be robbing him of the chance to instead undergo reformation as a penitent offender, defeating the very purpose of the probation law. At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct penalty of two years and four months maximum, he would have had the right to apply for probation. No one could say with certainty that he would have availed himself of the right had the RTC done right by him. The idea may not even have crossed his mind precisely since the penalty he got was not probationable. The question in this case is ultimately one of fairness. Is it fair to deny Arnel the right to apply for probation when the new penalty that the Court imposes on him is, unlike the one erroneously imposed by the trial court, subject to probation? WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES the Decision dated July 31, 2007 of the Court of Appeals in CA-G.R. CR 29639, FINDS petitioner Arnel Colinares GUILTY beyond reasonable doubt of attempted homicide, and SENTENCES him to suffer an indeterminate penalty from four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum, and to pay Rufino P. Buena the amount of P20,000.00 as moral damages, without prejudice to petitioner applying for probation within 15 days from notice that the record of the case has been remanded for execution to the Regional Trial Court of San Jose, Camarines Sur, in Criminal Case T-2213. SO ORDERED.
HSEcTC

Corona, C.J., Carpio, Velasco, Jr., Leonardo-de Castro, Del Castillo, Perez, Mendoza and Reyes, JJ., concur. Brion and Bersamin, JJ., join Justice Peralta's concurring and dissenting opinion. Peralta, J., see concurring and dissenting opinion. Villarama, Jr., J., see concurring and dissenting opinion. Sereno, J., I join Justice Peralta and Villarama. Perlas-Bernabe, J., I join Justice Villarama.

Separate Opinions
PERALTA, J., dissenting and concurring: I concur with the disposition of the majority as to the conviction of the accused. However, as to the question relating to the application of the Probation Law in this case, I respectfully dissent to the majority opinion. Probation is not a right granted to a convicted offender. Probation is a special privilege granted by the State to a penitent qualified offender, 1 who does not possess the disqualifications under Section 9 of Presidential Decree (P.D.) No. 968, 2 otherwise known as the Probation Law of 1976. Likewise, the Probation Law is not a penal law for it to be liberally construed to favor the accused. 3 In the American law paradigm, probation is considered as an act of clemency and grace, not a matter of right. 4 It is a privilege granted by the State, not a right to which a criminal defendant is entitled. 5 In the recent case of City of Aberdeen v. Regan, 6 it was pronounced that:
The granting of a deferred sentence and probation, following a plea or verdict of guilty, is a rehabilitative measure and, as such, is not a matter of right but is a matter of grace, privilege, or clemency granted to the deserving. 7

In this jurisdiction, the wisdom behind the enactment of our own Probation Law, as outlined in the said law, reads:
EcIDaA

(a)promote the correction and rehabilitation of an offender by providing him with individualized treatment; (b)provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence; and (c)prevent the commission of offenses. 8

Originally, P.D. No. 968 9 allowed the filing of an application for probation even if an appeal had been perfected by the convicted offender under Section 4, thus:
Section 4.Grant of Probation. Subject to the provisions of this Decree, the court may, after it shall have convicted and sentenced a defendant and upon application at any time of said defendant, suspend the execution of said sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court, with notice to the appellate court if an appeal has been taken from the sentence of conviction. The filing of the application shall be deemed a waiver of the right to appeal, or the automatic withdrawal of a pending appeal. An order granting or denying probation shall not be appealable. 10

Thereafter, the filing of an application for probation pending appeal was still allowed when Section 4 of P.D. No. 968 was amended by P.D. No. 1257. 11 However, with the subsequent amendment of Section 4 of P.D. No. 968 by P.D. No. 1990, 12 the application for probation is no longer allowed if the accused has perfected an appeal from the judgment of conviction. Section 4 of the Probation Law now reads:
TAScID

Sec. 4.Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best; Provided, that no application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court. The filing of the application shall be deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable. 13

The reason for the disallowance is stated in the preamble of P.D. No. 1990, thus:
WHEREAS, it has been the sad experience that persons who are convicted of offenses and who may be entitled to probation still appeal the judgment of conviction even up to the Supreme Court, only to pursue their application for probation when their appeal is eventually dismissed; WHEREAS, the process of criminal investigation, prosecution, conviction and appeal entails too much time and effort, not to mention the huge expenses of litigation, on the part of the State; WHEREAS, the time, effort and expenses of the Government in investigating and prosecuting accused persons from the lower courts up to the Supreme Court, are oftentimes rendered nugatory when, after the appellate Court finally affirms the judgment of conviction, the defendant applies for and is granted probation; WHEREAS, probation was not intended as an escape hatch and should not be used to obstruct and delay the administration of justice, but should be availed of at the first opportunity by offenders who are willing to be reformed and rehabilitated; WHEREAS, it becomes imperative to remedy the problems abovementioned confronting our probation system. 14
caSEAH

In Sable v. People, 15 the Court stated that "[Section 4 of] the Probation Law was amended to put a stop to the practice of appealing from judgments of conviction even if the sentence is probationable, for the purpose of securing an acquittal and applying for the probation only if the accused fails in his bid." 16 Thus, probation should be availed of at the first opportunity by convicts who are willing to be reformed and rehabilitated; who manifest spontaneity, contrition and remorse. 17 Verily, Section 4 of the Probation Law provides that the application for probation must be filed with the trial court within the 15-day period for perfecting an appeal. The need to file it within such period is intended to encourage offenders, who are willing to be reformed and rehabilitated, to avail themselves of probation at the first opportunity. 18 If the application for probation is filed beyond the 15-day period, then the judgment becomes final and executory and the lower court can no longer act on the application for

probation. On the other hand, if a notice of appeal is perfected, the trial court that rendered the judgment of conviction is divested of any jurisdiction to act on the case, except the execution of the judgment when it has become final and executory. In view of the provision in Section 4 of the Probation Law that "no application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction," prevailing jurisprudence 19 treats appeal and probation as mutually exclusive remedies because the law is unmistakable about it. 20 However, it has been proposed that an appeal should not bar the accused from applying for probation if the appeal is solely to reduce the penalty to within the probationable limit, as this is equitable. In this regard, an accused may be allowed to apply for probation even if he has filed a notice of appeal, provided that his appeal is limited to the following grounds:
1.When the appeal is merely intended for the correction of the penalty imposed by the lower court, which when corrected would entitle the accused to apply for probation; and 2.When the appeal is merely intended to review the crime for which the accused was convicted and that the accused should only be liable to the lesser offense which is necessarily included in the crime for which he was originally convicted and the proper penalty imposable is within the probationable period.
HEIcDT

In both instances, the penalty imposed by the trial court for the crime committed by the accused is more than six years; hence, the sentence disqualifies the accused from applying for probation. Thus, the accused should be allowed to file an appeal under the aforestated grounds to seek a review of the crime and/or penalty imposed by the trial court. If, on appeal, the appellate court finds it proper to modify the crime and/or the penalty imposed, and the penalty finally imposed is within the probationable period, then the accused should be allowed to apply for probation. In addition, before an appeal is filed based on the grounds enumerated above, the accused should first file a motion for reconsideration of the decision of the trial court anchored on the above-stated grounds and manifest his intent to apply for probation if the motion is granted. The motion for reconsideration will give the trial court an opportunity to review and rectify any errors in its judgment, while the manifestation of the accused will immediately show that he is agreeable to the judgment of conviction and does not intend to appeal from it, but he only seeks a review of the crime and/or penalty imposed, so that in the event that the penalty will be modified within the probationable limit, he will apply for probation. What Section 4 of the Probation Law prohibits is an appeal from the judgment of conviction, thus:
Sec. 4.Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best; Provided, that no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. 21

An appeal from the judgment of conviction involves a review of the merits of the case and the determination of whether or not the accused is entitled to acquittal. However, under the recommended grounds for appeal which were enumerated earlier, the purpose of the appeal is not to question the judgment of conviction, but to question only the propriety of the sentence, particularly the penalty imposed, as the accused intends to apply for probation. If the appellate court finds it proper to modify the sentence, and the penalty finally imposed by the appellate court is within the probationable period, the accused should be allowed to apply for probation after the case is remanded to the trial court for execution. It is believed that the recommended grounds for appeal do not contravene Section 4 of the Probation Law, which expressly prohibits only an appeal from the judgment of conviction. In such instances, the ultimate reason of the accused for filing the appeal based on the aforestated grounds is to determine whether he may avail of probation based on the review by the appellate court of the crime and/or penalty imposed by the trial court. Allowing the aforestated grounds for appeal would give a qualified convicted offender the opportunity to apply for probation if his ground for appeal is found to be meritorious by the appellate court, thus, serving the purpose of the Probation Law to promote the reformation of a penitent offender outside of prison. On the other hand, probation should not be granted to the accused in the following instances:
ADETca

1.When the accused is convicted by the trial court of a crime where the penalty imposed is within the probationable period or a fine, and the accused files a notice of appeal; and 2.When the accused files a notice of appeal which puts the merits of his conviction in issue, even if there is an alternative prayer for the correction of the penalty imposed by the trial court or for a conviction to a lesser crime, which is necessarily included in the crime in which he was convicted where the penalty is within the probationable period.

Both instances violate the spirit and letter of the law, as Section 4 of the Probation Law prohibits granting an application for probation if an appeal from the sentence of conviction has been perfected by the accused. There is wisdom to the majority opinion, but the problem is that the law expressly prohibits the filing of an application for probation beyond the period for filing an appeal. When the meaning is clearly discernible from the language of the statute, there is no room for construction or interpretation. 22 Thus, the remedy is the amendment of Section 4 of P.D. No. 968, and not adaptation through judicial interpretation. VILLARAMA, JR., J., concurring and dissenting: I join the majority in ruling that petitioner should have been convicted only of the lesser crime of attempted homicide and that the maximum of the indeterminate prison term imposed on him should be lowered to four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum. However, I disagree with their conclusion (by 8-7 vote) that on grounds of fairness, the Court should now allow petitioner the right to apply for probation upon remand of the case to the trial court. I submit the following principles which should be controlling on the present issue:
cTECHI

1.Probation being a mere privilege, this Court may not grant as relief the recognition that accused-appellant may avail of it as a matter of right. 2.The probation law is not a penal statute and therefore the principle of liberal interpretation is inapplicable. With the enactment of P.D. No. 968 (Probation Law of 1976), this Court held that the rule that if the accused appeals his conviction solely to reduce the penalty, such penalty already probationable, and the appellate court grants his appeal he may still apply for probation, had already been abandoned. We explained that the intention of the new law is to make appeal and probation mutually exclusive remedies. 1 Thus, where the penalty imposed by the trial court is not probationable, and the appellate court modifies the penalty by reducing it to within the probationable limit, the same prohibition should still apply and he is not entitled to avail of probation. In Francisco v. Court of Appeals, 2 the Court categorically declared that "[P]robation is not a right of an accused, but rather an act of grace of clemency or immunity conferred by the court to a seemingly deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he stands convicted." Subsequently, the Court noted that the suggestion in Francisco that an appeal by the accused should not bar him from applying for probation where such appeal was solely for the purpose of correcting a wrong penalty to reduce it to within the probationable range may not be invoked by the accused in situations when he at the same time puts in issue the merits of his conviction. 3 The ponencia found the factual milieu in Francisco not on fours with this case. However, the accused here did not even raise the issue of his entitlement to probation either as an alternative prayer to acquittal or as principal relief. The majority reasoned that since the trial court imposed a (wrong) penalty beyond the probationable range, thus depriving the accused of the option to apply for probation when he appealed, the element of speculation that the law sought to curb was not present. Noting that the accused in this case claimed that the evidence at best warranted his conviction only for attempted, not frustrated homicide, the majority opined that said accused had, in effect, sought to bring down the penalty as to allow him to apply for probation. I cannot concur with such proposition because it seeks to carve out an exception not found in and contrary to the purpose of the probation law. The pronouncement in Francisco that the discretion of the trial court in granting probation is to be exercised primarily for the benefit of organized society, and only incidentally for the benefit of the accused, underscored the paramount objective in granting probation, which is the reformation of the probationer. This notwithstanding, the majority suggests that remorse on the part of the accused is not required, or least irrelevant in this case because "the Court cannot expect petitioner to feel penitent over a crime, which the Court now finds, he did not commit", as he only committed attempted homicide. It must be stressed that in foreclosing the right to appeal his conviction once the accused files an application for probation, the State proceeds from the reasonable assumption that the accused's submission to rehabilitation and reform is indicative of remorse. And in
HESIcT

prohibiting the trial court from entertaining an application for probation if the accused has perfected his appeal, the State ensures that the accused takes seriously the privilege or clemency extended to him, that at the very least he disavows criminal tendencies. Consequently, this Court's grant of relief to herein accused whose sentence was reduced by this Court to within the probationable limit, with a declaration that accused may now apply for probation, would diminish the seriousness of that privilege because in questioning his conviction accused never admitted his guilt. It is of no moment that the trial court's conviction of petitioner for frustrated homicide is now corrected by this Court to only attempted homicide. Petitioner's physical assault on the victim with intent to kill is unlawful or criminal regardless of whether the stage of commission was frustrated or attempted only. Allowing the petitioner the right to apply for probation under the reduced penalty glosses over the fact that accused's availment of appeal with such expectation amounts to the same thing: speculation and opportunism on the part of the accused in violation of the rule that appeal and probation are mutually exclusive remedies. The ponencia then declares that the question in this case is ultimately one of fairness, considering the trial court's erroneous conviction that deprived petitioner of the right to apply for probation, from which he had no way of obtaining relief except by appealing the judgment. Such liberality accorded to the accused, for the reason that it was not his fault that the trial court failed to impose the correct sentence, is misplaced. It is settled that the Probation Law is not a penal statute. 4 In the matter of interpretation of laws on probation, the Court has pronounced that "the policy of liberality of probation statutes cannot prevail against the categorical provisions of the law." 5 In applying Sec. 4 of P.D. No. 968 to this and similar cases, the Court must carefully tread so as not to digress onto impermissible judicial legislation whereby in the guise of interpretation, the law is modified or given a construction which is repugnant to its terms. As oft-repeated, the remedy lies in the legislature and not judicial fiat. I therefore maintain my dissent to the pronouncement in the ponencia recognizing the right of petitioner Arnel Colinares to apply for probation.
ICAcHE